US embassy cable - 03THEHAGUE1392

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 001392 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/MILLER, EUR - JONES, L/EUR - 
LAHNE, DRL, INR/WCAD - SPRIGG 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY 
TAGS: PREL, PHUM, BK, HR, SR, NL, ICTY 
SUBJECT: ICTY: SENIOR OTP OFFICIALS DOWNBEAT ON "NEW ERA" 
IN SAM/ICTY COOPERATION 
 
REF: BELGRADE 1158 
 
1.  (U)  CLASSIFIED BY:  Clifton M. Johnson, Legal Counselor. 
 Reason: 1.5(D) and 1.6. 
 
2.    (C)   Summary.  According to Chief of Investigations 
Patrick Lopez-Terres of the International Criminal Tribunal 
for the Former Yugoslavia (ICTY), cooperation with Belgrade 
authorities has not significantly improved since December. 
Despite the positive press that accompanied Chief Prosecutor 
Carla Del Ponte's recent visit to Belgrade, Lopez-Terres 
maintains that Serb authorities were still responding to 
requests for documents and requests for waivers for witnesses 
only under strong pressure from the ICTY if at all.  Del 
Ponte,s Political Adviser, Jean-Daniel Ruch, provided a 
similar, downbeat, assessment, suggesting that the new era in 
SAM/ICTY cooperation may be short-lived unless the OTP 
quickly sees tangible results.  End summary. 
 
3.  (C) Lopez-Terres, who accompanied Del Ponte on her recent 
visit, refused to 
identify the exact number of outstanding requests except to 
say that there were 
"tens of requests" outstanding and that many were 
substantive.  He also 
indicated that the Prosecutor was still locked in a fight 
with the Serbs regarding a so-called Rule 54 bis motion 
(Note:  Rule 54 bis is used by the Prosecutor to request an 
order compelling a State to produce documents or information. 
 End note).  Lopez-Terres cited the fact that the Prosecution 
had to resort to Rule 54 bis coupled with the fact that there 
had been no movement on this issue by the Serbs since 
December as evidence of continued Serb intransigence. 
 
4.  (C)  Lopez-Terres also complained bitterly about the Serb 
attitude towards 
fugitive war criminals.  Exasperated, he stated that the 
Serbs seemed to 
believe that the arrest and transfer of Veselin Sljivancanin 
-- wanted for the 
Vukovar massacres -- would somehow obviate the need for the 
Serbs to arrest and 
transfer any of the other fugitive war criminals, many of who 
the OTP believes are hiding in Serbia. 
 
5.  (C)  Lopez-Terres did admit that there had been some 
progress, particularly 
on the Serb commitment to set up its own war crimes court. 
He indicated, 
however, that this was clearly a long-term effort that was 
only now in the 
conceptual stage.  He, in turn, was more focused on the 
requests, including 
requests for access to state archives, that had yet to be 
answered by Serb 
authorities.  The failure to answer these requests, he 
maintained, and, in particular, the failure to grant the 
waivers necessary for some witnesses to testify were damaging 
the Prosecutor's ability to complete investigations and 
conduct trials. 
 
5.  (C)  When asked by an embassy legal officer to square 
positive local and 
international press reporting of Del Ponte's recent visit 
with his own very 
negative assessment, Lopez-Terres at first dodged the issue 
entirely, clearly 
not wanting to be put in a position where he was 
contradicting the Prosecutor. 
When pressed, however, he resorted to a middle ground, 
suggesting that the 
press had made more of the statements than was warranted. 
 
6.  (C)  Political Adviser Ruch sounded a similarly downbeat 
note.  He bluntly noted that despite the "nice atmosphere" 
and assurances flowing from the meetings, there had been "no 
change" in Serb cooperation toward the ICTY.  Tracking many 
of points raised separately by Lopes-Terres, he first 
highlighted the lack of progress in arresting and 
transferring Mladic and Sljivancanin.  While conceding that 
the transfer of Radic was a positive step, he was dismissive 
of ongoing efforts to transfer Stanisic and Simatovic noting 
that these transfers were in the SAM,s interest and required 
little political will. 
 
7.  (C)  With respect to document transfers and testimony 
authorization, Ruch similarly noted that while the OTP and 
SAM had reached an understanding on a process for giving the 
OTP access to the documents it needed in exchange for an OTP 
commitment to support appropriate protective measures aimed 
at preventing the shared documents from being used against 
SAM in the ICJ case, the process itself was "too cumbersome" 
and was already showing signs of not working.  He explained 
that under the agreed approach, OTP would identify specific 
documents of interest, SAM would then locate and show them to 
OTP investigators, OTP would then identify the specific 
documents or excerpts that they wished to introduce as 
evidence, SAM would then consider and request protective 
measures, the OTP would then confirm that it could support 
the requested protective measures, at which point an internal 
SAM process would review and approve the documents for 
release.  Ruch noted that as a first test of this process the 
OTP had immediately delivered to SAM a request for access to 
certain documents but that SAM had yet to respond and move 
the process to the second step by providing access to OTP. 
Given this situation, the OTP intended to press forward with 
an order compelling production under Rule 54 bis. 
 
8.  (C)  Ruch summed up by stating that the OTP believed 
there was "no change" in Serb cooperation with the ICTY and 
that it was "the same" as before Del Ponte,s recent trip to 
the United States.  Underscoring the point, he passed on a 
copy of May 23 letter to the Secretary from five members of 
Congress which stated that progress towards meeting 
certification requirements "remains insufficient."  He 
intimated that the OTP had been involved in the letter and 
shared its assessment. 
 
9.  (C)  Comment:  Lopez-Terres and Ruch are Del Ponte,s 
closest confidants on substantive matters in the OTP.  As 
such, their uniform emphasis on the negative aspects of 
Belgrade,s cooperation are a striking and surprising 
contrast to the upbeat tone offered by Del Ponte in her 
public statements following her Belgrade visit (See Reftel). 
While Lopez-Terres was very careful not to directly 
contradict Del Ponte's public statements, it was also clear, 
from Lopez-Terres' day-to-day, operational standpoint, that 
little of substance had changed; that it was, in Lopez-Terres 
own words, "business as usual" with Serb authorities.  One 
explanation for the divergence is that Del Ponte is simply 
out of touch with actual developments on the ground with 
respect to SAM cooperation.  More likely, given the sources, 
the comments of Lopez-Terres and Ruch track her own view and 
indicate that her positive public statements were a 
calculated effort at seeing whether a change in the 
atmospherics of the SAM/ICTY relationship might deliver 
better results than her previous more combative approach. 
Given the comments of those closest to her on these issues, 
it appears that this honeymoon will be short-lived unless the 
SAM acts quickly to satisfy an impatient OTP.  End Comment. 
SOBEL