US embassy cable - 04THEHAGUE1592

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001592 
 
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: PREVIEW OF DEL PONTE JUNE 29 ADDRESS TO UN 
SECURITY COUNCIL 
 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (C)  Summary:  In her June 29 oral report to the UN 
Security Council, Carla del Ponte, Chief Prosecutor of the 
International Criminal Tribunal for the former Yugoslavia 
(ICTY), will highlight several issues from her written report 
submitted to the Security Council in May.  In addition to the 
expected items concerning the current budget crisis, 
confirming that she will conclude all investigations and seek 
final indictments by the end of 2004, and castigating SAM for 
lack of cooperation, she may also raise four less expected 
issues with potentially serious implications:  the likelihood 
that the Tribunal will slip from its 2008 completion target, 
her notion that certain "high-level" indictees may need to be 
transferred to the region for prosecution by local 
authorities in order to meet completion strategy targets, the 
allegation that several fugitives may be in Russia, and a six 
month deadline for Croatia to apprehend and transfer 
Gotovina.  End summary. 
 
2. (C) Chief Prosecutor Del Ponte will speak on June 29 
immediately following the presentation of ICTY President, 
Judge Theodor Meron (a preview of Meron,s remarks will be 
reported septel).  According to Jean-Daniel Ruch, senior 
political adviser to Del Ponte, she will repeat the main 
themes of her written completion strategy report to the 
Council, which was submitted on May 21.  In particular, she 
will emphasize her commitment to completing the work of the 
Tribunal according to the strategy endorsed by the Security 
Council in Resolutions 1503 and 1534 (i.e. concluding all 
investigations by 2004, all first instance trials by 2008, 
and all appeals by 2010), but she will note that the timeline 
for trials and appeals is jeopardized by the degree to which 
states fail to cooperate in apprehending fugitives, local 
jurisdictions remain incapable of receiving and trying fairly 
cases transferred from the ICTY, and the budget crisis forces 
her to cut important resources. 
 
3. (C) Conclusion of investigative/indictment phase: Del 
Ponte will express confidence that OTP will conclude its 
investigations and issue all remaining indictments by the end 
of 2004, the target of the completion strategy.  She will 
report a number of staffing and budget decisions that are 
being made consistent with the reorientation of the OTP to a 
trial-support mode.  This includes the closure of the ICTY 
office in Skopje, and the scaling down of its office in 
Pristina, in preparation for closure.  She will update her 
written report by noting that since its submission, the OTP 
has ceased one investigation, leaving six investigations 
outstanding that are comprised of eleven suspects.  This will 
result in the need for the ICTY to hold four new trials, as 
two of the targets could be joined with existing trials.  Del 
Ponte will also report that two indictments referenced in the 
written report have been confirmed and will be presented to 
the relevant authorities very soon (reported separately). 
 
4.  (C) Del Ponte will express doubt, however, that all 
trials in the first instance can be finished by the end of 
2008.  She and President Meron had warned during their Fall 
reports that slippage was likely and we can expect her to 
emphasize the increased likelihood of this in her upcoming 
oral report.  (Comment: She has said on a number of occasions 
that she sees her responsibility primarily in terms of 
meeting the 2004 deadline and that it is the Trial Chambers, 
responsibility to meet the 2008 deadline.  This elides the 
fact that the ability to meet the 2008 deadline depends in 
large measure on the number and nature of the indictments 
brought before the Tribunal by the OTP and the efficiency 
with which the cases are tried by the prosecutors.  End 
comment.) 
 
5. (C) Transfer of cases to domestic jurisdictions:  Del 
Ponte will note that an essential factor in the ICTY's 
ability to meet the 2008 target is the ability to transfer 
cases and investigations for trial in local jurisdictions. 
Her report describes three categories of cases, of which the 
first is most relevant for completion purposes: 
 
-- Indicted Cases:  Twelve cases involving twenty-two 
indictees below the senior-level threshold, "mostly older 
cases concerning relatively lower-level perpetrators."  These 
cases would be transferred pursuant to Rule 11 bis of the 
Tribunal's Rules which authorize the chambers to refer ICTY 
indicted cases, irrespective of whether the indictee is in 
custody, for trial in the territory where the crime was 
committed, the accused was arrested, or (pursuant to a recent 
rule change) a third country with jurisdiction. 
 
-- Non-indicted Cases:  Nineteen cases involving sixty-seven 
"medium-level perpetrators" who were not indicted and whose 
investigations were suspended in 2002.  Del Ponte hopes to 
refer these cases to domestic courts for further 
investigation and prosecution.  Fourteen cases (involving 
about 50 suspects) would go to Bosnia and Herzegovina, three 
(involving about 10 suspects) to Croatia, one (involving 
about six suspects) to Serbia and Montenegro, and one (one or 
more suspects) to Macedonia.  (NB: These would not fall under 
Rule 11bis but would need to be "referred" under an as-yet 
identified mechanism.) 
 
-- Rules of the Road and other cases:  OTP "has identified 
thousands of individual perpetrators in respect of whom some 
evidence has been gathered" but no indictments issued.  With 
respect to these cases, largely drawn from the Rules of the 
Road program, Del Ponte intends to compile a brief supporting 
dossier for local prosecutors, who would have responsibility 
for deciding whether to proceed. 
 
