Ojdanic

Lawyers representing former Yugoslav army general Dragoljub Ojdanic faced strong opposition from the governments of the United States, Canada and Britain this week when they re-launched their request to have access to “intercepted information” held by the three NATO states.

Ojdanic has been indicted alongside ex-Yugoslav president Slobodan Milosevic and two other high-ranking officials from the Milosevic era - Milan Milutinovic, the ex-president of Serbia, and Nikola Sainovic, former deputy prime minister of Yugoslavia. A fifth indictee, Vlajko Stojiljkovic, committed suicide.

The men face four counts of crimes against humanity and one of violations of the laws or customs of war for their alleged role in a campaign of terror and violence carried out against Kosovo Albanians between January and June 1999.

The indictment claims that during this period, 800,000 Albanians were deported and Yugoslav army forces committed “systematic acts” of brutality against the persecuted population.

Ojdanic’s defence counsel, Peter Robinson and Tomislav Visnjic, first requested permission to obtain information concerning the accused from NATO, all its member states and six additional countries in November 2002.

If the trial chamber had agreed, the states would have been bound by the tribunal’s statute 54 bis to disclose all records of their communications with Ojdanic, including “recordings, summaries, and memoranda reports” relating to Kosovo made during the period covered by the indictment.

However, in March this year, the judges ruled that the 2002 request had been too “vague and obscure”, and ordered the defence to reformulate a more specific and focused application. In the meantime, the defence drastically decreased the number of states involved.

At this week’s hearing, Robinson announced that the defence’s new request had been limited to details of “intercepted conversations” between Ojdanic and 23 identified individuals.

He regretted, however, that he could not reduce the broad five-month timeframe (January to June 1999) for fear of missing vital communications dating from the time of the NATO bombing campaign. Robinson said that during the airstrikes on Kosovo, which lasted from March 24 to June 10, 1999, Ojdanic had been in conversation with NATO officials on an almost “daily basis”.

Legal representatives of the US, Canada, and Britain who were present at the hearing were critical of the new application.

All three states complained that the reformulated request still lacked specificity, and Colleen Swords, Canada’s legal adviser for foreign affairs, accused the defence of being so unsure of what information it actually wanted that supplying any data would be like trying to hit a “constantly moving target”.

The US embassy’s legal counsellor Clifton M Johnson accused Ojdanic’s lawyers of attempting to “conduct [a search] on governments in the hope of finding interesting material”, and Dominic Raab, representing the UK, insisted that the applicant did not know precisely what it was asking for, but was trying to “mount a fishing expedition” and persisted in “trying to drag a very large pond indeed”.

Meanwhile, Johnson warned the chamber that requesting intercepted information gave rise to important national security concerns.

In his final comments, Robinson responded that the US’s refusal either to “confirm or deny” its use of intercepted information showed a marked inconsistency.

Citing the then US secretary of state Colin Powell’s broadcast of an intercepted conversation between Iraqi soldiers in a speech he gave to the UN justifying the Iraq invasion, the defence lawyer claimed that Washington may not be prepared to share intercepts with a war crimes tribunal, but would happily use such intelligence to bolster the case for war.

Robinson added that secretly-recorded information would be useful to the defence for the very reason that the conversations were likely to be frank and unguarded.

Helen Warrell is an IWPR reporter in The Hague.