US embassy cable - 04THEHAGUE1565

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 001565 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE - 
STEPHENS/MITCHELL, L/EUR - LAHNE, L/AF - GTAFT. INR/WCAD - 
SEIDENSTRICKER/MORIN; USUN FOR ROSTOW/WILLSON 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY 
TAGS: BK, HR, KAWC, NL, PHUM, PREL, SR, ICTY 
SUBJECT: ICTY: COURT REJECTS ONE THIRD OF ALLEGATIONS 
AGAINST MILOSEVIC BUT FINDS SUFFICENT EVIDENCE TO CONTINUE 
TRIAL ON ALL MAJOR COUNTS 
 
REF: A. (A) WWW.UN.ORG/ICTY 
     B. (B) THE HAGUE 985 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (C) Summary:  The case against Slobodan Milosevic before 
the International Criminal Tribunal for the former Yugoslavia 
(ICTY) crossed two key mileposts last week.  On June 16, the 
Trial Chamber issued its decision on the amici curiae,s 
(friends of the court) motion seeking the dismissal of 
numerous charges against the accused.  While the Court found 
that the prosecution failed to provide sufficient evidence 
for roughly 130 of over 400 specific allegations against the 
Accused, it refused to dismiss any of the sixty-six counts 
against Milosevic.  As a result, counts for genocide, crimes 
against humanity and war crimes still stand.  The decision, 
moreover, found sufficient evidence of a joint criminal 
enterprise in which Milosevic participated, an essential 
finding for the prosecution given the dearth of evidence 
directly linking Milosevic to specific criminal acts.  A 
defense status conference on June 17 marked the first 
official appearance of Judge Bonomy (the replacement to Judge 
May) and a solid first performance by Judge Robinson as 
presiding judge.  The conference showed the Trial Chamber 
walking a careful line between efficient management of the 
defense case and ensuring that it does not encroach upon the 
Accused,s rights at trial.  The Chamber rejected 
Milosevic,s plea for additional time to prepare his case, 
declined to consider whether to subpoena witnesses and 
documents from the U.S. and other governments absent 
additional steps and submissions by Milosevic, and confirmed 
that the defense phase of the trial would commence on Monday, 
July 5.  End summary. 
 
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Motion to Dismiss:  A Victory for OTP 
--------------------------------------------- --- 
 
2. (SBU) On March 3, the amici curiae filed a motion for 
acquittal under Rule 98 bis of the Tribunal Rules of 
Procedure and Evidence with respect to roughly 200 of the 
more than 400 specific allegations against Milosevic.  (NB: A 
Rule 98 bis motion is similar in most respects to a summary 
judgment motion in U.S. jurisdictions.  According to the 
rule, the trial chamber in response to such a motion may 
issue a judgment of acquittal on some or all offenses "if it 
finds that the evidence is insufficient to sustain a 
conviction on that or those charges."  A dismissal of a 
challenge does not, however, mean that the trial chamber will 
convict on a particular count; it merely confirms that the 
prosecution has presented enough evidence to support 
conviction on a particular allegation absent contrary 
evidence introduced during the defense phase.  A further act 
of judging, of weighing whether the evidence meets the 
"beyond a reasonable doubt" standard for a criminal 
conviction, only comes following the defense case.)  The 
amici argued that an armed conflict did not exist in Kosovo 
prior to March 24, 1999, requiring a dismissal of all 
allegations related to the period before that date in Kosovo; 
the charges related to the conflict in Croatia between 
January 15 and May 22, 1992, should be dismissed because 
there was no international armed conflict during that period; 
the genocide charges related to Bosnia should be dismissed 
for lack of evidence of the accused,s relevant actions or 
specific intent to commit genocide; and roughly 200 separate 
allegations related to specific crimes should be dismissed 
for insufficient evidence to sustain a conviction. 
 
3. (SBU) In a 144-page ruling (available at ref A), the Trial 
Chamber refused to dismiss any of the sixty-six counts (which 
are made up of roughly 400 underlying allegations) against 
Milosevic.   In particular, the chamber found sufficient 
evidence of an armed conflict in Kosovo prior to March 24, 
1999 and sufficient evidence of Croatian statehood by October 
8, 1991, leading it to reject the amici,s arguments related 
to grave breach charges in Croatia.  The Trial Chamber did, 
however, dismiss roughly 130 of the allegations related to 
specific crimes that were associated with a number of the 
indictment counts. 
 
