US embassy cable - 03THEHAGUE2867

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 002867 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - ROSSIN, 
EUR/SCE - STEPHENS/GREGORIAN, L/EUR - LAHNE, L/AF - GTAFT. 
INR/WCAD - SEIDENSTRICKER/MORIN 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY 
TAGS: BK, HR, KAWC, NL, PHUM, PREL, SR, ICTY 
SUBJECT: ICTY: LORD OWEN'S TESTIMONY A MIXED BAG FOR 
PROSECUTION'S CASE AGAINST MILOSEVIC 
 
REF: THE HAGUE 2835 
 
Classified By: Clifton M. Johnson, Legal Counselor, for reasons 1.5(D) 
and 1.6. 
 
1. (C) Summary:  Trial Chamber III of the International 
Criminal Tribunal for the Former Yugoslavia (ICTY) heard 
testimony from Lord David Owen the first week of November. 
As an international negotiator, Lord Owen insisted that the 
Trial Chamber call him as a neutral witness rather than being 
called by the Prosecution.  His testimony in some ways 
tracked his self-proclaimed neutral position, sometimes 
characterizing events in ways that undercut the Prosecution's 
case.  For lead prosecutor Nice, however, Owen provided 
helpful evidence in building a case of omission against 
Milosevic (see para 11).  The Trial Chamber also heard 
testimony from a protected witness testifying to crime-based 
events largely in closed session.  Additionally, Milosevic 
completed his cross-examination of David Harland.  The trial 
chamber also issued an order allowing it to sit in session 
with a judge absent due to health related issues.  End 
summary. 
 
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Lord Owen's Testimony 
------------------------------- 
 
2. (C) On November 4 and 5, the Trial Chamber heard from Lord 
David Owen, former Bosnia peace mediator and one-time British 
foreign secretary.  He initially turned down a request by the 
Prosecution to appear before the court in the Milosevic 
trial, refusing even to speak with lead prosecutor Geoffrey 
Nice about such testimony and preferring to be called by the 
Trial Chamber itself in order to maintain his supposed 
neutrality in the matter.  Lord Owen emphasized his view that 
evil was committed on all sides, though more so by Bosnian 
Serbs than Bosnian Croats or Muslims.  He repeatedly stated 
that blame for the events in the Balkans is carried by many 
parties including the United Nations Security Council and 
even himself.  Senior prosecutor Dermot Groome commented to 
Embassy legal officers that Owen was a very credible witness, 
especially since he testified that he held himself to be 
partially responsible for the mass murders that occurred in 
Srebrenica. 
 
3. (SBU) Owen submitted a 42 page statement to the 
prosecution which outlined his role as an international 
negotiator in the Balkans and his experiences with the 
Accused in that role, largely drawing upon relevant portions 
of his book, Balkan Odyssey.  The statement provided detailed 
accounts of the relationships that Milosevic had with 
political rivals and other leaders including, among others, 
Corsic, Panic, Karadzic, Mladic and Krajisnik.  Lord Owen 
characterized Milosevic as "not fundamentally racist -- he's 
a pragmatist who wanted Serbs to be in the majority.  I don't 
think he was an ethnic purist." 
 
4. (SBU) Milosevic and Owen established a cordial and 
respectful rapport during the cross-examination.  Milosevic 
was composed and effective during the cross-examination, 
adroitly leading the witness to praise the "peacemaker" role 
Milosevic played in the Balkans.  Indeed, Owen offered 
occasional praise and justification unprompted by the 
Accused.  At one point, when Milosevic offered that great 
atrocities were being committed against the Serbs and the JNA 
was trying to prevent further conflict, Lord Owen 
side-stepped the question by stating that he wasn't sure 
whether Milosevic was helpful in that case, but that he was 
very helpful in the Vance-Owen peace negotiations.  Further, 
Owen suggested that Milosevic had a "justified grievance" 
against the West since they accepted maps that were drawn in 
1944 rather than ones in 1991 that reflected the actual 
ethnic populations. 
 
