Danger to Witnesses Closes Trial: Serb witnesses receive threats

The Trial Chamber has granted the prosecution's requests to provide protective measures for eleven witnesses so far in the Croatia phase of the Milosevic case. That's about 14% of the anticipated 77 witnesses for Croatia. As a curtain is drawn over significant portions of the trial, observers' ability to assess the strength of the prosecution's case and the accused's success in attacking it becomes severely limited. The press is left to piece together a story from fragments. This affects the public interest in the trial as well as the defendant's right to a public trial.

Both the ICTY statute Article 20(4) and rule 78 express preference for a public trial. Such preference has a long history in both the civil and common law countering the injustices of secret inquisitorial proceedings, most infamously England's Star Chamber. A public trial is often considered the defendant's right, but it is equally the right of the public to be assured that justice is being done.

Nevertheless, protection for victims and witnesses may necessitate closing all or a portion of the trial from public view. The Tribunal Statute authorizes the ICTY to grant protective measures to witnesses and ICTY rules give the Chamber authority to order various protective measures, 'for the privacy and protection of victims and witnesses.' (Rule 75) These measures include: expunging names and identifying information from Tribunal public records; nondisclosure to the public of any records identifying the victim; giving testimony through image- or voice-altering devises or closed circuit television; assignment of a pseudonym, and holding closed sessions. To order any of these measures, the Chambers must assure that they 'are consistent with the rights of the accused.'

ICTY rules provide that protective measures should not be liberally used but granted only 'in exceptional circumstances' where the victim or witness may be in danger. (Rule 69) With the number of reported threats in the Milosevic trial, protective provisions become especially important. Last week, for example, Jovan Dulavic asked to have protective measures removed to enable him to testify fully in open session under his own name, despite recent threats. Halfway through his testimony, renewed threats necessitated a return to closed session.

In response to the Trial Chamber's expression of concern over the number of witnesses for whom protective measures were being sought in the Milosevic case, lead prosecutor Geoffrey Nice responded that 'there may be an increase in danger' in the Croatia phase of the case, partly because of the type of witness he would call. Protected witnesses so far have included a local Croatian politician of Serb ethnicity; a Serb soldier with the territorial defense (TO) in SAO Krajina, Croatia; a paramilitary from Serbia who fought in Croatia; a Serb civilian who survived a massacre of Croat and Serb civilians by Serbian paramilitaries, and a Serbian journalist.

The commonality among these protected witnesses is their Serb ethnicity. Perhaps someone believes Serbs can do more damage to Milosevic's case than others. But it is unlikely that the decision-makers in this case, the three Tribunal judges, will be affected by the ethnicity of witnesses, finding Serbs more credible than non-Serbs. The answer to who would be more swayed by Serb witnesses might provide a clue to who is making the threats. Threats to Serb witnesses can also be seen as a warning to those who might otherwise testify.

While Milosevic continues to object to closed sessions because it is his 'only available opportunity' for 'the public to be able to hear the truth,' he is also often the first to provide information that might identify the witness, thus necessitating closed sessions. Judge May reminded him that a closed session does not affect the fairness of the trial, since Milosevic retains his right to fully cross examine the witness.

In the end, the public is the loser when a significant part of the case occurs behind closed doors. We will never know how much of the Prosecution's case is proven. Nor will we hear the complete story from witnesses like C-020, one of Arkan's men, who may provide a crucial link between war crimes in Croatia and Serbia and, possibly, Milosevic. C-020 testified in open session for a little more than half an hour.

It is the price we pay for witnesses coming forward at all in this still quite dangerous region. It is also a reminder that, despite regime changes, the criminal element continues to hold significant power in the former Yugoslavia, a fact which bodes ill for domestic war crimes trials of lower level perpetrators. Though the shooting war has mostly stopped, peace and justice remain a long way off.