Threats Jeopardize Milosevic Trial

Lead Prosecutor Geoffrey Nice advised the Trial Chamber that a scheduled protected witness had withdrawn after receiving the very threats he or she feared. The witness was not afraid of personal harm, but of harm to the witness's children. Within 24 hours of revealing this fear to the Trial Chamber and the accused in private session, the witness received that exact threat.

Stating that the judges 'take these matters extremely seriously indeed,' Judge May said the Court would order a thorough investigation to determine 'how the matter got out.' Only a few people were privy to the information, according to Mr. Nice -- those on the prosecution team relevant to this witness, the judges and court officers, the amici curiae, and the accused.

At the outset of this phase of the case in October 2002, the Chamber expressed concern over the number of witnesses for whom the prosecution sought protective measures. Mr. Nice responded that 'there may be an increase in danger' in the Croatia phase of the case, partly because of the type of witnesses he would call. The danger is reflected in the fact that 10 of the 22 witnesses who have testified since then have done so under pseudonyms and protective measures designed to hide their identities. The reason may lie in their shared commonality: nearly all have been of Serb ethnicity and, broadly speaking, insiders. [See CIJ Report, 'Danger to Witnesses Closes Trial,' 21 October 2002]

Milosevic routinely objects to private sessions, as he did at the beginning of his cross examination today when he said this practice is from the Middle Ages. Yet it is his actions which undermine the public nature of his own trial, as he repeatedly asks protected witnesses questions designed to reveal their identities. It is precisely that which led Judge May to warn him to request a private session if he had any doubt when questioning protected witness C-013. As it turned out, the majority of C-013's cross examination was in private session, perhaps out of an abundance of caution by the Chamber, but based on Milosevic's prior behavior.

The obvious loser from private sessions is the public. The Chamber and the accused will hear all the evidence presented by the prosecution. That it is given in private session will not affect Milosevic's ability to cross examine or refute it, nor will it affect the Court's ability to render a verdict. But the more evidence given in private session, the less the public knows about the case made against the accused. The danger is that at the end of the trial, neither observers nor the public will have an informed sense of Milosevic's guilt or innocence -- and, therefore, whether to have confidence in the Court's verdict.

Of greater concern is that the Tribunal itself will lack key evidence, as witnesses withdraw or decide against coming forward. When investigating who is the source of the leaks, it would be well to keep in mind who stands to benefit from them.