Effort to Oust Prosecutor is Misguided

The UN Security Council is poised to decide whether to remove Carla del Ponte as chief prosecutor for the International Criminal Tribunal for Rwanda. She also serves as chief prosecutor of the tribunal for the former Yugoslavia. The two posts have always been held by the same person. There are strong arguments for separating the two positions, but removing del Ponte from the tribunal for Rwanda at this time would be a severe setback for the cause of international justice.

Like her predecessors Richard Goldstone and Louise Arbour, Carla del Ponte spends much more time in The Hague, where the prosecutions related to the former Yugoslavia take place, than in far-off Arusha, Tanzania, where those accused of the ghastly crimes committed in Rwanda are being tried.

The fact that a chief prosecutor is not always available has hurt the Rwanda tribunal since it was established in November 1994. Recently, however, the office of the prosecutor for the Rwanda tribunal has operated more effectively, because of the appointment of an able deputy prosecutor, Bongani Majola, who previously directed the Legal Resources Center in South Africa, one of the world's leading public interest law groups.

Although it would be best if a chief prosecutor were able to give undivided attention to the many important diplomatic and managerial issues as well as the difficult questions of legal principle, strategy and tactics that arise on a day-to-day basis in Arusha, there is no crisis in leadership at this moment that requires the Security Council to act.

One reason it would be unwise to make a change now is that both tribunals are approaching the last stages of their work. The Rwanda tribunal is supposed to complete its investigations by next year and to wind up all trials by 2008. If del Ponte is removed and the Security Council takes its time in appointing a successor, many important cases could fall by the wayside. Valuable time was lost when it took the council 14 months to appoint Richard Goldstone as the first chief prosecutor of the Yugoslav tribunal after it was established in 1993.

Even if the Security Council were to act promptly this time, perhaps by elevating Bongani Majola, the removal of del Ponte would be unfortunate. That is because it would be perceived as punishment for her investigation of the crimes committed by officials of the current government of Rwanda and their armed forces when they came to power in 1994, apparently in reprisals against those they held responsible for the genocide that took place from April to June of that year.

By prosecuting Serbs, Croats, Bosnians and Kosovars alike for the grave crimes they committed, the Yugoslav tribunal has established its moral authority. If the Rwanda tribunal is prevented from considering the crimes perpetrated by the victims, who now hold power, not only will its standing suffer, but the impact will most likely harm other international criminal tribunals, which, still in their infancy, need to establish a reputation for resisting political pressure.

When del Ponte let it be known that she was investigating cases involving its forces, the Rwandan government, which has never been enthusiastic about the tribunal, began obstructing its work by preventing witnesses from traveling to Arusha. This forced a halt to several trials for genocide last year. Del Ponte complained to the Security Council, which took several months before gently reminding the Rwandan government last December that it is obligated to cooperate with the tribunal.

The Rwandan government has led the campaign to oust del Ponte. Unfortunately, its efforts are being strongly supported by Britain and somewhat more ambivalently by the United States, and they appear to have secured the backing of Kofi Annan.

If the Security Council were starting afresh, it would make sense to appoint separate chief prosecutors for the two tribunals. Each is a demanding post. Hundreds of millions of dollars have been spent by the international community to ensure that the principal authors of the defining crimes of the last decade of the 20th century are brought to justice. Employing two chief prosecutors instead of one would have been a small additional expenditure to improve the efficiency of the Rwanda tribunal and to ensure that the African crimes it tries get the same high level prosecutorial attention as the European crimes considered by its sister tribunal. But to defer to the Rwandan government and its supporters in London and Washington in the current circumstances would send the wrong message.

Aryeh Neier is president of the Open Society Institute and author of Taking Liberties: Four Decades in the Struggle for Rights.

Copyright © 2003 the International Herald Tribune