Retired Bosnian Serb general Manojlo Milovanovic faces his former boss this week: supreme army commander Radovan Karadzic, accused of genocide. His testimony is a symbol of the evolution of witness protection at the International Criminal Tribunal for the former Yugoslavia (ICTY): the longer the tribunal goes on, the less it uses over-protective measures for witnesses.

By Radosa Milutinovic, The Hague

General Milovanovic, a real “insider” prosecution witness, in earlier testimonies, has shown that he was able to provide a critical account of the actions and conduct of the Bosnian Serb top military and political leaders. As he previously testified for the prosecution in four trials against fellow Serbs – some accused of genocide in Srebrenica - it could be expected that Milovanovic has many enemies among former comrades and allies by now. Yet, Milovanovic testifies in public. It is believed he has never asked for any kind of protective measures. His credibility as a witness clearly stems from his position as Ratko Mladic’s deputy and chief of staff. It would make little sense to hide this from the public.

The Babic charade
The ICTY seems here to have learned from experience. Ten years ago, another high-profile “insider” sought to protect his identity while testifying against his political master-turned-enemy, Slobodan Milosevic.
For ten courtroom days in November 2002, he was officially known only as protected witness C-061 – his face hidden, his voice distorted. Anybody who knew anything about wars in the former Yugoslavia could immediately conclude that C-061 was Milan Babic, former leader of rebel Serbs in Croatia. The press found ways to indicate his identity without revealing it outright. On the eleventh day, the charade ended when Babic’s lawyer asked the court to rescind pointless protective measures.

After sixteen years of trials, however, the ICTY’s statistics paint a somewhat different picture: almost 30 percent of around 4,000 witnesses, from 1996 until last July, have been placed under some kind of protection. Less than one percent of them, however, have been granted “long-term protection such as relocation to third countries” – the only measure that provides real and full protection. Although the number of protected witnesses has fallen over the years, it is still significant. In the trial of Slobodan Milosevic for crimes in Kosovo, Croatia and Bosnia, around one third of all witnesses and almost half of the Bosnian witnesses against Milosevic enjoyed some form of protection.

In comparison, only a quarter of witnesses in the Karadzic trial have asked for protection iso far. Only 19 testified behind closed doors. When at least three well-known former French commanders of the UN Protection Forces (UNPROFOR) in Sarajevo gave evidence under pseudonyms, their identities became clear from their testimonies.

Karadzic’s legal adviser Peter Robinson speaks for many defence lawyers when he says that protective measures at the ICTY were originally designed for “those few witnesses who have legitimate reason to fear for their safety,” or are used “without adequate justification.” “This often results from a rigid application of Rule 75, which provides that once granted, protective measures automatically continue in all future cases,” Robinson said, pointing out that fears witnesses might have had in 2000 “are often no longer valid in 2012.”

Ineffective and excessive
Witnesses are asking more often to testify in public. But many of the trial chambers’ original decisions on witness protection are still being implemented. Robinson also warns that “liberal use of protective measures” infringes an accused’s right to a public trial by “reducing the accountability of witnesses who can testify falsely behind a pseudonym.” IJT asked the ICTY, through its press office on February 22, to answer five specific questions on witness protection and to comment on Robinson’s statement. The ICTY did not respond by the time this article was published. ICTY observers believe protective measures are both mostly ineffective - because, as one reluctant ICTY witness said, protection works “only inside the courtroom” - and excessive, especially if compared with national jurisdictions. No one recalls any reported attack on or death of witnesses who testified, protected or not, before the ICTY in the past 16 years.