Bar Journal - June 1, 2003
Insights into the Workings of an International War Crimes Tribunal
By: Edited by Attorney Susan E. Marshall
The following vignettes are excerpts from emails sent by Judith Armatta, an attorney from Oregon monitoring the trial of Slobodan Milosevic, who was the former president of Serbia during most of the recent Balkan wars, and the former president of "rump" Yugoslavia (which consisted of Montenegro and Serbia). The trial is being held at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, The Netherlands. Attorney Armatta is employed to monitor the trial by the Coalition for International Justice (CIJ), a nongovernmental nonprofit, based in Washington, D.C. Attorney Armatta has also composed a series of emails that she sends to her friends and anyone else who is interested in having an insider’s perspective on what is happening at the ICTY. She first went to the Balkans in 1997 and has been observing the Milosevic trial since January of 2002.
In these excerpts, Attorney Armatta provides a vivid picture of daily life at the ICTY, including insights into the difficulties of presenting and prosecuting a complex case in an international court. Michael Johnson, former Merrimack County prosecutor, has served at the ICTY, where he became the chief prosecutor in September 2001. He also served as interim deputy chief prosecutor at the International Criminal Tribunal for Rwanda and has now returned to the Hague. New Hampshire attorney Stuart Hurowitz, Director of the Criminal Practice Clinic and Visiting Professor of Law at Franklin Pierce Law Center, and I have worked with Attorney Armatta in connection with the American Bar Association’s Central and East European Law Initiative (CEELI).
The United Nations Security Council created the ICTY in 1993 to investigate and prosecute alleged serious violations of international humanitarian law in the former Yugoslavia from 1991 onwards. Separate indictments relating to crimes committed in Kosovo, Bosnia, and Croatia are joined together in the trial.
COURTROOM I OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR YUGOSLAVIA
April 13, 2002. The tribunal sits at the apex of a triangular piece of land called Churchillplein…. It was converted from an insurance building that was probably built in the 1950s, given its complete lack of style or charm. A tall wrought iron fence surrounds it. I enter through the back with my magic "STAFF" pass. This pass is magic because when you show it to uniformed guards (you must), they smile and say good morning and let you pass. After putting my purse and backpack through an x-ray machine and walking through a metal detector, I pull out my magic pass and press it on a designated place, hear a clicking noise which releases the circulating door and walk through. We are now in the basement…. I walk down a long corridor. Off to my left is a common room where the guards sometimes hang out and where smoking is allowed. Then up a flight of stairs to the next door, where I use my magic pass once again to gain entry. This hall takes me past the press rooms (where ICTY staff responsible for public and press information live) to yet another circulating door and another opportunity to use the magic pass. I’m now in the lobby, where CIJ’s office is located….
There are three large t.v. monitors in the lobby for videocasting of the trials. This is especially useful when the courtrooms are overcrowded or when I have to stay close to my office. Trials begin at 9 or 9:30. The Milosevic trial is being held in the largest courtroom – Courtroom I. It’s on the first floor (second in the U.S.) and to get there I once again have to go through a metal detector and put any bag through an x-ray machine. My pass usually gets me through this checkpoint, but occasionally the guards will decide to spice things up and tell me and the press that we need to get visitors’ passes from the main entrance. …
Outside Courtroom I, there is a bank of handheld translation devices. I take one, tune it to channel 4 (the English language channel – you can pick French, Albanian, BCS [Bosnian/Croatian/Serbian], too) and plug it into a set of headphones which are inside the viewing area on every chair. The viewing area consists of about five or six rows, about 40 seats per row, though I may be exaggerating. These rows of blue chairs are located behind a wall of bulletproof glass, behind which the trial takes place. Guards stand around the edges and entries, as well as within the courtroom itself. Someone recently described the courtroom as reminiscent of the deck of the Starship Enterprise. That’s about right . . . though without all the controls. The three-judge trial chamber sits on a raised dais behind a long desk. Below them are clerks, legal officers, etc. The prosecution team sits on the right side at an angle, looking at the judges. In the middle, towards the back, is the witness chair. From our seats in the gallery, we see the back of the witness – but there are t.v.. monitors on either side of the viewing room, up high, allowing us to see the witness’s face, too. The defense lawyers – or in the Milosevic case, the Amici Curiae (friends of the court, appointed to help the court assure that Milosevic, who has chosen to represent himself, gets a fair trial) - sit to the left of the witness seat. Milosevic sits on a raised platform behind a desk on the far left side – facing into the middle of the courtroom. Guards sit on either side of him. Everyone gets their own computer monitor, where they can read the transcript of the trial as it’s being typed.
