How Belgrade Escaped Genocide Charge

Serbia appears to have exploited tribunal rules to avert a genocide conviction at the International Court of Justice.

How Belgrade Escaped Genocide Charge

Serbia appears to have exploited tribunal rules to avert a genocide conviction at the International Court of Justice.

Monday, 25 February, 2008
Belgrade has more than once invoked national security to stop the Hague tribunal sharing documents related to the trial of former Yugoslav president Slobodan Milosevic with another international court, according to well-placed IWPR sources.

The steps taken successfully blocked the International Criminal Tribunal for the former Yugoslavia, ICTY, from disclosing extremely sensitive transcripts of meetings the Serbian Supreme Defence Council, SDC, held between 1992 and 1995.

It is widely believed that the transcripts, which record the meetings of top officials, contain evidence of Belgrade's direct involvement in the wars in Croatia and Bosnia in the 1990s.

At the request of Belgrade's lawyers, some parts of the SDC documents presented at the ICTY were kept confidential.

Serbia apparently hoped that Bosnia would not then be able to use them in its genocide case against Serbia at the International Court of Justice, ICJ. Indeed, many Bosnians believe this confidentiality stopped Belgrade being found guilty of committing genocide in their country in the 1990s.

Shortly after the parliament of the then federation of Serbia and Montenegro appointed a Council of Ministers on March 17, 2003, a session of this body was held in Podgorica, chaired by the federation's president Svetozar Marovic, to discuss cooperation with the tribunal.

After persistent pressure by the ICTY's Office of the Prosecutor, OTP, the ministers decided at this session, held in early April, to amend the existing law on cooperation with the tribunal.

According to our sources close to the former federal administration, a consensus was reached at the meeting on defining the scope of this cooperation, primarily when it came to documents from military archives which had to be handed over to the tribunal.

The Council of Ministers of Serbia and Montenegro decided it would do everything it could to prevent the disclosure of documents that might jeopardise national security.

"If the Council of Ministers or governments of member states conclude that fulfilling the tribunal's requests would jeopardise sovereignty or national security, the Council will order the Ministry of Foreign Affairs .. to inform the ICTY about this and to file an appeal in accordance with the tribunal's Rules on Procedure and Evidence," states one article from a new law which enabled Serbia and Montenegro to request protective measures for SDC transcripts demanded by prosecutors for the case against Milosevic.

As a next step, said our source, a special legal team was formed within Serbia and Montenegro's ministry of foreign affairs, headed by Goran Svilanovic, who was also president of the National Council for Cooperation with the Hague Tribunal.

This group of experts was simultaneously handling three processes that were of vital importance to the country: its cooperation with the tribunal; the genocide cases by Bosnia and Croatia against Belgrade at the ICJ; and Belgrade's own lawsuit against NATO for the 1999 bombing campaign in Kosovo and Serbia.

The team was led by Tibor Varady, who was also Serbia and Montenegro's legal representative at the ICJ, and operated under Svilanovic's supervision. Svilanovic passed on all its internal decisions to the Council of Ministers.

In 2001, the OTP requested from Belgrade permission for their experts to examine the state military archives. They were primarily interested in transcripts and records from 60 meetings of the SDC held between March 12, 1993 and October 28, 1997.

However, Belgrade did not respond to those requests, fearing that these documents would be used in Bosnia's genocide lawsuit. According to our sources in Serbia, Belgrade officials weren't prepared to disclose this material until the ICJ case was over.

Until spring 2003, Belgrade avoided handing over transcripts and records from the SDC meetings related to the indictment against Milosevic. The OTP then asked the trial chamber hearing Milosevic's case to force Serbia and Montenegro to supply the transcripts of meetings held between March 1993 and the end of 1995, when the worst crimes in Bosnia were committed.

At the beginning of June 2003, the trial chamber ordered Belgrade to submit the SDC transcripts. However, shortly after that the representative of Serbia and Montenegro's government filed a motion requesting protective measures for these documents, referring to Rule 54 bis of the tribunal's rules on procedure and evidence, said our sources.

Under the rule, "a State may, within fifteen days of service of the order, apply by notice to the Judge or Trial Chamber to have the order set aside, on the grounds that disclosure would prejudice national security interests".

Prior to that, Chief Prosecutor Carla Del Ponte stated in a letter to Svilanovic that she would not oppose Serbia's requests for protective measures for certain documents, but insisted that these measures could be applied only under "specific circumstances, and on limited parts" of the material, and that they had to be in accordance with the tribunal's rules.

Belgrade's confidentiality request was granted by the trial chamber on July 30, 2003. After that, officials handed over the first set of SDC transcripts to the prosecutor's office. However, the prosecutors were obliged to comply with the judges' decision to grant confidentiality to some parts of the SDC records, as Serbia and Montenegro's officials requested. These records were then used in closed session in the trial against Milosevic.

After the first decision of the trial chamber to grant protective measures to some parts of the material relating to SDC meetings, Serbia and Montenegro continued to request from the judges that other documents be kept confidential. Among them were the files of the Bosnian Serb generals, including top fugitive General Ratko Mladic, who were on the Yugoslav army's payroll during the war.

Former ICTY prosecution spokesperson Florence Hartmann first discussed how tribunal judges granted protective measures to parts of the SDC minutes in her book “Peace and Punishment” (Flammarion, 2007).

She alleged that when the appeals chamber was called upon to rule on a July decision by the Milosevic trial chamber, denying a request by Serbia for protective measures for the SDC documents, it found that the trial chamber had made a legal error in its earlier decision to allow the blackening out of some of the sections.

In her article Vital Genocide Documents Concealed, published on the Bosnian Institute News website on January 21 2008, Hartmann wrote,
“According to the appeal judges, all previous decisions of the Milosevic Trial Chamber protecting the SDC documents from disclosure because of potential prejudice to Serbia’s ‘vital national interest’ rather than a ‘national security interest’ were ‘wrong as a matter of law’.

“Nevertheless, the Appeal Chamber considered that the earlier decisions had created ‘a legitimate expectation’ for Serbia that later decisions involving ‘similar material’ would be resolved in the same manner, so that it would be ‘unfair’ to deny the protective measures sought by the state. Hence, the appeal judges dismissed the July 2005 Trial Chamber’s decision and decided to grant Serbia’s request to withhold public disclosure of the military files.”

This decision provided the first serious opportunity for the prosecutors to challenge Serbia and Montenegro's request for protective measures based on Rule 54 bis, so they filed a motion demanding that the trial chamber reverse its earlier decision and lift the confidentiality over the SDC documents.

According to Hartmann, at the beginning of December 2005, the trial chamber invalidated the protective measures on minutes of SDC meetings. IWPR sources told us that only a few days later, Serbia and Montenegro's legal representative filed an appeal to the tribunal's appeals chamber, citing Rule 108 bis of the rules on procedure and evidence, which allows reconsideration of the trial chamber's decisions only if they are dealing with "issues of general significance related to the tribunal's authority".

Milosevic was already dead when, in April 2006, five members of the tribunal's appeals chamber upheld Serbia's request and decided that the minutes of the SDC meetings could not be revealed to the public.

As a result of that decision, Bosnia was not able to use this evidence before the ICJ in its genocide case against Serbia and Montenegro.

The ICJ, much to the anger of many Bosnian survivors who feel the case was a whitewash, ruled that Belgrade was not guilty for the genocide committed in Srebrenica in 1995, blaming local Serb forces instead.

Slobodan Kostic is a Belgrade journalist.

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