US embassy cable - 03THEHAGUE2818

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002818 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE - 
GREGORIAN/MITCHELL, L - TAFT, L/EUR - LAHNE, INR/WCAD - 
SEIDENSTRICKER/MORIN 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY 
TAGS: PREL, PHUM, BK, HR, SR, NL, ICTY 
SUBJECT: ICTY: AMBASSADOR PROSPER'S MEETINGS WITH ICTY 
PRESIDENT AND REGISTRAR 
 
REF: A. ICTY PRESS RELEASE OF OCTOBER 31 
 
        (WWW.UN.ORG/ICTY/LATEST/INDEX.HTM) 
     B. BELGRADE 2506 
 
Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b)-(d 
). 
 
1. (C) Summary: Ambassador-at-large for War Crimes 
Pierre-Richard Prosper met with the President and Registrar 
of the International Criminal Tribunal for the Former 
Yugoslavia (ICTY) in separate meetings on October 30 in The 
Hague.  Ambassador Prosper, meeting with ICTY officials on 
the margins of the Sarajevo War Crimes Chamber Donors 
Conference (see ref A), emphasized the continuing strong 
support of the U.S. Government for the work of the Tribunal. 
He also stressed repeatedly that the Tribunal must work to 
implement the completion strategy, including by helping 
national jurisdictions in the Balkans build the capacity and 
credibility to prosecute war crimes cases in their own 
courts.  End summary. 
 
2. (C) President Theodor Meron, joined by chief of staff 
Larry Johnson (American), initiated the discussion with 
Ambassador Prosper by noting that Chief Prosecutor Carla Del 
Ponte had placed him under considerable pressure by formally 
requesting in writing that he condemn publicly U.S. 
officials' statements concerning the possibility of Serb 
courts trying cases such as those involving recently unsealed 
indictees Lukic, Lazarevic, Pavkovic and Djordjevic.  (Note: 
In an October 22 internal memo, Del Ponte told the President 
that "the statements made by US officials in the past days 
are an interference in the work of the prosecution that not 
only create confusion and uncertainties, but also constitute 
de facto encouragement for Serbia and Montenegro not to 
fulfill their international obligation."  She characterized 
the statements as "a direct interference in the work of the 
Tribunal and unacceptable."  End note.)  See also ref b. 
Meron said that Del Ponte is "adamant that the next indictees 
(i.e., those to be indicted before the close of 
investigations by the end of 2004) will be too senior for 
transfer," adding that "she may be right."  Prosper, joined 
by Embassy legal officers and S/WCI intern Shah, responded 
that the full context of his comments demonstrated that the 
USG was not trying, in Del Ponte's words, to "interfere" with 
the work of the Tribunal.  Quite the contrary, he said, the 
USG principal interest at this stage is the apprehension of 
Ratko Mladic and Radovan Karadzic.  The unsealing of the 
indictments of the above-named indictees was, in the U.S. 
view, a huge mistake, undermining the political environment 
in Belgrade and putting at risk efforts to apprehend Mladic. 
The arrest and transfer of Mladic would "change the 
environment" in the region.  As a result, once Belgrade has 
the capacity and credibility to handle such cases, "any or 
all cases can go back to Belgrade if the ICTY agrees."  He 
noted further that, even in a situation of transfer to 
Belgrade, the ICTY retains primacy and "can take back cases 
if Belgrade doesn't prove credible." 
 
3. (C) Meron responded positively to Prosper's detailed 
explanation of U.S. policy.  He added that he is "comfortable 
with the Serb legal framework" on paper and "reasonably 
comfortable that, given an appropriate environment, the 
(local) court could try cases.  Maybe some of the indictees," 
he said, "could be tried in Belgrade" in the future, perhaps 
with the help of some sort of "international monitoring 
mechanism."  He concluded that, with Prosper's explanation in 
hand, he found no need to accede to Del Ponte's request for a 
statement. 
 
