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OTP Internal Investigation into Leak of a Confidential 'working document'

By Mirko Klarin
By IWPR

Confidential documents quoted in a New York Times article of 21 March 1999 - entitled "War Crimes Panel Finds Croat Army 'Cleansed' Serbs" - indeed come from the Office of the Prosecutor (OTP), but are only a "several months old work product" that "merely represents expressions of opinion, arguments and hypotheses from various staff members (...) and not in any way the concluded decisions of the Prosecutor."


The Prosecutor is nevertheless "gravely concerned about the means by which this information was communicated to the New York Times and ordered an investigation into the matter. This, in short, is the gist of the Office of the Prosecutor's (OTP) statement read out to the journalists by Prosecutor Arbour's deputy, Graham Blewitt, on 24 March in response to the above-mentioned NYT article.


The Times article claims to have been in possession of 'leaked' confidential documents pertaining to the investigation into the Croatian Army's "Operation Storm" in the Serb-controlled area of Croatia, 'Krajina.' From 1991 through until the advent of Operation Storm in August 1995, the Krajina was held by "rebel" Serbs, who were then defeated and expelled along with almost the entire Serbian population by the Croatian Army. According to the article, Hague investigators have "concluded that the Croatian army carried out summary executions, indiscriminate shelling of civilian populations and 'ethnic cleansing' (...) and have recommended that three Croatian generals (Ante Gotovina, Mirko Norac and Ivan Cermak) be indicted (...) and that the indictment could come within a few weeks."


In their response to this 'leak,' the Prosecutor's office continued its existing practice of not commenting upon any investigations alleged or real. The OTP stated that "we go out of our way to ensure that persons are not named until publicly indicted. To do otherwise would be unfair to such persons if they are not ultimately indicted...the fact that this article mentions that named persons are under investigation is very regrettable."


The Prosecutor went onto justify the existence of the documents in question by explaining the working procedures in the OTP and how she "encourages vigorous debate within the Office, regarding the strengths or weaknesses of evidence and legal theories which may be applicable to the facts." Staff, she said, are encouraged to identify the broadest possible basis for any indictment or prosecution based on the available evidence, and then to test this basis by critical analysis and debate. "The documents in question do nothing more than represent that process in action.


The final position on the viability of any charge against any person is the sole decision of the Prosecutor, who if satisfied that the available evidence is sufficient, then presents an indictment to a judge for confirmation." The OTP also stated that these leaks to the NYT "will have no effect on the Prosecutor's decision whether to proceed further in this case, nor on the timing of any indictment." It added, "whether the motive for making the material available to the media was to force the Prosecutor's hand to issue the indictment or to bring it forward at an earlier time, or whether it was done to ensure that she would not issue any indictment at all, the end result is that the release of the information will have no such effect.


The Prosecutor will do what her mandate from the Security Council requires independently and objectively and will not allow herself to be influenced or manipulated by outside forces." Unsurprisingly, the NYT article caused a storm back in Croatia which centred on the Tribunal and the Prosecutor, to the extent that a selection of government officials felt obliged to state that Croatia would "never ever surrender its generals.."


The OTP responded with a reminder to Zagreb that any country's co-operation is not conditional upon their being satisfied with the Prosecutor's decisions Noticeable by their absence from any OTP statements where two further the allegations contained in the NYT article claiming that "the investigators have also recently begun looking into whether the Croatian president, Franjo Tudjman, should be held responsible under international law for his role in the assault" (i.e. Operation Storm).


Moreover, no reference was made by the OTP to claims by the NYT regarding Slobodan Milosevic. The Times had been claiming - prior to the start of NATO bombing of Yugoslavia - that "investigators have stepped up an inquiry focusing on Slobodan Milosevic (...) who is widely seen as the architect of the Balkans wars. U.S. officials and Tribunal staff said that a special team to investigate Milosevic was set up at the Tribunal in October," and that "to assist the Tribunal, the Clinton administration has set up a task force to cull through reams of photos, telephone intercepts and other material held by various government agencies, including the CIA and the Pentagon."


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