Die Jakkalsgat

Thursday, November 11, 2004

Carla del Ponte at NATO

The following text was written recently by a good friend who initially asked me for my opinion and comments on it. He's quite a senior bod at NATO headquarters in Brussels, and since we have both just finished doing a post-graduate degree course in international relations, I can vouch for the fact that he does actually know a bit about the subject matter.

We got talking about the internet and blogging and he suggested I add it to my pages. I've already warned him that, other than myself, he is the only other person now that knows 'Die Jakkalsgat' even exists! Ha! Ha!

In order to appreciate the text, it helps if you have a bit of knowledge already on the subject, and more importantly, and interest in the matter. Otherwise, it will just be a complete bore.

Carla del Ponte and ICTY: Pushing Water Uphill?

On 3rd November 2004, The Chief Prosecutor of the International Tribunal for the Former Yugoslavia (ICTY) Ms. Carla del Ponte addressed the North Atlantic Council, NATO’s highest permanent political authority. During her speech, she managed not only to criticise the authorities in Croatia, Bosnia Herzegovina (BiH) - in particular Republika Srpska - and Serbia Montenegro (SCG), but also NATO itself and the wider International Community. Moreover, she bemoans the withdrawal of funding by some states, and the removal of intelligence assets to better focus on the Middle East; she is clearly not a satisfied woman. At what point will she realise that ‘pushing water uphill’ is not just a thankless task, but also neigh on impossible?

Previous addresses by Ms. del Ponte to NATO and the United Nations Security Council have been more selective in their criticism, invariably directed in the main against Serbia, in particular its stubbornness in not providing full cooperation to her and her prosecutors. This address was more even-handed, and even showed a glimmer of compromise. Maybe, the hard ‘truths’ are at last beginning to dawn upon her: the ICTY has not, and will not, bring reconciliation, peace and security to the former Yugoslavia; and that those states that were most vigorous in using the ICTY, either by default or by design, as a political tool, are now recognising that ‘international justice’ is a double-edged sword. If Slobodan Milosevic, as Commander-in-Chief, can be prosecuted for preparing and permitting an environment in which individual war crimes were committed in Kosovo, then surely George Bush and Tony Blair should accept similar responsibility for similar crimes in Iraq. If the use of force against armed insurgents using terror tactics in Kosovo by the Yugoslav Military (VJ) through 1998 and 1999 is considered ‘disproportionate’ – and thus a war crime; then the US Army’s tactics in Iraq must also be considered ‘disproportionate’ and war crimes.

In her address, Ms. del Ponte states, “the Serbian authorities are not ready to arrest and transfer the persons indicted,” and suggests that the main reason for this is that certain “networks” have manipulated the Serbia media, and thus public perception, into believing that the “indictees are … heroes.” For the first time, Ms. del Ponte is ‘recognising’ the problem – but she still fails to ‘understand’ the problem. Prime Minister Kostunica is not against the arrest and transfer of the indictees simply for the sake of being stubborn, nor is it because he feels the indictees have no case to answer, nor even is he against the basic principles of the ICTY; indeed, as del Ponte rightly notes, he is actually encouraging “voluntary surrenders.” His concern is the damaging effect such a move will have on the very stability of Serbia. An authorisation to arrest and transfer would be akin to political suicide - his coalition minority government would fall - resulting almost inevitably in a Radical Party (SRS) government under Tomislav Nikolic. Surely no NATO member state would welcome that result? Cooperation with the ICTY is no longer a question of morals or ethics, nor even of seeing justice served – Kostunica is clearly in favour of prosecuting the individuals concerned, but in Serbia not the Hague - it is now simply a matter of political practicalities, and whether the ICTY is likely to help or to hinder the process of long-term peace, stability and reconciliation in the Western Balkan region.