4. (C) Meron noted separately that he had briefed P-5 UN 
mission legal advisers in New York about a serious structural 
problem the Tribunal will confront in the coming years.  With 
many judges up for reelection by the UN General Assembly next 
year, the loss of some of them could remove them from ongoing 
trials, seriously complicating the Tribunal's ability to 
conclude those cases.  As a result, Meron is proposing that 
the ICTY Statute be amended in order to allow judges to 
continue serving on the Tribunal.  One idea, he said, would 
be to extend the terms of judges by one year, renewable 
annually, though he is open to other solutions.  He said that 
he expected other P-5 members to be supportive and that the 
Chinese had already indicated to him privately their support. 
 Prosper said that he understood that judges' terms coming to 
such a conclusion could undermine the completion strategy and 
he saw the logic in Meron's solution, and that he expected 
the USG would be able to support his initiative.  (Note.  We 
understand that P-5 foreign ministry legal advisers briefly 
discussed this issue in their recent meeting, responded 
favorably, and agreed that the matter should be taken up at 
the beginning of 2004.  End note.) 
 
5. (C) Prosper met separately with ICTY Registrar Hans 
Holthuis and Deputy Registrar David Tolbert (American). 
Holthuis expressed his appreciation for the continued support 
of the United States and outlined a number of Registry 
initiatives to put the Tribunal in a position to meet the 
completion strategy goals.  For instance, noting improved 
cooperation with the Office of the Prosecutor and "excellent" 
leadership by President Meron, Holthuis said that the three 
branches of the Tribunal had been working hard to ensure a 
consistent line-up of cases for trials so that the three 
courtrooms are constantly being put to use.  He also pointed 
to a recent amendment to the Rules of Procedure and Evidence, 
according to which the trial chamber now determines the 
length of the prosecution case, a change which ties well into 
the Registry's new mechanism for paying defense counsel by 
lump-sums.  He said that he expects Rule 68, under which the 
prosecution must disclose to the defense any material known 
to it "which in any way tends" to exculpate the defendant or 
affect the credibility of a prosecution witness, to be 
narrowed to a reasonableness standards.  This will ease the 
burden on the prosecution and third party (e.g. government) 
providers while ensuring that the defense receives 
exculpatory information and is not bombarded with irrelevant 
material.  These were, he said, just examples of some of the 
activities at the Tribunal aiming toward an efficient 
implementation of the completion strategy. 
 
6. (C) Prosper expressed his appreciation for the Registry's 
efforts and noted that he was aware of Holthuis' recent 
letter seeking voluntary contributions for projects such as 
ICTY Outreach, Office of Legal Aid and Defense and Rules of 
the Road.  Some programs, especially the aspects of outreach 
that involve the building of capacity in the Balkans to 
prosecute crimes also under the ICTY's jurisdiction, mesh 
neatly with the USG's interests, expressed just that morning 
by Ambassador Prosper during the Donors Conference.  Holthuis 
wondered whether some of the U.S. contribution to the 
Sarajevo War Crimes Chamber could be earmarked for ICTY 
outreach efforts that overlap with the chamber's work. 
Prosper said that he would take that back to Washington so 
that appropriate officials could consider whether the use of 
such funds by contributing to ICTY Outreach would be possible. 
 
7. (C) Comment: Ambassador Prosper's meetings, particularly 
with President Meron, provided an excellent opportunity to 
advance USG equities with respect to the completion strategy 
and to convey our support for the consistent efforts of the 
President and Registrar in this respect.  Meron, the 
Tribunal's preeminent supporter of USG efforts, welcomed 
Prosper's articulation of U.S. policy with respect to the 
transfer of cases for local prosecution and benefited from a 
detailed understanding of the circumstances that prompted the 
USG's reaction to the unsealing of the recent indictments. 
Holthuis, who has been steadfast and pragmatic in moving the 
Tribunal towards it completion goals, conveyed his commitment 
to the process and confirmed that the leadership of the 
Chambers and the Registry are generally working in lockstep 
to meet completion strategy goals.  End comment. 
 
8. (U) Ambassador Prosper did not have an opportunity to 
review this message prior to his departure. 
SOBEL