ICTY: DEL PONTE DEFENDS POSITIVE ASSESSMENT OF

S E C R E T SECTION 01 OF 02 THE HAGUE 000975

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: DEL PONTE DEFENDS POSITIVE ASSESSMENT OF
CROATIAN COOPERATION

REF: A. (A) STATE 84033

B. (B) ZAGREB 598

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


1. (C) Summary. Carla Del Ponte, Chief Prosecutor of the
International Criminal Tribunal for the Former Yugoslavia
(ICTY),vigorously defended her positive assessment to EU
officials of Croatia,s cooperation with the Tribunal. She
based her decision on Croatia,s cooperation in recent weeks
with respect to the transfer of eight indictees under two
indictments as well as the unprecedented level of involvement
Croat authorities had accorded ICTY investigators in efforts
to locate and apprehend fugitive Ante Gotovina. She believed
these efforts, although of very recent vintage, to be genuine
and said that under these circumstances she had "no choice"
but to inform European Commissioner Verhengen that "Croatia
is now cooperating fully" with the ICTY. End Summary.


2. (C) Embassy Legal and Deputy Legal Counselors met with
Chief Prosecutor Del Ponte, Special Political Adviser Ruch,
and Senior Adviser Nikiforov on the morning of April 16 to
deliver ref A demarche. Del Ponte took immediate issue with
the USG assessment that Croatia could not be given an overall
positive mark with respect to its full cooperation with the
Tribunal as long as Gotovina remained a fugitive. "I
disagree with the assessment from Washington," she
interjected and explained that her view towards Croatia had
changed dramatically in the past month. She said her new
assessment was based on Croatia,s cooperation in
transferring all eight indictees under the two most recent
Tribunal indictments. Moreover, Croatia had provided full
access and cooperation with respect to documents and
witnesses. "Even in Bosnia," she said, she had "not been
able to describe such full cooperation."


3. (S) With respect to Gotovina, Del Ponte explained that
the OTP was now being given an unprecedented level of
involvement in Croat efforts to locate and apprehend him.
This new cooperation was initiated by a report last month
from the GOC in which Croatia repeated its previous
conclusion that Gotovina was not in Croatia. Del Ponte said
that the report was "not satisfactory" and informed the
Justice Minister that "we must work differently because you
have not done all you must do." Following this meeting, the
two agreed that OTP Chief of Investigations Lopez-Terres
would visit Zagreb and be given full access to information
developed by a special team that the GOC had established,
with Chief State Prosecutor Mladen Bajic as its head, to
locate and apprehend Gotovina. Subsequently, the GOC removed
two officials from positions relating to the team after the
OTP expressed its belief that the two were linked to efforts
to protect Gotovina. When the OTP received and passed
information two weeks ago that Gotovina was in Croatia, the
GOC immediately reacted to the information and took all of
the steps requested by the OTP to follow up the lead. The
cooperation between the OTP and the special team extends to
Croat implementation of ICTY requests to monitor the
communications of certain individuals. The ICTY is also
provided with direct access to the transcripts resulting from
those intercepts. This degree of OTP involvement in the
Croat efforts has convinced Del Ponte that the measures to
apprehend Gotovina are "no doubt" genuine.


4. (C) Del Ponte dismissed suggestions that her unqualified
report to the EC had squandered OTP leverage over Croatia and
further hampered efforts to obtain cooperation from SAM on
Mladic. She said that her upcoming written report to the
Security Council on May 31 and her oral statement on June 15
provide an opportunity to qualify the positive assessment if
the Croatian attitude changes. She said that she had
emphasized this point to PM Sanader. In a separate
discussion with Ruch and Nikiforov they also advised that Del
Ponte planned to both call and write Sanader in the next few
days to underscore that cooperation must continue with
respect to Gotovina or Del Ponte would provide a negative
report to the Security Council.


5. (C) Del Ponte similarly rejected criticism that she had
played into the hands of SAM critics by changing the standard
for full cooperation. In response to Legal Counselor,s
point that Del Ponte had said that "full cooperation" for SAM
requires the transfer of Mladic while "full cooperation" for
Croatia apparently doesn,t require the transfer of Gotovina,
Del Ponte asserted that there was no similarity between the
state of cooperation in the two countries and that Belgrade
had not come close to establishing a good faith effort to
apprehend Mladic. Del Ponte said that were SAM to take the
steps taken by the GOC, she would be prepared to find them in
"full cooperation" with the ICTY even if their efforts did
not result in the transfer of Mladic. Del Ponte also
distinguished the two fugitives noting that Gotovina was a
criminal before the war crimes charges, was part of an
international criminal network, and had many foreign contacts
that made it more difficult for him to be caught, while
Mladic was more inseparable from Belgrade. Concluding, Del
Ponte asserted that rewarding Croatia would actually help
ICTY efforts in Serbia by demonstrating the tangible benefits
of cooperating with the Tribunal.


6. (C) Comment. Del Ponte,s dramatic and precipitous
reassessment of the OTP,s relationship with Croatia can be
explained by both substance and personality. Substantively,
Croatia,s conduct in facilitating the recent transfers is
undeniably important as is its responsiveness on ICTY
witness, document, and fugitive-apprehension related requests
(see ref B). But the change in OTP policy was less one of
deliberate design than it was impulsive and unpremeditated.
Del Ponte,s senior advisers informed us that they had
drafted a carefully nuanced set of points for her
conversation with Verhengen in order to balance out the
desire to send a positive signal to the GOC while retaining
important leverage over Gotovina. During the call, however,
she abandoned the points and gave the largely unqualified
assessment. When Verhengen requested it in writing, she was
boxed in and her staff was left with drafting a much more
forward-leaning message than planned. As for the political
consequences, Del Ponte,s approach can be explained by her
consistent tone-deafness to the region and her response to
the UK,s demarche the previous day on the same subject:
"The political aspects are for you to worry about." End
comment.
SOBEL