US embassy cable - 04THEHAGUE1033

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001033 
 
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: KRSTIC JUDGMENT SETS ASIDE GENOCIDE 
CONVICTION, LEAVING BEHIND A FRUSTRATED AND BITTER 
PROSECUTION 
 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (SBU) Summary: The Appeals Chamber of the International 
Criminal Tribunal for the Former Yugoslavia (ICTY) set aside 
a trial chamber's 2001 judgment that Radislav Krstic, 
commander of the Drina Corp immediately under Ratko Mladic 
during the Srebrenica massacres of July 1995, perpetrated 
genocide.  The Appeals Chamber found that significant 
portions of the evidence showed that Krstic knew of other 
officers' genocidal intent and made contributions toward 
their murderous endeavor, but that it did not show that he 
shared the "intent to destroy, in whole or in part, a 
national, ethnic, racial or religious group, as such," as 
required by international law.  The immediate reaction of the 
prosecution team has been one of frustration and anger toward 
what it sees as an over-reaching and poorly reasoned 
decision.  End summary. 
 
2. (U) In a Judgment issued on April 19 and summarized in 
open court by ICTY President and Presiding Judge Theodor 
Meron, the Appeals Chamber found that, while "the Bosnian 
Serb forces committed genocide" in and around Srebrenica in 
July 1995, General Radislav Krstic himself was not a 
principal perpetrator.  Rather, Krstic aided and abetted the 
commission of genocide, principally by making substantial 
resources of the Republika Srpska Army's (VRS) Drina Corp, 
which he commanded, available to Serb forces carrying out the 
massacres and the subsequent reburials.  The Appeals Chamber 
thereby set aside Krstic's conviction for genocide, for which 
the Trial Chamber had sentenced him to forty-six years in 
prison, and convicted him instead as an aider and abettor of 
genocide, an aider and abettor of extermination and 
persecution as crimes against humanity and murder as war 
crimes, and as a participant in murder and persecutions as 
war crimes.  The Appeals Chamber, taking into account the 
reduced responsibility for genocide and other "mitigating" 
factors, reduced his sentence to thirty-five years. 
 
3. (SBU) Prosecutors, both senior and junior, expressed 
varying degrees of disappointment at the Appeals Chamber 
decision.  They have focused their displeasure on two levels 
-- first, the chamber's readiness to find fault with numerous 
factual findings of the trial chamber, seemingly without 
paying any deference to the trial chamber's fact-finding; and 
second, what they perceive as legal gymnastics which allowed 
it to find that 'genocide occurred' without identifying any 
particular or specific perpetrators. 
 
4. (C) On evidentiary questions, one senior prosecutor 
condemned the Appeals Chamber judgment as displaying 
"arrogance" and failing to appreciate the entire range of 
facts and contexts which supported the trial chamber 
judgment.  Prosecutors are chafing at numerous instances 
where the Appeals Chamber found that the Trial Chamber's 
interpretation of evidence was unreasonable.  These included, 
for instance, an assessment of what Krstic would have 
understood from Mladic when the latter said, in company that 
included a Bosniak, UNPROFOR personnel and the accused, that 
the Bosnian Muslims in Srebrenica could "survive, stay, or 
disappear" (among other similar threats).  In another 
instance, the Appeals Chamber disputed the Trial Chamber's 
interpretation of a coded statement in which PIFWC Beara 
sought Krstic's assistance in the 'distribution' of 3500 
'parcels' -- which to the Trial Chamber, and to a dissenting 
appeals judge, clearly meant 'killing of 3500 persons'.  On a 
more general level, the prosecutors are upset that 
conclusions seen as supported by hundreds of hours of trial, 
thousands of pages of transcripts/evidence, and hundreds of 
paragraphs of the Trial Chamber's judgment could be dismissed 
as unreasonable by judges who did not sit through the long 
proceedings themselves.  (NB: The Trial Chamber included the 
well-regarded U.S. Judge Patricia Wald, formerly of the 
federal Appeals Court for the District of Columbia.) 
 
