Attempts to Undermine Milosevic Trial Fail

Prosecutor Dermot Groome found himself faced with every lawyer's nightmare: a witness who disavows his former statements and key pieces of his testimony. While a prosecutor is allowed to re-examine a witness to rehabilitate him after cross examination, this was not a situation where the witness needed (or wanted) rehabilitating. He'd simply changed his story. Any opportunity to clarify his statement would result in him repeating what he'd said on cross examination.

In such cases, Common Law rules allow the prosecutor to ask the court to declare the witness has become a 'hostile witness.' If the Court does so, the prosecutor can cross examine his own witness, which allows using techniques designed to show that the witness is lying. Obviously, a prosecutor doesn't want to do this unless absolutely necessary, since it undermines the credibility of his own witness. Yet sometimes it is the only thing to do to provide the court with enough information so it can properly judge the evidence.

The problem for Mr. Groome when Dragan Vasiljkovic (Captain Dragan) essentially became Mr. Milosevic's witness during cross examination was that the Tribunal is not bound by Common Law rules. Comments from the Bench indicated that at least one of the judges did not favor adopting a hostile witness rule for the Tribunal. Mr. Groome trod a fine line by stating that he was not asking that the witness be declared hostile, nor was he seeking to impeach the witness for anything he said on direct examination. He was 'simply trying to explore the contradictions.' After conferring, the judges agreed that such exploration was necessary for them to be able to determine what was true, the Chamber's main obligation.

Mr. Groome proceeded with a short, but masterful re-examination of Captain Dragan. He did not discredit all of the witness's testimony or statements to OTP investigators. Rather, he demonstrated why the witness might have disavowed them under cross examination.

First, he reviewed the witness's original testimony on several key points (changed on cross examination) where Vasiljkovic had stated that the Serbian Security Service (SDB) was actively involved in supporting the fighting in Croatia. When Vasiljkovic continued to waffle, Mr. Groome read or had him read from his signed statement to the OTP prosecutor, the transcript from his direct examination and an interview with him published in the Serbian weekly Vreme.

At times, Vasiljkovic tried to explain the discrepancy. Occasionally, he acknowledged his original statement was true based on what he knew then. Sometimes, he just said it wasn't true, such as an assertion in his 2001 statement that a part of his unit had been recruited by the SDB and evolved into the paramilitary Grey Wolves. Mr. Groome had already elicited his testimony that the statement being read out was the original which he'd read and signed in 2001. It didn't stop him from accusing the prosecution of changing the statement and tricking him. At one point, the prosecutor asked him if he was saying it was a forged document. 'It is absolutely misinterpreted. Yes,' he responded.

After giving the witness the opportunity to comment on his previous statements to the effect that he and his Red Berets were linked to the Serbian DB, Mr. Groome inquired about threats made to him -- back in 1991 and recently. Captain Dragan had testified that in 1991 he was called to a meeting with two SDB agents after attempting to assist students who had been threatened by Vojislav Seselj. According to the witness's statement which Mr. Groome read, 'They basically told me the time had come to go away from the Balkans. They suggested my life was in danger. . . . The order came from the top. By this, I knew it came from President Milosevic.' Vasiljkovic acknowledged that was true. GROOME: 'You believed Mr. Milosevic had given an order to get you out of the country and if you didn't go you'd be killed?' WITNESS: 'That's what I thought at the time. . . .'

The prosecutor followed with questions about recent threats that caused the witness to request that his contacts with the OTP be strictly confidential. One was a text message recorded on his telephone. Vasiljkovic sought assistance from his connections in the SDB, police and army to track down its source, he testified. They found it belonged to an individual with 58 registered telephone numbers. Mr. Groome then asked him if he thought the source of the threat was a private individual or the secret service (SDB). Vasiljkovic said no, it wasn't the SDB, he'd suspected Seselj, but 'it turned out to be something else.' He didn't say what.

Mr. Groome then elicited information showing that the witness had lied when, in responding to Milosevic, he said he had only begun talking with the OTP after the former Federal Republic of Yugoslavia passed a law on cooperation with the Tribunal. The law was passed in April 2002, while Mr. Vasiljkovic's first statement to the OTP was given in 2001. It appeared the witness didn't want someone to know how long he had been in touch with the ICTY.

The coup de grace came in Mr. Groome's final series of questions. The witness acknowledged that he was a personal friend of Franko Simatovic, the former head of SDB special operations. He admitted that he had discussed coming to the Tribunal with him shortly before his arrival. Then Mr. Groome asked, 'Have you had any communication after arriving here? Have you had any connection with Frenki Simatovic or anyone from the SDB?' VASILJKOVIC: 'Yes, Frenki.' He then admitted that he had discussed his testimony with Frenki after he had begun giving it, though only for '20 seconds.' The prosecutor reminded him that he had said earlier in the day that he'd discussed the videotape of the Red Beret celebration, shown in court, with Frenki. When the Captain denied that discussion had taken place recently, Groome reminded him that he had also testified that he hadn't seen the videotape before coming to The Tribunal.

While Vasiljkovic tried to say he'd seen parts of the videotape before coming here, it was a lame response to the dramatic admission Mr. Groome had led him into making. For many observers, it appeared the SDB, through Vasiljkovic's close friend and the SDB's close colleague, Frenki, had renewed their contact with Captain Dragan. If true, it explains the dramatic change in Vasiljkovic's testimony from Wednesday to Thursday. What is far less clear is whether, if the SDB was the source of a threat, the SDB was protecting its own or Milosevic.

The dramatic turn of events on Friday leaves a number of questions unanswered. Was there witness tampering? Should Vasiljkovic have been held in contempt of court for violating the Court's prohibition against discussing his testimony with anyone once he begins to give it? Should proceedings be brought against him for giving false testimony or others for interfering with a witness? These are very serious matters. They have the potential to undermine the integrity of the process. Under ICTY rules, a witness can be indicted and prosecuted for giving false testimony, with a potential sentence of 100,000 Euros and seven years in prison (Rule 91). The same is true for anyone who 'threatens, intimidates, . . . or otherwise interferes with, a witness' (Rule 77).

While events surrounding Dragan Vasiljkovic's testimony have the potential to harm the integrity of the process in which Slobodan Milosevic is being tried for war crimes and crimes against humanity, they have not done so. In large part, that is due to Dermot Groome's re-examination, and to the Trial Chamber for permitting it. Had it not been allowed or not conducted so brilliantly, those who seek to manipulate and discredit the Tribunal would have furthered their cause. That they could not demonstrates the strength of the Tribunal in its pursuit of justice.