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Identifier
Created
Classification
Origin
03THEHAGUE1827
2003-07-17 14:18:00
CONFIDENTIAL
Embassy The Hague
Cable title:  

ICTY: PRESIDENT MERON URGES USG TO OPPOSE DEL

Tags:  HR KAWC KJUS NL PHUM PREL SR ICTY 
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						C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001827 

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/MILLER, EUR - JONES, IO -
SWIGERT, L - TAFT, EUR/SCE - JONES/GREGORIAN, L/EUR -
LAHNE, DRL, INR/WCAD - SPRIGG, USUN - ROSTOW

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE ICTY
TAGS: HR KAWC KJUS NL PHUM PREL SR ICTY
SUBJECT: ICTY: PRESIDENT MERON URGES USG TO OPPOSE DEL
PONTE RENEWAL



1. Classified by Charge d'Affaires, a.i., Daniel R. Russel
for reason 1.5 (d).



2. (C) Summary. President Theodor Meron of the
International Criminal Tribunal for the former Yugoslavia
(ICTY) met with the Ambassador on July 16 to convey his
serious concerns about the performance of Chief Prosecutor
Carla Del Ponte and the risk the renewal of her tenure
would pose to the completion strategy. Meron urged the USG
to oppose renewal and expressed reservations about a one
year extension of her mandate. Meron further advised that
the UN secretariat had contacted his chief of staff on July
15 to "float" the idea that no action be taken by the
Security Council in September and that Del Ponte term
simply be allowed to lapse. Under such an approach, which
Meron found promising, the Deputy Prosecutors of the ICTY
and ICTR would serve as "acting" prosecutors of their
respective offices until replacements were named. End
summary.



--------------------------



--------------------------


Del Ponte Weak Penal Policy and Management


--------------------------



--------------------------





3. (C) President Meron (protect), an American and former
Counselor for Public International Law at the State
Department, discussed in frank terms his unease with Carla
Del Ponte leadership of the Office of the Prosecutor
(OTP). Meron observed that for the USG to persuade
skeptics that it remained committed to the vigorous
prosecution of war crimes despite its principled opposition
to the International Criminal Court, it was essential for
the Chapter VII model of a war crimes tribunal represented
by the ICTY and ICTR to succeed both in terms of achieving
its mission and finishing its work in a finite period of
time. In this context he commented that Del Ponte had both
strengths and weaknesses. Meron thought she was "very
good" in sensitizing governments to the importance of
capturing outstanding fugitives and delivering them to the
Tribunal. She has "pushed like a bulldozer -- in a
positive sense" to bring indictees into custody.



4. (C) Del Ponte two principle weaknesses according to
Meron were with respect to penal policy and management.
Meron explained that Del Ponte is "primarily a media person
who is primarily interested in her own legacy." She has
"absolutely no idea about management" and is "not in
control of her staff." He described "tremendous unrest" in
the OTP, noting that a senior OTP official had met with him
to convey a detailed litany of concerns about the poor
management of the office and the threat it posed to
achieving completion strategy targets. Meron provided a
confidential memorandum of that conversation reporting the

SIPDIS
official's view that "the current Prosecutor lacks the
required vision, lacks the needed managerial competence,
and lacks the commitment to the completion strategies that
will be necessary to bring them about as promised."
(Note: The memcon, which provides examples in both the
ICTY and ICTR to support these conclusions, is being secure
faxed to S/WCI. End note.) On penal policy, Meron noted
that the OTP brings prosecutions that are too broad in
scope which result in unnecessarily lengthy and resource
consuming trials. Instead of focusing on a few significant
charges that are supported by strong evidence, the OTP
brings indictments with too many charges of which many are
ultimately not readily provable. He added that the
presiding judge of a trial chamber had complained to him
this week that in a small case with a mid-level defendant,
the OTP had informed the chamber that it planned to present
80 to 90 witnesses. This request prompted the defense to
request a similar number of witnesses, guaranteeing a long
and complex trial. "This is no way to run a court," Meron
observed.



