ICTY: LORD OWEN'S TESTIMONY A MIXED BAG FOR PROSECUTION'S CASE AGAINST MILOSEVIC

Identifier: 
03THEHAGUE2867

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 002867

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - ROSSIN,
EUR/SCE - STEPHENS/GREGORIAN, L/EUR - LAHNE, L/AF - GTAFT.
INR/WCAD - SEIDENSTRICKER/MORIN

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY
TAGS: BK, HR, KAWC, NL, PHUM, PREL, SR, ICTY
SUBJECT: ICTY: LORD OWEN'S TESTIMONY A MIXED BAG FOR
PROSECUTION'S CASE AGAINST MILOSEVIC

REF: THE HAGUE 2835

Classified By: Clifton M. Johnson, Legal Counselor, for reasons 1.5(D)
and 1.6.

1. (C) Summary: Trial Chamber III of the International
Criminal Tribunal for the Former Yugoslavia (ICTY) heard
testimony from Lord David Owen the first week of November.
As an international negotiator, Lord Owen insisted that the
Trial Chamber call him as a neutral witness rather than being
called by the Prosecution. His testimony in some ways
tracked his self-proclaimed neutral position, sometimes
characterizing events in ways that undercut the Prosecution's
case. For lead prosecutor Nice, however, Owen provided
helpful evidence in building a case of omission against
Milosevic (see para 11). The Trial Chamber also heard
testimony from a protected witness testifying to crime-based
events largely in closed session. Additionally, Milosevic
completed his cross-examination of David Harland. The trial
chamber also issued an order allowing it to sit in session
with a judge absent due to health related issues. End
summary.

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Lord Owen's Testimony
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2. (C) On November 4 and 5, the Trial Chamber heard from Lord
David Owen, former Bosnia peace mediator and one-time British
foreign secretary. He initially turned down a request by the
Prosecution to appear before the court in the Milosevic
trial, refusing even to speak with lead prosecutor Geoffrey
Nice about such testimony and preferring to be called by the
Trial Chamber itself in order to maintain his supposed
neutrality in the matter. Lord Owen emphasized his view that
evil was committed on all sides, though more so by Bosnian
Serbs than Bosnian Croats or Muslims. He repeatedly stated
that blame for the events in the Balkans is carried by many
parties including the United Nations Security Council and
even himself. Senior prosecutor Dermot Groome commented to
Embassy legal officers that Owen was a very credible witness,
especially since he testified that he held himself to be
partially responsible for the mass murders that occurred in
Srebrenica.

3. (SBU) Owen submitted a 42 page statement to the
prosecution which outlined his role as an international
negotiator in the Balkans and his experiences with the
Accused in that role, largely drawing upon relevant portions
of his book, Balkan Odyssey. The statement provided detailed
accounts of the relationships that Milosevic had with
political rivals and other leaders including, among others,
Corsic, Panic, Karadzic, Mladic and Krajisnik. Lord Owen
characterized Milosevic as "not fundamentally racist -- he's
a pragmatist who wanted Serbs to be in the majority. I don't
think he was an ethnic purist."

4. (SBU) Milosevic and Owen established a cordial and
respectful rapport during the cross-examination. Milosevic
was composed and effective during the cross-examination,
adroitly leading the witness to praise the "peacemaker" role
Milosevic played in the Balkans. Indeed, Owen offered
occasional praise and justification unprompted by the
Accused. At one point, when Milosevic offered that great
atrocities were being committed against the Serbs and the JNA
was trying to prevent further conflict, Lord Owen
side-stepped the question by stating that he wasn't sure
whether Milosevic was helpful in that case, but that he was
very helpful in the Vance-Owen peace negotiations. Further,
Owen suggested that Milosevic had a "justified grievance"
against the West since they accepted maps that were drawn in
1944 rather than ones in 1991 that reflected the actual
ethnic populations.

