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FM AMEMBASSY ZAGREB
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INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE IMMEDIATE
RUEHGG/UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 0122

Monday, 30 November 2009, 14:02
C O N F I D E N T I A L SECTION 01 OF 03 ZAGREB 000694 
SIPDIS 
SENSITIVE 
EMBASSY SARAJEVO FOR DAS JONES 
EO 12958 DECL: 01/01/2019 
TAGS PREL, PGOV, ICTY, EUC, HR 
SUBJECT: PUSHING CROATIA FORWARD ON ICTY COOPERATION AND EU 
ACCESSION
Classified By: Amb. James Foley, reasons 1.4 (b) & (d).
¶1. (C) SUMMARY: After making difficult concessions in order to conclude an Arbitration Agreement with Slovenia, Prime Minister Kosor now confronts an ongoing UK and Netherlands blockage of Croatia’s EU accession path, inspired by ICTY Prosecutor Serge Brammertz. This impasse has the potential to endure as the GOC likely cannot produce documents demanded by the prosecutor, and Brammertz seems unwilling to settle for anything besides the documents. Brammertz also refuses to assist the GOC in its investigation. Importantly, the impasse could undermine the U.S. stake both in the Kosor-led reform process in Croatia and the region’s integration into Euro-Atlantic institutions. Accordingly, post recommends that we register our differences with Brammertz’s assessment at the December 3 UNSC discussion of ICTY and consider high-level approaches to the UK and Netherlands urging that the EU make Croatia’s ICTY cooperation a closing rather than an opening benchmark for Chapter 23 accession negotiations. END SUMMARY.
CROATIA’S EFFORTS TO SATISFY ICTY
¶2. (U) Prime Minister Kosor, Justice Minister Simonovic, Interior Minister Karamarko and Chief State Prosecutor Bajic all met with visiting Special Envoy for War Crimes Issues Ambassador Stephen Rapp and Ambassador Foley on November 27, to describe Croatia’s continuing efforts to cooperate with the ICTY and Prosecutor Serge Brammertz in the search for missing artillery documents in connection with the 1995 Operation Storm and the Gotovina case. The discussions focused on the results of Croatia’s recent police-led Task Force formed specifically to address objections Brammertz had raised with earlier efforts by Croatia to locate the documents. The Task Force’s status report, sent to ICTY on November 9, states that Croatia provided ICTY with three of the 23 documents sought (as well as a partial draft of a fourth), four others were never created, seven were destroyed, and eight have not been located.
¶3. (C) All GOC officials insisted that Croatia is engaged in a good faith effort to locate whatever documents, if any, that can be found, and pledged that the investigation would continue. Prime Minister Kosor declared to Ambassador Rapp that the GOC had an “absolute political will” to find the documents or establish their chain of custody and said she had issued orders for the investigation to continue. She commented that it would be “absolutely stupid” for Croatia to jeopardize its otherwise imminent EU accession “over a few documents,” noting that General Gotovina’s rendition to The Hague was the work of the GOC. Karamarko predicted that if Brammertz gave a good grade to Serbia despite its failure to render Mladic and Hadzic while giving a negative grade to Croatia over missing documents “that may or may not exist,” it could have “dangerous” internal repercussions. Bajic echoed this, stating that an EU decision not to open Chapter 23 would be a “major setback to Croatia in terms of the reform process and those who have been involved in it.” (NOTE: Bajic was apparently alluding to his own anti-corruption efforts backed by Kosor. END NOTE)
¶4. (C) Ambassador Rapp told Kosor and others the Task Force’s work was a “good faith” and “impressive” effort. Post shares this assessment of the Task Force’s work as credible and indicative of a significant effort by the GOC to cooperate with the ICTY. The investigation is far from perfect, relying too heavily on interviews with individuals connected to the documents. In our Nov. 27 meetings, we suggested ways that the continuing investigation could be made more aggressive. However, we have no reason to believe that the GOC lacks the will to find the documents or is seeking to thwart the ICTY. The artillery documents have likely been destroyed or sequestered over the years by Gotovina and his associates.
ICTY CANNOT BE SATISFIED
¶5. (C) Brammertz for his part remains unwilling to acknowledge the full degree of Croatia’s cooperation. In his written report to the UNSC he notes only that “results are limited”. While proclaiming himself “satisfied” with Serbian efforts that have nonetheless failed to produce the fugitive indictees, Brammertz seems unwilling to accept Croatian efforts as satisfactory unless they actually produce the missing papers.
