US embassy cable - 03THEHAGUE2002

C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002002 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER, EUR - ROSSIN, EUR/SCE - 
STEPHENS/GREGORIAN, L/EUR - LAHNE, IO/UNP - WARLICK, 
INR/WCAD - SEIDENSTRICKER/MORIN, USUN FOR ROSTOW/WILLSON 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY 
TAGS: PREL, PHUM, BK, HR, SR, NL, ICTY 
SUBJECT: ICTY: SENIOR PROSECUTORS PUSH FOR PLEA AGREEMENTS 
AND A "TRANSITION STRATEGY" IN IMPLEMENTATION OF THE 
COMPLETION STRATEGY 
 
REF: SECSTATE 230045 
 
Classified By: Deputy Legal Counselor David Kaye, reasons 1.5 (d). 
 
1. (C) Summary: Prosecutors at the International Criminal 
Tribunal for the Former Yugoslavia (ICTY) successfully 
negotiated four plea agreements during the three months that 
ended with the plea of Darko Mrdja on July 24.  According to 
ICTY Chief of Prosecutions Michael Johnson, the plea 
agreements are not one-off affairs but an important part of 
the prosecutors' efforts to implement the ICTY completion 
strategy.  Johnson also spoke hopefully about implementing a 
"transition strategy" and working with Balkan players to 
transfer cases to national jurisdictions, but emphasized that 
work on "transitioning" has not been at the top of the chief 
prosecutor's agenda and has therefore been shortchanged in 
internal planning.  While this approach is just one part of 
the Tribunal's efforts, Johnson's overview provides insight 
into one way in which the Tribunal will try to implement the 
tight schedule of the completion strategy.  End summary. 
 
2. (C) The July 24 guilty plea by Darko Mrdja for his role in 
the Mt. Vlasic massacre in 1992 capped an active three months 
in which three other indictees pled guilty in agreements with 
the ICTY prosecutors.  All four indictees can be 
characterized as below the standard of senior-level 
perpetrators: two mid-level officers involved in the 1995 
Srebrenica massacres (Nikolic and Obrenovic), a guard at the 
Keraterm camp (Banovic) and a police officer (Mrdja).  At 
least a dozen -- and potentially up to twenty -- indictees at 
the pre-trial or trial stage may be characterized as 
mid-level or lower-level perpetrators of crimes within the 
ICTY's jurisdiction.  It is this general group of indictees 
that is targeted by senior prosecutors for plea negotiations. 
 They tend to be cases which have relatively narrow crime 
bases, with limited witnesses and limited goals, and they are 
therefore envisioned as "quick" prosecutions that can be 
handled in a few months each.  (Note: Getting witness lists 
reduced, indictments narrowed and prosecution cases shortened 
have been major goals of judicial chambers, and the jury is 
still out on whether the Office of the Prosecutor (OTP) is 
succeeding in this regard.  End note.) 
 
3. (C) Chief of Prosecutions Michael Johnson explained that 
he and senior prosecutors were engaged in a "marble stacking 
exercise," in which cases are generally ranked in order of 
priority and readiness for a plea negotiation.  Plea 
negotiations have worked most effectively with respect to 
indictees whose trials are scheduled to take place in the 
near term, and Johnson said that he and other senior staff 
have worked with ICTY judicial chambers to "fast track" such 
cases.  (Note: The Mrdja case is a good example: focused on a 
massacre on a particular date in 1992 involving a particular 
perpetrator, the prosecution case was anticipated to last not 
more than a month.  On July 9 a trial date of July 29 was 
scheduled; plea negotiations intensified and an agreement was 
reached on July 24. End note.)  Once an indictee pleads out, 
the next marble/case drops into play, gets scheduled for 
trial, and plea negotiations are sought.  Not all indictees 
are interested, but, in this way, Johnson said that senior 
prosecutors hope not only to clear the docket of cases that 
fall below completion strategy criteria but also encourage 
the mid- and low-level perpetrators to testify against the 
leadership -- a process that, in itself, can help to reduce 
the number of witnesses and resulting time necessary to put 
on prosecution evidence in those big cases.  Johnson argued 
that the Tribunal would get more out of plea agreements than 
it would out of the simple transfer of the same indictees to 
national jurisdictions for trial under Rule 11bis of the 
Tribunal Rules of Procedure and Evidence.  Meanwhile, he 
said, it would ease the potential strain on the special war 
crimes chamber envisioned for Sarajevo by reducing the number 
of cases it would have to handle in its early stages. 
 
