Identifier
Created
Classification
Origin
03THEHAGUE1730
2003-07-07 14:59:00
CONFIDENTIAL
Embassy The Hague
Cable title:  

ICTY: UK DRAFT UNSCR ON THE COMPLETION STRATEGY

Tags:  PREL PHUM BK HR SR NL ICTY 
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C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 001730 

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER, EUR - BOGUE, EUR/SCE -
JONES/GREGORIAN, L/UNA - MATHIAS, L/EUR - LAHNE, INR/WCAD -
SPRIGG, USUN - ROSTOW

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY
TAGS: PREL PHUM BK HR SR NL ICTY
SUBJECT: ICTY: UK DRAFT UNSCR ON THE COMPLETION STRATEGY

REF: A. (A) JOHNSON-ROSTOW E-MAIL 6/30/03


B. (B) THE HAGUE 1510

C. (C) STATE 194768

Classified By: Legal Counselor Clifton M. Johnson per 1.5(b) and (d).

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 001730

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER, EUR - BOGUE, EUR/SCE -
JONES/GREGORIAN, L/UNA - MATHIAS, L/EUR - LAHNE, INR/WCAD -
SPRIGG, USUN - ROSTOW

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY
TAGS: PREL PHUM BK HR SR NL ICTY
SUBJECT: ICTY: UK DRAFT UNSCR ON THE COMPLETION STRATEGY

REF: A. (A) JOHNSON-ROSTOW E-MAIL 6/30/03


B. (B) THE HAGUE 1510

C. (C) STATE 194768

Classified By: Legal Counselor Clifton M. Johnson per 1.5(b) and (d).


1. (C) International Criminal Tribunal for the Former
Yugoslavia (ICTY) President Theodor Meron passed to embassy
legal counselor the draft of a Security Council resolution
developed by the UK that would require the ICTY Prosecutor to
implement key elements of the Tribunal's so-called completion
strategy. As noted ref a, Meron explained that the draft
originated from UK FCO Legal Adviser Wood and was
subsequently refined to reflect Meron's input. The text at
para 2 below, reflecting some additional input from Meron,
was passed back to the UK last week. Some Embassy additions
are suggested in paras 3 and 4.


2. (C) Begin text of draft UNSCR:

"The Security Council,

Recalling the statement made by the President of the Security
Council on 23 July 2002 (S/PRST/2002/21),

Strongly reaffirming that the Tribunal should concentrate its
work on the prosecution and trial of the civil, military and
paramilitary leaders suspected of being responsible for
serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since
1991, rather than minor actors,

Endorsing once more the broad strategy of transferring cases
involving intermediary and lower-level accused to competent
national jurisdictions as likely to be in practice the best
way of allowing the Tribunal to achieve its current objective
of completing (investigations by 2004,) all trial activities
at first instance by 2008 (and appeals, reviews and other
proceedings around 2010) (the "completion strategy")
(S/2002/678, Annex)

Having heard the joint presentation by the High
Representative to Bosnia and Herzegovina and the President of
the International Criminal Tribunal for the former Yugoslavia

("the Tribunal"),

Having taken note of the recommendation of the Tribunal with
regard to the creation, as proposed by the High
Representative, of a special Chamber, within the State Court
of Bosnia and Herzegovina, to deal with serious violations of
international humanitarian law,


1. Welcomes with satisfaction the decision of the
Steering Board of the Peace Implementation Council of 12 June
2003 endorsing the approach outlined by the High
Representative concerning the establishment of a War Crimes
Chamber within the State Court of Bosnia and Herzegovina;


2. Urges the High Representative to establish the said
War Crimes Chamber as expeditiously as possible;


3. Notes that a Donors' Conference will be held in The
Hague on . . . 2003 with a view to raising funds to finance
the establishment of the proposed War Crimes Chamber and, to
that end, invites States and relevant international and
regional organizations to contribute funds as well as to
provide qualified personnel to assist the Chamber in its work;