The judges, attorneys, clerks, and legal officers all wear long black robes with little white pleated collars that look like shirtfronts. One of the Amici wears the wig he wears in the British law courts (with those rolled-up side curls). He looks like a character out of Dickens with his wire framed glasses resting on the tip of his nose. He is impressively smart, as is the lead prosecutor [Geoffrey Nice] – also from Britain though he doesn’t wear a wig – just red socks sometimes which peek out from under his robes.
Everyone assembles in the courtroom, except the judges. When the accused is brought in, the guards pull down the curtains on his side of the room (I don’t know why). Once he is seated, the curtains are raised. The gavel is struck two times. The clerk calls out "all rise" in English and French, which we all do or are immediately set on by the ever-vigilant men and women in blue. The court is called into session and we’re all told to sit down again.
If it is a half-day session, the trial chamber sits from 9 until 1:45, with two 15 minute breaks. If it is a full-day session, it lasts from 9:30 to 1 p.m. (with a half-hour break), an hour and a half for lunch, followed by an afternoon session from 2:30 to 4 or sometimes 4:30 or 5, though Milosevic complains about days that are too long since he has to talk with his "legal advisors," eat, and have a short walk outside as well as be transported back to the detention center, a process which takes about a half-hour.
ICTY RULES AND PROCEDURES; THE COMMON LAW AND CIVIL LAW SYSTEMS
April 28, 2002. The ICTY is a unique court which has drawn and adapted its rules and procedures from various legal systems. Two of the more overarching ones are the common law system (used in the U.S., Australia, Britain) and the civil law system (used in much of Europe and a number of countries in Latin America). The common law system is adversarial, with lawyers on "opposing" sides, representing the defendant and the prosecution, while the judge manages the trial, keeps everyone in line, rules on legal issues, instructs the jury or decides the case her or himself. In the civil law system, the judge has a more active role in questioning the witnesses, while the prosecutor has a less adversarial, more truth-determining role. This is not the best explanation, but may give those who are unfamiliar with the distinctions some idea. The ICTY is a little like an elephant constructed by committee. Though it also has some of the best of both systems, distinctions are not always readily understood….
For example, I was perplexed why some of the witnesses seem unprepared for what they will face in court. One of the prosecutors, a friend, explained to me that the Brits prohibit the prosecutor from "preparing" witnesses before trial. In the U.S., it might be considered malpractice not to. And, I’m told, in Australia it is somewhere in between. As a result, witnesses being cross-examined do not confine their answers to "yes" or "no", but often endeavor to explain in great detail what they mean. The presiding judge will occasionally, though not consistently, try to restrict their answers. Interestingly, most of the explanations, while adding to the length of the trial, have worked against Milosevic….
Another disadvantage of international courts is language; judges, prosecutors and defense attorneys have different mother tongues. The official languages of the tribunal are English, French (official UN languages) and what is now called "BCS" (Bosnian/Serbian/Croatian). One of the prosecutors is Brazilian (or is it Argentine?), who speaks English but it is clearly not her first language. The phrasing of a question is almost an art in U.S. courtrooms — to be understood, to elicit desired answers, to not violate evidentiary rules. The ICTY has much looser evidentiary rules, but whatever question is asked must be translated — for the accused and one of the amici curiae in this case, as well as the larger public, press and gallery. It’s obvious there have been problems with the Albanian translation. This can have serious implications for the case, where a witness answers a different question than the one put to him/her, for example.
December 15, 2002. This week at the Milosevic trial we heard testimony from the co-founder of Helsinki Watch in the U.S., Jerri Laber, who testified about all their reports they sent and hand-carried to Milosevic, who refused to see Ms. Laber and her colleagues. The accused, who appears to have a limited emotional repertoire which does not include shame and embarrassment, proceeded to lecture Ms. Laber on human rights. He was most concerned about sovereignty and the right of self-determination. He tried repeatedly to engage her in an argument about them, despite Judge May’s persistent admonition that he was supposed to be cross-examining, not making legal arguments.
