“It is important to note that Serbia did not hand over to the Prosecution (OTP) the complete collection of SDC [Supreme Defense Council] records. For example, for the year 1995 the OTP received recordings for only about half of all the sessions held by Supreme Defense Council…The dates of the missing meetings or the meetings where this lesser form of record was provided, as I recall, were significant – namely dates leading up to, surrounding and in the aftermath of the Srebrenica massacre.”
Sir Geoffrey Nice, Prosecutor in the Milosevic trial.
Interview by Nihad Krupic
[Originally published on KBSA 2000 Portal, March 30, 2010, Vancouver, Canada]
Sir Geoffrey Nice was born in London in 1945, attending St. Dunstan’s College in Catford, South London and Keble College Oxford. Sir Geoffrey was lead prosecutor in the trial of Slobodan Milosevic at the Hague, unfortunately never seeing the end of his efforts, due to the sudden death of the former Serbian president. Sir Geoffrey also prosecuted several cases for the International Criminal Tribunal (ICTY) from 1998 onward, including the cases of the Bosnian Croat Dario Kordic who was subsequently jailed for 25 years and the successful prosecution of Goran Jelisic, the self-styled “Serbian Adolf,” jailed for 40 years. Today as then, he notes that the judges ruled at the end of the prosecution’s presentation that there was enough evidence for the case to proceed against Milosevic on charges of genocide, crimes against humanity and violations of customs of war, with more than ample evidence for conviction and little or nothing presented by the defence that would undermine the prosecution’s case.
Milosevic worked behind military chains of command
Milosevic died before judgment by the ICTY Tribunal Judges but as Prosecutor in the case, do you have any doubt in your mind that the court would have convicted him on the basis of evidence?
Geoffrey Nice: It would be wrong for me to express any conclusive view about guilt or innocence. It is worth recalling that at the end of the prosecution case the judges found that there was sufficient evidence for the case to continue on almost all counts in the indictment – acquitting Milosevic for the most part only of those allegations for which the Prosecution had not had time to call evidence. Nothing in the defence evidence, in my view, dented the case we had presented and much of it actually supported and improved our case. However, I would not have expected the chamber to have convicted Milosevic of everything charged. At the end of the Prosecution case there was a split of opinion among the judges about the genocide charges. One judge, in a minority, found there was insufficient evidence for the trial to continue for the worst form of genocidal culpability but sufficient evidence for lesser forms. The other two judges, the majority, found that there was sufficient evidence for the trial to continue for all forms of that most serious of offences (including genocide).
Is there any doubt about the culpability for genocide and war crimes of the then Belgrade government under Milosevic?
Geoffrey Nice: It is true that individual criminality in the case of mass atrcoities and political violence will involve criminal culpability of individuals as well as of the state or, rather, state institutions. Unfortunately, the ICTY Prosecutor did not indict all others at the top of Serb leadership in office when the Bosnian war was pursued, and thus when Srebrenica and the genocide there occurred. The ICTY did indict General Momcilo Perisic as Chief of Staff of the Yugoslav Army (VJ), along with some other military and paramilitary officials. These trials are still not concluded and, besides, they deal with the charge of genocide in Bosnia in a very limited way – mostly for aiding and abetting. So it is not possible to turn to any judicial record for an answer to your question. There was, of course, evidence that Milosevic sometimes worked behind the backs of others in government and behind military chains of command. But it is hard to conceive that this extent of the involvement of Serb forces in Bosnia could be without the knowledge and approval of Milosevic and his political and military collaborators. This was reflected to some extent in his indictment and the indictments of his indicted collaborators through the application of the ‘joint criminal enterprise’ (JCE) theory. Individuals could be identified in the three Milosevic indictments who were, de jure or de facto, part of Milosevic’s power circle and who could be held criminally responsible for things that happened by reason of their membership of the JCE. These individuals worked at the federal level, at the republican levels of Serbia and Montenegro, or at the level of Republika Srpska Krajina and Republika Srpska. Many of them were mentioned in one or other of the three indictments against Milosevic but not all of them were indicted. The best – or at least the most comprehensive – indictment was for crimes committed in Kosovo in the period between 1998 and 1999 by Serbian forces. For those crimes several other high level politicians and military leaders were indicted and tried at the ICTY. In the Milosevic indictment, although he was tried alone, it was said that these collaborators were in the JCE with him. Similarly the indictment against them said Milosevic was in the JCE with them. Unfortunately, indictments for crimes committed in BiH were differently constructed. Some of the crucial members of the Belgrade JCE were not even mentioned in the Bosnian indictment against Milosevic. Very few others were to be tried for the crimes committed in Bosnia that were charged against Milosevic. The consequences of this would be serious. Had Milosevic been tried together with the highest level Federal politicians from Serbia and Montenegro, his death would not have meant the end of the trial. But since Milosevic stood alone in the indictment alleging these crimes, his death ended his trial and left unused the mass of evidence that had been gathered and presented to the court. The ‘spin-off’ trials – such as those of Stanisic/Simatovic and Perisic – would cover only a part of the indictment periods for which Milosevic was charged. None of these cases could explore or prove the criminality of the plan in its totality, i.e. in the time period from 1991 to 1999, which a Milosevic judgment would have achieved.
