ICTY: PREVIEW OF DEL PONTE JUNE 29 ADDRESS TO UN

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001592

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE -
STEPHENS/GREGORIAN/MITCHELL, L/EUR - LAHNE, L/AF - GTAFT.
INR/WCAD - SEIDENSTRICKER/MORIN; 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 DEL PONTE JUNE 29 ADDRESS TO UN
SECURITY COUNCIL


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


1. (C) Summary: In her June 29 oral report to the UN
Security Council, Carla del Ponte, Chief Prosecutor of the
International Criminal Tribunal for the former Yugoslavia
(ICTY),will highlight several issues from her written report
submitted to the Security Council in May. In addition to the
expected items concerning the current budget crisis,
confirming that she will conclude all investigations and seek
final indictments by the end of 2004, and castigating SAM for
lack of cooperation, she may also raise four less expected
issues with potentially serious implications: the likelihood
that the Tribunal will slip from its 2008 completion target,
her notion that certain "high-level" indictees may need to be
transferred to the region for prosecution by local
authorities in order to meet completion strategy targets, the
allegation that several fugitives may be in Russia, and a six
month deadline for Croatia to apprehend and transfer
Gotovina. End summary.


2. (C) Chief Prosecutor Del Ponte will speak on June 29
immediately following the presentation of ICTY President,
Judge Theodor Meron (a preview of Meron,s remarks will be
reported septel). According to Jean-Daniel Ruch, senior
political adviser to Del Ponte, she will repeat the main
themes of her written completion strategy report to the
Council, which was submitted on May 21. In particular, she
will emphasize her commitment to completing the work of the
Tribunal according to the strategy endorsed by the Security
Council in Resolutions 1503 and 1534 (i.e. concluding all
investigations by 2004, all first instance trials by 2008,
and all appeals by 2010),but she will note that the timeline
for trials and appeals is jeopardized by the degree to which
states fail to cooperate in apprehending fugitives, local
jurisdictions remain incapable of receiving and trying fairly
cases transferred from the ICTY, and the budget crisis forces
her to cut important resources.


3. (C) Conclusion of investigative/indictment phase: Del
Ponte will express confidence that OTP will conclude its
investigations and issue all remaining indictments by the end
of 2004, the target of the completion strategy. She will
report a number of staffing and budget decisions that are
being made consistent with the reorientation of the OTP to a
trial-support mode. This includes the closure of the ICTY
office in Skopje, and the scaling down of its office in
Pristina, in preparation for closure. She will update her
written report by noting that since its submission, the OTP
has ceased one investigation, leaving six investigations
outstanding that are comprised of eleven suspects. This will
result in the need for the ICTY to hold four new trials, as
two of the targets could be joined with existing trials. Del
Ponte will also report that two indictments referenced in the
written report have been confirmed and will be presented to
the relevant authorities very soon (reported separately).


4. (C) Del Ponte will express doubt, however, that all
trials in the first instance can be finished by the end of

2008. She and President Meron had warned during their Fall
reports that slippage was likely and we can expect her to
emphasize the increased likelihood of this in her upcoming
oral report. (Comment: She has said on a number of occasions
that she sees her responsibility primarily in terms of
meeting the 2004 deadline and that it is the Trial Chambers,
responsibility to meet the 2008 deadline. This elides the
fact that the ability to meet the 2008 deadline depends in
large measure on the number and nature of the indictments
brought before the Tribunal by the OTP and the efficiency
with which the cases are tried by the prosecutors. End
comment.)


5. (C) Transfer of cases to domestic jurisdictions: Del
Ponte will note that an essential factor in the ICTY's
ability to meet the 2008 target is the ability to transfer
cases and investigations for trial in local jurisdictions.
Her report describes three categories of cases, of which the
first is most relevant for completion purposes:

-- Indicted Cases: Twelve cases involving twenty-two
indictees below the senior-level threshold, "mostly older
cases concerning relatively lower-level perpetrators." These
cases would be transferred pursuant to Rule 11 bis of the
Tribunal's Rules which authorize the chambers to refer ICTY
indicted cases, irrespective of whether the indictee is in
custody, for trial in the territory where the crime was
committed, the accused was arrested, or (pursuant to a recent
rule change) a third country with jurisdiction.

-- Non-indicted Cases: Nineteen cases involving sixty-seven
"medium-level perpetrators" who were not indicted and whose
investigations were suspended in 2002. Del Ponte hopes to
refer these cases to domestic courts for further
investigation and prosecution. Fourteen cases (involving
about 50 suspects) would go to Bosnia and Herzegovina, three
(involving about 10 suspects) to Croatia, one (involving
about six suspects) to Serbia and Montenegro, and one (one or
more suspects) to Macedonia. (NB: These would not fall under
Rule 11bis but would need to be "referred" under an as-yet
identified mechanism.)

-- Rules of the Road and other cases: OTP "has identified
thousands of individual perpetrators in respect of whom some
evidence has been gathered" but no indictments issued. With
respect to these cases, largely drawn from the Rules of the
Road program, Del Ponte intends to compile a brief supporting
dossier for local prosecutors, who would have responsibility
for deciding whether to proceed.


