ICTY: SENIOR PROSECUTORS PUSH FOR PLEA AGREEMENTS

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002002

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER, EUR - ROSSIN, EUR/SCE -
STEPHENS/GREGORIAN, L/EUR - LAHNE, IO/UNP - WARLICK,
INR/WCAD - SEIDENSTRICKER/MORIN, USUN FOR ROSTOW/WILLSON

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY
TAGS: PREL PHUM BK HR SR NL ICTY
SUBJECT: ICTY: SENIOR PROSECUTORS PUSH FOR PLEA AGREEMENTS
AND A "TRANSITION STRATEGY" IN IMPLEMENTATION OF THE
COMPLETION STRATEGY

REF: SECSTATE 230045

Classified By: Deputy Legal Counselor David Kaye, reasons 1.5 (d).


1. (C) Summary: Prosecutors at the International Criminal
Tribunal for the Former Yugoslavia (ICTY) successfully
negotiated four plea agreements during the three months that
ended with the plea of Darko Mrdja on July 24. According to
ICTY Chief of Prosecutions Michael Johnson, the plea
agreements are not one-off affairs but an important part of
the prosecutors' efforts to implement the ICTY completion
strategy. Johnson also spoke hopefully about implementing a
"transition strategy" and working with Balkan players to
transfer cases to national jurisdictions, but emphasized that
work on "transitioning" has not been at the top of the chief
prosecutor's agenda and has therefore been shortchanged in
internal planning. While this approach is just one part of
the Tribunal's efforts, Johnson's overview provides insight
into one way in which the Tribunal will try to implement the
tight schedule of the completion strategy. End summary.


2. (C) The July 24 guilty plea by Darko Mrdja for his role in
the Mt. Vlasic massacre in 1992 capped an active three months
in which three other indictees pled guilty in agreements with
the ICTY prosecutors. All four indictees can be
characterized as below the standard of senior-level
perpetrators: two mid-level officers involved in the 1995
Srebrenica massacres (Nikolic and Obrenovic),a guard at the
Keraterm camp (Banovic) and a police officer (Mrdja). At
least a dozen -- and potentially up to twenty -- indictees at
the pre-trial or trial stage may be characterized as
mid-level or lower-level perpetrators of crimes within the
ICTY's jurisdiction. It is this general group of indictees
that is targeted by senior prosecutors for plea negotiations.
They tend to be cases which have relatively narrow crime
bases, with limited witnesses and limited goals, and they are
therefore envisioned as "quick" prosecutions that can be
handled in a few months each. (Note: Getting witness lists
reduced, indictments narrowed and prosecution cases shortened
have been major goals of judicial chambers, and the jury is
still out on whether the Office of the Prosecutor (OTP) is
succeeding in this regard. End note.)


3. (C) Chief of Prosecutions Michael Johnson explained that
he and senior prosecutors were engaged in a "marble stacking
exercise," in which cases are generally ranked in order of
priority and readiness for a plea negotiation. Plea
negotiations have worked most effectively with respect to
indictees whose trials are scheduled to take place in the
near term, and Johnson said that he and other senior staff
have worked with ICTY judicial chambers to "fast track" such
cases. (Note: The Mrdja case is a good example: focused on a
massacre on a particular date in 1992 involving a particular
perpetrator, the prosecution case was anticipated to last not
more than a month. On July 9 a trial date of July 29 was
scheduled; plea negotiations intensified and an agreement was
reached on July 24. End note.) Once an indictee pleads out,
the next marble/case drops into play, gets scheduled for
trial, and plea negotiations are sought. Not all indictees
are interested, but, in this way, Johnson said that senior
prosecutors hope not only to clear the docket of cases that
fall below completion strategy criteria but also encourage
the mid- and low-level perpetrators to testify against the
leadership -- a process that, in itself, can help to reduce
the number of witnesses and resulting time necessary to put
on prosecution evidence in those big cases. Johnson argued
that the Tribunal would get more out of plea agreements than
it would out of the simple transfer of the same indictees to
national jurisdictions for trial under Rule 11bis of the
Tribunal Rules of Procedure and Evidence. Meanwhile, he
said, it would ease the potential strain on the special war
crimes chamber envisioned for Sarajevo by reducing the number
of cases it would have to handle in its early stages.


