World Court Shields Serbia From Genocide Charge

By MARLISE SIMONS
Published: April 9, 2007
NYTimes

THE HAGUE — In the spring of 2003, during the trial of Slobodan Milosevic, hundreds of documents arrived at the war crimes tribunal in The Hague marked “Defense. State Secret. Strictly Confidential.”

The cache contained minutes of wartime meetings of Yugoslavia’s political and military leaders, and promised the best inside view of Serbia’s role in the Bosnian war of 1992-1995.

But There Was A Catch. Serbia, the heir to Yugoslavia, obtained the tribunal’s permission to keep parts of the archives out of the public eye.

Citing national security, its lawyers blacked out many sensitive — those who have seen them say incriminating — pages.

Judges and lawyers at the war crimes tribunal could see the censored material, but it was barred from the tribunal’s public records.

Now, lawyers and others who were involved in Serbia’s bid for secrecy say that, at the time, Belgrade made its true objective clear: to keep the full military archives from the International Court of Justice, where Bosnia was suing Serbia for genocide.

And they say Belgrade’s goal was achieved in February, when the international court, which is also in The Hague, declared Serbia not guilty of genocide, and absolved it from paying potentially enormous damages.

Lawyers interviewed in The Hague and Belgrade said that the outcome might well have been different had the International Court of Justice pressed for access to the full archives, and legal scholars and human rights groups said it was deeply troubling that the judges did not subpoena the documents directly from Serbia.

At one point, the court rebuffed a Bosnian request that it demand the full documents, saying that ample evidence was available in tribunal records.

“It’s a question that nags loudly,” Diane Orentlicher, a law professor at American University in Washington, said recently in The Hague.

“Why didn’t the court request the full documents? The fact that they were blacked out clearly implies these passages would have made a difference.”

The ruling — which was binding and final — was in many ways meticulous, and acknowledged that the 15 judges had not seen the censored archives. But it did not say why the court did not order Serbia to provide the full documents.

Two of the judges themselves criticized that failure in strongly worded dissents. One, the court’s vice president, Awn Shawkat al-Khasawneh of Jordan, wrote that “regrettably the court failed to act,” adding, “It is a reasonable expectation that those documents would have shed light on the central questions.”

As part of its ruling, the court said that the 1995 massacre of nearly 8,000 Muslim men and boys at Srebrenica, a designated United Nations safe haven in eastern Bosnia, was an act of genocide committed by Bosnian Serb forces, but that it lacked proof in this case that the forces were acting under Serbia’s “direction” or “effective control.”

The ruling raised some eyebrows because details of Serbian military involvement were already known from records of earlier tribunal cases.

For instance, evidence showed that in late 1993, more than 1,800 officers and noncommissioned men from the Yugoslav Army were serving in the Bosnian Serb army, and were deployed, paid, promoted or retired by Belgrade.

These and many other men, including top generals, were given dual identities, and to help handle that development, Belgrade created the so-called 30th personnel center of the general staff, a secret office for dealing with officers listed in both armies.

The court took note of that, but said that Belgrade’s “substantial support” did not automatically make the Bosnian Serb army a Serbian agent.

However, lawyers who have seen the archives and further secret personnel files say they address Serbia’s control and direction even more directly, revealing in new and vivid detail how Belgrade financed and supplied the war in Bosnia, and how the Bosnian Serb army, though officially separate after 1992, remained virtually an extension of the Yugoslav Army.

They said the archives showed in verbatim records and summaries of meetings that Serbian forces, including secret police, played a role in the takeover of Srebrenica and in the preparation of the massacre there.

The lawyers spoke on condition of anonymity, saying they could be held in contempt of court.

The story of the blacked-out documents, pieced together from more than 20 interviews with lawyers and court officials and from public records, offers rare insight into proceedings in The Hague, where hearings can turn into closed sessions and deals often happen behind closed doors.

It took the tribunal prosecutors of Mr. Milosevic two years of talks, court orders and diplomatic pressure for Belgrade to hand over the documents — the much coveted minutes of the Supreme Defense Council.

The council was created in 1992 when Serb-dominated Yugoslavia was fighting for more land for Serbs in Croatia and Bosnia.

When the documents were handed over, the lawyers said, a team from Belgrade made it clear in letters to the tribunal and in meetings with prosecutors and judges that it wanted the documents expurgated to keep them from harming Serbia’s case at the International Court of Justice.

