Comment: Protected Witnesses Endangered

Before beginning his cross-examination of protected witness C-013, who gave a major part of his testimony in camera, Slobodan Milosevic came out with a customary diatribe against "the medieval method of using secret witnesses and closed sessions".

Judge May reminded him, not for the first time, about the reasoning behind for witness protection. Milosevic then snapped that he "knew the reasons but did not accept them, because such practice allowed the witnesses to tell a bunch of lies".

At which point, as he has done in similar situations, the accused started off aggressively with questions calculated to reveal the identity of the protected witness, forcing May to order a closed session.

Witness C-013 is a Croatian Serb and has good reasons to fear the disclosure of his identity. Before the war in Croatia, he worked for police in Vukovar, eastern Slavonja. During the conflict, Serbs seized the region, and he became an officer in their rebel force. When the area was reintegrated in 1998, he started working for the Croatian police once more.

He testified how the Yugoslav army, JNA, and state security (secret police) of Serbia secretly transported weapons across the Danube and armed the Serbian population in Croatia; about a joint operation with the JNA, local territorial defense and paramilitary formations from Serbia in eastern Slavonija; and the detention, killing and expulsion of Croats and the looting of their homes.

He also spoke about the role of several individuals named in the Croatian indictment against Slobodan Milosevic as participants in a joined criminal enterprise. These include Jovica Stanisic, head of state security service of Serbia; Goran Hadzic, the prime minister of the Serb-held eastern Slavonja and Zeljko Raznatovic, otherwise known as Arkan, the commander of notorious Tigers paramilitary unit.

He said that he was present when in the middle of September 1991, Stanisic and his group came to Dalj, the seat of government of the rebel Serb entity in eastern Slavonija. He said the state security boss ordered an urgent meeting of all local civilian and military officials, as well as JNA representatives, and swore at them angrily because they had not taken Vukovar yet.

C-013 also testified how on two occasions Arkan took about forty Croatian civilians from the prison in Dalj. They were never to be seen again.

Later, when he returned to the Croatian police, the witness found out that two of the detainees managed to survive by paying Arkan and Hadzic "one or two million German marks".

There are official documents from the Dalj police station - whose authenticity the witness confirmed before the court - detailing both occasions when the prisoners were taken away.

It is not known how Milosevic contended this testimony and how successful he was, because Judge May ordered a closed session every time there was a danger the identity of a protected witness might be disclosed.

However, this does not mean that C-013 will be safe after leaving the witness bench with his identity undisclosed.

While there’s been deliberate or accidental leaking of the identity of protected witnesses in public court sessions - as in case of C-061, when both the accused and the judge made the mistake of addressing him as Mr Babic - closed sessions have not been immune to this either.

Prosecutor Geoffrey Nice revealed as much last week, shortly after the completion of C-013’s testimony.

He reminded the court that recently, in a closed session, there was a discussion of protective measures for the witness who feared not for his, or her, own security, but for that of his, or her, children.

The information about the fears of this witness, Nice said, had been made available only to the limited number of Office of The Prosecutor, OTP, members dealing with the witness, the court, its officer, the amici and the accused.

Nice continued that within a day of this information being provided in closed session “threats from all too dangerous a source were communicated to the witness via the spouse of the witness, focusing exactly on what had been the concerns - namely the children.

“The witness in consequence is in grave fear, and is no longer available to us or to the court. Yet again the reality is revealed that there are forces at work

impeding the evidence coming before this court."

At first, Milosevic indignantly rejected the very idea that he or any of his collaborators might be involved in such "dirty deeds".

And the following day, he accused the prosecutor of making it all up in order to justify a change in the sequence in which witnesses appear in court.

Judge May said that the trial chamber took the breach of confidentiality “extremely seriously indeed” and would order "a thorough investigation to determine how the matter got out".

But confidential information has been getting out continually since the beginning of Milosevic trial, and especially since the presentation of evidence in for the Croatian phase of the case.

Before receiving official warning from the tribunal that they might be punished for contempt of court, parts of the Serbian media simply raced to disclose the identities of protected witnesses on the basis of information they received from "mysterious sources".

One Montenegrin newspaper published a complete statement given to the prosecution by one of the witnesses.

