ICTY: PREVIEW OF JUNE 29 MERON PRESENTATION TO

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001599

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 JUNE 29 MERON PRESENTATION TO
SECURITY COUNCIL

REF: THE HAGUE 1592

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


1. (C) Summary. In his June 29, 2004 address to the Security
Council, the President of the International Criminal Tribunal
for the Former Yugoslavia (ICTY),Judge Theodor Meron, will
focus on the two competing sides of the completion strategy:
on the one, the Tribunal,s heavy workload and his
initiatives to work toward completion; on the other, the
impending hurdles to meeting the strategy,s targets. Meron,
like Del Ponte (see reftel),will argue that unless some of
the hurdles to implementation are removed, meeting the 2008
deadline for the completion of all trials will be difficult,
if not impossible. The readiness of the Sarajevo war crimes
chamber is among the foremost variables on his mind, and
following on his recent visits to Sarajevo with OHR, he will
emphasize its importance to the completion strategy.
Further, like Del Ponte, he will stress the seriousness of
the Tribunal,s budget and staffing concerns. End Summary.


2. (C) President Theodor Meron will speak on June 29
immediately prior to Chief Prosecutor Carla del Ponte
presentation (a preview of which was reported reftel).
According to Meron and his chief of staff, Larry Johnson, the
address will not differ substantially from his May written
report to the Security Council. Meron will emphasize at the
outset that the Tribunal is working at full capacity, holding
six trials simultaneously. But while Meron,s presentation
will demonstrate the commitment of the Tribunal, at all
levels, to implementing the completion strategy, a consistent
theme will be that maintaining the current level of
efficiency and productivity depends on a number of key
variables beyond the Tribunal,s control: from regional
cooperation and apprehension of fugitives to the ongoing
budget crisis and the development of the Sarajevo war crimes
chamber.


4. (C) Transfer of Cases to the Region: Among Meron,s major
efforts is his work to make viable the potential transfer of
low- and medium-level indictees to competent national
jurisdictions, particularly Bosnia. He is accomplishing this
by a variety of mechanisms, including personally pushing for
such efforts to succeed and ensuring that ICTY rules and
procedures will allow for transfers to proceed smoothly. One
example of the latter is the recent amendment of Rule 11 bis,
which enables a chamber to transfer an ICTY case (i.e., a
confirmed indictment) to another competent national
jurisdiction. This month, the chambers amended Rule 11 bis
to expand the scope of potential countries to which cases can
be transferred, by allowing the referral to any countries
having jurisdiction andwilling and adequately prepared to
accept such a case. Referral to Balkan states remains
presumptive, but Rule 11 bis now suggests that other
jurisdictions may also wish to prosecute or be asked to do
so. The revised Rule 11 bis also expresses a requirement
that the case be transferred only where it can be tried in
"accordance with due process and international human rights
norms," highlighting the importance of building effective and
fair trial capacity in the region. Meron remains seriously
concerned that local jurisdictions are not yet ready to try
cases at international standards. In light of Del Ponte,s
possible push for transfers soon -- even in advance of
jurisdictions being ready to receive them -- this could put
Meron and her at loggerheads.


5. (C) With respect to Bosnia and Hercegovina (where Meron
visited week of June 14),he will echo UNSCR 1503, which
called for "the expeditious establishment"of a special
chamber within the State Court (competent to receive cases
from the ICTY) of lower- or intermediate-rank accused" The
ICTY has been working with local authorities to establish a
the special chamber in Sarajevo, but the slow pace to date --
in particular the lack of appropriate detention facilities --
remains a serious concern to Meron. With respect to Croatia,
Meron will point to concerns but also note the "cause for
optimism" that Zagreb is heading in the right to direction.
Serbia and Montenegro represents the most problematic case
generally in terms of ICTY cooperation, and Meron is likely
to note that the OSCE recently held that "the national
judiciary lacks full capacity to conduct war crimes trials in
accordance with universally adopted standards." Still, as in
Croatia, ICTY is working to increase judicial capacity,
recently hosting a seminar with seven judges of the State,s
"Special Court for War Crimes."


