Justice at What Price?

Friday, 18 November, 2005

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IWPR ICTY

The Hague tribunal allowed Belgrade to present key documents in the long-running trial of Slobodan Milosevic on condition they were kept under wraps, delivering a blow to those who want justice to be seen to be done.

The court’s confidentiality rules surrounding key papers from the Yugoslav government’s archives mean that people in Serbia, many of whom still do not believe the Milosevic government did anything bad in Bosnia, will be denied information about its role for many years to come.

And the lack of transparency means that others wishing to use the Belgrade archives as evidence will be unable to access them.

The trial of former Yugoslav president for crimes against humanity and genocide is now approaching the moment when he will have to start defending himself from the charges related to his involvement in the Bosnian war.

Earlier in the Milosevic trial, prosecutors at the Hague tribunal - the International Criminal Tribunal for the former Yugoslavia, made significant progress when they gained access to key archives in Belgrade containing information about the Yugoslav army’s role in the Bosnian conflict.

But the price paid was high: the Serbian government secured a deal where crucial documents potentially exposing Milosevic’s involvement in the Bosnian war must remain confidential under the so-called “protective measures” arrangement.

There is no suggestion of wrongdoing or breach of procedure. But tribunal observers say the regulation that the Serbs exploited was never intended to help governments avoid embarrassment.

Whatever the pragmatic requirements of the day, the arrangement appears to run contrary to the spirit behind the tribunal, which included reconciliation and revealing the truth behind the Yugoslav conflicts, as well as justice.

Since the start of the Milosevic trial, when tribunal officials have accused Serbia and Montenegro of offering less than full cooperation in delivering witnesses and disclosing evidence, observers have attributed the foot-dragging to the reluctance of conservative elite members to worsen the position of war crimes indictees.

But in reality, Belgrade’s concerns do not seem to have been only about the fate of individual war crimes suspects or the Hague tribunal process.

IWPR has established that Belgrade’s efforts to secure protective measures were driven by fears of losing a quite separate case. One immediate consequence is that important documents will remain hidden from another major trial, in which Bosnia and Hercegovina is suing Serbia and Montenegro, as the successor state to Yugoslavia, for alleged acts of genocide in the 1992-95 war.

Hearings at the International Court of Justice, ICJ, are scheduled for February 2006, a mere 15 minutes’ walk from the Hague tribunal.

The Belgrade authorities did not want the Milosevic era documents now under tribunal protection to be available publicly, since that would mean Sarajevo government would have access to them and would be able to show them at the ICJ.

Should the court rule that Belgrade was indeed responsible for acts of genocide it would be deeply embarrassing for Serbia, and could lead to reparation claims reaching millions of dollars.

The documents which now enjoy protected status at the tribunal are known to contain references to the regime’s involvement in the Bosnian war. The most important papers recount the activities of the then Yugoslav state’s highest political and military body, the Supreme Defence Council, SDC, from 1992 to 1999.

The small amount of material from these files that has been heard publicly at the tribunal contains clear references to Yugoslavia financing the Bosnian Serb army from its military budget – a relationship that Belgrade always denied.

The protection deal is viewed by many in Belgrade as a triumph for Serbian diplomacy and legal skills: they have been seen to cooperate with the Hague tribunal while at the same time managing to prevent further damage that might ensue if the content of the documents would be made public.

Perhaps even more damaging than the impact on the ICJ case in the long term is the effect of denying sight of these documents to the Balkans public. As well as the victims, it has always been seen as important that citizens of perpetrator states should have the facts disclosed to them to prevent denial and encourage reconciliation.

Prominent human rights organisations in Belgrade and Sarajevo warn that keeping these documents protected serves to reinforce widespread ignorance in Serbia on the true role of Milosevic’s regime in the bloody wars of the Nineties.

They caution that such ignorance is reinforcing a culture of denial and blame, preventing a genuine understanding of the Balkan wars, and with it the reconciliation that could bring an end to the politics of ethnic tension which continue to threaten regional stability.

