ICTY PUSHES CROATIAN COOPERATION IN NON-PAPER

C O N F I D E N T I A L ZAGREB 001898

SIPDIS


E.O. 12958: DECL: 09/03/2003
TAGS: KAWC PREL HR
SUBJECT: ICTY PUSHES CROATIAN COOPERATION IN NON-PAPER


Classified By: Poloff Justin Friedman, reasons 1.5 (b) & (d)


1. (SBU) ICTY representative Thomas Osorio provided us on
September 1 a copy of the non-paper (text para 3) which he
had just delivered to the GoC. Osorio told us that this
paper was part of the Prosecutor's strategy of providing
maximum transparency to Croatia on outstanding issues in
advance of her October report to the Security Council on
Croatia's cooperation with the ICTY.


2. (C) Osorio added that he had been asked by the
prosecutor's office to work "intensively" with Croatian
authorities to ensure improved cooperation in coming months.
He stressed, however, that despite rumors to the contrary,
there were absolutely no negotiations going on with anybody
in or outside the GoC to facilitate the surrender of indicted
war criminal Ante Gotovina.


3. (SBU) BEGIN TEXT OF NON-PAPER:
Non-Paper
August 2003

Co-operation between Croatia and the OTP (ICTY)

Croatia,s co-operation with the OTP has improved since the
last visit of the Prosecutor to Zagreb in April 2003; the
Government made certain efforts to resolve the outstanding
issues. There are, however, segments where co-operation is
still not fully sufficient and causes concerns in the light
of the ICTY,s Completion Strategy, recently endorsed by the
UN Security Council (Resolution 1503). Full co-operation with
the OTP is one of the fundamental prerequisites for the
success of the ICTY,s Completion Strategy.

At this stage, the Prosecutor decided to circulate this
Non-paper to the Government and the relevant States taking
into account her briefing to the UN Security Council expected
in October. In the OTP,s view it is possible to resolve all
or the majority of the remaining outstanding issues in the
near future, allowing the Prosecutor to state Croatia,s full
compliance with the OTP,s requests.

Arrest and transfer of the indictees still at large

At the moment there is one fugitive at large * Ante
Gotovina, who is, according to available sources, believed to
be in Croatia (or in adjacent areas of Herzegovina in BH).
Interviews with this fugitive have been published in Croatia
on a number of occasions lately, despite official claims that
nobody knows where he is hiding. The Prosecutor expressed on
a number of occasions her disappointment in regard to the way
in which the Croatian Government had handled the case of
Gotovina. It is fundamentally important that the Government
undertakes pro-active efforts to locate and arrest Gotovina.
It is not acceptable that the Government, as it seems, has
chosen to wait passively for "somebody" to provide
information on his location or for Gotovina himself to decide
to surrender.

UN SC Resolution 1503 &urges Member States to consider
imposing measures against individuals and groups or
organisations assisting indictees at large to continue to
evade justice8. The reported efforts of the Government in
this respect under Rule 591 (in April this year) (FOOTNOTE:
Rule 59 provides that a State shall report to the Registrar
its inability to execute the arrest warrant and the reasons
thereof. Failure to report on actions taken may lead to
report by the President to the Security Council. END
FOOTNOTE.) are not sufficient, and in any event the
Government is required to report regularly to the Registrar
on the actions taken in this respect.

All in all the situation with Gotovina gives rise to concerns
about ability of the Government to control the special
services and to act without undue delay upon any new
indictments issued by the ICTY. It is encouraging though that
the Government expressed to the Prosecutor a commitment to
act immediately upon any new indictment/ arrest warrant.

Requests for documents, access to archives and availability
of witnesses.

On the positive side, for a long time now the situation with
interviews by the OTP of potential witnesses and suspects
could be assessed in positive terms. The Government was
effective and co-operation in this respect is progressing
well (with some rare and minor problems with some specific
persons to be interviewed).

The situation with the access to the documentary evidence and
archives has additionally improved but is not fully
satisfactory. The OTP has had access or obtained documents
from a number of locations/ archives in Croatia (including
Government Ministries, Office of the President, HVO archive
in the State Archive of Croatia and others). The Croatian

authorities also allowed on-site reviews of certain important
collections of documents.

In July 2003 the OTP conducted a comprehensive review of all
its Requests for Assistance and Information (RFA-s). On 7
August the results of this review, with clear, detailed and
concise benchmarks, were provided to the Head of the Croatian
Government,s Office for Co-operation with the ICTY and the
ICJ, Mr. F. Krnic.

The Croatian side was informed about 16 RFAs regarded on 7
August outstanding (partially answered, or in some cases
requiring further discussions). Some of the RFAs are two
years old. Without going into the details of the outstanding
RFAs (or part of RFAs),which were presented to the
authorities and have been discussed on a number of occasions,
it is important to stress that OTP Requests are precise and
specific. The follow up discussions with the authorities have
also clarified additionally the OTP,s needs. The above
mentioned outstanding Requests deal with the following
topics: identified Military units and their specific
documentation; specific reports of the Croatian Ministry of
Defence during a limited period of times documentation of the
late Defence Minister G. Susak; specific Bank records;
specific information of the Croatian Intelligence community;
specific documents in regard to the Operation &Storm8;
specific statistical data from the 1991 census; and with some
other matters. It is also expected by the OTP that the
Croatian authorities respond to the RFAs in good faith with
substantial materials, and completely responsive to the
subject matter of the RFAs. Unfortunately, it is not always
the case.

War crimes cases in the local courts.

In view of the ICTY,s Completion Strategy, the importance of
local war crimes investigations and prosecutions gains
special significance. The UN SC Resolution 1503 additionally
stresses importance of &the strengthening of national
judicial systems8 to the rule of law in general and to the
implementation of the ICTY Completion Strategy and notes "the
obligation ... of the countries of the former Yugoslavia to
investigate those accused whose cases would not be tried by
the ICTY and take appropriate action with respect to
indictment and prosecution, while bearing in mind the primacy
of the ICTY over national courts8.

It could be stated at this stage that, despite the fact that
a number of war crimes cases have already been processed,
only one serious war crimes trial has been conducted with the
first serious result - the Norac-Oreskovic & al. trial in
Rijeka. However, the written verdict in this case has not
been issued yet and the case is under appeal. Some other
cases (like Lora prison case in Split) were not so
successful. The OTP has already established very positive
relations with the office of the Croatian State Attorney Mr.

M. Bajic (the OTP assisted and will assist more in some
particular war crimes investigations and prosecutions
launched by Bajic,s office, which has already issued first
indictments for war crimes). However, it is expected that
Croatia demonstrate that it is serious about pursuing all war
crimes suspects in Croatia, regardless of the nationality of
the perpetrators or victims.

The Government has introduced a draft law on the Special war
crimes Court(s) which, however, mainly deals with the ICC. In
general, this draft law is designed to facilitate Croatian
assistance to the ICC and aims at a more general reform of
the domestic legal system so as to better carry out domestic
prosecutions of war crimes cases. The draft also envisages
cases being remitted to Croatia by the ICTY, but the terms
and procedures of taking over the cases and evidence are
unclear. Another interesting feature is that in many
respects, this draft seems superior to existing Croatian
legislation designed to facilitate cooperation with the ICTY.

END TEXT OF NONPAPER.
FRANK


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