NICE: Carla Del Ponte did not work as a lawyer but rather like an amateur politician

Jutarnji list

8 December 2007

Interviewer: Augustin Palokaj

Prosecutor Geoffrey Nice who was in charge of the most important proceedings at the Hague Tribunal, the one against Slobodan Milosevic, speaks for the first time about the backstage games surrounding the trial.

You conducted one of the most important trials in the recent history, the one against Slobodan Milosevic, which is special in so many ways. How do you feel about this trial ending without a judgment, i.e. about the indictee dying in the course of the trial without his guilt being proven?

- It would have been best if the proceedings had been concluded. I feel disappointed to an extent. After all, it can be said that the value of the proceedings remains in a large amount of evidence material left behind, rather than in a specific decision that would have been passed had the case been concluded. The judges' decisions would have been the matter of arguing in the appeals proceedings, ant the final judgment would have been understood differently by people on both sides and by the generations to come. Some would see Milosevic as a martyr, and others just the contrary. Although we were not able to give the closing argument, a large amount of the evidence material that we presented and which thus became accessible to the public, would not have been possible without these proceedings.

Three wars encompassed

To what extent did the prolonged trial against Milosevic contribute to such an outcome?

- The length of the trial was caused by the choice of the system that may not have been the most suitable for these proceedings. In principle, it was inability of the accused to be present in the courtroom for full five days a week that affected the course of the proceedings. Thus, it seems that the proceedings took too long, but, in fact, the [length of the] presentation of the Prosecution's evidence, covering events of three wars during a ten-year period, was equal to less than one year of regular proceedings in Western courts which would have full-day sessions. Had it not been for the circumstances surrounding Milosevic and his health, the trial would have lasted a few years, which is not too long.

The cross-examination of witnesses (some of whom were victims themselves) that Milosevic conducted was like their new victimisation. Was that the appropriate manner for the accused to question his victims?

- This is a delicate issue that is present in national legislations as well, for example, when rape victims need to testify in court, which is difficult. This is necessary since a fair trial needs to be ensured and both the defence and the accused have the right to examine witnesses. Milosevic showed too little of his character. He had a mask in the courtroom that rarely fell off. In the course of cross-examination, for instance, when a woman testified whose children were killed before her eyes, it was astonishing that Milosevic showed no feelings whatsoever for her. Sometimes I asked, on behalf of witnesses and through judges that we compel Milosevic to show more respect for such witnesses. I tried [to achieve] that not to make Milosevic look nice, but because of the witnesses. However, after all, I can say that Milosevic had a heart of stone. There were witnesses who did not want or expect any sympathy from him, which was also a frequent occurrence.

Criminal Development

Why didn't the OTP agree to separate the Kosovo indictment from the indictments for Croatia and Bosnia and Herzegovina in order to first pass the judgment for Kosovo? This is what the judges also suggested.

- This is a big issue. The Trial Chamber really though that it would be perfectly justified to try the Kosovo part of the indictment separately. The OTP did not agree with this because this trial was never about one event, one incident, not even about several crimes. It was about the process of crime development by politicians. It was building the case against a politician, who had, according to the OTP's arguments, become at a certain stage, in the course of ten years, during important and difficult decisions, the criminal. If we had simply taken only the final part of this process, which Kosovo was, and if we had established the state of his mind, this would have been difficult or impossible without the eight years of what had previously been happening in Croatia and BiH /Bosnia and Herzegovina/.