5. (SBU) Owen also cast Milosevic as someone committed to, 
and an active participant in, the peace processes.  However, 
he did suggest that Milosevic did not do enough for peace. 
Owen's chief complaint against Milosevic was that he had not 
put enough pressure on the Bosnian Serbs to accept the 
Vance-Owen peace plan.  He stated that by refusing to 
threaten the Bosnian Serbs' supply of oil and weapons flowing 
from Serbia when they rejected the peace plan, Milosevic was 
responsible for delaying the peace process for two and a half 
years.  Lord Own stated that he wished Milosevic had used his 
influence earlier to support peace. 
6. (SBU) Owen contrasted Tudjman's "blatant" use of Croation 
Army forces in Bosnia with Milosevic's "clever" way of using 
Serbian forces in the war.  Yet Owen did some serious damage 
to Milosevic regarding the presence of JNA troops in Bosnia. 
Milosevic claimed that once the independence of Bosnia was 
recognized that no JNA troops were active in Bosnia, except 
for one small exception.  Owen dismissed this statement 
saying that the JNA was involved and that Serbs not born in 
Bosnia were active there.  He stated that JNA were more 
subtle in disguising their presence than their Croatian 
counterparts. 
 
7. (SBU) During the cross-examination, Owen reserved his 
harshest comments for Milosevic's political rivals.  He 
suggested that Milosevic lost much power and influence over 
the Bosnian Serb leadership after Karadzic revoked his 
signature from the Vance-Owen peace plan.  He commented that 
Karadzic signed a lot of documents while holding and 
espousing opposite views in other forums.  Owen showed that 
he holds particular contempt for Mladic.  In responding to 
Milosevic's assertion that Mladic was not capable of the 
atrocities in Srebrenica, Owen stated that he did not share 
this view of Mladic and that there was a "brutality about the 
man."  He also stated that Mladic was a racist and that he 
could have ordered, been complicit, or acquiesced to a 
massacre of Muslims. 
 
8. (SBU) Owen went on to say that Milosevic was very helpful 
in preventing Mladic from taking Srebrenica in 1993.  He 
stated that Milosevic was "well aware of the dangers" if 
Serbs went into Srebrenica, given the historic tensions and 
conflicts there, and even referred to the risk of a 
"massacre."  There was similar recognition of the risk in 
1995.  Owen lamented that the events in Srebrenica in 1995 
was the worst episode of the conflicts in the Balkans and he 
partially holds himself responsible for not telling more 
people of the danger.  He also placed part of the blame on 
the Security Council, which knowingly declared Srebrenica a 
safe area without providing the requisite troops. 
 
9. (SBU) On another issue Owen partially came to the 
Accused's defense stating that Milosevic gave up the idea of 
a "Greater Serbia" after 1993.  He noted that as a 
pragmatist, Milosevic realized that once the Vance-Owen peace 
plan started that some Serbs would have to live outside of 
Serbia.  When Milosevic pushed the point to say that the 
leaders of Republica Srspka also never held a "Greater 
Serbia" view, Owen responded that this was a reasonable view, 
but that he personally does not accept that interpretation. 
Owen went on to say that Milosevic and others likely had 
aspirations for a different map. 
 
10. (SBU) Owen ended his cross-examination by Milosevic with 
a lofty statement that "sometimes leaders must lead their 
people against public opinion and against ultra-nationalistic 
views."  He went on to say that, "some of the greatest acts 
have occurred where leaders have acted against the majority 
opinion."  However, the Amici, through their 
cross-examination, pointed out that many of the positions for 
peace that Milosevic took were politically unpopular and even 
in some cases resulted in substantial loss of influence.  The 
Amici also pointed out that after Pale had rejected the peace 
plan, the leaders in Pale felt they could reject Belgrade and 
could make their own political decisions.  Owen seemed to 
accept this characterization and even when so far as to add 
that the Amici's line of questioning showed the "wisdom of 
the chambers to have the Amici to insure a fair trial." 
 
11.  (C)  Lead Milosevic prosecutor Geoffrey Nice, while 
acknowledging the mixed nature of Owen's testimony was 
confident that it was helpful to the prosecution.  He said 
that Owen demonstrated that the risk of a massacre in 
Srebrenica was apparent from 1993, testified that Milosevic 
himself had alluded to the danger of a "massacre" in 1993, 
and showed that the risk was recognized again in 1995. 
Against this backdrop of awareness was testimony that during 
this period the VRS was supported by Milosevic and Kardzic 
had lost control over Mladic leaving Milosevic as his main 
influence.  For Nice all of this added up to, essentially, a 
case of omission against Milosevic.  Nice said that he would 
pursue evidence of direct responsibility where he could find 
it but that for legal purposes a case based on the accused's 
failure to act would suffice.  explained the value of Owen's 
testimony in a conversation with Embassy legal officers. 
 
