Identifier
Created
Classification
Origin
03THEHAGUE2563
2003-10-07 05:11:00
CONFIDENTIAL
Embassy The Hague
Cable title:  

ICTY: PREVIEW OF CHIEF PROSECUTOR'S AND

Tags:  BK HR KAWC NL PHUM PREL SR ICTY 
pdf how-to read a cable
This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 002563 

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - ROSSIN,
EUR/SCE - STEPHENS/GREGORIAN, L/EUR - LAHNE, L/AF - GTAFT.
INR/WCAD - SEIDENSTRICKER; USUN FOR ROSTOW/WILLSON

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: PREVIEW OF CHIEF PROSECUTOR'S AND
PRESIDENT'S REPORTS TO SECURITY COUNCIL


(U) Classified by Clifton M. Johnson, Legal Counselor, for
reasons 1.5(D) and 1.6.

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 002563

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - ROSSIN,
EUR/SCE - STEPHENS/GREGORIAN, L/EUR - LAHNE, L/AF - GTAFT.
INR/WCAD - SEIDENSTRICKER; USUN FOR ROSTOW/WILLSON

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY: PREVIEW OF CHIEF PROSECUTOR'S AND
PRESIDENT'S REPORTS TO SECURITY COUNCIL


(U) Classified by Clifton M. Johnson, Legal Counselor, for
reasons 1.5(D) and 1.6.


1. (C) Summary. Chief Prosecutor Carla Del Ponte and
President Theodor Meron of the International Tribunal for the
former Yugoslavia (ICTY) will present the Security Council
with a difficult dilemma during their reports to the Council
on October 9. Del Ponte will report that she intends to seek
14 additional indictments involving 30 perpetrators before
the end of 2004. Meron will report that under his
projections the Tribunal will not be able to conclude the
trials of all existing indictments before the end of 2008
deadline set forth in the completion strategy. As a result,
if Del Ponte carries through with her plans to indict an
additional 30 perpetrators in the next year, the Tribunal,s
work will likely be extended for a minimum of two more years.
Del Ponte and Meron,s reports will put the Council on
notice that the Tribunal is not on track to complete its work
within the completion strategy targets; whether and how the
Council reacts to this news will have help determine the
likely lifespan of the Tribunal. End Summary.

--------------
Chief Prosecutor,s Report
--------------

2. (C) Del Ponte,s political adviser, Jean-Daniel Ruch,
provided Embassy Legal Officers with a detailed preview of
the report (largely drafted by Ruch) that Del Ponte intends
to give to the Security Council on October 9. The speech is
divided into three parts covering the Completion Strategy,
Cooperation of States in the Region, and the Capacity of
Domestic Courts to handle war crimes cases. With respect to
the Completion Strategy, Del Ponte will confirm her intention
of meeting the completion strategy,s goal of completing all
new investigations by the end of 2004. Between now and then
she intends to issue about 14 new indictments involving 30

individuals, all at the "highest levels." Ruch explained
that by this she means that the indictees will be at the
general or ministerial level or their equivalents (i.e. with
respect to the KLA). Del Ponte,s goal is to seek
ethnic/national proportionality with respect to the new
indictments. Of the 14 projected new indictments, 5 could be
joined with existing ones. As a result, Del Ponte,s new
investigations will necessitate an additional 9 trials for
the Tribunal.


3. (C) With respect to investigations of lower level
perpetrators, all work on those is, in essence, being halted.
Del Ponte will report that she intends to refer 17
investigations involving 62 lower level suspects back to the
region. Of these 12 (involving 48 suspects) will go to
Bosnia and Herzegovina (BiH),3 (involving 8 suspects) will
go to Croatia, and 2 (involving 6 suspects) will go to Serbia
and Montenegro (SAM). As underscored later in the speech,
the ability and willingness of the Office of the Prosecutor
(OTP) to actually transfer these cases back to the region
will depend on the establishment of viable, just, and
effective domestic judicial mechanisms to receive and handle
the cases.


4. (C) Del Ponte will sum up this portion of her report by
concluding that it will not be possible for the Tribunal to
complete all trials in the first instance by the completion
strategy,s end of 2008 target date. She will indicate that
consistent with her mandate, she will pursue the
investigations described above until the end of 2004. She
will propose that the Security Council decide in 2005, once
the final results of her investigations are complete, which
cases need to be tried in the Tribunal and which should be
referred back to the region. Del Ponte will resist efforts
by the Security Council to limit the scope of her
investigations and will justify this position by referencing
in her speech her legal mandate to continue investigations
through 2004, the importance of prosecutorial independence,
and the bad precedent (i.e. for the International Criminal
Court) such interference would establish. (Comment: Del
Ponte,s strategy here is to defer any Security Council
inquiry into her work until after her investigations are
complete and the indictments issued. Once the indictments
are issued, however, the international community will
essentially be faced with a fait acompli and have far less
latitude than now to pursue changes in the ICTY,s direction.
End comment).