If you put on trial that man, who is accountable, then you absolutely must try him for all three wars. If we are in the pursuit of the criminal development of that man during one decade, where, then, is the crux of the matter? Is it Kosovo, as a part of the territory controlled by Milosevic's apparatus? Is it Croatia and Bosnia and Herzegovina as internationally recognized states where they intervened to help those who wanted Serbs to live in one state? I believe that the crux of the matter in the case against Milosevic was in Bosnia and Herzegovina where the gravest crimes were committed, regardless of the gravity of other crimes. Had the case been separated, then the chronology should have been observed: first the Croatian case, then BiH, and then Kosovo. In that case, we would first have had the presentation of evidence first for the earlier cases, and would have understood how things developed. On the other hand, the separation of the case and, then, a repeated trial for the Croatian and BiH part of the indictment would mean, from the point of view of Anglo-Saxon legal system, prejudice against the accused. Specifically, had he been pronounced guilty for the crimes committed in Kosovo, which happened several years after Croatia and Bosnia, this would have called into question the fairness of the proceedings. This means that the separation of the proceedings could have been possible only if it had started in a chronological order, starting with Croatia onwards.

Was it easier to prove Milosevic's accountability for crimes committed in Kosovo because they took place in the territory under his control, than the involvement in Croatia and BiH?

- Superficially viewed, it was easier to prove his accountability for the crimes committed by the forces under his supreme command in the territory under their control. However, this does not affect the decision as to which charges you will consider first. Let us assume that he was very cautious in covering the traces of political decisions on the use of the military and armed forces in 1998 and 1999. The military and the police were engaged in Kosovo since 1998 without declaring the state of emergency, so there are no decisions at the time with his signature about the deployment of the military and MUP /Ministry of Internal Affairs/. They even claimed that after 23 March 1999, when they declared the state of war in the territory of the FRY /Federal Republic of Yugoslavia/, the Supreme Defence Council was not convened any longer. We had to prove his command role in Kosovo through his de facto power, specifically in this case, through the ad hoc body called Joint Command that had no constitutional or government status.

Decisions without My Knowledge

The word is that you were opposed to including Srebrenica into the indictment against Milosevic because you were not certain that his connection with the Srebrenica genocide could be proven. It seems that Florence Hartmann, former OTP spokesperson criticized you for this in her book. Is this true?

- This is a total nonsense. It is a big unknown to me why Florence Hartmann could say such things. This is about a simple chronology that unfolds as follows: in November 2001 I was asked by Carla Del Ponte to take over the case against Milosevic. At the time the draft indictment for Bosnia and Herzegovina, and Milosevic, was already prepared by other lawyers and it awaited a judge's confirmation, which did happen. There were a lot of internal rumours at the time about Carla Del Ponte requesting that the indictment for Srebrenica and Sarajevo be issued despite advice to the contrary by other lawyers. My priority at the time was to take over the indictment that was in place and to strengthen it by collecting as much evidence as possible. As regards BiH, especially the Srebrenica case, my opinion, based on my long years of work, was that the key thing was to obtain minutes from the meetings of the Supreme Defence Council in Belgrade which would shed light on the events and probably strengthen evidence against Milosevic and his role in Srebrenica. Once, at the Office, we found ourselves in the situation when one attorney tried behind my back to somehow influence Carla Del Ponte's decisions in regards to Srebrenica and Sarajevo. He sent her a memo, convened a meeting and all this without my knowledge. I learned about the meeting and went to it. I saw the memorandum that had never been showed to me. This means there were a lot of shady deals in the OTP on whether or not to include Srebrenica and Sarajevo into the Milosevic indictment. This is all documented, and all these documents are at the Office.

Information cover-up

What happened next?

- I took control over the situation in the Office. We had enough time because we were only at the stage of presentation of evidence in the Kosovo trial. Our approach was in two stages. In the first everyone was consulted - lawyers, trial attorneys, analysts, investigators, and others - so that we may obtain every evidence about Milosevic and his connections with Sarajevo and Srebrenica. There I saw the obnoxious practice of concealing information and evidence within the OTP.

Do you think that the associates in the Office hid evidence from each other?

- Oh yes, this happened all the time. I told them they would not get away with it and I asked them not to come to me six months later telling me "O, I've got this piece of evidence". I said that now was the time and that they should give all the evidence they had. After that, we made a new assessment and established that we had considerably more evidence than at the time the indictment was raised.

