Identifier
Created
Classification
Origin
10USUNNEWYORK77
2010-02-11 22:42:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
USUN New York
Cable title:  

AMBASSADOR RAPP (S/SWCI) HOLDS MEETINGS IN NEW

Tags:  ICTY PARM PREF PREL UNSC 
pdf how-to read a cable
VZCZCXYZ0007
RR RUEHWEB

DE RUCNDT #0077/01 0422242
ZNR UUUUU ZZH
R 112242Z FEB 10
FM USMISSION USUN NEW YORK
TO SECSTATE WASHDC 8136
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

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