Dealing With the 'Hostile' Insider Witness

An attorney cannot impeach a witness he or she has called, according to traditional trial practice rules. The rule is based on the assumption that a party calling a witness vouches for the witness's credibility. Only when the party can show that a witness has surprised him or her with their testimony is there an exception. In this situation, an attorney may ask the court to declare the witness “hostile” and allow the attorney to impeach his or her own witness, i.e., attempt to show the witness is lying. Traditionally, judges did not favor this procedure and tended to tell attorneys they take their witnesses as they find them. If they “go south” (change their stories) on the stand, it is just one of life’s risks.

The more modern approach is to recognize that attorneys do not have unlimited choice of witnesses. Not infrequently, a witness with important information may also be untrustworthy. That is often the case with certain witnesses in war crimes trials, especially where the charge is involvement in a joint criminal enterprise. The best witnesses in such cases are insiders. They can also be the worst. Geoffrey Nice has been struggling with this problem since the beginning of the Milosevic trial, as the Trial Chamber appears to favor the traditional rule. The recent appearance of Zoran Lilic, one-time President of the former Federal Republic of Yugoslavia (FRY), was only the latest challenge.

On the stand, Lilic showed himself a devotee of Slobodan Milosevic, the Accused who he had come to testify against. Like other insider witnesses, such as Rade Markovic, Dragan Vasiljkovic and protected witness B-1775, once confronted by his old-time boss, Lilic rolled over like a cur before the alpha dog. Milosevic’s aura was too strong for him. Lilic (and Markovic, Vasiljkovic and B-1775) willingly and unashamedly agreed to whatever Milosevic asked, with some exceptions. It is not unusual for authoritarian leaders to surround themselves with “yes-men,” but it makes it difficult to get at the truth, particularly if the hostile witness rule is applied.

Lilic provided important testimony on direct examination about: Milosevic's central role in getting the Bosnian Serbs to lay down their guns; the primacy of Milosevic's Serbian police (MUP) over the VJ (Yugoslav Army) and the direct subordination of MUP chiefs to him; the FRY's financial support of the Croatian and Bosnian Serb armies, and crimes committed by Serbian forces in Kosovo. The former FRY president also authenticated minutes of high level meetings and a letter Army Chief of Staff Momcilo Perisic wrote Milosevic, protesting his extra-legal activities in Kosovo.

On cross examination, Lilic changed his testimony to suit his former mentor with the ease of an actor changing roles. The fact that some of his answers directly contradicted his earlier testimony seemed to bother him not in the slightest. Despite having criticized Milosevic for unnecessarily prolonging the war in Kosovo, when the Accused asked, he agreed that Milosevic sought peace, not war. He testified that Milosevic had no control over the Yugoslav army (VJ) and did not interfere in its command during Lilic’s term in office – 1993 to 1997. Moreover, he agreed that no VJ generals were promoted or dismissed at Milosevic's request. In contrast to his earlier statement, Lilic also assented to Milosevic's suggestion that he had no control over the Bosnian Serbs, who often obstructed his efforts for a negotiated settlement

In addition to these concessions, Lilic also provided the Amicus, Branislav Tapuskovic, with helpful responses. He agreed with his examiner that all the republican territorial defense units were under JNA (Yugoslav People’s Army) command and their weapons and equipment were JNA property. The Chamber has heard contrary evidence to the effect that each Yugoslav republic had its own TO, financed by the individual republics, and providing their own equipment, weapons and ammunition. The relationship of the JNA and republican TO’s, including property ownership, is important because the JNA took control of TO weapons and ammunition before the wars, then redistributed them to local Serbs, according to other testimony before the Chamber.

Mr. Tapuskovic also elicited the witness’s agreement that Serbian Orthodox Patriarch Pavle was the one who intervened and secured Mladic’s agreement for Milosevic to negotiate for the Bosnian Serbs at Dayton – not Milosevic. This scenario counters Milosevic’s reputed “influence” over the Bosnian Serb leadership.

Confronted with his witness’s many concessions to Milosevic, Geoffrey Nice had only a short time for re-examination and a significant challenge ahead of him. He did not ask the Chamber to declare Lilic a hostile witness, though he would have been justified in doing so. Rather, he set out to tread a cautious line, which twice drew warnings from the Bench.

Probing Lilic’s relationship with the Accused, Mr. Nice asked him who was giving instructions to whom as they sought to get Mladic to release the two French pilots before the signing of the Dayton Accords in Paris. Lilic responded, “Our fear was that the Accords would not be signed and Milosevic insisted that I should issue an order to Perisic that he try to establish the location of the pilots. I was not giving instruction to him. He used his right through me to bring influence to bear on the Yugoslav Army.” It is an explanation as curious as it is convoluted and may provide unintended insight into the way Lilic has ordered his reality to include a vision of his own power within the confines of Milosevic’s far greater power.

