C O N F I D E N T I A L THE HAGUE 003027

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE -
GREGORIAN/MITCHELL, 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: WITH STRUGAR BALKING AT RETURN, PRESIDENT
MERON TO REPORT SAM NONCOMPLIANCE AT 0900 EST TOMORROW

REF: A. (A) KAYE DECEMBER 4 EMAIL

B. (B) BELGRADE 2926

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


1. (C) Summary: The President of the International Criminal
Tribunal for the Former Yugoslavia (ICTY), Theodor Meron,
told embassy legal officers that he would report to the UN
Security Council Belgrade's noncooperation by 0900 EST on
Tuesday, December 9, if indictee Pavle Strugar fails to
return to The Hague for his trial, scheduled to begin on
Wednesday December 10. Meron said that the failure of Serbia
and Montenegro's Government (SAM) to effect Strugar's
surrender would have grave consequences for the ICTY's
willingness to grant provisional release to Serb indictees in
the future. End summary.


2. (C) Meron, who alerted Embassy legal officers to his
serious concerns about Strugar's efforts to avoid return to
The Hague last Friday (ref A), firmly rejected any procedure
short of Strugar complying with the ICTY trial chamber's
order that he return to The Hague for trial immediately.
Meron said that the SAM ambassador to The Hague had explained
to him last Friday a process according to which a Belgrade
court would order Strugar's transfer, but that Strugar would
have the ability to appeal. (The procedure was described
similarly in ref B.) Meron told the SAM Ambassador that any
such process, especially the right of Strugar to appeal, was
"completely unacceptable." In a conversation with emboff, he
added that it would be as if an accused out on bail in the
United States were allowed to appeal his apprehension to the
marshal when called to trial. He explained that the original
decision in 2001 to grant Strugar provisional release was
premised on both a commitment from the accused to return
immediately to The Hague when the trial would so require it
and from the Government to guarantee his transfer. Strugar's
failure reflects poorly enough on the accused, who, Meron
mused, may simply be hoping that he can drag out an appeal
and see whether this month's elections give him a government
less likely to meet its commitments to the Tribunal.
According to Meron, it reflects even worse on Belgrade which
guaranteed Strugar's return and whose credibility with
respect to any future requests depends on its ability to
deliver on such assurances.


3. (C) As a result, Meron plans to send a formal letter to
the United Nations Security Council not later than 0900 EST
on Tuesday, December 9, detailing the noncompliance of the
SAM with the order of the Tribunal that Strugar return for
trial. He conceded that if Strugar were en route to The
Hague or if the SAM were to guarantee that Strugar's
departure was imminent (i.e., within twenty four hours), he
would hold off on such a letter. He would, he said, be firm
that SAM had to meet the commitments which formed an
essential part of the ICTY's agreement to Strugar's
provisional release. Meron added that such noncooperation,
which has caused the postponement of the trial's start date,
undermines the ICTY's ability to do its work efficiently and
therefore compromises its ability to meet the completion
strategy goals.


4. (C) Comment: A failure by SAM to effect Strugar's transfer
to The Hague will have a seriously negative impact on future
provisional release considerations, by both the Office of the
Prosecutor and the Chambers, involving Belgrade. Meron is
firm that that this transfer must happen imminently to avoid
a report of noncompliance to the SC and we do not expect him
to blink. End comment.
SOBEL