US embassy cable - 04THEHAGUE1599

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001599 
 
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 JUNE 29 MERON PRESENTATION TO 
SECURITY COUNCIL 
 
REF: THE HAGUE 1592 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (C) Summary.  In his June 29, 2004 address to the Security 
Council, the President of the International Criminal Tribunal 
for the Former Yugoslavia (ICTY), Judge Theodor Meron, will 
focus on the two competing sides of the completion strategy: 
on the one, the Tribunal,s heavy workload and his 
initiatives to work toward completion; on the other, the 
impending hurdles to meeting the strategy,s targets.  Meron, 
like Del Ponte (see reftel), will argue that unless some of 
the hurdles to implementation are removed, meeting the 2008 
deadline for the completion of all trials will be difficult, 
if not impossible.  The readiness of the Sarajevo war crimes 
chamber is among the foremost variables on his mind, and 
following on his recent visits to Sarajevo with OHR, he will 
emphasize its importance to the completion strategy. 
Further, like Del Ponte, he will stress the seriousness of 
the Tribunal,s budget and staffing concerns.  End Summary. 
 
2. (C) President Theodor Meron will speak on June 29 
immediately prior to Chief Prosecutor Carla del Ponte 
presentation (a preview of which was reported reftel). 
According to Meron and his chief of staff, Larry Johnson, the 
address will not differ substantially from his May written 
report to the Security Council.  Meron will emphasize at the 
outset that the Tribunal is working at full capacity, holding 
six trials simultaneously.  But while Meron,s presentation 
will demonstrate the commitment of the Tribunal, at all 
levels, to implementing the completion strategy, a consistent 
theme will be that maintaining the current level of 
efficiency and productivity depends on a number of key 
variables beyond the Tribunal,s control:  from regional 
cooperation and apprehension of fugitives to the ongoing 
budget crisis and the development of the Sarajevo war crimes 
chamber. 
 
4. (C) Transfer of Cases to the Region: Among Meron,s major 
efforts is his work to make viable the potential transfer of 
low- and medium-level indictees to competent national 
jurisdictions, particularly Bosnia.  He is accomplishing this 
by a variety of mechanisms, including personally pushing for 
such efforts to succeed and ensuring that ICTY rules and 
procedures will allow for transfers to proceed smoothly.  One 
example of the latter is the recent amendment of Rule 11 bis, 
which enables a chamber to transfer an ICTY case (i.e., a 
confirmed indictment) to another competent national 
jurisdiction.   This month, the chambers amended Rule 11 bis 
to expand the scope of potential countries to which cases can 
be transferred, by allowing the referral to any countries 
having jurisdiction andwilling and adequately prepared to 
accept such a case.  Referral to Balkan states remains 
presumptive, but Rule 11 bis now suggests that other 
jurisdictions may also wish to prosecute or be asked to do 
so.   The revised Rule 11 bis also expresses a requirement 
that the case be transferred only where it can be tried in 
"accordance with due process and international human rights 
norms," highlighting the importance of building effective and 
fair trial capacity in the region.  Meron remains seriously 
concerned that local jurisdictions are not yet ready to try 
cases at international standards.  In light of Del Ponte,s 
possible push for transfers soon -- even in advance of 
jurisdictions being ready to receive them -- this could put 
Meron and her at loggerheads. 
 
5. (C) With respect to Bosnia and Hercegovina (where Meron 
visited week of June 14), he will echo UNSCR 1503, which 
called for "the expeditious establishment"of a special 
chamber within the State Court (competent to receive cases 
from the ICTY) of lower- or intermediate-rank accused"  The 
ICTY has been working with local authorities to establish a 
the special chamber in Sarajevo, but the slow pace to date -- 
in particular the lack of appropriate detention facilities -- 
remains a serious concern to Meron.  With respect to Croatia, 
Meron will point to concerns but also note the "cause for 
optimism" that Zagreb is heading in the right to direction. 
Serbia and Montenegro represents the most problematic case 
generally in terms of ICTY cooperation, and Meron is likely 
to note that the OSCE recently held that "the national 
judiciary lacks full capacity to conduct war crimes trials in 
accordance with universally adopted standards."  Still, as in 
Croatia, ICTY is working to increase judicial capacity, 
recently hosting a seminar with seven judges of the State,s 
"Special Court for War Crimes." 
 
