Court Contemplates Admission of Wiretap Evidence

The Prosecution seeks to offer 245 intercepted telephone conversations in the trial of Slobodan Milosevic. They may contain some of the best evidence of the Accused's direct involvement in the alleged joint criminal enterprise to ethnically cleanse substantial parts of Croatia and Bosnia of their non-Serb populations as well as provide some insight into Milosevic's role in Srebrenica.

The intercepts have remained in limbo for a year, pending a decision by the Trial Chamber on the legality of their admission, which was challenged by Milosevic and the Amicus Curiae. This week, Trial Chamber III heard additional argument from the parties, noting it has received their written submissions and heard evidence from relevant witnesses last week. That evidence was taken in closed session, likely to protect the source of the intercepts.

Milosevic claims the intercepts were part of a conspiracy by one side (the Bosnian Government) to secede from the former Socialist Federal Republic of Yugoslavia (SFRY) and portray one side as guilty of crimes (Serbia and the Bosnian Serbs) and the other (Bosnian Government) as the victim. He seemed to argue that since the intercepts were made by the Bosnian State Security Service they were inherently unreliable.

Amicus Curiae, Steven Kay, advised the Court the Accused had several available arguments to challenge admission of the intercepts. First, their legality under state law has not been established. In many state systems, illegally obtained evidence is ruled inadmissible to sanction police who have violated the law to obtain it. Judge Robinson interrupted Mr. Kay's argument to point out that the Trial Chamber in the Kordic case (on which he and Judge May sat) ruled that inadmissibility under state law does not make evidence inadmissible in the ICTY. Tribunal rules specifically so provide. Judge May added that the purpose of the ICTY is not to enforce state regulations. In this situation, it is absurd to think that exclusion of wiretap evidence in a Tribunal case would punish or deter Bosnian law enforcement from actions they took during and leading up to war. In addition, the Kordic Trial Chamber held that rules against admitting illegally obtained evidence do not apply to eavesdropping on an enemy's telephone calls during wartime.

Mr. Kay agreed that the real determinant is reliability, referring to a recent decision by the Brdjanin Trial Chamber, 'The Trial Chamber has no doubt at all that intercepts, the authenticity of which cannot be proved beyond a reasonable doubt, should be excluded.' Judge May interjected, 'Then they [the Trial Camber] went on to admit them [the intercepts].' Mr. Kay argued that the intercepts should not be admitted in the Milosevic trial until they have been properly authenticated, i.e. until it as been established that they are the tapes of conversations which were recorded (likely by the Bosnian State Security Service) and have not been tampered with.

Prosecutor Geoffrey Nice, on the other hand, told the Court the tapes were authenticated by last week's witness who testified in closed session. The witness gave an account of the history of the intercepts from the date of their creation until copies were turned over to the OTP. The issue, Mr. Nice said, is whether the tapes have been falsified, as Milosevic alleges is possible. However, when the Prosecution invited Milosevic to identify intercepts he asserted were falsified, he declined to do so. There is no reason, Mr. Nice told the Court, to doubt the intercepts at this stage.

The issue here is a procedural one: which party has the burden of proof, i.e. the initial responsibility to produce evidence to support its position, which then shifts the responsibility to the other party to offer contrary evidence. Mr. Nice maintains that once he has established that the tapes are authentic, the prosecution has met its burden of proof. If the Accused seeks to challenge the intercepts alleging they have been falsified, the Accused must put some evidence forward to support is allegations. Mr. Kay, on the other hand, maintains that the Prosecution has not met its burden of proving authenticity because it has not established that the tapes have not technically been tampered with. He asks the Court to require that a technical expert examine the tapes and offer his/her opinion on the issue.

The Trial Chamber will consider the oral arguments and written submissions before rendering its decision. Given the Tribunal's preference for the admission of all relevant evidence, it is likely to admit the transcripts (which the Prosecutor must still show are relevant on an individual basis). Unless Milosevic can produce evidence to support his bare allegation that there is 'a very high degree of probability that [there has been] malicious manipulation of the intercepts,' admission seems the proper course. According to Mr. Nice, the intercepts are likely to show four things: the association of members of the joint criminal enterprise, their political plans, their military plans and the execution of them. If they do, they could be of critical importance to the Prosecution's case by tying Milosevic to another type of conspiracy than the one he complains about – a joint criminal enterprise to ethnically cleanse substantial areas of Bosnia and Croatia of their non-Serb populations.