US embassy cable - 03THEHAGUE2611

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 002611 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - ROSSIN, 
EUR/SCE - STEPHEN/GREGORIAN, L/EUR - LAHNE, INR/WCAD - 
SEIDENSTRICKER/MORIN 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY 
TAGS: BK, HR, NL, PHUM, PREL, SR, ICTY 
SUBJECT: ICTY: MILOSEVIC TRIAL CHAMBER BALANCES KEY 
WITNESSES, HEALTH ISSUES AND EFFICIENT TRIAL MANAGEMENT 
 
REF: A. THE HAGUE 2568 
     B. SECSTATE 287657 
 
Classified By: Acting Legal Counselor David Kaye per reasons 1.5 (b)-(d 
). 
 
1. (SBU) Summary:  Trial Chamber III of the International 
Criminal Tribunal for the Former Yugoslavia (ICTY) had its 
hands full this week as it reconvened to hear the 
Prosecution's case against Slobodan Milosevic.  Compressed 
into the new three-day per week schedule, the proceedings 
balanced the testimony of key witnesses, including General 
Rupert Smith, Commander of the UN Protection Force (UNPROFOR) 
in Bosnia and Herzegovina (BiH) in 1995; continued management 
of Milosevic's health and defense resources; and procedural 
mechanisms designed to handle the Prosecution case 
efficiently.   End summary. 
 
------------- 
Key testimony 
------------- 
 
2. (SBU) On October 9, the trial chamber heard the testimony 
of General Rupert Smith, Commander of UNPROFOR in 1995 and 
Deputy Allied Supreme Commander Europe from 1998-2002.  His 
testimony, among other things, placed Milosevic and Mladic at 
the same meeting on July 15, 1995 in Belgrade.  He also 
testified that the shelling of the market place in Sarajevo 
in August 1995, which killed and wounded many civilians, must 
have come from Bosnian Serb positions and not from within the 
enclave.  Smith handled well the cross-examination on this 
topic, in which Milosevic highlighted discrepancies between 
an initial French-led investigation and a later, more 
comprehensive one carried out by Smith's American-led team. 
He placed soldiers in "black uniforms" in the assault on 
Zepa, which occurred directly after the massacres in 
Srebrenica.  The soldiers in black uniforms, Smith testified, 
were not part of the regular Bosnian Serb forces and wore 
Serbian Army flashes on their sleeves.  They remained in Zepa 
until they left with Mladic to reinforce an area in West 
Republica Srpska.  He also exposed coded communications which 
appeared to show that Milosevic was in contact with Mladic 
through the summer of 1995.  Smith testified to his belief 
that Milosevic must have known of the ongoing Srebrenica 
atrocities as of the meeting with Mladic on July 15. 
 
3. (C) On the same day of Smith's testimony, one senior 
prosecution attorney said that members of the Srebrenica team 
(i.e., those building the case for Milosevic,s share of 
responsibility for the July 1995 massacres around Srebrenica) 
were "bouncing off the walls" because of lead prosecutor 
Geoffrey Nice's failure to elicit Smith,s view that the fact 
of the massacres -- if not the scope -- was clearly 
foreseeable by anybody with knowledge of the situation in and 
around the so-called UN safe haven.  Smith told the 
prosecution team on the eve of his testimony that he strongly 
believed this to be true, but, for an unknown reason, Nice 
failed to ask the relevant questions during the direct 
examination.  Comment: This is especially dispiriting to the 
Srebrenica team, which is laboring strenuously to build the 
genocide case against Milosevic.  End comment. 
 
4. (SBU) Earlier in the week, the Prosecution called one 
insider witness who testified to Milosevic's contacts with 
key Bosnian Serb leaders and a witness who explained a report 
regarding statistical analysis of the change in demographics 
in the Balkans region.  Through extensive surveys and 
analysis of voting records, the report showed how the 
compositions of different regions of the Balkans radically 
changed from mixed ethnic demographics to homogenous and 
separate ethnic populations throughout the duration of the 
war.  The trends were consistent throughout the border 
regions. 
 