4. (C) Many observers were waiting to see whether the chamber 
would uphold the genocide counts of the Bosnia indictment, 
long seen as among the weakest elements of the prosecution,s 
case.  The chamber first found sufficient evidence to sustain 
a conviction on genocide charges, saying that it "could be 
satisfied beyond reasonable doubt that there existed a joint 
criminal enterprise, which included members of the Bosnian 
Serb leadership, whose aim and intention was to destroy a 
part of the Bosnian Muslim population, and that genocide was 
in fact committed" in a number of municipalities.  More 
importantly, it said that it "could be satisfied beyond 
reasonable doubt that the Accused was a participant in the 
joint criminal enterprise . . . and that he shared with its 
participants the aim and intention to destroy a part of the 
Bosnian Muslims as a group".   In reaching this conclusion, 
the chamber pointed to Milosevic,s leadership role among all 
Serbs; his advocacy of "greater Serbia"; the support of 
Serbia to the Bosnian Serbs; the accused,s relationship with 
Bosnian Serb political and military leaders, and his 
authority and influence over them; his "intimate knowledge" 
of events in Bosnia; and the scope and nature of the crimes. 
 
5. (C) Of the three indictments, the Kosovo case best 
survived the ruling, with the Court dismissing all objections 
lodged by the amici.  By contrast, the court dismissed 
roughly 125 (of 300) specific allegations covered by the 
Bosnia indictment related to detention facilities, forcible 
transfers and most of the Sarajevo sniping and shelling 
incidents.  Similarly, the court dismissed roughly 5 (of 55) 
specific allegations related to the Croatia indictment.  At 
several points throughout the judgment, especially concerning 
Bosnia, the trial chamber found that U.S. witnesses 
(especially General Wesley Clark, but also former Ambassadors 
Galbraith and Okun) and documents (not all of which have been 
publicly identified as having been made available by the USG) 
provided key support for the prosecution case. 
 
6. (C) Despite the loss of roughly 130 of the specific 
allegations of crimes, the decision on the whole seems to 
bear out Senior Trial Attorney Dermot Groome,s assessment 
that it represents a "huge victory" for OTP.  Groome said 
that OTP had conceded the lack of evidence for most of the 
specific allegations dismissed by the chamber.  The retention 
of the genocide count in particular marks a significant 
victory for OTP. That said, the judgment does not mean that 
the prosecution case has been proven; rather, it demonstrates 
that the prosecution was able to show that, in the absence of 
contrary evidence presented by the defense, the evidence 
could sustain a conviction.  It remains for the trial 
chamber, following the defense case, to weigh the evidence 
and determine whether it actually meets the much higher 
standard of proof beyond a reasonable doubt required in such 
a criminal case. 
 
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Status Conference:  Gearing up for the Defense 
--------------------------------------------- ------------- 
 
7. (C) The pretrial conference on June 17 was an important 
milestone in the Milosevic case, both substantively and 
procedurally.  (NB: The "Omnibus Order on Matters Dealt with 
at the Pre-Trial Conference" provides an overview of the 
decisions reached at the conference and is available at ref 
website).  The conference was attended by Milosevic, two 
amici, the new liaison between the chamber and the accused, 
and other court officers, while a full press contingent was 
in the gallery.  Only lead prosecutor Geoffrey Nice and Chief 
Prosecutor Carla Del Ponte were present at the prosecution,s 
table.  Conspicuously absent were senior trial attorneys 
Dermot Groome and Hildegard Uertz-Retzlaff who had led the 
Bosnia and Croatia portions of case respectively.  (NB: 
Embassy legal officers understand that Groome and 
Uertz-Retzlaff will be called upon to help "if and when 
 
SIPDIS 
necessary." Del Ponte, in turn, has indicated that she will 
actively participate in the defense phase, saying to her 
staff, "I want to have fun with this witness list."  Comment. 
 Neither development is positive.  End comment.) 
 
8. (SBU) The Court maintained July 5 as the firm start date 
for Milosevic,s defense, with 150 sitting days allotted to 
his case.  Milosevic complained bitterly and unsuccessfully 
about the lack of time he had to prepare witnesses and 
present his case.  He claimed, with support from the Amici, 
that he had been unable to work at all for 41 days of the 
preparation period and that that his work had been limited by 
physician orders to three days a week.  The Court extended 
his opening statement to four hours, but left other aspects 
of timing unchanged.  The Court,s only acknowledgment of 
Milosevic,s complaints was a vague reference to reserving 
the right to be flexible during the course of Milosevic,s 
presentation if it appears that a lack of preparation is a 
valid concern. 
 