 
 --------------------------------- 
Other Testimony -- Nov. 5-6 
---------------------------------- 
 
12. On November 5, the Trial Chamber also heard from a 
protected witness, identified as B-1531, who offered 
crime-based testimony.  Much of the witness' testimony was 
taken in closed session.  On November 6, the Trial Chamber 
heard the completion of the cross-examination of David 
Harland, UN civil and political affairs officer in Sarajevo. 
Harland's evidence-in-chief and the start of the 
cross-examination occurred on September 18, 2003.  During his 
initial testimony, he spoke of his experiences during 
negotiations with the leaders in Pale, notably Dr. Karadzic 
and General Mladic, and of his experience with shelling and 
sniper activity in Sarajevo.  He also spoke about the command 
structures in Pale and related his experiences that showed 
how Pale could control snipers and paramilitary units when 
they wanted to.  He also spoke about the methods used by the 
Bosnian Serbs when they ethnically cleansed Muslim towns.  In 
contrast to the tone of Owen's testimony, Harland described 
Milosevic as "holding the hand" of Pale through his influence 
on the military.  He testified that the Pale leadership was 
frustrated with Milosevic for staying their hand in many 
cases.  He later recounted how a major report he researched 
and drafted for the UN Secretary General made no connection 
between the massacres in Srebrenica and Milosevic, yet he 
concluded personally that Milosevic must have known about the 
military actions to take the town. 
 
13. (SBU) Harland in general testified to the support 
Milosevic and the JNA provided Pale.  He spoke about how 
General Mladic would openly acknowledge that he had 100s of 
tanks supplied by the JNA and how these forces were used to 
ethnically cleanse Muslim towns.  Harland also stated that 
there was a clear link between Belgrade and the Bosnian Serb 
Army.  He noted that at critical moments, Belgrade was able 
to influence the behavior of the Bosnian Serb Army.  Harland 
concluded, given that Milosevic could assert control over the 
Bosnian Serb Army when he wanted it, that Milosevic must have 
acquiesced to the shelling in Sarajevo, the sniping, the 
attacks on safe areas, and even the massacre that followed 
the fall of Srebrenica.  He claimed that Milosevic could have 
done vastly more to prevent these attacks given that the 
Bosnian Serbs were almost entirely dependent on support from 
Serbia.  Harland charged that the cause of peace was not 
advanced by "giving the Bosnian Serbs the full military 
support they needed to secure, ethnically cleanse, and hold 
very large territories." 
 
14. (SBU) On November 6, Milosevic concluded his 
cross-examination of David Harland.  During this segment of 
the cross-examination the Accused asked questions primarily 
regarding the circumstances in Sarajevo.  When Milosevic 
asserted that Serbs "allowed" Muslims to leave their 
enclaves, whereas the Muslims did not allow the Serbs the 
freedom to leave, Harland corrected Milosevic stating that 
the Serbs "forced" the Muslims to leave.  Harland also 
discussed the varied treatment that different ethnicities 
received through the various controlled areas of Sarajevo. 
He also addressed the two Makale Market shellings.  Milosevic 
made his usual argument that the preliminary report concluded 
that it was a Muslim attack.  Harland noted that later 
reports could not conclude the source, since it was too close 
to the confrontation line.  However, he noted that for shells 
that they could detect the source almost all shells falling 
on the Muslim side came from the Serb lines. 
 
------------------ 
Judge Robinson Ill 
------------------ 
 
15. (C) On October 21, the Trial Chamber issued an order 
under Rule 15 bis allowing the Trial Chamber to sit in the 
absence of Judge Robinson due to medical reasons on November 
25 and 27 and on December 2, 3, 4 of 2003.  While Embassy is 
unfamiliar with the nature of Judge Robinson's illness, 
prosecutor Dermot Groome commented to Embassy legal officers 
that Judge Robinson's health may further impact the Milosevic 
case in the future. 
 
16. (C) Comment:  In his courtroom confrontation with David 
Owen, Milosevic demonstrated a feistiness and focus 
consistent with the observation of those who see Milosevic 
regularly (reftel) that he tends to relish the opportunity to 
cross witnesses he views as his "peers".  His vigorous, 
engaging cross-examination brought out the complex nature of 
Owen's views, which were not altogether helpful to the 
prosecution.  In that sense, the accused can claim this 
witness as a success.  Still, the negatives remain for 
Milosevic, especially Owen's testimony concerning the 
presence of JNA troops in Bosnia and the fact that Milosevic 
was aware of the risk of a massacre in Srebrenica. 
Ultimately Owen's value to the prosecution will depend on 
whether other witnesses can fill in the gaps and whether the 
chamber is prepared to convict Milosevic on a case based 
largely on acts of omission.  The coming weeks will see 
additional testimony from witnesses, including former State 
President Boris Jovic who will testify next week, that will 
present an even more mixed bag for the prosecution.  End 
comment. 
RUSSEL