The Court of Last Resort

La Caccia: Io e i criminali di guerra
(The Hunt: Me and the War Criminals)
By Carla Del Ponte (with Chuck Sudetic)
416 pages, Milan: Feltrinelli, 2008 (in Italian)

On March 11, 2006, I took a train from Budapest to Belgrade to attend a family gathering. It was my first trip to Belgrade in nearly 15 years. The train was empty, and I shared an entire car with just one other passenger. "Aleks," I’ll call him, had once been a member of the cabinet of the last prime minister of Yugoslavia, Ante Markovic, and was now running an import-export business in Vienna. We discussed the Bosnian war, Serbian politics, and American influence in the Balkans. We gingerly circled around issues that could reveal our own political positions, such as the NATO bombing of Belgrade. Aleks expressed longing for the times when he still felt like a citizen of the world rather than a member of a pariah nation. About an hour outside Belgrade, his cellphone rang. He listened intently, his face tightened, and when the conversation ended, he turned to me and said,"It’s over." And then he added, "She knew she could not get the conviction, so she killed him. It is all over."

He had just learned that Slobodan Milosevic had died in prison in Scheveningen, where he was held during his trial at the International Criminal Tribunal for the Former Yugoslavia. Six years after Belgrade’s October Revolution, which ended Milosevic’s reign, Aleks still believed in the innocence of the former Serbian leader.

The "she" to whom he was referring was Carla Del Ponte, the Swiss former chief prosecutor of the tribunal and author of a provocative new memoir, La Caccia: Io e i criminali di guerra (The Hunt: Me and the War Criminals), written in collaboration with former New York Times journalist Chuck Sudetic. During her eight-year tenure at The Hague, Del Ponte made few friends in the former Yugoslavia. Croats begrudged her treatment of their precious war of liberation against the Serb rebel minority as yet another episode of ethnic cleansing. Bosnians could not forgive her that Radovan Karadzic and Ratko Mladic, the two most sought-after war criminals, were still at large. Serbs found it unfair that their compatriots represented the majority of the accused in The Hague, blamed Del Ponte for ignoring Serb victims in Kosovo, and believed that nothing short of foul play could explain why seven Serbs — no Croats, no Muslims — died during or after their court proceedings. Even Kosovar leaders were furious with Del Ponte. Their most talented politician, the darling of the international community — former Prime Minister Ramush Haradinaj — was indicted in 2005, just as he helped stabilize the situation in Kosovo. In the book, Del Ponte reveals that she was fully aware of their resentments. Wherever she went, Del Ponte writes, she was greeted with graffiti that characterized her as "the whore," while public officials from the United States, Rwanda, and nearly every country in between built "rubber walls" feigning cooperation and stalling investigations of suspected war criminals in their territories.

Not surprisingly, The Hunt — full of detailed accounts of Del Ponte’s meetings with a variety of world leaders and criminals, and peppered with hints of political intrigue behind tribunal decisions — has stirred controversy from every corner of Europe. The Swiss foreign ministry has cautioned Del Ponte that, in her current capacity as the Swiss ambassador to Argentina, she should refrain from publicly promoting her memoir. Albanian politicians have requested a total ban of the book due to Del Ponte’s bombshell allegations that the Kosovo Liberation Army participated in trafficking of human organs. Russians, on the other hand, have suggested that they will request a full investigation into these claims on behalf of their friends, the Serbs. Croats are debating whether Ante Gotovina, a general accused of war crimes, was ultimately betrayed by his wife’s jealous phone calls since, according to Del Ponte, he was captured in the Canary Islands in the company of an attractive young woman. And Catholic bishops in Croatia and the Vatican are having a fit because Del Ponte says they refused to cooperate with the search for Gotovina.

Yet, most of the details in Del Ponte’s memoir that have drawn Europeans’ ire have been taken out of context and recycled by people who have obviously not read the book. For instance, the claims of organ trafficking in Albania and Kosovo are never elevated to anything beyond allegations; indeed, though concerned about their possible veracity, Del Ponte assigns them the status of an urban legend. One can debate the merits of their inclusion in the book, as well as of her depictions of Kosovo as some backward tribal land, but they do prove just how difficult it is to verify crimes in volatile postconflict circumstances. Similarly, descriptions of George Tenet’s rudeness, Kofi Annan’s aloofness, the Vatican’s recalcitrance, Serbian backpedalling, Croatian hypocrisy, and Del Ponte’s own penchant for designer bags all add color and spice to the narrative, but they are hardly the essence of the book. Instead, Del Ponte’s memoir is really an account of the structural constraints — both within and outside the tribunal — that rendered it much less effective than it could have been.

The first, and the most important, obstacle to the tribunal’s success, according to Del Ponte, is its status as a transnational institution bound by the international state system. As American realists would say, the tribunal suffers from the same 9-1-1 problem that states do: In case of emergency, there is really no one to call but the very states that have created the danger in the first place. The tribunal has no police to rely on, and it is dependent — both for investigations and arrests — on states that have few incentives to cooperate. Thus, in Del Ponte’s view, politics continues to trump justice, stability is viewed as more important than the punishment of war crimes, and even members of the U.N. Security Council — the tribunal’s founding fathers — have little reason to breach prerogatives of sovereignty in pursuit of the lofty ideals of international law.

The second obstacle to the court’s effectiveness is embedded in the contradictions between common and civil law, which are somehow supposed to mesh at the tribunal. Del Ponte points out the difficulties, and occasional absurd legal decisions, that stem from different standards of admissible evidence; different understandings of the relationship between prosecutors, judges, and appeals courts; and different interpretations of the rights of victims and the rights of defendants in these two legal traditions. Del Ponte’s anger is most obvious when she describes the lavish treatment given to indicted war criminals, in contrast to the lack of protections given to victims willing to testify. Belief that a person is innocent until proven guilty seems rather foreign to Del Ponte’s training in civil law, which grants the prosecution far greater latitude in the handling of defendants than common-law tradition. In many ways, what comes through in Del Ponte’s text is that she firmly believed that the people she put on trial were guilty — and all other legal formalities were obstacles. One is left to wonder if such a view may have contributed to some of the flaws in the prosecutions of several of the tribunal’s key defendants, at least one of whom won his release on appeal.

Finally, there is the difficult task of building cases against leaders in wars where state boundaries are blurred, where written orders are nonexistent, and where investigators are unschooled in the local political and cultural terrain. In high-profile cases, these problems are compounded by the lack of a paper trail. Milosevic’s indictment and verdict hinged upon a careful reconstruction of the chain of command of the Serbian Army, police, and paramilitary troops operating both inside and outside Serbia. But that chain could not be discerned from the crimes themselves or from written orders. The prosecution’s case depended on transcripts of meetings between the presidents of Serbia and Montenegro and the president of the former Yugoslavia, as well as on wiretaps of conversations between Milosevic and his minions, both of which were difficult to obtain and left the tribunal hostage to a variety of political interests and intelligence agencies.

Del Ponte’s view that the tribunal is manipulable by states according to their interests only confirms what most critics of the tribunal have thought all along: that it does not act in the interest of justice, but in the interest of great powers. The links between the state, police, secret services, and criminal underworld have only been solidified by the protracted search for justice in the former Yugoslavia. The Hague has become a lightning rod for nationalists of all sorts, a rallying point for their political mobilization, and an excuse to ignore the unpleasant past. As Aleks’s story illustrates, how individuals, countries, and nations come to terms with their own atrocities has proven to be far more elusive than any court’s reach. Thus, despite its legal achievements, such as the establishment of rape as a war crime, any account of international criminal tribunals, including this one, reads like an account of profound disillusionment.