Carla departs. Finally

William Montgomery

6 January 2008

The International Criminal Tribunal for the former Yugoslavia (ICTY) has a solid list of accomplishments. There are many genuine war criminals who are either serving well-deserved sentences or awaiting trial.

The massive amount of documentation made available in the indictments, judgments and trials themselves have helped to create an invaluable base of information of the terrible events of those years.

Some of the evidence which has surfaced, such as the videotape of Milosevic; greeting members of the Red Berets for their clandestine services in Bosnia and Croatia, for example, is priceless.

At the same time, the ICTY has fallen short of its original purposes and the hopes of its founders. The publicly televised trials have not had the impact on public opinion we expected. Far from helping the process of reconciliation, many would argue that ICTY has been a major source of "fuel" for nationalism and political destabilization in this region over the past decade.

One of the major reasons for this gap between expectation and reality is the absence of any serious Western review or criticism of its work and corresponding "course corrections."

The reasons include the reluctance of Western political leaders to criticize an international institution they set up and whose leadership they appointed; the wide-spread belief that prosecuting war criminals responsible for the bloody years of violence in the Balkans is one of the most noble efforts to come out of that time (and consequently deserves unreserved support); and a general reluctance to be seen as "interfering" in the work of an independent judiciary.

The nominal overseer, the United Nations Security Council, gave way too much latitude and far too little guidance to the ICTY.

Much of the regional unhappiness over the work of the ICTY is based on the consequences of trying to ensure that the whole process is fully in compliance with modern legal standards.This is a burden earlier war crimes trials, such as after the Second World War, did not have to meet.

This has resulted in overly long trials; overly long periods of pre-trial detention for indictees; and most importantly, an extension of the whole indictment process for more than ten years following cessation of hostilities.

This has meant that new, fragile democratic governments in the region have been repeatedly forced to focus on dealing with nationalistic pressures arising out of the indictments rather than on other challenges of transition from their communist, authoritarian past. As the ICTY deliberately chose to focus on high-level culpability and not actual "shooters," the indictments have generated intense controversy.

This is due in large part to the fact that throughout the Balkans, the command structure on paper was radically different than that in actual practice. Determining true "command responsibility" in these situations is at times very difficult and certainly controversial.

Dealing with this fundamental conflict between the need for closure and quick justice and meeting correct legal standards was never really addressed and it needs to be. Certainly not nearly enough thought was given to the impact that the ICTY procedures was having on the region it was supposed to be helping.

It must also be recognized that the ICTY at least in this region will forever be linked with its former Chief Prosecutor, Carla Del Ponte. Her departure at the end of 2007 was long overdue. She is responsible in two critical ways for the ICTY being in the end far less successful than it could and should have been.

The reality is that not one indictee ended up in The Hague due to the travels of Carla Del Ponte in the region itself. All indictees arrived there because of actions taken and pressure applied by the United States and members of the European Union, collectively and individually.

U.S., French, and British troops directly arrested a number of indictees. Pressure put on by our governments led to other indictees either being apprehended or surrendering. It also led to the turning over of critical documentary evidence leading both to more successful prosecutions and also aiding in locating fugitives. All of Carla Del Ponte's high-profile visits, therefore, generated a lot of media attention, but did not bring in more fugitives.

In fact, her "bull in the china shop" attitude towards the fragile democratic governments in the region strengthened nationalistic feeling in all of these countries; made the democratic transition more difficult; undermined fragile, new democratic governments; and actually made it harder, rather than easier to transfer indictees to The Hague. Absent Carla Del Ponte, the chances that Mladic and Karadzic would be in The Hague right now would probably be higher.

She is also to be faulted for a number of tactical and strategic decisions she made as Chief Prosecutor. The trial of Slobodan Milo"evic; was her signature event and it is a case study in mismanagement and misjudgment. The decision to join the three indictments of Milo"evic; for Kosovo, Bosnia, and Croatia into one gigantic case directly led to a four-year trial which would still now be going on if the defendant had not died.

Far better to have had three separate, consecutive trials. Secondly, by trying to prove Milo"evic; guilty of everything under the sun [he was], the Prosecution was required to present a parade of witnesses that never seemed to end. Furthermore, many of these witnesses had little to contribute other than second-hand knowledge of alleged crimes.

The U.S. government helped to subsidize the initial broadcasts of the trial because we mistakenly believed it would help to educate everyone about what happened and Milo"evic's role. However, the initial witnesses presented by the Prosecution against him lacked credibility and the end result was that Milo"evic; was gaining popularity in Serbia during the trial rather than losing it.

Determined to convict Milo"evic; on all counts, she entered into an agreement with the Serbian government to get access to certain key government documents by promising that they would not be shown to outsiders.

These documents would have been of critical importance in the two trials at the separate International Court of Justice on the charge of genocide against Serbia brought separately by Croatia and Bosnia. While claiming to be "above politics," the reality is that certain of her indictments and her actions were clearly designed more to show ethnic "balance" in her approach than anything else.

Carla and her spokesperson also consistently overstated and exaggerated "evidence" of the whereabouts of fugitives. During my own mandate in Serbia, we consistently found that intelligence provided by the ICTY on the location of indictees proved totally erroneous.

Yet, she used that faulty evidence time and again to demonstrate "non-compliance" by regional governments. How many times did we hear from the ICTY that Ante Gotovina was hidden in Croatia or the Croat areas of Bosnia, only to have him finally arrested in the Canary Islands?

None of the above is really "news" to senior levels of key governments. But they chose to overlook it in part because at the time her mandate first came up for renewal, the United States was in the midst of its troubles with the UN over Iraq and did not want to have any other controversial issues come up.

The cost to the region, however, has been very high. Her departure in no way means that the damage she did will disappear along with her.