BELGRADE’S DAMAGE-LIMITATION EXERCISE

One of the most complicated regulations governing the Hague tribunal, Rule 54 bis, allows governments to request protective measures for documents they submit to the court – as long as the state can prove that making the documents publicly accessible would “prejudice its national security interests”.

It is on the basis of this rule that the Belgrade government applied for protection of the full SDC archive, stating in a number of sessions held before Hague tribunal judges that publication would endanger the interests of Serbia and Montenegro.

IWPR was told by sources in Belgrade and The Hague that the special protective measures for the SDC documents were requested solely in order to ensure that they would not be cited as evidence at the ICJ.

This usage of the rule was not what was envisaged when it was introduced to the court’s laws, with the aim of protecting the intelligence sources and security of countries presenting sensitive evidence.

Answering the IWPR’s question whether the ICJ case was the main reason why his government insisted on keeping the documents protected, the man then in overall charge of negotiations with the tribunal, former Serbian and Montenegrin foreign minister Goran Svilanovic, answered “absolutely correct”.

This statement was backed up by a source within the Serbian and Montenegrin foreign ministry who wished to remain anonymous.

"They insisted on protected measures for our documents because they were worried about what effect they might have on the genocide case," said the source. "The SDC was involved in decisions about Serb forces in Bosnia Herzegovina, and this had our lawyers worried."

Belgrade analysts told IWPR they were concerned about the ICJ Bosnia genocide case because if Serbia and Montenegro lost, the state might be liable for a huge reparations bill.

"It would mean that [even those] Serbs in Belgrade who were against the Bosnian war might have to pay extra taxes to Bosnians," said Professor Vojin Dimitrijevic, a leading international law expert in Belgrade and formerly an unofficial adviser to Svilanovic.

The Bosnian government has stated that reparations are not the most important aim of their suit – instead, it wants to win recognition that Belgrade was involved in acts constituting genocide.

"The amount of reparations is not as important as a recognition [of guilt],” Professor Sakib Softic, the official appointed by the Sarajevo government to handle Bosnia's ICJ case, told IWPR.

SERBIAN LAWYERS OUTMANOUEVRE PROSECUTORS

In a series of interviews with former high-ranking Belgrade officials and diplomatic sources close to the tribunal, IWPR learned how Serbia and Montenegro was able to secure the advantageous secrecy measures.

In 2001, Hague chief prosecutor Carla Del Ponte expressed interest in gaining access to the SDC documents during meetings she had with the then Yugoslav president Vojislav Kostunica and his foreign minister, Goran Svilanovic.

"I think the reason why Madame Del Ponte was interested in the documents was in order to make a link between Milosevic or the officers, and what was going on with the troops in Bosnia and Croatia," Svilanovic told IWPR.

The following year, as political pressure from the international community to cooperate with the Hague tribunal gained momentum, Kostunica decided to act.

"Kostunica was under substantial pressure from Del Ponte and others, and as head of the SDC, he provided us with the documents," said Svilanovic. "Although Kostunica said publicly that I cared more about The Hague than the country, he was well aware of what we were doing."

Kostunica ordered the documents to be sent to the National Council for Cooperation with The Hague, which was headed by minister Svilanovic.

Svilanovic and his legal team were also handling preparations for the ICJ genocide case against their country, and were well aware of the dangers of allowing the documents to be submitted as open evidence at the Hague tribunal.

They began negotiations to protect the documents with Hague prosecutors in 2002.

"We gave them kind of an offer," said Svilanovic. "We provided them with what we might have, and what the procedure for sharing the documents would be if they were interested in introducing them."

At this point, Hague deputy prosecutor Geoffrey Nice told the media about the existence of the documents – to the annoyance of the Belgrade negotiators.

"We were mad, because this is something you don’t do. It was a grave breach of trust," recalled Svilanovic.

