Institute for War and Peace Reporting | Giving Voice, Driving Change
ANALYSIS: The Case of the Missing Witnesses
Ambassador William Walker, who headed the Kosovo Verification Mission, KVM, this week becomes the first American official to give evidence in the trial of Slobodan Milosevic - and possibly the last.
Walker's is the only American name on the list of so-called "international witnesses" whose testimonies have been announced by Geoffrey Nice, head of the prosecution team.
At the time covered by Kosovo indictment, Walker was in charge of the KVM. His testimony will be followed by that of Klaus Naumann of Germany, chair of NATO's military committee between 1998 and1999 - the period covering the escalation of the Kosovo crisis. He will be followed Wolfgang Petritch of Austria, European Union representative at the Rambouillet and Paris talks in February and March 1999. Then comes Knut Vollebaek of Norway, former head of the UN mission in Kosovo, UNMIK.
Of the international witnesses, three Britons have already been called - Lord Ashdown, General Karol Drewienkiewicz and Colonel Richard Ciaglinski - and one Canadian, General Michel Maisonneuve. They all handled Milosevic's crossfire successfully.
But the question is what happened to the American officials who were in the front line of the western diplomatic, political and military drive to solve the Kosovo crisis. At least three, who played crucial roles in this period, are conspicuously absent from the witness list.
The first is Richard Holbrooke, former American ambassador to the UN and the main international negotiator with the then Yugoslav president in the crucial period from October 1998 to March 1999.
The prosecution and judges would undoubtedly like to hear of the talks he had with Milosevic in his Belgrade presidential salon. And the defendant would probably wish to present his own interpretation of the exchanges. Holbrooke has said he would be willing to testify at the tribunal - if the US authorities permitted it.
The second missing witness is Christopher Hill, the former US ambassador to Macedonia who tried to mediate between Belgrade and the Kosovo Albanians in late 1998, and US representative at the Rambouillet and Paris talks in spring 1999.
Hill's testimony might shed vital new light on whether Belgrade was as interested in a political solution as Milosevic claims it was, or if it was faking negotiations while planning a military offensive - even "inviting a small NATO intervention" as the prosecution and some witnesses claim.
Last but not the least is General Wesley Clark, former commander of allied forces in Europe at the time of NATO's intervention against Serbia.
Clark visited Belgrade several times to warn the Serb president of what would happen if he rejected a peaceful solution in Kosovo. The former's testimony would be even more crucial given the fact that Milosevic's defence is built on claims that the Albanians were not deported as alleged but had been driven from their homes by "NATO aggression". The former leader also insists that the majority were killed not by Serbian bullets but by NATO bombs.
The prosecution is staying quiet on the subject of the missing witnesses. However, certain things can be deduced from Nice's explanation to the court on the problems with "rule 70 witnesses" - so-called because, in the rules of procedure and evidence No. 70 concerns matters not subject to disclosure.
Nice explained that the appearance of rule 70 witnesses is subject to two agreements between the Office of the Prosecution, OTP, and the witness's government, or "providing body". The first is to provide the information and the second permission to come to The Hague. Nice complained that in reality these were not agreements at all, "because the provider can simply set its terms".
Nice remarked that the witnesses' governments had insisted on conditions that the prosecution team could not accept.
He said the problem concerned protective measures for the witnesses, and while he did not specify what such arrangements would entail, he said simply that neither he nor the prosecution team was prepared to put their names behind them. "Therefore, at the moment, these witnesses drop from the picture," he said.
Nice did not name either the provider or the potential witnesses he was referring to. But bearing in mind the names that are conspicuously missing from the witness list, it is likely that these requested protective measures may explain why Walker could be the first - and last - US official to attend Milosevic's trial.
Ambassador Walker is an exception because his provider is not the US government but the Organization for Security and Cooperation in Europe, OSCE, which organised the KVM.
OSCE has been a generous provider of witnesses in the Milosevic trial. So far it has heard from four of Walker's KVM verifiers who described the development of the Kosovo crisis from October 1998 until the beginning of air strikes on March 24, 1999.
All four testified on what they saw when they came to verify what had happened in the village of Racak the day before.
Milosevic maintains the discovery of more than 40 civilian corpses in Racak was "a set up" devised by Walker. Far from being "a massacre of civilians", as Walker described it, the former Yugoslav leader claimed the dead were "terrorists" from the Kosovo Liberation Army, KLA.
Milosevic insists Walker's massacre allegations were a cover for American military "aggression against Yugoslavia" and NATO air strikes. Walker, therefore, can expect a fierce cross-examination from Milosevic.
Walker will be one of the last prosecution witnesses to testify on Racak. Last week there were five - three eyewitness villagers, one of whom survived the shooting, the former KLA commander Shukri Buja, and British police detective Ian Hendrie.
On January 16, 1999, together with the verifiers, Hendrie examined the crime scene and photographed the injuries inflicted on the bodies, which included decapitation, removal of internal organs, unusual eye injuries and burns behind ears caused by shooting from close range.
Buja told the court that 47 of his men were in Racak on the day of the killings. He said nine were killed and eight wounded in the first minutes of the dawn attack by the Serbian police and army, while the other KLA members scattered and retreated to positions a few miles away.
Buja said that they returned at dusk to collect the bodies of their comrades and buried them in another village. He said the civilian dead were left where they fell - and that was where Walker and his verifiers found them the following day.
Milosevic, however, insists Walker directed everything and this week he will have the chance to put his theory to the former head of the KVM himself.
It is not clear if Milosevic will ever have an opportunity to meet the other participants in "the great American plot" against Serbia, as the accused has described the events discussed in the courtroom. As Nice said, for the time being they have "dropped from the picture".
Mirko Klarin is IWPR senior editor at the war crimes tribunal and editor-in-chief of SENSE News Agency.
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