PROSECUTOR DEL PONTE: “The Legacy of the ICTR – the Creation of Legal Impunity”
Exerpts from: PEACE AND PUNISHMENT: THE SECRET CONFLICT BETWEEN POLITICS AND INTERNATIONAL JUSTICE[1]

Evidence of Kagame/RPF war crimes within ICTR jurisdiction sufficient to prosecute.[2]

261-- Carla Del Ponte, in December 1999, had opened investigations into Tutsi officers of the army of the Rwandan Patriotic Front (RPF) under Kagame’s command. These investigations, known as "special investigations", did not relate to the genocide of Tutsis, the primary mandate of the ICTR, but to the massacres of the genocidaires and ordinary Hutu civilians who fled Rwanda in large numbers before the advance of the RPF…. It would make it possible, at the same time, to short circuit the inclination of Judge Jean-Louis Bruguiere to have President Kagame indicted by the ICTR. Since 1998, the French judge had been in charge of the inquiry into the attack on the plane of Rwandan president Juvénal Habyarimana…

262--…The Judge was convinced that Paul Kagame was the instigator of this attack. However, even though his investigations had reached the conclusion that the current Rwandan Président was involved, the immunity granted in France to Heads of State in situ prevented any prosecution there…In November 2001, the Americans were interested in Judge Bruguiere’s progress at the ICTR and questioned Del Ponte on what she knew about Kagame. But they did not at this time make known their opposition to any proceedings against their ally in the area of the Great Lakes, or against his entourage…

263--The International Tribunals were by now perceived as providing justice at too high a price, without quantifiable impact and as having a destabilising effect both in Rwanda and in ex-Yugoslavia: they were simply obstacles to the management of the post-war period… [U.S. Envoy] [Pierre]Prosper remained deaf to the recommendations of the International Tribunal. At the beginning of 2003, he made it more obvious than ever that the Americans wished to subject the court to an entirely political management of its exit strategy….
265--…A side effect of the ICC was to drive the International Tribunal [ICTY/ICTR] out of the Europeans’ concerns; they failed to understand that this abandonment suited the American administration’s crusade against international justice. The great powers from now on had no further scruples in taking the decision to close the court. … The year 2003 was to be the high point of international justice’s difficulties in maintaining its principles in the face of political powerplay…


