US embassy cable - 04THEHAGUE498

C O N F I D E N T I A L SECTION 01 OF 05 THE HAGUE 000498 
 
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: 5 YEARS AFTER ICTY CLOSURE 
TAGS: BK, HR, KAWC, NL, PHUM, PREL, SR, ICTY 
SUBJECT: ICTY: MILOSEVIC PROSECUTION LIMPS TO CLOSE ITS CASE 
 
 
Classified By: Deputy Legal Counselor David Kaye per reasons 1.5 (b)-(d 
). 
 
1.  (C) Summary. The Milosevic Prosecution team of the 
International Criminal Tribunal for the Former Yugoslavia 
(ICTY) closed its case in the anti-climactic form of a motion 
to Trial Chamber III on February 25.  The recent melodrama of 
the Milosevic prosecution -- the rancorous internal debates 
over potential witnesses such as Biljana Plavsic, the 
expectations of introducing what some considered "smoking 
gun" documents, the dramatic deterioration in Presiding Judge 
Richard May's health, a return to illness for the accused, 
the near-resignation of lead Prosecutor Geoffrey Nice -- had 
turned the prosecution into what Nice called "a muddle".  The 
Prosecution is now trying to clean its own house and turn its 
attention to wrap-up elements of its case and preparations 
for the defense phase, which the trial chamber scheduled to 
begin on June 8.  The uncertainties of the past weeks 
overshadowed some interesting evidence adduced in the final 
weeks of the proceedings.  End summary. 
 
------------------------- 
The Anticlimactic Closing 
------------------------- 
 
2. (C) Prosecutors filed on February 25 a "notification of 
the completion of its case and motion for the admission of 
evidence in written form" with trial chamber III.  While the 
bulk of the motion deals with some evidentiary wrap-up 
issues, the motion leads off by noting "with great regret" 
the illness and resignation of Judge May, which although 
effective May 31 was announced by President Theodor Meron on 
February 22.  (NB: It is understood that Judge May is no 
longer participating in the trial chamber's substantive 
deliberations and that Judge Patrick Robinson, the next 
senior judge in the trial chamber, is likely to be bumped up 
to preside.)  It went on to suggest that "the resignation may 
pose serious difficulties for the overall timetable of the 
case," though such difficulties "are not entirely 
predictable" at this time.  It suggested that the 
difficulties may delay the start of the accused's case and 
could be due in part to the need of a newly assigned judge to 
become familiar with the case (noting the relevance of Rule 
15bis of the Rules of Procedure and Evidence).  It concluded 
its short introductory section by saying that, "(w)ith these 
consideration in mind and with concern for the due 
administration of justice and judicial economy the Prosecutor 
closes the case by this filing on the basis of all evidence 
already adduced . . ." 
 
3. (U) The trial chamber responded unprecedentedly quickly to 
the motion, suggesting that the kabuki had been rehearsed. 
According to an ICTY press release, the trial chamber 
"confirmed that 'the Prosecution case is hereby closed.'"  It 
made several further noteworthy orders: 
-- The trial chamber ordered that "any motion under Rule 
98bis shall be filed by the Accused or Amici Curiae by 
Monday, 8 March 2004," to which the Prosecution shall respond 
by March 22.  A Rule 98bis motion is a motion for summary 
judgment, according to which the accused/amici may seek 
acquittal on "one or more of the offences charged in the 
indictment". 
-- It required the accused to produce a list of witnesses he 
intends to call and exhibits he intends to offer by April 12. 
-- It scheduled a "pre-defence conference" for May 17, 2004. 
-- It scheduled the commencement of the defense case for 
Tuesday, June 8, giving the accused 150 days to present his 
case.  (At three days per week, the allotment of days amounts 
to nearly one year; based on holidays and other anticipated 
weeks off due to sickness or other difficulties, it should be 
expected that the defense -- assuming use of all 150 days is 
made -- would extend well into the summer of 2005, if not 
beyond.) 
 
