US embassy cable - 03THEHAGUE1730

ICTY: UK DRAFT UNSCR ON THE COMPLETION STRATEGY

Identifier: 03THEHAGUE1730
Wikileaks: View 03THEHAGUE1730 at Wikileaks.org
Origin: Embassy The Hague
Created: 2003-07-07 14:59:00
Classification: CONFIDENTIAL
Tags: PREL PHUM BK HR SR NL ICTY
Redacted: This cable was not redacted by Wikileaks.
This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 001730 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER, EUR - BOGUE, EUR/SCE - 
JONES/GREGORIAN, L/UNA - MATHIAS, L/EUR - LAHNE, INR/WCAD - 
SPRIGG, USUN - ROSTOW 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY 
TAGS: PREL, PHUM, BK, HR, SR, NL, ICTY 
SUBJECT: ICTY: UK DRAFT UNSCR ON THE COMPLETION STRATEGY 
 
REF: A. (A) JOHNSON-ROSTOW E-MAIL 6/30/03 
 
     B. (B) THE HAGUE 1510 
     C. (C) STATE 194768 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(b) and (d). 
 
1. (C) International Criminal Tribunal for the Former 
Yugoslavia (ICTY) President Theodor Meron passed to embassy 
legal counselor the draft of a Security Council resolution 
developed by the UK that would require the ICTY Prosecutor to 
implement key elements of the Tribunal's so-called completion 
strategy.  As noted ref a, Meron explained that the draft 
originated from UK FCO Legal Adviser Wood and was 
subsequently refined to reflect Meron's input.  The text at 
para 2 below, reflecting some additional input from Meron, 
was passed back to the UK last week.  Some Embassy additions 
are suggested in paras 3 and 4. 
 
2. (C) Begin text of draft UNSCR: 
 
"The Security Council, 
 
Recalling the statement made by the President of the Security 
Council on 23 July 2002 (S/PRST/2002/21), 
 
Strongly reaffirming that the Tribunal should concentrate its 
work on the prosecution and trial of the civil, military and 
paramilitary leaders suspected of being responsible for 
serious violations of international humanitarian law 
committed in the territory of the former Yugoslavia since 
1991, rather than minor actors, 
 
Endorsing once more the broad strategy of transferring cases 
involving intermediary and lower-level accused to competent 
national jurisdictions as likely to be in practice the best 
way of allowing the Tribunal to achieve its current objective 
of completing (investigations by 2004,) all trial activities 
at first instance by 2008 (and appeals, reviews and other 
proceedings around 2010) (the "completion strategy") 
(S/2002/678, Annex) 
 
Having heard the joint presentation by the High 
Representative to Bosnia and Herzegovina and the President of 
the International Criminal Tribunal for the former Yugoslavia 
("the Tribunal"), 
 
Having taken note of the recommendation of the Tribunal with 
regard to the creation, as proposed by the High 
Representative, of a special Chamber, within the State Court 
of Bosnia and Herzegovina, to deal with serious violations of 
international humanitarian law, 
 
      1. Welcomes with satisfaction the decision of the 
Steering Board of the Peace Implementation Council of 12 June 
2003 endorsing the approach outlined by the High 
Representative concerning the establishment of a War Crimes 
Chamber within the State Court of Bosnia and Herzegovina; 
 
      2. Urges the High Representative to establish the said 
War Crimes Chamber as expeditiously as possible; 
 
      3. Notes that a Donors' Conference will be held in The 
Hague on . . . 2003 with a view to raising funds to finance 
the establishment of the proposed War Crimes Chamber and, to 
that end, invites States and relevant international and 
regional organizations to contribute funds as well as to 
provide qualified personnel to assist the Chamber in its work; 
 
      4. Notes the statement by the President of the Tribunal 
that an essential prerequisite to achieving the objectives of 
the completion strategy is the establishment and early 
functioning of the War Crimes Chamber and that as soon as the 
Chamber has begun to function, the Tribunal intends, pursuant 
to its Rules of Procedure and Evidence, to consider referring 
cases of lower or intermediate-level accused to the Chamber, 
as well as to other competent national jurisdictions as 
appropriate; 
 
