War Crimes—ICTY Update

Secret Files Update
Today, in an apparent response to increased pressure in the wake of the recent arrest of Croatian Gen. Ante Gotovina, Serbia handed over a secret file on fugitive Gen. Ratko Mladic to ICTY officials.^[1] The report had been turned over earlier this year, but with key portions missing. The file in the hands of ICTY Chief Prosecutor Carla Del Ponte is now reportedly complete.^[2] The file is thought to contain information about Gen. Mladic’s orders and movements during the 1991‑1995 war in Bosnia.^[3]

Del Ponte is scheduled to submit her final report on Serbian cooperation to the UN Security Council shortly. In the past, perceived non-cooperation with the UN in bringing individuals wanted for war crimes has met with aggressive political and economic sanctions.^[4] Bosnia‑Herzogovina and Serbia have recently embarked on negotiations with the EU for a new aid and trade agreement and are especially susceptible to pressure at this moment.^[5]

Slobodan Milosevic
The Trial Chamber today denied Slobodan Milosevic’s request, through his assigned counsel, for Tribunal assistance in bringing British Prime Minister Tony Blair and German Chancellor Gerhard Schröder to appear as witnesses for the defense.^[6] The judges ruled that no legitimate forensic purpose would be served by calling either leader to present evidence in this case.^[7] The Chamber declined to rule on the Prosecutor’s argument that the proposed witnesses should be accorded immunity from subpoena by the Tribunal because of their status as senior state officials.^[8]

Throughout the trial, Milosevic has maintained a long and ambitious list of witnesses that he wishes to call in support of his case. Last October, Milosevic asked for an extension to call almost 200 witnesses to testify in The Hague, among them Schroeder, Blair, former U.S. President Bill Clinton, and retired U.S. General Wesley Clark.^[9] Blair and Clinton were the main Western leaders associated with NATO's bombing campaign in Kosovo in 1999 and Clark directed the bombing; Schroeder was German chancellor at the time.^[10] General Clark testified for the Prosecution in December 2003 with regard to events contained in the Bosnia and Croatia Indictments.^[11]

Milan Martic
The trial of Milan Martic is scheduled to start next Tuesday, December 13, 2005.^[12] Martic is charged with ten counts of crimes against humanity and nine counts of war crimes under theories of both individual responsibility and superior (command) responsibility.^[13] The Prosecutor alleges that Martic, in his capacity as leader of special police forces in the Krajina region, was the member of a joint criminal enterprise designed to ethnically cleanse regions in Croatia and Bosnia Herzogovina in order to create a Serbian-dominated state.^[14] Many of the acts alleged specifically in the indictment are related to shelling attacks on Zagreb in May 1995. The defense is likely to focus on whether Martic actually had de facto control of his forces and whether the acts in question are more likely ascribed to a triple-fronted civil war than to a plan for ethnic cleansing.

This case will be heard by Trial Chamber I, Judge Alphons Orie presiding. Trial Chamber I is concurrently engaged in hearing the case in defense of Momcilo Krajisnik.^[15]

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[1] Associated Press, Serbia Hands Top Fugitive's File to UN Tribunal, Dec. 9, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] The Independent, Latest Capture Adds Momentum to the Search for Karadzic and Mladic, Dec. 9, 2005, available here.
[6] ICTY Press Release, Dec. 9, 2005, available on the ICTY website here.
[7] ICTY Trial Chamber I, Decision on Assigned Counsel Application for Interview and Testimony of Tony Blair and Gerhard Schröder, Case IT-02-54-T, Dec. 9, 2005, available on the ICTY website here.
[8] Id.
[9] Reuters News Service, Milosevic Denied Blair’s Testimony, Dec. 9, 2005, available here.
[10] Id.
[11] List of Prosecution witnesses is available on the ICTY website here.
[12] ICTY Press Release, Dec. 8, 2005, available on the ICTY website here.
[13] ICTY Amended Indictment, Prosecutor v. Milan Martic, Case IT-95-11, available here.
[14] Id.
[15] The schedule of case assignments at trial and appeal is available on the ICTY website here.