by Nenad Lj. STEFANOVIC
Before being permitted to leave, but under threat that he may end up in jail after being found in contempt of the court, this anonymous witness only managed to take the oath and declare that he had served the mandatory military service and is a driver by profession. Based on these few facts many immediately speculated that K-12 could actually be the man who confessed last year (naturally without a name and surname, and before Slobodan Milosevic was extradited to the Hague) to the Italian news agency ANSA that he had driven sealed refrigerator trucks with corpses from Kosovo to a destination somewhere in eastern Serbia about ten times (always at night). And that on one occasion, with assistance of a friend, he photographed the fridge truck and its "cargo", after which he immediately left the country.
IMPORTANT DETAIL: Vreme published a part of that confession in June of last year, adding that the source of the tale was a potentially protected witness who is enjoying protection of the court somewhere abroad, but also a man whose shame because of what he had done was stronger than any fear of consequences of speaking out about that. An important detail of the newspaper confession of this anonymous driver of a refrigerator truck was his claim that transportation and burial of corpses from Kosovo started in secret even before the beginning of the NATO attack on FR Yugoslavia. Another indication that K-12 is actually the man who last year contacted the media as a potentially important Hague witness could be a telling question (one of few) by prosecutor Geoffrey Nice - who came to see you in February of 1999? This question provoked the first "explosion" after which the witness refused to continue with his testimony.
Regardless of the identity of the man behind the code K-12, and regardless of whether he is the driver who has told his story with a lot of detail to the newspapers, this witness definitively won't leave the Hague that easily. Judge Richard May warned him that he could be found in contempt of the court, and the Hague secretariat will assign him a defender in the next few days. All that in hope that K-12 would in the meantime change his mind and agree to testify in front of the court whose prosecution obviously expected a lot from his appearance in the courtroom, and most likely invested quite a lot in his care and protection since the time he left FR Yugoslavia. Within one month a hearing regarding the fate of this witness will be held. According to the statute of the tribunal (rule 77), he could be punished by 12 months in prison or a 18,000 Euro fine. In some cases the court may apply both punishments concurrently, prison sentence and a fine. Before leaving the courtroom, witness K-12 declared that he was prepared to stay in prison as long as necessary.
The decision of this witness, despite long preparation for the trial and guaranteed protection, to suddenly shut up and without any explanation spare the defendant, Slobodan Milosevic, of possible unpleasant truths he would have to face, immediately provoked different commentary.
Advocates of the "conspiracy theory" and opponents of the Hague Tribunal saw in all that only a skillful move by prosecutor Geoffrey Nice. According to them Nice staged the whole incident so that he could allegedly justify stories about difficulties he faces in bringing reliable "insider" witnesses to the Hague, as these witnesses are either intimidated or reluctantly agree to any sort of cooperation. Thus the fearful witness was meant to suggest to the public that Milosevic, although in custody for almost a whole year, is able to influence those who are thinking whether to testify against him even from the Scheveningen prison. The punishment of witness K-12 would also serve as a warning to all those who are still thinking whether to testify against Milosevic or not. According to the same theory, that is at the same time the way to convince judge May's bench to assume a more activist role in bringing important witnesses to the Hague. Those who refuse the summons to testify in the Hague can be found in contempt of the court and prosecuted. Those who refuse the summons of judges (at prosecutor's request) to testify in the Hague may be punished according to the Tribunal's Statute.
This "conspiracy theory" about the alleged "theater" arranged in the courtroom by prosecutor Geoffrey Nice, however, does not seem very convincing, regardless of occasional Nice's histrionic outbursts. Judging by several spoken sentences, the witness K-12, despite a digitally distorted image of his face, appeared as a man on the brink of a nervous breakdown, in whom fear had in the meantime (if he is indeed the same person) overcome the sense of shame in connection with things he has done. Fear and dilemmas that are obviously affecting this man cannot be learned and acted in any theater and consequently all stories about a "staged" incident in the courtroom are rather unconvincing. Also, it is difficult to believe that anyone in the prosecutor's office would have consciously opted for such a confusing maneuver that would be more likely to give impetus to stories about the lack of preparation and confusion in Carla del Ponte's team, rather than increase sympathy for the troubles the prosecution faces in the "trial of the century".