-------------------------- 
The Health of the Accused 
-------------------------- 
 
5. (C) Milosevic's health continues to be a pervasive 
presence in the proceedings.  One Prosecution team member 
told Embassy legal officers that, during the morning break on 
Tuesday, the first day back in trial after a two-week 
suspension, a spot-check showed that Milosevic,s blood 
pressure had spiked to 160/110.  After doctors concluded that 
Milosevic could nonetheless conclude the day's proceedings, 
the trial continued in session and Milosevic completed his 
cross-examination of the witness that day.  The Accused, who 
looked fatigued on Tuesday, looked much better on Wednesday 
and Thursday in court. 
6. (U) Bearing the health concerns in mind, the Trial 
Chamber, on October 6, ordered that the role of the Amici 
Curiae be extended to include receiving "communications as 
the Accused may make to them and to act in any way to protect 
and further the interests of his Defence."  The Chamber 
issued the order in light of "the recurring medical condition 
of the Accused since 18 March 2002; and, the desirability of 
the Amici Curiae giving greater assistance to the Accused." 
 
7. (C) Meanwhile, as the trial chamber implemented its new 
hearing schedule and the health issues remain a key concern 
for all parties to the trial, members of the Prosecution team 
are at a very preliminary phase of contemplating whether they 
could rest their case even before using up their remaining 43 
trial days.  While they assert that all of their remaining 
witnesses are critical, some prosecutors are concerned that 
the trial could be indefinitely postponed due to the 
accused's health, or even cut short by his death, leaving the 
Prosecution unable to present key evidence.  One problem, a 
prosecutor said, was that a premature conclusion of the case 
would preclude the amici, for example, from filing the 
equivalent of a "summary judgment" motion under Rule 98 bis 
of the Tribunal Rules of Procedure and Evidence. Prosecution 
members believe that the trial chamber would respond to such 
a motion by ruling that the Prosecution had presented 
sufficient evidence "to sustain a conviction" (in the words 
of Rule 98 bis) on many, if not all, of the counts against 
Milosevic.  But if Milosevic were to be incapacitated before 
the Prosecution rests its case, no Rule 98 bis motion would 
be presented to the chamber, and the trial could thus be left 
in limbo without even a modicum of finality. 
 
---------------- 
Trial Efficiency 
---------------- 
 
8. (SBU) Prior to the testimony of General Smith, the Trial 
Chamber heard arguments regarding the submission of Smith's 
written statement -- as opposed to actual direct examination 
-- as evidence-in-chief.  Under last week,s Appeals Chambers 
ruling (ref A), Rule 89(F) provides for the admission of 
written statements when in the "interest of justice." 
Milosevic argued vigorously, and fairly logically, against 
the submission of written evidence in this case.  He referred 
to the "alleged evidence" in writing as "piles and piles" of 
paper that the prosecution wants to slip in instead of having 
oral testimony.  The Accused argued that their was no 
possible way that he could review the documents submitted by 
the Prosecution.  He stated that one could disclose to the 
court "the existence of the Congress Library"  but that would 
not improve his ability to review every document that it 
contains. He also argued that while oral testimony can be 
heard by all in open session, the public has no access to 
these written statements. 
 
9. (SBU) Lead Prosecutor Nice argued that the primary means 
of finding discrepancies in testimony occurs during the cross 
examination, not during the direct.  Furthermore, Nice argued 
that because there is no jury, the professional judges of the 
Chamber can easily deal with written statements as evidence 
in lieu of oral testimony.  Nice continued that it was in the 
interest of justice that as much evidence and material be 
presented to the court as possible.  The Chamber ruled in 
this instance that the written statement would be admitted as 
evidence-in-chief; however, consistent with the Appeals 
Chamber's decision, any material going to the proof of the 
acts or conduct of the accused must be adduced orally in 
direct examination. 
 
10. (C) Finally, in a recognition of the dwindling number of 
prosecution trial days, the Chamber also ordered the 
Prosecution to submit to the court a finalized witness list 
within 21 days.  Relatedly, the Prosecution intended to file 
on Friday, October 10, its motion for protective measures for 
the testimony of General Clark (ref b).  The Prosecution is 
considering whether the testimony of other USG witnesses -- 
including Richard Holbrooke -- should be sought. 
 
11.   (C) Comment: The week of proceedings was, in many 
respects, a continuation of recent themes.  As it happened, 
Milosevic showed the ability to persevere through the trial 
after two weeks off for health reasons, a minor victory in 
itself.  Moreover, he demonstrated a certain engagement in 
the proceedings -- for example, in his cross-examination of 
General Smith and his arguments against the introduction of 
Smith's statement in lieu of oral evidence.  Still, the 
background noise of the trial -- the health concerns and the 
trial chamber's efforts to maintain a basic fairness to the 
proceedings -- continues to engage the chambers as much as 
the prosecution's case itself.  Until Milosevic's health is 
seen to be stabilizing, that pattern is likely to hold.  End 
comment. 
SOBEL