US embassy cable - 04THEHAGUE3323

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 003323 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS; 
EUR/SCE - GREGORIAN/MITCHELL, L - LAHNE/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: TRIBUNAL RESISTS UN/GC EFFORT THAT WOULD 
DELAY TRIALS 
 
Classified By: Legal Counselor Clifton M. Johnson per 1.5(d). 
 
1. (C) Summary: President Theodor Meron of the International 
Criminal Tribunal for the former Yugoslavia (ICTY) told 
Embassy legal officers on December 21 that the UN Secretariat 
is resisting his efforts to appoint two ad litem judges to 
trials in dire need of immediate appointments.  Meron shared 
a letter from Assistant Secretary General for Legal Affairs 
Ralph Zacklin in which Zacklin says he "would not feel able 
to advise the Secretary-General to proceed to appoint" the 
two judges at this time.  Meron has responded by noting that, 
if the Tribunal is to remain on the completion strategy 
targets, there is no alternative to making these appointments 
now.  If the appointments are not made, two key trials could 
slip by six months.  Meron is consulting with other P-5 
representatives in The Hague and believes that support from 
the USG to reverse Zacklin's position would be of great 
assistance.  (Meron-Zacklin correspondence faxed to IO, S/WCI 
and L.)  End summary. 
 
2. (C) In similar letters dated December 14, President Meron 
requested that UNSYG Annan appoint ad litem judges in 
Prosecutor v. Krajisnik (from which a permanent judge 
recently stepped down) and Prosecutor v. Halilovic (expected 
to commence in late January).  (NB: Article 13 ter of the 
Statute of the Tribunal requires the President to request 
such appointments of the UN Secretary General.)  ASG Zacklin 
resisted Meron's request in a letter dated December 17.  He 
argued that because the subject trials are not expected to be 
completed by the expiration of the ad litem judges' terms, in 
June 2005, he would first want the Security Council and 
General Assembly to extend the terms of the judges.  He also 
makes an extended argument suggesting an appointment could 
not be made to the Krajisnik trial before the trial and 
appeals chambers resolve the question of whether a substitute 
judge may, in any event, sit on the trial without it starting 
over from the beginning. 
 
3. (C) Meron shared with embassy legal officers his response 
to Zacklin, dated December 21.  His response notes that 
Zacklin's approach would, in all likelihood, result in 
significant delay (he estimates six months) of both trials, 
leading to an interruption in the progress of the ICTY 
completion strategy.  He also notes that the Tribunal and 
UNSYG Annan have repeatedly authorized similar ad litem 
appointments in the past, appointing judges to trials as the 
need arises and addressing later, when the end date of a 
trial is clearer, the question of extension of terms. 
Indeed, at this time it is wholly speculative as to when the 
Krajisnik and Halilovic trials are likely to end, making it 
impossible to predict the appropriate length of an extension. 
 Meron further advised embassy legal officer on December 22 
that the Krajisnik defense team has decided not to appeal the 
appointment of a substitute judge in the case, thus removing 
one of Zacklin's principal objections to appointment of an ad 
litem to that trial chamber.  Meron also noted that Zacklin's 
boss, Under Secretary General for Legal Affairs Nikolas 
Michel, had been left completely in the dark by Zacklin's 
approach; in turn, Meron suggested that Michel may be 
sympathetic to the request for the ad litem judge 
appointments. 
 
4. (C) Comment: Meron has the much better argument over 
Zacklin in this dispute: delay in appointing the two ad 
litems would undoubtedly delay the trials and thus undermine 
the completion strategy, while appointing the judges now in 
no way interferes with the Security Council's discretion to 
extend the appointments when that becomes necessary (as it 
likely will).  Zacklin's approach is neither legally required 
nor does it make practical sense -- why distract the SC or GA 
with an issue that does not require their action now and, 
given that ICTY trials usually take a year or more, what 
alternative does the ICTY have to using ad litems in such 
cases?  Indeed, given the weight of argument in Meron's 
favor, one wonders whether this is less a case of a genuine 
legal question being raised than another manifestation of 
Zacklin's antipathy towards the ad hoc war crimes tribunals. 
At any rate, U.S. support for Meron's position, together with 
support from other P-5 representatives (nb: we understand 
that the UK will be making such an approach to Zacklin or 
Michel), would bolster his arguments on the merits.  Embassy 
believes that such an approach to Michel, aligning the USG in 
particular with the arguments about the damage to the 
completion strategy, would help ensure that UNSYG Annan makes 
these appointments without undue delay.  End comment. 
SOBEL