ICTY: AMBASSADOR PROSPER'S MEETINGS WITH ICTY

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002818 SIPDIS DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE - GREGORIAN/MITCHELL, L - TAFT, L/EUR - LAHNE, INR/WCAD - SEIDENSTRICKER/MORIN E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY TAGS: PREL PHUM BK HR SR NL ICTY SUBJECT: ICTY: AMBASSADOR PROSPER'S MEETINGS WITH ICTY PRESIDENT AND REGISTRAR REF: A. ICTY PRESS RELEASE OF OCTOBER 31 (WWW.UN.ORG/ICTY/LATEST/INDEX.HTM) ¶B. BELGRADE 2506 Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b)-(d ). ¶1. (C) Summary: Ambassador-at-large for War Crimes Pierre-Richard Prosper met with the President and Registrar of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in separate meetings on October 30 in The Hague. Ambassador Prosper, meeting with ICTY officials on the margins of the Sarajevo War Crimes Chamber Donors Conference (see ref A),emphasized the continuing strong support of the U.S. Government for the work of the Tribunal. He also stressed repeatedly that the Tribunal must work to implement the completion strategy, including by helping national jurisdictions in the Balkans build the capacity and credibility to prosecute war crimes cases in their own courts. End summary. ¶2. (C) President Theodor Meron, joined by chief of staff Larry Johnson (American),initiated the discussion with Ambassador Prosper by noting that Chief Prosecutor Carla Del Ponte had placed him under considerable pressure by formally requesting in writing that he condemn publicly U.S. officials' statements concerning the possibility of Serb courts trying cases such as those involving recently unsealed indictees Lukic, Lazarevic, Pavkovic and Djordjevic. (Note: In an October 22 internal memo, Del Ponte told the President that "the statements made by US officials in the past days are an interference in the work of the prosecution that not only create confusion and uncertainties, but also constitute de facto encouragement for Serbia and Montenegro not to fulfill their international obligation." She characterized the statements as "a direct interference in the work of the Tribunal and unacceptable." End note.) See also ref b. Meron said that Del Ponte is "adamant that the next indictees (i.e., those to be indicted before the close of investigations by the end of 2004) will be too senior for transfer," adding that "she may be right." Prosper, joined by Embassy legal officers and S/WCI intern Shah, responded that the full context of his comments demonstrated that the USG was not trying, in Del Ponte's words, to "interfere" with the work of the Tribunal. Quite the contrary, he said, the USG principal interest at this stage is the apprehension of Ratko Mladic and Radovan Karadzic. The unsealing of the indictments of the above-named indictees was, in the U.S. view, a huge mistake, undermining the political environment in Belgrade and putting at risk efforts to apprehend Mladic. The arrest and transfer of Mladic would "change the environment" in the region. As a result, once Belgrade has the capacity and credibility to handle such cases, "any or all cases can go back to Belgrade if the ICTY agrees." He noted further that, even in a situation of transfer to Belgrade, the ICTY retains primacy and "can take back cases if Belgrade doesn't prove credible." ¶3. (C) Meron responded positively to Prosper's detailed explanation of U.S. policy. He added that he is "comfortable with the Serb legal framework" on paper and "reasonably comfortable that, given an appropriate environment, the (local) court could try cases. Maybe some of the indictees," he said, "could be tried in Belgrade" in the future, perhaps with the help of some sort of "international monitoring mechanism." He concluded that, with Prosper's explanation in hand, he found no need to accede to Del Ponte's request for a statement. ¶4. (C) Meron noted separately that he had briefed P-5 UN mission legal advisers in New York about a serious structural problem the Tribunal will confront in the coming years. With many judges up for reelection by the UN General Assembly next year, the loss of some of them could remove them from ongoing trials, seriously complicating the Tribunal's ability to conclude those cases. As a result, Meron is proposing that the ICTY Statute be amended in order to allow judges to continue serving on the Tribunal. One idea, he said, would be to extend the terms of judges by one year, renewable annually, though he is open to other solutions. He said that he expected other P-5 members to be supportive and that the Chinese had already indicated to him privately their support. Prosper said that he understood that judges' terms coming to such a conclusion could undermine the completion strategy and he saw the logic in Meron's solution, and that he expected the USG would be able to support his initiative. (Note. We understand that P-5 foreign ministry legal advisers briefly discussed this issue in their recent meeting, responded favorably, and agreed that the matter should be taken up at the beginning of 2004. End note.) ¶5. (C) Prosper met separately with ICTY Registrar Hans Holthuis and Deputy Registrar David Tolbert (American). Holthuis expressed his appreciation for the continued support of the United States and outlined a number of Registry initiatives to put the Tribunal in a position to meet the completion strategy goals. For instance, noting improved cooperation with the Office of the Prosecutor and "excellent" leadership by President Meron, Holthuis said that the three branches of the Tribunal had been working hard to ensure a consistent line-up of cases for trials so that the three courtrooms are constantly being put to use. He also pointed to a recent amendment to the Rules of Procedure and Evidence, according to which the trial chamber now determines the length of the prosecution case, a change which ties well into the Registry's new mechanism for paying defense counsel by lump-sums. He said that he expects Rule 68, under which the prosecution must disclose to the defense any material known to it "which in any way tends" to exculpate the defendant or affect the credibility of a prosecution witness, to be narrowed to a reasonableness standards. This will ease the burden on the prosecution and third party (e.g. government) providers while ensuring that the defense receives exculpatory information and is not bombarded with irrelevant material. These were, he said, just examples of some of the activities at the Tribunal aiming toward an efficient implementation of the completion strategy. ¶6. (C) Prosper expressed his appreciation for the Registry's efforts and noted that he was aware of Holthuis' recent letter seeking voluntary contributions for projects such as ICTY Outreach, Office of Legal Aid and Defense and Rules of the Road. Some programs, especially the aspects of outreach that involve the building of capacity in the Balkans to prosecute crimes also under the ICTY's jurisdiction, mesh neatly with the USG's interests, expressed just that morning by Ambassador Prosper during the Donors Conference. Holthuis wondered whether some of the U.S. contribution to the Sarajevo War Crimes Chamber could be earmarked for ICTY outreach efforts that overlap with the chamber's work. Prosper said that he would take that back to Washington so that appropriate officials could consider whether the use of such funds by contributing to ICTY Outreach would be possible. ¶7. (C) Comment: Ambassador Prosper's meetings, particularly with President Meron, provided an excellent opportunity to advance USG equities with respect to the completion strategy and to convey our support for the consistent efforts of the President and Registrar in this respect. Meron, the Tribunal's preeminent supporter of USG efforts, welcomed Prosper's articulation of U.S. policy with respect to the transfer of cases for local prosecution and benefited from a detailed understanding of the circumstances that prompted the USG's reaction to the unsealing of the recent indictments. Holthuis, who has been steadfast and pragmatic in moving the Tribunal towards it completion goals, conveyed his commitment to the process and confirmed that the leadership of the Chambers and the Registry are generally working in lockstep to meet completion strategy goals. End comment. ¶8. (U) Ambassador Prosper did not have an opportunity to review this message prior to his departure. SOBEL