Rwandan Government maniputates ICTR Prosecutions
…Prosper[3] forced a meeting between the Rwandan leaders and the prosecutor of the International Tribunals Carla del Ponte. For a year relations between Kigali and Arusha had been at a low point. In the summer of 2002, the Rwandan government had, for several weeks, paralysed the genocide trials by preventing the arrival of the witness-victims in Arusha. Del Ponte protested in July, then again in October, to the Security Council of UN…
266--[In December 2002]…Prosper further encouraged Del Ponte to…reopen a dialogue with the Rwandan leaders…The prosecutor accepted readily, because Kigali’s obstructionism was likely to lead to the acquittal of the genocide suspects, for lack of witnesses. Almost all the prosecution witnesses come from Rwanda. This formidable weapon available to the Rwandan capacity was a counter-attack by Kigali to prevail on Del Ponte to give up her investigations parallel to the genocide, aimed at officers of the tutsi army of the Rwandan Patriotic Front…According to independent experts, some thirty thousand Hutu had been killed on Rwandan territory, at the time the army of the FPR was advancing. The Arusha prosecution had catalogued fourteen sites of massacres and was making efforts to go up the chain of command.
Officially, Kagame promised his assistance, but the General-President never intended to hand over a single one of his men to the ICTR. As a result of the pressures exerted during the summer 2002 Del Ponte was forced to order her three investigators to suspend their mission in Rwanda, but she refused to suspend, even temporarily, the work…Unknown to Carla Del Ponte, the American Michael Johnson, who had arrived in September 2002 in Arusha to take over temporarily the duties of the deputy prosecutor…ordered the suspension of the "special investigations". Del Ponte discovered this only in December…responsibility for the investigation was then entrusted to a British substitute, Marks Moore. The Rwandan authorities knew from now on that Del Ponte would not yield. They turned to their powerful American and British allies …
Del Ponte Ordered by the U.S. to drop RPF prosecutions…or else.
267--The arrival of Del Ponte in mid-May 2003 in Washington was the occasion for the two parties to get together. Prosper reassured the prosecutor: the United States was proposing to use their good offices and did not intend to interfere in the discussions. Del Ponte did not suspect for a moment what would occur.
On Wednesday May 14, 2003, at the end of the afternoon…at the State Department… Del Ponte and her advisers took their seats around the table, opposite the Rwandan delegation[4]…Pierre Prosper…took an active role, suggesting the broad outline of the discussions. The game was skewed from the beginning. It was played according to rules pre-established by the Americans and the Rwandan…he ended this first meeting by underlining the need for arriving at an agreement on the transfer of cases to Rwanda.
On Thursday May 15 at 5pm there was a further meeting in the same room of the State Department…The message was clear: The ICTR cannot legitimately conduct investigations against the Tutsi soldiers when it is far from having completed its work on the genocide. The Rwandans did not deny the crimes…
268--They said they wanted to deal with it themselves…Prosper intervened on several occasions to encourage the prosecutor to give up the special investigations to Rwanda…[del Ponte] was ready to grant the Kigali authorities a few months to show evidence of their desire to do justice:
"These crimes exist, they cannot be overlooked. To bring proceedings would be a contribution to reconciliation", she insisted.
But she demanded control of these investigations. Prosper tried to dissuade her from this: "Rwanda would lead the inquiries and the proceedings…But in a Rwanda dominated by the Tutsi soldiers…Del Ponte…was unable to allow them to be in sole charge of the possible prosecutions nor give up her primacy in the trials…as Prosper insistently suggested…Prosper proposed that these should be summarized, in the next few days, in a document which could be used as a basis for future negotiations…
269--Friday May 16, at 11 a.m….Del Ponte was at the State Department to discuss the ICTY. Prosper and his advisers …present a document to her entitled "Summary of the conclusions between the government of Rwanda and the ICTR"…Taken by surprise, Del Ponte agreed nonetheless to look at the text.
The document was a travesty of the content of the discussions of the previous day. It envisaged the abandonment of all the investigations against suspects belonging to the Rwandan Patriotic Army (APR) by the ICTR prosecution and their reference to Rwandan jurisdiction, without any guarantee of results. It required the Arusha prosecution to hand over its catalogue of the sites of massacres and also "to share all the evidence with the government of Rwanda", in spite of the prohibition on transmission of witness statements to another jurisdiction without their agreement…. Del Ponte…repeated the position she had expounded the previous day. Prosper invited her to modify the text…
The State Department advisers noted the objections, and promised to make the necessary corrections. …The document arrived the following week at the office in The Hague. The Americans had not modified anything of substance. Under the terms of the alleged "agreement” … The prosecutor of the ICTR would no longer have any control of the investigations nor over the course of possible proceedings and would have to yield all information in her possession to the Rwandan authorities.
