Yugoslavia: Cooperate with the ICTY by Providing Access to Documents

Foreign Minister Goran Svilanovic
Federal Ministry of Foreign Affairs
Kneza Milosa 24-26
11000 Belgrade
Federal Republic of Yugoslavia

Dear Foreign Minister Svilanovic:

We are writing to you in your capacity as Chairman of the National Council on Cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY). We welcome several recent important developments toward greater cooperation with the ICTY, including the passage of a law by the Federal Parliament and the surrender of several senior indictees to The Hague. With the law in place we look forward to the early apprehension of those indictees who have not voluntarily surrendered to the Tribunal, and their swift transfer to The Hague.

At the same time, we remain particularly concerned about your government's failure to provide ICTY investigators access to archives and files. We believe this failure seriously undermines the other positive steps on cooperation the Federal Republic of Yugoslavia (FRY) has taken. We urge you to ensure the Tribunal's necessary access to documents.

Human Rights Watch is an international privately funded non-governmental organization that is committed to documenting and curbing human rights abuses. We have devoted a significant amount of time to researching and recording violations of international human rights and humanitarian law on all sides of the conflicts in Croatia, Bosnia, Kosovo, and the NATO war in the former Yugoslavia. We advocate individual accountability for those responsible for war crimes and crimes against humanity, as an important antidote to the unjust sense of collective responsibility that unfortunately exists in the region.

In light of the severity of the abuses and the long-standing inability or unwillingness of any of the governments in the region to hold those responsible accountable, it has been our view that the trials at the Tribunal offer the best chance for the people of the region to obtain an impartial adjudication of the alleged crimes. The Tribunal of course has its flaws, but as close and impartial observers, we have concluded that the ICTY guarantees a fair trial to all sides: rights are guaranteed to the accused, witnesses and the accused have equal opportunities to speak and question, and the prosecution impartially weighs the evidence.

However, the prosecution cannot guarantee thorough and fair adjudication unless it has access to all relevant documents, which only your government can provide. We are deeply disturbed by reports the FRY has ignored numerous ICTY requests for materials.

We have noted Federal Interior Minister Zoran Zivkovic's and Serbian Interior Minister Dusan Mihajlovic's recent statements that FRY and Serbia will provide access to some, but not all, of this material. Mr. Zivkovic has alluded to certain documents that will remain sealed for up to thirty years. He said documents that may threaten national security interests would be withheld, but he made no mention of the Tribunal's procedure for dealing with such items.

The Tribunal's Rules of Procedure and Evidence outline the steps for document production when a state has reason to believe certain evidence may threaten national security interests. Rule 54 bis authorizes the state to object to the request. The state can then ask for various protective measures, including an ex parte hearing and submission of documents in redacted form. The Tribunal can also authorize a single judge to examine the documents and allow the state to provide its own interpreters and translators. Of course, the Tribunal can also decide in favor of the state's objection and deny the prosecution's request for the document altogether. These important safeguards should assure the FRY and Serbian governments that providing the Tribunal with access to crucial archives will not pose a threat to genuine national security interests. National security cannot therefore provide a basis for your government's continued failure to abide by its international obligation to provide the ICTY with access to relevant government archives.

We urge you as Chairman of the National Council on Cooperation with the ICTY to take immediate steps to provide necessary access to archives and files, including those protected by the Yugoslav Army; the Yugoslav Ministry of the Interior; the Serbian Ministry of Interior, including the State Security; the Yugoslav Presidency; the Yugoslav Cabinet; the Yugoslav Defense Ministry; the Serbian Presidency; and the Serbian Cabinet.

In addition, the large scope of potentially relevant materials, we believe it is essential for the FRY to furnish an explanation of the classification system of the relevant archives. We urge you to provide the organizational charts and indices of these archives to Tribunal investigators and to make senior archivists available to them. This will enable the ICTY to determine which archives are actually relevant and save time and the unnecessary expenditure of resources.

The current obstacles to prosecutorial review of the archives have left Slobodan Milosevic and his associates in Belgrade with greater access to official files than the Office of the Prosecutor.

We urge you to take the necessary steps to change this situation in order to assure the fairest trial possible. At stake is Yugoslavia's economic and political integration into Europe, as well as the credibility of your government's commitment to uphold the principles of human rights and the rule of law in post-Milosevic Yugoslavia.

Thank you for your attention to our concerns.

Sincerely,

cc
U.S. Secretary of State Colin Powell
U.S. Senator Patrick Leahy
U.S. Senator Mitch McConnell