      5. Notes with satisfaction the measures undertaken by 
States of the former Yugoslavia with the support of other 
States and relevant international and regional organizations, 
to strengthen their national judicial systems in order to 
facilitate the implementation of this policy and encourages 
further such measures and support; 
 
      6. Further notes that since the Presidential statement 
of 23 July 2003, (19) indicted persons remain at large and (. 
. .) persons previously indicted have been taken into 
custody, and that therefore issuing further indictments, 
except in cases of civilian, military and paramilitary 
leaders at the highest level, would be incompatible with 
achieving the objectives of the completion strategy; 
 
      7. Aware that the Tribunal will be in a position to 
complete its historic mission only with the apprehension and 
prosecution of Radovan Karadzic and Ratko Mladic and calls 
upon all States to render all necessary assistance to the 
Tribunal in its efforts to bring these and all other accused 
persons to justice. 
 
      8. Requests the Prosecutor to henceforth concentrate on 
issuing indictments only in the exceptional circumstances 
specified in paragraph 6 above, on considering the referral 
of cases to competent national jurisdictions as indicated in 
paragraph 5 above, and to use, in the interests of efficiency 
and justice, all appropriate means at her disposal to reduce 
the length and complexity of all cases before the Tribunal. 
 
      9. Requests the President of the Tribunal to use his 
best efforts to ensure that the objectives of the completion 
strategy are achieved. 
 
      10. (Decides to remain actively seized of the matter.) 
 
End text of draft UNSCR. 
 
3. (C) Comment: The draft resolution would give a UNSC 
imprimatur to the establishment of the war crimes chamber in 
the new Bosnia State Court and restrict the investigative 
mandate of the Office of the Prosecutor (OTP), marking two 
steps forward toward meeting the goals of the completion 
strategy.  However, the resolution is an opportunity for the 
Council to emphasize other aspects of the ICTY's work that 
are also critical to accomplishment of the completion 
strategy goals.  For instance, the draft pays limited 
attention to obligations of states to cooperate with the 
Tribunal, an omission which would be especially striking 
given the Tribunal's recent opinions on Belgrade cooperation 
(ref b).  The resolution could draw upon UNSCR 1423 (2002), 
operative paragraph 3, which "underlines that full 
cooperation by States and entities with the International 
Tribunal includes, inter alia, the surrender for trial of all 
persons indicted by the Tribunal and provision of information 
to assist in Tribunal investigations."  The Council could 
also reaffirm its support for the mission of the ICTY, in 
particular its contributing role -- as emphasized in this 
year's guilty plea by Biljana Plavsic -- to peace and 
reconciliation in the Balkans.  Finally, the draft correctly 
identifies "the length and complexity" of cases before the 
Tribunal as a problem posed to the completion strategy, but 
to be fair, the resolution could also note that the chambers 
play a role in ensuring efficient proceedings as well. 
 
4.  (C) Comment, cont'd:  The proposed draft UNCSCR focuses 
solely on the Bosnia State Court and the scope of the 
Prosecutor's mandate.  It does not address other issues 
flagged in Ref C such as the UK initiative to split the 
ICTY/ICTR prosecutorial functions and create a new chief 
prosecutor position for the ICTR and the extension of Chief 
Prosecutor Del Ponte's ICTY mandate to the end of 2004.  If a 
decision is made to include all of these issues in a single 
resolution, then that resolution would need to be issued in 
September (given the expiration of the Prosecutor's mandate 
in September), and it would make sense, if possible, to 
advance President Meron and High Commissioner Ashdown's joint 
presentation on the Sarajevo war crimes chamber to September 
as well.  If we pursue two separate resolutions, then the 
current notional calendar for Meron's visit -- joint address 
with HR Ashdown on October 8, followed by his own report to 
the UNGA on the 9th and presentation of the formal ICTY 
report on the 10th -- would seem to work.  Would appreciate 
USUN and the Department's understanding of the schedule of 
these events and whether this is likely to hold or whether 
the October 8 joint presentation will be advanced to 
September.  End comment. 
BAILY 

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