-------------------------- 
The Tumult of Recent Weeks 
-------------------------- 
 
4. (C) Senior prosecutors and investigators shared with 
embassy legal officers in recent days their disappointment in 
the closing weeks of the case.  Geoffrey Nice called it "a 
muddle" and said that the past three weeks -- during which he 
vigorously sought a revelation of Judge May's situation to 
the accused -- were the hardest of the two-year-plus trial 
for him.  Because of the internal battles, especially with 
Carla Del Ponte over whether the prosecution had an ethical 
obligation to advise the accused of Judge May's likely 
resignation, he expected as of the end of last week that he 
would resign the case.  May's resignation, however, has put 
that trouble behind them, and he said that he and Del Ponte 
were "in a period of dtente."  Dtente or not, Nice expects 
further friction with Del Ponte, who has participated more 
actively in Milosevic team's trial decisions since the new 
year than she had ever done previously.  For her part, Del 
Ponte told Embassy Legal Counselor that she had "worked well" 
with President Meron on the May situation and that she had to 
show Nice that she was the boss. 
 
5. (C) At the heart of internal troubles on the team was 
Nice's relationship with senior trial attorney (STA) Dermot 
Groome.  While there is little sign that the relationship has 
improved, Groome told embassy legal officer late February 26 
that Del Ponte has asked him to oversee the Bosnia portion of 
the defense case.  As a result, he feels confident now that 
he will remain on the Milosevic team beyond May, when his 
contract expires. 
 
6. (C) Other prosecutors and investigators were disappointed 
with their inability to introduce further evidence into the 
record.  Biljana Plavsic, for instance, had been scheduled to 
testify at the beginning of February, but the accused's 
illness and strenuous debate within the Milosevic team put it 
off to a point where the team realized that it would not be 
possible to call her.  Similarly, there was hope that the 
prosecution would call Carl Bildt; in the absence of such an 
opportunity, the prosecution, with Bildt's apparent consent, 
is likely to ask the trial chamber to call Bildt as a court 
witness. According to STA Groome, a key insider had been set 
to testify this week on Belgrade-Pale connections, while some 
expert testimony by a demographer would have demonstrated the 
"ethnic cleansing" effects of Republika Srpska Army (VRS) 
actions. Some of the evidence, Groome hopes, will be 
introduced during a short rebuttal phase of the proceedings 
following the defense. 
 
---------------------------- 
Looking Ahead to the Defense 
---------------------------- 
 
7. (C) Several members of the prosecution team are now 
looking ahead and preparing for the defense phase.  Lead 
among them is STA Groome, who told emboff that Milosevic 
apparently does intend to submit a witness list of 900 
individuals.  Groome's main interest will be in undermining, 
at a very early stage, the credibility of the witnesses 
Milosevic calls.  He noted that in the Brdanin case, 
prosecutors so effectively undermined the defense witnesses 
that the defense ultimately rested without calling over fifty 
individuals on its witness list.  Groome hopes that he can 
obtain a "demonstration effect" so that Milosevic understands 
that his witnesses are not giving him the help he needs. 
 
8. (C) Groome and others also believe that they will have far 
beyond June 8 until the defense case begins.  Two main 
problems exist: First, it remains unclear when the 
replacement judge for Judge May will join the chamber.  While 
there is some discussion of finding a judge who can "read 
into" the case even before an official appointment, Nice and 
Groome have identified a host of problems with such an 
approach, including funding.  Secondly, a new judge will have 
nearly 50,000 pages of documents to review, following which 
he or she will need to "certify" familiarity with the case. 
Finally, the summer recess would intrude just as the defense 
begins.  All in all, Groome believes the defense case will 
not in fact begin until well into September, if that. 
 
----------------------- 
Final Witness Testimony 
----------------------- 
 
9. (SBU) Despite the tumult of recent weeks, the prosecution 
was able to put on some important witnesses during the final 
days of its case-in-chief, focusing on Srebrenica.  The 
prosecution used witness testimony to establish that 
Milosevic had knowledge of the siege of the city, that JNA 
troops were complicit, and that Milosevic had the control and 
influence to reign in the Bosnian Serbs.  Witnesses during 
the last week of the case included General Phillipe Morillon, 
the French UNPROFOR commander who famously promised the 
Bosnians in Srebrenica that the UN would "never abandon 
them."  Also testifying was the Venezuelan perm rep to the UN 
during the war in Bosnia, who in his testimony sharply 
criticized the UN for not doing more to prevent genocide in 
Bosnia. 
 
