Serbia's darkest pages hidden from genocide court

Author: Marlise Simons, The Hague
Uploaded: Sunday, 08 April, 2007

In a majorfront-page lead article for IHT, Marlise Simons reports on how the failure of the International Court of Justice to seek crucial documents from Belgrade may have decisively affected its judgement in the lawsuit brought against Serbia by Bosnia-Herzegovina

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 Milosevic, 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.

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.

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 Svilanovic, 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 Milosevic.’ Milosevic, 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 Djeric, a member of the Serbian team handling the documents, told lawyers there that ‘we could not believe our luck.’ Djeric, 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, promotion

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