5. (C) The second part of Del Ponte,s presentation will
focus on Cooperation with States in the Region. With respect
to Croatia, she will state that the authorities bear the
responsibility for the failure to arrest and transfer
Gotovina. She will characterize recent GOC reports
describing their efforts and indicating that Gotovina is not
in the country as a campaign to manipulate and influence
public perception. She will directly reject the Croat
assertions and say that sources "that we have in Croatia"
have confirmed that Gotovina is in the country. She will
conclude with the blunt assessment, in line with what she
promised the UK, that Croatia has not fulfilled its
obligations to cooperate as required under the relevant
Security Council Resolutions. While Del Ponte,s
presentation with respect to Gotovina will be unambiguously
critical, she will also acknowledge in passing that the GOC
has done well in terms of making witnesses and documents
available to the Tribunal.


6. (C) Del Ponte,s presentation on Belgrade will also be
very critical. She will report that Belgrade authorities
have not done well in terms of fugitive apprehension. She
will also say that they have not provided adequate access to
documents. She will note that SAM only began delivering
documents in the Milosevic case in recent months and that it
was as a result of a court order rather than a genuine desire
to cooperate. She will also offer another case study
involving an OTP request for archive access that, after being
outstanding for seven months, was only granted in the past
week. In granting the request SAM authorities authorized
access to documents from the 1996 to 2000 period, but
declined to provide access to the 1991 to 1995 period that is
of most interest to the OTP. Del Ponte,s speech will
characterize this as unacceptable and express her belief that
SAM authorities are retaining information relating to Serb
culpability in the Milosevic trial. She will also note that
the OTP has 36 outstanding requests for state secrecy waivers
to permit Belgrade officials to testify at the Tribunal.


7. (C) As in the case of Croatia, she will briefly note some
positive behavior including "some improvement in attitude"
and a better public posture following the Djindic
assassination. She will also favorably note the appointment
of a special war crimes prosecutor and the passage of a new
law on war crimes. Del Ponte will also praise reforms in the
army in an effort to give Defense Minister Tadic a boost.
Conversely, she will single out Interior Minister Mihajlovic
for criticism saying he lacks the willingness to take
cooperation with the Tribunal to a new level following the
initial promise of the post-Djindic assassination period.


8. (C) Del Ponte,s brief discussion of BiH cooperation will
note no change in the negative approach of the RS. While
praising Bosnian cooperation generally, she will note that
there is very little cooperation in cases involving Bosnian
Croat perpetrators.


9. (C) The third and final section of Del Ponte,s speech
will focus on Domestic Courts and their ability to handle war
crimes cases transferred from the ICTY. She will underscore
the importance of establishing such a capacity quickly and
flag two areas that warrant attention. First, she will
describe the problem of ensuring the admissibility of cases
and evidence transferred from the ICTY. Unless domestic law
makes provision to receive cases from the Tribunal and accept
as admissible evidence taken pursuant to ICTY procedures, Del
Ponte fears that transferred war crimes cases could end up
being shelved in domestic courts. Second, Del Ponte will
emphasize the need for bilateral law enforcement cooperation
among the states in the region and encourage the enactment of
appropriate legislation and the conclusion of legal
assistance treaties. Such cooperation is needed, she will
report, to ensure the protection of witnesses and evidence in
domestic cases. Similarly, extradition treaties between
states in the region could facilitate the trial of suspects
in the country where the evidence and witnesses are located
and which has the best ability to protect them. Del Ponte
will urge the international community to assist in
strengthening and establishing domestic courts to try war
crimes cases and will push for a donors conference for the
Bosnia State Court. She will also ask the international
community to press local governments to improve their
domestic laws and to intensify bilateral cooperation among
themselves.

--------------
President,s Report
--------------


10. (C) ICTY President Ted Meron is committed to the
achievement of the completion strategy and his report is
intended to alert the Security Council that the Prosecutor,s
investigative plans will put the Tribunal significantly off
track for meeting its 2008 target date for finishing all
trials. Meron,s report begins by describing the "great
progress" the Tribunal has made in striving towards the
completion strategy targets. He identifies various key
factors that have been and will continue to be critical in
reaching the completion targets including the frequency of
guilty pleas, internal reforms to enhance efficiency, efforts
to establish a war crimes chamber in the Bosnia state court
that will be able to receive cases transferred from the ICTY,
and improving cooperation with the ICTY by states in the
region.


11. (C) In terms of accomplishments, Meron reports that the
Tribunal has tried 44 perpetrators in 22 trials, resulting in
five acquittals. The Tribunal is operating at an all time
high pace with four to six trials being heard at a time.
The chambers have adjudicated 29 cases on the merits, heard
three cases involving contempt, and reached four final
judgments. The appeals chamber has considered 36
interlocutory appeals, two reviews of the merits, two
contempt cases, and one judgment on the merits. Meron
comments favorably on the increasing trend towards plea
bargaining at the Tribunal singling out the positive impact
of the Plavsic plea and noting that a total of 15 guilty
pleas have now been entered. He observes that a plea which
includes a properly detailed acknowledgment of guilt and an
expression of remorse can play a constructive role both in
the region and in bringing other perpetrators to justice.


