This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001679 
 
SIPDIS 
 
 
DEPARTMENT FOR S/WCI - SCHEFFER/WARRICK, S/SA - O'BRIEN, 
DRL - KOH/SPENCER, L - ANDREWS/MATHESON, L/EUR - LAHNE, 
S/CT - SHEEHAN/BAIR, INR/WCAD - DONAHUE/MORIN, EUR/SCE - 
COUNTRYMAN; 
KIGALI FOR PAGE 
 
 
E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY 
TAGS: PREL PHUM HR SR NL ICTY ICTR
SUBJECT: ICTY: JORDA PROPOSES "AD LITEM" JUDGES TO SPEED 
TRIBUNAL'S WORK 
 
 
¶1.  (U)  CLASSIFIED BY:  ALLEN S. WEINER, LEGAL COUNSELOR. 
REASONS:  1.5(B), (D). 
 
 
¶2.  (U)  SUMMARY:  JUDGE CLAUDE JORDA, PRESIDENT OF THE 
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 
(ICTY), VISITED AMBASSADOR ON TUESDAY, MAY 30, TO PREVIEW 
PROPOSALS HE INTENDS TO MAKE BEFORE THE SECURITY COUNCIL TO 
IMPROVE THE ICTY'S CAPACITY TO TRY CASES MORE SWIFTLY.  THE 
KEY PROPOSALS ARE FOR: (1) THE USE OF "AD LITEM" JUDGES TO 
TRY CASES THAT ARE READY FOR TRIAL; AND (2) DELEGATION OF 
CERTAIN PRE-TRIAL MANAGEMENT RESPONSIBILITIES TO SENIOR LEGAL 
OFFICERS.  JORDA INTENDS FORMALLY TO MAKE HIS PROPOSALS 
BEFORE THE SECURITY COUNCIL IN THE SECOND HALF OF JUNE. 
EMBASSY BELIEVES JORDA'S PROPOSALS ARE A SENSIBLE MEANS OF 
ADDRESSING AN INCREASINGLY SEVERE BACKLOG PROBLEM, AND 
RECOMMENDS THAT WASHINGTON SERIOUSLY CONSIDER SUPPORTING THE 
PROPOSALS.  END SUMMARY. 
 
 
¶3.  (U)  ICTY PRESIDENT CLAUDE JORDA VISITED AMBASSADOR ON 
TUESDAY, MAY 30, TO PREVIEW HIS REPORT ON THE OPERATION OF 
THE TRIBUNAL.  AFTER BECOMING PRESIDENT IN NOVEMBER 1999, 
JORDA INITIATED A REVIEW INTO THE TRIBUNAL'S OPERATIONS AND 
WAYS OF ENHANCING ITS EFFICIENCY, AND MORE IMPORTANTLY, OF 
ACCELERATING THE RATE AT WHICH TRIALS ARE CONDUCTED.  JORDA 
SUBMITTED THE REPORT ON BEHALF OF THE ICTY'S JUDGES TO U.N. 
SECRETARY-GENERAL ANNAN ON MAY 12.  JORDA SAID THAT HE 
 
SIPDIS 
INTENDS FORMALLY TO MAKE HIS PROPOSALS BEFORE THE SECURITY 
COUNCIL IN THE SECOND HALF OF JUNE. 
 
