US embassy cable - 03THEHAGUE2563

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 002563 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - ROSSIN, 
EUR/SCE - STEPHENS/GREGORIAN, L/EUR - LAHNE, L/AF - GTAFT. 
INR/WCAD - SEIDENSTRICKER; USUN FOR ROSTOW/WILLSON 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY 
TAGS: BK, HR, KAWC, NL, PHUM, PREL, SR, ICTY 
SUBJECT: ICTY: PREVIEW OF CHIEF PROSECUTOR'S AND 
PRESIDENT'S REPORTS TO SECURITY COUNCIL 
 
 
(U)  Classified by Clifton M. Johnson, Legal Counselor, for 
reasons 1.5(D) and 1.6. 
 
1.  (C) Summary.  Chief Prosecutor Carla Del Ponte and 
President Theodor Meron of the International Tribunal for the 
former Yugoslavia (ICTY) will present the Security Council 
with a difficult dilemma during their reports to the Council 
on October 9.  Del Ponte will report that she intends to seek 
14 additional indictments involving 30 perpetrators before 
the end of 2004.  Meron will report that under his 
projections the Tribunal will not be able to conclude the 
trials of all existing indictments before the end of 2008 
deadline set forth in the completion strategy.  As a result, 
if Del Ponte carries through with her plans to indict an 
additional 30 perpetrators in the next year, the Tribunal,s 
work will likely be extended for a minimum of two more years. 
 Del Ponte and Meron,s reports will put the Council on 
notice that the Tribunal is not on track to complete its work 
within the completion strategy targets; whether and how the 
Council reacts to this news will have help determine the 
likely lifespan of the Tribunal.  End Summary. 
 
--------------------------------- 
Chief Prosecutor,s Report 
 --------------------------------- 
2.  (C) Del Ponte,s political adviser, Jean-Daniel Ruch, 
provided Embassy Legal Officers with a detailed preview of 
the report (largely drafted by Ruch) that Del Ponte intends 
to give to the Security Council on October 9.  The speech is 
divided into three parts covering the Completion Strategy, 
Cooperation of States in the Region, and the Capacity of 
Domestic Courts to handle war crimes cases.  With respect to 
the Completion Strategy, Del Ponte will confirm her intention 
of meeting the completion strategy,s goal of completing all 
new investigations by the end of 2004.  Between now and then 
she intends to issue about 14 new indictments involving 30 
individuals, all at the "highest levels."  Ruch explained 
that by this she means that the indictees will be at the 
general or ministerial level or their equivalents (i.e. with 
respect to the KLA).  Del Ponte,s goal is to seek 
ethnic/national proportionality with respect to the new 
indictments.  Of the 14 projected new indictments, 5 could be 
joined with existing ones.  As a result, Del Ponte,s new 
investigations will necessitate an additional 9 trials for 
the Tribunal. 
 
3.  (C) With respect to investigations of lower level 
perpetrators, all work on those is, in essence, being halted. 
 Del Ponte will report that she intends to refer 17 
investigations involving 62 lower level suspects back to the 
region.  Of these 12 (involving 48 suspects) will go to 
Bosnia and Herzegovina (BiH), 3 (involving 8 suspects) will 
go to Croatia, and 2 (involving 6 suspects) will go to Serbia 
and Montenegro (SAM).  As underscored later in the speech, 
the ability and willingness of the Office of the Prosecutor 
(OTP) to actually transfer these cases back to the region 
will depend on the establishment of viable, just, and 
effective domestic judicial mechanisms to receive and handle 
the cases. 
 
4.  (C) Del Ponte will sum up this portion of her report by 
concluding that it will not be possible for the Tribunal to 
complete all trials in the first instance by the completion 
strategy,s end of 2008 target date.  She will indicate that 
consistent with her mandate, she will pursue the 
investigations described above until the end of 2004.  She 
will propose that the Security Council decide in 2005, once 
the final results of her investigations are complete, which 
cases need to be tried in the Tribunal and which should be 
referred back to the region.  Del Ponte will resist efforts 
by the Security Council to limit the scope of her 
investigations and will justify this position by referencing 
in her speech her legal mandate to continue investigations 
through 2004, the importance of prosecutorial independence, 
and the bad precedent (i.e. for the International Criminal 
Court) such interference would establish.  (Comment:  Del 
Ponte,s strategy here is to defer any Security Council 
inquiry into her work until after her investigations are 
complete and the indictments issued.  Once the indictments 
are issued, however, the international community will 
essentially be faced with a fait acompli and have far less 
latitude than now to pursue changes in the ICTY,s direction. 
 End comment). 
 
5.  (C) The second part of Del Ponte,s presentation will 
focus on Cooperation with States in the Region.  With respect 
to Croatia, she will state that the authorities bear the 
responsibility for the failure to arrest and transfer 
Gotovina.  She will characterize recent GOC reports 
describing their efforts and indicating that Gotovina is not 
in the country as a campaign to manipulate and influence 
public perception.  She will directly reject the Croat 
assertions and say that sources "that we have in Croatia" 
have confirmed that Gotovina is in the country.  She will 
conclude with the blunt assessment, in line with what she 
promised the UK, that Croatia has not fulfilled its 
obligations to cooperate as required under the relevant 
Security Council Resolutions.  While Del Ponte,s 
presentation with respect to Gotovina will be unambiguously 
critical, she will also acknowledge in passing that the GOC 
has done well in terms of making witnesses and documents 
available to the Tribunal. 
 
