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Nice Assesses ICTY Prosecution Record

Former deputy prosecutor speaks frankly about controversies surrounding tribunal prosecution policy.
By IWPR ICTY
Sir Geoffrey Nice, a prominent British lawyer and former prosecutor in the case against ex-Yugoslav president Slobodan Milosevic, probably didn’t expect to be on the cover of last week’s special edition of the Croatian political magazine Globus dedicated to the ten most important personalities and newsmakers in Croatia in 2007 - all of them Croats bar Nice.



However, those who regularly read newspapers in the region were not surprised that Nice proved to be so popular. He recently received a lot of media attention there - and in the rest of former Yugoslavia - for his open criticism of the ex-Hague tribunal chief prosecutor Carla Del Ponte and the alleged concessions she made to the Serbian government to persuade them to cooperate with the Office of the Prosecutor.



I met a tired-looking Nice in Sarajevo on a cold December morning in the lobby of his hotel. He said he hadn’t slept much the night before because of a loud Christmas party in the hotel restaurant. He had protested about the noise, but his pleas had been ignored. He seemed, though, only slightly annoyed by the incident, displaying the sort of patience and composure that served him well at the tribunal. A Queen’s Counsel and one of Britain’s leading barristers, he was knighted last year for his work at the court.



Nice, 62, was recruited to the tribunal’s Office for the Prosecutor, OTP, in 1998 and was involved in several important cases, most notably serving as deputy prosecutor in the Milosevic trial.



When Milosevic died in March 2006, only a few months before his mammoth trial was due to finish, some observers suggested that prosecutors were partly to blame for the failure to secure a conviction. They argued that the trial would have been much shorter had the indictment against Milosevic not been so ambitious, covering three wars spanning almost ten years.



But Nice disagrees with this assertion.



“The question about [Milosevic’s indictment] being over ambitious often enough stems from the question whether the trial was too long. The length of the trial was determined as much as anything else by Milosevic’s ill health and by his determination to conduct every aspect of the defence case on his own, and the judges feeling obliged or being compelled to yield in one way or another to those facts or factors,” he said.



Nice claims that had the proceedings been conducted five days a week, with normal trial days of about five hours, the case would have probably lasted a total of two years, which he says is not too long.



“The breadth of the indictments was chosen because it was thought appropriate, and I thought this was right, to look at the overall behaviour of Milosevic and his developing criminality - if it was criminality; his responsibility over time for the crimes that were committed. And that’s what an international criminal tribunal is for,” he added.



Milosevic’s trial was probably the largest international trial ever held, with Nice conducting all aspects of the investigation, as well as the presentation of the case in court.



Nice agrees that the decision of the then chief prosecutor, Carla Del Ponte, to focus the entire case solely on Milosevic was a big mistake, because when he died, the case ended. Had other Serbian top military and political leaders been indicted with him, he said, “the trial process would not have ended with Milosevic’s death, because there would have been others against whom it would have continued.



“And it is easy to argue that it should have been against others, because however much one might like to say that Milosevic was the most powerful of all the personalities present, operations were done through governmental mechanisms for which others might have born more responsibility.”



In several interviews he gave to the media in Croatia and Bosnia over the last few months, Nice expressed strong disagreement with Del Ponte’s indictments policy, saying she was too eager to prove that the tribunal was not anti-Serb, and that such a policy led to some very weak indictments, particularly those against certain former Bosnian army and Kosovo Liberation Army officers.



Turning to the nature and status of the tribunal itself, Nice said it is “clearly a political court”, and that prosecutors working there are in a difficult position, because “this court has to serve political objectives identified by the UN when it was set up.



“But meeting those political objectives is one thing, and adjusting the standards by which you make a decision on whether you should indict someone where his liberty is at stake is another. And the political consideration should never under any circumstances outweigh the responsibility to apply the letter of the law in deciding whether to indict someone.”



Another subject that Nice is often asked about is the furore surrounding the transcripts of Serbia’s Supreme Defense Council, SDC, which the tribunal acquired in controversial circumstances. He is one of the few people who had a chance to read the unredacted version of the documents which, many observers believe, could prove Serbia’s alleged involvement in the wars in Bosnia and Croatia in the early Nineties.



Not surprisingly, he carefully avoids questions about the content of these documents, but he does confirm that what’s in them is very important.



Serbia handed over a large portion of SDC transcripts to the tribunal several years ago so that they could be used in the case against Milosevic. But the Serbian government also demanded that the documents, for the most part, remain confidential.



In previous correspondence with the Serbian authorities, the OTP had stated that it would not oppose a reasonable application for protective measures for these documents. However, at the ICTY, it is the judges and not the prosecutors who make the final decision on such matters, and this was what happened in this instance.



Asked to comment on what a “reasonable application” might be, Olga Kavran, spokesperson for the Prosecutor, told IWPR, “The OTP’s general position has been that an application for protective measures, the sole justification of which was to shield the applicant from responsibility before another court, could not be considered reasonable and would not be in accordance with the law and the Tribunal’s Rules of Procedure and Evidence.”



Nice has never concealed the fact that he disagreed with protective measures being granted to the most sensitive parts of the SDC transcripts.



“I could see no justification in law ever for these documents being subject to the protection that was afforded them, and from that it follows that I can see no justification for them being subject to continued protection. It is extremely important that they should be made available in full,” he said



“But let me issue a health warning - the documents do not provide in any sense a simple answer to any of the outstanding questions. They provide much more context, they provide much more detail, they provide more evidence about the states of mind of, not just Milosevic, but other people sitting in that council, and would have enabled fact- finders and decision-makers to make better and deeper judgments about what was going on.”



In April last year, Nice wrote open letters to the International Herald Tribune and Croatia’s daily Jutarnji list, in which he stated adamantly that he never supported Del Ponte’s decision to grant Serbia’s requests for the SDC transcripts to be kept confidential.



He also claimed that 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”.



These letters won him many supporters in Croatia. Explaining their decision to include Nice on list of the country’s top ten personalities for 2007, the editors of Globus said that in his open letters he “exposed, as much as it was in his power, the functioning of Del Ponte and her political decisions, which led to concessions to the Serbian government that are impossible to understand”.



Merdijana Sadovic is IWPR’s Hague tribunal programme manager.