 
¶4.  (U)  IN HIS MEETING WITH AMBASSADOR, JORDA SAID THAT THE 
JUDGES HAD REVIEWED THE TRIBUNAL'S EXISTING METHODS OF WORK 
AND HAD CONSIDERED CHIEF PROSECUTOR DEL PONTE'S ESTIMATES OF 
THE ADDITIONAL INVESTIGATIONS SHE INTENDS TO PURSUE AND THE 
ADDITIONAL INDICTMENTS SHE INTENDS TO SIGN.  JORDA NOTED THAT 
DEL PONTE HAD INFORMED THE JUDGES AT A PLENARY SESSION THAT 
THE OFFICE OF THE PROSECUTOR (OTP) INTENDS TO CONDUCT 36 NEW 
INVESTIGATIONS THAT WILL CULMINATE IN 29 SEPARATE TRIALS 
COVERING SOME 150 INDIVIDUALS.  THIS IS IN ADDITION TO THE 
TRIALS OF THOSE WHO ARE ALREADY IN CUSTODY AND THOSE WHO HAVE 
BEEN INDICTED BUT REMAIN AT LARGE.  THE ICTY'S CURRENT 
STRUCTURE, WITH THREE TRIAL CHAMBERS, LIMITS THE TRIBUNAL'S 
ABILITY TO TRY CASES RAPIDLY.  BASED ON THE RATE OF ICTY 
TRIALS TO DATE AND DEL PONTE'S ESTIMATES, JORDA ESTIMATES 
THAT THE ICTY WILL NOT BE ABLE TO COMPLETE TRIALS (EXCLUDING 
APPEALS) OF ALL INDICTEES UNTIL LATE 2016. 
 
 
¶5.  (C)  MOREOVER, JORDA INDICATED, THE PROBLEM OF LENGTHY 
PRE-TRIAL DETENTION OF INDICTEES AWAITING THE START OF THEIR 
TRIALS IS BECOMING INCREASINGLY SEVERE.  HE ESTIMATED THAT 
WITHOUT CHANGES IN THE ICTY'S MEANS OF OPERATING, THE TRIAL 
OF THE MOST RECENT INDICTEE BROUGHT INTO CUSTODY, DRAGAN 
NIKOLIC, WOULD NOT START UNTIL THE SECOND HALF OF 2002 AT THE 
EARLIEST.  JORDA ALSO SAID THE ICTY HAD POSTPONED PRE-TRIAL 
MANAGEMENT PROCEEDINGS IN THE CASE AGAINST MOMCILO KRAJISNIK 
BECAUSE THERE IS NO AVAILABLE TRIAL CHAMBER; THE JUDGES DID 
NOT WANT TO GET THE CASE READY FOR TRIAL, ONLY TO FIND THAT 
THEY WERE UNABLE TO COMMENCE THE TRIAL. 
 
 
¶6.  (U)  PART OF THE PROBLEM IS THAT TRIALS WERE TAKING TOO 
LONG.  THIS IS THE FAULT OF BOTH DEFENSE COUNSEL, WHO JORDA 
SAID HAVE INCENTIVES TO EXTEND THE LENGTH OF TRIALS BECAUSE 
THEY ARE BEING WELL PAID UNDER U.N. SCALES, AND THE 
PROSECUTORS, WHO ARE TOO "PERFECTIONIST" IN THE WAY THEY 
CONDUCT TRIALS.  JORDA EXPRESSED THE HOPE THAT THE EXPERIENCE 
THE JUDGES HAD GAINED BOTH WITH THE ICTY'S RULES OF PROCEDURE 
AND EVIDENCE, AS WELL AS THEIR KNOWLEDGE OF THE UNDERLYING 
CONFLICT IN THE FORMER YUGOSLAVIA, WOULD MAKE FUTURE TRIALS 
GO FASTER.  THE JUDGES WOULD ALSO CONTINUE TO WORK TO 
ACCELERATE THE PACE OF TRIALS THROUGH STRENGTHENED RELIANCE 
ON PRE-TRIAL MANAGEMENT PRACTICES. 
 
