US embassy cable - 03THEHAGUE1827

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. 
 
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Del Ponte  Weak Penal Policy and Management 
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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. 
 
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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. 
 
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Comment 
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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