6.  (C) Del Ponte,s presentation on Belgrade will also be 
very critical.  She will report that Belgrade authorities 
have not done well in terms of fugitive apprehension.  She 
will also say that they have not provided adequate access to 
documents.  She will note that SAM only began delivering 
documents in the Milosevic case in recent months and that it 
was as a result of a court order rather than a genuine desire 
to cooperate.  She will also offer another case study 
involving an OTP request for archive access that, after being 
outstanding for seven months, was only granted in the past 
week.  In granting the request SAM authorities authorized 
access to documents from the 1996 to 2000 period, but 
declined to provide access to the 1991 to 1995 period that is 
of most interest to the OTP.  Del Ponte,s speech will 
characterize this as unacceptable and express her belief that 
SAM authorities are retaining information relating to Serb 
culpability in the Milosevic trial.  She will also note that 
the OTP has 36 outstanding requests for state secrecy waivers 
to permit Belgrade officials to testify at the Tribunal. 
 
7.  (C) As in the case of Croatia, she will briefly note some 
positive behavior including "some improvement in attitude" 
and a better public posture following the Djindic 
assassination.  She will also favorably note the appointment 
of a special war crimes prosecutor and the passage of a new 
law on war crimes.  Del Ponte will also praise reforms in the 
army in an effort to give Defense Minister Tadic a boost. 
Conversely, she will single out Interior Minister Mihajlovic 
for criticism saying he lacks the willingness to take 
cooperation with the Tribunal to a new level following the 
initial promise of the post-Djindic assassination period. 
 
8.  (C) Del Ponte,s brief discussion of BiH cooperation will 
note no change in the negative approach of the RS.  While 
praising Bosnian cooperation generally, she will note that 
there is very little cooperation in cases involving Bosnian 
Croat perpetrators. 
 
9.  (C) The third and final section of Del Ponte,s speech 
will focus on Domestic Courts and their ability to handle war 
crimes cases transferred from the ICTY.  She will underscore 
the importance of establishing such a capacity quickly and 
flag two areas that warrant attention.  First, she will 
describe the problem of ensuring the admissibility of cases 
and evidence transferred from the ICTY.  Unless domestic law 
makes provision to receive cases from the Tribunal and accept 
as admissible evidence taken pursuant to ICTY procedures, Del 
Ponte fears that transferred war crimes cases could end up 
being shelved in domestic courts.  Second, Del Ponte will 
emphasize the need for bilateral law enforcement cooperation 
among the states in the region and encourage the enactment of 
appropriate legislation and the conclusion of legal 
assistance treaties.  Such cooperation is needed, she will 
report, to ensure the protection of witnesses and evidence in 
domestic cases.  Similarly, extradition treaties between 
states in the region could facilitate the trial of suspects 
in the country where the evidence and witnesses are located 
and which has the best ability to protect them.  Del Ponte 
will urge the international community to assist in 
strengthening and establishing domestic courts to try war 
crimes cases and will push for a donors conference for the 
Bosnia State Court.  She will also ask the international 
community to press local governments to improve their 
domestic laws and to intensify bilateral cooperation among 
themselves. 
 
----------------------- 
President,s Report 
----------------------- 
 
10.  (C) ICTY President Ted Meron is committed to the 
achievement of the completion strategy and his report is 
intended to alert the Security Council that the Prosecutor,s 
investigative plans will put the Tribunal significantly off 
track for meeting its 2008 target date for finishing all 
trials.  Meron,s report begins by describing the "great 
progress" the Tribunal has made in striving towards the 
completion strategy targets.  He identifies various key 
factors that have been and will continue to be critical in 
reaching the completion targets including the frequency of 
guilty pleas, internal reforms to enhance efficiency, efforts 
to establish a war crimes chamber in the Bosnia state court 
that will be able to receive cases transferred from the ICTY, 
and improving cooperation with the ICTY by states in the 
region. 
 
11.  (C) In terms of accomplishments, Meron reports that the 
Tribunal has tried 44 perpetrators in 22 trials, resulting in 
five acquittals.  The Tribunal is operating at an all time 
high pace with  four to six trials being heard at a time. 
The chambers have adjudicated 29 cases on the merits, heard 
three cases involving contempt, and reached four final 
judgments.  The appeals chamber has considered 36 
interlocutory appeals, two reviews of the merits, two 
contempt cases, and one judgment on the merits.  Meron 
comments favorably on the increasing trend towards plea 
bargaining at the Tribunal singling out the positive impact 
of the Plavsic plea and noting that a total of 15 guilty 
pleas have now been entered.  He observes that a plea which 
includes a properly detailed acknowledgment of guilt and an 
expression of remorse can play a constructive role both in 
the region and in bringing other perpetrators to justice. 
 