 
¶7.  (U)  NEVERTHELESS, SOMETHING MORE NEEDS TO BE DONE TO 
ADDRESS THE GROWING CASE BACKLOG PROBLEM.  JORDA TOLD 
AMBASSADOR THAT THE JUDGES HAD REVIEWED A FULL RANGE OF 
OPTIONS FOR TRYING CASES MORE SWIFTLY, INCLUDING HOLDING 
TRIALS BEFORE A SINGLE JUDGE, HOLDING TRIALS IN ABSENTIA, 
TRANSFERRING TRIALS TO OTHER COUNTRIES, OR ADDING A NEW TRIAL 
CHAMBER.  WITH RESPECT TO MOST, THE DISADVANTAGES OUTWEIGHED 
THE ADVANTAGES.  THE JUDGES HAD CONCLUDED, HOWEVER, THAT TWO 
PROPOSALS COULD EFFECTIVELY ENHANCE THE ICTY'S TRIAL 
OPERATIONS. 
 
 
¶8.  (U)  FIRST, THE JUDGES RECOMMEND DELEGATING TO ICTY 
SENIOR LEGAL OFFICERS SOME PRE-TRIAL MANAGEMENT 
RESPONSIBILITIES, SUCH AS SETTING DEADLINES AND HEARING 
WITNESS TESTIMONY BY DEPOSITION.  CORE LEGAL ISSUES WOULD NOT 
BE HANDLED BY SENIOR LEGAL OFFICERS, AND A JUDGE WOULD 
CONTINUE TO SUPERVISE THE WORK OF EACH SENIOR LEGAL OFFICER. 
NEVERTHELESS, THIS WOULD PERMIT JUDGES TO DEVOTE A GREATER 
PORTION OF THEIR TIME TO TRIAL WORK. 
 
 
¶9.  (U)  SECOND, AND MORE IMPORTANTLY, THE JUDGES HAVE 
RECOMMENDED THE USE OF "AD LITEM" JUDGES, I.E., JUDGES DRAWN 
FROM A POOL OF ELIGIBLE CANDIDATES WHO COULD SERVE FOR A 
SINGLE CASE ONCE IT WAS READY FOR TRIAL.  THIS PROPOSAL WOULD 
BE FLEXIBLE, AND AD LITEM JUDGES WOULD WORK ONLY ON AN 
AS-NEEDED BASIS.  COUNTRIES COULD SUPPORT THIS EFFORT EITHER 
BY DESIGNATING JUDGES FOR THE POOL, OR BY MAKING VOLUNTARY 
CONTRIBUTIONS TO FUND THE COSTS ASSOCIATED WITH THE USE OF AD 
LITEM JUDGES.  (JORDA'S REPORT SPECIFICALLY REJECTS THE 
NOTION OF COUNTRIES MAKING AD LITEM JUDGES AVAILABLE ON A 
"GRATIS PERSONNEL" BASIS, IN ORDER TO GUARANTEE THE 
INDEPENDENCE AND IMPARTIALITY OF THE JUDGES.) JORDA NOTED 
THAT THE JUDGES WERE DIVIDED ON WHETHER THE AD LITEM JUDGES 
SHOULD SIT TOGETHER WITH EXISTING TRIBUNAL JUDGES, OR WHETHER 
ENTIRE AUTONOMOUS AD LITEM PANELS SHOULD BE CONSTITUTED, 
ALTHOUGH HE INDICATED HE FAVORED THE LATTER APPROACH TO 
ENSURE THAT EXISTING JUDGES WOULD BE AVAILABLE FOR THEIR OWN 
TRIALS. 
 
 
¶10.  (U)  JORDA INDICATED THAT THE PROPOSALS WOULD REQUIRE 
SOME "MINOR" REVISIONS TO THE ICTY'S STATUTE.  HIS REPORT 
INCLUDES AS AN ANNEX THE CHANGES TO THE STATUTE THAT WOULD BE 
NECESSARY TO GIVE EFFECT TO THE JUDGES' PROPOSALS.  JORDA'S 
REPORT ALSO NOTES THAT USE OF AD LITEM JUDGES WOULD REQUIRE 
ADDITIONAL RESOURCES, BUT INDICATES THAT SINCE FINANCING 
QUESTIONS ARE NOT WITHIN THE JUDGES' PURVIEW, THEY HAVE MADE 
NO RECOMMENDATIONS ON THAT POINT. 
 
