In April 2006, Bosnia was presenting evidence against Serbia on the first case of genocide ever held before the International Court of Justice (ICJ). One kilometre away in the same Dutch town of The Hague, another
UN Court, the International Criminal Tribunal for the Former Yugoslavia (ICTY), quashed the order unsealing Serbia’s state archives. So Bosnia was prevented from calling for documents that might have provided evidence against Serbia for genocide.
A few months later the ICJ, presided over by British QC Rosalyn Higgins, rendered its judgment. On 26 February 2007 it found that genocide had occurred at Srebrenica in July 1995, when 8,000 Muslim men and boys were killed. But although it found that Serbia-Montenegro had provided the Bosnian Serbs with extensive and substantial financial and military support throughout the war, including during the bloodshed at Srebrenica, it did not find Serbia responsible for the actions of the Bosnian Serb army (VRS) and paramilitaries who carried out the massacre.
The ICJ did nevertheless find that Serbia had violated its first obligation under the Genocide Convention by failing to use its influence to prevent genocide, and also its legal obligation to punish genocide by failing to cooperate with the ICTY by arresting Ratko Mladic.Serbia was the first state in history to be tried for, and convicted of, breaching the 1948 Genocide Convention.
If the ICJ had possessed evidence that Serbia was ‘in control’ of the Republika Srpska authorities or of the Bosnia Serbian Army, the Court would have not cleared Serbia of genocide at Srebrenica. Many believe that the transcripts or minutes of meetings of Serbia’s Supreme Defence Council (SDC) – the body in charge of the nation’s overall strategic goals and of the Yugoslav army – contain such evidence.
Those same minutes were submitted as evidence in the Milosevic case before the ICTY. Judges in the Milosevic case had those minutes at their disposal when they ruled on 16 June 2004 that they ‘could be satisfied beyond reasonable doubt that the accused was a participant in the joint criminal enterprise (which had) the aim and intention to destroy a part of the Bosnian Muslims as a group’, not only in Srebrenica but also ‘in Brcko, Prijedor, Sanski Most, Bijeljina, Kljuc and Bosanski Novi’.
Before submitting the SDC documents as evidence in the Milosevic case, Serbia applied for protective measures pursuant to article 54 bis of the ICTY Rules and Procedures. This rule authorized a state to seek confidentiality on documents the disclosure of which could affect the ‘national security interest’ of the country. After hearing the arguments presented by Serbia-Montenegro’s state representatives, the Trial Chamber for the Milosevic case agreed in October 2003 that part of these documents be blacked out.
The most sensitive part could not be disclosed to the ICJ or to the public.
Bosnia was therefore not able to produce before the ICJ the unedited version of the SDC minutes obtained by the ICTY. However, the ICJ could have sought access to the SDC documents. Curiously, the Court refused to ask Serbia to hand them over. Bosnia-Herzegovina had requested the Court to order the release of the unedited version of these documents, but this request was turned down.
ICTY judges kept key material from the public for the sole purpose of shielding Serbia from responsibility before another UN court
Several ICTY rulings show clearly that the ‘blacking out’ was granted in order not to damage Serbia’s position in Bosnia’s case before the ICJ. They reveal that the ICTY judges admitted that public disclosure of the most sensitive part of the SDC minutes could have had a negative effect on the outcome of the proceedings before the ICJ. They also took into account that a genocide conviction would have had enormous political and economical consequences for Serbia.
The ICTY Office of the Prosecutor (OTP) was not entitled to take part in the hearing in which Serbia applied for the protective measures on the SDC documents. Only the judges and not the prosecutor can decide on protective measures to keep material from the public. When Del Ponte’s office received the October 2003 judges’ decision granting those measures, it sought leave to appeal against the Trial Chamber’s ruling.
Prior to the judges’ decision, Del Ponte had agreed in a letter sent in early May 2003 to Goran Svilanovic, then Serbia-Montenegro’s foreign minister, not to oppose Serbia’s request for protective measures on the SDC documents. Following her letter, Serbia opened the doors of the state archives. For the first time, OTP analysts were authorized to consult in May 2003 in Belgrade the secret archives to which access had been systematically denied.
‘It must be understood, however, that the interests of transparency of the trials require that such measures are applied only in exceptional circumstances and not on a massive scale’, wrote Del Ponte in her letter to Svilanovic. She added that Serbia’s request for protective measures should be in accordance with the ICTY rules. Such was not to be the case. The ICTY judges agreed that Serbia’s ‘vital national interest’ in not damaging its position in Bosnia’s case before the ICJ could be admitted as a ‘ national security interest’ applicable for the granting of protective measures at the request of a state.
Del Ponte’s office considered that granting protective measures for the sole purpose of shielding Serbia from responsibility before another international court could be considered neither reasonable nor in accordance with the law and the ICTY rules. For the OTP, the Milosevic trial chamber’s decision was wrong and needed to be overturned. However, the ICTY judges in charge of the Milosevic case refused to grant Del Ponte’s office leave to appeal their decision on the SDC documents. The OTP could do nothing but wait for a new opportunity to oppose the disputed judges’ ruling, which happened a year and a half later.