9. (C) The hearing was the first public appearance of Judge 
Bonomy (the English judge who replaced the ailing Judge May), 
and the first time that Judge Robinson (the Jamaican judge 
who assumed May,s role as presiding judge) ran the 
courtroom.  Bonomy participated in the proceedings and was 
evidently up-to-date on the material.  (Comment: In 
conversations with our British colleagues we learned that 
Bonomy has a reputation for speaking his mind and running a 
very tight courtroom. End Comment).  Judge Robinson performed 
admirably, keeping Milosevic on a short leash, though 
providing him with greater freedom to speak than Judge May 
likely would have. 
 
10.  (SBU) The primary substantive issue of the conference 
concerned Milosevic,s confidential and sealed witness list. 
As described in ref B, Milosevic,s list includes roughly 
1600 names (five times more than that called by the 
prosecution), of which only 300 or so are named in the 
document.  The OTP complained that there was not enough 
detail describing the witnesses and their relevance to the 
case to allow for effective preparation of cross-examination. 
 (Comment: Some of the witness descriptions were extremely 
"exiguous," in Nice,s term ) one witness was labeled simply 
as an "academician," with no reference as to who he was or 
the reason he was being called to testify. End Comment).  The 
Court rejected the prosecution,s request for more detail, 
though it did require Milosevic, "where possible," to provide 
the birth date of each witness.  The Court also ordered 
Milosevic to produce within seven days a list of his first 50 
witnesses and the likely order in which they will be called. 
The Court further ordered Milosevic to present his evidence 
"in an orderly manner, bringing witnesses on an indictment by 
indictment basis, except for overlapping witnesses." 
 
11. (SBU) Milosevic pressed the Court to subpoena various 
witnesses (including former President Clinton, Tony Blair and 
Gerhard Schroeder) and documents (in particular those held by 
"foreign intelligence organizations").  The Court indicated 
that it was "not in a position to consider the Accused,s 
oral application for the production of documents or 
information from States, and that he should make his 
application in writing and comply with any other procedural 
requirements."  Milosevic has thus far refused to submit any 
written requests to the Court under his own hand (as a matter 
"of principle") and thus the exact status of Milosevic,s 
requests was left unclear.  The Court also ordered Milosevic 
to indicate whether he intends to testify during the defense 
phase and, if so, when and for how long. 
 
------------ 
Comment 
------------ 
 
12. (C) The trial chamber,s Rule 98 bis judgment marks the 
most significant milestone thus far in the trial of Slobodan 
Milosevic.  In effect, it is the trial chamber,s first 
reaction to the prosecution case.  As such, the prosecution 
has reason to be happy, though not overconfident.  The trial 
chamber rejected dozens of specific incidents supporting 
counts against the accused, but these were incidents for 
which the prosecution largely conceded its failure to provide 
sufficient, if any, evidence.  The retention of the genocide 
counts -- particularly the notion that Milosevic was involved 
in a joint criminal enterprise to commit genocide -- suggests 
that the prosecution succeeded in painting a picture of a 
defendant who was much more involved in the Bosnian war than 
he has admitted.  That said, the 98 bis judgment reflects the 
trial chamber,s reactions to a somewhat modest challenge to 
the prosecution case.  Typically, one expects a defendant to 
challenge all charges with real vigor; here the defendant 
refused to participate, let alone challenge the charges in a 
legally (as opposed to politically) recognizable way and it 
was left to the amici to pose a limited challenge to the 
prosecution,s case. 
13. (C)  Milosevic,s approach gave no new indication that he 
would present serious evidence to undermine the specifics of 
the prosecution case.  He continues to obsess over the senior 
leadership of governments that dealt with him in the 1990s, a 
tack that may very well further his domestic political 
ambition to paint himself (and Serbia) as a victim of the 
West, particularly NATO and its member states.  But a 
political case leaves him without any defense against the 
specific charges brought against him.   The summary judgment 
motion gives some bait -- a roadmap for his defense, an 
indication of what he needs to target -- but his performance 
at the pre-defense conference gave no indication that he,ll 
rise to take it. 
 
14. (C) Beyond the questions of proof and defense, the status 
conference demonstrated that Milosevic will play the 
"fairness" card at every opportunity.  To say that the trial 
is unfair adds an entirely different layer of argument to his 
ongoing rejection of the Tribunal,s authority to try him. 
It helps paint himself as the victim against a well-resourced 
prosecution, and his illnesses serve to buttress the point. 
Milosevic is likely to play to the trial chamber on this 
theme repeatedly, testing a presiding judge who has, in the 
past, seemed most willing to indulge Milosevic,s claims of 
unfairness.  It will put the trial chamber in a difficult 
position of balancing the tension between countering any 
perception of unfairness to the defense and trial efficiency. 
SOBEL