US embassy cable - 04THEHAGUE271

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 000271 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE - 
STEPHENS/GREGORIAN/MITCHELL, L/EUR - LAHNE, INR/WCAD - 
SEIDENSTRICKER/MORIN, USUN FOR ROSTOW/WILLSON 
 
E.O. 12958: DECL: FIVE YEARS AFTER ICTY CLOSURE 
TAGS: BK, HR, KAWC, NL, PHUM, PREL, SR, ICTY 
SUBJECT: ICTY: NEW STRESSES IN THE MILOSEVIC TRIAL 
 
REF: THE HAGUE 176 
 
Classified By: Clifton M. Johnson, Legal Counselor, for reasons 1.5 b, 
d 
 
1. (C) Summary.  The trial of Slobodan Milosevic before the 
International Criminal Tribunal for the former Yugoslavia 
(ICTY) careens towards an interesting, difficult and 
potentially explosive final few weeks of the prosecution's 
case.  In terms of testimony, the biggest grenade could come 
in the form of the compelled February 10 testimony of Biljana 
Plavsic, former co-President of Republika Srpska (RS), who 
many in the Office of Prosecutor (OTP) believe is more likely 
to hurt rather than help the prosecution case.  The biggest 
risk, however, may be less substantive than health related. 
While the accused has the flu, leading to a cancellation of 
proceedings on February 3, more significant is that Presiding 
Judge Richard May, the dominant figure in the courtroom, is 
suffering from an undisclosed illness that could require his 
near term departure from the Tribunal -- casting the future 
of the trial into question.  Against this backdrop, the 
Milosevic prosecution team, though racked by infighting and 
potential personnel changes, worked to finalize its remaining 
witness list.  During the week of January 26, it presented 
three expert witness who, in contrast to the drama behind the 
scenes, testified soberly to the crimes committed in Bosnia 
and the relationship between Serb and RS militaries.  End 
summary. 
 
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Judge May Ill 
------------- 
 
2. (C) Embassy legal officers learned February 2 that Judge 
Richard May, the presiding judge in the Milosevic case, has 
fallen ill with what may be a serious and progressively 
worsening condition.  Some prosecutors before his trial 
chamber had begun to notice some abnormalities in his 
behavior, such as incomprehensible statements from the bench 
(May is well known to be an articulate and precise speaker 
when presiding).  Last week he received a medical evaluation, 
the results of which are not yet known.  The situation is 
being considered very discretely by a small circle in the 
ICTY.  A number of sources consider the condition serious 
enough that it may require May to step down from the 
proceedings.  They are focused on "getting through" the next 
two weeks until the Prosecution adjourns in the hope that a 
substitute judge, if needed, would have the three month break 
to get up to speed on the case by the time Milsovic begins 
his defense.  (Comment.  Embassy legal officers had not 
noticed a significant change in Judge May's behavior, nor 
have press observers.  While the reports of May's illness are 
credible and corroborated, until we obtain further details it 
will not be possible to assess the full impact of his 
condition on the case.  End comment). 
 
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Plavsic and Perisic 
------------------- 
 
3. (C) A trial chamber order granting the prosecution's 
request to add Biljana Plavsic as a witness remains under 
seal, though senior Tribunal leadership remained certain that 
she would testify against Milosevic on February 10 
(originally scheduled for February 4).  See reftel.  Her 
testimony has become another point of contention between 
senior prosecutors on the Milosevic team, but Emboffs 
understand that Chief Prosecutor Carla Del Ponte has insisted 
on seeking the subpoena that will bring her to The Hague to 
testify. 
 
4. (C) Embassy legal officers also learned that the courting 
of Momcilo Perisic ended in failure, with one prosecutor 
calling Perisic's interviews in The Hague "terrible."  There 
had been some hope within OTP that Perisic -- a one-time 
senior military adviser to Milosevic, an important link 
between Milosevic and Mladic on military matters, and a 
potential indictee in his own right -- would provide 
substantial evidence against his former boss.  The interviews 
conducted in The Hague proved otherwise, with Perisic 
displaying a truculence that led him to being quickly 
returned to Belgrade.  His status as an investigative target 
will be reported septel. 
 
