In the spring of 2003, boxes with hundreds of documents arrived at the Yugoslav war crimes tribunal in The Hague containing hundreds of pages marked ‘Defence. State secret. Strictly confidential.’ The cache contained minutes of wartime meetings of Yugoslav political and military leaders, including Slobodan Milošević, and promised the best inside view yet of Serbia's role in the Bosnian war of 1992-95.
But there was a catch. Serbia, the heir to Yugoslavia, obtained court 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 court's public records.
Belgrade's true objective
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 another court, the International Court of Justice, nearby. And they say Belgrade's goal was achieved in February, when that court, dealing with Bosnia's lawsuit against Serbia, declared Serbia not guilty of genocide, and absolved it from paying potentially enormous war damages.
Lawyers interviewed in The Hague and Belgrade said that the outcome might well have been different had the Court of Justice pressed for access to the uncensored archives. Legal scholars and human rights groups say that it is deeply troubling that the judges did not subpoena the documents directly from Serbia.
‘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 - 170 pages long - was in many ways meticulous, and acknowledged that the 15 judges had not seen the censored military archives. But it did not say why the court did not order Serbia to provide them.
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.’
At one point, the court rebuffed a Bosnian request that it demand the full documents, and said ample evidence was already available in tribunal records.
As part of its ruling, the court said that the 1995 massacre at the supposed safe haven of Srebrenica - when in nearly 8,000 unarmed Muslim men and boys were killed - was an act of genocide committed by Bosnian Serb forces, but that it lacked proof that these forces were acting under the ‘direction’ or ‘effective control’ of Serbia.
The ruling raised some eyebrows because aspects of Serbian military involvement are already known from records of earlier trials at the International Criminal Tribunal for the Former Yugoslavia. In late 1993, for instance, 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, tribunal records showed, were given dual identities, and to handle this, Belgrade created the so-called 30th Personnel Center of the General Staff, a secret office for dealing with the officers listed on active duty in both armies.
The court took note of that information, but said that Belgrade's ‘substantial support’ did not automatically make the Bosnian Serb Army a Serbian agent.
But lawyers who have seen the archives and further secret personnel files say than they address Serbian 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 that Serbian forces, including secret police, played a role in the takeover of Srebrenica and in the preparation of the massacre there.
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 secret proceedings in The Hague where hearings, though usually public, can turn into closed sessions and deals often happen behind closed doors.
It took the tribunal prosecutors two years of talks, court orders and diplomatic pressure for the Belgrade government to hand over the documents, the much-coveted minutes of the Supreme Defence Council, created in 1992 when Serb-dominated Yugoslavia was fighting for more land for Serbs outside its borders in Croatia and Bosnia.
Before the handover, lawyers familiar with the case said, a team from Belgrade made it clear, in letters to the tribunal and in meetings with prosecutors and judges, that they wanted the documents expurgated to keep them from harming their case at the International Court of Justice.
The Serbs made this no secret even as they argued their case for ‘national security,’ said a lawyer involved in the negotiations, 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 judges to request secrecy for their archives, they produced a letter of support from Carla Del Ponte, the tribunal's chief prosecutor.
Del Ponte agrees
During a recent interview, Del Ponte confirmed that she had sent such a letter in May 2003 to the former foreign minister of Serbia, Goran Svilanović, saying that she would accept that ‘reasonable’ portions of the records be kept under seal.
‘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 Milošević.’ Milošević, the former Serb leader, however, died before his trial was completed.
After the tribunal judges approved Belgrade's request to keep secret sections of the military archives, Vladimir Đerić, a member of the Serbian team handling the documents, told lawyers there that ‘we could not believe our luck.’ Đerić, now a private lawyer in Belgrade, said by telephone that he could not discuss his former duties at the Foreign Ministry.
Tantalizing glimpses of the secrets of the Defence Council - whose agenda included the military budget, promotions and retirement of generals - can be gleaned elsewhere. Parts of the archives that were not censored and were obtained by The New York Times include minutes of sessions from 1993 to 1995, when the war in Bosnia was in full swing. These wartime meetings in Belgrade were attended by the presidents of then-Yugoslavia, its constituent states of Serbia and Montenegro and the top military command, including sometimes General Ratko Mladić, the Bosnian Serb military leader who was twice indicted by the war crimes tribunal on charges that include genocide. He is a fugitive.
A recent book, Unspoken Defence, by former President Momir Bulatović of Montenegro, who attended many sessions of the Defence 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. Yugoslav officers were also objecting to their service in Bosnia, the book said.
Lawyers and human-rights groups have searched with special interest for council records from the summer of 1995, when Srebrenica was overrun by army and police officers, many of them, tribunal records show, in the pay of Serbia. Following the massacre there, the council met three times, with Mladić attending at least one session. Verbatim transcripts of those days are missing even from the secret archives, lawyers said.
Bosnia's team at 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 already available from public records at the war crimes tribunal. When Bosnia pressed during hearings, the court ignored the request.
In an interview, Rosalyn Higgins, a Briton who is president of the World Court, declined to say why the judges refused to subpoena the uncensored archives. She said it was the practice of the court not to discuss its findings. ‘The ruling speaks for itself,’ she said.
But the dissents from Khasawneh, of Jordan, and another judge criticized the court's refusal to seek the evidence. The second dissent, by Ahmed Mahiou of Algeria, said that judges had given 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 that the unexpurgated documents most likely would have demonstrated that the Bosnian Serb forces were agents of Serbia, controlled by Belgrade. ‘This would have made Serbia liable for the Srebrenica genocide,’ 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, professor of International Law at the University of Ireland in Galway, who closely follows the World Court, said its judges may have wanted to avoid a diplomatic showdown with Serbia and that since it is a civil and not a criminal court, it was more used to relying on materials put before it, rather than aggressively pursuing evidence.
Antonio Cassese, a former president of the war crimes tribunal in The Hague and now a law professor in Italy, said: ‘I was rather taken aback that the judges didn't see the documents. But this is not an aggressive criminal court, but a very traditional civil court. They gave something to everybody.’
Natašha Kandić, director of the Humanitarian Law Centre in Belgrade, said she was shocked at the court's inaction.
‘It was well known in the Serbian government that the archives spelled out the responsibility of the state,’ she said. It was vital for the public in Serbia to know the reality of the war, she said.
After the verdict, she said, she met with a leading member of the Serbian team, a scholar, whom she promised not to identify by name.
‘He was very pleased,’ Kandić said, ‘but I confronted him, I said, you did not tell the truth.’ Her friend the scholar replied, she said, ‘It's normal. Every country will do everything possible to protect the state. Bosnia wanted a lot of money for damages.’
Kandić went on: ‘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.' ‘
This op-ed appeared in The International Herald Tribune, 8 April 2007.