UPDATE: COOPERATION WITH ICTY, MISSING GOTOVINA

C O N F I D E N T I A L SECTION 01 OF 02 ZAGREB 000194

SIPDIS

STATE FOR EUR/SCE, EUR/PPD, EUR/RPM AND S/WCI

E.O. 12958: DECL: 04/08/2019
TAGS: PREL KAWC ICTY HR
SUBJECT: UPDATE: COOPERATION WITH ICTY, MISSING GOTOVINA
DOCUMENTS

REF: ZAGREB 137 AND PREVIOUS

Classified By: Political Officer Chris Zimmer for reasons 1.4 (b) and (
d)


1. (C) SUMMARY: Croatian officials and ICTY Prosecutor
Brammertz continue to disagree on whether Croatia is doing
everything it can to comply with Brammertz' request for
additional documents in the Gotovina trial at The Hague.
Although they agreed on a list of 23 key documents that
should have existed, Brammertz and the Government of Croatia
continue to disagree on whether any of Croatia's submissions
are, in fact, the key documents. The Croats are coming to
the end of their search for documents, growing increasingly
frustrated with the prosecutor, and are not sure whether
Brammertz will ever be satisfied. Embassy officials stressed
the need to continue cooperation with ICTY and received
assurances that Croatia's search for documents will continue
even after a report on the final status of the 23 key
documents is released in the coming weeks. END SUMMARY.


2. (C) Ambassador Bradtke called on State Secretary Markotic,
in charge of cooperation with the International Criminal
Tribunal for the former Yugoslavia (ICTY),at the Ministry of
Justice on March 31. Markotic detailed the current status of
the investigation and cooperation with ICTY Chief Prosecutor
Serge Brammertz on missing documents for the ICTY trial of
former Croatian General Ante Gotovina (Reftel). Markotic
said he was aware of Brammertz' continuing dissatisfaction
with Croatia's cooperation, but that Brammertz has not
communicated his views directly to the Croats, and instead
aired his grievances with the EU presidency in Prague and
also sent messages to the Croats through British diplomatic
channels. He went on to express frustration with the OTP and
provided the Croatian case for why they have been unable to
resolve the documents issue.

TWENTY-THREE KEY DOCUMENTS
--------------


3. (C) Markotic noted that Croatia has, to date, delivered
thousands of documents, although most did not satisfy the
Office of the Prosecutor's (OTP) request. As a result of
continuing disagreements, Croatia initiated a February
meeting of Croatian and OTP military experts to develop of a
list of key documents. The agreement on the points of
understanding signed in February between the OTP and the
Government of Croatia (GOC) distilled the remaining document
requests down to 23 specific documents. The GOC continues to
assert the chain of command model used by the OTP to develop
its original list of requested documents is flawed, but both
Croatian military experts and the OTP agreed that these 23
documents are crucial to satisfying the OTP's request. The
23 documents include maps, orders, and other papers that
should have existed for Operation Storm to take place in

1995.

TITLES AND FORMATTING NOT EXACT DURING WARTIME
-------------- -


4. (C) The GOC started a search of archives for the 23
documents both in Croatia and Bosnia and has already
delivered three or four documents to the OTP. According to
Markotic, Brammertz said that one of the recently delivered
documents was delivered one and a half years ago and the
others were not relevant. The reason, Markotic cited, for
why Brammertz is not accepting the new submissions is because
the titles on the delivered documents do not exactly match
the titles on the list of 23. The GOC has witness testimony
claiming that although the titles are not exact, these are
the documents used for Operation Storm, including an order
for an attack at Sibenik and a list of targets in the Zadar
region. He noted that many of the key documents the GOC
provided were developed in the field and written by hand, and
therefore lack the title "Operation Storm." He said Croatian
military experts do not believe the documents existed in the
organized, properly titled form the OTP may want, so there
still appears to be no consensus on which documents actually
represent key documents despite the agreed-upon list.

EU HAS SIMILAR PROBLEM WITH MISSING DOCUMENTS
--------------


5. (C) Markotic said that within two weeks, the GOC will
establish the chain of custody for all 23 documents. He said
that six documents relate to Bosnian-Croat forces and

ZAGREB 00000194 002 OF 002


Croatian authorities received permission to search archives
in Bosnia. They found 38 additional documents related to the
Gotovina case, but none are from the list of 23 key
documents. Some witnesses during the course of the
investigation confirmed they saw some of the key documents in
the possession of one of Gotovina's lawyers, Marin Ivanovic,
and Croatian prosecutors have added those to Ivanovic,s
criminal indictment. Markotic added that the GOC had now
checked Croatian archives four times. It is embarrassing
that the GOC is unable to find documents that should be in
its own archives, Markotic added. He noted, however, that
the European Union has its own problem with missing documents
as they are unable to comply with an ICTY subpoena for
reports by EC monitors during Operation Storm.

COOPERATION SHOULD BE CLOSING BENCHMARK
--------------


6. (C) The Trial Chamber still has not ruled on the OTP's
motion to subpoena the documents from Croatia. The court is
overburdened with documents, Markotic said, and likely
waiting to see if the GOC and OTP reach an agreement. As
for the EU's insistence on linking this issue to Croatia's
accession talks, Markotic noted that the OTP can add
documents at any time, even after a verdict, so cooperation
with ICTY can be a closing rather than opening benchmark in
accession negotiations. While EU negotiations are
continuing, the Gotovina trial can continue or even conclude
while the GOC and OTP attempt to settle the documents issue.


GROWING FRUSTRATION
--------------


7. (C) The Croats are growing very frustrated with the OTP
and believe that the more they do, the less it satisfies
Brammertz, according to Markotic. He said that many senior
officials are also quietly expressing outrage because they
hear Brammertz is trying to equate Serbia's cooperation with
apprehending Mladic to Croatia's cooperation on finding the
missing documents. They are very concerned that he may say
Serbia has better cooperation or declare Serbia in full
compliance with ICTY despite the failure to capture Ratko
Mladic. (NOTE: Previous ICTY prosecutor Carla Del Ponte did
not declare Croatia in full compliance until Gotovina's
capture. END NOTE.) Markotic added that the missing document
issue is a good excuse for Brammertz should the case against
Gotovina fail; therefore, Brammertz will seek to keep it open
as long as possible.


8. (C) The Ambassador noted to Markotic that he had received
assurances from the Prime Minister, Deputy Prime Minister
Kosor, and Minister of Justice Simonovic that everything was
being done to find the missing documents. If the documents
could not be found, it would be important to convince the
international community that all possible steps had been
taken to locate them or account for what happened to them.
BRADTKE