----------------------------------------- 
Personnel Changes on the Prosecution Team 
----------------------------------------- 
 
5. (C) The intensity of focus on the closing weeks of the 
prosecution case has not distracted the lead prosecutors from 
their long-running clash over the prosecution itself.  The 
main source of friction, a poisonous relationship between 
lead prosecutor Geoffrey Nice and senior trial attorney (for 
the Bosnia portion) Dermot Groome, may be coming to an end 
once the prosecution rests.  Embassy legal officers have 
learned that the chief prosecutor has decided to pull Groome 
from the case once the prosecution rests and will ask Groome 
to focus attention on Stanisic and Simatovic and take control 
from Nice of the Perisic investigation/indictment.  Groome, 
disappointed by the move, has asked the Chief Prosecutor to 
reconsider, having told her that he would not seek renewal of 
his contract in May should he be taken off the Milosevic 
team. 
 
-------------------------- 
A Week of Expert Witnesses 
-------------------------- 
 
6. (SBU) Dean Manning (OTP Investigator):  The prosecution 
called OTP Investigator Dean Manning to testify about a 
report he prepared at the request of OTP on mass graves found 
in and around Srebrenica.  Manning has been investigating 
mass graves around Srebrenica for over five years.  He 
testified that 2541 individuals have been found in the mass 
graves.  He noted, however, that this is an extremely 
conservative number because the Serbs dug up and transported 
bodies from primary grave sites using heavy machinery, 
crushing the bodies and making accurate counts very 
difficult.  Milosevic suggested that the majority of the 
bodies found in the mass graves around Srebrenica were those 
of men killed in combat, and he asked the witness to testify 
as to the gender and age of the victims, as well as to 
acknowledge the fighting that occurred in the area.  Manning 
countered Milosevic's assertion by testifying about the 
forensic evidence - noting that many of the victims were shot 
in the back or the head, that their posture indicated that 
their hands were tied, and that they often wore blindfolds 
from the same cuts of fabric. 
 
7. (SBU) Reynaud Theunens (ICTY Military Analyst): The 
prosecution called ICTY military analyst Reynaud Theunens to 
testify about a report he prepared at the request of OTP that 
analyzed the role of the Yugoslav People's Army (JNA) in the 
Croatian and Bosnian conflicts, specifically on its command 
and control of Serbian armies, armed paramilitary and 
volunteer groups.  Theunens testified that the JNA developed 
into a mainly Serb force whose goal was to consolidate 
Serbia's control over Serb-populated regions of Bosnia and 
Croatia. He stated further that this transformed JNA trained, 
supplied, and assumed command of local Serb forces in Croatia 
and Bosnia, reporting that "documentary evidence indicates 
that Serb TO (territory defense) units and staffs operated 
under single, unified command and control with the JNA."  The 
witness further testified that JNA assistance was authorized 
at the highest levels of the JNA army and the Yugoslav 
presidency, which prior evidence has shown was controlled by 
Milosevic. Notably, Theunens provided documentation showing 
that Milosevic received a daily combat report of the army of 
the breakaway Serb republic, Republika Srpska Krajina (RSK), 
which included information on what material support had been 
provided to the RSK by the JNA. 
 
8. (SBU) Theunens also testified about documentation that 
showed that retired and active duty JNA officials served in 
Serb armies in Bosnia and Croatia while continuing to receive 
pay, benefits, and credit for time served from the JNA. He 
went on to testify that JNA support was critical in Bosnia, 
as the breakaway Serb republic, Republika Srpska, had almost 
no independent war production capability.  On cross 
examination, Milosevic tried to characterize the JNA as an 
intermediary that was separating warring factions in Bosnia 
and Croatia, trying to set the JNA apart from the actions of 
the Serb armies and paramilitary units.  He also tried to 
discredit the witness, highlighting his employment by the 
ICTY as motivation for bias.  Ultimately, however, the 
voluminous military documents introduced through Theunens 
provided significant evidence linking Serbia and the JNA to 
the military actions committed by Serb forces in Bosnia and 
Croatia.  The testimony provided the Chamber with a fuller 
understanding of the command and coordination between the JNA 
and the multitude of Serb military, paramilitary, and 
volunteer forces in Bosnia and Croatia.   Most importantly, 
the testimony indicated that Milosevic was far from ignorant 
of this huge military apparatus and was in fact influential 
in its decision-making. 
 