The editor-in-chief of the title, which is close to local pro-Milosevic forces, said he found the 34-page document in his mailbox. The prosecution has launched an investigation in order to determine how this happened.

According to the prosecution, the only persons who had access to the BCS (Bosnian-Croatian-Serbian) version of the statement were amici - only one of whom can speak Serbian - as well as the accused.

The leaking of identities or witness statements to the media is one form of intimidation, aimed at slowing down or interrupting presentation of prosecution evidence.

Much more serious are the threats to witnesses, their families and even - as demonstrated in this particular case - their children.

The scope of these threats, according to what has been said about them in public so far, is very broad.

In addition to the witness who feared for his children, there were others who decided not to testify in the trial of Milosevic because of threats directed at them and their families.

The most notable example is witness K-12 who came to The Hague in June last year, and subsequently refused to testify.

At first the judges found him guilty of contempt of the court, but several months later they changed their mind because they discovered that he was exposed to real and serious threats.

According to a pre-trial prosecution brief, K-12 was expected to testify about removal of evidence of Kosovo crimes - the transport of corpses from mass graves there to secret locations in Serbia.

Another prosecution witness, C-028, was exposed not only to threats, but also violence.

In September last year, the trial chamber agreed to allow the witness to give testimony in closed session because of threats of physical harm and even murder.

According to the prosecution’s pre-trial brief, C-028 is a so-called insider who’ll testify about connections between the JNA and paramilitary formations.

Milan Babic, ex-president of the rebel Serb entity in Croatia, Republika Srpska Krajina, was also subjected to serious intimidation.

He started the testimony as protected witness C-036, but after the first day he received threats and requested and received a new identity, C-061.

After ten days, he managed to overcome his fears and testified publicly under his own name.

In October last year, before the testimony of Belgrade journalist Jovan Dulovic, the Yugoslav authorities informed the prosecution that they had information about "certain threats" directed against this witness.

In spite of that Dulovic testified publicly on the first day. But on the following day, after he received new and even more serious intimidation, the judges decided to continue his testimony in closed session.

During the cross-examination of protected witnesses, Milosevic never misses a chance to reveal a detail or two that may hint at the identity of such witnesses.

The judges, therefore, are now more careful and - as seen last week in the case of C-013 - they are ready to turn off the microphone and request private sessions as soon as they suspect the accused has such intentions.

It seems that the judges decided to do so after an incident early last month when Milosevic said in public that protected witness K-2, a Serbian policeman and former member of the Red Berets special forces, was involved in the killing of Arkan and therefore had to flee Serbia.

The judges turned his microphone off and ordered a closed session only after the accused started talking about where the witness was living and what he was doing now.

Since the judges already knew why the witness escaped from Serbia and why he requested protective measures, this was not a case of the defendant trying to question the credibility of the witness by drawing attention to his criminal record, which he is entitled to do.

This was simply the case of witness intimidation and demonstrated that a distorted voice and code name are not sufficient to protect witnesses Milosevic did not like.

The defendant made the most serious breach of this kind in October last year, during his cross-examination of a former member of Arkan's Tigers who testified as protected witness C-020.

After calling him a "murderer..and robber", Milosevic revealed a series of details about the witness that might reveal his identity, before Judge May could turn off the microphone.

The judge ordered a closed session, and the journalists and audience were invited to "forget what they just heard" and warned that spreading of the details revealed by the accused will be treated as contempt of the court.

Another case of intimidation involved Slobodan Lazarevic, a former Yugoslav military intelligence officer who testified in the Milosevic trial in October last year, and who was relocated by The Hague for his own safety.

Just before the Christmas holidays, a Belgrade newspaper published a report that Serbs in Australia had found Lazarevic and “cut off his tongue”, probably in the hope that there will be no one in the tribunal to deny the claim. Fortunately, a very categorical denial came from The Hague.

Those who are still tempted to describe judges, prosecutors and witnesses who seek protection as paranoid, should remember all those murders, kidnappings and disappearances of the enemies of the regime during the last decade that have never been solved.

The regime has changed, but its remnants can still inflict significant damage.

Mirko Klarin is a senior IWPR editor in The Hague and the editor-in-chief of SENSE news agency.