In one line of questioning, Milosevic challenged the credentials of Human Rights Watch investigators (Helsinki Watch morphed into HRW in the U.S.). Isn’t it true, he demanded, that none of them had been trained as judges and, therefore, could not know how to take statements in a legal proceeding in court? Ms. Laber responded that they were trained as investigators, in law school and by HRW. Milosevic protested, "But you know according to laws in your country and other countries that attorneys don’t take statements in a proceeding." That was too much for Judge May, who interrupted with "I never heard of such . . ." then turned to the witness and asked, "Do attorneys take statements from witnesses in the United States?" Ms. Laber responded with some satisfaction, "That’s their job!"
The error Milosevic fell into is that judges and lawyers have different roles and responsibilities in different legal systems. In the old Yugoslav system, and many civil law systems, it is the judge’s job to question witnesses. In the common-law system, which heavily influences ICTY practice and procedure, lawyers do a significant amount of case investigation outside of court, and have primary responsibility for questioning witnesses inside the courtroom. It is one of the basic differences of the two major legal systems. Ironically, if the tribunal followed civil law practice on this point, Milosevic would be denied his "right" to question witnesses directly. His questions would be asked by the judge.
THE DIFFICULTIES OF PRESENTING THE CASE
June 2, 2002. Yesterday, on the 63rd day of trial, the lead prosecutor, appropriately named Geoffrey "Nice," finally lost patience with the presiding judge’s insistence that the Kosovo part of the case be completed by the end of July. When Judge May said it didn’t appear to him that the prosecution was making any effort to meet the deadline, Mr. Nice clenched his jaw and replied, "I am inclined to be insulted by that." Judge May, a fellow Brit, urged him not to be. But Nice felt he had a duty to set the record straight — on behalf of the prosecution team of lawyers, investigators and case managers, from whose harsher feelings he had been shielding the court (he informed them).
I have a great deal of respect for both men. The job that each must do is daunting and of historical significance as well as having a more immediate impact on the lives of the accused and his victims. Judge and prosecutor approach their tasks seriously and with the highest degree of professionalism. It was unfair of Judge May to suggest the prosecution was ignoring the court’s concern for a manageable and expeditious proceeding. They have significantly reduced their case, foregoing dozens of witnesses and submitting most of the survivor testimony in written form. …
Trying a head of state differs from trying the direct perpetrator of a crime, the man who pulls the trigger. It also differs from trying a military commander, who may not have pulled the trigger, but may have ordered the soldier to do it or let it go unpunished. The allegations against Milosevic include that he approved a plan to drive people from their homes and their country using terror, property destruction, rape, torture and killing to do it. To prove this, the prosecution must prove enough of the crimes to establish that they were part of a larger pattern, a pattern of events so similar and widespread and coordinated that it is nearly impossible to consider them coincidental. The question is how many killings and deportations, over how broad an area, establish such a pattern. There is no answer. The judges and prosecutor will continue to struggle with that issue.
May 19, 2002. The Milosevic trial has been stumbling along. With himself as the primary interlocutor, it is becoming more and more his show. This is especially true with survivor testimony which is cumulative. It comes in under a special procedure where the prosecutor submits the witness’ statement in writing, give[s] a five-minute summary and turns it over to the accused to cross-examine for an hour. From the gallery, this makes it look like Milosevic’s show. Witnesses are frustrated at not being able to tell their story in court, and I am frustrated at not being able to hear it. Milosevic mostly cross-examines on irrelevant topics designed to trip up the witness or make him/her appear as a liar. Sometimes his efforts are ludicrous as he crows, "which is true, what you said then or what you say now?" when there’s no significant difference….
