Identifier
Created
Classification
Origin
08STATE65279
2008-06-17 23:53:00
UNCLASSIFIED
Secretary of State
Cable title:  

WGIT -- GUIDANCE FOR JUNE 18 MEETING

Tags:  UNSC PREL UNMIK KO 
pdf how-to read a cable
VZCZCXYZ0013
OO RUEHWEB

DE RUEHC #5279 1692355
ZNR UUUUU ZZH
O 172353Z JUN 08
FM SECSTATE WASHDC
TO RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 0000
INFO UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
RUEHKI/AMEMBASSY KINSHASA IMMEDIATE 0000
RUEHNR/AMEMBASSY NAIROBI IMMEDIATE 0000
RUEHVB/AMEMBASSY ZAGREB IMMEDIATE 0000
RUEHBW/AMEMBASSY BELGRADE IMMEDIATE 0000
RUEHVJ/AMEMBASSY SARAJEVO IMMEDIATE 0000
RUEHJB/AMEMBASSY BUJUMBURA IMMEDIATE 0000
RUEHLGB/AMEMBASSY KIGALI IMMEDIATE 0000
RUEHTC/AMEMBASSY THE HAGUE IMMEDIATE 0000
RUEHMD/AMEMBASSY MADRID IMMEDIATE 0000
UNCLAS STATE 065279 

SIPDIS

E.O. 12958: N/A
TAGS: UNSC PREL UNMIK KO
SUBJECT: WGIT -- GUIDANCE FOR JUNE 18 MEETING

UNCLAS STATE 065279

SIPDIS

E.O. 12958: N/A
TAGS: UNSC PREL UNMIK KO
SUBJECT: WGIT -- GUIDANCE FOR JUNE 18 MEETING


1. The Department requests that USUN draw on the following
guidance for its participation in the June 18 meeting of the
Working Group on International Tribunals.

--------------
ICTY/ICTR
--------------


2. USUN should bear in mind the following redlines regarding
our ICTY/ICTR policy as discussions proceed:

-- No impunity for fugitives; Karadzic, Mladic, and Kabuga
must face international justice;

-- Any resolution on residual mechanisms or follow-on actions
should not list which fugitives should be tried where or who
should be tried internationally versus nationally. We
believe these are more appropriately judicial decisions.
However, the resolution could set parameters for this
judicial decision, such as through an amendment of Rule 11bis;

-- The residual mechanism(s) should be funded through
assessed, not voluntary, contributions;

-- States should have a continued obligation to cooperate
with the residual mechanism(s).


3. USUN should make the following points during the
discussion of the Belgian's proposed elements for a draft
resolution on an ICTY/ICTR residual mechanism:

-- We thank the Belgian delegation for their efforts. This
draft represents a step forward, allowing for more detailed
exchanges and discussion.

-- Discussions on the draft should focus on the fundamental
goal of eliminating impunity for war crimes.

-- Now that discussions are becoming more detailed, it is
important to have a clearer picture of estimated costs. The
working group should ask for specific figures and cost
breakdowns from the tribunals to inform further discussions.

-- We also believe there are a number of threshold issues the
working group needs to consider, since they will determine
the shape and direction of the draft. These include the
following:

-- Should the draft resolution downsize the
existing institutions by amending their authorities and
scope, or should it establish a new mechanism(s) (which would
seem to imply closure or cessation of the existing
institutions)? The working group should evaluate the
operational and legal implications of each of these
approaches, and the degree to which any resulting problems
could be addressed or ameliorated by the language of the
resolution. For example, what would be the effect of each of
these approaches on the agreements that States have entered

into with the tribunals?

-- Over time, the quantity and pace of work of
the residual mechanism(s) should drop, and their work will
likely need to be reduced in both scope and authority. We
welcome thoughts on how best to build in flexibility and
benchmarks into the process and draft in order to facilitate
this process.

-- Another initial matter to consider is whether
the ICTY and ICTR residual entities need to be the same, with
parallel authorities and mandates. We believe it may make
sense to tailor the scope and authorities of the mandates for
the residual mechanism to the specific needs of each
institution. For example, given the two tribunals,
different histories and experiences with Rule 11bis
transfers, there could be differences in whether each
institution is authorized to continue to monitor cases
transferred to national jurisdictions under Rule 11bis.

-- In addition, we have the following general comments on the
draft resolution. Our comments are based on our
long-standing position that any residual mechanism(s) should
be streamlined, small, and efficient. As a result, we
believe that certain potential functions listed in the draft
are overly extensive, unnecessary, or could be appropriately
addressed by other means. Some examples:

-- Monitoring of cases, including the authority
to send mechanism staff to national courtrooms for first hand
monitoring, referred to national jurisdictions under Rule
11bis by the ICTY. Such hands-on monitoring would appear
unnecessary in the ICTY context where this task could be ably
fulfilled by other organizations such as the OSCE.

-- Recovery of legal aid payments made to
indictees who are determined retrospectively not to be
indigent, or only partly indigent (seen as not worth the
associated costs),however, in the event of a post-completion
trial, the residual mechanism should have the authority to
determine indigence of the defendant in question for the
duration of that trial and appeal.

-- Active prevention of double jeopardy by the
residual mechanism(s); however, there could be some component
of the UNSC resolution that demands that States adhere to the
principle of no double jeopardy.

-- Power to order restitution of property and
proceeds of criminal conduct.

-- Public information and capacity building in
the national jurisdictions of the States within the
jurisdiction of the Tribunals, however, in the event of a
post-completion trial, the residual mechanism should have the
capacity to conduct limited public information work with
regards to that trial only. Further, public information work
that is necessarily part of maintaining the tribunals,
archives, such as the maintenance of a website, etc., is
similarly excepted. Also, the UNSC resolution should
encourage States and non-State actors to continue capacity
building post-completion on a voluntary basis.

--------------
ICTR: Kenya and the Democratic Republic of Congo (Kinshasa)
--------------


4. Given pending bilateral discussions, USUN should not
endorse or foreclose future Security Council action against
Kenya or the the DRC. The Department requests that USUN
assess the preferences of other Council Members and report
any options discussed.


5. USUN should draw on the following points in discussing
Kenya and the DRC:

-- We continue to call on all states, including Kenya and
the DRC, to fulfill their legal obligations to cooperate
fully with the ICTR.

-- We are raising this issue with our Kenyan counterparts in
Nairobi and Kenyan Prime Minister Odinga.

-- We are also raising the issue in Kinshasa. We are
encouraged by signs that the GDRC intends to meet with the
Tribunal's prosecutor to discuss steps toward apprehending
ICTR fugitives suspected of being in the DRC.
RICE