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Ex-Prosecutor Calls for Tribunal Reform

Sir Geoffrey Nice tells IWPR seminar that ICTY should review procedures dealing with confidentiality.
By Simon Jennings
A former prosecutor in the trial of the late Serbian president, Slobodan Milosevic, has questioned the policy of the International Tribunal for the Former Yugoslavia, ICTY, when it comes to applying confidential measures to state documents on the grounds of national security.

Sir Geoffrey Nice, who was speaking at a conference in The Hague organised by IWPR on May 15, said that tribunal rules which allow a state to be granted a private hearing in which to argue its case for protecting documents due to national security concerns were "a real systemic problem".

Nice was drawing on his experience as a prosecutor at the ICTY, when he observed first-hand the treatment of records of minutes of Serbian Defence Council, SDC, meetings. These documents are said to contain details that could paint a more accurate picture of Serbia's involvement in the Yugoslav wars.

Tribunal judges granted the documents confidential status during the Milosevic trial in a private hearing. But in the period available to appeal the judges’ decision, the prosecution was notified only of the decision and not of the arguments presented by Serbia.

"What can be done about really important decisions that, under the present structure, may be almost completely in private and not exposed?" asked Nice.

He takes the view that when such decisions are made in private, the prosecution should be notified of their substance to a degree that enables it to respond.

Together with three other panelists, Nice was discussing the confidential SDC documents. The subject has prompted observers to examine the issue of transparency at the ICTY and ask how concealing information about Serbia's role in the war might be affecting justice and reconciliation in the region.

Nice said that not being party to Serbia's arguments for having the documents sealed was "the original problem" that led to him not being able to challenge the judges' decision and ask for the documents to be made public.

"The notion of adversarial law includes the very excellent proposition that if you've got a position, its security and validity is best established by being tested and exposed to the other side, and this never was," said Nice.

The former prosecutor, who has seen the unredacted version of SDC minutes, said they contain records of meetings between high-level Serbian politicians and military leaders.

"Their discussions cover many aspects of security, but in particular they deal with support for the Bosnian Serbs. They deal with knowledge of paramilitaries, or not; they deal with contacts between members of the SDC and people like [Ratko] Mladic," said Nice.

Ratko Mladic is the Bosnian Serb commander-in-chief wanted by the tribunal on charges of orchestrating the 1995 genocide in Srebrenica which killed more than 8,000 Bosniak men and boys.

But Nice emphasised that the documents alone do not show to what extent Belgrade was responsible for atrocities in Bosnia.

"What they do not contain is instructions to go out and butcher people. Nothing like that. They do not provide easy answers to any questions," he said.

Nice also said that the decision to grant the SDC documents confidential status based on Serbia's "vital national interest", was not a reason that was covered by tribunal rules.

The rules state that confidentiality can only be provided on the grounds of protecting national security.

"I don't know what [vital national interests] means, because it certainly has nothing to do with national security interests," he said.

Edina Becirevic, senior lecturer at the University of Sarajevo's faculty of criminal justice sciences, explained how the tribunal's handling of the SDC documents had led to scepticism about the court's purpose.

"If we look at… the case of the SDC minutes, we can see a number of characteristics that should not have been internalised in an institution that nourishes a liberal idealistic approach to international criminal law," she said.

Marko Attila Hoare, a former tribunal investigator and a Balkans specialist at the University of Kingston, then expanded the debate to its relevance today, pointing out that the issue is not going to die down.

He explained that the SDC minutes were important "both for the sake of justice and political progress in the region".

Hoare referred to events in Serbia – such as the assassination of Serbian prime minister Zoran Djindjic and riots in Belgrade over Kosovo – that stem from the country's failure to tackle its involvement in the wars of the 1990s.

"You have elements that are responsible for this war who are simply not letting the region and Serbia move on, and they are sabotaging regional progress at every level," he said.

Fadila Memisevic, head of the Sarajevo-based section of the Society for Threatened Peoples, said that in Bosnia, the tribunal's handling of the SDC minutes had undermined victims’ hopes of achieving justice.

"[Victims] were expecting that justice would be achieved and expected [that the] international community would recognise what happened and how they suffered," she said.

Memisevic also read out a letter written by women from Srebrenica, which will be sent to the president of the tribunal on the July 11 anniversary of the genocide.

According to her, the letter explains how the tribunal had let down genocide victims in Bosnia.

"The ICTY did not manage to fulfill the task that was given to it, because those that are responsible for the genocide are still free,” she said.

"Instead of [achieving] justice, you have [imposed] secrecy on the documents which protect the interests of Serbia."

Asked by a member of the audience how important the SDC documents are to Bosnian victims of the Yugoslav wars, Memisevic replied that although the conflict is over, animosity between the various parties in the region persists because the facts of what happened have not been fully disclosed.

"There's no peace without justice being done. If you want justice, you have to know what happened in the past," she said.

Becirevic sought to shed light on elements of the SDC minutes that were hidden from public view.

She quoted passages of a book by the former president of Montenegro, Momir Bulatovic, in which he quoted sections of the documents that were granted protective measures by ICTY judges.

She referred to a section in the book, “Unspoken Defence”, in which Milosevic states, "It is not a secret to us that NATO plans had the following information: that the radar system and communication system of the Federal Republic of Yugoslavia and… Republika Srpska are actually united, they are one system."

Milosevic seemingly had intelligence information about NATO plans to attack Yugoslavia, and Becirevic speculated that acknowledging control of Republika Srpska's radar system amounted to considering it part of Yugoslav territory – an admission that could have had serious consequences in Serbia's trial for genocide at the International Court of Justice.

IWPR had hoped tribunal staff would join in the discussion about the SDC documents.

However, an invitation to the tribunal president, registrar and prosecutor was declined on the grounds that the panel would be discussing information that had been classified as confidential by the court.

An internal memo, seen by IWPR, posted on the tribunal's intranet two hours before the event started, told staff who planned to come along to keep quiet.

"Those staff intending to attend the [IWPR] event are advised NOT to discuss confidential matters at the event," read the memo.

IWPR contacted tribunal spokesperson Nerma Jelacic about the debate, but she was unable to comment either on the subject or on the internal memo.

However, in a letter to IWPR she insisted that the ICTY has gone to considerable lengths to accommodate the needs of the public and ensure judicial transparency. “I would suggest that the Tribunal is a world leader in judicial transparency,” she said.

With the SDC documents under seal and the appeals chamber upholding their confidential status, Nice does not foresee the records being made available by the tribunal. This, he believes, is a blow for international justice.

"With every day, people's memories fade and witnesses to these events die. These documents would enable a large number of questions to be asked of a large number of people…. If they don't come out for another decade or until after we're all dead, that opportunity will be lost and gone for good," he said.

Simon Jennings is an IWPR reporter in The Hague.

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