US embassy cable - 03ZAGREB1898

C O N F I D E N T I A L  ZAGREB 001898 
 
SIPDIS 
 
 
E.O. 12958: DECL: 09/03/2003 
TAGS: KAWC, PREL, HR, War Crimes 
SUBJECT: ICTY PUSHES CROATIAN COOPERATION IN NON-PAPER 
 
 
Classified By: Poloff Justin Friedman, reasons 1.5 (b) & (d) 
 
1. (SBU) ICTY representative Thomas Osorio provided us on 
September 1 a copy of the non-paper (text para 3) which he 
had just delivered to the GoC.  Osorio told us that this 
paper was part of the Prosecutor's strategy of providing 
maximum transparency to Croatia on outstanding issues in 
advance of her October report to the Security Council on 
Croatia's cooperation with the ICTY. 
 
2. (C) Osorio added that he had been asked by the 
prosecutor's office to work "intensively" with Croatian 
authorities to ensure improved cooperation in coming months. 
He stressed, however, that despite rumors to the contrary, 
there were absolutely no negotiations going on with anybody 
in or outside the GoC to facilitate the surrender of indicted 
war criminal Ante Gotovina. 
 
3. (SBU) BEGIN TEXT OF NON-PAPER: 
Non-Paper 
August 2003 
 
Co-operation between Croatia and the OTP (ICTY) 
 
Croatia,s co-operation with the OTP has improved since the 
last visit of the Prosecutor to Zagreb in April 2003; the 
Government made certain efforts to resolve the outstanding 
issues. There are, however, segments where co-operation is 
still not fully sufficient and causes concerns in the light 
of the ICTY,s Completion Strategy, recently endorsed by the 
UN Security Council (Resolution 1503). Full co-operation with 
the OTP is one of the fundamental prerequisites for the 
success of the ICTY,s Completion Strategy. 
 
At this stage, the Prosecutor decided to circulate this 
Non-paper to the Government and the relevant States taking 
into account her briefing to the UN Security Council expected 
in October. In the OTP,s view it is possible to resolve all 
or the majority of the remaining outstanding issues in the 
near future, allowing the Prosecutor to state Croatia,s full 
compliance with the OTP,s requests. 
 
Arrest and transfer of the indictees still at large 
 
At the moment there is one fugitive at large * Ante 
Gotovina, who is, according to available sources, believed to 
be in Croatia (or in adjacent areas of Herzegovina in BH). 
Interviews with this fugitive have been published in Croatia 
on a number of occasions lately, despite official claims that 
nobody knows where he is hiding. The Prosecutor expressed on 
a number of occasions her disappointment in regard to the way 
in which the Croatian Government had handled the case of 
Gotovina. It is fundamentally important that the Government 
undertakes pro-active efforts to locate and arrest Gotovina. 
It is not acceptable that the Government, as it seems, has 
chosen to wait passively for "somebody" to provide 
information on his location or for Gotovina himself to decide 
to surrender. 
 
UN SC Resolution 1503 &urges Member States to consider 
imposing measures against individuals and groups or 
organisations assisting indictees at large to continue to 
evade justice8. The reported efforts of the Government in 
this respect under Rule 591 (in April this year) (FOOTNOTE: 
Rule 59 provides that a State shall report to the Registrar 
its inability to execute the arrest warrant and the reasons 
thereof. Failure to report on actions taken may lead to 
report by the President to the Security Council. END 
FOOTNOTE.) are not sufficient, and in any event the 
Government is required to report regularly to the Registrar 
on the actions taken in this respect. 
 
All in all the situation with Gotovina gives rise to concerns 
about ability of the Government to control the special 
services and to act without undue delay upon any new 
indictments issued by the ICTY. It is encouraging though that 
the Government expressed to the Prosecutor a commitment to 
act immediately upon any new indictment/ arrest warrant. 
 
Requests for documents, access to archives and availability 
of witnesses. 
 