According to Svilanovic’s former legal adviser, Vladimir Djeric, "It was at this point that we lost confidence in the office of the prosecutor. These were very important documents they were asking for, and we wanted to secure a certain procedure for their review, so as to be able to safeguard our state interest."

Instead of pursuing matters with prosecutors, the Belgrade team applied to the judges in the Milosevic case to get their proviso approved.

Svilanovic explained that the procedures requested by Belgrade involved "separate sessions of the [Milosevic] trial chamber, or without the public being there, or else sometimes we would ask for some parts of a document to be blacked out."

In all, following various requests lodged by tribunal prosecutors and the Belgrade legal team, the chamber issued 13 decisions relating to the secret documents, some of which are still confidential.

"While we didn’t have much success negotiating with the prosecution, we had more success with the court, where we dealt with the legal element," said Djeric.

In December 2002, Hague prosecutors, frustrated by the seeming lack of progress over documents, also applied to the trial chamber for an order compelling the Belgrade authorities to comply with their requests. At hearings in March and June 2003, prosecutors stated that they had been denied access to 100 priority documents from Belgrade including the SDC transcripts.

Djeric countered that Belgrade was willing to cooperate, but that it was for the trial chamber and not the prosecution to determine which documents Serbia and Montenegro must hand over. He argued that his government was already in negotiations with the prosecution, and that Rule 54 bis allowed the trial chamber to turn down a request to order a state to produce documents if the applicant had itself taken no reasonable steps to obtain them.

Rule 54 bis also says that any request for an order for material to be handed over must identify specific documents rather than broad categories, set out the reasons why they are needed and give the state sufficient time to hand them over.

Djeric’s legalistic arguments before the trial chamber were largely successful.

Although the trial chamber eventually ordered Serbia and Montenegro to produce the SDC transcripts, it refused many other prosecution motions for orders for documents from the state archives in the period leading up to December 2003.

Djeric is frank about why he thinks prosecutors failed to get everything they wanted, "The prosecution made a strategic mistake because they went to the court and they lost there. Had they stepped up their political pressure, they might have succeeded in getting access to all the archives.”

Back in Belgrade, Djeric and his colleagues dealing with both the tribunal and ICJ won plaudits for their skilful diplomacy and legal argumentation.

"We were seen to be doing a very good job as a team of officials on behalf of the country in this case," said Svilanovic.

"On the other hand, we had problems politically. The NGO community here was harshly against Vladimir Djeric and Professor Dimitrijevic. They said, ‘Why are you doing this? Why are you saying Srebrenica was not genocide?’ So we were in trouble with a group of people we admire."

A source at the Serbian and Montenegrin foreign ministry who asked not to be named confirmed this paradoxical outcome, “Svilanovic and his team managed to prevent any of our documents from being used in the ICJ case. But there was a political cost to them, as they lost supporters in the human rights community who knew about the linkage between the tribunal and the ICJ."

ICJ LAWYERS DENIED ACCESS

The efforts expended by Svilanovic and his team were driven by the concern that key Milosevic-era documents must not be made publicly available, since that would mean the Sarajevo government would have access to them and would be able to show them at the ICJ.

In contrast to the tribunal, where it is individuals are placed on trial for their actions – including, in Milosevic’s case, personal responsibility for genocide - the ICJ deals with civil suits which states bring against one another. On March 20, 1993, Bosnia and Hercegovina filed a case with the ICJ against the Federal Republic of Yugoslavia for breach of the 1951 Convention on the Prevention and Punishment of the Crime of Genocide.

The Bosnia application alleged that "Yugoslavia, its public officials, agents and surrogates have expressly violated, and are currently violating, and threaten to continue to violate... the genocide convention with respect to the people and state of Bosnia and Herzegovina". The specific crimes ascribed to Yugoslavia were murder, torture, rape, killing, illegal detention, and ethnic cleansing.