4. Notes the statement by the President of the Tribunal
that an essential prerequisite to achieving the objectives of
the completion strategy is the establishment and early
functioning of the War Crimes Chamber and that as soon as the
Chamber has begun to function, the Tribunal intends, pursuant
to its Rules of Procedure and Evidence, to consider referring
cases of lower or intermediate-level accused to the Chamber,
as well as to other competent national jurisdictions as
appropriate;


5. Notes with satisfaction the measures undertaken by
States of the former Yugoslavia with the support of other
States and relevant international and regional organizations,
to strengthen their national judicial systems in order to
facilitate the implementation of this policy and encourages
further such measures and support;


6. Further notes that since the Presidential statement
of 23 July 2003, (19) indicted persons remain at large and (.
. .) persons previously indicted have been taken into
custody, and that therefore issuing further indictments,
except in cases of civilian, military and paramilitary
leaders at the highest level, would be incompatible with
achieving the objectives of the completion strategy;


7. Aware that the Tribunal will be in a position to
complete its historic mission only with the apprehension and
prosecution of Radovan Karadzic and Ratko Mladic and calls
upon all States to render all necessary assistance to the
Tribunal in its efforts to bring these and all other accused
persons to justice.


8. Requests the Prosecutor to henceforth concentrate on
issuing indictments only in the exceptional circumstances
specified in paragraph 6 above, on considering the referral
of cases to competent national jurisdictions as indicated in
paragraph 5 above, and to use, in the interests of efficiency
and justice, all appropriate means at her disposal to reduce
the length and complexity of all cases before the Tribunal.


9. Requests the President of the Tribunal to use his
best efforts to ensure that the objectives of the completion
strategy are achieved.


10. (Decides to remain actively seized of the matter.)

End text of draft UNSCR.


3. (C) Comment: The draft resolution would give a UNSC
imprimatur to the establishment of the war crimes chamber in
the new Bosnia State Court and restrict the investigative
mandate of the Office of the Prosecutor (OTP),marking two
steps forward toward meeting the goals of the completion
strategy. However, the resolution is an opportunity for the
Council to emphasize other aspects of the ICTY's work that
are also critical to accomplishment of the completion
strategy goals. For instance, the draft pays limited
attention to obligations of states to cooperate with the
Tribunal, an omission which would be especially striking
given the Tribunal's recent opinions on Belgrade cooperation
(ref b). The resolution could draw upon UNSCR 1423 (2002),
operative paragraph 3, which "underlines that full
cooperation by States and entities with the International
Tribunal includes, inter alia, the surrender for trial of all
persons indicted by the Tribunal and provision of information
to assist in Tribunal investigations." The Council could
also reaffirm its support for the mission of the ICTY, in
particular its contributing role -- as emphasized in this
year's guilty plea by Biljana Plavsic -- to peace and
reconciliation in the Balkans. Finally, the draft correctly
identifies "the length and complexity" of cases before the
Tribunal as a problem posed to the completion strategy, but
to be fair, the resolution could also note that the chambers
play a role in ensuring efficient proceedings as well.


4. (C) Comment, cont'd: The proposed draft UNCSCR focuses
solely on the Bosnia State Court and the scope of the
Prosecutor's mandate. It does not address other issues
flagged in Ref C such as the UK initiative to split the
ICTY/ICTR prosecutorial functions and create a new chief
prosecutor position for the ICTR and the extension of Chief
Prosecutor Del Ponte's ICTY mandate to the end of 2004. If a
decision is made to include all of these issues in a single
resolution, then that resolution would need to be issued in
September (given the expiration of the Prosecutor's mandate
in September),and it would make sense, if possible, to
advance President Meron and High Commissioner Ashdown's joint
presentation on the Sarajevo war crimes chamber to September
as well. If we pursue two separate resolutions, then the
current notional calendar for Meron's visit -- joint address
with HR Ashdown on October 8, followed by his own report to
the UNGA on the 9th and presentation of the formal ICTY
report on the 10th -- would seem to work. Would appreciate
USUN and the Department's understanding of the schedule of
these events and whether this is likely to hold or whether
the October 8 joint presentation will be advanced to
September. End comment.
BAILY