Belgrade Accused of Obstructing Hague

The chief prosecutor in the Slobodan Milosevic trial, Geoffrey Nice, didn’t mince his words in the courtroom on June 3 when he assessed Serbia and Montenegro’s cooperation with The Hague.

For all of the talk of Belgrade’s new willingness to aid the tribunal, he said Serbia’s “pattern of non-cooperation and obstruction” remained unchanged when it came to handing over official documents.

Ever since the Milosevic trial began in February 2002, the prosecution has sought access to government documentation on the financing and chain of command of the Yugoslav army and paramilitary groups. For months the authorities denied access to those documents claiming that they could not be released for national security reasons, or that they had been destroyed by NATO bombing.

In December last year, the prosecution requested that the trial chamber order Belgrade to grant them access to state archives. Tribunal judges were reluctant to do so, and instead scheduled a hearing at which both the prosecution and the government of Serbia and Montenegro were to present their cases.

At that hearing, which took place on March 10, the prosecution presented a list of 100 priority documents, including notes and tape recordings of between 60 and 70 meetings of the Supreme Defence Council, the body in charge of Yugoslavia’s and now Serbia and Montenegro’s armed forces. Milosevic was one of three members of the council.

The trial chamber gave Belgrade two months either to produce the documents or to explain why it could not do so.

Two days after the hearing, Serbian prime minister Zoran Djindjic was assassinated. Tribunal officials at first feared the premier’s death would be a blow for the war crimes process, because Djindjic, a pragmatist who wanted Serbia to have access to Western aid, had been able to engineer some support for The Hague.

Instead, Djindjic’s killing paved the way for unprecedented assistance for the tribunal. The Serbian government announced that it would extradite all suspects wanted by The Hague by the end of the year, and introduced legislation to create its own court to try war crimes – actions that provoked the tribunal’s chief prosecutor, Carla Del Ponte, to declare that a “new era of cooperation” had dawned in Belgrade.

But despite these moves, Nice told the court that two and half months after the tribunal’s hearing, Belgrade had not provided a single document on the priority list.

“Documents are the key to cases of this kind, without any doubt,” Nice told the court. “One only has to consider what was available at Nuremberg where 21 people were tried in nine months,” he said.

The Nuremburg trials proceeded efficiently because prosecutors had access to Nazi archives. By contrast, Nice said, his team only had minimal access to selective, non-essential documents – a situation that was clearly handicapping the prosecution as it ran out of time.

“I am told that steps are being taken to respond to our requests, but despite everything we’ve done, we’re still waiting,” he said, clearly exasperated.

Citing the “obvious need” for these documents and their “great importance”, Nice again asked the court to order Belgrade to provide the documents the tribunal had been seeking “for months and years.”

Representatives of the government of Serbia and Montenegro responded angrily to Nice’s allegations and requested that the court dismiss the prosecution’s request.

Speaking in polished English, Vladimir Djeric, an advisor to the foreign ministry of Serbia and Montenegro, accused the prosecution of “inflammatory rhetoric” and “groundless assertions.” He depicted his government as one that was doing everything that it could to aid the tribunal under difficult circumstances.

“To suggest that the government was withholding evidence is quite cynical,” he said.

On the face of it, Djeric’s claims sounded reasonable. But as he tried to press his case further, his excuses for not providing the sought-after documents seemed flimsy.

As proof that Belgrade was cooperating with The Hague, Djeric read off a list of code numbers which he said corresponded to documents that his government had provided the prosecution. The prosecution countered that none of the documents he listed were on their top 100 requests.

Although Djeric admitted that Belgrade had not provided access to all the documents that the prosecution requested, he claimed this was due to “certain legal issues” and differing “interpretations of facts.”

Djeric went on to claim that the prosecution’s allegations were politically motivated and criticised it of being imprecise in its requests. As an example, he said the prosecution requested some documents from the Serbian government archives related to financial matters. “My government looked for these documents in the archives and couldn’t find them. The prosecution waited for two and half months before saying that perhaps we should look in the ministry of finance,” he said.

That explanation did not impress the trial chamber. Before Djeric could go on with his argument, judge Patrick Robinson interjected, “May I ask you - before the prosecution informed you where those documents were, did the government look for the documents in the Ministry of Finance since the documentation sought was of a financial nature?”

Djeric appeared to backpedal, stating that while the documents were “of a financial nature” they were not “exclusively financial”.

Next, Djeric accused the prosecution of submitting enormous requests in an effort to go on “a fishing expedition” in the state archives in hope of turning up something useful. He said that Serbia was willing to provide limited access to the archives, but that it wanted the prosecution to understand that this was a courtesy, not a right.

“The prosecution has been able to work for the past 10 years without access to documents,” he said.

These accusations rattled Nice. “Our request is not remotely a fishing exercise, it is a proper investigation,” he countered. He added that while prosecutors have been able to work without access, they were under fire for prolonging trials.

Nice then went on to say that if the documents were not provided, the legal proceedings of the tribunal could be jeopardised. “Without those documents, whatever happens here can be unpicked when those documents are revealed,” he warned.

Nice acknowledged that there were difficulties surrounding the granting of access to the archives, but he said there were ways of addressing them with “protective measures.” For example, he said the documents could be revealed in closed session so as not to endanger national security.

“What is clear is that there are enormous resources available to Serbia and Montenegro, yet the government has not provided any of the 100 documents on the priority list,” Nice said.

Courtroom observers speculated that Serbia and Montenegro’s determination to prevent the tribunal from gaining access to its archives is intended not so much to stymie the tribunal’s work, but rather to prevent the archives from becoming public. Bosnia and Croatia have filed an action against the joint state’s previous incarnationYugoslavia at the International Court of Justice, accusing it of genocide, and access to the archives could strengthen their case. [See Belgrade NATO Lawsuit “Irrational”]

Stacy Sullivan is IWPR project manager in The Hague.