5. (SBU) Owen also cast Milosevic as someone committed to,
and an active participant in, the peace processes. However,
he did suggest that Milosevic did not do enough for peace.
Owen's chief complaint against Milosevic was that he had not
put enough pressure on the Bosnian Serbs to accept the
Vance-Owen peace plan. He stated that by refusing to
threaten the Bosnian Serbs' supply of oil and weapons flowing
from Serbia when they rejected the peace plan, Milosevic was
responsible for delaying the peace process for two and a half
years. Lord Own stated that he wished Milosevic had used his
influence earlier to support peace.
6. (SBU) Owen contrasted Tudjman's "blatant" use of Croation
Army forces in Bosnia with Milosevic's "clever" way of using
Serbian forces in the war. Yet Owen did some serious damage
to Milosevic regarding the presence of JNA troops in Bosnia.
Milosevic claimed that once the independence of Bosnia was
recognized that no JNA troops were active in Bosnia, except
for one small exception. Owen dismissed this statement
saying that the JNA was involved and that Serbs not born in
Bosnia were active there. He stated that JNA were more
subtle in disguising their presence than their Croatian
counterparts.

7. (SBU) During the cross-examination, Owen reserved his
harshest comments for Milosevic's political rivals. He
suggested that Milosevic lost much power and influence over
the Bosnian Serb leadership after Karadzic revoked his
signature from the Vance-Owen peace plan. He commented that
Karadzic signed a lot of documents while holding and
espousing opposite views in other forums. Owen showed that
he holds particular contempt for Mladic. In responding to
Milosevic's assertion that Mladic was not capable of the
atrocities in Srebrenica, Owen stated that he did not share
this view of Mladic and that there was a "brutality about the
man." He also stated that Mladic was a racist and that he
could have ordered, been complicit, or acquiesced to a
massacre of Muslims.

8. (SBU) Owen went on to say that Milosevic was very helpful
in preventing Mladic from taking Srebrenica in 1993. He
stated that Milosevic was "well aware of the dangers" if
Serbs went into Srebrenica, given the historic tensions and
conflicts there, and even referred to the risk of a
"massacre." There was similar recognition of the risk in
1995. Owen lamented that the events in Srebrenica in 1995
was the worst episode of the conflicts in the Balkans and he
partially holds himself responsible for not telling more
people of the danger. He also placed part of the blame on
the Security Council, which knowingly declared Srebrenica a
safe area without providing the requisite troops.

9. (SBU) On another issue Owen partially came to the
Accused's defense stating that Milosevic gave up the idea of
a "Greater Serbia" after 1993. He noted that as a
pragmatist, Milosevic realized that once the Vance-Owen peace
plan started that some Serbs would have to live outside of
Serbia. When Milosevic pushed the point to say that the
leaders of Republica Srspka also never held a "Greater
Serbia" view, Owen responded that this was a reasonable view,
but that he personally does not accept that interpretation.
Owen went on to say that Milosevic and others likely had
aspirations for a different map.

10. (SBU) Owen ended his cross-examination by Milosevic with
a lofty statement that "sometimes leaders must lead their
people against public opinion and against ultra-nationalistic
views." He went on to say that, "some of the greatest acts
have occurred where leaders have acted against the majority
opinion." However, the Amici, through their
cross-examination, pointed out that many of the positions for
peace that Milosevic took were politically unpopular and even
in some cases resulted in substantial loss of influence. The
Amici also pointed out that after Pale had rejected the peace
plan, the leaders in Pale felt they could reject Belgrade and
could make their own political decisions. Owen seemed to
accept this characterization and even when so far as to add
that the Amici's line of questioning showed the "wisdom of
the chambers to have the Amici to insure a fair trial."

11. (C) Lead Milosevic prosecutor Geoffrey Nice, while
acknowledging the mixed nature of Owen's testimony was
confident that it was helpful to the prosecution. He said
that Owen demonstrated that the risk of a massacre in
Srebrenica was apparent from 1993, testified that Milosevic
himself had alluded to the danger of a "massacre" in 1993,
and showed that the risk was recognized again in 1995.
Against this backdrop of awareness was testimony that during
this period the VRS was supported by Milosevic and Kardzic
had lost control over Mladic leaving Milosevic as his main
influence. For Nice all of this added up to, essentially, a
case of omission against Milosevic. Nice said that he would
pursue evidence of direct responsibility where he could find
it but that for legal purposes a case based on the accused's
failure to act would suffice. explained the value of Owen's
testimony in a conversation with Embassy legal officers.