The debate about the fate of witness K-12 will be another very interesting "side issue" in the Hague, whose consequences could be far reaching, especially for the so-called Rome Court, which should finally start with work the following summer. The hearing in connection with Washington Post correspondent Jonathan Randal started on May 10 in the Hague. The court has requested that the journalist take the stand as a witness in the trial of Radoslav Brdjanin. Randal, his newspaper, and their lawyer (one of most distinguished British lawyers Geoffrey Robinson) believe that journalists (if they are truly that) have nothing to do as trial witnesses (more about this issue and other issues related to "journalists witnesses" in the Hague in one of the forthcoming issues of Vreme). The decision whether Randal can be forced to testify should be announced roughly at the same time by when it should have been decided whether witness K-12 will have to go to jail. The prison sentence for being found in contempt of the court could catch up with the American journalist as well, especially since he lives in Paris. If he were living in the US, he would have been safe.
TALKATIVE AND TACITURN: Protected witness K-12 was only the second, out of 70 prosecution witnesses in the trial of Slobodan Milosevic to take the oath in the Serbian language. The other protected witness' codename was K-3. Later, it turned out that K-3 was actually Ratomir Tanic and that he was a rather suspicious and unreliable "insider". Unlike witness K-12, who refused to say almost anything, witness K-3 was very talkative, except when he was supposed to talk about his education and some suspicious dealings from his youth.
Late last week, a pretty dramatic discussion about the progress of the trial of Slobodan Milosevic took place between these two witnesses, who can hardly be described as successes for the prosecution (true, some advocates of the Hague Tribunal believe that Tanic is a "delayed action" witness who will demonstrate his "importance" and "significance" only when some of those he mentioned in his testimony as moderate and honest individuals testify in the future). For the first time in three and a half months since the beginning of the trial prosecutor Geoffrey Nice totally openly and rather emotionally confessed that his case was not going as planned. He complained about the lack of time and inability to conclude the Kosovo part of the prosecution case by July 26 and question all the relevant witnesses (he suggested that the deadline be moved to the end of October), admitted that some of the witnesses had lied, especially about the KLA role, implied that many important witnesses are will indecisive or summoning courage to appear in the court, openly despaired that in some other legal systems "insider" witnesses, whom he has a hard time compelling to testify, would be very easily forced to appear in court and almost begged judge May to intervene in connection with bringing of reluctant witnesses to the Hague. Nice finally indirectly suggested that he still does not have the right and sufficiently convincing witness for his charges, three and a half months since the beginning of the trial he himself described as the most voluminous trial since the end of WWII, and admitted that the whole trial could look very different with only one sufficiently strong witness. Only one witness, but the right witness.
Judges May, Robinson, and Kwon first criticized Nice's intent to yet again extend the deadline for the end of presentation of the prosecution's case in connection with the Kosovo part of the indictment. A trial lasting more than three years cannot be a fair trial, judge Patrick Robinson claimed, and with new delays, if any, it is unlikely that the trial could be finished in three years. Tension between the bench and the prosecution could also be noticed at the moment when judge May observed that the witnesses offered so far by the prosecution did not address the most important parts of the indictment (and at the same time those parts that are most difficult to prove) - joint criminal conspiracy and command responsibility. Instead, judges complained that first and second hand testimony from the spot [of committed in crimes in Kosovo] has been going without an end.
Certain legal experts have been emphasizing for a while that the Kosovo part of the indictment is quite shaky, due to the fact that from the very start of the trial prosecutor Nice has decided to seek something that can be very difficult to find and prove, even if it exists. And that is the "joint criminal conspiracy", that is some written document from the early nineties proving that Milosevic and his henchmen set down one day and made a plan to later refashion the former Yugoslavia. In such endeavors there usually is no plan, and crimes and persecution usually appear "spontaneously". Many witnesses in the Hague have confirmed that crimes did take place, but very few of them managed to demonstrate any Milosevic's personal responsibility for the crimes, point out the stone that hides the criminal plan of the leadership of Serbia, or perhaps the person who destroyed evidence of such a plan.
In order to prove the most important charges in the indictment, Nice will have to come up with much "better" and convincing witnesses than the "I'm insider, scouts honor" sort, in a very short period of time, despite all the problems he was complaining about. He could seek them, through various sorts of deals, among the new arrivals to the Scheveningen prison, as well as among those who could travel to the Hague based on rule number 70. These are witnesses whose appearance in court requires a special approval, as they are mostly, due to nature of their former office, obliged to protect various state and military secrets. Some of them have in the past rejected the idea of testifying in the Hague, which did not prevent the prosecutor's office from again contacting them and discussing the same topic. Also, some ten days ago, in the streets near the tribunal, rather openly and without any visible protection measures or attempts to hide, we could see a local general who must know a lot about wartime events. He did not look like one of the tourists who like to include a photo session in front of the War Crimes Tribunal in their itinerary.