5. (C) Reactions to the Appeals Chamber's legal conclusions 
have been more complicated.  There is a general sense among 
prosecutors that the Appeals Chamber first decided that 
Krstic did not merit conviction as a principal perpetrator of 
genocide but that, for "political" reasons, it did not want 
to set aside the finding that the massacres around Srebrenica 
constituted genocide.  The result, one prosecutor said, made 
it seem as if "an eighteen year-old law clerk" had written 
the judgment on the basis of a decision reached "by academics 
and diplomats".  In fact, a law clerk involved in the 
drafting confirmed to embassy legal officers that the chamber 
had given the drafters general directions, "the bottom line," 
and that the law clerk drafters had to determine how to get 
there.  (NB: In some respects, such an approach does not 
differ significantly from U.S. appeals courts, where law 
clerks tend to do the lion's share of drafting and research.) 
 In any event, many are perplexed that the Appeals Chamber 
could "call() the massacre at Srebrenica by its proper name: 
genocide", but fail to identify perpetrators who in fact 
shared the specific intent to commit genocide, as required by 
the ICTY Statute and the 1948 Genocide Convention.  The 
references to Mladic's bellicose, seemingly genocidal 
statements, moreover, are downgraded as evidence reflecting 
even his intent to commit genocide, making the conclusion all 
the more troubling to prosecutors who need to consider how 
the judgment affects further genocide prosecutions. 
 
6. (C) Meanwhile, the Appeals Chamber seems to have made it 
easier to prosecute a person for aiding and abetting 
genocide, leading to one prosecutor's conclusion that the law 
now reflects a strict liability standard for aiding and 
abetting genocide (i.e., knowledge plus support, without 
intent to commit genocide, amounts to aiding and abetting 
genocide).  It has also been described as a law criminalizing 
the "failure to prevent" genocide. 
 
7. (C) A dissenting opinion by Judge Shahabuddeen (a 
consistent dissenter or separate-opinion writer) gives voice 
to the prosecution's concerns, particularly with respect to 
the lack of deference to Trial Chamber fact-finding.  To 
Shahabuddeen's mind, the Trial Chamber's extensive 
documentation of the evidence in its Judgment strongly 
supported the conviction of Krstic for genocide.  His dissent 
presents similar evidence to that assessed by the majority 
but reaches starkly different conclusions, such as that 
Krstic evidently did share the intent to commit genocide 
during the crucial days of mid-July 1995.  The dissent in 
effect undermines the Appeals Chamber's repeated statements 
that the Trial Chamber reached decisions that were not ones 
"that a reasonable trier of fact could have made." 
 
8. (SBU) Apart from the questions associated with genocide, 
the Appeals Chamber also addressed whether Krstic could be 
convicted of "cumulative" charges (i.e., convicting him on 
several grounds for the same basic criminal offense) and 
whether the Prosecution violated any of its obligations to 
disclose to the defense exculpatory material in accordance 
with Rule 68 of the Tribunal Rules of Procedure and Evidence. 
 The Appeals Chamber confirmed that the defense could only be 
granted a remedy in the event that the Prosecution failed to 
comply with Rule 68 and that failure resulted in prejudice to 
the defense.  The Appeals Chamber found that Rule 68 
violations by the Prosecution did not materially prejudice to 
the defense, thereby not requiring a retrial or similarly 
stark remedies as requested by the defense.  It did, however, 
order the Prosecution to "investigate the complaints alleged 
and take appropriate action." 
 
9. (C) Comment: What is striking about the comments of 
prosecutors is not their disappointment in the Krstic appeals 
decision; any prosecutor is disappointed when their "victory" 
is pared back on appeal.  Rather, it is the anger and 
bitterness, borne out of their surprise at the judgment, 
which undercuts what was a landmark ruling on Srebrenica and 
genocide by a highly respected trial chamber.  Embassy legal 
officers, from discussions with a key drafter of the opinion, 
share the sense that the Appeals Chamber took a results 
oriented approach in its decision.  It wanted to establish 
that genocide occurred in Srebrenica, wanted to keep the bar 
very high for a genocide conviction, but also believed 
Kristic had some degree of responsibility.  The result is are 
the legal gymnastics and intrusive reanalysis of the facts 
complained of by the prosecutors.  In particular, the finding 
that the Chamber's conclusions were "unreasonable" in light 
of the evidence strikes us as a reach. 
 
10. (C) Comment, cont'd: Whatever the motivations behind the 
result, the Judgment gives prosecutors in other cases 
involving genocide charges arising out of the Srebrenica 
massacres (i.e., Milosevic, Karadzic, Mladic, Krajisnik, 
Blagoevic, Drago Nikolic, Beara) a lot to study.  One comes 
away from reading the Judgment tending to agree with the 
prosecutors who believe that it will make it easier to 
convict the mid- and lower-level indictees of aiding and 
abetting genocide but harder to convict the most senior 
leaders with direct perpetration of genocide.  The 
possibility of a set of convictions for aiding and abetting 
genocide, but none for direct acts of genocide, surely puts 
pressure on the trial chambers to convict someone of 
principal responsibility for genocide, since the Appeals 
Chamber has affirmed that genocide did in fact occur.  The 
prosecutors believe that honor has been saved for Mladic, but 
few if any beneath him.  End comment. 
SOBEL