Following intensive consultations with team members of various trades and after information we obtained in those months about the documents that exist in Belgrade, Sarajevo and Srebrenica remained part of the indictment against Milosevic. It was also clear which documents we needed to request from Belgrade, and which ones were necessary to prove [our case] in the court, and I myself did all I could to obtain them.

What was Carla Del Ponte's position on this?

- On one occasion, during a visit to the Rwanda Tribunal in Arusha, I spoke to Carla Del Ponte. Based on what she heard from one of "her spies", as she called persons who conveyed to her what was going on in the Office, she said that I was allegedly opposed to the counts of indictment that concern Srebrenica and Sarajevo. She refused to say who her sources were, but she mentioned Florence Hartmann and Patrick Lopez-Terres as persons who kept her posted on who did what, be it true or not; behind their backs, of course.

I told her then what I'm saying now: that all this was absolutely inaccurate. This was one of the moments when I should have left the Tribunal because you cannot work as a conscientious prosecutor in such an important case where you want to make the right decision, in the circumstances where people take part in such plots behind your back.

Europe does not have a clear conscience when it comes to Srebrenica. Were there attempts on part of certain states to exert influence on the work of the Prosecutor's Office, and did they succeed in it, in their attempts to prevent disclosure of the whole truth about Srebrenica?

- Yes, there were. Not only was I not ever against those counts of indictments, but I did whatever was in my power to ensure evidence in those cases, bearing in mind their graveness, and complexity of the political and military structures. Right before the end of the Prosecution case, when the friends of the court (Amici Curiae) requested that the charges for Srebrenica and Sarajevo be dropped due to lack of evidence, the arguments of the OTP were reconstructed according to my personal instructions, and eventually we persuaded the judges not to drop those counts.

If you look into the response of the Trial Chamber to the motion of the amici, you will see that we had a unanimous decision of the Trial Chamber on all counts relating to genocide except for one that we had sufficient evidence, and for genocide as such, the decision [of the judges] was 2 to 1. The reason for that was not in that I wanted those count dismissed, quite the contrary. I insisted that we eventually attach the statement of an expert witness on genocide, who described the mechanism used by political leaders and political elites to functionally employ violence that led into crimes.

Why did you once, in a letter to our papers, accuse Carla Del Ponte for having made a concession to Belgrade with regard to come crucial evidence?

- In my opinion, all records of the meetings of the Supreme Defense Council in Serbia would be crucial. Owing to the excellent job of my investigators, we gathered some information about those records. We knew they existed and we knew how to look for them. Based on my talks with Vladimir Djeric, the then legal advisor to Minister Svilanovic, I was aware they would request protective measures for those materials to prevent their disclosure to the public. They wanted it because of a case that was before the International Court of Justice at the time (charges pressed by BiH against Serbia).

Protection from the public

Did they want to hide it just from the public, or also from you?

- They wished they could have hidden it from both the ICTY and the public. They knew they would lose if they challenged our motion in which we requested that those documents be made available to the court. Those documents were so important that they knew they would not be able to stop our motion for their delivery through the court. They made several attempts to stall and postpone. They kept saying they insisted on keeping the documents secret and not disclosed to the public because of the case tried before the International Court of Justice. I told Vladimir Djeric right away that there were no legal grounds whatsoever to withhold the documents. In my opinion, from that moment on, the official Belgrade focused its efforts on attempts to hide the documents. At one critical point of time, when we were very close to getting the documents from the Trial Chamber, Belgrade directly involved Carla Del Ponte in the game. In a letter to Minister Svilanovic she said she would not oppose their request for protecting parts of the documents from public disclosure. At that she never asked either me or any other member of my team for an expert advice. I was stunned when I heard it. I wrote her a letter before she had sent her written consent to Minister Svilanovic, and in it I said her decision was utterly wrong. I wrote to her that she should not have made that deal. It is all documented and it still exists. This was happening in April and May 2003. And on top of it all, she gave her consent for the protection of the parts that she herself had selected, and not a single one of our investigators has ever seen all of this material. Only after she had sent the letter, Belgrade let our investigators have an insight into the documents - in late May 2003 into the minutes, and in August in shorthand records. How does this fit in the allegation that I did not want Milosevic to be charged for Srebrenica?

