ICTY: TRIBUNAL RESISTS UN/GC EFFORT THAT WOULD

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 003323

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS;
EUR/SCE - GREGORIAN/MITCHELL, L - LAHNE/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: TRIBUNAL RESISTS UN/GC EFFORT THAT WOULD
DELAY TRIALS

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


1. (C) Summary: President Theodor Meron of the International
Criminal Tribunal for the former Yugoslavia (ICTY) told
Embassy legal officers on December 21 that the UN Secretariat
is resisting his efforts to appoint two ad litem judges to
trials in dire need of immediate appointments. Meron shared
a letter from Assistant Secretary General for Legal Affairs
Ralph Zacklin in which Zacklin says he "would not feel able
to advise the Secretary-General to proceed to appoint" the
two judges at this time. Meron has responded by noting that,
if the Tribunal is to remain on the completion strategy
targets, there is no alternative to making these appointments
now. If the appointments are not made, two key trials could
slip by six months. Meron is consulting with other P-5
representatives in The Hague and believes that support from
the USG to reverse Zacklin's position would be of great
assistance. (Meron-Zacklin correspondence faxed to IO, S/WCI
and L.) End summary.


2. (C) In similar letters dated December 14, President Meron
requested that UNSYG Annan appoint ad litem judges in
Prosecutor v. Krajisnik (from which a permanent judge
recently stepped down) and Prosecutor v. Halilovic (expected
to commence in late January). (NB: Article 13 ter of the
Statute of the Tribunal requires the President to request
such appointments of the UN Secretary General.) ASG Zacklin
resisted Meron's request in a letter dated December 17. He
argued that because the subject trials are not expected to be
completed by the expiration of the ad litem judges' terms, in
June 2005, he would first want the Security Council and
General Assembly to extend the terms of the judges. He also
makes an extended argument suggesting an appointment could
not be made to the Krajisnik trial before the trial and
appeals chambers resolve the question of whether a substitute
judge may, in any event, sit on the trial without it starting
over from the beginning.


3. (C) Meron shared with embassy legal officers his response
to Zacklin, dated December 21. His response notes that
Zacklin's approach would, in all likelihood, result in
significant delay (he estimates six months) of both trials,
leading to an interruption in the progress of the ICTY
completion strategy. He also notes that the Tribunal and
UNSYG Annan have repeatedly authorized similar ad litem
appointments in the past, appointing judges to trials as the
need arises and addressing later, when the end date of a
trial is clearer, the question of extension of terms.
Indeed, at this time it is wholly speculative as to when the
Krajisnik and Halilovic trials are likely to end, making it
impossible to predict the appropriate length of an extension.
Meron further advised embassy legal officer on December 22
that the Krajisnik defense team has decided not to appeal the
appointment of a substitute judge in the case, thus removing
one of Zacklin's principal objections to appointment of an ad
litem to that trial chamber. Meron also noted that Zacklin's
boss, Under Secretary General for Legal Affairs Nikolas
Michel, had been left completely in the dark by Zacklin's
approach; in turn, Meron suggested that Michel may be
sympathetic to the request for the ad litem judge
appointments.


4. (C) Comment: Meron has the much better argument over
Zacklin in this dispute: delay in appointing the two ad
litems would undoubtedly delay the trials and thus undermine
the completion strategy, while appointing the judges now in
no way interferes with the Security Council's discretion to
extend the appointments when that becomes necessary (as it
likely will). Zacklin's approach is neither legally required
nor does it make practical sense -- why distract the SC or GA
with an issue that does not require their action now and,
given that ICTY trials usually take a year or more, what
alternative does the ICTY have to using ad litems in such
cases? Indeed, given the weight of argument in Meron's
favor, one wonders whether this is less a case of a genuine
legal question being raised than another manifestation of
Zacklin's antipathy towards the ad hoc war crimes tribunals.
At any rate, U.S. support for Meron's position, together with
support from other P-5 representatives (nb: we understand
that the UK will be making such an approach to Zacklin or
Michel),would bolster his arguments on the merits. Embassy
believes that such an approach to Michel, aligning the USG in
particular with the arguments about the damage to the
completion strategy, would help ensure that UNSYG Annan makes
these appointments without undue delay. End comment.
SOBEL