US embassy cable - 04THEHAGUE1918

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001918 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR/SCE - 
STEPHENS/ENGLISH/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: A PUNISHING WEEK FOR OTP 
 
REF: THE HAGUE 1715 
 
Classified By: Deputy Legal Counselor David Kaye per 1.5(d). 
 
1. (SBU) Summary: It was a punishing week for the Office of 
the Prosecutor (OTP) of the International Criminal Tribunal 
for the former Yugoslavia (ICTY).  On July 28, a trial 
chamber ordered the provisional release of two of the 
highest-ranking members of Slobodan Milosevic's inner circle, 
Jovica Stanisic and Franko Simatovic.  The next day, OTP 
appealed.  On July 29, in a remarkable reversal of one of the 
ICTY's landmark decisions, the appeals chamber reduced the 
sentence of Croatian General Tihomir Blaskic from forty-five 
to nine years, most of which he had already served in ICTY 
detention.  Hours after the decision, President Theodor Meron 
granted Blaskic early release (effective August 2). 
Meanwhile, OTP struggles with the trial chamber and the 
defense to find an appropriate way forward in the Milosevic 
case.  End summary. 
 
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Stanisic and Simatovic 
----------------------- 
 
2. (SBU) On July 28, a trial chamber (Judges Robinson, Kwon, 
Swart) ordered the provisional release of Jovica Stanisic and 
Franko Simatovic, both of whom were senior Serb Ministry of 
Internal affairs (MUP) officials who worked closely under 
Slobodan Milosevic.  Both are charged with senior-level 
involvement in a joint criminal enterprise to commit crimes 
against humanity and war crimes in Bosnia and Croatia between 
1991 and 1995.  Both sought provisional release, which OTP 
opposed.  The Government of Serbia and Montenegro (SaM) and 
of the Republic of Serbia both guaranteed that, should they 
be released, they would be returned by Government authorities 
as required by the Tribunal.  In the case of Stanisic, the 
trial chamber found persuasive several defense arguments, 
including that Stanisic would have surrendered voluntarily 
had he not been in Belgrade custody already (on unrelated 
charges), and that, given the circumstances of Stanisic's 
health, character and readiness to surrender, the SaM's 
guarantee of his return to The Hague had merit.  Similar 
reasons, excluding health and character, were given for 
Simatovic's provisional release.  In both cases, the trial 
chamber said that the seriousness of the crimes was "merely 
one of the factors" to be taken into account.  OTP has 
already appealed the provisional release decisions; given the 
Tribunal's recess, starting August 2, an appeals chamber is 
not expected to rule before the end of August. 
 
3. (SBU) The trial chamber's orders deserve special mention, 
as they impose substantial requirements on Belgrade 
authorities and the defendants.  SaM officials are required 
to take custody of the men at Schiphol Airport in The 
Netherlands and accompany them to Belgrade.  Both men are 
required "to remain within the confines" of Belgrade during 
their release period and "report each day to the police in 
Belgrade."  They are also required "to continue to cooperate" 
with the ICTY and to allow "occasional, unannounced visits" 
by either SaM or ICTY officials.  SaM would bear the costs of 
the defendants' transport, accommodation and security 
expenses, and facilitate communications between the Tribunal 
and the defendants, in addition to the requirement to 
transfer them to The Hague when necessary. 
 
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Blaskic Reversal 
---------------- 
 
4. (SBU) In a 260-plus page decision and several more pages 
in dissent, the Appeals Chamber all but overturned a Trial 
Chamber's judgment of guilt and punishment of former Croatian 
general Tihomir Blaskic, one of the most senior-level 
indictees brought before the Tribunal to date.  Blaskic's 
45-year sentence was reduced to nine years, which -- due to 
more than eight years of time served -- led President Meron 
to reduce the remaining months of the sentence and grant 
Blaskic his freedom as of August 2.  In a stinging rebuke to 
a trial chamber that included Judges Claude Jorda (a former 
ICTY President now on the bench of the International Criminal 
Court) and Mohamed Shahabuddeen (current ICTY appeals judge, 
formerly of the International Court of Justice and a 
well-known figure in international legal circles), the 
appeals panel said the lower chamber's ruling was replete 
with legal, factual and evidentiary errors.  It reversed 
Blaskic's convictions on counts related to crimes against 
humanity (including persecutions, injury and murder), and war 
crimes (including unlawful attacks on civilians and civilian 
objects, killings and causing serious injury, plunder, 
destruction of cultural property). It upheld three counts of 
inhumane/cruel treatment of protected persons related to 
Blaskic's use of detainees both as human shields and as free 
labor for the construction of defensive military 
installations. 
 