6. (C) Rule 28 Amendment: Meron is committed to ensuring that 
the Tribunal remain focused, as required by UNSCR 1534, on 
senior-level alleged perpetrators.  This was the impetus for 
his amendment of Rule 28.  Yet, as noted reftel, Del Ponte 
has criticized as an interference with her independence the 
amended Rule 28, which provides for the chambers to verify 
that a proposed indictee is a senior-level person consistent 
with the UNSCRs 1503 and 1534.  Meron is likely to argue that 
it represents a modest judicial role in certifying 
indictments, necessary to implement UNSCR 1534, and that it 
has already proven to operate efficiently.  His raising of 
the issue makes it possible that, despite contrary 
protestations, Del Ponte will criticize it. 
 
6. (C) Completion strategy barriers: Meron will highlight, as 
his report did, some of the efforts at streamlining the 
appellate and interlocutory processes and the efforts to 
ensure that chambers are working at full capacity (six trials 
simultaneously).  All in all, these efforts are crucial to 
keeping the Tribunal on pace to meet the completion strategy 
goals.  In addition to the transfer of cases under Rule 
11bis, as described above, Meron will also identify three 
categories of factors that could undermine his ability to 
implement the Completion Strategy: 
 
-- Further Indictments and Indictees in Custody: Meron 
believes that the Tribunal can meet its target of completing 
all current trials and trials of those in custody or on 
provisional release by the end of 2008.  Provided that key 
indictees are apprehended soon, so as to permit their cases 
to be joined to those of other accused, the Tribunal could 
also try some of these individuals with no more than modest 
slippage in the timeframe.  Beyond that, however, the 
additional indictments and the seventeen publicly-known 
fugitives pose a serious problem to the Tribunal.  Absent a 
significant number of guilty pleas and the establishment of 
domestic courts that can receive and fairly try a number of 
these cases, Meron will note the difficulties of achieving 
the 2008 target with such a caseload. 
 
-- Budget: Meron will say that continuation of the current 
budget crisis could prove "disastrous" for the Tribunal. 
Combined with steady attrition of experienced members of the 
Chambers (leaving due to insecure contracts or inability to 
renew contracts), the current hiring freeze has created a 
shortfall of adequate personnel. 
 
-- Judge turnover: Meron keeps a careful watch on the 
possible disruption of ongoing proceedings because of the 
non-election of some judges at the expiry of terms in 
November 2005.  He warns that if judges are not reelected, 
significant time will be lost due to the need to familiarize 
new jurists with cases and some cases would need to be 
restarted from scratch.  UNSYG Annan has, however, agreed 
with his proposal to move elections up to November 2004, 
providing greater lead time to deal with case assignment 
issues caused by changes in the judge,s rooster. 
 
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Comment 
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8. (C) Meron,s report and oral submission provide a detailed 
and accurate perspective on the work of the Tribunal.  His 
initiatives, priorities, and concerns track closely with USG 
thinking.  His statement will also be largely in line with 
that made by the Chief Prosecutor.  They are both in 
agreement in terms of the challenges that could jeopardize 
the ability of the Tribunal to meet completion targets and 
both skeptical about meeting the 2008 date.  Responsibility 
for such challenges, however, is another matter, with Del 
Ponte believing that her completion strategy job is largely 
finished when the 2004 investigation target passes.  The most 
significant difference between the two presentations will 
revolve around the propriety/timing of transferring cases to 
local jurisdictions -- a process which the OTP appears ready 
to commence even in advance of domestic court systems that 
are up to the task to receive the cases.  Del Ponte,s hope, 
our contacts tell us, is that by proposing a large number of 
cases to be transferred, she can wash her hands of the issue 
and leave the burden (and blame) on others (i.e. the trial 
chambers that could not approve such transfers absent ready 
courts, the countries in the region that lack the courts, and 
the international community for failing to ensure their 
readiness) for failing to make the transfers proceed.  Meron 
believes that such an approach is irresponsible (and could 
potentially leave detainees in a legal limbo that might 
violate international norms), and that the ICTY,s energy 
should continue to be focused on helping bring about the 
changes on the ground that are needed in the Balkans before 
such transfers can begin.  The issues identified reftel for 
consideration in a USG response to Del Ponte,s presentation 
will be just as relevant for responding to Meron,s 
presentation.  End comment. 
SOBEL