US embassy cable - 04THEHAGUE490

S E C R E T SECTION 01 OF 02 THE HAGUE 000490 
 
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: OTP REQUEST 298 DEMARCHE DELIVERED 
 
REF: SECSTATE 41128 
 
Classified By: Ambassador Sobel per reasons 1.5(b)-(d) 
 
1. (S) Summary: Ambassador Sobel, joined by Deputy Legal 
Counselor, delivered reftel letter and points February 25 to 
Chief Prosecutor of the International Criminal Tribunal for 
the Former Yugoslavia (ICTY), Carla Del Ponte.  While arguing 
that her actions did not amount to a "breach" of the USG's 
authorization of use of the Mladic documents, Del Ponte 
nonetheless appeared to understand the seriousness of the 
message being delivered, committing herself to provide 
written assurances as described in reftel talking points. 
Taking the cue from the Ambassador's emphasis that we want to 
remain supportive of the Office of the Prosecutor (OTP) 
activities, she said that she hoped that, through use of the 
documents as "lead and background" information, OTP would be 
able to obtain the full set of documents from Belgrade or 
other sources directly.  End summary. 
 
2. (S) Ambassador Sobel began the discussion with Chief 
Prosecutor Del Ponte by emphasizing the seriousness with 
which the USG took the breach of the Rule 70 conditions 
placed on the documents provided in response to Request 298. 
Del Ponte responded that conversations with Embassy Legal 
Counselor and members of her team had led her to expect the 
demarche we were about to deliver.  She then read the letter 
aloud so that staff present, Milosevic prosecutor Dermot 
Groome and senior adviser Jean-Daniel Ruch, could know the 
letter's contents.  After reading the first line -- "This 
letter and its contents are to be considered protected by 
Rule 70" -- she laughed and said, "then we cannot talk!" 
Moving on to the substance of the letter, she argued that "we 
didn't breach" the Rule 70 authorization.  She explained that 
she was fully aware that the documents could only be used in 
the Milosevic proceedings, but that discussions with members 
of her staff led her to believe it would be important to 
determine whether the judge who ordered Belgrade to produce 
the Mladic personnel file authorized Belgrade to redact some 
of the information in it.  Her main interest, she said, was 
to reverse the judge's decision, if she had authorized the 
redactions, and to obtain from Belgrade the full, unredacted 
Mladic file.  (NB: The judge was a so-called duty judge, 
unfamiliar with the Milosevic or Mladic cases, named Ines 
Monica Weinberg de Roca of Argentina.) 
 
3. (S) Continuing her explanation, Del Ponte said that she 
went to the judge informally and told her that she knew the 
Mladic file as provided by Belgrade lacked key information 
showing that Mladic was promoted in the Yugoslav Army (VJ) in 
1994 and retired in 2001.  Del Ponte asserted emphatically 
that she did not show the Mladic documents to the judge. 
(NB: Patrick Lopez-Teres, chief of investigations, had joined 
Del Ponte in her meeting with Judge Weinberg de Roca and told 
embassy legal officers subsequently that he and Del Ponte had 
"formally breached" the Rule 70 authorization when she showed 
the judge the documents.  Embassy legal officers learned from 
other OTP prosecutors that they had advised her previously 
that sharing the documents with the judge would amount to a 
breach of the USG's Rule 70 conditions.)  She explained that 
she simply "used the information" to draw the judge into 
telling her whether she was aware of the missing information 
and, if so, whether she had authorized Belgrade to redact the 
information.  Judge Weinberg de Roca, on this basis, said 
that she had indeed authorized the redactions. 
 
4. (S) Ambassador Sobel noted that the USG had responded to 
the OTP request in remarkably quick fashion and believed 
that, had OTP asked in this case, they would probably have 
received a similarly quick response.  While Del Ponte did not 
explain why she and her staff could not wait to make such a 
request, she appeared to understand the seriousness with 
which the USG took the breach its Rule 70 conditions. 
Following delivery of reftel points, Del Ponte committed to 
providing the written assurances as requested.  The 
Ambassador emphasized the importance of taking this step, 
particularly as a vehicle to ensure that the supportive USG 
relationship with OTP would remain on track. 
 
5. (S) Del Ponte advised that she hoped to file a motion with 
Judge Weinberg de Roca in an effort to obtain the full Mladic 
personnel file.  She said that OTP would explain that it has 
information indicating that the personnel file provided by 
Belgrade under Weinberg de Roca's order was incomplete in 
material ways.  Deputy Legal Counselor promised to confirm 
with the Department that such use would be consistent with 
the still-in-effect authorization of February 14 to use the 
documents for lead and background purposes.  Del Ponte and 
her staff also are aware of their need to collect the 
existing copies of the documents and deliver them to the 
Embassy, where one copy will remain, and to remove the 
document from OTP's restricted electronic database. 
6. (S) Comment: Del Ponte seemed to get the message intended 
by the letter and demarche.  She understands that the USG 
takes the breach extremely seriously, though her maintenance 
that the use of the documents did not amount to a Rule 70 
violation undercut her ability to express such understanding. 
 Fundamentally, though, she and her team understand that 
their main task now is not to debate USG conditions but to 
find ways to leverage the documents, as lead and background 
information, into obtaining the documents directly from 
Belgrade or other sources.  Indeed, embassy legal officers 
understand from an OTP investigator that the documents, even 
under a lead-and-background use-only restriction, have led 
OTP to a "gold mine".  We look forward in the coming days to 
learning just what kind of gold mine they have found.  End 
comment. 
SOBEL