12.  (C) Meron provides an overview of key reforms that have 
enhanced the ability of the Tribunal to meet its completion 
strategy targets.  Security Council action in December 2002 
and July 2003 has improved efficiency by eliminating the 
prohibition on ad litem judges handling pretrial proceedings 
and making clear the Council,s desire that the tribunal try 
only those at the most senior levels who are most responsible 
for war crimes.  Internally, amendments to the Tribunal rules 
have streamlined trials by limiting the amount of time that 
witnesses testify, curtailing the number of witnesses, and 
reducing the number of crime sites for which evidence needs 
to be introduced to establish the crime base.  In the region, 
progress towards establishing a war crimes chamber in Bosnia 
at the earliest possible time will prove critical in the 
ability of the Tribunal to transfer cases to domestic 
authorities for adjudication.  Meron notes the PIC 
endorsement of the war crimes chamber in June 2003 and plans 
for a donors conference later this month.  The revitalization 
of a working group involving the three parts of the ICTY 
(Registry, OTP, and Chambers) has enhanced coordination, 
efficiency, and provided a good forum for identifying and 
implementing reforms that shorten trials and speed appeals. 
Meron also comments favorably on an OTP proposal for reforms 
and certain rule amendments which is currently under 
consideration in the Chambers, Rules Committee.  These 
efforts include improving and making more efficient the 
process of information disclosure to defense counsel and the 
presentation of evidence. 
 
13.  (C) Looking ahead, Meron notes that a critical factor in 
assessing whether the completion strategy targets will be met 
is the prosecutor,s intention with respect to future 
indictments.  Meron underscores that additional variables 
such as the average length of proceedings and the timing of 
arrests (i.e. so multiple individuals under one indictment 
can be tried together rather than in separate trials), the 
number of guilty pleas, and how quickly the state war crimes 
chamber is established make it is impossible to predict with 
scientific accuracy when the work of the Tribunal will be 
completed.  That said, given his current projections, Meron 
believes it is possible to try 22 additional cases by the end 
of 2008 deadline.  This would include the trial of all 
individuals currently in custody.  If Karadzic, Mladic, 
and/or Gotovina are brought into custody soon, it should also 
be possible to try two of the three by 2008.  Because the 
trial of all 17 at large indictees would necessitate 11 
additional trials, however, it is not possible to complete 
all of them by the end of 2008 unless some of the underlying 
variables change (e.g. there is a surge in the number of 
guilty pleas). 
 
14.  (C) Remarking on the Prosecutor,s plans, the President 
notes that 14 new indictments she contemplates will 
necessitate 8 to 9 new separate trials.  Noting that he has a 
"duty to be candid," Meron concludes:  "I must tell you that 
given our current projections, it will not be possible to 
accommodate any of these new indictments within the timeframe 
set by the Council."  Meron further observes that it is not 
within the authority of the chambers to decide which of those 
indictments submitted for confirmation involve those 
perpetrators who are the "most senior leaders most 
responsible for crimes within the ICTY,s jurisdiction." 
(quoting the UNSCR 1503 of August 2003).  He adds that it is 
a matter for the Council and the Prosecutor, and that if the 
OTP proceeds with the indictments indicated that the 
completion date could slip by two years.  Meron concludes by 
observing that speed cannot come at the expense of fairness 
and that the work of the Tribunal could not, in any event, be 
considered done until Mladic and Karadzic are brought into 
custody. 
 
15.  (C) Comment.  The reports of the President and Chief 
Prosecutor will put the Security Council and the 
international community on notice that the ICTY is not on 
track to meet the completion strategy deadlines, particularly 
if the Prosecutor proceeds with her plans to seek another 14 
indictments.  Del Ponte is hoping that the Council defers 
until 2005 any action in the face of this downbeat report 
until her investigations are complete.  (Indeed, she objected 
to an earlier draft of Meron,s speech that followed its 
review of the timetable with a request that the Security 
Council provide guidance to the ICTY on how it should meet 
the competing priorities.)  If the Council acquiesces in this 
approach, however, it will be all but impossible for the ICTY 
to meet its completion targets.  Even if a new war crimes 
chamber in BiH is quickly established, Del Ponte,s speech 
makes clear that none of the 30 new targets she has in mind 
are of the mid to lower level that would be appropriate for 
transfer to the Court.   On the other hand, Security Council 
action now on this issue risks charges of prosecutorial 
interference and could send a mixed signal to the region (and 
suspects) about the policy imperative being the closure of 
the Tribunal rather than the pursuit of justice for war 
crimes victims. 
 
16.  (C) Comment continued.  A middle ground might be to 
include in a statement issued by the Security Council 
President (supported by interventions of like-minded 
governments) an expression of serious concern about the 
projections in the reports, a call on the President to 
continue his reforms, and a pointed request to the Chief 
Prosecutor to reconsider her plans for 2004 with an eye 
towards limiting new indictments only to the most senior and 
critical echelon of war crimes suspects.  Coupled with 
language that urged the strengthening and/or creation of a 
domestic capacity to receive and try war crimes cases in the 
region so that perpetrators would not escape justice, such a 
statement might encourage Del Ponte to take a more modest 
approach in the coming year with few downsides.  End comment. 
SOBEL