Because of the rules under which ICJ operates, only the evidence that the sides themselves bring will count. The court operates solely on the basis of files presented by the parties, and has no power to search for or request other evidence independently.

Bosnian lawyers confirm that they will use tribunal evidence whenever it is available. "In our case at the ICJ, our strategy is to use evidence that has been submitted before the tribunal," Professor Softic told IWPR.

Softic regrets the fact that potentially incriminating SDC documents will remain hidden from his sight under the protective measures.

"It is unfortunate for us that Belgrade secured this deal with the Hague, as we would have liked to use the Belgrade archives in our case," he said.

RELATIONS BETWEEN BELGRADE AND BOSNIAN SERBS

The most important corpus of documents consists of some 50 volumes of minutes and transcripts of proceedings of the SDC, which between 1992 and 1999 was Yugoslav state’s highest political and military decision-making body.

The SDC had three decision-makers - the presidents of Yugoslavia and its constituent republics of Serbia and Montenegro – and its meetings were also attended by the Yugoslav defence minister, the armed forces chief-of-staff and other senior officials.

Under the Yugoslav constitution, the SDC was empowered to mobilise the army in time of war, to promote and retire generals and to make decisions over financing and logistics. The SDC was also responsible for approving defence plans put forward by the army chief of staff.

Because they go to the heart of how the Yugoslav military was managed at the highest level, the SDC documents might well provide some answers to longstanding questions about the nature and extent of Yugoslav engagement in the Bosnian war.

Milosevic and his officials always strenuously denied lending support to the Bosnian Serb leadership of Republika Srpska, RS, and insisted the war in the neighbouring country was “an internal Bosnian problem”.

Evidence of a formal relationship with RS, expressed through the provision of human, financial or other resources would strengthen the hand of those trying to demonstrate that Milosevic and his government had a role in, and responsibility for, acts of genocide in Bosnia. A prosecution motion from the Milosevic trial dated January 6, 2005, says, "These documents are likely to be some of the - or the - very best documents for the court to consider in due course when it focuses on the real powers of the accused, his knowledge and his mental state.”

The SDC transcripts and minutes may detail discussions and decisions on logistical and financial support made available to RS forces.

The handful of minutes that have been made public underline the importance of the SDC and offer tantalising glimpses into the connections with RS, suggesting that the protected documents might contain more of the same.

Testimony given by former Yugoslav president Zoran Lilic in the prosecution case against Milosevic in 2002 made clear reference to funding for the Bosnian Serb army allocated from the Yugoslav state military budget.

Speaking in court on June 16, 2002, Lilic described a November 1993 SDC decision formalising arrangements to fund and support officers of the Bosnian Serb army, as well the analogous Serb forces in Croatia. This was to be done through the 30th and 40th personnel centres of the Yugoslav army.

Lilic even outlined the sums of money Belgrade was paying to officers in the separate Bosnian Serb and Croatian Serb militaries, "The monthly allocations for the members of the 30th personnel centre amounted to about 1.6 million deutschmarks or about 800,000 euro. The annual allocations were about eight million euro."

Other material from the SDC files imply that funding flows from Belgrade to the Bosnian Serbs continued throughout the Bosnian conflict.

An SDC session held on November 10, 1997, minutes from which are publicly available, discussed the Yugoslav military budget for 1998.

Money appeared to be short, so participants discussed ways of spreading defence costs among government agencies, for example re-assigning costs such as pay and pensions for military and defence industry personnel.

In the same context, the minutes mention a need to “move the allocations for the salaries of professional soldiers of the Republika Srpska Army from the military budget to the budget for direct bilateral aid between the two states”.

This evidence shows that in 1997, Bosnian Serb officers were being paid not by the RS administration, as was supposed to be the case, but by the neighbouring state, and that the plan was to continue this into 1998 with only the budget line amended.

The Serbian officials involved in winning the protective measures downplayed the value of the SDC papers.

