Listening in to Milosevic: Court to Consider Admissibility of Wiretaps

Wiretapping was a standard means of intelligence gathering during the Yugoslav wars – by combatants as well as internationals. The recorded conversations potentially offer some of the most direct evidence of Milosevic's guilt – words out of his own mouth. For intercepts to be admissible in court, however, someone must authenticate what they are and who is speaking. Where conversations are coded, and most were in the knowledge that wiretapping was widespread, someone must also decode them for the Court. The Prosecution offered Witness C-061 for that purpose.

As the highest level insider to testify in the Milosevic trial so far, C-061 is in a position to decode the intercepts, provide context and identify the speakers. In 52 intercepted telephone conversations, the witness identified Radovan Karadzic as one of the speakers. In a number of cases, he identified the person at the other end of the line as Slobodan Milosevic.

The Accused objected to the introduction of the intercepted telephone conversations on the grounds that they were illegally obtained. The Amici Curiae challenged their authenticity. While the Trial Chamber requested and received written submissions on these arguments, it has not yet ruled on the admissibility of the intercepts. It allowed the prosecutor to play them in court and read from transcripts – for identification purposes. The judges will later decide whether they will be considered as evidence in the case, or will be disregarded.

Apart from authentication, the Trial Chamber must decide whether the intercepts should be excluded because of any illegality in the way they were obtained. In some domestic jurisdictions, such as the United States, illegally obtained wiretap evidence may be excluded from consideration at trial regardless of its relevance or probative value, i.e. its tendency to prove an element of the case. The purpose behind this 'exclusionary rule' is to deter police misconduct and to protect the right to privacy of U.S. citizens. For wiretap evidence to be legal, the wiretap generally must be approved by a court in advance. This is considered a restraint on indiscriminate police spying on citizens. While police could be punished (and therefore deterred) by docking their pay, U.S. courts have instead developed the exclusionary rule: without a legally authorized wiretap, the evidence won't be heard and the prosecution may fail to prove its case. Needless to say, most U.S. police and prosecutors dislike the exclusionary rule on the grounds it lets criminals go free for a 'procedural' error. Nevertheless, U.S. courts have been vigilant protectors of the right of the citizens to be protected from unwarranted government interference in their lives since the country threw off the yoke of King George.

The more liberal ICTY rule was not written to deter tyrannical kings but to try them (and other war criminals) in a court of law. As a result, it lacks the same justification for exclusion as that of the American courts. ICTY Rule 95 provides for exclusion of evidence under the following circumstances: 'No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.' Under this broad definition, an illegal wiretap does not automatically lead to exclusion and there is no appellate ruling to the contrary. Therefore, the Trial Chamber must apply these general principles to the facts before it.

At least one reason behind a strict application of the exclusionary rule doesn't apply in this international proceeding. It is unlikely to deter unauthorized wiretapping in conditions of war. As the Prosecution points out in its submission, quoting Judge May in the Kordic case, 'It's not the duty of this Tribunal to discipline armies or anything of that sort. Its duty is to determine whether the accused is guilty or not.' However, the question remains whether admitting illegally obtained evidence seriously damages the integrity of the proceedings.

The Prosecution cites an oral ruling also in the Kordic case in which Judge May concluded, 'We have come to the conclusion that [. . .] evidence obtained by eavesdropping on an enemy's telephone calls during the course of war is certainly not within the conduct which is referred to in Rule 95. It is not antithetical to and would not seriously damage the integrity of the proceedings.' Based on this, the Prosecution argues for a 'per se' rule, i.e. that wiretapping during war does not fall within the limitations of Rule 95 and is therefore automatically admissible, subject to proper authentication.

If the Trial Chamber doesn't go for that, the Prosecutor argues that the intercepts were legally authorized by appropriate officials. A further fallback position is that domestic limitations on wiretap evidence should not apply in cases of serious violations of international humanitarian law. The Prosecutor cites the Trial Chamber's decision in the Zejnil Delalic case, where it admitted evidence obtained in violation of Austrian law: 'The Trial Chamber is of the opinion that it would constitute a dangerous obstacle to the administration of justice if evidence which is relevant and of probative value could not be admitted merely because of a minor breach of procedural rules which the Trial Chamber is not bound to apply.'

