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 002107 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/MILLER, EUR - ROSSIN, 
EUR/SCE - STEPHENS/GREGORIAN, L/EUR - LAHNE, L/AF - GTAFT. 
INR/WCAD - SEIDENSTRICKER; 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: CHIEF PROSECUTOR AND PRESIDENT PUSHING IN 
OPPOSITE DIRECTIONS ON DRAFT SECURITY COUNCIL RESOLUTION 
 
REF: A. (A) STATE 230045 
 
     ¶B. (B) STATE 237615 
 
¶1.  (U)  Classified by Clifton M. Johnson, Legal Counselor, 
for reasons 1.5(D) and 1.6. 
 
¶2.  (C)  Summary.  International Criminal Tribunal for the 
former Yugoslavia (ICTY) Chief Prosecutor Del Ponte and 
President Meron are pressing for competing changes in the 
draft ICTY/ICTR Security Council resolution under 
consideration.  Del Ponte, who is circulating to all fifteen 
Security Council members a position paper with respect to the 
draft resolution (see para 7), is urging that constraints in 
the draft text with respect to prosecutorial functions be 
softened and that flexibility be preserved for the Office of 
the Prosecutor (OTP) in implementing the completion strategy. 
 Meron, who is looking ahead to the possibility that the 
Chambers may be called upon to enforce implementation of the 
completion strategy if the OTP fails to show the necessary 
discipline, is seeking stricter and operative language with 
respect to the Security Council's expectations so as to 
provide him with the necessary authority to deal with any 
indictment requests submitted by the OTP that are 
inconsistent with the strategy.  The latest draft resolution 
text (see ref B) will likely allay a number of Del Ponte,s 
concerns while limiting the scope of any potential 
enforcement role by Meron.  End summary. 
 
¶3.  (C)  Jean-Daniel Ruch, the Political Adviser to Chief 
Prosecutor Del Ponte, met with Embassy Legal Counselor on 
August 19 to convey a seven point "position paper" reflecting 
Del Ponte,s views on the draft ICTY/ICTR Security Council 
Resolution (SCR) under consideration.  (Summary of paper at 
para 4; full text at para 7).  Ruch noted that he had been 
instructed to make a similar demarche to the fourteen other 
Security Council members and that parallel demarches were 
being made or faxed to missions in New York.  It became clear 
from the discussion that Del Ponte has obtained a copy of the 
draft SCR circulated by the U.S. o/a August 8 (see Ref A). 
The points in the position paper react to that draft vice the 
revised draft of August 15 contained in ref B. 
 
¶4.  (C)  Del Ponte,s critique of the draft resolution 
focuses on issues of prosecutorial independence.  Her 
position paper notes that "language aimed at restricting 
unduly the powers of the Prosecutor is unnecessary and is 
open to criticism as being improper interference with the 
Prosecutor's independence and the exercise of her 
discretion."  The paper further objects to any attempt to 
limit the independence of the prosecutor on grounds of 
principle.  Ruch explained that constraints in the ICTY 
context could set a bad precedent for similar Security 
Council steps with respect to other international criminal 
tribunals, clearly referring to the International Criminal 
Court.  The paper also notes that such limitations will 
"seriously impede the prosecution strategy" because they 
would eliminate the "essential credible threat" of 
prosecution that the OTP uses to obtain the cooperation of 
insider witnesses.  Finally, the paper cautions that it 
"would be counterproductive to start transferring cases 
immediately" to local jurisdictions until such jurisdictions 
can adequately protect witnesses and function in accordance 
with international standards.  Further, any transfers must 
not unduly prolong pre-trial detention. 
 
¶5.  (C)  Ruch elaborated that Del Ponte had particular 
concerns with language in the draft resolution (a) providing 
that "cases involving those (not at the most senior levels) 
... should be transferred to competent national 
jurisdictions; (b) underlining that "issuing additional 
indictments ... would be incompatible with achieving the 
objectives of the Completion Strategy"; (c) "calling on the 
Prosecutor and the Presidents of the ICTY and the ICTR, in 
their annual reports to the Council, to explain their plans 
including the number of additional final indictments that 
might be sought...." (d) that "urges the ICTY ... to take 
steps to transfer cases ...."; and (e) creating a separate 
prosecutor for the ICTR.  Legal Counselor noted that the 
draft continued to be worked in New York and that further 
revisions were likely with respect to the text that was the 
basis for the OTP comments.  Ruch welcomed the news that the 
text remained in play and encouraged the USG to share any new 
version with the OTP. 
 
¶6.  (C) ICTY President Meron, a vigorous and strong proponent 
of the completion strategy, is pressing from the opposite 
direction.  Meron, who was also reacting to the earlier SCR 
text in ref A, expressed concern that language relating to 
the need to focus prosecution on senior levels and transfer 
other cases to domestic jurisdictions was in the preambular 
rather than operative part of the resolution.  Similarly, 
Meron preferred to make operative language calling on the 
Presidents of the ICTY and the ICTR to "use their best 
efforts to ensure that the objectives of the Completion 
Strategy are achieved."  Meron acknowledged legal counselor's 
point that the language, even if preambular, provided a clear 
statement of the Security Council's view of what the Tribunal 
should be doing.  He also noted that some authority was 
provided through this language in conjunction with the 
operative paragraph urging the ICTY and ICTR to take steps to 
transfer cases to national jurisdictions.  (Note:  This 
language has been deleted from the text provided in ref B. 
End note). 
 