Why did she make that deal? Did she want to get something from Belgrade, or was it about something else?

- How would I know? The reason could be her incompetence as a lawyer, or the fact that she was disrespectful of and confused with legal procedures and proceedings. She was functioning and acting as an amateur politician and police officer, whose achievements were measured by her appearance in the media rather than in court. In this particular case, her instinct to make hasty deals, not founded on legal and professional arguments, has had serious impacts. She probably did not expect that to happen, as she was not aware how important all that was while it was happening. Because, as I said earlier, she did not seek my professional advice prior to her trips to Belgrade. The people in Belgrade became very soon aware of her style of work, and used it to their advantage. Even when I was giving her pieces of advice without her asking, she would disregard them. What I know for sure is that the result of her letter and her consent to the protective measures for the parts selected by Belgrade was that the Trial Chamber consented that this evidence be blacked out. What is equally unbelievable is that the ICJ acted on the basis of the documents that were accessible to the public.

The ICJ did not request, or they could not get those documents?

- They could have requested them, but they did not. Let us assume that failure of the ICJ, or Carla Del Ponte to keep away those documents from the public was a professional error and not an evil intention. How will it look in 20 or 30 years from now, or when we who know about those events, are dead? It will look like a political setup, even if it was not. I do not think it was a political setup, despite the fact that the Serbs, who couldn't believe how lucky they were, managed to work it out, and Carla Del Ponte helped them with it, perhaps because she lacked political understanding.

Had the ICJ had those documents in their possession, would their ruling have been different, would they have established that Belgrade had been directly involved in the Srebrenica massacre?

- It would be an irresponsible act on part of all those who read the documents to claim that someone else would have ruled differently had they read those documents. However, one thing is certain - if those documents had been made available in their entirety, there might have been a better understanding of Serbia's role in the events that had taken place in Croatia and Bosnia and Herzegovina. Those documents prove mechanisms according to which things happened and prove what someone personally said at those meetings of the Supreme Defence Council on this or that side.

Were there other pieces of evidence about Srebrenica that were withheld?

- Yes. I will answer this question because you initiated the discussion about whether I was allegedly against the counts of indictment for Srebrenica. Florence Hartmann failed to provide any evidence for those horrible accusations. On one occasion, I learned about the existence of a taped conversation between Milosevic and Mladic about Srebrenica and Zepa. There was no doubt that hey had that conversation and we learned about it. It is very likely that this recording exists. Have a look at the Netherlands' NIOD report. Al Gore almost quoted something from that conversation, just as did one journalist, too. There is much evidence about that conversation.

You spent most of the time at the Tribunal during the mandate of Chief Prosecutor Carla Del Ponte. She is now leaving. How would you assess your work with her and her results?

- I cannot state a sort of clear position on whether she should be given credit for the arrest or extradition of some indictees. I don't know to what extent it was her achievement and to what extent it was a result of other circumstances. As regards the internal operation of the Office, I explained the kinds of problems I was faced with. However, other problems existed, too, where she acted more like someone who is told what to do than a jurist who has to adhere to professional standards. It's as if in a hospital with professional physicians who are told by someone who is not a physician how they should do their job. She treated herself as someone who is above any criticism, infallible, without supervision, because it was known that there was no control either from New York, even though it is a UN tribunal. Carla Del Ponte once said to her former deputy that a good manager is the one who is not liked by his staff. Who knows, perhaps she succeeded in this.

You said that you kept voicing these objections within your office. Why did you continue to work with her?

