Court Hears Argument on Serbia and Montenegro Cooperation

With the end of the prosecution's case against Slobodan Milosevic in sight, the Government of Serbia and Montenegro has failed to provide the prosecution with some of the most important documentation necessary to prove its case, lead prosecutor Geoffrey Nice informed the Trial Chamber at a hearing today. It includes a list of 100 priority documents identified at the last hearing on March 10, 2003, including stenographic notes of 60 to 70 meetings of the Supreme Defense Council, the body with command authority over the military in Serbia and Montenegro. Milosevic was a member of the three-person Council both as President of Serbia and President of the Federal Republic of Yugoslavia. According to Mr. Nice, these records constitute 'the best conceivable evidence of how the Accused operated in that Council, the degree to which he had influence or was overborn [sic] by others. . . .' Yet, he said, Serbia and Montenegro has provided only minutes of those meetings and provided nothing for the period following 23 March 1999, so important for the Kosovo part of the case. As for the 100 priority documents, Mr. Nice characterized the Government's response within the last two months as 'nil.'

Attorney for the Government of Serbia and Montenegro, Mr. Vladimir Djeric strongly objected to the prosecution's 'tone,' which he found 'totally unacceptable.' He informed the Court that negotiations had been proceeding, that the Government had raised legitimate objections to certain of the prosecution's requests and had a right to do so under ICTY Rules. Mr. Djeric also characterized the Government of Serbia and Montenegro as an 'adverse party' to the litigation, but stressed that didn't mean Serbia and Montenegro was not assisting the ICTY, as required by the ICTY Statute. 'The prosecutor may or may not agree with our objections but he has no right to accuse us of bad faith,' the Government's representative complained.

Today's hearing was a follow up to an earlier hearing on the same issues, held March 10, 2003. In response to the prosecution's request for Court assistance in securing documentation it deemed necessary for its case against Slobodan Milosevic, the Court at that time adjourned the hearing to allow the Government of Serbia and Montenegro 'to respond to the priority list of the Prosecution within two months and to comply with [the Prosecution's] request as far and as soon as possible or to indicate the ground of objection. . . .' The Court said once it received the Government's response, it would consider whether further action was necessary, including another hearing. Having received the Government's submission of May 6, the Trial Chamber scheduled today's hearing, though it made no decision.

In the Government's submission, it complained that the prosecution's priority list was not a priority list at all, but a 'break-down, item by item, of all requests for assistance which are currently being processed by Serbia and Montenegro, or in relation to which the Prosecution has not been satisfied with the response it received.' It went on to request the Court to reject the requests because the Prosecution had not taken 'reasonable steps to secure the assistance of Serbia and Montenegro. . . .' ICTY Rule 54 bis provides that a Trial Chamber may reject a request for an order that a State produce documents if 'no reasonable steps have been taken by the applicant to obtain the documents or information from the State.'

In addition to the priority list, the Government is challenging the Prosecution's request for access to its archives. The Government maintains the Prosecution wants full access to go on a 'fishing expedition.' The Prosecution says this issue is not the central one, but a diversion. Mr. Nice maintains that the Prosecution merely suggested that it survey the archives to select those relevant in response to the Government's complaint that it lacked resources to do so. In its written submission, the Prosecution also pointed out that the Government had not lacked resources to survey the archives to find exculpatory documents for a select number of accused, e.g. Slobodan Milosevic and Dragoljub Ojdanic. The Prosecution pointed to reports of the activities of Serbia and Montenegro's recently disbanded Army Commission for Cooperation with the ICTY, by which, according to one source, a 'select team of general officers and ranking officers searched documents in the military archives in search of evidence in favour of persons indicted by the ICTY.' The Prosecution's submission quoted the source further with regard to assistance to Milosevic in particular:

'The commission's disputed cooperation with Slobodan Milosevic is a much bigger problem. Milosevic is posing very precise questions to witnesses which are based on very high-quality information on battlefield events, the engagement of personnel and units and the political background of steps taken by the warring sides. Milosevic never named the source of his information but the way his questions are pose[d] indicate access to extensive information which only the Army of Serbia and Montenegro has in a number of military sites. Namely, apart from the documents in archives, Milosevic also cites sensitive information from the time when he was already in jail.'