5. (C) Citing evidence that had become available to the 
Tribunal following the 1999 death of Croatian president 
Franjo Tudjman (and which came to light after Blaskic's 
trial), and critical of both the lower court's reasoning and 
the OTP's "vague" indictment, the appeals chamber examined 
substantial portions of the case "de novo" -- that is, with 
little or no deference paid to any aspect of the Trial 
Court's holding.  In particular, the Appeals Chamber made 
clear that the new sentence it prescribed was not a revision 
of that mandated by the Trial Chamber, but a complete 
substitution.  One senior prosecutor told embassy legal 
officer of his view that the appeals chamber made a number of 
errors of its own related to a lack of familiarity with the 
case.  They expected a "bad" decision, he said, in part 
because OTP lawyers privately acknowledge that the trial 
chamber decision was weak in many places; they did not expect 
the near-total loss handed down yesterday. 
 
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Severence and Counsel Issues in Milosevic 
----------------------------------------- 
 
6. (SBU) As noted reftel and previously, the Milosevic trial 
chamber is struggling to determine how the defense case can 
proceed in a way that is not susceptible to the fits and 
starts related to the defendant's ill health.  The Tribunal 
appears focused on two potential solutions: the first would 
involve some form of imposition of defense counsel on 
Milosevic; the second would involve a severance of the three 
indictments (Kosovo, Croatia and Bosnia), proceeding one by 
one rather than all at once.  Embassy has obtained OTP's 
submissions to the trial chamber on both issues (emailed to 
L/EUR - Lahne and L/AF - Taft).  With respect to imposition 
of defense counsel, OTP considers the question to be, "how 
does a chamber stop an accused from hi-jacking a trial to his 
or her own agenda . . . while still ensuring that the rights 
of the Accused are respected."  It advocates "the removal of 
the Accused's right to act pro se in all aspects of 
preparation and presentation of his defence."  Because of his 
poor health, he is "unable any longer to appear without the 
assistance of counsel," though OTP grants that he "could 
still be permitted to ask questions and make submissions in a 
regulated manner."  OTP provides an interesting and thorough 
review of practice on these questions in international 
tribunals and domestic courts. 
 
7. (SBU) OTP makes an equally strong (if briefer) argument 
against severance of the Milosevic indictments.  Its main 
argument is somewhat defensive, leading with the position 
that the trial has not become unmanageable and that the 
amount of time devoted to the trial compares favorably to 
similarly complex cases before national and other 
international jurisdictions.  Severance, in OTP's view, would 
be "premature and may be driven by speculation and an 
excessive concern for appearances not realities."  The 
prosecutors argue that severance "now would be to make an 
irreversible error," one that undermines the integrity of the 
trial as a whole.  It also offers a host of practical 
objections, including that severing the Kosovo indictment -- 
and failing to reach the Bosnia indictment -- would mean that 
Milosevic was never able to disprove charges of genocide 
lodged against him.  The amici curiae (friends of the court) 
make an equally strong argument against severance, saying 
that they are relaying Milosevic's objections.  His 
objections, they say, are focused on the fact that the 
Prosecution has presented a case alleging his overall efforts 
to create a "greater Serbia" involving Kosovo, Croatia and 
Bosnia; he must thus be allowed to address that case in the 
way it was put against him.  They also note a variety of 
considerations of fairness, burden and practicality that 
argue against severance. 
 
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Comment 
------- 
 
8. (C) To be sure, OTP suffered two setbacks this week in the 
Stanisic/Simatovic provisional release and the Blaskic 
appeals decision, deepening the low morale due to the budget 
crisis and related staffing uncertainties.  But these two 
decisions are interesting in ways that go beyond OTP's 
immediate equities.  First, the provisional release decision 
involved a specific rejection of OTP's argument that Belgrade 
guarantees were insufficient given its current failure to 
cooperate with the Tribunal across a whole range of issues. 
The trial chamber ignored the general claims and instead 
examined closely the individual circumstances of each 
indictee; even more than in past cases, it may be that 
character, acts of cooperation and other issues specific to 
each person are likely to prevail over more general concerns. 
 Second, the Blaskic decision is remarkable not only on the 
substance -- which Embassy legal officers will continue to 
study -- but also in its assertive review of a respected 
trial chamber's decision.  The activist stance of the appeals 
chamber, and the fact that Blaskic is the senior-most 
indictee to be released, promises to impact other ICTY cases 
currently in trial or under appellate review. The connection 
to the Milosevic case is that, from here on out, the trial 
chamber and OTP should expect that every decision of 
importance is likely to get the strict scrutiny -- if not de 
novo review -- of the appeals chamber.  Especially in 
fundamental areas of fairness, reflected in the arguments 
related to counsel and severance in Milosevic, it has become 
clearer that the trial chamber's decisions will play out not 
only in public opinion but in actual judgments of the 
Tribunal itself.  End comment. 
SOBEL