Institute for War and Peace Reporting | Giving Voice, Driving Change

Del Ponte Denies Belgrade Deal Claims

Chief prosecutor’s office rejects allegations that there was a deal with Belgrade to conceal documents from the ICJ Bosnia genocide case.
By Lisa Clifford
The lawyer who prosecuted Slobodan Milosevic has accused his former employers of striking a deal allowing Belgrade to conceal its role in wars in Croatia and Bosnia from the public and the International Court of Justice, ICJ.



Geoffrey Nice alleged this week that the Hague tribunal’s chief prosecutor Carla del Ponte agreed with Serbia in 2003 that key documents from the Yugoslav government archives could remain secret.



His accusations have caused an uproar in the Balkans with many speculating the documents – minutes from wartime meetings of political and military leaders in Yugoslavia – could have swayed the judges in Bosnia’s recent ICJ genocide case. The court cleared Serbia of genocide charges in February.



They have led to calls from Croatia – which is also suing Serbia for genocide at the ICJ – that the documents be made public before its long-running case finally comes before the court.



But would they really have swayed the ICJ judges and should Croatia pin its hopes on them ever being revealed?



Some observers say no to both questions and suggest the tribunal did nothing wrong when it agreed with Belgrade that the documents from the then Yugoslavia’s highest political and military body, the Supreme Defence Council, SDC, remain secret.



“Carla Del Ponte is a very determined prosecutor with no interest in protecting the Serbs,” said William Schabas, director of the Irish Centre for Human Rights at the National University of Ireland. “She must have seen this as the most productive way to get relevant and useful information in difficult circumstances.”



Nonetheless, speculation that the SDC records would have been valuable for Bosnia’s ICJ case and would have helped prove the link between Belgrade and the Bosnian Serb forces is widespread and has been for years.



It gained intensity after February’s ruling clearing Serbia of genocide, saving it from substantial damage payments.



Nice – who led the Milosevic prosecution from 2002 until the former president’s death in 2006 – weighed in on April 12 in a letter published in Croatia’s Jutarnji List paper and again in a letter to the International Herald Tribune on April 16.



He said that Carla Del Ponte wrote to Yugoslav foreign minister Goran Svilanovic in May 2003 approving protective measures for part of the SDC documents. Nice said he disagreed with Del Ponte and warned her against making concessions to Serbia.



“There was no legal basis for the withholding of the records from the public,” Nice wrote to the International Herald Tribune. “There was no conceivable reason for making a deal with Yugoslavia. It served only one purpose: to keep Belgrade’s responsibility from public scrutiny and, significantly, from the International Court of Justice.”



Del Ponte’s office hit back, saying this week that the Office of the Prosecutor, OTP, “rejects in the strongest terms” the allegations it had concealed documents from the ICJ or made any kind of deal with Belgrade.



“Only judges and not the prosecutor can decide on the protective measures to keep material from the public,” reads an OTP statement.



Spokesperson Olga Kavran then told a Hague press briefing on April 18 that although correspondence between government officials and the OTP is a regular event “the suggestion that there was a deal to conceal evidence is completely false”.



Belgrade applied for confidentiality for the SDC files under a tribunal regulation allowing governments to request protective measures for documents that could endanger national security interests.



Goran Sluiter, from the University of Amsterdam’s criminal law department, believes the OTP did things by the book. “Tribunal rules allow [Del Ponte] to offer confidentiality assurances,” he said.



During an IWPR investigation two years ago, sources said that the Serbs requested the documents from the military archives be kept secret not for reasons of national security but simply to ensure they would not be cited as evidence at the ICJ.



The Bosnians used all the records that were made public during their case, but dozens more remained sealed, leading to criticism that the judges should have demanded them from Serbia. Bosnia’s legal team pressed the court to issue an order for their disclosure, but that request was not granted.



Sluiter points out, however, that the ICJ is a civil rather than a criminal court and lacks subpoena powers.



And there are other problems.



Lennert Breuker, a researcher in state criminal responsibility at Leiden University in The Netherlands, says that unlike the war crimes tribunal in The Hague, where judges can adjudicate regardless of the consent of the participants and have investigatory powers, the ICJ has to rely on the cooperation of all parties involved and could not have forced Serbia to turn over the documents.



"[ICJ] judges play a mostly passive role," said Breuker. "However, you might question whether the role of a passive judge is appropriate given that you are dealing with issues of extreme gravity [like genocide] where truth finding becomes more prominent than in more common interstate disputes.



"The court shows a slight inconsistent approach by not asking for the documents, when it was certainly competent to do so under its statute. One might be sceptical though about Serbia's willingness to have conformed to such a request."



Most judges agreed with the decision not to request the documents, though a dissenting opinion from the court’s vice president Awn Shawkat al-Khasawneh speculated they would have shed further light on Belgrade’s involvement in the Bosnian conflict.



Schabas said he too would like to know what is contained in their pages, but believes they weren’t that important to Bosnia’s ICJ case.



“It’s a storm in a teacup,” he said. “The case hinged on whether genocide was committed by the Bosnian Serbs. If the Bosnian Serbs didn’t commit genocide then it doesn’t matter who is controlling them.”



The ICJ did find that the 1995 Srebrenica massacre was an act of genocide committed by the Bosnian Serb forces, but said there was no evidence they were under Belgrade’s control. Bosnian Serb war crimes fugitive Ratko Mladic commanded the troops in Srebrenica, but again Schabas is doubtful the SDC papers would have linked him to Belgrade.



“I’d be surprised if the redacted documents showed Belgrade knew Mladic was going to carry out genocide. I don’t believe that.



“The redacted documents contain information everyone already knows – that the Serbs in Belgrade manipulated the Serbs in Bosnia and Croatia. I don’t see that as being earth shattering.”



International law lecturer Andre de Hoogh, from the University of Groningen in The Netherlands, agrees that it is “questionable” whether the documents would have changed the outcome of the ICJ case, saying genocide is extremely hard to prove. “Intent to destroy requires a high burden of proof,” said De Hoogh.



Nonetheless, he expects that Croatia will push hard to have the full SDC archive made available when its own genocide case – filed in 1999 – eventually comes before the ICJ.



“They’ll have to meet the same burden of proof as the Bosnians so they will be asking the court to ask Serbia for the documents,” he said.



“However, that places the court in a fix. If they do that for the Croatians, then questions will arise about why they didn’t do so in the Bosnian case.”



Lisa Clifford is an IWPR reporter in The Hague.