On the positive side, for a long time now the situation with 
interviews by the OTP of potential witnesses and suspects 
could be assessed in positive terms. The Government was 
effective and co-operation in this respect is progressing 
well (with some rare and minor problems with some specific 
persons to be interviewed). 
 
The situation with the access to the documentary evidence and 
archives has additionally improved but is not fully 
satisfactory. The OTP has had access or obtained documents 
from a number of locations/ archives in Croatia (including 
Government Ministries, Office of the President, HVO archive 
in the State Archive of Croatia and others). The Croatian 
 
authorities also allowed on-site reviews of certain important 
collections of documents. 
 
In July 2003 the OTP conducted a comprehensive review of all 
its Requests for Assistance and Information (RFA-s). On 7 
August the results of this review, with clear, detailed and 
concise benchmarks, were provided to the Head of the Croatian 
Government,s Office for Co-operation with the ICTY and the 
ICJ, Mr. F. Krnic. 
 
The Croatian side was informed about 16 RFAs regarded on 7 
August outstanding (partially answered, or in some cases 
requiring further discussions). Some of the RFAs are two 
years old. Without going into the details of the outstanding 
RFAs (or part of RFAs), which were presented to the 
authorities and have been discussed on a number of occasions, 
it is important to stress that OTP Requests are precise and 
specific. The follow up discussions with the authorities have 
also clarified additionally the OTP,s needs. The above 
mentioned outstanding Requests deal with the following 
topics: identified Military units and their specific 
documentation; specific reports of the Croatian Ministry of 
Defence during a limited period of times documentation of the 
late Defence Minister G. Susak; specific Bank records; 
specific information of the Croatian Intelligence community; 
specific documents in regard to the Operation &Storm8; 
specific statistical data from the 1991 census; and with some 
other matters. It is also expected by the OTP that the 
Croatian authorities respond to the RFAs in good faith with 
substantial materials, and completely responsive to the 
subject matter of the RFAs. Unfortunately, it is not always 
the case. 
 
War crimes cases in the local courts. 
 
In view of the ICTY,s Completion Strategy, the importance of 
local war crimes investigations and prosecutions gains 
special significance. The UN SC Resolution 1503 additionally 
stresses importance of &the strengthening of national 
judicial systems8 to the rule of law in general and to the 
implementation of the ICTY Completion Strategy and notes "the 
obligation ... of the countries of the former Yugoslavia to 
investigate those accused whose cases would not be tried by 
the ICTY and take appropriate action with respect to 
indictment and prosecution, while bearing in mind the primacy 
of the ICTY over national courts8. 
 
It could be stated at this stage that, despite the fact that 
a number of war crimes cases have already been processed, 
only one serious war crimes trial has been conducted with the 
first serious result - the Norac-Oreskovic & al. trial in 
Rijeka. However, the written verdict in this case has not 
been issued yet and the case is under appeal. Some other 
cases (like Lora prison case in Split) were not so 
successful. The OTP has already established very positive 
relations with the office of the Croatian State Attorney Mr. 
M. Bajic (the OTP assisted and will assist more in some 
particular war crimes investigations and prosecutions 
launched by Bajic,s office, which has already issued first 
indictments for war crimes). However, it is expected that 
Croatia demonstrate that it is serious about pursuing all war 
crimes suspects in Croatia, regardless of the nationality of 
the perpetrators or victims. 
 
The Government has introduced a draft law on the Special war 
crimes Court(s) which, however, mainly deals with the ICC. In 
general, this draft law is designed to facilitate Croatian 
assistance to the ICC and aims at a more general reform of 
the domestic legal system so as to better carry out domestic 
prosecutions of war crimes cases. The draft also envisages 
cases being remitted to Croatia by the ICTY, but the terms 
and procedures of taking over the cases and evidence are 
unclear. Another interesting feature is that in many 
respects, this draft seems superior to existing Croatian 
legislation designed to facilitate cooperation with the ICTY. 
 
END TEXT OF NONPAPER. 
FRANK 
 
 
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