4. (C) Johnson suggested that other factors also contribute 
to the plea agreements.  He believes, for instance, that 
consideration of the special war crimes chamber is forcing 
indictees to ask themselves whether they would rather spend 
prison time "in Sweden or Tuzla."  It is partly for this 
reason that Johnson believes that the international community 
should talk of a "transition strategy," which suggests that 
perpetrators will find no safe haven from prosecutions, 
rather than a "completion strategy," which may give the wrong 
impression of a closing-out of files against alleged 
perpetrators.  OTP's conviction rate is also impressive, 
making indictees believe that the odds are against them if 
their cases go to trial.  Moreover, it is hoped that the 
recent life sentence imposed on Milomir Stakic (septel) for 
his involvement as a Bosnian Serb civilian leader in the 
Prijedor region in 1992 -- more than the forty-six years 
imposed on the much more senior Bosnian Serb General Krstic 
two years ago -- will concentrate the minds of similarly 
culpable indictees who may believe they are choosing between 
a deal and life in prison.  OTP's relatively recent emphasis 
on ensuring that indictments are narrowly-drawn and 
trial-ready should, Johnson hopes, contribute to their 
ability to negotiate plea agreements early in the pre-trial 
schedule. 
 
5. (C) Johnson tried to make clear that he, Deputy Prosecutor 
Graham Blewitt and the prosecutorial staff generally are 
committed to achieving the completion strategy, reflected in 
part by the focus on plea agreements.  He noted that all of 
the recent pleas have involved not only senior trial 
attorneys with years of courtroom experience but also junior 
prosecutors hoping to set foot in court for the first time. 
It is the junior rank-and-file one would expect to be 
personally disappointed in the completion strategy, but 
Johnson emphasized that even such individuals are firmly 
"with the program" and worked hard to make the recent plea 
agreements happen.  He understood as natural the concern than 
trial attorneys want to go to trial and that investigators 
want to see their targets indicted and detained, but 
according to him it is less important to these people where 
such perpetrators are tried than that they are in fact tried. 
 
6. (C) In Johnson's view, the elements outlined above -- plea 
agreements and the fast-tracking of cases -- need to be 
supplemented by a focus not just on the fact of transferring 
cases to national jurisdictions but how that would occur. 
Because, in his view, Chief Prosecutor Del Ponte has not been 
a champion of these elements, he believes they need the 
strong encouragement of the international community.  Johnson 
said that the chief prosecutor, for instance, has 
consistently had problems with plea agreements, rejecting the 
advice of her senior prosecutors to accept one draft 
agreement (which instead is going to trial) because it 
recommended a sentence of fifteen to twenty years rather than 
twenty to twenty-five.  Echoing what embassy legal officers 
have heard from contacts in the Registry and chambers, 
Johnson noted that Del Ponte has disallowed her staff to 
participate in discussions aimed at determining how 
indictees, indictments and other investigative files might be 
transferred to national jurisdictions.  As a result, he said, 
almost no work has been done to prepare the groundwork for 
the transfer of cases from the ICTY, a central feature of the 
completion strategy. 
 
7. (C) Comment: Plea agreements are not particularly popular 
among victims groups, who tell OTP, for instance, that 
Obrenovic and Nikolic are getting lenient treatment despite 
their role in the Srebrenica massacres that took thousands of 
lives.  The fact that senior prosecutors nonetheless are 
pursuing such agreements suggests an understanding of the 
resource pressures brought to bear by the completion 
strategy.  Further agreements are likely to be reached in 
coming weeks and months, and we suspect that the initial 
targets will be in the imminent-trial cases, such as the 
Dubrovnik case.  To Johnson's mind, the international 
community's encouragement of such agreements -- for instance, 
as a possible preambular paragraph in reftel's draft UN 
Security Council resolution -- would provide additional 
assistance to those in OTP trying to map out a route to 
achieving the completion strategy target dates.  End comment. 
SOBEL