VZCZCXYZ0033
RR RUEHWEB

DE RUCNDT #1174/01 3482104
ZNR UUUUU ZZH
R 142104Z DEC 07
FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC 3346
INFO RUEHGG/UN SECURITY COUNCIL COLLECTIVE
RUEHDR/AMEMBASSY DAR ES SALAAM 0279
RUEHTC/AMEMBASSY THE HAGUE 8968

UNCLAS USUN NEW YORK 001174 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: UNSC ICTY ICTR PHUM PREL
SUBJECT: YUGOSLAV AND RWANDA WAR CRIMES TRIBUNALS PRESENT 
JOINT PAPER TO SC WORKING GROUP ON AD HOC INTERNATIONAL 
TRIBUNALS 
 
REF: STINCHCOMB-DONOVAN EMAIL 12/11/07 EMAIL 
     (INSTRUCTIONS) 
 
¶1.  (U) SUMMARY: The International Criminal Tribunal for 
Yugoslavia (ICTY) and the International Criminal Tribunal for 
Rwanda (ICTR) presented their joint paper on residual 
functions at a December 11 meeting of the Security Council 
Working Group on Ad Hoc International Tribunals (WG).  The 
main topics discussed were: residual mechanisms and the 
proposed roster of judges; referral to national 
jurisdictions; in absentia trials; archives; witness 
protection; and cooperation with the International Criminal 
Court (ICC).  USUN drew on the points contained in reftel for 
its interventions.  END SUMMARY. 
 
¶2.    (U) In his brief remarks to the WG, ICTY President 
Fausto Pocar noted that the joint paper was the third version 
of its kind and that it reflected WG views in terms of 
structure and content.  He emphasized the need to continue 
inter-judicial cooperation between the Tribunals and domestic 
courts once the Tribunals close.  As an example of 
inter-judicial cooperation, he pointed to the recent 
amendment of Rule 75 of the ICTY rules of procedure, which 
enables judicial authorities in other jurisdictions to 
directly petition the Tribunal for access to confidential 
material.  He also discussed the importance of establishing a 
witness protection mechanism once the Tribunals close. 
Additionally, he stressed that the remaining fugitives should 
not be allowed to escape justice because of deadlines 
established by the Completion Strategies, and that a 
structure needs to be put in place that would allow 
prosecution upon closure of the Tribunals. 
 
¶3.    (U) ICTR President Dennis Byron focused his remarks on 
the recent establishment of an Advisory Committee on 
Archives, which is headed by Justice Goldstone and is 
expected to provide an independent assessment on issues such 
as the preferred number, and location, of archives before the 
next reporting period.  According to Judge Byron, the 
Advisory Committee is already in initial consultations, but 
he asked for Council authorization to initiate discussion 
with varied stakeholders in the Great Lakes Region, including 
non-Council Member States such as Rwanda, regional 
organizations, and civil society groups.  Judge Byron also 
solicited Council views on archives related issues, and he 
indicated a preference for the ICTR archives to remain in the 
Great Lakes Region.  He said that the UN premises in Nairobi, 
Kenya might be a viable option because of potential 
cost-savings. 
 
¶4.    (U) ICTY Deputy Prosecutor Tolbert underlined the 
radically downsized nature of the Tribunal discussed in the 
joint paper, and said that 40% budget cuts have already been 
proposed.  Furthermore, he echoed Judge Pocar's comments that 
the remaining fugitives cannot escape justice because of 
completion timetables, as that would undermine the ICTY's 
work.  He also emphasized that Tribunal cooperation with the 
region is an important part of the Completion Strategy. 
Toward that end, he highlighted some of ICTY's inter-judicial 
cooperation mechanisms.  Additionally, he observed that the 
subject of archives raises a number of complicated issues 
that apply to a range of stakeholders. 
 