Nice then stepped into deeper water and asked his witness, “Mladic left the RS (Republika Srpska) at the end of 1996. Did he come to Serbia?” Lilic responded: “I don’t know whether he left the RS altogether but he certainly did come to Serbia.” Nice followed up by asking if there was ever an inquiry into Mladic's involvement in Srebrenica, to which Lilic replied, “As far as I know, no such investigation was instituted.” Before the prosecutor could ask about the subsequent promotion of Mladic, Judge May cautioned him, “There’s a limit to the extent you can cross examine your own witness.”

Not for the first time, Nice tried to explain the trouble with insider witnesses. “There are certain witnesses whose evidence has to be viewed cautiously.” Yet, he said, “the Chamber is assisted by hearing their evidence on particular documents and events,” in this case the promotion of someone who has been indicted for genocide in Srebrenica. Nice wanted to present a document showing Mladic’s promotion and to ask the witness how it occurred. The Chamber ruled to exclude the document and Nice approached his witness from a different angle.

In response to Mr. Nice’s questions, Lilic admitted that during his term as president he had access to significant intelligence data, though he said Milosevic had “more and better information.” Nevertheless, when Nice asked him whether, despite the range of available information, he had no intelligence on what happened at Srebrenica, he said simply, “Right.”

Nice continued, “You denied the existence of any detention camps [when Milosevic asked him about a report that nine existed in Serbia, identified by location and number of prisoners] . . . . Did you visit the areas yourself?” In another demonstration of his convoluted universe, Lilic answered, “I did not visit them and according to my information, they did not exist. I cannot visit what our [military intelligence] service says does not exist.” It apparently never occurred to him to visit the identified areas to see if they held camps in which people were being detained. When Nice attempted to follow up by asking if the witness would allow that he could have been kept from information of this kind, Judge Robinson interrupted to caution him, “Mr. Nice, you’re getting pretty close to cross examining.”

The lead prosecutor quietly asked his less than stellar witness, 'If the Court determines that the army [VJ] was involved [in the Bosnian Serb war against the Bosnian government], who was in a position to control or influence the VJ . . .?' The witness waffled, appearing confused. Only General Perisic could have issued orders of that kind, he said, and if he did, they could have come from Milosevic. That, he continued, would have been completely unlawful. So, it could not have happened, he appeared to conclude. 'Only the President of FRY [Lilic] [acting] with the Supreme Defense Council could issue such an order.' This exemplifies the dance he was forced to do in his efforts to please Milosevic and protect himself.

Nice's further probing rehabilitated significant evidence Lilic had given on direct examination, which he had repudiated on cross examination by Milosevic. For example, Lilic re-asserted that the Serbian MUP was militarized under Milosevic's presidency, and that it included two special anti-terrorist units, the SJO and the SAJ. He also reaffirmed that Jovica Stanisic, head of the Serbian State Security Service, and indirectly Milosevic, exercised political control over the Red Berets.

The Prosecutor then asked him about General Pavkovic's May 25, 1999 letter to Milosevic, asking him to take urgent measures to resubordinate MUP units in Kosovo to the VJ. General Pavkovic reported that certain MUP units were out of control, looting vast amounts of property and 'committing serious crimes against the Shiptars [pejorative name for Kosovar Albanians]' including murder, rape, robbery, plunder, etc. Lilic had fallen out of favor by this time and could not testify directly about the letter. However, Mr. Nice asked him one important question, 'Do you have any reason to doubt General Pavkovic?' In a strong voice, Lilic responded, 'absolutely not.'

Finally, Mr. Nice showed Lilic the transcript of a speech by Ratko Mladic on April 16, 1995. In it, Mladic identifies the quantity of weapons and ammunition the FRY provided to the RS Army from the beginning of the war until December 31, 1994. Lilic explained that Mladic was a bit of a sensationalist and the quantities were 'so large I personally don't believe them.' The Prosecutor offered a hypothetical, 'If in due course it is found that [the VJ provided] these materials . . ., who bears responsibility for authorizing it -- you as Commander in Chief?' Because the weapons were owned by the VJ and because of the quantity, Lilic claimed that only the federal minister of defense could have authorized their transfer to the RS.

Experience with insider witnesses demonstrates that the Court should adopt the modern rule and allow cross examination of a party's own witnesses. The Milosevic trial provides strong support to do so. At least four witnesses have significantly diverted from their direct testimony when Milosevic questioned them, under a nearly hypnotic effect. The prosecutor should not be placed in a position to press a reluctant Court to declare these witnesses 'hostile' in order to attempt to get at the truth. The purpose of presenting testimony through these difficult witnesses is to assist the Chamber in its decision-making. Applying the traditional rule thwarts that aim. The Chamber should adopt the modern approach.