ICTY: JORDA PROPOSES "AD LITEM" JUDGES TO SPEED

1. (U) CLASSIFIED BY: ALLEN S. WEINER, LEGAL COUNSELOR.
REASONS: 1.5(B), (D).




2. (U) SUMMARY: JUDGE CLAUDE JORDA, PRESIDENT OF THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
(ICTY), VISITED AMBASSADOR ON TUESDAY, MAY 30, TO PREVIEW
PROPOSALS HE INTENDS TO MAKE BEFORE THE SECURITY COUNCIL TO
IMPROVE THE ICTY'S CAPACITY TO TRY CASES MORE SWIFTLY. THE
KEY PROPOSALS ARE FOR: (1) THE USE OF "AD LITEM" JUDGES TO
TRY CASES THAT ARE READY FOR TRIAL; AND (2) DELEGATION OF
CERTAIN PRE-TRIAL MANAGEMENT RESPONSIBILITIES TO SENIOR LEGAL
OFFICERS. JORDA INTENDS FORMALLY TO MAKE HIS PROPOSALS
BEFORE THE SECURITY COUNCIL IN THE SECOND HALF OF JUNE.
EMBASSY BELIEVES JORDA'S PROPOSALS ARE A SENSIBLE MEANS OF
ADDRESSING AN INCREASINGLY SEVERE BACKLOG PROBLEM, AND
RECOMMENDS THAT WASHINGTON SERIOUSLY CONSIDER SUPPORTING THE
PROPOSALS. END SUMMARY.




3. (U) ICTY PRESIDENT CLAUDE JORDA VISITED AMBASSADOR ON
TUESDAY, MAY 30, TO PREVIEW HIS REPORT ON THE OPERATION OF
THE TRIBUNAL. AFTER BECOMING PRESIDENT IN NOVEMBER 1999,
JORDA INITIATED A REVIEW INTO THE TRIBUNAL'S OPERATIONS AND
WAYS OF ENHANCING ITS EFFICIENCY, AND MORE IMPORTANTLY, OF
ACCELERATING THE RATE AT WHICH TRIALS ARE CONDUCTED. JORDA
SUBMITTED THE REPORT ON BEHALF OF THE ICTY'S JUDGES TO U.N.
SECRETARY-GENERAL ANNAN ON MAY 12. JORDA SAID THAT HE

SIPDIS
INTENDS FORMALLY TO MAKE HIS PROPOSALS BEFORE THE SECURITY
COUNCIL IN THE SECOND HALF OF JUNE.




4. (U) IN HIS MEETING WITH AMBASSADOR, JORDA SAID THAT THE
JUDGES HAD REVIEWED THE TRIBUNAL'S EXISTING METHODS OF WORK
AND HAD CONSIDERED CHIEF PROSECUTOR DEL PONTE'S ESTIMATES OF
THE ADDITIONAL INVESTIGATIONS SHE INTENDS TO PURSUE AND THE
ADDITIONAL INDICTMENTS SHE INTENDS TO SIGN. JORDA NOTED THAT
DEL PONTE HAD INFORMED THE JUDGES AT A PLENARY SESSION THAT
THE OFFICE OF THE PROSECUTOR (OTP) INTENDS TO CONDUCT 36 NEW
INVESTIGATIONS THAT WILL CULMINATE IN 29 SEPARATE TRIALS
COVERING SOME 150 INDIVIDUALS. THIS IS IN ADDITION TO THE
TRIALS OF THOSE WHO ARE ALREADY IN CUSTODY AND THOSE WHO HAVE
BEEN INDICTED BUT REMAIN AT LARGE. THE ICTY'S CURRENT
STRUCTURE, WITH THREE TRIAL CHAMBERS, LIMITS THE TRIBUNAL'S
ABILITY TO TRY CASES RAPIDLY. BASED ON THE RATE OF ICTY
TRIALS TO DATE AND DEL PONTE'S ESTIMATES, JORDA ESTIMATES
THAT THE ICTY WILL NOT BE ABLE TO COMPLETE TRIALS (EXCLUDING
APPEALS) OF ALL INDICTEES UNTIL LATE 2016.