¶5.    (U) ICTR Prosecutor Hassan Jallow spoke merely to echo 
Judge Byron's request for Council guidance.  While the ICTY 
Registrar could not attend the meeting, Tribunal 
representatives indicated that he is prepared to have 
bilateral discussions with interested parties at a later 
date.  The ICTR Registrar underlined the advisory nature of 
the Archives Committee, stressing that the Council will 
ultimately decide on the structure and location of the 
archives.  He also highlighted the need to address management 
of sentences given that the issue will have long-term 
financial implications. 
 
¶6.    (U) Following the statements by Principals of the two 
Tribunals, Council Members joined the discussion.  The main 
topics discussed were: residual mechanisms and the proposed 
roster of judges; referral to national jurisdictions; in 
absentia trials; archives; witness protection; and 
cooperation with the International Criminal Court (ICC).  In 
response to a question by the United Kingdom, the Principals 
clarified that in terms of residual mechanisms, the report 
envisions a phased-out approach based on downsizing.  Judge 
Pocar said that a roster system for judges, prosecutors, and 
registry staff would avoid the need to maintain an excessive 
structure in place; instead, only a minimal permanent 
structure would be required after closure of the Tribunals. 
 
 
 
¶7.    (U) While the Principals agreed with South Africa on a 
limited role for the international community vis--vis 
capable national jurisdictions, they indicated the need for 
further capacity building in their respective regions. 
Moreover, they reiterated that high-ranking indictees must be 
tried at their respective Tribunals based on relevant Council 
resolutions.  In the case of the ICTY, Judge Pocar and Deputy 
Tolbert stressed that all remaining fugitives were 
sufficiently high level to require trial at the Tribunal, and 
that the ICTY had maximized its ability to transfer cases. 
 
¶8.    (U) Following a Qatari intervention on the validity of 
trials in absentia and the related inaccuracy of paragraph 9 
of the joint paper (which suggests that trials in absentia 
are disfavored), the Principals indicated that they are not 
against such trials as a matter of principle.  They clarified 
that trials in absentia are more common (but not universal) 
in civil law countries.  Regardless, they said that it would 
not be prudent to allow such trials at this stage because of 
the message it would send: the international community is 
looking for an expedient solution and will allow impunity in 
practice. 
 
¶9.    (U) With respect to archives, the discussion reflected 
the dual purpose of archives: to assist in future criminal 
proceedings in domestic courts and to aid in the 
reconciliation process.  While several delegations indicated 
that regional considerations should play a role in 
determining the location of the respective archives, 
accessibility to the materials was also highlighted as an 
important factor in the decision-making process.  Deputy 
Prosecutor Tolbert further recommended digitalization of 
archives. 
 
¶10.   (U) In response to a question Qna, the Principals 
of the two Tribunals underscored the importance of a witness 
protection mechanism once the Tribunals close.  They 
explained that the Tribunals are obligated to provide some 
measure of protection not only because of witness 
expectations, but also because various agreements guarantee 
such a service (i.e., in the case of witnesses who have been 
relocated to third countries).  They suggested that residual 
witness protection could be reduced to one person, and that 
judges would play a very limited role once a witness 
protection regime was established. 
 
¶11.   (U) With some delegations expressing an interest in 
exploring potential cooperation with the ICC, the Principals 
indicated that they would be open to such an arrangement, 
especially with respect to administrative issues.  The 
Principals clarified that the joint paper's discussion of 
potential ICC cooperation may have seemed negative because it 
was based on various assumptions, and that they needed more 
Council direction on the issue.  Judge Byron also suggested 
possible coordination with the UN facilities in Nairobi, and 
sought authorization to engage in initial consultations. 
 
¶12.   (U) Following the discussion between Council members 
and the Tribunals' Principals, the WG met on its own to 
consider some of the issues raised.  The majority of Council 
members indicated that Tribunal Principals should have the 
ability to consult with varied stakeholders, as necessary, in 
order to answer questions posed by the Council.  Members also 
agreed that the WG needed a chairman who would assume the 
role for at least one year.  The UK nominated Belgium for the 
position.  Other members endorsed the nomination, although 
Belgium reacted by saying that instructions from capital were 
needed before the position could be accepted. 
Khalilzad