In its May 20th submission, the Prosecution stated that it 'finds it very troubling that the same persons who may be connected to those who are linked to crimes in BiH and elsewhere, [sic] are determining what documents to provide to the ICTY and the ICJ (International Court of Justice, where Bosnia has a case against Serbia and Montenegro), and what materials to provide to those indicted by this Tribunal.' Though the Commission was shut down, it hasn't yet resulted in additional document disclosure, according to the Prosecution.

Mr. Nice acknowledged that in a recent meeting with Chief Prosecutor Carla Del Ponte, top Serbia and Montenegro officials made it clear they had no objection in principle to the prosecution having access to the archives and that it should have access. Despite that understanding, the Prosecution has yet to be granted access. He seeks the Court's assistance by way of an order directing the Government of Serbia and Montenegro to provide the documents requested, based on Serbia and Montenegro's lack of performance in the past and the short time left in the Prosecution's case. Mr. Nice stressed that a Court order would insure there would be no slippage on the part of the Government, and, if Serbia and Montenegro agrees to providing the documentation, it shouldn't object to a Court order formalizing it.

The Government does object, vehemently. Aside from being insulted by the Prosecution's 'tone', it expresses a concern about the need to protect certain sensitive material. ICTY Rule 54 bis provides that a State may ask the Court for protective measures for such information. Mr. Nice points out that the Government of Serbia and Montenegro has so far failed to do that. Should it do so in future, it will occasion further delay.

The Prosecutor gave the Chambers additional examples of documents it seeks and the response it has received. For documents concerning the Supreme Command, for example, the Government responded that the Supreme Command does not legally exist. It forwarded the prosecution's request to the Army staff, which replied it wasn't under their jurisdiction. Likewise, a request of the Military Cabinet resulted in a response that they had no such documents. While a Supreme Command may not have been part of the legal structure, the Chamber has heard considerable testimony about it in the Milosevic trial.

The Prosecution also received no response to its request for financial documentation. Mr. Djeric explained that they had forwarded the request to the Government of Serbia, which responded that it had no such documents, and they, in turn, so informed the OTP. As soon as the OTP suggested that the documents might be in the Ministry of Finance, Mr. Djeric said, 'we immediately contacted them and await their response.' At this point, Judge Robinson intervened to ask whether the Government hadn't searched the Ministry of Finance before responding to the OTP. When Mr. Djeric replied he believed they hadn't, Judge Robinson asked, 'Wouldn't that have been the place to look for documents concerning finance?' Mr. Djeric said the documents were not exclusively financial.

Despite the improvements in cooperation in other areas and Serbia and Montenegro's struggle to rid itself of organized crime gangs following Zoran Djindjic's assassination, the above examples show less than wholehearted cooperation with the ICTY prosecutor in the Milosevic case. Its arguments to the Chamber were primarily legalistic -- arguing about which rules apply and whether they preclude the prosecution from requesting the Court's assistance. This certainly doesn't show a spirit of willing cooperation. Since minimal requested documentation has been handed over despite promises, and given the ticking of the clock in the prosecution's case against Milosevic, it is time for the Court to step in and assist the prosecution. To do so will insure that the Court has before it the critical information it needs to make an informed judgment in the Milosevic case.

The June 15, 2003 deadline for the annual US Congressionally mandated assessment of Serbia and Montenegro cooperation with the ICTY is two weeks off. When Mr. Nice mentioned this, Judges May and Robinson both admonished him, Judge May to say the Court cannot concern itself with political matters and Judge Robinson to add, 'I consider that reference regrettable.' While agreeing with Judge May that the Court's decision on whether to issue an order to the Government of Serbia and Montenegro is a matter of law, Mr. Nice pointed out that politics do have an impact on the Court. As an example, he cited the abolition of the Army Committee for Cooperation with the ICTY, which was selectively providing exculpatory archival material to the Accused, while denying access to the prosecution.

After listening to more than an hour and a half of argument, the Court adjourned to review the substantial written submissions of the parties and the issues raised in the hearing. It will make a decision 'in due course.' Given that impending prosecution witnesses are expected to authenticate and explain some of the important undisclosed documents, one hopes the course that is due will be speedy.