Why was the evidence admitted in the prosecution of Milosevic and others not available to the ICJ in the genocide claim made by BiH v. Serbia & Montenegro?
Geoffrey Nice: The evidence to which you refer, the SDC records, was obtained as a result of outstanding and inspired work by the Milosevic team’s top researcher. The material once identified had to be handed over by Serbia pursuant to the court’s decision, and there was no good reason for hiding any significant part of it from pubic view. Yet by a deal struck between the now former Chief Prosecutor and Serbia the most important parts of the documents are ‘blacked out’ from being seen by anyone except the lawyers and judges in our case, who were able to read them in full, although in private, in order to make arguments and to reach verdicts. The ICJ could, I believe, have asked for access to the full documents. It is simply incomprehensible to me that they did not ask for such access and chose instead to work with the redacted – the ‘blacked out’ – versions that were made public by the ICTY. Of course it would have been only logical that the initiative to request the full SDC collectuion should come from the side of the Bosnian legal team. I do not know if it actually happened.
Is there any evidence that you are aware of but that still remains confidential and helps Belgrade or perhaps others avoid facing responsibility for events in BiH and in particular betrayal of Srebrenica?
Geoffrey Nice: Certainly. First, it is important to note that Serbia did not hand over to the Prosecution (OTP) the complete collection of SDC records. For example, for the year 1995 the OTP received recordings for only about half of all the sessions held by SDC. Further, some of the SDC records were not handed over in their full stenografically recorded form but were produced as extended minutes. That means that they were shorter than steno-notes but longer than the regular minutes. The dates of the missing meetings or the meetings where this lesser form of record was provided, as I recall, were significant – namely dates leading up to, surrounding and in the aftermath of the Srebrenica massacre. The full records of those meetings need yet to be provided. At the same time, these documents, significant as they are, do not constitute a single body of evidence that will explain once and for all what happened and who was culpable. They do provide a much fuller context and provide some very valuable testimonials of things that were said by Milosevic and others. In their un-redacted form they would point all who are interested (not just governments and lawyers) to other documents that have never been provided and that might well be more candid than the words of those at the SD Council meetings who knew they were being recorded by a stenographer. Second, it should also be remembered that there are other protected document collections and individual documents which were, and still are, protected by direct agreements between Belgrade and the former OTP Prosecutor, i.e. they were not protected by the Trial Chamber. These documents are difficult now to identify but if and when Bosnia-Herzegovina decides to reopen the ICJ case it will be essential to require Serbia and/or the ICTY to produce all those documents for the ICJ.
Do you think that there is more critical evidence that even you were not given access to?
Geoffrey Nice: Without a doubt. Apart from the documents that would be revealed by exploring the SDC records, there are many documents that would show a fuller truth. Every document relevant to the truth about the wars in former Yugoslavia is likely to have been preserved in someone’s private collection. Every document that may damage one individual will be of potential value to someone else. The process of identifying what those documents are is by no means complete and was, at best, very imperfectly dealt with at the ICTY, for many reasons. It seems now unlikely that any ICTY trial or any fresh inquiry by any other legal body will or could be used as the legal mechanism to ‘unprotect’ the already protected material. Another process may be required to identify what documents exist and then to have them made publicly available. This might involve political actions by the Bosnina state institutions through the UN Security Council.
You tried to bring Ambassador Muhamed Sacirbey to The Hague to testify in Milosevic’s prosecution but it appears you faced obstruction. By whom and why do you believe?
Geoffrey Nice: I cannot say that we faced real obstruction. However, at the time it would have been very difficult to bring him to The Hague because of the restrictions on his liberty imposed by Bosnian state authorities. We were very pressed for time in the prosecution case. Ambassador Sacirbey was placed on a list of those whom the chamber might want to hear, even if the Prosecution did not call him. In the end, neither we nor the chamber was able to bring him over as a witness or to have him heard by video link.
In your recent interview on the BBC, on which same program Ambassador Sacirbey was featured (available on Kongres of North American Bosniaks, Founder of World Congress of Bosniaks website http://www.kbsa2000kbs.org/ , you echoed the need for all facts to come out regarding the betrayal of Srebrenica. Is it time for a new inquiry on Srebrenica?
Geoffrey Nice: I doubt whether any formal inquiry or any criminal trial would achieve a drastically different result. For various reasons, all such processes are likely to be limited in scope and in reach. There is always the possibility of the re-opening of the case at the ICJ. Doing this would require the political will within Bosnia and Herzegovina to reopen the case and after that the development of a new legal strategy to deal with the issue could start. Where evidence is concerned, it will be necessary to find the mechanisms to overcome the obstacles of access to the evidence, because there are many documents that are hidden from public view.
In a recent interview, Dr. David Harland of UN peacekeeping and author of original UN “report on Srebrenica” (Interview again available on Annex TV of http://www.kbsa2000kbs.org/ ), stated that a key question remains as to why the request by Dutch peacekeepers “on 5 separate occasions” was ignored by political authorities. He stated that this was a “political decision.” Do we know who made political decision to ignore requests to save Srebrenica as well as provide the needed support for Dutch troops?
