YUGOSLAV AND RWANDA WAR CRIMES TRIBUNALS PRESENT

UNCLAS USUN NEW YORK 001174

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: UNSC ICTY ICTR PHUM PREL
SUBJECT: YUGOSLAV AND RWANDA WAR CRIMES TRIBUNALS PRESENT
JOINT PAPER TO SC WORKING GROUP ON AD HOC INTERNATIONAL
TRIBUNALS

REF: STINCHCOMB-DONOVAN EMAIL 12/11/07 EMAIL
(INSTRUCTIONS)


1. (U) SUMMARY: The International Criminal Tribunal for
Yugoslavia (ICTY) and the International Criminal Tribunal for
Rwanda (ICTR) presented their joint paper on residual
functions at a December 11 meeting of the Security Council
Working Group on Ad Hoc International Tribunals (WG). The
main topics discussed were: residual mechanisms and the
proposed roster of judges; referral to national
jurisdictions; in absentia trials; archives; witness
protection; and cooperation with the International Criminal
Court (ICC). USUN drew on the points contained in reftel for
its interventions. END SUMMARY.


2. (U) In his brief remarks to the WG, ICTY President
Fausto Pocar noted that the joint paper was the third version
of its kind and that it reflected WG views in terms of
structure and content. He emphasized the need to continue
inter-judicial cooperation between the Tribunals and domestic
courts once the Tribunals close. As an example of
inter-judicial cooperation, he pointed to the recent
amendment of Rule 75 of the ICTY rules of procedure, which
enables judicial authorities in other jurisdictions to
directly petition the Tribunal for access to confidential
material. He also discussed the importance of establishing a
witness protection mechanism once the Tribunals close.
Additionally, he stressed that the remaining fugitives should
not be allowed to escape justice because of deadlines
established by the Completion Strategies, and that a
structure needs to be put in place that would allow
prosecution upon closure of the Tribunals.


3. (U) ICTR President Dennis Byron focused his remarks on
the recent establishment of an Advisory Committee on
Archives, which is headed by Justice Goldstone and is
expected to provide an independent assessment on issues such
as the preferred number, and location, of archives before the
next reporting period. According to Judge Byron, the
Advisory Committee is already in initial consultations, but
he asked for Council authorization to initiate discussion
with varied stakeholders in the Great Lakes Region, including
non-Council Member States such as Rwanda, regional
organizations, and civil society groups. Judge Byron also
solicited Council views on archives related issues, and he
indicated a preference for the ICTR archives to remain in the
Great Lakes Region. He said that the UN premises in Nairobi,
Kenya might be a viable option because of potential
cost-savings.


4. (U) ICTY Deputy Prosecutor Tolbert underlined the
radically downsized nature of the Tribunal discussed in the
joint paper, and said that 40% budget cuts have already been
proposed. Furthermore, he echoed Judge Pocar's comments that
the remaining fugitives cannot escape justice because of
completion timetables, as that would undermine the ICTY's
work. He also emphasized that Tribunal cooperation with the
region is an important part of the Completion Strategy.
Toward that end, he highlighted some of ICTY's inter-judicial
cooperation mechanisms. Additionally, he observed that the
subject of archives raises a number of complicated issues
that apply to a range of stakeholders.


5. (U) ICTR Prosecutor Hassan Jallow spoke merely to echo
Judge Byron's request for Council guidance. While the ICTY
Registrar could not attend the meeting, Tribunal
representatives indicated that he is prepared to have
bilateral discussions with interested parties at a later
date. The ICTR Registrar underlined the advisory nature of
the Archives Committee, stressing that the Council will
ultimately decide on the structure and location of the
archives. He also highlighted the need to address management
of sentences given that the issue will have long-term
financial implications.


6. (U) Following the statements by Principals of the two
Tribunals, Council Members joined the discussion. The main
topics discussed were: residual mechanisms and the proposed
roster of judges; referral to national jurisdictions; in
absentia trials; archives; witness protection; and
cooperation with the International Criminal Court (ICC). In
response to a question by the United Kingdom, the Principals
clarified that in terms of residual mechanisms, the report
envisions a phased-out approach based on downsizing. Judge
Pocar said that a roster system for judges, prosecutors, and
registry staff would avoid the need to maintain an excessive
structure in place; instead, only a minimal permanent
structure would be required after closure of the Tribunals.




7. (U) While the Principals agreed with South Africa on a
limited role for the international community vis--vis
capable national jurisdictions, they indicated the need for
further capacity building in their respective regions.
Moreover, they reiterated that high-ranking indictees must be
tried at their respective Tribunals based on relevant Council
resolutions. In the case of the ICTY, Judge Pocar and Deputy
Tolbert stressed that all remaining fugitives were
sufficiently high level to require trial at the Tribunal, and
that the ICTY had maximized its ability to transfer cases.


8. (U) Following a Qatari intervention on the validity of
trials in absentia and the related inaccuracy of paragraph 9
of the joint paper (which suggests that trials in absentia
are disfavored),the Principals indicated that they are not
against such trials as a matter of principle. They clarified
that trials in absentia are more common (but not universal)
in civil law countries. Regardless, they said that it would
not be prudent to allow such trials at this stage because of
the message it would send: the international community is
looking for an expedient solution and will allow impunity in
practice.


9. (U) With respect to archives, the discussion reflected
the dual purpose of archives: to assist in future criminal
proceedings in domestic courts and to aid in the
reconciliation process. While several delegations indicated
that regional considerations should play a role in
determining the location of the respective archives,
accessibility to the materials was also highlighted as an
important factor in the decision-making process. Deputy
Prosecutor Tolbert further recommended digitalization of
archives.


10. (U) In response to a question Qna, the Principals
of the two Tribunals underscored the importance of a witness
protection mechanism once the Tribunals close. They
explained that the Tribunals are obligated to provide some
measure of protection not only because of witness
expectations, but also because various agreements guarantee
such a service (i.e., in the case of witnesses who have been
relocated to third countries). They suggested that residual
witness protection could be reduced to one person, and that
judges would play a very limited role once a witness
protection regime was established.


11. (U) With some delegations expressing an interest in
exploring potential cooperation with the ICC, the Principals
indicated that they would be open to such an arrangement,
especially with respect to administrative issues. The
Principals clarified that the joint paper's discussion of
potential ICC cooperation may have seemed negative because it
was based on various assumptions, and that they needed more
Council direction on the issue. Judge Byron also suggested
possible coordination with the UN facilities in Nairobi, and
sought authorization to engage in initial consultations.


12. (U) Following the discussion between Council members
and the Tribunals' Principals, the WG met on its own to
consider some of the issues raised. The majority of Council
members indicated that Tribunal Principals should have the
ability to consult with varied stakeholders, as necessary, in
order to answer questions posed by the Council. Members also
agreed that the WG needed a chairman who would assume the
role for at least one year. The UK nominated Belgium for the
position. Other members endorsed the nomination, although
Belgium reacted by saying that instructions from capital were
needed before the position could be accepted.
Khalilzad