US embassy cable - 04THEHAGUE2678

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002678 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS, 
EUR/SCE - ENGLISH/GREGORIAN/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: MILOSEVIC TRIAL PICKS UP WHERE IT LEFT OFF 
 
 
Classified By: Deputy Legal Counselor David Kaye per 1.5(d). 
 
1. (SBU) Summary. The trial of Slobodan Milosevic before the 
International Criminal Tribunal for the former Yugoslavia 
(ICTY) resumed on October 12 after a one-month hiatus, the 
bulk of its time devoted to a status conference in which 
assigned defense counsel Steven Kay updated the court on his 
ongoing (and mostly futile) efforts to bring witnesses to 
testify at the court.  Kay is in the process of preparing 
applications for subpoenas.  Meanwhile, the appeals chamber 
will hear arguments October 21 on Milosevic's interlocutory 
appeal of the order assigning him counsel. End summary. 
 
2. (SBU) The resumed defense case began with defense witness 
Franz Josef Hutsch, a German war correspondent and former 
major in the German Army, who gave testimony about his time 
as an embedded reporter with the KLA. Hutsch described the 
KLA command structure, uniforms, and armaments, but went on 
to testify that between 80 and 120 KLA officers were of other 
nationalities, particularly of Arab descent, and were 
recruited in increasing numbers to work with individual 
brigades. Much of his testimony described what he believed to 
be the KLA's strategy of provoking Serb police and military, 
expecting to elicit excessive retaliation. At the conclusion 
of Kay's examination, Milosevic was given the opportunity to 
question Hutsch but refused and said he would re-call Hutsch 
once his right to represent himself was restored. 
 
3. (SBU) In the status conference on October 13, Kay informed 
the court that his staff had contacted over 150 witnesses on 
Milosevic's list to seek their testimony. As of September 28, 
the date of the defense's most recent court filing on the 
topic, 92 potential witnesses had been contacted. Since then, 
the number has risen to over 150, with the defense team using 
all known telephone numbers, email addresses, and physical 
addresses. Kay pointed out that reaching people by telephone 
has been difficult, but the defense has gotten through to 
over 130 potential witnesses. Of these, a &large number8 
refused to testify. 
 
4. (SBU) Of those refusing to testify, some said they would 
reconsider after the appeals chamber rules on the assignment 
of defense counsel to Milosevic, but the majority objected on 
principle and say they will not testify regardless of the 
outcome of the interlocutory appeal. Still others, Kay said, 
were surprised to find they were on the witness list and 
protested that they had nothing relevant to contribute, a 
position Judge Bonomy said was a legitimate reason for not 
testifying. Judge Robinson pressed Kay on whether those 
refusing to testify pending the outcome of the appeal would 
appear after the appeal, or if their testimony was contingent 
on a particular outcome. Kay was uncertain. 
 
5. (SBU) In addition to the 150 potential witnesses contacted 
directly, Kay has compiled a list of 20 potential witnesses 
whom he is contacting through diplomatic channels and whose 
names he has provided to the court in an ex parte filing. 
These people, described as representing a good cross-section 
of the case, are "internationals" and "insiders" and 
primarily state officials. He has sought the assistance of 
the ICTY Registry and has asked the officials' respective 
governments to ensure their cooperation, but pointed out to 
the trial chamber that the process is now beyond his control. 
 
6. (SBU) Kay also used the status conference to combat false 
statements about the conduct of the trial. The first was the 
allegation that defense counsel had bought the witnesses who 
have so far appeared. Calling it "ridiculous," Kay actually 
elicited a joke from Judge Robinson about the amount of money 
the defense team has. But he went on to address a more 
pervasive story circulating: that Milosevic has instructed 
his witnesses not to appear. Of the witnesses who have 
appeared, Kay reported that none were encouraged not to 
testify by Milosevic.  Prosecutor Geoffrey Nice objected to 
this point, recalling that Milosevic previously in open court 
expressed his wish that his witnesses not appear. Nice went 
on to encourage the court to pose the question directly to 
Milosevic so that he might set the record straight. The court 
did not respond to this suggestion. 
 
7. (SBU) Given the chance to speak at the status conference, 
Milosevic railed against his counsel and the court, saying 
his counsel's examination of the witnesses was inadequate and 
that the court's order to impose counsel had no legal 
validity "except here, where the law is not abided by or 
respected."  Judge Robinson responded sternly, saying gaps in 
Kay's examination were on Milosevic's head because Milosevic 
was each time given the opportunity to question the witnesses 
and each time refused, a decision that Judge Robinson said 
was "beyond his comprehension."  In response to Milosevic's 
protest that the entire examination was so lacking that he 
could not fix it with a few questions, Judge Robinson 
responded strenuously again, pointing out that it is 
Milosevic's prerogative to instruct Kay and build the case as 
he sees fit. 
 
8. (SBU) Kay is in the process of preparing applications for 
compulsory orders to compel witnesses to testify (i.e., 
subpoenas). He informed the court that he hoped to file the 
applications on Thursday, October 14, and the court expressed 
the possibility of a hearing on the matter on Monday, October 
18. 
 
9. (C) Comment: The Milosevic defense case picked up this 
week just where it left off a month ago: a marginal witness, 
defense counsel,s hand-wringing over the difficulty of 
bringing witnesses to The Hague, complaints by the accused 
that he is being denied his rights, tough responses by the 
trial chamber, and an outstanding appeal.  At this rate, the 
prosecution team's private predictions of an early conclusion 
to the case appear reasonable.  The one thing that could 
change the equation is the appeals chamber: if, for instance, 
the chamber upholds the imposition of counsel (as is widely 
expected) but modifies the modalities, giving Milosevic more 
control over his defense, one could expect many witnesses to 
agree to participate.  The public hearing by the appeals 
chamber next week may shed some light on its thinking, and 
the future course of this trial.  End comment. 
SOBEL