12. (C) Meron provides an overview of key reforms that have
enhanced the ability of the Tribunal to meet its completion
strategy targets. Security Council action in December 2002
and July 2003 has improved efficiency by eliminating the
prohibition on ad litem judges handling pretrial proceedings
and making clear the Council,s desire that the tribunal try
only those at the most senior levels who are most responsible
for war crimes. Internally, amendments to the Tribunal rules
have streamlined trials by limiting the amount of time that
witnesses testify, curtailing the number of witnesses, and
reducing the number of crime sites for which evidence needs
to be introduced to establish the crime base. In the region,
progress towards establishing a war crimes chamber in Bosnia
at the earliest possible time will prove critical in the
ability of the Tribunal to transfer cases to domestic
authorities for adjudication. Meron notes the PIC
endorsement of the war crimes chamber in June 2003 and plans
for a donors conference later this month. The revitalization
of a working group involving the three parts of the ICTY
(Registry, OTP, and Chambers) has enhanced coordination,
efficiency, and provided a good forum for identifying and
implementing reforms that shorten trials and speed appeals.
Meron also comments favorably on an OTP proposal for reforms
and certain rule amendments which is currently under
consideration in the Chambers, Rules Committee. These
efforts include improving and making more efficient the
process of information disclosure to defense counsel and the
presentation of evidence.


13. (C) Looking ahead, Meron notes that a critical factor in
assessing whether the completion strategy targets will be met
is the prosecutor,s intention with respect to future
indictments. Meron underscores that additional variables
such as the average length of proceedings and the timing of
arrests (i.e. so multiple individuals under one indictment
can be tried together rather than in separate trials),the
number of guilty pleas, and how quickly the state war crimes
chamber is established make it is impossible to predict with
scientific accuracy when the work of the Tribunal will be
completed. That said, given his current projections, Meron
believes it is possible to try 22 additional cases by the end
of 2008 deadline. This would include the trial of all
individuals currently in custody. If Karadzic, Mladic,
and/or Gotovina are brought into custody soon, it should also
be possible to try two of the three by 2008. Because the
trial of all 17 at large indictees would necessitate 11
additional trials, however, it is not possible to complete
all of them by the end of 2008 unless some of the underlying
variables change (e.g. there is a surge in the number of
guilty pleas).


14. (C) Remarking on the Prosecutor,s plans, the President
notes that 14 new indictments she contemplates will
necessitate 8 to 9 new separate trials. Noting that he has a
"duty to be candid," Meron concludes: "I must tell you that
given our current projections, it will not be possible to
accommodate any of these new indictments within the timeframe
set by the Council." Meron further observes that it is not
within the authority of the chambers to decide which of those
indictments submitted for confirmation involve those
perpetrators who are the "most senior leaders most
responsible for crimes within the ICTY,s jurisdiction."
(quoting the UNSCR 1503 of August 2003). He adds that it is
a matter for the Council and the Prosecutor, and that if the
OTP proceeds with the indictments indicated that the
completion date could slip by two years. Meron concludes by
observing that speed cannot come at the expense of fairness
and that the work of the Tribunal could not, in any event, be
considered done until Mladic and Karadzic are brought into
custody.


15. (C) Comment. The reports of the President and Chief
Prosecutor will put the Security Council and the
international community on notice that the ICTY is not on
track to meet the completion strategy deadlines, particularly
if the Prosecutor proceeds with her plans to seek another 14
indictments. Del Ponte is hoping that the Council defers
until 2005 any action in the face of this downbeat report
until her investigations are complete. (Indeed, she objected
to an earlier draft of Meron,s speech that followed its
review of the timetable with a request that the Security
Council provide guidance to the ICTY on how it should meet
the competing priorities.) If the Council acquiesces in this
approach, however, it will be all but impossible for the ICTY
to meet its completion targets. Even if a new war crimes
chamber in BiH is quickly established, Del Ponte,s speech
makes clear that none of the 30 new targets she has in mind
are of the mid to lower level that would be appropriate for
transfer to the Court. On the other hand, Security Council
action now on this issue risks charges of prosecutorial
interference and could send a mixed signal to the region (and
suspects) about the policy imperative being the closure of
the Tribunal rather than the pursuit of justice for war
crimes victims.


16. (C) Comment continued. A middle ground might be to
include in a statement issued by the Security Council
President (supported by interventions of like-minded
governments) an expression of serious concern about the
projections in the reports, a call on the President to
continue his reforms, and a pointed request to the Chief
Prosecutor to reconsider her plans for 2004 with an eye
towards limiting new indictments only to the most senior and
critical echelon of war crimes suspects. Coupled with
language that urged the strengthening and/or creation of a
domestic capacity to receive and try war crimes cases in the
region so that perpetrators would not escape justice, such a
statement might encourage Del Ponte to take a more modest
approach in the coming year with few downsides. End comment.
SOBEL