ICTY: ICTY COMMENTS ON USG PROPOSAL FOR WITNESS

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 001664

SIPDIS


DEPARTMENT FOR S/WCI - SCHEFFER/WARRICK, S/SA - O'BRIEN,
DRL - KOH/SPENCER, L - MATHESON, L/EUR - LAHNE, S/CT -
SHEEHAN/BAIR, INR/WCAD - DONAHUE/MORIN, EUR/SCE - COUNTRYMAN


E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY
TAGS: PHUM NL ICTY ICTR
SUBJECT: ICTY: ICTY COMMENTS ON USG PROPOSAL FOR WITNESS
RELOCATION ARRANGEMENTS

REF: A. A STATE 55166

B. B 99 THE HAGUE 2224

C. 99 THE HAGUE 1324



1. (U) Begin Summary: As a follow-up to Ambassador
Scheffer's 28 March letter to the Registrar of the
International Criminal Tribunal for the Former Yugoslavia
(ICTY) regarding possible relocation of Tribunal witnesses to
the United States (Ref A),Embassy legaloffs had discussions
with representatives from the ICTY Registry and the Victim
Witness Unit (VWU). Although certain aspects of the USG
proposal were very well-received, ICTY representatives were
generally disappointed by the overall approach being
suggested. The Acting Head of the VWU explained that the
ICTY only proposes witnesses for relocation if their lives
are at serious risk. Consequently, when a request for
relocation is made it has to be acted upon quickly. The
ICTY's overriding interest is in having some commitment from
the USG to a quick, flexible procedure that would ensure a
fast-track process through the normal INS procedures. ICTY
representatives pressed hard on whether it might be possible
to achieve some kind of break-through on expedited processing
of requests. Specific comments and requests for additional
information/clarification of the proposed approach based on
existing authorities are provided below. End Summary.



2. (C) In discussions with Embassy legaloffs regarding the
possibility of concluding an agreement or arrangement with
the USG for relocation of witnesses to the United States,
ICTY representatives were candid about their disappointment
that the 28 March proposal did not provide for a special
relocation procedure, nor a commitment to expedite the
existing INS process. Underscoring the fact that the VWU
only requests relocation for witnesses whose lives are at
serious risk because of their testimonies, the ICTY reps
noted that they well understand that a country making a
commitment to relocate witnesses must operate within the
provisions of its own laws. In that regard, they pointed out
that other governments also have relied upon existing
domestic authorities in defining the scope of benefits for
relocated witnesses. Unlike the USG proposal, however, those
other governments have committed themselves to special
fast-track procedures for ICTY witnesses. In the case of
Canada, for example, provisions are made for witnesses who
need to be relocated on an urgent basis. Other agreements
provide for the transfer to happen within two months, in the
event of urgent cases, even sooner. The ICTY representatives
were keen to know whether it might be possible to achieve
some kind of break-through on expedited processing of
requests.



3. (U) Benefits Package: The ICTY representatives indicated
that the benefits package for relocated witnesses as
described in Ambassador Scheffer's letter appeared to be very
good. They requested certain details on the various
benefits. In particular, the VWU would like to know what
benefits witnesses would be entitled to after the initial
eight months. In addition, they requested information on
whether the witnesses would be entitled to housing,
education, and travel documents to enable the witnesses to
travel to and from the United States. Finally, they raised
the need to relocate close family members (either together
with the witness or at a later stage). In this regard they
noted that the war in the former Yugoslavia had torn apart
many families, and made many children orphans. Such children
are often in the custody of distant relatives or even former
neighbors. If possible, the VWU would like to ensure that
such children or relatives qualify as close family members
for relocation purposes.



4. (U) Requirement for Transcript of Witness's Testimony:
The 28 March letter indicated that in order for the INS to
assess whether the "persecutor bar" would apply in an
individual case, the INS would require a transcript of the
testimony of the witness. In response to this requirement,
the VWU raised several concerns. First, the ICTY
representatives pointed out that in some cases a witness may
need to be relocated before any appearance in court. In such
cases, no transcript would exist. Second, they reiterated
their earlier point that the ICTY only proposes relocation
for witnesses whose lives are at risk due to the contents of
their testimonies. Given the sensitivity of such
testimonies, the Judges will normally grant protective
measures for these witnesses and proceed in closed session.
Thus, the transcripts of the proposed witnesses' testimonies
will normally be confidential (i.e., sealed by the Court).
Although some witnesses proposed for relocation may testify
in open session under a pseudonym, the transcripts of such
sessions are also not available for release.



5. (U) Instead of relying on a transcript of a witness's
testimony, the VWU asked whether the INS would accept a
statement from the ICTY that would contain information on the
testimony, and explain why the testimony put the witness's
life at risk. The VWU indicated that such a statement would
have to be treated as classified by the INS or other
authorities. In addition, the VWU representatives informed
Embassy legaloffs that for all relocation requests, the
Registrar receives a certification from the Office of the
Prosecutor (OTP) that the witness in question is not a
suspect or under investigation for any crime over which the
ICTY has jurisdiction. The certification from the OTP also
typically states that, as far as the Prosecutor is aware, the
witness has not committed any other crimes.



6. (U) After Relocation: Assuming witnesses are relocated
to the United States pursuant to a request from the ICTY, the
ICTY would like to include a provision for the exchange of
information so the ICTY can be kept informed of the witness's
status once settled in the United States. For example, ICTY
representatives would need to know about any threats that
arise or any other problems that develop in relation to the
witness's testimony. Similarly, they would need to know if a
witness died or his/her whereabouts became unknown.



7. (U) In a related vein, the ICTY representatives indicated
that they would like to include a provision in a relocation
agreement or arrangement that in the (unlikely) event of
extradition, the witness or any member of the relocated
family should not be returned to the territory of the former
Yugoslavia without the written consent of both the witness
and the ICTY.



8. (U) Fingerprinting: Regarding the request for all
witnesses proposed for relocation to be fingerprinted, the
ICTY indicated that it is not technically equipped to provide
fully legible fingerprint cards.



9. (U) Comment: Embassy notes that USG and ICTY reps have
been in engaged in efforts to negotiate a formal arrangement
for the relocation of witnesses since September 1998.
Despite support for this effort from Executive and
Legislative branch officials, nothing concrete has been
achieved. Embassy therefore recommends that if there is a
consensus within the USG to conclude an agreement with the
ICTY on this issue, face to face negotiations between ICTY
reps and representatives from all relevant agencies (e.g.,
INS/DOJ/DOS) officials should be scheulded either in The
Hague or in Washington in the near future. Alternatively, if
no consensus to accommodate the ICTY's request for an
expedited process exists, we should inform the ICTY that we
are unable to meet its request at this time, but will
continue to consider requests on an ad hoc basis under
existing authorities. End Comment.
FENDRICK