AMBASSADOR RAPP (S/SWCI) HOLDS MEETINGS IN NEW

UNCLAS USUN NEW YORK 000077 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: ICTY PARM PREF PREL UNSC SUBJECT: AMBASSADOR RAPP (S/SWCI) HOLDS MEETINGS IN NEW YORK ON THE ICC, THE SCSL, AND THE TRANSFER OF ICTR CASES TO RWANDA ¶1. (SBU) SUMMARY: Ambassador Stephen Rapp (S/WCI),held meetings in New York February 1, 2 and 5 to take the pulse of the P5, Austria, and Rwanda on the possibility of the International Criminal Tribunal for Rwanda (ICTR) transferring cases to Rwanda's national judicial system where an international judge would participate. There was general support for the idea although Russia had concerns about UN assessed funding for the international judge. The UK and Austria had some procedural/technical questions with respect to how cases would be transferred. Rwanda confirmed its continuing support for the idea. China, in a meeting on February 5, said that it would welcome ways in which the ICTR could finish its work sooner. With France and the UK, Ambassador Rapp also discussed issues related to the ICC, the Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon (STL). END SUMMARY. -------------- -------------- International Judge sitting in Rwandan National Court? -------------- -------------- ¶2. (SBU) In all of his meetings Ambassador Rapp emphasized the desirability of transferring cases from the ICTR to Rwanda as a way for the ICTR to finish its work sooner, and to eliminate the need for the residual mechanism (RM) to try cases, resulting in significantly reduced costs. He explained that the ICTR's prosecutor, Bubacar Jallow, intends to request the transfer of eight of the eleven "fugitive" cases to Rwanda within the next few months as many previous obstacles have been overcome, including solitary confinement and the death penalty for example. According to the Ambassador, Jallow has also indicated he would request the transfer of the three high level fugitives to Rwanda if they have not been apprehended within the next couple of years. Ambassador Rapp said that including an international judge (likely from the ICTR's roster) on the panel of Rwandan judges would go a long way in eliminating concerns that Rwanda's judicial system lack's independence. He said the international judge would be funded by UN assessed contributions as would costs for translation. He also said that it is within Rwanda's Chief Justice's power to include an international judge on a panel of judges to hear a national case and that Rwanda has already done so in civil, commercial cases. Procedurally, Ambassador Rapp acknowledged that adoption of a Security Council resolution adjusting the ICTR's statute or possibly the rules of procedure is necessary to facilitate inclusion of an international judge in a Rwandan national panel that would hear ICTR cases. ¶3. (SBU) RWANDA: In his meeting with Rwandan Mission to the UN's Legal Adviser Alfred Ndabarasa, Ambassador Rapp said that Rwanda's President and Justice Minister had both supported the idea when he presented it to them last November. Ndabarasa said his government highly appreciates the work S/WCI has done so far and confirmed that Jallow plans to go to Kigali to present several cases for transfer. Ndabarasa also confirmed that Rwanda's president and justice minister are aware of and support the proposal and that his sense is that Kigali would like all ICTR cases resolved as soon as possible. Ambassador Rapp said that once a case is transferred to Rwanda from the ICTR, it would take significantly less time to complete than it would if it were to remain in the ICTR. Ndabarasa, switching gears, told the Ambassador that the ICTR's archives should be located in Kigali once the ICTR finishes its work. Ambassador Rapp said he would look at the issue very carefully but pointed out that access to original documents, information related to the protection of witnesses, and Rule 70 material by the RM is necessary. ¶4. (SBU) RUSSIA: After Ambassador Rapp outlined the proposal, Gennady Kuzmin, the Russian Mission to the UN's Legal Adviser, said that Russia would like to speed up the ICTR's work. Kuzmin said the problem with transferring cases to Rwanda is that some judges in the ICTR, in particular Russian judge Egorov, are convinced that Rwanda lacks the ability to prosecute such cases. He said that in theory, Russia could support the proposal for including an international judge in a Rwandan proceeding, but money would be a concern. Kuzmin explained that Russia's UN financial assessment increased when the most recent scale of assessments was adopted in December. He asked whether the international judges that would sit on a Rwandan panel could be funded from voluntary contributions. Ambassador Rapp explained the problem the Special Court for Sierra Leone (SCSL) has had with raising adequate funding to finish its work and the even more difficult time it will have to fund its residual mechanism once awareness of the crimes that occurred begins to fade. He said that the longest sentence in the SCSL is 52 years which means any SCSL residual mechanism would potentially have to exist until the year 2055. As a result, he said that assessed funding for such a mechanism would ensure its viability and stressed that assessed funding to pay for an international judge for ICTR cases tried in Rwanda is non-negotiable. Kuzmin replied that in the case of the International Criminal