- Of course, you always think about it. Firstly, I invested a lot of energy and professional effort. I was aware that, should I leave, others would be even more acquiescent. Looking backward, now I know when I should have left the Tribunal. On one occasion, I was asked to deceive the court by deluding an indictee with regard to the illness of Judge May who was at the time already very ill. I was asked to complete a part of the Prosecution case before [the information about] Judge May's illness was disclosed.

You're on your own

Who asked you to do that?

- Carla Del Ponte. She once said that my integrity is unimportant. She told me that if I am not able to enter the courtroom and say what she asked me to say, there were other prosecutors who would do that. I did not want to do that. Hence, within that system at the Hague Tribunal there was nothing that could improve that system. At normal courts, you have a system of control, media, the parliament, attorneys' council and other mechanisms. Here, none of that has existed and it only resembled the system. I even asked an advice from a Foreign Office adviser who was involved in the decisions on the establishment of the ICTY.

I presented the problems to him and he also told me: You're on your own. Some other lawyers who worked at the Tribunal also considered the fact that they had families and children at school thousands of kilometres away. If they returned home, no career awaited them. Eventually, I won the battle for the integrity of legal proceedings and for my own professional integrity without any support. All this has remained recorded and documented.

SHAMEFUL JUDGMENT IN THE HAGUE

Where are the persons who were above [superior to] the Vukovar Three?

Vukovar was also one of the counts of indictment that you were trying to prove during the proceedings against Milosevic. What do you think about the Vukovar Three judgments that many described as shameful?

It is not my place to comment decisions made by the judges and which are based on the material available to them. It is true that Vukovar was part of Milosevic's indictment. However, the Vukovar Three were some kind of middle level of responsibility. The question that could be raised is the indicting policy of the Office of the Prosecutor. Where are the persons, I will not name them here, who were above the Vukovar Three and why were they not indicted? Therefore, there was no coherent indicting policy, which could have lead to unsatisfactory reactions, like the one for the Vukovar Three. This means that three persons were selected from lower and middle levels, leaving out the others from the pyramid, and they were indicted for a very limited case, Ovcara. Thus, a bigger picture was lost about the role of Vukovar in the entire demarcation plan lead by Milosevic, which resulted in all the crimes committed in Croatia and Bosnia.

There were attempts by the states to influence the Tribunal

This means that there were attempts by the countries to influence the Prosecution?

Yes, yes of course.

Did they succeed?

In the Milosevic case whenever I learned of such attempts I stopped them. As regards the examples I told you about, for the mentioned reasons I might not had been successful but I was successful in other cases. I informed the judge, her deputy David Tolbert and others, and I warned them about the withdrawal of the motion requesting transcripts of intercepted conversations between Mladic and Milosevic. That was interfering with the process that was harmful for the Prosecution because those documents, if they exist, might have proven even greater involvement of Milosevic in Srebrenica. However, they perhaps could have also provided evidence embarrassing for the West. However, due to the withdrawal of the motion we could not ascertain whether those conversations even existed let alone their content.

Indications about the intelligence influence of the British government's

FLORENCE HARTMANN WRITES NONSENSE

You mentioned the Foreign Office. Were you influenced by the British Government and did you work according to their instructions? Florence Hartmann writes about that, too.

That is a complete and utter nonsense. She mentioned that I had used the MI6 analysts. Military analysts that I mostly worked with were professionals, from Belgium and Canada. Later on, they were employed by the ICTY. How could they be in the British service? Besides she named Azem Vlassi as the source of that claim. He recently denied this in her presence in a TV show aired on a Sarajevo TV, claiming that he had stated exactly the opposite. However, she had put in her book what suited her best.

What does everything you have just stated say about the Tribunal itself? Milosevic died before the judgment was rendered, Mladic and Karadzic are not in The Hague and the question is if they ever will be. What kind of credibility will the ICTY have?

This Tribunal, same as any institution, has its good and bad sides. When the dust settles I think its image will be better that it seems right now. There will be a legacy of a huge amount of materials and evidence that would never have been collected had the Tribunal not existed. Nevertheless, I believe that the positive part will come to the forefront in the end.