MACEDONIA: RETURN OF ICTY FILES

C O N F I D E N T I A L SECTION 01 OF 03 SKOPJE 000158 SIPDIS SIPDIS STATE FOR EUR/SCE, S/WCI E.O. 12958: DECL: 02/28/2018 TAGS: PREL PGOV PHUM ICTY MK SUBJECT: MACEDONIA: RETURN OF ICTY FILES Classified By: P/E CHIEF SHUBLER, REASONS 1.4 (B) AND (D). SUMMARY -------------- ¶1. (C) Four ICTY files concerning alleged crimes reputedly committed by ethnic Albanian NLA rebels during the country's inter-ethnic conflict in 2001 have been returned to Macedonian jurisdiction. Should the Chief Public Prosecutor here develop evidence against any of the individuals that is deemed sufficient to pursue indictments and court proceedings, the US position has been and should remain that the MK authorities must determine whether the Law on Amnesty applies. We have reviewed, with the help of legal experts responsible for drafting them, the Ohrid Framework Agreement and the Law on Amnesty of the ROM, as well as the legislative and political history in the context of the 2001 conflict. A compelling case can be made for amnesty in all four cases, based on the law and the political intent behind Macedonia's 2002 Amnesty Law. We will convey that message to GOM interlocutors privately. ¶2. (C) If the ethnic Albanian suspects allegedly involved in the crimes are indicted and prosecuted despite the amnesty law, this would exacerbate lack of trust in the judiciary and generate strong political backlash among ethnic Albanians (irrespective of political affiliation). Much of the progress made in inter-ethnic relations since the 2001 Ohrid Framework Agreement (FWA) could be undone by trying returned ICTY file cases in Macedonia. Drafters of Macedonia's 2002 Amnesty Law never intended for these cases to be tried in Macedonia. Ethnic Albanian signatories to the FWA will feel -- with justification -- that bringing the cases before Macedonian courts amounts to reneging on the commitments that made the FWA -- and much of Macedonia,s success as a multiethnic democracy -- possible. ¶3. (C) If GOM authorities fail to offer blanket amnesty for all the cases, the court processes for reviewing the files should afford opportunities for findings of insufficient evidence to pursue the case, or for individual findings of amnesty, either of which would offset the disruptive effects of trying these cases in Macedonia. End summary. ICTY FILES HANDED TO MACEDONIAN EMBASSY -------------- ¶4. (C) During a meeting with the Ambassador February 14, PM Gruevski confirmed that the ICTY had turned over to the Macedonian Embassy in The Hague on 2/14 four files concerning allegations of crimes committed by ethnic Albanian NLA rebels in 2001. Gruevski said Macedonia's Chief Public Prosecutor (CPP) had been unpleasantly surprised to find out that the files had been given to the Macedonian Embassy, rather than being handed over to the CPP's office as agreed with former ICTY Chief Prosecutor Carla del Ponte in 2007. The GOM was going to insist that the cases be returned to the ICTY's Office of the Prosecutor, with the request that the formal transfer of jurisdiction of the files to Macedonia be carried out from the ICTY to the CPP. In the event, the files finally all were returned to Macedonia at the end of the third week in February. AMNESTY FOR ALL, EXCEPT CASES PROSECUTED BY THE HAGUE -------------- -------------- ¶4. (C) Those involved in negotiating the FWA and then drafting Macedonia's 2002 Amnesty Law tell us that none of the parties intended for any cases stemming from the 2001 conflict ever to be tried in Macedonia, and that the understanding that they would not be tried in Macedonia was critical to bringing parties to the table to end the conflict and sign the FWA. The 2002 Amnesty Law implemented this understanding by granting amnesty to all persons accused of having committed crimes in the inter-ethnic conflict in 2001, except for cases in which alleged offenses fell under the jurisdiction of the ICTY and for which the ICTY would "initiate proceedings." The intent behind this formulation was to foster ethnic reconciliation in Macedonia by: a.) offering amnesty to persons who legitimately could be offered SKOPJE 00000158 002 OF 003 amnesty under prevailing international standards, and b.) to move cases not eligible for amnesty under international standards (those that might involve crimes against humanity) to the ICTY courts for processing. ¶5. (C) Those involved in the FWA negotiations also indicated to us that trying the cases in Macedonia likely would