5. (C) The Ambassador asked Meron whether vesting the
management functions in OTP in another official might be a
way of addressing this weakness while allowing Del Ponte to
focus on other matters. Meron agreed that the OTP had a
number of senior officials who could be very effective
managers, but said that Del Ponte did not give them the
necessary authority to play that role. Further, the kinds
of management deficiencies Meron was flagging related to
core prosecutorial functions such as determining which
indictments to bring, the number of charges, which and how
many witnesses to call, and where to deploy prosecutorial
resources. Meron also said that Del Ponte actively
undercut her subordinates when they sought to make such
decisions. Embassy Legal Counselor noted that an OTP
attorney had advised him last week that Del Ponte had
interceded to reject a plea agreement that the attorney, in
coordination with senior OTP managers, had negotiated with
a defendant. As a result, an accused who would have been
guaranteed a sentence in a 15 to 20 year timeframe would
now go to trial because the Chief Prosecutor had, for
optics reasons, insisted on pressing for a 15 to 25 year
range.



6. (C) Meron, based on his conversations with Del Ponte
and others in OTP as well as his observation of how the OTP
was drafting indictments and trying cases, has concluded
that Del Ponte "is not interested the completion
strategy." He acknowledged that in conversation with the
Chief Prosecutor this week she had expressed interest in
working with Meron on a security council resolution that
would constrain future indictments. Meron attributed this
approach reflected her growing unease about the renewal of
her tenure and noted that even if she signed off on such a
resolution, her management deficiencies would threaten its
implementation.



--------------------------



--------------------------


Renewal Options and Letting the Mandate Lapse


--------------------------



--------------------------





7. (C) Meron said that Del Ponte told him this week that
she understood the USG was supporting the British idea for
the splitting of the ICTR and ICTY functions. Del Ponte
also told Meron that she understood that the USG would drop
its effort to press for a one year term. Meron expressed
to the Ambassador his support for the splitting of the
prosecutorial functions noting that the ICTR deserves a
"first class prosecutor." He also noted that concerns
about divergent penal policies arising from such a split
were unwarranted because the appeals chamber would continue
to preside over both tribunals, thereby ensuring a
consistency in approach and jurisprudence. Commenting on
the possibility of a one year renewal, Meron expressed his
concern that a such an approach (as opposed to nonrenewal)
would leave a "diminished" prosecutor in power and
encourage fugitives and countries in the region to "wait
out" the end of her term and not cooperate with the OTP.



8. (C) Meron noted that a legal officer from the UN
Secretariat had contacted his Chief of Staff yesterday to

SIPDIS
"float" the idea of simply allowing Del Ponte term to
lapse in September without any Security Council action.
Such a lapse would result in a de facto splitting of the
prosecutorial functions in the OTP as the Deputy
Prosecutors of the ICTY and ICTR would become the "acting"
prosecutors for their respective tribunals. The UN legal
officer advised that one question was whether the Deputy
Prosecutors under such a scenario would have the authority
to sign indictments and exercise other core functions of
their office. Meron office replied that this would not
be a problem because Rule 38(B) of the ICTY Rules of
Evidence and Procedure explicitly provides that "The Deputy
Prosecutor shall exercise the functions of the Prosecutor
in the event of the latter absence from duty or
inability to act ...."



9. (C) Summing up, Meron explained that "two or three
years ago" having a Chief Prosecutor who was especially
vigorous in pressing governments in the region to apprehend
fugitives may have overshadowed other weaknesses. At this
point in the Tribunal life, however, particularly given
the dramatic changes in Belgrade, Meron believed that it
was much more important for the institution to have a Chief
Prosecutor with the sound penal policy and effective
management skills that are essential to implementing the
completion strategy. In Meron analysis, Del Ponte fails
to meet these requirements.



--------------------------


Comment


--------------------------





10. (C) Meron description of the problems in the OTP
tracks Embassy's observations and has been detailed in
previous reporting. What is new is that the perception of
a floundering OTP has become so pervasive that it has
become common knowledge in the Chambers. The indication
that the UN Secretariat is exploring the idea of letting
the prosecutor's mandate lapse is intriguing and suggests
that the USG may have additional leverage and options in
pursuing its positions with respect to the renewal of Del
Ponte mandate. End Comment.
RUSSEL