ICTY: OTP REQUEST 298 DEMARCHE DELIVERED

S E C R E T SECTION 01 OF 02 THE HAGUE 000490

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE -
GREGORIAN/MITCHELL, L - TAFT, 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: OTP REQUEST 298 DEMARCHE DELIVERED

REF: SECSTATE 41128

Classified By: Ambassador Sobel per reasons 1.5(b)-(d)


1. (S) Summary: Ambassador Sobel, joined by Deputy Legal
Counselor, delivered reftel letter and points February 25 to
Chief Prosecutor of the International Criminal Tribunal for
the Former Yugoslavia (ICTY),Carla Del Ponte. While arguing
that her actions did not amount to a "breach" of the USG's
authorization of use of the Mladic documents, Del Ponte
nonetheless appeared to understand the seriousness of the
message being delivered, committing herself to provide
written assurances as described in reftel talking points.
Taking the cue from the Ambassador's emphasis that we want to
remain supportive of the Office of the Prosecutor (OTP)
activities, she said that she hoped that, through use of the
documents as "lead and background" information, OTP would be
able to obtain the full set of documents from Belgrade or
other sources directly. End summary.


2. (S) Ambassador Sobel began the discussion with Chief
Prosecutor Del Ponte by emphasizing the seriousness with
which the USG took the breach of the Rule 70 conditions
placed on the documents provided in response to Request 298.
Del Ponte responded that conversations with Embassy Legal
Counselor and members of her team had led her to expect the
demarche we were about to deliver. She then read the letter
aloud so that staff present, Milosevic prosecutor Dermot
Groome and senior adviser Jean-Daniel Ruch, could know the
letter's contents. After reading the first line -- "This
letter and its contents are to be considered protected by
Rule 70" -- she laughed and said, "then we cannot talk!"
Moving on to the substance of the letter, she argued that "we
didn't breach" the Rule 70 authorization. She explained that
she was fully aware that the documents could only be used in
the Milosevic proceedings, but that discussions with members
of her staff led her to believe it would be important to
determine whether the judge who ordered Belgrade to produce
the Mladic personnel file authorized Belgrade to redact some
of the information in it. Her main interest, she said, was
to reverse the judge's decision, if she had authorized the
redactions, and to obtain from Belgrade the full, unredacted
Mladic file. (NB: The judge was a so-called duty judge,
unfamiliar with the Milosevic or Mladic cases, named Ines
Monica Weinberg de Roca of Argentina.)


3. (S) Continuing her explanation, Del Ponte said that she
went to the judge informally and told her that she knew the
Mladic file as provided by Belgrade lacked key information
showing that Mladic was promoted in the Yugoslav Army (VJ) in
1994 and retired in 2001. Del Ponte asserted emphatically
that she did not show the Mladic documents to the judge.
(NB: Patrick Lopez-Teres, chief of investigations, had joined
Del Ponte in her meeting with Judge Weinberg de Roca and told
embassy legal officers subsequently that he and Del Ponte had
"formally breached" the Rule 70 authorization when she showed
the judge the documents. Embassy legal officers learned from
other OTP prosecutors that they had advised her previously
that sharing the documents with the judge would amount to a
breach of the USG's Rule 70 conditions.) She explained that
she simply "used the information" to draw the judge into
telling her whether she was aware of the missing information
and, if so, whether she had authorized Belgrade to redact the
information. Judge Weinberg de Roca, on this basis, said
that she had indeed authorized the redactions.


4. (S) Ambassador Sobel noted that the USG had responded to
the OTP request in remarkably quick fashion and believed
that, had OTP asked in this case, they would probably have
received a similarly quick response. While Del Ponte did not
explain why she and her staff could not wait to make such a
request, she appeared to understand the seriousness with
which the USG took the breach its Rule 70 conditions.
Following delivery of reftel points, Del Ponte committed to
providing the written assurances as requested. The
Ambassador emphasized the importance of taking this step,
particularly as a vehicle to ensure that the supportive USG
relationship with OTP would remain on track.


5. (S) Del Ponte advised that she hoped to file a motion with
Judge Weinberg de Roca in an effort to obtain the full Mladic
personnel file. She said that OTP would explain that it has
information indicating that the personnel file provided by
Belgrade under Weinberg de Roca's order was incomplete in
material ways. Deputy Legal Counselor promised to confirm
with the Department that such use would be consistent with
the still-in-effect authorization of February 14 to use the
documents for lead and background purposes. Del Ponte and
her staff also are aware of their need to collect the
existing copies of the documents and deliver them to the
Embassy, where one copy will remain, and to remove the
document from OTP's restricted electronic database.

6. (S) Comment: Del Ponte seemed to get the message intended
by the letter and demarche. She understands that the USG
takes the breach extremely seriously, though her maintenance
that the use of the documents did not amount to a Rule 70
violation undercut her ability to express such understanding.
Fundamentally, though, she and her team understand that
their main task now is not to debate USG conditions but to
find ways to leverage the documents, as lead and background
information, into obtaining the documents directly from
Belgrade or other sources. Indeed, embassy legal officers
understand from an OTP investigator that the documents, even
under a lead-and-background use-only restriction, have led
OTP to a "gold mine". We look forward in the coming days to
learning just what kind of gold mine they have found. End
comment.
SOBEL