 
¶11.  (U)  ACCORDING TO JORDA, ALTHOUGH THERE WERE SOME 
DIVISIONS AMONG THE JUDGES ABOUT THE PRECISE MODALITIES OF 
THE AD LITEM PROPOSAL (E.G., WHETHER AD LITEM JUDGES SHOULD 
BE ELECTED OR APPOINTED, WHETHER THEY SHOULD BE INTEGRATED 
INTO EXISTING TRIAL CHAMBERS OR SERVE ON AUTONOMOUS TRIAL 
CHAMBERS), THE BASIC RECOMMENDATIONS WERE UNANIMOUSLY 
SUPPORTED BY THE JUDGES.  HE NOTED THAT CHIEF PROSECUTOR DEL 
PONTE ALSO HAD EXPRESSED HER APPROVAL OF THE PROPOSALS. 
 
 
¶12.  (U)  JORDA SAID THAT IF THE JUDGES' RECOMMENDATIONS WERE 
ADOPTED, THE ICTY WOULD BE ABLE TO COMPLETE ITS TRIALS 
BETWEEN 2007 AND 2009, RATHER THAN LATE 2016. 
 
 
¶13.  (U)  JORDA'S REPORT ALSO ADDRESSES POSSIBLE ENHANCEMENTS 
TO THE FUNCTIONING OF THE APPEALS CHAMBER.  JORDA'S REPORT 
RECOMMENDS ADDING TWO NEW JUDGES FROM THE INTERNATIONAL 
CRIMINAL TRIBUNAL FOR RWANDA (ICTR) TO THE APPEALS CHAMBER. 
JORDA TOLD THE AMBASSADOR THAT THE APPEALS CHAMBER WOULD 
CONTINUE TO SIT AS A FIVE-JUDGE PANEL, BUT UNDER THE PROPOSAL 
WOULD HAVE A POOL OF SEVEN JUDGES TO DRAW FROM IN 
CONSTITUTING SUCH A PANEL.  (COMMENT: THIS ASPECT OF THE 
PROPOSAL, HOWEVER, IS NOT REFLECTED IN THE WRITTEN REPORT.) 
 
 
¶14.  (U)  THE AMBASSADOR CONGRATULATED JORDA FOR THINKING 
AHEAD ON THE ISSUE OF THE ICTY'S CAPACITY TO MANAGE ITS 
CASELOAD.  SHE AND LEGAL COUNSELOR CAUTIONED THAT IN VIEW OF 
THE SEVERE BUDGET CONSTRAINTS FACING THE UNITED NATIONS, THE 
ADDITIONAL EXPENSES ASSOCIATED WITH AD LITEM JUDGES WAS 
LIKELY TO PRESENT THE MOST SIGNIFICANT HURDLE TO THE 
PROPOSAL.  NEVERTHELESS, THE FLEXIBLE NATURE OF THE AD LITEM 
JUDGES PROPOSAL WAS AN IMPORTANT ADVANTAGE, SINCE JUDGES 
WOULD ONLY BE PAID AS NECESSARY TO HANDLE CASES.  AMBASSADOR 
REITERATED THE USG'S STRONG SUPPORT FOR THE ICTY AND SAID THE 
TRIBUNAL'S MANY FRIENDS IN THE USG WOULD WANT TO PLAY A 
CONSTRUCTIVE ROLE. 
 