4. (C) Johnson suggested that other factors also contribute
to the plea agreements. He believes, for instance, that
consideration of the special war crimes chamber is forcing
indictees to ask themselves whether they would rather spend
prison time "in Sweden or Tuzla." It is partly for this
reason that Johnson believes that the international community
should talk of a "transition strategy," which suggests that
perpetrators will find no safe haven from prosecutions,
rather than a "completion strategy," which may give the wrong
impression of a closing-out of files against alleged
perpetrators. OTP's conviction rate is also impressive,
making indictees believe that the odds are against them if
their cases go to trial. Moreover, it is hoped that the
recent life sentence imposed on Milomir Stakic (septel) for
his involvement as a Bosnian Serb civilian leader in the
Prijedor region in 1992 -- more than the forty-six years
imposed on the much more senior Bosnian Serb General Krstic
two years ago -- will concentrate the minds of similarly
culpable indictees who may believe they are choosing between
a deal and life in prison. OTP's relatively recent emphasis
on ensuring that indictments are narrowly-drawn and
trial-ready should, Johnson hopes, contribute to their
ability to negotiate plea agreements early in the pre-trial
schedule.


5. (C) Johnson tried to make clear that he, Deputy Prosecutor
Graham Blewitt and the prosecutorial staff generally are
committed to achieving the completion strategy, reflected in
part by the focus on plea agreements. He noted that all of
the recent pleas have involved not only senior trial
attorneys with years of courtroom experience but also junior
prosecutors hoping to set foot in court for the first time.
It is the junior rank-and-file one would expect to be
personally disappointed in the completion strategy, but
Johnson emphasized that even such individuals are firmly
"with the program" and worked hard to make the recent plea
agreements happen. He understood as natural the concern than
trial attorneys want to go to trial and that investigators
want to see their targets indicted and detained, but
according to him it is less important to these people where
such perpetrators are tried than that they are in fact tried.


6. (C) In Johnson's view, the elements outlined above -- plea
agreements and the fast-tracking of cases -- need to be
supplemented by a focus not just on the fact of transferring
cases to national jurisdictions but how that would occur.
Because, in his view, Chief Prosecutor Del Ponte has not been
a champion of these elements, he believes they need the
strong encouragement of the international community. Johnson
said that the chief prosecutor, for instance, has
consistently had problems with plea agreements, rejecting the
advice of her senior prosecutors to accept one draft
agreement (which instead is going to trial) because it
recommended a sentence of fifteen to twenty years rather than
twenty to twenty-five. Echoing what embassy legal officers
have heard from contacts in the Registry and chambers,
Johnson noted that Del Ponte has disallowed her staff to
participate in discussions aimed at determining how
indictees, indictments and other investigative files might be
transferred to national jurisdictions. As a result, he said,
almost no work has been done to prepare the groundwork for
the transfer of cases from the ICTY, a central feature of the
completion strategy.


7. (C) Comment: Plea agreements are not particularly popular
among victims groups, who tell OTP, for instance, that
Obrenovic and Nikolic are getting lenient treatment despite
their role in the Srebrenica massacres that took thousands of
lives. The fact that senior prosecutors nonetheless are
pursuing such agreements suggests an understanding of the
resource pressures brought to bear by the completion
strategy. Further agreements are likely to be reached in
coming weeks and months, and we suspect that the initial
targets will be in the imminent-trial cases, such as the
Dubrovnik case. To Johnson's mind, the international
community's encouragement of such agreements -- for instance,
as a possible preambular paragraph in reftel's draft UN
Security Council resolution -- would provide additional
assistance to those in OTP trying to map out a route to
achieving the completion strategy target dates. End comment.
SOBEL