5. (C) MOREOVER, JORDA INDICATED, THE PROBLEM OF LENGTHY
PRE-TRIAL DETENTION OF INDICTEES AWAITING THE START OF THEIR
TRIALS IS BECOMING INCREASINGLY SEVERE. HE ESTIMATED THAT
WITHOUT CHANGES IN THE ICTY'S MEANS OF OPERATING, THE TRIAL
OF THE MOST RECENT INDICTEE BROUGHT INTO CUSTODY, DRAGAN
NIKOLIC, WOULD NOT START UNTIL THE SECOND HALF OF 2002 AT THE
EARLIEST. JORDA ALSO SAID THE ICTY HAD POSTPONED PRE-TRIAL
MANAGEMENT PROCEEDINGS IN THE CASE AGAINST MOMCILO KRAJISNIK
BECAUSE THERE IS NO AVAILABLE TRIAL CHAMBER; THE JUDGES DID
NOT WANT TO GET THE CASE READY FOR TRIAL, ONLY TO FIND THAT
THEY WERE UNABLE TO COMMENCE THE TRIAL.




6. (U) PART OF THE PROBLEM IS THAT TRIALS WERE TAKING TOO
LONG. THIS IS THE FAULT OF BOTH DEFENSE COUNSEL, WHO JORDA
SAID HAVE INCENTIVES TO EXTEND THE LENGTH OF TRIALS BECAUSE
THEY ARE BEING WELL PAID UNDER U.N. SCALES, AND THE
PROSECUTORS, WHO ARE TOO "PERFECTIONIST" IN THE WAY THEY
CONDUCT TRIALS. JORDA EXPRESSED THE HOPE THAT THE EXPERIENCE
THE JUDGES HAD GAINED BOTH WITH THE ICTY'S RULES OF PROCEDURE
AND EVIDENCE, AS WELL AS THEIR KNOWLEDGE OF THE UNDERLYING
CONFLICT IN THE FORMER YUGOSLAVIA, WOULD MAKE FUTURE TRIALS
GO FASTER. THE JUDGES WOULD ALSO CONTINUE TO WORK TO
ACCELERATE THE PACE OF TRIALS THROUGH STRENGTHENED RELIANCE
ON PRE-TRIAL MANAGEMENT PRACTICES.




7. (U) NEVERTHELESS, SOMETHING MORE NEEDS TO BE DONE TO
ADDRESS THE GROWING CASE BACKLOG PROBLEM. JORDA TOLD
AMBASSADOR THAT THE JUDGES HAD REVIEWED A FULL RANGE OF
OPTIONS FOR TRYING CASES MORE SWIFTLY, INCLUDING HOLDING
TRIALS BEFORE A SINGLE JUDGE, HOLDING TRIALS IN ABSENTIA,
TRANSFERRING TRIALS TO OTHER COUNTRIES, OR ADDING A NEW TRIAL
CHAMBER. WITH RESPECT TO MOST, THE DISADVANTAGES OUTWEIGHED
THE ADVANTAGES. THE JUDGES HAD CONCLUDED, HOWEVER, THAT TWO
PROPOSALS COULD EFFECTIVELY ENHANCE THE ICTY'S TRIAL
OPERATIONS.




8. (U) FIRST, THE JUDGES RECOMMEND DELEGATING TO ICTY
SENIOR LEGAL OFFICERS SOME PRE-TRIAL MANAGEMENT
RESPONSIBILITIES, SUCH AS SETTING DEADLINES AND HEARING
WITNESS TESTIMONY BY DEPOSITION. CORE LEGAL ISSUES WOULD NOT
BE HANDLED BY SENIOR LEGAL OFFICERS, AND A JUDGE WOULD
CONTINUE TO SUPERVISE THE WORK OF EACH SENIOR LEGAL OFFICER.
NEVERTHELESS, THIS WOULD PERMIT JUDGES TO DEVOTE A GREATER
PORTION OF THEIR TIME TO TRIAL WORK.




9. (U) SECOND, AND MORE IMPORTANTLY, THE JUDGES HAVE
RECOMMENDED THE USE OF "AD LITEM" JUDGES, I.E., JUDGES DRAWN
FROM A POOL OF ELIGIBLE CANDIDATES WHO COULD SERVE FOR A
SINGLE CASE ONCE IT WAS READY FOR TRIAL. THIS PROPOSAL WOULD
BE FLEXIBLE, AND AD LITEM JUDGES WOULD WORK ONLY ON AN
AS-NEEDED BASIS. COUNTRIES COULD SUPPORT THIS EFFORT EITHER
BY DESIGNATING JUDGES FOR THE POOL, OR BY MAKING VOLUNTARY
CONTRIBUTIONS TO FUND THE COSTS ASSOCIATED WITH THE USE OF AD
LITEM JUDGES. (JORDA'S REPORT SPECIFICALLY REJECTS THE
NOTION OF COUNTRIES MAKING AD LITEM JUDGES AVAILABLE ON A
"GRATIS PERSONNEL" BASIS, IN ORDER TO GUARANTEE THE
INDEPENDENCE AND IMPARTIALITY OF THE JUDGES.) JORDA NOTED
THAT THE JUDGES WERE DIVIDED ON WHETHER THE AD LITEM JUDGES
SHOULD SIT TOGETHER WITH EXISTING TRIBUNAL JUDGES, OR WHETHER
ENTIRE AUTONOMOUS AD LITEM PANELS SHOULD BE CONSTITUTED,
ALTHOUGH HE INDICATED HE FAVORED THE LATTER APPROACH TO
ENSURE THAT EXISTING JUDGES WOULD BE AVAILABLE FOR THEIR OWN
TRIALS.