RESULT: IMPASSE
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¶6. (U) The immediate problem is that several EU member states (in particular the UK and the Netherlands) have refused to allow Croatia to open accession negotiations on Chapter 23 (Judiciary and Fundamental Rights) pending a clean bill of health on ICTY cooperation. Brammertz has indicated that he will continue to demand that Croatia produce the missing documents throughout the entirety of the appeals process. Thus Croatia could be facing a prolonged and indefinite blockage of its EU accession.
¶7. (C) UK Ambassador Blunt (protect) told Ambassador Foley last week that some key officials in London regard Croatia as virtually unchanged since the Tudjman era and are inclined to assume GOC bad faith in its dealings with the ICTY. UK Ministers were unlikely to budge on Chapter 23 in the face of a negative assessment from Brammertz. However, Blunt personally agreed that the missing artillery documents likely could not be found by the GOC, and that Brammertz had no interest in either assisting the GOC investigation or accepting as adequate any Croatian effort that does not produce the documents. Blunt suggested that a visit by Ambassador Rapp to London to acquaint senior officials with these realities might offer the only hope for a reassessment of the entrenched UK position.
¶8. (C) French Ambassador Pasquier told Ambassador Foley on November 28 that Paris was deeply concerned about Brammertz’s expected contrasting assessments of Serbian and Croatian cooperation. He stressed that France supports and does not wish to jeopardize Serbia’s progress, but fears that a simultaneous rejection of Croatia’s efforts and the continued blockage of Chapter 23 would badly damage public support for EU membership and Kosor herself. He expected that France would be prepared to back Croatia and implicitly dissent from Brammertz’s assessment in the Security Council on December 3.  But he stressed that hope for unblocking Chapter 23 depended on Brammertz adjusting his language and finding a way on December 3 to acknowledge progress and cooperation on the part of the GOC. That might be enough, he thought, to persuade the UK and Netherlands to allow the opening of Chapter 23.
A NEW U.S. APPROACH
¶9. (C) The stakes for the U.S. of an enduring impasse on this issue are high -- not only a prolonged blockage of Croatia’s EU accession with implications for internal stability, but a closed EU door to the rest of Southeastern Europe. We therefore propose a U.S. effort aimed at unblocking Croatia’s Chapter 23 negotiations and encouraging intensified Croatian efforts to cooperate with the ICTY. One aspect of this strategy would be to urge the EU to bring more factors into its assessment of cooperation than simply the Prosecutor’s judgment. In this regard, we note that the ICTY Trial Chamber will hold a hearing on the document issue on December 16, although it is unlikely to issue a ruling until after the new year. Another aspect would be to press Brammertz to show more readiness to accept a credible investigation by the Croatians as adequate cooperation, and to provide assistance to Croatian efforts. Ultimately, we should urge the EU to allow Chapter 23 to open, with a closing benchmark being the implementation of further steps to bolster the credibility of the continuing GOC investigation or the delivery of the requested documentation.
¶10. (C) To set the stage for this approach, post supports Ambassador Rapp’s efforts vis a vis Mr. Brammertz in advance of the December 3 UNSC session, and recommends the following points be addressed in the U.S. statement at that session if our assessment of Croatian cooperation remains at variance with his:
-- Cooperation with the ICTY remains a fundamental obligation for all states in the region, and a sine qua non of Euro-Atlantic integration; -- We note that Croatia has engaged in extensive efforts to respond to the Trial Chamber’s order of September 2008 to deliver or engage in a credible investigation into the fate of the requested artillery documentation from Operation Storm; -- In our judgment those efforts have been conducted in good faith, and we believe that the Government of Croatia’s latest investigation, which is continuing, is credible and represents a significant step forward in Croatia’s cooperation with the ICTY; -- At the same time, we believe the Croatian efforts should be improved and would encourage the Croatian authorities to
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explore additional measures such as using outside expertise and engaging in more aggressive investigative techniques; -- For that reason, we are concerned with the Prosecutor’s apparent reluctance to engage directly with the Croatian investigators in providing advice on investigative measures, and we would encourage him to reconsider that approach.
¶11. (C) Post expects Minister of Justice Simonovic to represent Croatia in the December 3 Security Council session.  Simonovic told us that at present Croatia anticipates statements of support in the Security Council from France, Austria, Turkey and potentially additional members. FOLEY