US embassy cable - 04THEHAGUE813

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 000813 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE - 
STEPHENS/GREGORIAN/MITCHELL, L/EUR - LAHNE, L/AF - GTAFT. 
INR/WCAD - SEIDENSTRICKER/MORIN; 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: OTP PAPER SAYS BELGRADE FAILING TO COOPERATE 
ACROSS THE BOARD 
 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (SBU) Summary: In a paper circulated among key diplomatic 
representatives in The Hague and nongovernmental 
organizations (NGOs) late on March 26, the Office of the 
Prosecutor (OTP) of the International Criminal Tribunal for 
the former Yugoslavia (ICTY) asserts that Belgrade's 
cooperation with OTP was "insufficient and difficult" 
throughout the past year and, since December 2003, has been 
"frozen in all main areas (arrests, receiving documents, 
waivers for witnesses to testify)."  The paper expresses 
concern about the impact such noncooperation could have on 
the Completion Strategy and foresees no change in the pattern 
of noncooperation.  End summary. 
 
2. (SBU) In a three-and-a-half page nonpaper circulated by 
Chief Prosecutor Carla Del Ponte's senior political adviser 
on March 26 the OTP paints a bleak picture of Belgrade's 
cooperation on fugitive apprehensions, investigative 
document/archival requests and witness testimony waivers. 
The paper was drafted by one of Del Ponte's political 
advisers, Anton Nikiforov, coordinated among key 
investigators and prosecutors, cleared by Del Ponte and her 
senior staff, and circulated among key governments and 
friendly NGOs (such as Human Rights Watch, Amnesty 
International, the Coalition for International Justice and 
the Soros Foundation).  The paper acknowledges "some positive 
developments" in Serbia and Montenegro (SaM), such as the 
amendment of the Law on Cooperation, but suggests that the 
assassination of Zoran Djindjic in 2003 "severely affected" 
SaM-ICTY cooperation in a number of respects.  Even though 
the post-Djindjic government spoke favorably about 
cooperation, OTP argues that minimal steps were taken.  OTP 
believes that the new government has indicated not only that 
it will not make cooperation a priority but that "(n)ew 
obstacles and bureacuratic barriers have been created in 
areas where a reasonable communication, for instance at 
operational level, had been established."  The paper also 
takes umbrage at a "sometime difamatory (sic) media campaign 
against the Prosecutor". 
 
3. (SBU) Fugitive Apprehensions: OTP's paper asserts that 
only three arrests should be attributed to SaM authorities in 
2003: Franko Simatovic and Jovica Stanisic, who were 
originally arrested on non-ICTY charges; and Veselin 
Sljivancanin, arrested prior to last June's USG 
certification.  No credit is due Belgrade, OTP argues, for 
the three transfers of fugitives to The Hague following 
certification, since those either arose out of direct ICTY 
efforts (Meakic and Rasevic) or, in the case of Kovacevic, 
murky circumstances where the "arrest" may have been "staged 
to score undue credit."  In addition, OTP believes that 15 of 
the 21 current fugitives from ICTY warrants "either reside 
permanently in or travel frequently to Serbia and 
Montenegro," including Karadzic and Mladic.  The paper says 
that OTP shared information with Belgrade to facilitate 
arrests but that no "concrete results" or feedback from the 
government followed.  Recent senior-level military and police 
indictees, OTP alleges, "continue to this day to move freely 
in Belgrade." 
 
4. (C) OTP also alleges that this month's violence in Kosovo 
was "used to justify the refusal to arrest a high-level 
fugitive that the OTP had located in Serbia," a decision said 
to be taken "at the political level" in Belgrade.  In a 
conversation with Del Ponte's political adviser, Jean-Daniel 
Ruch, emboffs were told that this was a reference to Ljubisa 
Beara, an indictee charged with involvement in Srebrenica. 
According to Ruch, the OTP's Tracking and Intelligence Unit 
"found" Beara at his apartment in Belgrade and passed along 
the discovery to the Ministry of Interior and USG.  The 
Ministry, however, refused to act on the information, and 
Ruch said the OTP believes senior Ministry officials (and 
possibly Kostunica himself) were involved in a political 
decision not to apprehend Beara, especially during the 
ongoing Kosovo crisis.  OTP also believes that government 
officials warned Beara that he was being surveilled and that 
he should leave Belgrade for a few weeks. 
 
5. (SBU) Investigation and Trial Cooperation: OTP 
acknowledges improvement in Belgrade's assistance in locating 
"witnesses or suspects, providing such waivers for witness 
testimony and delivering Prosecutor's summonses and Court 
subpoenas."  Yet OTP also identifies three specific problems: 
First, it says that testimony waivers for high-level 
government witnesses are difficult to obtain, in contrast to 
those for lower-level witnesses, and that Belgrade has 
imposed "cumbersome procedures" unique among the states of 
the former Yugoslavia.  Second, Belgrade has been reluctant 
to provide access to relevant documents in investigations and 
trials, providing them "only" under court order.  It focuses 
on difficulties with respect to "documents that show the 
extent of influence and control of Slobodan Milosevic in the 
decision-making process regarding the wars in Bosnia and 
Herzegovina and Croatia."  Third, Belgrade has not provided 
OTP with access to "actual archive premises" for the purpose 
of assessing holdings, making specific requests difficult. 
On documents generally, the paper argues that, while 
"Belgrade has produced several thousands documents to the 
ICTY, this has always been under pressure, and mainly as a 
result of binding orders."  More troubling to OTP is that the 
numbers conceal that "(m)any highly relevant documents ... 
have not been produced and many were provided after 
unacceptable delays, thereby hampering on-going proceedings." 
 It notes that "over 120 requests for documents (are) 
outstanding, which represents over 20% of all requests 
forwarded since 2001." 
 
6. (SBU) Conclusion: The paper concludes that 
"- The cooperation of (Belgrade) with ICTY has been and 
continues to be partial and to come as a result of 
international pressure. 
 - In the past year, the cooperation has been minimal.  Since 
December 2003, it is at a standstill. 
 - In the meantime, Serbia and Montenegro has become a safe 
haven for ICTY indicted fugitives. 
 - It appears unreasonable at this stage to expect 
improvements on the basis of statements or actions by 
(Belgrade) high officials." 
 
7. (C) Comment: While the OTP paper consistently adopts the 
most pessimistic interpretation of the underlying facts, the 
factual descriptions themselves are largely accurate and 
track what we have been hearing over the past year. 
Throughout the year, cooperation was difficult and often 
handled by litigation in the Milosevic trial chamber, which 
was seized which numerous efforts to order Belgrade to 
provide specific information or archival access.  While there 
were some favorable steps toward cooperation on indictee 
apprehension, the minimal transfers since last spring 
frustrate OTP greatly, particularly as the Tribunal as a 
whole implements its completion strategy.  Del Ponte's tin 
ear to the political dynamics in the region, irresponsible 
public statements, and penchant for grandstanding have 
certainly not helped OTP establish or maintain a cooperative 
relationship with SAM.  That said, the obligation to 
cooperate fully with the Tribunal belongs to SAM and, as the 
paper points out, many of the deficiencies in this respect 
are rightly attributed to it.  End comment. 
 
8.  (U)  The full text of the paper has been e-mailed to 
S/WCI, EUR/SCE, INR/GGI/WCAD, and L/EUR. 
SOBEL