November 17, 2002. Speaking of Milosevic… he has been out sick for yet another week, though it seems likely to come to an end soon. I’ve heard the problem was caused by his Belgrade doc telling him not to take the medication prescribed by The Hague doc, suggesting the folks up here were trying to kill him. [Mirjana Markovic, wife of Milosevic] took to the airwaves and Slobo’s supporters in Belgrade filed a lawsuit against the Chief Prosecutor Carla Del Ponte and the lead prosecutor in his case, Geoffrey Nice, for attempted murder. Turns out that Milosevic’s doc misunderstood the meds. Once it was clear to him, he told Slobo to resume taking them . . . and voila, he’s improving! I believe it is high-blood-pressure medicine.
ICTY "PRIVATE SESSIONS"
February 2, 2003. So far in the Croatia phase of the case, there have been 22 witnesses. Ten of them have testified with protective measures, often in private session. The court goes into private session when the subject matter is likely to reveal the witness’s identity – or that of someone else who might be jeopardized. I bring reading material, spend the time outlining reports, watch Milosevic through the bulletproof glass.
The issue of private sessions is a difficult one. It resonates of the star chambers, the old English inquisitorial courts held behind closed doors to prevent public outcry over the unfairness of the proceedings. For this reason, there is a constitutional preference for public trials in the U.S. and some other countries. It is also the preference of the ICTY. At times, however, there would be no trial without the ability to protect the witnesses’ identities and to close court sessions. This happens when witnesses risk their lives and those of their families to testify. As in Mafia trials and certain war crimes trials, where the accused and their associates feel no compunction about killing a witness to preserve their own power, freedom and wealth. While there is no war in the Balkans any longer, and the names of those in power have changed, it remains a dangerous place. Many war criminals and Mafioso retain power and wealth. Crossing them is dangerous. To do their bidding, there are all those criminals Milosevic let out of prison when hundreds of thousands of law-abiding citizens refused to fight his wars….
A considerable amount of the Vukovar [Croatia] testimony has been held in private session. The majority of witnesses have been Serbs, many of whom were threatened not to testify. The reality of the danger came up rather dramatically in court toward the end of the week, when lead prosecutor Geoffrey Nice announced that they had lost a witness because of threats. The witness’s identity had been protected, which means only a few members of the prosecution team, the court, the two amici and Milosevic knew it. To secure that protected status, the prosecution, in a closed session, told the judges that the witness was not afraid for his or her own safety but for the safety of the witness’s children. Within 24 hours, a threat against the children was made through the witness’s spouse, and the witness declined to testify. The court has ordered an investigation into the leak, which is not the first. Milosevic, of course, vehemently denies anything to do with it, saying his word is better than any rule. The most useful question is who benefits from the leaks?
WITNESSES CONFRONT MILOSEVIC
March 20, 2002. I have been disheartened to hear that some of the Kosovar Albanian witnesses are being treated badly by their fellow citizens on their return from testifying. They have reportedly been shunned for not standing up to Milosevic better, for not "winning," etc. It may come from the unfamiliar court procedure . . . which requires witnesses to keep their testimony within narrow parameters, often being reduced to answering questions "yes" or "no." They don’t always get to stand up and say "J’accuse," though some have essentially done so. I have tremendous respect and admiration for these witnesses. I think they’re all incredibly brave. They have each traveled far from their homes, often this is their first trip out of Kosovo except when they were refugees in Albania or Macedonia. For many, this is also their first appearance in a court of any kind and this is an international court constituted by the United Nations. They have to tell their story in an artificial manner in front of cameras and a full courtroom, stories that make them relive horrible events, events that changed their lives forever. And finally, they have to answer questions put to them by the man who is responsible for their suffering, who was the tyrant who ran their country for 10 years. They all deserve some kind of Purple Heart… maybe a golden heart.
August 30, 2002. Mr. Haxhiavdija was an elderly man, quite thin, ill, but his voice was as powerful as the voice of God, or how I, as a child, imagined it would be. Mr. H’s son came to him one morning during the war and said, "[f]ather, my life has ended." His wife and five children had been killed the night before. The Roma man who was ordered to recover the bodies reported he found 20 in the son’s compound. Nineteen were women and children. His son will tell what happened on Monday. Milosevic’s line of attack was to say the civilians had been killed either in fighting between the KLA and Serbian forces or by NATO bombs. He suggested Mr. H went to Albania because of the fighting and bombing. But Mr. H said no, "they killed my daughter-in-law, five children, 13 in the Vesa house, six women, one who was 80 years old. You have killed people and burnt other family members, 20 in all. You have burnt a daughter who was mentally ill. How would I not want to escape? I would go anywhere to escape. . . ."