Tribunal for the former Yugoslavia (ICTY), sentences should have been served in the country of the prisoner's origin rather than incurring such a burden on the European countries that now have them. The Ambassador said that many of the sentences that are being served in European countries are coming to an end and that the ICTR's cases are not comparable. ¶5. (SBU) Ambassador Rapp told Kuzmin that ICTR President Byron is enthusiastic about the idea. Kuzmin responded that the majority of the ICTR's judges are "comfortable" with their current status and implied that they are not motivated to finish the ICTR's work quickly as only one substantial judgment was rendered in the past year. Kuzmin also said that Austria's proposed RM for the ICTY/ICTR has a huge number of functions and is far-fetched in its current form. Ambassador Rapp acknowledged that the RM needs to be small and efficient but explained it still must be able to deal with the rights of the accused. In closing, Kuzmin raised the issue of the perception of the lack of objectivity resulting from white, international judges sitting on a Rwandan judicial panel hearing cases of African criminals. The Ambassador said that the international judges could also come from Africa and said that in any case Kigali is satisfied with the approach that has been proposed. ¶6. (SBU) FRANCE AND THE UK: After Ambassador Rapp presented the Rwandan proposal to the UK Mission the UN's Legal Adviser Catherine Adams and the French Mission to the UN Legal Adviser, Sheraz Gasri, Adams recalled that in the ICTR cases that denied referrals, solitary confinement (now fixed through legislation) and witness protection were the issues, not the independence of the Rwandan judicial system, and asked whether if we go down this route, we are satisfied that the witness protection issues are solved? Ambassador Rapp responded that even though the Appellate Chamber had overruled a trial chamber that found problems with independence, he thought the problem was still there, even if not stated in the four corners of the decisions. With respect to witness protection he noted that, as it is, ICTR relies on the GOR. The only witness protection ICTR offers is through the use of pseudonyms and anonymity. If a witness is harassed, ICTR instructs him/her to contact the local policy chief. He thought some NGO's would support the independent judge idea (although Human Rights Watch may not.) ¶7. (SBU) Adams noted that the statute/rule change should occur before the Prosecutor moved for transfer. Ambassador Rapp said that the Prosecutor was willing to defer if need be. The most likely vehicle for a change would be the SC resolution in June to extend the terms of the ICTY/ICTR judges. It could be done in the RM resolution, but it appears that resolution will take longer, as defining the RM will need to take account of progress on ICTR transfers and Mladic and anyway there won't be a need to have an RM up and running before 2012. ¶8. (SBU) Adams said she was trying to conceive of what the ICTR/RM Statutes would need to say. If the GOR doesn't need to legislate, there would need to be an undertaking by the GOR that they would include an international judge on the panel when a fugitive was tried in the future. Ambassador Rapp responded that the judges could transfer the case conditional on the GOR appointing a judge from the ICTR (or RM). No matter what, the RM is going to need the capacity to do a trial in Arusha if necessary. He added that there were issues raised by transferring a case in the absence of a fugitive. Presumably the judges would appoint an attorney to represent the fugitive as has been done in previous cases. There would then be an issue of appeal. Because the defendant would not be present, his time to appeal would not run until he received actual notice, although perhaps the prosecution could argue that the appeal could also be done in absentia. If it was decided that the appeal could not be taken until after the defendant was detained, then ICTR would have to stand up an appeals chamber again. This was not an ideal situation, but was the reality. ¶9. (SBU) Gasri asked whether the international judge/ICTR/RM would retain any competence over investigations in a transferred case. Ambassador Rapp answered that, while it is possible that the RM Prosecutor could be given authority to assist in investigations, the theory was that the national jurisdiction would handle the necessary steps after transfer. Gasri said that France was "obsessed" with the potential costs of the RM, and if we ended up with international judges plus a big RM to investigate, we could be looking at a lot of money. Ambassador Rapp said that the USG wanted the RM to be tiny, but able to deal with review petitions, witness protection, etc. When ICTY cases have been transferred, he noted, the ICTY Prosecutor has no further obligation to do anything. The Russians, he said, had expressed the concern that the RM not outlive its usefulness. ¶10. (SBU) Gasri then asked what would happen if a fugitive were arrested now. Ambassador Rapp said that, as for the three high level ICTR fugitives (Kabuga, Bizimana and Mpiranya),if they are apprehended in the next year or two, they should be tried by ICTR. As for the other eight, a date should be established and anyone who is detained after that date should be transferred to the Rwandan courts. Adams said that Brammertz