Nevertheless, there is some encouragement in this address for Serbia. Previously, Ms. del Ponte and her team of prosecutors have stressed their expectation that all indictees would be tried in the Hague. There is now explicit recognition that only the “most senior officials” need appear at the Hague, and the less prominent cases may be held locally. This is a major step forward for Serbia. Although there is no clear definition as to who is a “most senior official” and who is not, the apprehension of Ratko Mladic and/or Radovan Karadzic could well result in a agreement for Pavkovic, Lukic, Lazarevic et al to be tried in Belgrade - a compromise that has a strong possibility of public acceptance in Serbia. Moreover, there has now a recognition within NATO circles that the actual apprehension of suspects who are well aware that they are ‘on the run’, is not a simple process. If SFOR can be criticised by del Ponte in their repeated failures to locate and apprehend Karadzic, they (NATO member states) can hardly point fingers at Serbia. However, there are still some who feel the matter is a relatively simple process. Daniel Serwer, Director of the Balkans Initiative at the United States Institute of Peace, believes that Kostunica’s “impeccable nationalist credentials” should make extraditions to the ICTY a formality. In effect, he is implying that Kostunica is colluding with Mladic and Karadzic in their attempts to evade justice. What he is ignoring is the fact that even if Kostunica can establish, or already has, communication with said fugitives, the moment he makes the slightest move against them, they will break contact. Kostunica can exert as much influence as he likes over the ‘nationalist’ element in Serbia, with carrots and sticks, but if Mladic chooses not to listen, it is all in vain. It is doubtful that Mladic will be impressed by “impeccable nationalist credentials”.

The third element of encouragement in del Ponte’s address must be the general acceptance by her that ‘uncooperation’ is not an exclusively Serb trait. Some may wish to over-highlight the specific criticism of Serbia, but it is equally damning of all concerned. Indeed, reading between the lines, one should see her constant ‘frustration’ with Serbia in comparison to her ‘condemnation’ of the Kosovo Albanian position. Serbs can argue over whether the ICTY is ‘truly’ unbiased or not, whether it is a ‘political charade’ or not, but the fact remains that the prosecutors of the ICTY can only work with the evidence and the information put before them. The ‘Srebrenica case’ began with Radislav Krstic as the sole indictee, but has now developed as ‘new’ evidence comes to light, to encompass an additional eight individuals – including sufficient material to indict Naser Oric. Slobodan Milosevic, irrespective of his apparent contempt for the due process, has managed to effect significant changes in the understanding of the nature of Yugoslavia’s break-up within sections of the International Community; this would not have been possible if he were not on trial in the Hague.

The ‘Hague’ court may well close down sometime in the near future due to a lack of funds and a tiring of international patience, but the ICTY legacy will not go away. War crimes courts will be active in Belgrade, Zagreb, Sarajevo and elsewhere for many years to come. The only way that Mladic and Karadzic will evade justice completely is if they die before they are found and caught. Are they any more willing to present themselves before a prosecutor in Belgrade or Banja Luka? It is doubtful.

Although some will always believe that the ICTY exists purely to punish the Serbs, it is simply not so. The aim of the ICTY is to, “bring to justice persons allegedly responsible for serious violations of international humanitarian law; to render justice to the victims; to deter further crimes; and to contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia.” If a Serb has committed a crime, he should be punished. The fact that others, i.e. non-Serbs, also committed crimes does not provide an excuse, a justification, nor exemption from the legal process. But if the ‘system’ is not delivering on those aims, then maybe a change of the system is warranted. The process has already begun for the transfer of cases to local courts. This move must be applauded. The extradition of individuals to the Hague has given rise to the opportunity for the accused to become martyrs in the eyes of their supporters. This has entrenched nationalistic rhetoric and driven people further apart – contrary to the specific aims of the ICTY for reconciliation. If a case is heard locally, there is far better expectation that the public will actually take note of the ‘charge sheet’ - rather than blindly offering ‘Serbian brotherhood and unity’ - and then begin to understand what crimes have been perpetrated ‘in their name’. Samo sloga Srbina spašava will not make a murderer innocent.

Moreover, the sequencing of this hand-over is most welcome. Moving cases to Serbian courts in advance of a Mladic/Karadzic extradition, suggests genuine international desire to ‘work with’ Serbia rather than to ‘punish’ Serbia. This is in direct contrast to the approach proposed by Daniel Serwer. At a recent US Congressional Hearing, he stated, “When both the U.S. and EU agree to withhold assistance and block IMF loans, all of the war criminals in Serbia will go to The Hague.” He is, in effect, advocating a policy of ‘starving to the point of surrender’ the Serbian people. This is a serious accusation, but it is also the likely outcome of his policy - if that policy is pursued to its fullest extent. Let’s examine the process. If Serbia remains uncooperative, it is to lose all international aid; then the economy will collapse; those with skills and money will emigrate; the SRS will be elected to power; the SRS government will pursue policies of further isolationism and truculence towards international organisations – still no indictees are extradited and the local justice process halts. At this point the International Community reaches a cross-roads, to accept failure and work with the SRS government, or impose and enforce even more severe sanctions. One can only expect the worse. In effect, Daniel Serwer’s recommended policy is underpinned by the assumption that a Serbian politician will step forward and campaign for election on the platform of: ‘I surrender!’ This is unlikely to happen at any time in the near future. Serbs will have to be on the point of starvation before they agree to this form of government. In this context, any moves by the International Community, in particular the ICTY, to work with Serbia must be welcomed and encouraged.