6. (C) Rule 28 Amendment: Meron is committed to ensuring that
the Tribunal remain focused, as required by UNSCR 1534, on
senior-level alleged perpetrators. This was the impetus for
his amendment of Rule 28. Yet, as noted reftel, Del Ponte
has criticized as an interference with her independence the
amended Rule 28, which provides for the chambers to verify
that a proposed indictee is a senior-level person consistent
with the UNSCRs 1503 and 1534. Meron is likely to argue that
it represents a modest judicial role in certifying
indictments, necessary to implement UNSCR 1534, and that it
has already proven to operate efficiently. His raising of
the issue makes it possible that, despite contrary
protestations, Del Ponte will criticize it.


6. (C) Completion strategy barriers: Meron will highlight, as
his report did, some of the efforts at streamlining the
appellate and interlocutory processes and the efforts to
ensure that chambers are working at full capacity (six trials
simultaneously). All in all, these efforts are crucial to
keeping the Tribunal on pace to meet the completion strategy
goals. In addition to the transfer of cases under Rule
11bis, as described above, Meron will also identify three
categories of factors that could undermine his ability to
implement the Completion Strategy:

-- Further Indictments and Indictees in Custody: Meron
believes that the Tribunal can meet its target of completing
all current trials and trials of those in custody or on
provisional release by the end of 2008. Provided that key
indictees are apprehended soon, so as to permit their cases
to be joined to those of other accused, the Tribunal could
also try some of these individuals with no more than modest
slippage in the timeframe. Beyond that, however, the
additional indictments and the seventeen publicly-known
fugitives pose a serious problem to the Tribunal. Absent a
significant number of guilty pleas and the establishment of
domestic courts that can receive and fairly try a number of
these cases, Meron will note the difficulties of achieving
the 2008 target with such a caseload.

-- Budget: Meron will say that continuation of the current
budget crisis could prove "disastrous" for the Tribunal.
Combined with steady attrition of experienced members of the
Chambers (leaving due to insecure contracts or inability to
renew contracts),the current hiring freeze has created a
shortfall of adequate personnel.

-- Judge turnover: Meron keeps a careful watch on the
possible disruption of ongoing proceedings because of the
non-election of some judges at the expiry of terms in
November 2005. He warns that if judges are not reelected,
significant time will be lost due to the need to familiarize
new jurists with cases and some cases would need to be
restarted from scratch. UNSYG Annan has, however, agreed
with his proposal to move elections up to November 2004,
providing greater lead time to deal with case assignment
issues caused by changes in the judge,s rooster.

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Comment
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8. (C) Meron,s report and oral submission provide a detailed
and accurate perspective on the work of the Tribunal. His
initiatives, priorities, and concerns track closely with USG
thinking. His statement will also be largely in line with
that made by the Chief Prosecutor. They are both in
agreement in terms of the challenges that could jeopardize
the ability of the Tribunal to meet completion targets and
both skeptical about meeting the 2008 date. Responsibility
for such challenges, however, is another matter, with Del
Ponte believing that her completion strategy job is largely
finished when the 2004 investigation target passes. The most
significant difference between the two presentations will
revolve around the propriety/timing of transferring cases to
local jurisdictions -- a process which the OTP appears ready
to commence even in advance of domestic court systems that
are up to the task to receive the cases. Del Ponte,s hope,
our contacts tell us, is that by proposing a large number of
cases to be transferred, she can wash her hands of the issue
and leave the burden (and blame) on others (i.e. the trial
chambers that could not approve such transfers absent ready
courts, the countries in the region that lack the courts, and
the international community for failing to ensure their
readiness) for failing to make the transfers proceed. Meron
believes that such an approach is irresponsible (and could
potentially leave detainees in a legal limbo that might
violate international norms),and that the ICTY,s energy
should continue to be focused on helping bring about the
changes on the ground that are needed in the Balkans before
such transfers can begin. The issues identified reftel for
consideration in a USG response to Del Ponte,s presentation
will be just as relevant for responding to Meron,s
presentation. End comment.
SOBEL