Court Orders Serbia and Montenegro to Produce Documents

Finding that 'Serbia and Montenegro has provided no acceptable reason for failing to produce this material to date,' the Milosevic Trial Chamber ordered the Government of Serbia and Montenegro (the Government) to provide the Prosecution with stenographic recordings of Supreme Defense Council meetings. The recordings were identified in the Prosecution's priority list of documents which it has been seeking from the Government for nearly six months. The Court's order, dated June 5, 2003, gave Serbia and Montenegro one month to comply.

The Trial Chamber issued its order in response to a request for assistance the Prosecution made to the Chamber in December 2002. Two hearings were held on the matter, the first in March 2003, where the Chamber gave Serbia and Montenegro two months to produce the requested documentation. On May 20, the Prosecution informed the Court that it had yet to receive a significant response. The parties presented arguments to the Court on June 3, 2003, resulting in the Court's order of June 5.

In ordering Serbia and Montenegro to produce recordings of Supreme Defense Council (SDC) meetings, the Court emphasized that it is a partial response to the Prosecution's application for assistance and the Chamber 'remains seised of the remainder,' i.e. the Court is continuing its consideration and may order the Government to provide additional documents. The SDC materials lent themselves to a quick decision. At the June 3 hearing, the Prosecution informed the Chamber that Serbia and Montenegro had released written minutes of 60 or 70 meetings of the SDC, but had not made the full stenographic recordings of the meetings available. The Government failed to justify its noncompliance to the satisfaction of the Court.

Substantial additional documentation appears on the Prosecution's priority list submitted to the Court. In addition to documents concerning finances and the Supreme Command, both mentioned at the last hearing, the Prosecution has been seeking access to the Serbia and Montenegro archives. These archives were formerly the property of the Government of the Federal Republic of Yugoslavia (FRY) and became the property of Serbia and Montenegro when it was constituted the successor government. According to the Prosecution's written submission, in November 2001 the FRY agreed to grant the Prosecution the type of access it now seeks from Serbia and Montenegro, yet the Government of Serbia and Montenegro has so far refused to provide it, calling it a 'fishing expedition.' Other states and entities of the former Yugoslavia have provided this type of access to their archives, the Prosecution told the Court.

The Government's reluctance to be fully cooperative in providing the Milosevic Prosecutors with requested documentation and access to archives is puzzling. One would expect that the democratic forces who took power following the assassination of Prime Minister Zoran Djindjic would be eager to share information with the ICTY -- and comply with Serbia and Montenegro's legal obligations. If the new rulers destroyed or significantly damaged the web of war criminals and gangsters that obstructed cooperation with the ICTY, why is there such reluctance to provide documentation that might reveal whether and to what extent Milosevic planned and orchestrated the wars and ethnic cleansing in Croatia, Bosnia and Kosovo?

While the Court may issue further orders for the requested documents, it should not have to. The Government of Serbia and Montenegro would be well advised to embrace a more willing approach -- and to do so now. If documents are not forthcoming, it will be too late for the Prosecution to use any relevant material in its case against Slobodan Milosevic. Surely, that's not what the newly constituted Government wants. The clock is ticking.