Kostunica heads a minority government that faces daily criticism from the Radicals, the so-called Democrats, and even from within his own coalition when it comes to actual policy application – although all in the coalition agree on the broad policy direction. It is very difficult to imagine a more unstable political situation. Any overt and genuine effort by the International Community to recognise and support Kostunica’s reform process; the economic; the democratic; as well as judicial reforms, will provide a much needed fillip. The more the International Community can overtly contribute, by placing ‘faith’ and/or ‘trust’ in Kostunica’s hands, the more stable the platform becomes. Political stability will encourage further inward investment to Serbia, improving economic conditions and undermine the grassroots support base of the SRS. Furthermore, Kostunica can use this stability and economic improvement as the basis for arguing for better cooperation from Serbia with the International Community. Remember, it is not the Serbian Government that needs to be ‘encouraged’ by the International Community to be more cooperative – even under Zoran Djindjic it remained quite resilient to such efforts – it is the Serbian people that need to be ‘encouraged’ by their own government. Whereas Serwer still fails to recognise this, del Ponte maybe now does. However, both fail to ‘understand’ the dynamics of this three-way relationship, and thus are unlikely to achieve a desirable result.

This policy approach may not immediately produce Mladic in front of a judge in the Hague, but it will provide the basis of a more stable and peaceful Serbia. Remember, economic impoverishment is considered to be the single most important factor in creating discontent, political and security instability and so on. Just what is more important to the wider International Community: a queue of alleged war criminals outside the ICTY front door; or a stable, prosperous and peaceful Serbia. The assumption that the only way to achieve the second is via the first is false. Moreover, the divisions between the various Peoples of the former Yugoslavia are no less entrenched today than yesterday. The ICTY’s remoteness is part of the problem. It has now come to the point where a Hague based ICTY can only achieve its stated aim of bringing about reconciliation if all the indictees are found guilty. Imagine that the Mladic case is dismissed or he is found innocent, after all that has been claimed and assumed over the past decade, can anyone realistically expect inter-ethnic tolerance to improve? In order for the ICTY to bring understanding and reconciliation to the various communities, there is a presumption of guilt against the accused. Is this the way forward?

Carla del Ponte has an unenviable task: to turn into reality an almost impossibility. In many ways she has become, by default, the ‘bad cop’ in a familiar double act routine. Individual states can approach Serbia offering incentives and inducements, then threaten to throw Serbia to the ICTY wolves if they do not comply. The inducement of a trade-off from the US Ambassador-at-Large for War Crimes Pierre-Richard Prosper over the past 12 months were initially quashed by del Ponte’s office, however, now it seems to have become policy - only the precise definition of who constitutes a “most senior official” remains unanswered. Del Ponte has always been an independent maverick, upsetting the US almost as much as she has upset Serbia. Has the US now been able to ‘tame’ her, or has she finally realised that pushing water uphill is neither efficient not sensible?There is just one more observation to be made. In this latest address, there is a definite shift away from emphasising the need to bring peace and reconciliation – a tacit confirmation that the ICTY is not delivering? – to highlighting the need to bring justice to the victims. More than anything else this should be applauded. However, justice need not be determined in the Hague, and administered by the International Community. Maybe, just maybe, justice would be better served if it comes from within rather than without.


  • It seems the problem in its most general form may stem from the belief that these matters of state and international politics ought to first be settled as matters of principal, then designed as lawyerly or prosecutorial institutions, then implemented as prosecutions.

    In the flawed and famous cases of WW2, i.e. Nuremburg and the Japanese war-crimes trials, the matters of state were settled by violent and bloody military victory. The lawyerly structures were designed and the prosecutions were implemented according to the fair-play standards of the victors, not in accordance with overarching consensus standards.

    Which did not exist then. And do not exist in the current world.

    This is hardly limited to ICTY and del Ponte. The UN-sponsored legal fiasco in Rwanda comes to mind, as do, in a different way, the US difficulties in Guantanamo.

    Del Ponte, in my limited knowledge of the situation, has never been willing to face up to these problems. Perhaps it is impossible for someone with her mandate to do so.

    If something is not able to be accomplished at all, is it worth trying to do it right? That seems to be one of the unfortunate questions that a utopian institution such as ICTY has to deal with.

    By Blogger AMac, at 12 November 2004 at 22:21  

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