In September 2005, the ICTY Appeal Chamber was called upon to pronounce on a new decision by the Milosevic Trial Chamber in July of that year, denying a request by Serbia for protective measures on personal military files which showed clearly that VRS generals, including Ratko Mladic, were members of Serbia’s army (the VJ). The Appeal Chamber ruled that Serbia’s ‘vital national interest’ in the ICJ litigation was not receivable for imposing confidential measures. According to the appeal judges, all previous decisions of the Milosevic Trial Chamber protecting the SDC documents from disclosure because of potential prejudice to Serbia’s ‘vital national interest’ rather than a ‘national security interest’ were ‘wrong as a matter of law’.
Nevertheless, the Appeal Chamber considered that the earlier decisions had created ‘a legitimate expectation’ for Serbia that later decisions involving ‘similar material’ would be resolved in the same manner, so that it would be ‘unfair’ to deny the protective measures sought by the state. Hence, the appeal judges dismissed the July 2005 Trial Chamber’s decision and decided to grant Serbia’s request to withhold public disclosure of the military files.
The OTP used this ruling in order to challenge the Milosevic Trial Chamber’s 2003 decision regarding the SDC documents. On 6 December 2005, the Milosevic Trial Chamber eventually abrogated its initial decision and agreed to remove the protective measures on the SDC documents that had been in place since 2003. The unedited version of SCD meetings should have been made public soon after that.
Bosnia had not yet presented its evidence against Serbia before the ICJ. The hearings were scheduled in early spring 2006. Bosnia could have been in a position to provide the documents to the ICJ in time, if Serbia had not filed an appeal before the ICTY Appeal Chamber. It submitted this request in December 2005, citing Rule 108 bis of the ICTY Rules of Procedure and Evidence, which allows countries directly affected by the Tribunal’s decisions to address the Appeals Chamber. Upon Serbia’s request, the ICTY Appeal judges agreed to postpone disclosure of the blacked-out part of the SDC archives until they rendered a final decision.
The Milosevic trial came to an end when the defendant died in detention at The Hague in March 2006. A month later, the 5- judge Appeal Chamber presided over by ICTY president Judge Pocar squashed the December 2005 Trial Chamber’s order to unseal the blacked-out part of the SDC minutes, insisting on Serbia’s ‘legitimate expectation’.
One kilometre away from the ICTY, the ICJ was hearing Bosnia’s genocide case against Serbia-Montenegro, filed 13 years earlier.
The SDC documents may be called as evidence in other ICTY cases. But a related Court decision stipulates that they can only be used under protective measures.
The prosecution may submit the SDC minutes in its case against Momcilo Perisic, VJ chief of staff during the war in Bosnia. He is the only remaining ICTY defendant who was present during the SDC meetings. Perisic was indicted for crimes against humanity in Bosnia, but surprisingly not charged with genocide or complicity of genocide at Srebrenica. Perisic was not even indicted as a participant in the Joint Criminal Enterprise for which Milosevic was prosecuted.
Serbia’s Supreme Defence Council was created on 28 April 1992, three weeks after the beginning of the war in Bosnia. It met 74 times between mid June1992 and mid March 1999. 57 meetings took place during the war in Bosnia. Milosevic was the only SDC member present at all 74 meetings. By order of the participants, no stenographic notes were taken during 17 SDC meetings, of which 9 took place in 1995, both before and after the Srebrenica genocide was committed.
Recently, international scholars, legal experts and rights activists have stepped up efforts to persuade Belgrade to open up the wartime archives and let them study the 1990s transcripts of its Supreme Defence Council, the highest political authority over its armed forces. However, although Serbia was acquitted of genocide charges in the case brought before the ICJ, Belgrade still insists on their confidentiality. Disclosure of the blacked-out part could challenge the ICJ’s ruling and the credibility of its judges, who refused point blank to seek from Serbia documents that were clearly crucial for the case upon which they were called to pronounce.
By privileging Serbia’s ‘legitimate expectation’ over the legitimate interests of the victims and the interests of the transparency of the trials, the ICTY Appeal Chamber had contributed to concealing the truth, paving the way for the ICJ not to seek evidence that it had a duty to hear.
The ICTY did not object to being told by a state that it should place restrictions on evidence because that same evidence ‘incriminates’ persons or bodies involved in crimes, who would then be found liable, in whatever forum (including the ICJ), to make restitution or payment to the victims of those very crimes. Thereby the ICTY Appeal Chamber violated the very UN Security Council resolution (827) that established the Tribunal in 1993. According to paragraph 7 of this resolution, ‘the work of ICTY shall be carried out without any prejudice to the rights of the victims to seek compensation for damages incurred as a result of violations of international humanitarian law’.
Florence Hartmann, author and journalist, was Del Ponte’s official spokesperson from October 2000 until October 2006. Her Paix et châtiment [Peace and Punishment], les guerres secrètes de la politique et de la justice internationales was published by Flammarion (Paris) in September 2007 and subsequently in Bosnian translation.
Bosnian Institute, 21.01.2008.