Milosevic insisted that the people had been killed by NATO bombs, to which Mr. H thundered, "No!" and described how the children were taken from the basement and massacred, how the house was burned. He said people told him not to go there because they feared he would have a heart attack when he saw the bodies. "My son said it is a sin to see children like that," thirteen of them and a one-month-old and his four-year-old grandchild. "With what kind of human feelings can someone commit a crime of this kind against children, young people, old people?" Though he was crying, his voice remained strong and clear. Judge May asked Milosevic if, in light of the witness’s condition, he had any further questions. "I do. I do," he answered. Then had the gall to say, "War is a crime in itself and it is the innocent who suffer. Is it clear who created the war? You are furious because of the death of your family. Everyone would feel that way. How it came to be a war . . ." Mr. H interrupted, "YOU! You as president. By sending criminals, the most evil criminals to commit crimes against children in the eyes of their mothers."
At the end, Mr. H turned to the court and asked, "May I say something on my own here?" The court has not allowed any witness to say more than a thank you, but Judge May sat quietly as Mr. H addressed the judges: "I would like to thank the Hague Tribunal for the invitation to speak here. Normally I could not be here because of my ill health. But I wanted to make a statement about the crimes committed, the massacres of old people, children, young people . . . " Then he turned to Milosevic, "I would like to ask the accused about your feelings. Do you have any feelings?"
And that was the voice of God. No, Milosevic made no response. Nor can I read anything in his face, which is the mask of the actor or sociopath.
November 24, 2002. The witness against [Milosevic] this week (and the next two, most likely) was the highest-level insider yet to testify. We all know who he is, but his identity is protected, so we call him C-061. We know who he is because of his testimony and by the process of elimination. He has testified openly about all the top leaders in the Serb Autonomous Region of the Krajina in Croatia (later, the Republika Srpska Krajina) in open session – except one. But we can’t print his name because the trial chamber could hold us in contempt. It is a bit absurd. While there are excellent reasons for protecting the identity of witnesses – like the very real possibility of physical harm – those who are most likely to harm them are also the ones most likely to know who the witnesses are, through Milosevic or his associates.
In this case, witness C-061 is seated behind a screen and he speaks with voice distortion. Whenever he is about to say something that could reveal his identity, the prosecutor moves for private session. That happens about 15 times every day, often for only a few minutes. It makes for more than usually disjointed testimony. C-061 had 30 meetings with Milosevic, plus about a dozen telephone calls. We don’t get to hear about those. C-061, because of his insider position, is also able to identify who is speaking on 52 telephone intercepts which the prosecution is trying to introduce. Mostly these calls are between Milosevic and Karadzic. We’ve been lucky to hear a couple, and they are damning. Even so, it’s hard to understand the translations; they are read very quickly without any indication when the speaker changes. I have great gaps in my notes and am anxiously awaiting the video version from the Bard College website.
December 7, 2002. The Milosevic trial continues. The ten-day-long testimony of protected witness C-061 will end Monday morning with the prosecution’s redirect examination. C-061’s identity was hidden to protect him and his family, though everyone who knew anything about the wars in the former Yugoslavia knew who he was. As usual, media in the region disclosed his identity though the tribunal could hold them in contempt and fine them. On the tenth day of his testimony, C-061 began with an announcement from his lawyer that he had decided to go public. After hearing his reasons, Judge May said he would henceforth be called by his real name, Milan Babic. The shades were drawn up and the screens removed – to reveal a quiet, ordinary-looking man (trained as a dentist). The press who were there – not many at that early hour onanother day of expected private sessions – rapidly took notes, dropped their headsets and rushed downstairs to file their stories. The question now is whether and when we’ll get to read the transcripts of all those private sessions, including about a dozen of Radovan Karadzic’s intercepted telephone calls, some with Milosevic. Even without that, Babic has pretty much made the prosecution’s case against Milosevic for Croatia. The rest is window dressing.