had seemed quite optimistic about arresting Mladic. Ambassador Rapp said that "everyone realizes this is the year that we have to get Mladic," and explained that the USG was very active on this front, through offering rewards, etc. ¶11. (SBU) Adams added that the thinking seemed to be that if Mladic were arrested, Hadzic would be referred. Ambassador Rapp explained that the situation was complicated because Hadzic is a Vukovar case. In a previous Vukovar case, then-ICTY-prosecutor Del Ponte decided that because of the "victor's justice" perception, the case should be tried in the Hague rather than Croatia. On the other hand, Zagreb had to date received only one transferred case from the ICTY and the Croatian prosecutor had demonstrated integrity. Perhaps a similar solution to what we are proposing for the ICTR fugitives could be worked out, with an international judge being deployed in Croatia. He thought that in the end, if there was only one remaining ICTY fugitive, the decision would be to transfer the case and not keep ICTY open for one fugitive. ¶12. (SBU) AUSTRIA: In his discussion with Austrian Mission to the UN Legal Adviser Konrad Buhler on the proposal, Ambassador Rapp pointed out that the Security Council would have to adopt a resolution amending the ICTR's statute in order for an international judge to be included in a Rwanda panel of judges that would hear ICTR cases. The Ambassador suggested that the Informal Working Group on International Tribunals (IWGIT) might include this language in the resolution it would adopt in June on the extension of judges or in the RM resolution. He also said that if Jallow moved this spring to transfer cases and failed, the next time he would be able to request transfer again would be in 2011. Explaining that he had discussed this with Jallow, Ambassador Rapp said that Jallow is willing to hold off on requesting transfers until the IWGIT deals with the proposal. Buhler responded that Austria is very open to any flexible and creative ideas and that the RM should be relieved as much as possible from the burden of dealing with lower level cases that can be transferred. He said that Austria would look at the legal framework of the proposal and would be concerned with issues such as "due process" and "fair trial". ¶13. (SBU) Buhler outlined several aspects of the proposal that would need more consideration. He questioned whether, in a panel of three judges (two Rwandan and one international), the Rwandan court could actually be independent as the two Rwandan judges would be in the majority. He expressed doubt that any Security Council member's Chief Justice has the authority to appoint international judges to preside on a panel of judges in one of their national courts. He added that such a thing would be unthinkable in Austria and a process as serious as this should not be "so easy". Buhler said he would have to look at the overall proposal and would be happy to discuss it in the IWGIT. He suggested that the UN's legal office (OLA) draft a short paper in reaction to the proposal that would include draft elements for a Security Council resolution. Ambassador Rapp responded that the UN's Deputy Legal Counselor, Peter Taksoe-Jensen, was intrigued by the proposal. Buhler queried whether even though Rwanda supports the transfer of all remaining "fugitive" cases, the international community wants all cases to go to Rwanda. The Ambassador said that rewards have been offered for the three high level ICTR fugitives. And unlike the Mladic case in the ICTY, there is a possibility that all three of these cases could be tried in Kigali. Although Buhler said he is skeptical the IWGIT would support the transfer of these three cases to Rwanda, he said such transfers would be ideal in that they would eliminate the need for the RM to conduct trials. ¶14. (SBU) Buhler also questioned whether there would be a problem with placing international judges on Rwandan judicial panels in criminal cases. Buhler said that Russia was concerned about the monitoring of transferred cases but if an international judge is assigned, there would be built-in monitoring. Buhler also raised the possibility that once a case is transferred and an international judge assigned, Rwanda might say it doesn't like the judge. How Buhler asked, would the issue be resolved? Could there be a withdrawal of the referral (deferral)? He questioned whether the RM or the Security Council would make such a decision. Ambassador Rapp responded that Rwandan law allowed non-Rwandan judges to sit in Rwanda's courts and that a referral could be made conditional on acceptance of the judge designated by the ICTR or RM. He said the present rules allowed for a deferral of a case back to the ICTR but the provision might be revised if the international judge idea were approved. ¶15. (U) CHINA: Ambassador Rapp also met with Chinese Mission to the UN Legal Adviser Xiaomei Guo to discuss the issue of transferring the remaining ICTR "fugitive" cases to Rwanda and enhancing the ability to do so by including an international judge on Rwanda's national judicial panel that would hear such cases at both the trial and appeals level. Xiaomei's response was somewhat positive in that she welcomed any idea that would allow the ICTR to finish its work earlier. She said she had to report the proposal to Beijing before she could have an official reaction and also said that she thought it