These Trial Chamber decisions reflect the liberal ICTY evidentiary rules which assume that professional judges can be trusted to sort through issues of reliability and relevance without detailed guidance - unlike lay judges or jurors in domestic proceedings. Whether or not the ICTY adopts a per se rule that wartime wiretaps are not subject to Rule 9, as the prosecution requests, it can be expected to err on the side of hearing evidence absent a serious taint that would jeopardize the integrity of the trial if the evidence were admitted. According to Judge Robinson in the Kordic case, use of torture or intimidation to obtain a confession is an example of illegally obtained evidence requiring exclusion. Such methods make the evidence unreliable, where lack of legal authorization for a wiretap does not.

Aside from the issue of legality, the Trial Chamber must decide whether the 52 intercepts are sufficiently reliable and relevant to be admitted. On the relevance issue, the prosecution points out that the Court must first hear the intercept evidence to decide if it is relevant. As to reliability, the Prosecution maintains that the intercepted conversations involve members of the Joint Criminal Enterprise, including the Accused. C-061 is in a position to 'authenticate' the intercepts, even those he was not a party to, because he was intimately familiar with most of the voices, as well as the context for the telephone calls.

Portions of intercepts played in open court were enticing. In the following excerpt [edited for purposes of this report], according to Witness C-061, Milosevic and Karadzic are discussing the unfolding of their plan for a new, Serb-dominated Yugoslavia consisting of Serbia, Montenegro and half of Bosnia-Herzegovina. The time is early July 1991, following the European Community's imposition of a three-month hiatus before recognizing Slovenia and Croatia as independent states.

SLOBODAN MILOSEVIC: Three months are out of the question. I think that some things should be radically changed now, radically.
RADOVAN KARADZIC: Yes.
. . . .
SLOBODAN MILOSEVIC: They have nothing more to do. Now we are the ones making the move, it's time for our move now. Gligorov and that man can do whatever they want, they won't ... the thing is clear there, we can't discuss it in detail now. They want to separate.
RADOVAN KARADZIC: That's clear.
SLOBODAN MILOSEVIC: That's clear and they should be allowed to separate.
RADOVAN KARADZIC: Yes.
SLOBODAN MILOSEVIC: Now there is only one question left, to have disintegration in line with our inclinations.
RADOVAN KARADZIC: Yes.
SLOBODAN MILOSEVIC: Nothing more.
SLOBODAN MILOSEVIC: Nothing more.
. . . .
SLOBODAN MILOSEVIC: . . . concerning Slovenia, I would let them go immediately.
RADOVAN KARADZIC: Yes.
SLOBODAN MILOSEVIC: Let them go immediately, and the others as well after they have settled the issue of borders with us. . . .
RADOVAN KARADZIC: Yes.
SLOBODAN MILOSEVIC: You do not permit him to.
RADOVAN KARADZIC: Yes, yes. That's true, it's the truth for the time being, but if . . . you see, tonight we have had them shooting, they have shot at, at the uncle's windows. . . they have had a burst fired at his window. These are now some trial actions, adaptations, etc. So that what . . . should be good to be done is to do things very quickly.
SLOBODAN MILOSEVIC: We should take radical steps, and speed up things. It's a completely clear thing.
RADOVAN KARADZIC: Yes.
SLOBODAN MILOSEVIC: Take radical steps and speed things up, and we shall see if the European Community is going to fulfil their guarantees, if they are going to stop that violence and if they are going to suspend their decisions.
. . . .

Witness C-061 assisted the Trial Chamber not only by identifying the speakers, but also by decoding the conversations. The radical measures Milosevic is speaking of are actions to force Slovenia and Croatia to leave Yugoslavia, so Milosevic's new state can be realized sooner rather than later, C-061 said.

Other intercepts played or read in public session provide strong evidence of the joint criminal enterprise the prosecution seeks to prove. We hear a number of the principals reflecting on their plans and discussing implementation measures, including provision of arms and equipment to Croatian and Bosnian Serbs. These go to the heart of Milosevic's defense – that, as president of Serbia, he had no power and control over forces fighting in Croatia and Bosnia and was not involved in those wars. It is hard to imagine that the Trial Chamber will decide to exclude this substantial and highly relevant evidence if it finds the wiretaps were not legal. Indeed, the integrity of the proceedings is more likely to be damaged by their exclusion.