Geoffrey Nice: I regret that I do not know the reason. The decisions to ignore the Dutch request have been kept secret for 15 years. That may suggest that the decisions are still seen as hard to justify. It might also suggest that very powerful entities have an interest in keeping the decisions secret
In the BBC interview previously alluded to, the Dutch Defence Minister Joris Voorhoeve stated that at least 2 of the 5 permanent members of the UN Security Council had foreknowledge of the planned Serbian attack on Srebrenica way before July 11, 1995. Ambassador Sacirbey made similar allegation for many years. Do we know which countries these are and why they kept silent and did nothing?
Geoffrey Nice: I do not know with any certainty. Guessing who the possible members are is tempting and easy – but unreliable. Ambassador Sacirbey has pronounced that the green light was given by the West for the taking of Srebrenica. This was never seriously challenged and even Sandy Vershbow, the US State Department official in charge of Bosnia policy on the National Security Council staff, said publicly in June 1995 that the US was considering some kind of territory swap that would also include the eastern Bosnian enclaves.
Are they still trying to hide something and instead blame “gays in Dutch troops” in Srebrenica?
Geoffrey Nice: The ‘Gays in Dutch troops’ explanation sound desperate and looks like the argument of someone with something to hide. There was never any such earlier suggestion to this effect so far as I know. It is likely by far to be more revealing of the person, or of the entity behind that person, making the accusation than of the DUTCHBAT. It is as absurd a claim as it would be to suggest that the Serb army was successful in its military action in Srebrenica against defenseless civilians because it was an army without gays. This looks like an attempt by certain segments within the international community to use DUTCHBAT as a scapegoat for the failings of others to protect the enclave. Investing the DUTCHBAT with the ‘shortcomings’ of this sort seems more like an attempt to prevent the inquiry leading beyond DUTCHBAT up the international military and political hierarchies.
All allegations to paint me as British intelligence are bizarre
Would you call for a new inquiry?
Geoffrey Nice: Not specifically. For the reasons given above in general terms, I think it likely that any inquiry would always remain obscured by old or new interests. But what reasons do we have to believe that any new inquiry would be different from all previous ones? There have been so many inquiries already, including the trials at the ICTY and ICJ. All these processes contributed more details and some facts, but no full picture has yet emerged. Further, why should any interests of governments that might be harmed by a full revelation of what happened – for example by explaining the failure to give air and firepower support to the Dutch or by acquiescing in advance to the take over of Srebrenica – suddenly be abandoned for the benefit of yet another inquiry?
Is this perhaps why some have now tried to paint you as British intelligence? Some have claimed that your motive is to sabotage efforts at truth? What is the real story and why are such allegations directed at you?
Geoffrey Nice: The allegations are extraordinary, totally untrue and bizarre – about as bizarre as those made by Florence Hartmann that had me as a member of MI6 when I was a schoolboy, an allegation her alleged source Azem Vllasi publicly laughed off, denying it in a live FTV broadcast in Sarajevo in the presence of Hartmann! I can not be sure why the recent un-sourced smear has been made. It is significant that it emerged with great vigour – but with no name of the author signing the text and no source of the information referenced – at precisely the same time Ejup Ganic was detained in London on behalf of Serbia for allegedly committing war crimes. I see the smear as probably an orchestrated and calculated attempt to attack my credibility and professional reputation in order to prevent my being involved in any future legal processes concerning the criminal responsibility of the Serbian state in the atrocities committed in Bosnia. It does not take a lot of imagination to work out who must have organised the smear campaign. The only plausible explanation I have is that prosecuting Milosevic I found myself in the unique position of investigating and collecting evidence on all major crimes committed by the Serbian armed forces under Milosevic’s leadership. This meant that I had access to facts and evidence about the criminality of plans hatched in Belgrade. And I know the legal theories to which this evidence would relate. All of this could be very helpful for Bosnia in its reopening of the ICJ case. Those spreading this smear must know that. It is interesting that a number of individuals from the insitutions of Bosnia-Herzegovina are very active in manufacturing untruths about me, but frankly speaking I think that this fact represents a bigger problem for the Bosnain state than for me, because the ultimate question is for whom these people work and when will they be unmasked.
How do you see yourself involved in reaching the final truth regarding Srebrenica and who is responsible?
Geoffrey Nice: What I have in mind would allow the development of an ever expandable knowledge base by a process that would democratise the gathering and publication of Srebrenica-related evidence in a way that could not be thwarted by national, international or other oblique interests. The victims of Srebrenica – living and dead – deserve the best effort to be made to uncover the maximum evidence about how the massacre happened, about who caused it and about who could have averted it. That effort may no longer be trusted to countries or international organisations, all of whom may have something to hide. What I have in mind would use every available method of gathering information and would also provide the mechanism to seek the lifting of protections from the protected documents by applying, for example, Freedom of Information statutes. But essentially what I have in mind is to create a system where the identification and gathering of all material helpful for an understanding of the Srebrenica tragedy will no longer be entrusted to institutions that cannot be relied on to do the work properly, as much information within their walls remains closed from the public.