Serbia and Montenegro's Objections Keep Evidence Out of Court

The long-awaited appearance of Zoran Lilic, former President of the Federal Republic of Yugoslavia (FRY), in the Milosevic trial came to an end on Tuesday. His appearance was made possible when the Government of Serbia and Montenegro waived provisions of the federal law prohibiting the disclosure of state and military secrets. However, it was not a complete waiver. The Government identified subjects to which the waiver applied, and placed its representatives in court so they could object if Mr. Lilic strayed from them.
Before the first session was over, the witness was faced with a question not covered by the waiver. The Trial Chamber directed the Government representatives to advise the Prosecutor of any objections during a break.

The controversial subject was the minutes of the Supreme Defense Council (SDC) of the FRY from 1993 to 1997, the period when Mr. Lilic was a member. The other two voting members were the president of Serbia (Milosevic) and the president of Montenegro (Momir Bulatovic). Lilic, as president of FRY, served as president of the SDC. The SDC was responsible for adopting the FRY’s Defense Plan, which the President of the SDC transmitted to the Yugoslav Army (VJ). The SDC President also commanded the VJ in war and peace -- in accordance with decisions of the SDC. Though Lilic was President of the SDC, he testified that Milosevic dominated the body because of his overall strength and the fact that Serbia provided 95% of the federal budget. His own position as FRY president was primarily ceremonial.

During Lilic's presidency, over 50 meetings of the SDC were held. The meetings were recorded on audiotape and stenographically, and minutes were made of the most important parts. The recordings and the minutes have been the subject of a battle between the Government and the OTP (Office of the Prosecutor) for over a year. Recently, the Government provided minutes of 60 or 70 meetings, but not full transcripts. On June 5, 2003, in view of the Government's recalcitrance, the Court ordered Serbia and Montenegro to provide full stenographic recordings to the OTP, but gave it a month to do so. Unfortunately, the recordings were not available in time for Lilic's testimony.

Mr. Lilic testified to their importance. When Mr. Nice asked, 'In the absence of either a stenographic record or recordings, do you feel capable of dealing with the [SDC] meetings?' Mr. Lilic responded, 'Absolutely not. For two reasons: one, the issues are too important. It is not fair to the Tribunal or Mr. Milosevic. Two, they are highly competent documents and there has been no waiver.'

Just as the OTP didn't get the stenographic record, neither would the Government grant a waiver for Mr. Lilic to testify about subjects raised in the minutes. When Mr. Nice returned after conferring with the Government, he informed the Court, 'I have spoken to the representatives for Serbia and Montenegro. Though Mr. Lilic was President of the FRY within the period 1993 to 1997, they [representatives of the Government] have a blanket objection to documents within that period.' Serbia and Montenegro essentially placed Mr. Lilic's testimony about this highly significant period off limits to the Court.

It is precisely the situation Mr. Nice feared when he asked the Court to intervene and help the OTP secure the documents they requested more than a year ago. At the June 3 hearing on the issue, he explained that not only had the Government failed to provide requested material (SDC meeting transcripts), but when it did provide the minutes of the meetings, it had made no application for protective measures for any particular document. ICTY Rules require that such an application be made five days before the hearing on a party's request for a court order (Rule 54bis(F)). Mr. Nice told the court that the Government's failure to ask for protective measures in a timely manner would further delay the proceedings. It's done worse than that. It has resulted in a situation where potentially valuable testimony will be lost to the Court, since Mr. Lilic is not going to testify without a waiver that protects him from being prosecuted by the Government and the Government’s representatives' untimely objections make that waiver impossible.

Had the Government complied with Rule 54bis, the Court could have provided for the evidence to be presented under protective measures, including closing the proceedings to the public or allowing the Government to redact (remove) sensitive parts of the documents. Having done none of this, the Government nevertheless asserted during the witness's testimony its blanket objection to 50 or more documents. It did so without giving any reasons to support its objection. Nor would it have profited the prosecution to complain. Unless the Government granted the waiver, Mr. Lilic was not going to testify on those matters, regardless of whether the Court upheld the objections.

While Mr. Lilic did provide useful testimony,* the Court was denied information on high level meetings with Milosevic on matters involving the Yugoslav Army during the critical years of 1993 to 1997. That information might have shed light on what Milosevic thought, what he did and how he controlled others, as Mr. Nice pointed out on June 3.

Serbia and Montenegro are under a Court Order to provide the Prosecution with the recorded transcripts of SDC meetings by July 5. The Prosecution has the minutes of 60 or 70 of the meetings in hand. It must now find a way to introduce relevant provisions into Court. Unfortunately, it will not be able to do so through Mr. Lilic, nor will the Court benefit from any comments the former President could make on them.
*Mr. Lilic’s testimony will be discussed in a forthcoming report.