should be discussed in the IWGIT. -------------- International Criminal Court (ICC) -------------- ¶16. (SBU) FRANCE AND THE UK: Ambassador Rapp mentioned the upcoming gathering at Glen Cove and indicated that Legal Adviser Koh hoped it might be possible to reach a consensus solution there. ¶17. (SBU) Ambassador Rapp said that the argument that works best with NGOs is the "just don't go there" argument-that taking on the crime of aggression would politicize the court and undermine its core work of punishing genocide, war crimes and crimes against humanity. He expects that some NGOs will write editorials and take positions arguing against including aggression in the ICC's jurisdiction. ¶18. (SBU) Ambassador Rapp explained that the U.S. position was that there must be a Security Council determination of aggression (a SC trigger). The question the USG hasn't answered, he said, is whether if we could get the SC trigger, we would accept the definition of aggression. He noted that the USG still has problems with the definition, e.g., the term "manifest" violation, which simply means a clear violation, not an egregious one. ¶19. (SBU) Ambassador Rapp asked what the UK and French legal advisers had heard from their capitols. Adams, stressing that this issue was handled out of London, said that based on her contacts with Daniel Bethlehem and Chris Whomersley, she understood that the UK was focusing on the SC trigger rather than the definition, "which seems to be agreed to a large extent." One argument the UK is looking at, she said, is that it would be ultra vires (inconsistent with the Charter) for the ICC to prosecute aggression absent a SC determination of aggression. Gasri said that the French position is that the SC must make the determination of aggression, but the definition of aggression is OK. ¶20. (SBU) Ambassador Rapp noted that we were concerned that the aggression definition being worked on, especially without a SC trigger, would make it harder to build coalitions in the future. He added that, assuming the 121.5 alt proposal is adopted, the crime of aggression provision won't apply to Parties that don't ratify or to non-Parties. This will create a patchwork, not a system of universal jurisdiction. Gasri noted that the Security Council could make it universal. Ambassador Rapp came back by saying that the Security Council could refer cases to the ICC, as he thinks they would have been prepared to do in 1991 with the Iraq invasion of Kuwait. Again, he noted that the argument that resonates with NGOS (or at least some of them) is that the court will be overrun with aggression cases. He could imagine, for example, border incursion cases coming from Latin America. If there were a SC trigger, only the most egregious cases would be tried, the ones that shock the conscience, such as what happened in 1991. ¶21. (SBU) Ambassador Rapp added that he wasn't sure this was accurate, but he had understood that Sweden at one point had been talking about a proposal where countries would agree to an ICC aggression trial after the incident, almost like an arbitration. He noted that this again would create a patchwork, but that the USG might find it to be the least objectionable "at the end of the day." ¶22. (SBU) Ambassador Rapp asked whether the Assembly of States Parties (ASP) meeting in NY from February 22-25 offered potential for defining the debate on aggression. Adams responded that she thought that progress could only be made outside formal meetings. Ambassador Rapp noted that most of the meeting was going to be devoted to stocktaking in any event, with only one short session on aggression. On the subject of stocktaking, he noted that if Kampala ended with no agreement on aggression, people would say it was a failure. One way to counter this would be to achieve results on stocktaking. One possibility, which his office was exploring, was to focus on complementarity, but with an emphasis on the more positive aspects of capacity-building and assistance. He thought this would be popular with the Africans, among others. Adams responded that it would be good if the Review Conference could do something substantive beyond the Belgian proposal. At the same time, there were risks. Complementarity would evoke Bashir, etc. She noted that the SG and the Ministers are currently slated to come at the beginning of the meeting, probably because they were not expecting big results at the end. Her personal view was that there should be a Ministerial Declaration worked out in advance that would be quite general and that everyone could agree to. Possibly there could be more specific results on stocktaking as well. ¶23. (SBU) Ambassador Rapp wrapped up the discussion by saying that various sources, including NGOs, had told him that so long as the P-5 stick together, there would be no outcome on aggression. He made clear that if the RC ended up with a pre-trial chamber deciding whether aggression had occurred, the USG's ability to contribute to and cooperate with the ICC in the future would be seriously and adversely affected. He noted that the USG was currently doing a review of the ways in which we could currently assist the ICC, with decisions to be taken soon. ¶24. (SBU) CHINA: Ambassador Rapp said that the USG is trying to be tactful in its approach and explained that when he and Harold Koh attended the ICC meeting in The Hague in November they received a warm welcome but