US embassy cable - 00THEHAGUE1664

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 001664 
 
SIPDIS 
 
 
DEPARTMENT FOR S/WCI - SCHEFFER/WARRICK, S/SA - O'BRIEN, 
DRL - KOH/SPENCER, L - MATHESON, L/EUR - LAHNE, S/CT - 
SHEEHAN/BAIR, INR/WCAD - DONAHUE/MORIN, EUR/SCE - COUNTRYMAN 
 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY 
TAGS: PHUM, NL, ICTY, ICTR 
SUBJECT: ICTY: ICTY COMMENTS ON USG PROPOSAL FOR WITNESS 
RELOCATION ARRANGEMENTS 
 
REF: A. A STATE 55166 
     B. B 99 THE HAGUE 2224 
     C. 99 THE HAGUE 1324 
 
 
1.  (U) Begin Summary:  As a follow-up to Ambassador 
Scheffer's 28 March letter to the Registrar of the 
International Criminal Tribunal for the Former Yugoslavia 
(ICTY) regarding possible relocation of Tribunal witnesses to 
the United States (Ref A), Embassy legaloffs had discussions 
with representatives from the ICTY Registry and the Victim 
Witness Unit (VWU).  Although certain aspects of the USG 
proposal were very well-received, ICTY representatives were 
generally disappointed by the overall approach being 
suggested.  The Acting Head of the VWU explained that the 
ICTY only proposes witnesses for relocation if their lives 
are at serious risk.  Consequently, when a request for 
relocation is made it has to be acted upon quickly.  The 
ICTY's overriding interest is in having some commitment from 
the USG to a quick, flexible procedure that would ensure a 
fast-track process through the normal INS procedures.  ICTY 
representatives pressed hard on whether it might be possible 
to achieve some kind of break-through on expedited processing 
of requests.  Specific comments and requests for additional 
information/clarification of the proposed approach based on 
existing authorities are provided below.  End Summary. 
 
 
2.  (C) In discussions with Embassy legaloffs regarding the 
possibility of concluding an agreement or arrangement with 
the USG for relocation of witnesses to the United States, 
ICTY representatives were candid about their disappointment 
that the 28 March proposal did not provide for a special 
relocation procedure, nor a commitment to expedite the 
existing INS process.  Underscoring the fact that the VWU 
only requests relocation for witnesses whose lives are at 
serious risk because of their testimonies, the ICTY reps 
noted that they well understand that a country making a 
commitment to relocate witnesses must operate within the 
provisions of its own laws.  In that regard, they pointed out 
that other governments also have relied upon existing 
domestic authorities in defining the scope of benefits for 
relocated witnesses.  Unlike the USG proposal, however, those 
other governments have committed themselves to special 
fast-track procedures for ICTY witnesses.  In the case of 
Canada, for example, provisions are made for witnesses who 
need to be relocated on an urgent basis.  Other agreements 
provide for the transfer to happen within two months, in the 
event of urgent cases, even sooner.  The ICTY representatives 
were keen to know whether it might be possible to achieve 
some kind of break-through on expedited processing of 
requests. 
 
 
3.  (U) Benefits Package:  The ICTY representatives indicated 
that the benefits package for relocated witnesses as 
described in Ambassador Scheffer's letter appeared to be very 
good.  They requested certain details on the various 
benefits.  In particular, the VWU would like to know what 
benefits witnesses would be entitled to after the initial 
eight months.  In addition, they requested information on 
whether the witnesses would be entitled to housing, 
education, and travel documents to enable the witnesses to 
travel to and from the United States.  Finally, they raised 
the need to relocate close family members (either together 
with the witness or at a later stage).  In this regard they 
noted that the war in the former Yugoslavia had torn apart 
many families, and made many children orphans.  Such children 
are often in the custody of distant relatives or even former 
neighbors.  If possible, the VWU would like to ensure that 
such children or relatives qualify as close family members 
for relocation purposes. 
 
 
4.  (U) Requirement for Transcript of Witness's Testimony: 
The 28 March letter indicated that in order for the INS to 
assess whether the "persecutor bar" would apply in an 
individual case, the INS would require a transcript of the 
testimony of the witness.  In response to this requirement, 
the VWU raised several concerns.  First, the ICTY 
representatives pointed out that in some cases a witness may 
need to be relocated before any appearance in court.  In such 
cases, no transcript would exist.  Second, they reiterated 
their earlier point that the ICTY only proposes relocation 
for witnesses whose lives are at risk due to the contents of 
their testimonies.  Given the sensitivity of such 
testimonies, the Judges will normally grant protective 
measures for these witnesses and proceed in closed session. 
Thus, the transcripts of the proposed witnesses' testimonies 
will normally be confidential (i.e., sealed by the Court). 
Although some witnesses proposed for relocation may testify 
in open session under a pseudonym, the transcripts of such 
sessions are also not available for release. 
 
 
5.  (U) Instead of relying on a transcript of a witness's 
testimony, the VWU asked whether the INS would accept a 
statement from the ICTY that would contain information on the 
testimony, and explain why the testimony put the witness's 
life at risk.  The VWU indicated that such a statement would 
have to be treated as classified by the INS or other 
authorities.  In addition, the VWU representatives informed 
Embassy legaloffs that for all relocation requests, the 
Registrar receives a certification from the Office of the 
Prosecutor (OTP) that the witness in question is not a 
suspect or under investigation for any crime over which the 
ICTY has jurisdiction.  The certification from the OTP also 
typically states that, as far as the Prosecutor is aware, the 
witness has not committed any other crimes. 
 
 
6.  (U) After Relocation:  Assuming witnesses are relocated 
to the United States pursuant to a request from the ICTY, the 
ICTY would like to include a provision for the exchange of 
information so the ICTY can be kept informed of the witness's 
status once settled in the United States.  For example, ICTY 
representatives would need to know about any threats that 
arise or any other problems that develop in relation to the 
witness's testimony.  Similarly, they would need to know if a 
witness died or his/her whereabouts became unknown. 
 
 
7.  (U) In a related vein, the ICTY representatives indicated 
that they would like to include a provision in a relocation 
agreement or arrangement that in the (unlikely) event of 
extradition, the witness or any member of the relocated 
family should not be returned to the territory of the former 
Yugoslavia without the written consent of both the witness 
and the ICTY. 
 
 
8.  (U) Fingerprinting:  Regarding the request for all 
witnesses proposed for relocation to be fingerprinted, the 
ICTY indicated that it is not technically equipped to provide 
fully legible fingerprint cards. 
 
 
9.  (U) Comment:  Embassy notes that USG and ICTY reps have 
been in engaged in efforts  to negotiate a formal arrangement 
for the relocation of witnesses since September 1998. 
Despite support for this effort from Executive and 
Legislative branch officials, nothing concrete has been 
achieved.  Embassy therefore recommends that if there is a 
consensus within the USG to conclude an agreement with the 
ICTY on this issue, face to face negotiations between ICTY 
reps and representatives from all relevant agencies (e.g., 
INS/DOJ/DOS) officials should be scheulded either in The 
Hague or in Washington in the near future.  Alternatively, if 
no consensus to accommodate the ICTY's request for an 
expedited process exists, we should inform the ICTY that we 
are unable to meet its request at this time, but will 
continue to consider requests on an ad hoc basis under 
existing authorities.  End Comment. 
FENDRICK