10.  (C) Throughout the last week, after a week's 
postponement due to illness of the accused, Judges Robinson 
presided over a Chamber that included only himself and Judge 
Kwan. The only allusion made to Judge May's empty chair was 
Robinson's comment that Judge May was "indisposed" and that 
he and Judge Kwan were sitting pursuant to Rule 15 bis (which 
authorizes that, in light of the illness of a judge for a 
short duration, the remaining judges can continue to hear the 
case for a period not to exceed 5 working days). Robinson was 
somewhat more tolerant of Milosevic's speech-making than May 
had been, periodically interrupting or stating quietly, "it 
is time to ask the witness a question now, Mr. Milosevic." 
Judge Robinson has also been very accommodating to 
Milosevic's requests for more time for cross-examination, 
where Judge May was normally stingy in giving additional 
time.  Still, Robinson showed some skill in controlling 
Milosevic and seeing the proceedings through the completion 
of this phase. 
 
11.  (SBU) Testimony of General Philippe Morillon (Former 
Commander of UNPROFOR): In his capacity as commander of 
UNPROFOR between 1992 and 1993, Morillon went to Srebrenica 
to assess the humanitarian situation of the tens of thousands 
of Muslim civilians who had fled there to escape the Serb 
offensive in surrounding areas.  Morillon made the visit to 
Srebrenica in March 1993, when the city was surrounded by 
hostile Bosnian Serb forces.  Following his visit, Morillon 
met with Milosevic in Belgrade and warned him that a terrible 
tragedy would take place in Srebrenica if Milosevic did not 
intervene.  (Morillon refused to be specific about how he 
know a tragedy was imminent, but during that period the 
Muslims could no longer hold their defensive positions 
against the Serbs, and the town was also on the brink of 
starvation).  According to Morillon, Milosevic was able to 
clamp down on Bosnian Serb military commander Ratko Mladic, 
whose troops were poised to take the town.  The implication 
is that Milosevic had some level of authority over Bosnian 
Serb leadership and was able to temporarily avert 
Srebrenica's fall to the Bosnian Serbs.  Milosevic countered 
that it was Mladic who was responsible for the siege of 
Srebrenica and the subsequent massacre of its people in 1995, 
to which Morillon retorted, "Mladic obeyed none but himself, 
but when I went to Belgrade, I went to save the people of 
Srebrenica, and he was still obeying you.  He stopped obeying 
you.  But thanks to you, I was able to meet with him in 
Belgrade." Morillon also testified that he sought Milosevic's 
aid to stop the Bosnian Serb shelling of Sarajevo 
temporarily.  For the prosecution, his testimony seemed to be 
a mixed blessing because, while he was clear that Milosevic 
initially exerted influence over Mladic in 1993, he was 
muddled over whether Milosevic could control Mladic in the 
lead-up to the Srebrenica massacre of 1995. 
 
12.  (C) Morillon's testimony was both compelling and 
emotional.  When he traveled to Srebrenica in March 1993, he 
was effectively taken hostage by the Bosnian leadership there 
and released only when he promised to go to Belgrade and 
negotiate an end to the Serb assault.  While in Srebrenica, 
he gained notoriety by unilaterally promising UN support to 
the besieged population, walking onto a public balcony and 
proclaiming into a loudspeaker "I will never abandon you", an 
act which ultimately forced the UN to designate Srebrenica as 
a UN "safe haven."  Morillon's anger and feeling of personal 
responsibility for the massacres in July 1995 around 
Srebrenica was palpable in his testimony.  During cross 
examination, for example, he angrily told Milosevic, "History 
will tell that you are one of those responsible for having 
sowed this fear, for having armed, for having pushed those 
who were unleashed, became enraged and escaped your control." 
 
