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OO RUEHWEB

DE RUEHC #5279 1692355
ZNR UUUUU ZZH
O 172353Z JUN 08
FM SECSTATE WASHDC
TO RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 0000
INFO UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
RUEHKI/AMEMBASSY KINSHASA IMMEDIATE 0000
RUEHNR/AMEMBASSY NAIROBI IMMEDIATE 0000
RUEHVB/AMEMBASSY ZAGREB IMMEDIATE 0000
RUEHBW/AMEMBASSY BELGRADE IMMEDIATE 0000
RUEHVJ/AMEMBASSY SARAJEVO IMMEDIATE 0000
RUEHJB/AMEMBASSY BUJUMBURA IMMEDIATE 0000
RUEHLGB/AMEMBASSY KIGALI IMMEDIATE 0000
RUEHTC/AMEMBASSY THE HAGUE IMMEDIATE 0000
RUEHMD/AMEMBASSY MADRID IMMEDIATE 0000

UNCLAS STATE 065279 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: UNSC PREL UNMIK KO
SUBJECT: WGIT -- GUIDANCE FOR JUNE 18 MEETING 
 
¶1.  The Department requests that USUN draw on the following 
guidance for its participation in the June 18 meeting of the 
Working Group on International Tribunals. 
 
--------- 
ICTY/ICTR 
--------- 
 
¶2. USUN should bear in mind the following redlines regarding 
our ICTY/ICTR policy as discussions proceed: 
 
-- No impunity for fugitives; Karadzic, Mladic, and Kabuga 
must face international justice; 
 
-- Any resolution on residual mechanisms or follow-on actions 
should not list which fugitives should be tried where or who 
should be tried internationally versus nationally.  We 
believe these are more appropriately judicial decisions. 
However, the resolution could set parameters for this 
judicial decision, such as through an amendment of Rule 11bis; 
 
-- The residual mechanism(s) should be funded through 
assessed, not voluntary, contributions; 
 
-- States should have a continued obligation to cooperate 
with the residual mechanism(s). 
 
¶3.  USUN should make the following points during the 
discussion of the Belgian's proposed elements for a draft 
resolution on an ICTY/ICTR residual mechanism: 
 
 -- We thank the Belgian delegation for their efforts.  This 
draft represents a step forward, allowing for more detailed 
exchanges and discussion. 
 
-- Discussions on the draft should focus on the fundamental 
goal of eliminating impunity for war crimes. 
 
-- Now that discussions are becoming more detailed, it is 
important to have a clearer picture of estimated costs.  The 
working group should ask for specific figures and cost 
breakdowns from the tribunals to inform further discussions. 
 
-- We also believe there are a number of threshold issues the 
working group needs to consider, since they will determine 
the shape and direction of the draft.  These include the 
following: 
 
            -- Should the draft resolution downsize the 
existing institutions by amending their authorities and 
scope, or should it establish a new mechanism(s) (which would 
seem to imply closure or cessation of the existing 
institutions)?  The working group should evaluate the 
operational and legal implications of each of these 
approaches, and the degree to which any resulting problems 
could be addressed or ameliorated by the language of the 
resolution.  For example, what would be the effect of each of 
these approaches on the agreements that States have entered 
into with the tribunals? 
 
            -- Over time, the quantity and pace of work of 
the residual mechanism(s) should drop, and their work will 
likely need to be reduced in both scope and authority.  We 
welcome thoughts on how best to build in flexibility and 
benchmarks into the process and draft in order to facilitate 
this process. 
 
            -- Another initial matter to consider is whether 
the ICTY and ICTR residual entities need to be the same, with 
parallel authorities and mandates.  We believe it may make 
sense to tailor the scope and authorities of the mandates for 
the residual mechanism to the specific needs of each 
institution.  For example, given the two tribunals, 
different histories and experiences with Rule 11bis 
transfers, there could be differences in whether each 
institution is authorized to continue to monitor cases 
transferred to national jurisdictions under Rule 11bis. 
 
-- In addition, we have the following general comments on the 
draft resolution.  Our comments are based on our 
long-standing position that any residual mechanism(s) should 
be streamlined, small, and efficient.  As a result, we 
believe that certain potential functions listed in the draft 
are overly extensive, unnecessary, or could be appropriately 
addressed by other means.  Some examples: 
 
            -- Monitoring of cases, including the authority 
to send mechanism staff to national courtrooms for first hand 
monitoring, referred to national jurisdictions under Rule 
11bis by the ICTY.  Such hands-on monitoring would appear 
unnecessary in the ICTY context where this task could be ably 
fulfilled by other organizations such as the OSCE. 
 
            -- Recovery of legal aid payments made to 
indictees who are determined retrospectively not to be 
indigent, or only partly indigent (seen as not worth the 
associated costs), however, in the event of a post-completion 
trial, the residual mechanism should have the authority to 
determine indigence of the defendant in question for the 
duration of that trial and appeal. 
 
            -- Active prevention of double jeopardy by the 
residual mechanism(s); however, there could be some component 
of the UNSC resolution that demands that States adhere to the 
principle of no double jeopardy. 
 
            -- Power to order restitution of property and 
proceeds of criminal conduct. 
 
            -- Public information and capacity building in 
the national jurisdictions of the States within the 
jurisdiction of the Tribunals, however, in the event of a 
post-completion trial, the residual mechanism should have the 
capacity to conduct limited public information work with 
regards to that trial only.  Further, public information work 
that is necessarily part of maintaining the tribunals, 
archives, such as the maintenance of a website, etc., is 
similarly excepted.  Also, the UNSC resolution should 
encourage States and non-State actors to continue capacity 
building post-completion on a voluntary basis. 
 
--------- 
ICTR: Kenya and the Democratic Republic of Congo (Kinshasa) 
--------- 
 
¶4.  Given pending bilateral discussions, USUN should not 
endorse or foreclose future Security Council action against 
Kenya or the the DRC.  The Department requests that USUN 
assess the preferences of other Council Members and report 
any options discussed. 
 
¶5.  USUN should draw on the following points in discussing 
Kenya and the DRC: 
 
--  We continue to call on all states, including Kenya and 
the DRC, to fulfill their legal obligations to cooperate 
fully with the ICTR. 
 
-- We are raising this issue with our Kenyan counterparts in 
Nairobi and Kenyan Prime Minister Odinga. 
 
-- We are also raising the issue in Kinshasa.  We are 
encouraged by signs that the GDRC intends to meet with the 
Tribunal's prosecutor to discuss steps toward apprehending 
ICTR fugitives suspected of being in the DRC. 
RICE