 
¶15.  (C)  THE AMBASSADOR ALSO EXPRESSED CONCERN THAT ICTY 
EFFORTS TO STRESS THE SEVERITY OF THE ICTY'S BACKLOG COULD 
WORK AGAINST THE PROSECUTOR'S PUSH FOR MORE ARRESTS OF 
AT-LARGE INDICTEES.  IN THAT REGARD, JORDA NOTED THAT DEL 
PONTE FULLY SUPPORTS THE REPORT.  HE ALSO COMMENTED THAT 
APPROXIMATELY HALF OF THE ICTY'S INDICTEES ARE STILL AT 
LARGE.  "IF THAT WERE THE SITUATION IN ANY NATION," HE 
COMMENTED, "THERE WOULD BE A REVOLUTION" IN THAT COUNTRY. 
THERE CAN BE NO QUESTION, HE SAID, THAT ALL INDICTEES MUST BE 
BROUGHT TO THE HAGUE, EITHER BY VOLUNTARILY SURRENDER OR 
ARREST.  DEVELOPING A PROCESS FOR EXPEDITING TRIALS MIGHT 
ENCOURAGE VOLUNTARY SURRENDERS.  JORDA MENTIONED THAT 
REPUBLIKA SRPSKA PRIME MINISTER DODIK, DURING HIS RECENT 
VISIT TO THE CITY, SAID HE WOULD LIKE TO ENCOURAGE MORE 
VOLUNTARY SURRENDERS BUT CANNOT GIVEN THE LENGTHY PRETRIAL 
DELAYS FACED BY THOSE IN CUSTODY. 
 
 
¶16.  (U)  COMMENT:  THE PROPOSAL FOR AD LITEM JUDGES COULD BE 
AN EFFECTIVE AND RELATIVELY COST-EFFICIENT SOLUTION TO THE 
GROWING BACKLOG PROBLEM AT THE ICTY.  PARTICULARLY IF THE 
PROPOSAL ENABLES THE ICTY TO COMPLETE ITS MANDATE SOONER, IT 
WOULD ACTUALLY RESULT IN LONG-TERM SAVINGS TO U.N. MEMBER 
STATES.  AS SUCH, EMBASSY RECOMMENDS THAT WASHINGTON GIVE 
SERIOUS CONSIDERATION TO SUPPORTING JUDGE JORDA'S PROPOSALS. 
EMBASSY BELIEVES, HOWEVER, THAT IT WOULD BE BETTER FOR AD 
LITEM JUDGES TO BE INTEGRATED INTO PANELS WITH REGULAR ICTY 
JUDGES.  OTHERWISE, THE AD LITEM TRIAL CHAMBERS WOULD NOT BE 
ABLE TO BENEFIT FROM THE IMPORTANT EXPERIENCE THE PERMANENT 
JUDGES HAVE GAINED WITH THE ICTY'S RULES OF PROCEDURE AND 
EVIDENCE AND THEIR KNOWLEDGE OF THE CONFLICT IN THE FORMER 
YUGOSLAVIA.  EMBASSY CAUTIONS, HOWEVER, THAT FOR THE APPROACH 
TO BE VIABLE, THE U.N. WILL NEED TO FUND MORE THAN THE 
SALARIES OF THE AD LITEM JUDGES.  ADDITIONAL RESOURCES FOR 
LEGAL ASSISTANTS, SECRETARIES, AND REGISTRY COURTROOM STAFF 
WILL ALSO BE REQUIRED.  DEPENDING ON THE NUMBER OF TRIAL 
CHAMBERS OPERATING AT ANY GIVEN TIME, IT MAY ALSO BE 
NECESSARY TO PROVIDE ADDITIONAL COURTROOM CAPACITY TO THE 
ICTY.  ON THIS SCORE, JORDA MENTIONED THE POSSIBILITY OF 
USING THE COURT FACILITIES AT CAMP ZEIST CURRENTLY BEING USED 
FOR THE LOCKERBIE TRIAL, ONCE THOSE PROCEEDINGS ARE 
COMPLETED.  END COMMENT. 
 
 
¶17.  (U)  A COPY OF JUDGE JORDA'S REPORT HAS BEEN FAXED TO 
THE DEPARTMENT (S/WCI - SCHEFFER).  HARD COPY HAS BEEN SENT 
TO THE DEPARTMENT (S/WCI - SCHEFFER, VIA L/CID) BY COMMERCIAL 
COURIER. 
FENDRICK