be viewed, by ethnic Albanians who were either parties to the agreement or the subjects of it, as reneging on the whole of the FWA. This could open the door for backtracking on progress made by all parties toward inter-ethnic reconciliation since the signing of the 2001 FWA. LAW MUST BE CHANGED TO PURSUE ICTY CASES IN MACEDONIA -------------- -------------- ¶6. (C) Macedonia's Ombudsman, Ixhet Mehmeti (protect),was Minister of Justice at the time the amnesty law was adopted and played a central role in drafting it. He told the Ambassador during a February 8 meeting that he believes the only way these cases could be pursued in the Macedonian court system is to change the amnesty law. His view is that both the intention behind the 2002 Amnesty Law and the text of the law are clear -- all cases were to be either: a) granted amnesty; or b) sent to the ICTY for "initiation"/prosecution. Since the ICTY declined to "initiate"/prosecute the cases, Mehmeti said, they now fall under the first provision-- amnesty. The law, in his view, does not allow for a third path in which cases not/not "initiated" or prosecuted by the ICTY are not covered by amnesty in Macedonia. THE CHIEF PROSECUTOR: NO BLANKET AMNESTY, CONSIDER THE EVIDENCE -------------- -------------- ¶7. (C) Macedonia's Chief Public Prosecutor (CPP) disagrees with the Ombudsman's analysis (for what reasons - legal or personal - is not clear) and has publicly asserted that all four cases can be prosecuted here if there is sufficient evidence to suggest a crime was committed. At the same time, however, he has indicated that he will take his time in investigating the files, and -- if there is insufficient evidence to support further proceedings in one or more cases -- will likely drop them. ¶8. (C) Once the files were returned to Macedonian jurisdiction in February, the CPP's office was expected assign an inter-ethnic team of Macedonian prosecutors to review them. If there was insufficient evidence in a file to merit further action, the case could be dismissed without consideration of whether the amnesty law applied. While we believe the clear intent was that all of these cases would enjoy amnesty from prosecution in Macedonia, we recognize that a finding that a file contains insufficient evidence to proceed (if that finding is genuinely merited -- which we believe could be true for a number of the files) may prove to be a more politically palatable resolution than amnesty. ¶9. (SBU) If, however, a file contains enough information to present a basis for further action, the prosecution team can order further investigation of the case. Should additional evidence of a crime surface through the investigation, the prosecution can bring the case before an investigative judge, who can begin calling in witnesses and subpoenaing suspects. While parties may request the courts consider the applicability of the amnesty law to the case(s) at any time, we believe suspects would be most likely to request a motion for amnesty before the investigative judge at this stage in the proceedings. Should the first-instance judge refuse to grant amnesty, the suspect could appeal at the court of second instance level. A decision to grant amnesty cannot be appealed by the prosecution. Given the cumbersome nature of police work and the judiciary here, we expect long delays in moving these files through the judicial system. AVOIDING POLITICAL FALLOUT -------------- ¶10. (C) The four files involve allegations that crimes were committed by persons who currently are members of, or are associated with, the ethnic Albanian opposition DUI party, including DUI president Ali Ahmeti. They also involve allegations against a former NLA commander who is now a SKOPJE 00000158 003 OF 003 member of parliament representing junior governing coalition partner DPA. A strong political and ethnic backlash is certain if indictments eventually are brought and the cases go to court. Given the ICTY decision not to exercise jurisdiction and begin investigations or prosecutions, we believe these files clearly fall within the framework of the 2002 Amnesty Law and the political agreement that ended the armed conflict. We will strongly urge the GOM to ensure that every possibility is afforded for suspects in any of the cases to bring a motion for amnesty, and will reiterate our conclusion that the intent of the 2002 Amnesty Law was to grant amnesty to all except those cases that were to be under the exclusive jurisdiction of the ICTY. MILOVANOVIC