9. (SBU)  General Ferenc Vegh (Expert witness on military 
command and control):  Like Theunens, Hungarian General Vegh 
was called to testify about a report he prepared at the 
request of OTP, which focused on the military command and 
structure of the JNA army.  Vegh is the former commander of 
the Hungarian army, and his credentials include a stint at 
the U.S. Army War College.  The prosecution's primary 
interest in Vegh was his finding that Serb military and 
paramilitary units in Bosnia and Croatia lacked the ability 
to carry out independent military activities.  From passing 
out munitions to local forces, to coordinating sophisticated 
offensives, Serb military and paramilitary forces required 
superior orders from the JNA, which he noted had become a 
tool for Serbia to achieve its political objectives. 
Milosevic's cross-examination broadly attempted to couch the 
JNA's activities as simply "raising the level of combat 
readiness" in light of the proliferation of hostile 
organizations such as the Croatian National Guards Force and 
the Patriot League (an armed coalition of Muslim soldiers in 
Bosnia). It was clear to the Chamber, however, that Milosevic 
was using his cross-examination time to speech-make to the 
gallery (which was packed to capacity for the first time in 
several months due to visiting model-UN teams) about Bosnian 
and Croatian militarization.  Judge Robinson delivered an 
unusual scolding to Milosevic, stating "normally I support 
your requests for time-extensions... I will not do so this 
time." 
 
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Comment 
------- 
 
10. (C)  The Milosevic trial faces a new and very tough 
challenge in the form of Judge May's undisclosed illness.  In 
a courtroom of large personalities, May emerged long ago as 
the dominant personality -- holding the prosecution to 
schedules, keeping Milosevic on a fairly short leash but 
allowing him reasonable room to represent himself, and 
generally maintaining decorum in the face of a difficult 
environment.  His absence would be a significant loss, even 
if a substitute judge were to be appointed.  Moreover, a 
decision to proceed with a substitute judge is subject under 
the Tribunal Rules to an appeal directly to the full bench of 
the appeals chamber.  Even if such an appeal were denied (as 
is more likely than not), the public perception of the trial 
may well be tainted. 
 
11. (C)  In the trial chamber itself, the week presented a 
juxtaposition of the two sides of the Milosevic prosecution: 
On one side, observers saw the sober, careful presentation of 
expert witnesses designed to explain to the chambers the 
complex nature of Milosevic's relationship to Bosnian crimes 
and Belgrade's military relationship with Bosnian Serb 
forces.  On the other, the long-simmering personality clash 
between Nice and Groome continued to roil the prosecution 
team.  The options for Carla Del Ponte, who has tended to 
play one off against the other and thereby contributed to 
this tension, are not appealing: if she removes Nice 
(extremely unlikely), she risks a major media storm, as the 
removal of the public face of the prosecution would prove to 
be a story of some note.  Yet if she removes Groome, she will 
lose the prosecutor most versed in the Bosnia counts -- which 
are, incidentally, the hardest of the indictments to prove. 
 
12. (C) Despite the personnel crises, the still important 
questions concern how the prosecution will rest.  Placing 
General Morillon last on the witness list ensures that the 
prosecutors will leave the chambers with a strong impression 
created by an important witness.  Yet the possibility exists 
that Plavsic's testimony this week could set off fireworks 
that ultimately undermine the prosecution's case.  The 
selection of Plavsic as one of the last witnesses suggests, 
at the least, that some members of the prosecution team are 
anything but confident about some key aspects of their case. 
End comment. 
SOBEL