The Serbs made no secret of that even as they argued their case for “national security,” said one of the lawyers, adding, “The senior people here knew about this.”

Confidentiality rules to protect “national security interests” have often been invoked at the tribunal, including by the United States, which has privately provided intelligence like intercepts and satellite images to assist prosecutors.

When Belgrade’s lawyers met with tribunal judges to request secrecy for their archives, they produced a letter of support from Carla Del Ponte, the tribunal’s chief prosecutor.

In a recent interview, Mrs. Del Ponte confirmed that she had sent a letter in May 2003 to the former Serbian foreign minister, Goran Svilanovic, saying she would accept the sealing of “reasonable” portions of the records.

“It was a long fight to get the documents, and in the end because of time constraints we agreed,” she said. “They were extremely valuable for the conviction of Slobodan Milosevic.” Mr. Milosevic died before his trial was over.

After the tribunal judges approved Belgrade’s request to keep sections of the military archives secret, Vladimir Djeric, a member of the Serbian team, told lawyers there that “we could not believe our luck.” Mr. Djeric, now a private lawyer in Belgrade, said by telephone that he could not discuss his former duties.

Tantalizing glimpses of the secrets of the Supreme Defense Council — whose agenda included the military budget, promotions and retirement of generals — can be gleaned elsewhere.

Uncensored parts of the archives obtained by The New York Times include minutes of sessions between 1993 and 1995, when the war in Bosnia was in full swing.

Those meetings in Belgrade were attended by the presidents of then Yugoslavia, its constituent states of Serbia and Montenegro, and the top military command, including Gen. Ratko Mladic, the Bosnian Serb military leader twice indicted by the tribunal on charges that include genocide. He remains a fugitive.

A recent book, “Unspoken Defense,” by Momir Bulatovic, a former president of Montenegro who attended many sessions of the Defense Council, said that in 1994, when more than 4,000 men on Serbia’s payroll were fighting in Bosnia, the council discussed abolishing the 30th personnel center because its discovery might cause political problems.

Lawyers and human rights groups have searched with special interest for council records from the summer of 1995, when Srebrenica was overrun by soldiers and police officers, many of them, tribunal records show, in the pay of Serbia.

After the massacre there, the council met three times, with General Mladic attending at least one session.

Verbatim transcripts of those days are missing even from the secret archives, lawyers said.

Bosnia’s team at the International Court of Justice, also known as the World Court, was convinced that the archives and the military personnel files were central to their case.

Before hearings opened in 2006, Bosnia asked the court to request that Serbia provide an uncensored version of the documents.

The court refused, saying that “extensive evidence” was available at the war crimes tribunal.

When Bosnia pressed during hearings, the court ignored the request.

In an interview, Rosalyn Higgins, the president of the World Court, declined to say why the uncensored archives were not subpoenaed.

She said it was the court’s practice not to discuss its findings. “The ruling speaks for itself,” she said.

But the dissents from Judge Khasawneh and another judge criticized the court on that count.

The second dissent, by Ahmed Mahiou of Algeria, said that judges had several reasons — “none of them sufficiently convincing” — including a fear of creating the impression that the court was taking sides, that it might intrude on the sovereignty of a state, or that it might be embarrassed if Serbia refused.

Phon van den Biesen, a lawyer on the Bosnian team, said the full documents would probably have demonstrated that the Bosnian Serb forces were agents of Serbia, controlled by Belgrade.

“This would have made Serbia liable for the Srebrenica genocide,” Mr. van den Biesen said.

“We believe all this can be found in the documents. The cuts are made whenever the agenda turns to financing and to personnel matters. That’s why Serbia went to such lengths to hide them from us.”

William Schabas, a professor of international law at the University of Ireland in Galway, said the court might have wanted to avoid a diplomatic showdown with Serbia and that, as a civil rather than a criminal court, it was more used to relying on materials put before it than aggressively pursuing evidence.

Natasha Kandic, director of the Humanitarian Law Center in Belgrade, said she was shocked at the court’s inaction, in part because it blocked the Serbian public from understanding the reality of the war.

After the verdict, she said, she met with a leading member of the Serbian team. “He was very pleased,” she said, “but I confronted him. I said, ‘You did not tell the truth.’ ”

The man, a scholar she said she could not name, replied: “It’s normal, every country will do everything possible to protect the state. Bosnia wanted a lot of money for damages.”

Ms. Kandic added: “I said that one day the truth will come out.

And my friend said: ‘But that’s the future. Now it’s important to protect the state.’ ”