¶7.  (U)  Begin Text of Del Ponte Position Paper on draft UNSCR 
 
August 19, 2003 
 
POSITION PAPER 
 
Having been informed of the contents of a draft Security 
Council resolution being currently under considerations by 
its members, the Prosecutor would like to draw the attention 
of the representatives to the following important issues: 
 
¶1.    Independence of the Prosecutor.  In accordance with the 
Statute of the Tribunal (article 16(2)), the Prosecutor 
enjoys the sole discretionary right to conduct investigations 
and issue indictments.  The Prosecutor has committed herself 
in various instances, the most recent on 8 August before the 
Security Council, to strictly respect the timetable put 
forward in the completion strategy, this in close 
co-operations with the President of the Tribunal.  As a 
consequence, language aimed at restricting unduly the powers 
of the Prosecutor is unnecessary and is open to criticism as 
being improper interference with the Prosecutor's 
independence and the exercise of her discretion. 
¶2.    While it is a positive step to recall expressis verbis 
the 23 July 2002 Presidential statement, any attempt to limit 
the independence of the Prosecutor is unnecessary, both for 
reasons of principle and because it will seriously impede the 
prosecution strategy, thereby creating obstacles to the 
smooth implementation of the completion strategy.  In 
particular, limiting additional indictments, except in 
certain specific cases, would actually prejudice the 
Prosecutor's ability to complete the remaining investigations 
and prosecutions.  Far from being incompatible with the 
completion strategy, issuing certain new indictments will 
serve to achieve that objective.  The proposed limitations 
contained in the draft resolution would not only put at risk 
the efficient implementation of the completion strategy, but 
worse, they would also operate against the prosecution of 
leadership cases. 
¶3.    The efficient and successful prosecution of top leaders 
largely depends upon obtaining the evidence of insider 
witnesses, whose cooperation cannot be obtained unless they 
perceive themselves to be facing a real risk of immediate 
prosecution.  This essential credible threat of prosecution 
would be removed by  imposing any absolute bar to new 
indictments.  In practice the co-operation of insiders who 
have themselves committed serious violations of international 
humanitarian law, is often inextricably linked to pleas of 
guilty, so that the issuing of indictments against 
individuals does not in fact result in trials.  An absolute 
prohibition on issuing new indictments would also create 
technical legal difficulties where issues of separation and 
joinder of trials arise, or where re-trials are ordered on 
appeal, or where crimes are committed against the course of 
justice in ongoing prosecutions. 
¶4.    The completion strategy being a joint endeavour of all 
three pillars of the Tribunal, their three heads (President, 
Prosecutor, Registrar) should be made responsible for 
achieving its objectives within the given timetable.  For 
reasons of principle, a hierarchy can not be created between 
these three top functions. 
¶5.    A logical and indispensable component of the completion 
strategy is the transfer of cases to the various domestic 
jurisdictions.  However, it would be counter-productive to 
start transferring cases immediately, even before these 
national courts are functioning in accordance with 
international standards.  In particular, sensitive 
information concerning potential witnesses cannot responsibly 
be transmitted until domestic jurisdictions have the capacity 
to put in place proper measures for witness protection.  Nor 
can accused be transferred when they have already spent a 
substantial time in ICTY custody and the domestic 
jurisdiction has no prospect of bringing them to trial within 
a reasonable period.  The effect of transfer must not be to 
prolong pre-trial detention unduly. 
¶6.    In the transition process to the effective domestic 
prosecution of war crimes, the Tribunal has an important part 
to play.  For the Prosecution, working methods will have to 
be further elaborated regarding the transfer of documentation 
and evidence.  Also, it would be essential to consider 
international monitoring, as well as advising mechanisms. 
Other aspects have to be dealt with, in particular by the 
Outreach programme of the Registry. 
¶7.    Regarding the appointment of a separate Prosecutor for 
Rwanda, the current Prosecutor had made her views clear in 
her statement to the Security Council on 8 August.  The 
belief that a new prosecutor would enhance the ICTR,s 
efficiency does not withstand deeper analysis.  Moreover, 
such a decision would send a strong political signal 
justifying the efforts of political bodies to exert pressure 
on the international criminal justice system.  This would 
undoubtedly create a dangerous precedent for the future. 
The Prosecutor would like to kindly ask the representatives 
to consider these most essential elements when drafting the 
resolution.  She remains available for any further 
information or comment. 
End text of Del Ponte Position paper on UNSCR. 
¶8. (C) Comment.  Del Ponte and Meron are, predictably, 
approaching the draft SCR from different perspectives.  Del 
Ponte wants to ensure that she retains broad prosecutorial 
discretion and that her position is not further eroded.  She 
also raises a legitimate point about the need for OTP to be 
able to retain a credible threat of prosecution against lower 
level targets so as to prompt their cooperation.  Meron is 
committed to the completion strategy but needs the SCR to 
provide clear legal and political authority if he is to play 
the role of enforcer.  The more robust the text of the 
resolution, the more likely Meron is to feel comfortable in 
directing the Chambers to reject OTP indictments sent for 
confirmation that do not meet the standards laid out by the 
Security Council or to use his authority to transfer lower 
level cases for trial in domestic courts.  If the language on 
these points is softened, Meron is more likely to take the 
route of reporting his concerns about such indictments to the 
Security Council rather than actually rejecting or 
transferring such cases. 
¶9.  (C) Comment continued.  The text of the revised 
resolution conveyed in ref C, because it softens or 
eliminates some of the provisions discussed above, will 
likely assuage a number of Del Ponte,s concerns while making 
it less likely that Meron will feel comfortable taking 
aggressive steps to impose the completion strategy on the 
OTP.  Much depends on Del Ponte:  if she makes a sustained 
and effective effort to implement the completion strategy, 
then it becomes much less important whether and to what 
degree we could expect Meron to play an enforcing role.  End 
comment. 
SOBEL