13. (SBU) Diego Enrique Arria (Venezuelan permrep to the UN): 
Arria served as Venezuela's permanent representative to the 
UN during the war in Bosnia.  The prosecution's primary 
interest in Arria was his testimony that Milosevic knew about 
extremely inhumane conditions in Srebrenica.  Through Aria, 
the prosecution introduced into evidence numerous reports 
reviewed by the UN Security Council (UNSC) that documented 
inhumane conditions, ethnic cleansing, and other crimes 
against the Bosnian Muslims in Srebrenica, including letters 
from the UN High Commissioner for Refugees and a ruling from 
the ICJ requiring the Federal Republic of Yugoslavia to take 
immediate action to prevent genocide from occurring in 
Bosnia.  Arria testified that the Yugoslav ambassador to the 
UN prepared informed reports about this documentation, 
indicating that all of the information reviewed in the UNSC 
was available to the accused.  The testimony serves as 
evidence that Milosevic had notice that the Bosnian Serbs 
were on the brink of committing genocide in Srebrenica in 
1993; it also serves as a serious condemnation of the UN and 
the international community, who were also on notice about 
the imminence of the genocide (Arria characterized it as 
"slow motion genocide") but allegedly remained largely 
indifferent to the conflict. In the course of his testimony, 
Arria made harsh accusations against the UN, stating that the 
international community paid more attention to the Iraqi 
invasion of Kuwait and did nothing to protect Bosnia because 
it feared the presence of a Muslim state in Europe. 
------- 
Comment 
------- 
 
14. (C) The Prosecution case against Slobodan Milosevic ended 
with a barely audible whimper.  Prosecutors were too busy 
licking their wounds from bruising internal battles while the 
remaining Milosevic investigators (and STAs on other teams) 
could only shake their heads in disbelief at the 
self-destructive antics.  While the team appears to have 
moved into a general period of, in Nice's word, dtente, the 
poor handling of the closing weeks does not bode particularly 
well for the next phase of the case.  On the other hand, 
Groome's remaining on the team would appear to provide the 
team with a vision and the wherewithal to deal with the 
dozens of witnesses Milosevic is likely to call to his 
defense.  One can only hope that Nice and Groome in 
particular can find an m.o. according to which they can 
operative effectively. 
 
15. (C) Beyond the prosecution, however, the chambers now 
face a new set of priorities, the resolution of which could 
have a major impact in how the trial is viewed beyond The 
Hague.  First among them is finding a replacement for Judge 
May.  Just how that will be done in the light of an 
end-of-May effective date for the resignation is unclear, and 
we have some concern that it has not been well thought 
through. For instance, if his resignation is only effective 
May 31, it remains difficult for a judge to be selected 
before then to replace him on the trial chamber.  As a 
result, one can expect delays well beyond June as a new judge 
is selected (or elected by the UN General Assembly) and then 
familiarizes himself or herself with the thousands of pages 
of transcripts and evidence introduced since the trial began 
over two years ago.  Moreover, one can only speculate as to 
how Milosevic or the amici will respond to May's departure. 
The trial may continue "only . . . with the consent of the 
accused," according to Rule 15bis, which Milosevic is 
unlikely to give in light of his long-stated non-recognition 
of the Tribunal's legitimacy.  In that case, the remaining 
judges may continue the trial "if, taking all the 
circumstances into account, they determine unanimously that 
doing so would serve the interests of justice."  Such a 
determination is subject to appeal "by either party," and one 
might expect that the amici will be given leave to make such 
an appeal if Milosevic does not do so.  In any event, the 
June start-date of the defense case would appear unrealistic. 
 
16. (C) Even apart from the final days of crisis at the 
Tribunal, observers are already assessing whether the 
prosecution did what it had to do to obtain a conviction on 
some or all of the counts of the indictment.  Some clarity in 
this respect may come with the summary judgment motion likely 
to be filed by the amici and the response to be filed by the 
prosecution, giving observers a useful opportunity to see 
whether the chambers believe the prosecution made out at 
least a prima facie case on key counts of the indictment. 
(Even here, however, May's departure raises a concern as to 
whether a two-judge chamber can rule on the summary judgment 
motion, or whether judgment on the motions may be delayed 
until long after a replacement judge comes on board.)  Many 
consider the Kosovo case to have been made exceptionally 
well, the Croatia case somewhat less so, and while the Bosnia 
case was also well-done, it presented the prosecution with 
its most difficult evidentiary tasks of all. 
17. (C) Nice in particular is fond of reciting his concern 
for the place of the Milosevic prosecution in the history 
books.  One hopes that his prosecution team will use the 
months ahead not only to reflect on the history of the 
trial's close, but also whether there are any lessons that 
they may apply to conclude the case in a less rancorous, more 
effective way. 
SOBEL