6. (C) One additional category is likely to be controversial. 
 In her written report, Del Ponte suggests, "In order to keep 
with the timeframe set by the Security Council, it will 
probably be necessary to transfer to local courts under Rule 
11bis a greater number of cases (i.e. more than the 12 
involving 22 perpetrators described above), even some 
involving high-level accused."  She is likely to repeat this 
during her oral presentation.  This approach is strongly 
opposed by ICTY President Meron (see septel).  It is also at 
odds with the Security Council's mandate in UNSCR 1503 that 
the Tribunal concentrate on "the most senior leaders 
suspected of being most responsible for crimes within the 
ICTY,s jurisdiction" and transfer "cases involving those who 
may not bear this level of responsibility."  Moreover, the 
successful transfer of cases even at a lower level of 
responsibility depends on the capabilities of local courts, 
about which Del Ponte herself expresses concern.  Del Ponte 
notes "several instances of witness intimidation," and even 
some "murders (of) witnesses due to appear at the ICTY."  In 
her written submission Del Ponte is dubious of the 
institutional capabilities of Balkan courts. 
 
7. (C) Rule 28: Del Ponte is also in conflict with Meron over 
a recent amendment to ICTY Rule 28 that requires judges, 
before confirming an indictment submitted by the OTP, to 
ensure that it involves senior leaders suspected of being 
most responsible for war crimes.  Although the amended rule 
closely tracks the text of paragraph five of UNSCR 1534 and 
is positive step by the judges to implement that provision, 
Del Ponte,s written report alleges that it is contrary to 
the Tribunal statute and inconsistent with her independence. 
Ruch has urged Del Ponte not to reiterate this criticism in 
her oral remarks because he believes it will invite the 
Council to expressly reject her interpretation and voice 
support for the amendment.  (Comment:  While we are 
reasonably confident that Del Ponte will heed Ruch,s sound 
advice, it is important for the USG and other Council members 
to express strong support for the Judge,s implementation of 
the UNSCR 1534 through the recent rule amendment if she 
persists in questioning it. End comment.) 
 
8. (C) Budget Crisis: Del Ponte will report that the ICTY 
budget freeze, member-state arrears and a cash-flow crisis 
are having a significant impact on both OTP morale and its 
ability to meet completion targets.  The budget freeze has 
made the contract status of many staff uncertain, resulting 
in many of the best and most experienced individuals looking 
for work elsewhere.  The current prohibition on hiring has 
meant that OTP has been unable to replace lost staff.  Del 
Ponte will undoubtedly raise this budget crisis as an element 
that is undermining her ability to implement the completion 
strategy. 
 
9. (C) State Cooperation with the ICTY:  Del Ponte will 
assess the level of cooperation she is receiving from Zagreb, 
Sarajevo/Pale and Belgrade, much as she did in her written 
report.  Del Ponte is pleased with the cooperation OTP is 
receiving from Croatia, stating that she is "convinced (that) 
the Croatian government is currently doing everything it 
can."  Del Ponte, however, will note that Zagreb has still 
been unable to arrest Ante Gotovina, and she plans to use her 
statement before UNSC to set a deadline for Croatian success 
of six months, phrased as "before my next visit to this 
body."  In Bosnia and Herzegovina OTP notes "increased 
activities by OHR and SFOR aimed at arresting ICTY fugitives" 
but laments the lack of success thus far.  Her criticism will 
be phrased by reference to "authorities in BiH," rather than 
just Republika Srpska because, Ruch says, she wants to 
implicitly include SFOR in her criticism.  Serbia and 
Montenegro represents, in her view, the least obliging Balkan 
state as it "has practically suspended any cooperation with 
the Tribunal."  Her oral report will be "a bit stronger" than 
her pointed criticism of SAM in her written report, where she 
states that over 100 requests for documents and 50 requests 
for waivers are outstanding," and that the authorities "have 
proven through their behavior in the recent months that they 
are not ready to execute (ICTY) arrest warrants."  She 
concludes that "Serbia and Montenegro is therefore in breach 
of its international legal obligations." 
 
10. (C) Russia: In a real break from her written report, Del 
Ponte may also raise the possibility that some fugitives are 
in hiding in Russia, suggesting the collusion of Moscow 
authorities.  According to Ruch and Chief of Investigations 
Patrick Lopez-Terez, OTP has received information that 
several indictees are in Russia and two actually have known 
addresses in Moscow.  She will tell the Council that she has 
informed the Russian authorities of this intelligence and is 
"awaiting their response."  (Comment: It remains unclear if 
this statement will make it into the final speech.  End 
Comment.) 
 
------------ 
Comment 
------------ 
 
11. (C) One needs to be prepared for any number of 
eventualities when Carla Del Ponte makes public appearances 
because she often departs from the script.  Nonetheless, it 
is possible to anticipate several areas where a U.S. 
intervention could be warranted.  These include (1) a 
restatement of the U.S. opposition to the transfer of senior 
figures to domestic jurisdictions for trial; (2) support, if 
the issue is joined, of the recent amendment of Rule 28 so 
that the judges can verify that new indictments are indeed of 
senior level individuals most responsible for war crimes; (3) 
the continued U.S. concern regarding the non-cooperation of 
various governments in the region; (4) a welcome of OTP's 
announcement that it will meet the end of 2004 deadline for 
the end of investigation and the various initiatives OTP and 
President Meron have undertaken to improve efficiency of the 
ICTY process; and (5) our continuing commitment to the ICTY 
financially and concern about the perilous budget situation 
and its impact on the ability of the Tribunal to fulfill its 
mandate. 
SOBEL