Timing of Exculpatory Material Raises Questions About Source

Former president of the Federal Republic of Yugoslavia (FRY) Zoran Lilic returned to the witness stand this week to complete a half hour cross examination by Milosevic and to permit the Prosecution to introduce documents only lately provided to it by the Government of Serbia and Montenegro. What should have been less than an hour of testimony turned into a full day when Milosevic used other newly produced documents to cross examine the witness. The documents were turned over by the Prosecution under Rule 68, which requires that the Prosecution give all potentially exculpatory material to the Accused. Who provided them to the prosecutor remains unknown, though press reports speculate they might come from the U.S. or U.K. governments.

The appearance of the two separate sets of documents in court caused confusion. The Prosecution offered stenographic notes of the Council for Coordination between Serbia, the FRY and Serbian entities in Bosnia and Croatia, disclosed by the Government of Serbia and Montenegro during Lilic’s initial testimony. Noting that the Prosecution first requested these documents approximately two years ago, Geoffrey Nice advised the Court that “the late production by the authorities would make a full examination impossible.” He merely wanted to question the witness on two passages, he said.

The second set of documents, those with potentially exculpatory material, coincidentally were supplied to the Prosecution around the same time – by the undisclosed source. They included intercepted transcripts of telephone conversations, many involving Lilic and attempts to obtain the release of two French pilots being held by Ratko Mladic in December 1995. [see CIJ Report of July 9, 2003] Neither the Court nor Milosevic appeared to understand this coincidence. Milosevic complained about being handed the documents just prior to the court session. Judge May complained about the Prosecution supplying so much material and asked them to restrict it. That, of course, is not possible if it is Rule 68 material. The Prosecution has a legal obligation to turn over to the Accused any potentially exculpatory material that comes into its hands.

Milosevic used the intercepted conversations to show that he lacked control over the Bosnian Serbs, specifically, in this situation, Ratko Mladic. It required significant pressure from General Momcilo Perisic before Mladic even acknowledged he had the pilots. Several weeks of negotiations ensued with General Momcilo Perisic acting as intermediary between Mladic and Lilic, while Milosevic pressured Lilic for a resolution before the Dayton Accords were to be signed in Paris. Milosevic characterized this scenario as showing he could not control Mladic, despite the importance of the Dayton Accords to him. Yet it also shows he was the man directing the other actors.

The intercepts were provided at an opportune time – just before Lilic was to return to the witness stand for Milosevic to conclude his cross examination. The Prosecution would have violated its duty if it had waited to disclose the documents until after Lilic completed his testimony. While the information in the intercepts was significant for the ICTY, since it purported to show the French President’s agreement to protect Mladic from prosecution by the ICTY, and useful to the Accused, it was not relevant to the Prosecution’s case against Milosevic. They had no desire or intention to offer the intercepts into evidence. Milosevic did not appear to understand this. He objected to the transcript of an alleged intercept between his wife, Mira Markovic, and Mladic’s secretary, calling it a complete falsehood and demanding that the Prosecution subject the tape to expert voice analysis. The Prosecution does not have the tape, nor does it vouch for the accuracy of the intercepts. It was not tendering them into evidence, merely providing them to Milosevic for his use.

Only a few weeks ago the Prosecution received another piece of potentially exculpatory evidence, related to what was occurring in the Milosevic trial at the time. It was a letter stating that Alija Izetbegovic, President of Bosnia-Herzegovina, had called the leaders in Srebrenica together in 1993 to discuss an alleged proposal by U.S. President Bill Clinton. Clinton allegedly promised UN intervention on behalf of the Bosnian Government if “Chetniks” were allowed into Srebrenica to kill 5000 Muslims. Milosevic produced the letter while cross examining U.S. Ambassador Peter Galbraith, who scoffed at any possibility it could be authentic. Prosecutor Geoffrey Nice indicated to the Court that the Office of the Prosecutor receives such missives from time to time and, under Rule 68, is required to disclose them to the Accused even when they seem clearly fabricated.

Rule 68 imposes a clear obligation: “The Prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.” Attesting to the importance of the disclosure rule, Rule 68 bis gives the Court authority to impose sanctions for its violation. This places the prosecution in an uncomfortable position. As Mr. Nice has stated in court, the Prosecution quite rightly errs on the side of caution in deciding what information to give to the Accused. Yet when the OTP provides the information, Milosevic seems to suggest that it is more reliable because it is against their interest to do so. Of course, it is not. The Prosecution is merely fulfilling its legal duty, not vouching for the accuracy of the information.
If someone is intentionally trying to manipulate the process, it is doomed to fail. To be admitted into evidence, documents must be authenticated, which requires testimony from someone with direct or indirect knowledge of the document. The alleged Izetbegovic letter was not admitted. Nor were the alleged telephone transcripts, though Milosevic rightly used them to question Lilic. While the provision of falsified documents will not undermine the trial, they can be time consuming. The Chamber continues to be called upon to be hyper vigilant in this trial that continues to be like no other.