---------------------------------
Other Testimony -- Nov. 5-6
----------------------------------

12. On November 5, the Trial Chamber also heard from a
protected witness, identified as B-1531, who offered
crime-based testimony. Much of the witness' testimony was
taken in closed session. On November 6, the Trial Chamber
heard the completion of the cross-examination of David
Harland, UN civil and political affairs officer in Sarajevo.
Harland's evidence-in-chief and the start of the
cross-examination occurred on September 18, 2003. During his
initial testimony, he spoke of his experiences during
negotiations with the leaders in Pale, notably Dr. Karadzic
and General Mladic, and of his experience with shelling and
sniper activity in Sarajevo. He also spoke about the command
structures in Pale and related his experiences that showed
how Pale could control snipers and paramilitary units when
they wanted to. He also spoke about the methods used by the
Bosnian Serbs when they ethnically cleansed Muslim towns. In
contrast to the tone of Owen's testimony, Harland described
Milosevic as "holding the hand" of Pale through his influence
on the military. He testified that the Pale leadership was
frustrated with Milosevic for staying their hand in many
cases. He later recounted how a major report he researched
and drafted for the UN Secretary General made no connection
between the massacres in Srebrenica and Milosevic, yet he
concluded personally that Milosevic must have known about the
military actions to take the town.

13. (SBU) Harland in general testified to the support
Milosevic and the JNA provided Pale. He spoke about how
General Mladic would openly acknowledge that he had 100s of
tanks supplied by the JNA and how these forces were used to
ethnically cleanse Muslim towns. Harland also stated that
there was a clear link between Belgrade and the Bosnian Serb
Army. He noted that at critical moments, Belgrade was able
to influence the behavior of the Bosnian Serb Army. Harland
concluded, given that Milosevic could assert control over the
Bosnian Serb Army when he wanted it, that Milosevic must have
acquiesced to the shelling in Sarajevo, the sniping, the
attacks on safe areas, and even the massacre that followed
the fall of Srebrenica. He claimed that Milosevic could have
done vastly more to prevent these attacks given that the
Bosnian Serbs were almost entirely dependent on support from
Serbia. Harland charged that the cause of peace was not
advanced by "giving the Bosnian Serbs the full military
support they needed to secure, ethnically cleanse, and hold
very large territories."

14. (SBU) On November 6, Milosevic concluded his
cross-examination of David Harland. During this segment of
the cross-examination the Accused asked questions primarily
regarding the circumstances in Sarajevo. When Milosevic
asserted that Serbs "allowed" Muslims to leave their
enclaves, whereas the Muslims did not allow the Serbs the
freedom to leave, Harland corrected Milosevic stating that
the Serbs "forced" the Muslims to leave. Harland also
discussed the varied treatment that different ethnicities
received through the various controlled areas of Sarajevo.
He also addressed the two Makale Market shellings. Milosevic
made his usual argument that the preliminary report concluded
that it was a Muslim attack. Harland noted that later
reports could not conclude the source, since it was too close
to the confrontation line. However, he noted that for shells
that they could detect the source almost all shells falling
on the Muslim side came from the Serb lines.

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Judge Robinson Ill
------------------

15. (C) On October 21, the Trial Chamber issued an order
under Rule 15 bis allowing the Trial Chamber to sit in the
absence of Judge Robinson due to medical reasons on November
25 and 27 and on December 2, 3, 4 of 2003. While Embassy is
unfamiliar with the nature of Judge Robinson's illness,
prosecutor Dermot Groome commented to Embassy legal officers
that Judge Robinson's health may further impact the Milosevic
case in the future.

16. (C) Comment: In his courtroom confrontation with David
Owen, Milosevic demonstrated a feistiness and focus
consistent with the observation of those who see Milosevic
regularly (reftel) that he tends to relish the opportunity to
cross witnesses he views as his "peers". His vigorous,
engaging cross-examination brought out the complex nature of
Owen's views, which were not altogether helpful to the
prosecution. In that sense, the accused can claim this
witness as a success. Still, the negatives remain for
Milosevic, especially Owen's testimony concerning the
presence of JNA troops in Bosnia and the fact that Milosevic
was aware of the risk of a massacre in Srebrenica.
Ultimately Owen's value to the prosecution will depend on
whether other witnesses can fill in the gaps and whether the
chamber is prepared to convict Milosevic on a case based
largely on acts of omission. The coming weeks will see
additional testimony from witnesses, including former State
President Boris Jovic who will testify next week, that will
present an even more mixed bag for the prosecution. End
comment.
RUSSEL