6. (C) One additional category is likely to be controversial.
In her written report, Del Ponte suggests, "In order to keep
with the timeframe set by the Security Council, it will
probably be necessary to transfer to local courts under Rule
11bis a greater number of cases (i.e. more than the 12
involving 22 perpetrators described above),even some
involving high-level accused." She is likely to repeat this
during her oral presentation. This approach is strongly
opposed by ICTY President Meron (see septel). It is also at
odds with the Security Council's mandate in UNSCR 1503 that
the Tribunal concentrate on "the most senior leaders
suspected of being most responsible for crimes within the
ICTY,s jurisdiction" and transfer "cases involving those who
may not bear this level of responsibility." Moreover, the
successful transfer of cases even at a lower level of
responsibility depends on the capabilities of local courts,
about which Del Ponte herself expresses concern. Del Ponte
notes "several instances of witness intimidation," and even
some "murders (of) witnesses due to appear at the ICTY." In
her written submission Del Ponte is dubious of the
institutional capabilities of Balkan courts.


7. (C) Rule 28: Del Ponte is also in conflict with Meron over
a recent amendment to ICTY Rule 28 that requires judges,
before confirming an indictment submitted by the OTP, to
ensure that it involves senior leaders suspected of being
most responsible for war crimes. Although the amended rule
closely tracks the text of paragraph five of UNSCR 1534 and
is positive step by the judges to implement that provision,
Del Ponte,s written report alleges that it is contrary to
the Tribunal statute and inconsistent with her independence.
Ruch has urged Del Ponte not to reiterate this criticism in
her oral remarks because he believes it will invite the
Council to expressly reject her interpretation and voice
support for the amendment. (Comment: While we are
reasonably confident that Del Ponte will heed Ruch,s sound
advice, it is important for the USG and other Council members
to express strong support for the Judge,s implementation of
the UNSCR 1534 through the recent rule amendment if she
persists in questioning it. End comment.)


8. (C) Budget Crisis: Del Ponte will report that the ICTY
budget freeze, member-state arrears and a cash-flow crisis
are having a significant impact on both OTP morale and its
ability to meet completion targets. The budget freeze has
made the contract status of many staff uncertain, resulting
in many of the best and most experienced individuals looking
for work elsewhere. The current prohibition on hiring has
meant that OTP has been unable to replace lost staff. Del
Ponte will undoubtedly raise this budget crisis as an element
that is undermining her ability to implement the completion
strategy.


9. (C) State Cooperation with the ICTY: Del Ponte will
assess the level of cooperation she is receiving from Zagreb,
Sarajevo/Pale and Belgrade, much as she did in her written
report. Del Ponte is pleased with the cooperation OTP is
receiving from Croatia, stating that she is "convinced (that)
the Croatian government is currently doing everything it
can." Del Ponte, however, will note that Zagreb has still
been unable to arrest Ante Gotovina, and she plans to use her
statement before UNSC to set a deadline for Croatian success
of six months, phrased as "before my next visit to this
body." In Bosnia and Herzegovina OTP notes "increased
activities by OHR and SFOR aimed at arresting ICTY fugitives"
but laments the lack of success thus far. Her criticism will
be phrased by reference to "authorities in BiH," rather than
just Republika Srpska because, Ruch says, she wants to
implicitly include SFOR in her criticism. Serbia and
Montenegro represents, in her view, the least obliging Balkan
state as it "has practically suspended any cooperation with
the Tribunal." Her oral report will be "a bit stronger" than
her pointed criticism of SAM in her written report, where she
states that over 100 requests for documents and 50 requests
for waivers are outstanding," and that the authorities "have
proven through their behavior in the recent months that they
are not ready to execute (ICTY) arrest warrants." She
concludes that "Serbia and Montenegro is therefore in breach
of its international legal obligations."


10. (C) Russia: In a real break from her written report, Del
Ponte may also raise the possibility that some fugitives are
in hiding in Russia, suggesting the collusion of Moscow
authorities. According to Ruch and Chief of Investigations
Patrick Lopez-Terez, OTP has received information that
several indictees are in Russia and two actually have known
addresses in Moscow. She will tell the Council that she has
informed the Russian authorities of this intelligence and is
"awaiting their response." (Comment: It remains unclear if
this statement will make it into the final speech. End
Comment.)

--------------
Comment
--------------


11. (C) One needs to be prepared for any number of
eventualities when Carla Del Ponte makes public appearances
because she often departs from the script. Nonetheless, it
is possible to anticipate several areas where a U.S.
intervention could be warranted. These include (1) a
restatement of the U.S. opposition to the transfer of senior
figures to domestic jurisdictions for trial; (2) support, if
the issue is joined, of the recent amendment of Rule 28 so
that the judges can verify that new indictments are indeed of
senior level individuals most responsible for war crimes; (3)
the continued U.S. concern regarding the non-cooperation of
various governments in the region; (4) a welcome of OTP's
announcement that it will meet the end of 2004 deadline for
the end of investigation and the various initiatives OTP and
President Meron have undertaken to improve efficiency of the
ICTY process; and (5) our continuing commitment to the ICTY
financially and concern about the perilous budget situation
and its impact on the ability of the Tribunal to fulfill its
mandate.
SOBEL