10. (U) JORDA INDICATED THAT THE PROPOSALS WOULD REQUIRE
SOME "MINOR" REVISIONS TO THE ICTY'S STATUTE. HIS REPORT
INCLUDES AS AN ANNEX THE CHANGES TO THE STATUTE THAT WOULD BE
NECESSARY TO GIVE EFFECT TO THE JUDGES' PROPOSALS. JORDA'S
REPORT ALSO NOTES THAT USE OF AD LITEM JUDGES WOULD REQUIRE
ADDITIONAL RESOURCES, BUT INDICATES THAT SINCE FINANCING
QUESTIONS ARE NOT WITHIN THE JUDGES' PURVIEW, THEY HAVE MADE
NO RECOMMENDATIONS ON THAT POINT.




11. (U) ACCORDING TO JORDA, ALTHOUGH THERE WERE SOME
DIVISIONS AMONG THE JUDGES ABOUT THE PRECISE MODALITIES OF
THE AD LITEM PROPOSAL (E.G., WHETHER AD LITEM JUDGES SHOULD
BE ELECTED OR APPOINTED, WHETHER THEY SHOULD BE INTEGRATED
INTO EXISTING TRIAL CHAMBERS OR SERVE ON AUTONOMOUS TRIAL
CHAMBERS), THE BASIC RECOMMENDATIONS WERE UNANIMOUSLY
SUPPORTED BY THE JUDGES. HE NOTED THAT CHIEF PROSECUTOR DEL
PONTE ALSO HAD EXPRESSED HER APPROVAL OF THE PROPOSALS.




12. (U) JORDA SAID THAT IF THE JUDGES' RECOMMENDATIONS WERE
ADOPTED, THE ICTY WOULD BE ABLE TO COMPLETE ITS TRIALS
BETWEEN 2007 AND 2009, RATHER THAN LATE 2016.




13. (U) JORDA'S REPORT ALSO ADDRESSES POSSIBLE ENHANCEMENTS
TO THE FUNCTIONING OF THE APPEALS CHAMBER. JORDA'S REPORT
RECOMMENDS ADDING TWO NEW JUDGES FROM THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR RWANDA (ICTR) TO THE APPEALS CHAMBER.
JORDA TOLD THE AMBASSADOR THAT THE APPEALS CHAMBER WOULD
CONTINUE TO SIT AS A FIVE-JUDGE PANEL, BUT UNDER THE PROPOSAL
WOULD HAVE A POOL OF SEVEN JUDGES TO DRAW FROM IN
CONSTITUTING SUCH A PANEL. (COMMENT: THIS ASPECT OF THE
PROPOSAL, HOWEVER, IS NOT REFLECTED IN THE WRITTEN REPORT.)




14. (U) THE AMBASSADOR CONGRATULATED JORDA FOR THINKING
AHEAD ON THE ISSUE OF THE ICTY'S CAPACITY TO MANAGE ITS
CASELOAD. SHE AND LEGAL COUNSELOR CAUTIONED THAT IN VIEW OF
THE SEVERE BUDGET CONSTRAINTS FACING THE UNITED NATIONS, THE
ADDITIONAL EXPENSES ASSOCIATED WITH AD LITEM JUDGES WAS
LIKELY TO PRESENT THE MOST SIGNIFICANT HURDLE TO THE
PROPOSAL. NEVERTHELESS, THE FLEXIBLE NATURE OF THE AD LITEM
JUDGES PROPOSAL WAS AN IMPORTANT ADVANTAGE, SINCE JUDGES
WOULD ONLY BE PAID AS NECESSARY TO HANDLE CASES. AMBASSADOR
REITERATED THE USG'S STRONG SUPPORT FOR THE ICTY AND SAID THE
TRIBUNAL'S MANY FRIENDS IN THE USG WOULD WANT TO PLAY A
CONSTRUCTIVE ROLE.