“They are not as important as you might think,” said Djeric “[Milosevic] did not have everything recorded. He didn’t do things via documents, he did it tete-a-tete.”

However, the few SDC documents seen in public so far suggest – in the absence of evidence to the contrary – that the subject of relations with Bosnia’s Serb entity and military did come up at SDC meetings, and that some of this information might be seen as valuable by lawyers pressing the Bosnian government’s case at the ICJ.

SREBRENICA GENOCIDE CENTRAL TO TWO CASES

The single biggest atrocity of the conflict was the July 1995 slaughter of around 7,800 Muslim men and boys from the United Nations protected enclave of Srebrenica. The event, and Belgrade’s putative role in it, is clearly pivotal to the genocide charge against Milosevic at the tribunal, and also to the Bosnian case going before the ICJ.

IWPR’s anonymous source in the Serbian and Montenegrin foreign ministry told IWPR that what would worry Belgrade most would be if evidence was found to link the Milosevic government to General Ratko Mladic, the commander in chief of the Bosnian army in the conflict who is alleged to have been the architect of the Srebrenica killings.

Mladic is still on the run from a tribunal indictment, and pressure on both the RS and Belgrade administrations has failed to come close to finding him.

Srebrenica is the only episode that has been legally termed genocide at the tribunal. Bosnian Serb General Radovan Krstic was convicted of the crime in 2000. Should it be proven that the Belgrade government was involved, the ICJ case would get a significant boost.

"They are extremely concerned about any official state documents linking Mladic to Belgrade becoming public, as this would be seized upon by Bosnia’s lawyers at the ICJ as evidence of complicity in genocide," the foreign ministry source said.

In his testimony, Lilic confirmed that Mladic attended at least one SDC meeting held on August 25, 1995 – just six weeks after the Srebrenica massacre – but he did not go into detail about what was discussed there.

SELECTIVE MEMORY?

Tribunal sources confirm they have the full SDC minutes and archives, including those relating to May-August 1995, the period that encompasses events Srebrenica.

There are indications that some other relevant documents have not been made available, and some may have gone missing.

One such document appears to suggest that like his RS army officer corps, General Mladic himself received a salary as if he were a regular member of the Yugoslav military.

The Serbian and Montenegrin foreign ministry’s legal council chairman, Professor Radoslav Stojanovic, revealed to IWPR in August 2004 the existence of a secret Yugoslav army order from 1993 awarding Mladic a promotion. It was signed by then Yugoslav president Zoran Lilic in his capacity as chairman of the SDC.

If the document was made publicly available and did indeed match Stojanovic’s descriptions, it would be proof that Mladic was counted in administrative terms as an officer of the Yugoslav army at a time when the Bosnian war was already under way, and as such was subject to Belgrade’s command despite the official separation of the Yugoslav and Bosnian Serb armies in May 1992.

Although the promotion order was leaked to media in Sarajevo media in November 2004, it does not seem have been sent to the tribunal under the protective measures deal.

IWPR has obtained a copy of Mladic's personnel file which includes pension information and the dates of promotion orders. The documents shows that Mladic received his final promotion on June 16 1994, to the rank of Colonel General. His personnel file substantiates Professor Stojanovic's statement that Mladic remained an officer in the Yugoslav army long after Belgrade said he was not under its command.

That has led to suspicions that other documents linking Belgrade with the Bosnian conflict may not have been forwarded, either.

The lack of information, in the public domain, about Belgrade and the Srebrenica massacre is likely to continue for the foreseeable future, not least because tribunal prosecutors have so far been unable to obtain two other sets of documents that could prove at least as important as the SDC notes: Milosevic’s personal presidential archive and Mladic’s military service file.

Hague tribunal judges have stated that they are convinced the Belgrade government has done everything possible to locate the presidential files and other documents, and have turned down a prosecution request to continue demanding their delivery. That might suggest that some of the archive material has gone missing.