clearly stated that including the "crime of aggression" in the ICC's statute is not a good thing and that there needs to be a SC trigger. He added that the USG is thinking about ways we might be able to assist the ICC "in kind" in special cases. For example, Rapp said the USG could help the ICC with providing information or by assisting with investigations in certain cases. He also said that the USG wants to take part in the stocktaking exercise as ICC cases are taking much too long and it needs to do more to improve its efficiency. Rapp also said that we want to work with the ICC on the complementarity issue. ¶25. (SBU) Returning to the crime of aggression, Rapp said that Prince Zaid, Christian Wenaveser, Belgium, Germany and Greece are the only real supporters of it. He explained that the USG would prefer to see this issue discussed in Kampala and then deferred. If that's not possible, then he said we would need a SC trigger. Xiamei agreed that a SC trigger is critical and said that she thought there would be a P5 legal advisers meeting on this issue before Kampala and added that the P5 should do something before the conference and at a minimum, France and UK, as parties to the ICC, should convince others that it (crime of aggression) should be blocked. Rapp asked how we'd block with only 2 votes? He also said that lots of states would agree with our points, but in the end won't block it. He said there is a possibility some more EU states will join us and possibly Colombia in South America but the rest of South America and Africa would have a negative view of the SC and hence would not support including the crime of aggression with a SC "trigger". Ambassador Rapp said that there will be a meeting in Glen Cove 3-5 March to discuss the issue and that this meeting would be a good place for interested states to reach a compromise (before the review conference) - if we wanted a compromise - but we don't want a compromise! Ambassador Rapp said that UK Deputy Legal Adviser Whomersley has already said that we're going to lose on this issue and that he would put out a statement indicating the decision is "ultra vires" in that under article 39 of the UN Charter only the SC can determine what constitutes a crime of aggression. -------------- Special Court for Sierra Leone (SCSL) RM -------------- ¶26. (SBU) FRANCE AND THE UK: Ambassador Rapp summed up the issue by saying that fundraising for the SCSL is so challenging now that it may run out of funds in the middle of the Charles Taylor trial and we have to ask how it will be possible to raise $500,000 (or maybe $250,000) a year for the next 50 years. The most promising solution seems to be having the SC establish the SCSL RM and fund it via assessed contributions. ¶27. (SBU) Gasri suggested that the USG should make a demarche in Paris. Although Paris had said that France did not support this initiative, she did not think the decision had been made at a very high level. ¶28. (SBU) Ambassador Rapp noted it was not certain when the Taylor judgment will be delivered, but it is believed that the current presiding judge will try to deliver a judgment before her term expires in January 2011. In that case, the appeal should be done in six months, and the court should close soon after that. He observed that the Canadian chair of the Management Committee kept raising the idea of a UN subvention. The USG and UK had said firmly when a subvention was done (painfully) four or five years ago, that they would never support such an initiative again, but it might be an alternative if worst came to worst. Another possibility was an "endowment" through a trust fund. ¶29. (SBU) Adams argued that it made sense to bring all of the ad hoc tribunals together in their final phase. If this was to happen, we need to make progress on the ICTY/ICTR RM. In her view, there had been no progress in the last twelve months. The reality was that there needed to be a P-5 discussion. The UK has clear legal redlines. While the Chinese keep repeating that virtually all of the ICTY/ICTR functions should be sent to national jurisdictions, they don't really give details about how that could be done. The Russians are key. They have very political issues about ICTY, but don't seem to be bothered by ICTR. It was unfortunate that Gennady Kuzmin was leaving in the summer, because he understands the situation. One issue Adams found particularly difficult to deal with was contempt-should we stand up a whole tribunal to deal with contempt of court? Ambassador Rapp thought the contempt issue could be contained over time. He believed the rules permitted use of a single judge and a simplified procedure. Also, if a witness were assaulted or murdered, the local courts should be able to deal with that. ¶30. (SBU) Adams opined that it was key to agree on the statute for the ICTY/ICTR RM. She briefly raised the Lebanon tribunal, for which she heads the Management Committee. She said she understood that Patricia O'Brien had a "lively" conversation with the Prosecutor in the Hague last week in essence pressing for concrete results. She felt there was a sense of "impending doom," that the donors will lose interest, if nothing happened by the end of the year. Ambassador Rapp responded that he had spoken with the Prosecutor who seemed very optimistic about having something to show by the end of the year, and mentioned that the USG was doing its best to help. RICE