15. (C) THE AMBASSADOR ALSO EXPRESSED CONCERN THAT ICTY
EFFORTS TO STRESS THE SEVERITY OF THE ICTY'S BACKLOG COULD
WORK AGAINST THE PROSECUTOR'S PUSH FOR MORE ARRESTS OF
AT-LARGE INDICTEES. IN THAT REGARD, JORDA NOTED THAT DEL
PONTE FULLY SUPPORTS THE REPORT. HE ALSO COMMENTED THAT
APPROXIMATELY HALF OF THE ICTY'S INDICTEES ARE STILL AT
LARGE. "IF THAT WERE THE SITUATION IN ANY NATION," HE
COMMENTED, "THERE WOULD BE A REVOLUTION" IN THAT COUNTRY.
THERE CAN BE NO QUESTION, HE SAID, THAT ALL INDICTEES MUST BE
BROUGHT TO THE HAGUE, EITHER BY VOLUNTARILY SURRENDER OR
ARREST. DEVELOPING A PROCESS FOR EXPEDITING TRIALS MIGHT
ENCOURAGE VOLUNTARY SURRENDERS. JORDA MENTIONED THAT
REPUBLIKA SRPSKA PRIME MINISTER DODIK, DURING HIS RECENT
VISIT TO THE CITY, SAID HE WOULD LIKE TO ENCOURAGE MORE
VOLUNTARY SURRENDERS BUT CANNOT GIVEN THE LENGTHY PRETRIAL
DELAYS FACED BY THOSE IN CUSTODY.




16. (U) COMMENT: THE PROPOSAL FOR AD LITEM JUDGES COULD BE
AN EFFECTIVE AND RELATIVELY COST-EFFICIENT SOLUTION TO THE
GROWING BACKLOG PROBLEM AT THE ICTY. PARTICULARLY IF THE
PROPOSAL ENABLES THE ICTY TO COMPLETE ITS MANDATE SOONER, IT
WOULD ACTUALLY RESULT IN LONG-TERM SAVINGS TO U.N. MEMBER
STATES. AS SUCH, EMBASSY RECOMMENDS THAT WASHINGTON GIVE
SERIOUS CONSIDERATION TO SUPPORTING JUDGE JORDA'S PROPOSALS.
EMBASSY BELIEVES, HOWEVER, THAT IT WOULD BE BETTER FOR AD
LITEM JUDGES TO BE INTEGRATED INTO PANELS WITH REGULAR ICTY
JUDGES. OTHERWISE, THE AD LITEM TRIAL CHAMBERS WOULD NOT BE
ABLE TO BENEFIT FROM THE IMPORTANT EXPERIENCE THE PERMANENT
JUDGES HAVE GAINED WITH THE ICTY'S RULES OF PROCEDURE AND
EVIDENCE AND THEIR KNOWLEDGE OF THE CONFLICT IN THE FORMER
YUGOSLAVIA. EMBASSY CAUTIONS, HOWEVER, THAT FOR THE APPROACH
TO BE VIABLE, THE U.N. WILL NEED TO FUND MORE THAN THE
SALARIES OF THE AD LITEM JUDGES. ADDITIONAL RESOURCES FOR
LEGAL ASSISTANTS, SECRETARIES, AND REGISTRY COURTROOM STAFF
WILL ALSO BE REQUIRED. DEPENDING ON THE NUMBER OF TRIAL
CHAMBERS OPERATING AT ANY GIVEN TIME, IT MAY ALSO BE
NECESSARY TO PROVIDE ADDITIONAL COURTROOM CAPACITY TO THE
ICTY. ON THIS SCORE, JORDA MENTIONED THE POSSIBILITY OF
USING THE COURT FACILITIES AT CAMP ZEIST CURRENTLY BEING USED
FOR THE LOCKERBIE TRIAL, ONCE THOSE PROCEEDINGS ARE
COMPLETED. END COMMENT.




17. (U) A COPY OF JUDGE JORDA'S REPORT HAS BEEN FAXED TO
THE DEPARTMENT (S/WCI - SCHEFFER). HARD COPY HAS BEEN SENT
TO THE DEPARTMENT (S/WCI - SCHEFFER, VIA L/CID) BY COMMERCIAL
COURIER.
FENDRICK