There are indications that the Milosevic presidential archive may have been tampered with. In a separate case, Belgrade authorities launched criminal proceedings in September 2004 against Milosevic’s former chef de cabinet, Goran Milinovic, for allegedly concealing or destroying an archive requested by the Hague tribunal which relates to the activities of Serbian security forces in Kosovo in 1999.

CONCEALED TRUTHS

Ten years after the war in Bosnia ended, despite the numerous cases heard at the Hague tribunal, the story of Belgrade’s role in the wars of the Nineties remains largely untold.

"Sometimes I feel that we haven't brought people of Yugoslavia one step closer to the truth," a tribunal source who asked not to be named said last year as IWPR began this investigation.

Milosevic may be long gone, but a succession of democratic governments in Serbia have kept the lid on this story, refusing to open old files to public scrutiny and using tribunal procedures to ensure this information remains hidden from public view for a long time to come.

Many tribunal insiders interviewed by IWPR point out that agreeing to Belgrade’s terms was the only way to ensure that the judges, at least, would gain a clearer picture of Milosevic’s role in the Bosnian war.

"It's very simple: we either agree on keeping these document confidential, or we don't get them," one such insider said (see Milosevic Back to Old Self http://www.iwpr.net/index.pl?archive/tri/tri_350_1_eng.txt)

Human rights campaigners in Belgrade concerned about reconciliation and accountability think the deal means the Serbian public will never see the official documents showing what Milosevic may have ordered in their name.

Such partial access to truth was not something the tribunal set out to do originally, in the eyes of many Balkan justice experts. One of the tribunal’s fourfold objectives, apart from bringing war crimes suspects to justice, rendering justice to victims and deterring further crimes, is to “contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia”.

“Assuming that the effect of the protective measures is indeed that the SDC minutes and transcripts will remain hidden from the Serbian people, it does a disservice to efforts to establish historical truth about deeply contested events,” Human Rights Watch’s Belgrade researcher Bogdan Ivanisevic told IWPR.

This view was echoed by other Belgrade-based analysts.

“This deal is bad because the public in Serbia is still confused by the lies spread by the Milosevic regime concerning the war in Bosnia,” James Lyon, director of the International Crisis Group in Serbia and Montenegro, told IWPR.

“If reconciliation is to be genuine, then the Serbian public has to be made aware of what Milosevic and his cronies did.”

Milosevic himself makes skilful use of the secrecy surrounding the archives, even criticising judges for concealing them from the public.

Basic access to information as a tool for reconciliation is still relevant in Serbia, where opinion polls show that large numbers of people do not believe that many of the crucial episodes of the Bosnian conflict ever took place. As a result, it is easier to launch conspiracy theories rather than a frank and reflective debate on the past.

“[Protective] measures hide the truth from Serbian society because the people will not believe revelations made in the foreign court in the way they would if they came from the government archive,” said Sonja Biserko, the chair of the Helsinki Committee in Serbia.

Despite the years spent painstakingly reconstructing Srebrenica crimes in the tribunal courtrooms, some organisations in Belgrade see the tenth anniversary of the massacre there as cause for celebration rather than solemn remembrance.

The student association Nomokanon celebrated "Srebrenica's freedom" at Belgrade university's law faculty on May 17. Professors and former generals speaking at the event entitled "Srebrenica: Ten years after liberation" denounced the massacre as "western lies" and "Muslim fabrications".

Natasa Kandic, director of the Humanitarian Law Centre in Belgrade, links this kind of denial to the government’s refusal to be open about the past.

“In this case, the government thought that the national interest was to prevent Bosnia from using documents in its ICJ case by hiding the truth,” she told IWPR.

“But the real national interest is in creating a healthy society in which the Milosevic regime’s role in the war is widely-known and accepted.

“This will not happen if important state documents continue to be hidden from public view.”

Hugh Griffiths is an IWPR investigations coordinator. Ana Uzelac is IWPR’s programme manager in The Hague.