CAPTAIN DRAGAN OF THE RED BERETS TESTIFIES
February 23, 2003. In the old Perry Mason t.v. series, cases were solved and the real murderers discovered in the courtroom. Yesterday’s events in Courtroom I of the ICTY were a bit like that.
Dragan Vasiljkovic, a.k.a Captain Dragan, was in his third day of testimony. He’s a rather flamboyant figure, late forties, short and wiry, bowl-cut white hair, relishes describing his exploits, how he returned to Yugoslavia from his adopted state of Australia once arriving by yacht after a four-month cruise, another time flying his own plane, stopping off on his way to Africa (where he was probably a soldier of fortune). On that latter trip, he hung around long enough to hear that Serbs were fighting a resurgence of WWII Ustasha fascists in the Croatian Krajina. When he went to see for himself, the Serb fighters were a bunch of ragtag, undisciplined, unkempt, sometimes drunk men wielding hunting rifles. Having served for six years in the Australian armed forces, he thought he could lend a hand in training and organizing these guys into a real fighting force. With permission from the Krajina Serb authorities, he set up a camp and began his mission. Inevitably, he and his newly trained soldiers also engaged in combat, in one case defeating a much larger and better equipped Croatian force after nearly 24 hours of battle. It was after this that he ordered red berets made for his men as a way of rewarding them. Naturally, the unit became known as the Red Berets and it, and Captain Dragan, achieved a legendary status.
On Captain Dragan’s first day of testimony, the prosecutor, Dermot Groome, showed a videotape of a celebration of the Red Berets in 1997, which Milosevic attended. It lasted 50 minutes, showed nearly every member of the Serbian Secret Service (SDB), and included a speech by the infamous Franko Simatovic (a.k.a. Frenki) who was chief of special operations for the Serbian Secret Service. In it, Frenki described Red Berets’ glorious history and its strength (5,000 men fought in Croatia and Bosnia; the Red Berets had 26 training camps there). Awards were given – plaques and watches. Milosevic handed them out, smiled, and reviewed the troops. The significant point of the videotape was establishing that this paramilitary group that fought in Croatia and Bosnia on the Serbian side was connected to the Serbian Secret Service – hence to Milosevic – while Milosvic’s defense to charges of ethnic cleansing in Croatia and Bosnia is that Serbia, and he as Serbia’s president, had nothing to do with it. The other remarkable thing about the videotape is that the SDB actually made it – filming all its security agents!!
Captain Dragan testified that he’d seen the videotape for the first time when he arrived in The Hague, it accurately reflected the 1997 event and he thought it was so good he’d asked for a copy. This testimony later proved his undoing….
‘KAPETANE’ DRAGAN BECOMES A HOSTILE WITNESS
February 23, 2003, the "Kapetane," as Milosevic addressed him in court, followed the orders "from the top," which he said meant either the minister of the interior or the president (Milosevic), and stayed in Belgrade. There he set up the Captain Dragan Fund, capitalizing on his popularity to raise money to support disabled veterans, their wives and children. He proudly turned over all his records to the ICTY – all 67,000 applications which showed how, where and when each veteran was injured and under whose command he had been fighting. It wasn’t until he was in court and Mr. Dermot Groome, the prosecutor, was leading him through authentication of the records that Vasiljkovic realized the significance of the records for the prosecution. They show that men from Serbia fought in Croatia and Bosnia under Serbian commanders in units connected to Serbia. When the light bulb went off in court, he became a bit defensive and hostile to the prosecutor.
The Serbian, Bosnian, French, and Dutch journalists who watch the trial on a daily basis were thoroughly enjoying Captain Dragan’s testimony. It was dramatic – and damning for Milosevic. Then came cross-examination. How would Milosevic handle it, we all wondered? With the first word out of his mouth, the answer was obvious, he would woo him like a lost lover. "Kapetane," (Captain) he began. Yet Milosevic must have known that the Kapetane had played a role in his overthrow, taking over the Radio Television of Serbia with 170 armed men and a couple anti-tank rocket launchers. But Milosevic is an actor. Whether he harbored hate for Captain Dragan, he would not let it interfere with the day’s planned performance.
