GOC SAYS ALL LEADS ON ICTY DOCUMENTS POINT TO

C O N F I D E N T I A L SECTION 01 OF 02 ZAGREB 000731 SIPDIS NOFORN DEPARTMENT FOR EUR/SCE AND S/WCI; THE HAGUE FOR OLC E.O. 12958: DECL: 01/01/2019 TAGS: PREL PGOV ICTY HR SUBJECT: GOC SAYS ALL LEADS ON ICTY DOCUMENTS POINT TO GOTOVINA DEFENSE TEAM; WANTS POSITIVE ASSESSMENT BY ICTY REF: A. ZAGREB 727 ¶B. ZAGREB 726 AND PREVIOUS Classified By: Rick Holtzapple, PolEcon Counselor, for reasons 1.4 (b) & (d). ¶1. (C/NF) SUMMARY: Davor Stier, foreign policy advisor to PM Kosor, briefed the Ambassador on December 14 regarding the latest developments in the GoC's search for the artillery documents sought by ICTY Prosecutor Serge Brammertz. Stier said that the searches conducted by the special Task Force on December 9 were "aggressive, but in accordance with Croatian law." The GoC would respect the ICTY-ordered freeze on the investigation. However, the GoC was concerned that the Task Force investigation was now stymied at a moment when there still had been no positive movement in assessments of Croatia's cooperation with the ICTY by either Brammertz or key EU states. Given domestic political pressures, PM Kosor needs to see some positive response to the latest Croatian efforts, and hoped that the US might weigh in with the British or Dutch. The Ambassador noted that Brammertz, London and The Hague were still digesting the latest developments, and that we needed to wait a few weeks to assess their reactions. A key indicator might come at the December 16 ICTY hearing on Croatia's cooperation. END SUMMARY. ¶2. (C/NF) Stier stressed that the December 9 searches of eleven suspects' properties, which had turned up some 10,000 pages of potentially suspect documents, had been initiated by Croatian state prosecutors, and performed with valid search warrants issued by the county courts. Underlining the legality of the procedure, he noted that the Task Force had requested warrants to search property belonging to one additional suspect, a lawyer of an ICTY indictee, but that the court denied the request. The mere fact that such a large volume of suspect material had been found "justified such a broad police action," according to Stier. ¶3. (C/NF) Stier noted that the ICTY Trial Chamber had ordered a freeze on Dec. 11 of inspection of documents and computers seized from three key suspects who are or were members of the Gotovina defense team. He said analysis of the findings prior to the freeze indicated that the documents wanted by the ICTY were not among the 10,000 pages seized, although 
many documents were official, classified state archives materials that were apparently illegally in the possession of the individuals searched. The seized computers had not yet been investigated, as police were awaiting the local court's order when the ICTY injunction was issued. ¶4. (C/NF) The Task Force's investigation so far had established the following scenario. In 1998, Croatian CHOD Pavao Miljavac ordered that all copies of documents related to Operation "Storm" be destroyed, and the originals transferred to the central Archives. In direct contravention of that order, Gen. Rahim Ademi, who was then in Knin, held a certain number of documents back, even as he claimed all files were transferred. (Investigators presume that these include documents demanded by the ICTY.) Later, probably in 2000, when Gotovina was Inspector General and Ademi was his deputy, Ademi had ordered another officer close to Gotovina, Zeljko Hucic, to go to Knin, retrieve the documents, and bring them back to Zagreb. Hucic had apparently done so, and the Task Force believes that he then gave them either to Ademi or to Gotovina. That is where the investigative trail ends. ¶5. (C/NF) The GoC would fully respect the ICTY's injunction, Stier said. But it left the GoC investigation in a difficult spot. All leads from the Task Force's work to date suggest that any missing documents that still exist are in the possession of Gotovina's lawyers. But now the Croatian police have been blocked from pursuing that avenue of investigation. Stier admitted that the documents were unlikely to be in the offices or homes searched in Croatia. But the hope was that investigation of the computers could turn up additional leads or information perhaps confirming whether the defense team had the documents, who might have them now, or what had been done with them. (Note: Dutch authorities earlier rejected a GoC request to search the Gotovina defense team's office in The Hague.) ¶6. (C/NF) The Ambassador asked what was new about the Task Force's conclusions, given that the GoC had previously theorized that the missing documents had been stolen or destroyed by persons associated with General Gotovina. Stier replied that the Task Force had been able to connect the dots and to prove what had heretofore been merely affirmed or ZAGREB 00000731 002 OF 002 surmised. He attributed this to searching and even hostile questioning of military witnesses, which he noted could not have been easy for police investigators. Stier also freely admitted, when pressed by the Ambassador, that a professional, police-led investigation could have been mounted earlier by the GoC. He explained that GoC seriousness was principally the result of Kosor's accession as Prime Minister and her willingness to take tough decisions. ¶7. (C/NF) Stier acknowledged that, from a legal standpoint, and in relation to the Gotovina case, it was not a problem for Croatia to wait for the Trial Chamber's decision about how to handle the seized documents and computers. But the politics of the issue were more complicated. Stier said that Kosor's opponents within the ruling HDZ led by ex-Prime Minister Sanader, already resistant to her effort to allow damaging anti-corruption cases to move forward, were now using complaints (including accusations of treason) from veterans' groups about the searches to weaken her position. Kosor's message to the investigators was clear: go to the end and do everything you legally can to find the documents. But Kosor needed to be able to show that this newly aggressive approach was being recognized in an improved assessment of Croatia's cooperation by Brammertz or in unblocking Chapter 23 (Judiciary and Fundamental Rights) of the EU negotiations. So far no such signal had been received. The only response had been an order from ICTY to freeze the investigation, which some were portraying as a "humiliation" of both Brammertz and the GoC. Stier said that PM Kosor was hoping that the USG might weigh in with the UK to explain that the GoC effort was credible, noting that a positive response to the investigation would help ensure it is sustained. ¶8. (C/NF) The Ambassador urged patience, noting that the US had already, in the UNSC and in the Secretary's meeting with FM Jandrokovic, praised the GoC's improved efforts in searching for the documents, and called on Croatia to continue. Both Brammertz and the EU FMs had signaled an increasing readiness to accept that a credible investigation could establish that the documents were truly beyond the reach of the GoC. Moreover, the Ambassador continued, less than a week had passed since the GoC's raids. Observers, including Brammertz and the British, were still considering what these events signified. The hearing called by the Trial Chamber for December 16 to discuss the request for documents, and its subsequent ruling (likely to be issued in January), will also influence Croatia's chances for opening Chapter 23. We intend to follow these events closely and review where the issue stands by mid-January. ¶9. (C/NF) COMMENT: We understand a debate is currently going on in London regarding whether the GoC is doing enough to merit opening of Chapter 23. Clearly, this issue would be easier to resolve if the Prosecution came to the view that Croatia's increased efforts since late September represent a credible investigation, and that Croatia is fully cooperating with the ICTY, even though it has been unable to locate all of the 23 documents in question. There is a chance, even if the Prosecutor does not express this view, that the Trial Chamber could find that Croatia is responding adequately. In any case, we believe that parties will be more open to re-evaluating their positions only after the Dec. 16 hearing and its aftermath at the ICTY. In the interim, we are urging the GoC to continue its investigations, although the injunction against searching further among Gotovina's defense team circumscribes what additional efforts the Task Force can undertake. END COMMENT. FOLEY