Did the ICTY Prosecutor Make a Deal with Serbia to Withhold Evidence of Bosnia Genocide?

Remember those “missing” documents that the ICJ never considered in its judgment finding Serbia not liable for the Bosnian genocide? In another twist, Croatian media is reporting that the documents were withheld and redacted as part of a “deal” between the Chief Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, Carla Del Ponte, and the Serbian government.

This potentially explosive accusation is being made by Sir Geoffrey Nice, a former leading prosecutor at the ICTY responsible for prosecuting the late (and unlamented) Slobodan Milosevic. The “deal” was made, supposedly, in order to get Serbia’s agreement to turn over key documents for ICTY prosecutions. As part of the deal, Del Ponte supposedly refused to release the documents intact and, effectively, covered up key evidence of Serbia’s guilt.

Although this sounds bad, it sounds less bad as you think about it more. Serbia’s responsibility to disclose information to the ICTY is not absolute, and it is not unreasonable for Del Ponte to agree to keep some information confidential or to redact some information in order to get access to the whole set of documents. This is a tough judgment call for her, but one that it is not unreasonable for her to make if she believes she can still fulfill her prosecutorial duties within the limits provided. I’ve seen no evidence that prosecutions at the ICTY were stymied due to her “deal.”

The ICTY’s duty is prosecute individuals, not states. If the ICJ didn’t get access, that is the ICJ’s own fault.