Milosevic helped Vasiljkovic understand that the "top guy" had never wanted to get rid of him – he was merely trying to protect him. Babic was the bad guy. "Oh, now I see! That is logical!" the Captain said. From there on, he said everything Milosevic wanted him to say. He hadn’t meant that the police, security service and army from Serbia were involved in the Krajina – he meant the Krajina police, Krajina security service, Krajina army. The videotape was an intentional exaggeration to impress him as president. He’d talked with Frenki who agreed that his speech had stretched the truth and that the other elements of the videotape showed it was "theater," not reality. This statement, too, would come back to haunt Captain Dragan.
After more than a day of this reunion and love fest, we were all wondering how Mr. Groome was going to deal withthe Captain’s 180-degree turn. Groome is one of the best trial attorneys at the ICTY, so it was a pleasure to watch. He began by getting the witness to say that he stood by everything he’d said in court. He’d been worried, hadn’t supported the ICTY, but he was very pleased with his experience. Groome began reading from the transcript and from Vasiljkovic’s earlier sworn statement to the Office of the Prosecutor (OTP), as well as an interview he had given the news magazine Vreme in which he categorically says he and his Red Berets were connected with the Serbian security service (SDB).
As the witness grew more agitated, the judges started to get nervous, too. It looked as if the prosecutor was going to impeach his own witness. In common law legal systems, it’s possible for the party who has called a witness to have that witness declared hostile if he changes his story on the stand in such a way that he is pretty clearly supporting the opposition’s case. Tribunal rules don’t address the issue and there’s been no court ruling on it. This would surely have been a good case for adopting it, but the judges were uncomfortable. Groome said he wasn’t asking them to declare the witness hostile at this point, he merely wanted to explore the contradictions in his testimony. The court allowed him to continue against the advice of the amicus who argued that the prosecution had to live with what his witness said.
As Groome continued leading him through the contradictions between what he’d said on cross examination and what he’d said on direct examination and in his statement to the OTP investigator, Captain Dragan yelled, "I’ve been tricked!" "Did you read and sign that statement?" Groome wanted to know. Yes, he had and those were his initials but it wasn’t what he said, or what he meant. "Are you saying it’s a forgery?" "Absolutely it is a misrepresentation, yes!"
What you need to know before I go on is that there is a tribunal rule that once a witness has begun testifying, he or she cannot discuss their testimony with anyone – family, friend or prosecutor. The judge routinely reminds every witness of this, sometimes before breaks, always at the end of the day if the testimony will continue.
Groome then asked, "Is Frenki Simatovic a friend of yours?" "Best friend," said Vasiljkovic. "Did you talk to him before coming here to give your testimony?" "Yes, about 15 minutes before I left." "Have you talked to him since coming here?" "Yes," admitted Captain Dragan. "Did you talk to him about your testimony?" For whatever reason, Vasiljkovic decided to ‘fess up and answered yes – "but only for 20 seconds," then they talked about going to dinner when he returned. "Did you discuss the videotape of the 1997 ceremony?" "Yes, but not since coming here." Groome reminded him that he’d testified he had not seen the videotape before coming to The Hague. Captain Dragan was caught. He tried to explain it away by saying he hadseen parts of the video before, but it sounded lame. Groome merely said, "No more questions, your honors."
Groome’s re-examination was not only exceptionally well done, it was vital that he did it. If he had not, those who were trying to undermine the trial would have succeeded in making it appear that Captain Dragan was just a liar, nothing he said could be trusted. It did not quite turn out that way because Groome showed motive and provided a context for the judges to be able to decide when Vasiljkovic was telling the truth and when he was not. At the end of the day, it appeared the SDB had gotten to him – whether through threats or bribes – and, through his friend Frenki, helped him construct a story that insulated the SDB, and, whether intentionally or not, Milosevic….Now we know where screenwriters get plots for those grade B thrillers....
Attorney Susan E. Marshall, who obtained permission and edited these email dispatches by attorney Armatta, is an attorney in Hopkinton who works in legal research and administrative rules, and is a member of the New Hampshire Bar Journal Advisory Board. To read attorney Armatta’s official reports, visit www.cij.org. and to receive the emails of her observations, contact her at Jarmatta@cij.org.