270-- Del Ponte rejected the document out of hand…For her part, she informed Kofi Annan’s office: he condemned the American manoeuvre but objected to Del Ponte having exposed herself to State pressure.
Del Ponte ejected from the ICTR for upholding the Security Council Mandate
Prosper[‘s] …government was under obligation to Kigali having already negotiated the quid pro quo. In exchange for the guarantees of impunity against any prosecutions of tutsi soldiers before the TPIR, Kigali was soon to sign a bilateral agreement with the United States which protected American nationals from proceedings before the International Criminal Court….preventing American nationals from being handed over to the ICC. After signing, Kigali would have the benefit of the lifting of the embargo on weapons… substantial military aid from the United States although the war in the neighbouring Democratic Republic of Congo was still raging, having already cost more than three million lives... to exploit the mineral and natural resources in the area which are the cause of so much greed.
271-272-- Reprisals were not long in coming. The Americans asked the British to take the lead. A powerful supporter of the ICC, Great Britain would be more convincing as the protagonist in this trial of strength against the International Tribunals. At the end of June, Jack Straw gave to Kofi Annan, while passing through Geneva, a letter requesting the separation of the post of prosecutor, hitherto common to the ICTR and the ICTY, and the appointment of a separate prosecutor for the Arusha Tribunal...the renewal of the Del Ponte’s mandate seemed to suit everyone, with the exception of London and Washington, who wanted to put her out of the game…
...The negotiations between the members of the Security Council to divide Del Ponte’s job, which combined the ICTR and the ICTY began in early July 2003. London and Washington skilfully prepared the ground with the assistance of Kigali. To mobilize diplomatic support, the Rwandan authorities, from the very start of June, together with the victims’ organisations, got up a virulent campaign against the ICTR. Kigali was thus able to denounce a "part-time" prosecutor…[t]he Americans and the British claimed that she did not devote enough time to Arusha… The arguments appeared convincing and the majority of the members of the Security Council received the proposal favourably.
Little did they suspect a manoeuvre motivated by the desire to set aside Del Ponte in order to put an end to the "special investigations"…. At the beginning of July, the draft Resolutions began to circulate, initially between the five permanent members then between the ten other non-permanent members of the Security Council. The Americans and British were pulling the strings but continued to deny their involvement. They represented to their partners that the initiative came from Kofi Annan… But Kofi Annan was not ready for a new confrontation with the Americans.
…Disillusioned, Iqbal Riza confided privately to Del Ponte: "Its all politics. It should not have happened like this, but everything is politicized.” Del Ponte responded "It is unfair that politics undermines our work. I find it wounding to see that we have managed to ridicule the principles of international justice just because Kagamé has signed a bilateral agreement [on the ICC with the United States ]…... And Iqbal Riza concluded: "Yes, I know. I recognize the strength of your arguments, I entirely concur, but do not quote me publicly ".
The American and British manoeuvring caused a reaction in France which... fought successfully for a mention of the "special investigations" in the resolution. The final text invited Rwanda "to intensify [ its ] co-operation with the ICTR in particular on the investigations into the Rwandan Patriotic Army".
Supported by several members of the Security Council, Paris also managed to block the original Anglo-American proposal...London and Washington’s initiative was to be emptied of its substance, except for the ousting of Del Ponte from the ICTR. ..the fifteen members of the Security Council did not want to take responsibility for demanding a dead halt to the investigations, thus giving impunity to top leaders who were already in the prosecution’s sight…[But] [a]ccording to the terms of Security Council resolution 1503 of August 28, 2003, the Tribunal from now on, was required to concentrate its activity on "those principally responsible" for the crimes committed in ex-Yugoslavia.
-…Carla Del Ponte was excluded from the ICTR prosecution with immediate effect.
[1] Paix et chatiment : les guerres de la politique The author, Ms. Florence Hartmann, has been a close associate of former ICTR/ICTY Chief Prosecutor for the time period covered in the book. [Flarion Publishers, Paris, Sept. 10, 2007]. Numbers refer to the original pagination in the French text:
[2] Subtitles NOT in the original [ed.] Editing of translated text by: Prof. Peter Erlinder, Lead Ntabakuze Defence Counsel in Military 1 and President of ADAD, the defence counsel interests at the ICTR and pas- President of the National Lawyers Guild, NY,NY. peter.erlinder@wmitchell.edu
[3] Peter “Pierre” Prosper was the lead prosecutor in the Akeyesu Case at the ICTR and was appointed Ambassador for War Crimes and served in the U.S. State Department.
[4] The Rwandan delegation was composed of Gerald Gahina, Prosecutor General of Rwanda, Martin Ngoga, Rwandan liaison officer at the ICTR, and Richard Sezibera, Rwandan ambassador to the United Nations