Panel to Investigate Possible Del Ponte Contempt
The president of the Hague tribunal has granted a request from Radovan Karadzic to appoint a special panel to investigate whether former tribunal prosecutor Carla Del Ponte committed contempt of court.
It remains unclear how long the three-judge panel will take to complete its inquiry.
In a September 27 submission, the wartime Bosnian Serb president claimed that a cable written by United States embassy legal officers in The Hague on April 16, 2004 “indicates that Prosecutor Del Ponte disclosed confidential information to representatives of the United States” during the trial of former Serbian president Slobodan Milosevic.
Milosevic died in 2006 before trial proceedings against him could be completed, and a judgement was never rendered.
The cable, subsequently made public on the Wikileaks website, was the result of a meeting between US embassy officials and Del Ponte. In it, the US officials note that Milosevic had “filed a confidential defence witness list” with judges.
“Reading directly from a list drawn from the filing, she [Del Ponte] said that the filing included former President Bill Clinton, former Secretary of State Madeleine Albright, former Secretary of Defence William Cohen, Ambassador Christopher Hill, General Wesley Clark, and former Ambassador Richard Holbrooke,” the cable states.
Karadzic, whose war crimes trial has been taking place at the tribunal since 2009, contended that the cable provides reason to believe that Del Ponte violated tribunal rules by “disclosing information… in knowing violation of an order of a chamber”.
Karadzic admitted that he does not have “legal standing to assert a violation of the rights of Slobodan Milosevic”, but since the latter is no longer alive, there is “no one who could bring this matter to the attention of the appropriate authorities”.
“The victim of the disclosure of confidential information is not only President Milosevic. Dr Karadzic also has a personal interest in ensuring that mechanisms are in place to hold prosecutors accountable for disclosing confidential information about defence witnesses,” the accused states. “If a prosecutor can disclose confidential information about defence witnesses with impunity, then Dr Karadzic can have no confidence that his filings are protected.”
In a response filed on October 4, prosecuting lawyer Alan Tieger hit back at Karadzic’s allegations. He noted that while Milosevic may have filed his witness list confidentially, “it was not made confidential by any chamber order”.
“Furthermore, none of the US officials identified in the cable were the subject of any protective measures preventing the disclosure of their identity as ICTY [International Tribunal for the Former Yugoslavia] witnesses. In short, the cable does not reveal any violation of a chamber order on the part of Ms Del Ponte,” Tieger continued.
The lawyer said it was “obvious” that merely filing a document as confidential did not make it so. In fact, Tieger argued that Karadzic himself had “filed his witness list confidentially, yet regularly publicly disclosed the names of non-protected witnesses from that list, without seeking permission from the trial chamber or taking any other step that would suggest a belief on his part that the names of that list… are protected by court order”.
Tieger said that while there might be circumstances where a party’s disclosure of confidential information not protected by a court order might warrant “judicial remedy”, this was not one of those instances.
In addition, he contended that Milosevic had already made public his intention to call senior US officials to testify, and the cable “simply reflects Ms. Del Ponte’s notification to the US government of information they would inevitably receive and act upon in the course of the defence case and moreover had already been partially alerted to by Mr Milosevic himself”.
Furthermore, Tieger asked why Karadzic would complain about confidential information being disclosed by Del Ponte, and then publicly disseminate exactly the same information himself.
Tieger stated that if this conduct was indeed contempt, “there is reason to believe that the accused, his legal advisor and/or other members of the defence team are guilty” of the same thing “for their public dissemination of the cable and the information contained therein”.
“The decision of the accused and his team to publicly disclose this material suggests they do not believe their own argument that such conduct constitutes contempt. It also undermines the accused’s claim that his request is motivated by a desire to protect the confidentiality of defence filings,” Tieger wrote.
He concluded that if the special panel decided to open an investigation into Del Ponte’s conduct, “that investigation must necessarily encompass the conduct of the accused, his legal advisor and his defence team”.
Rachel Irwin is IWPR’s Senior Reporter in The Hague.