Washington Daily and a Former US Ambassador Launch Misguided Attack on the UN War Crimes Tribunal
October 29, 2004

This month, the Hague tribunal’s many opponents in Belgrade believed they had a reason to be jubilant. In the space of ten days, a former United States ambassador and a newspaper supposedly close to the current administration criticised the UN court and strongly argued in favour of trying indictees before domestic war crimes courts. Serbia’s nationalists had won an all-powerful ally in their fight against the tribunal – or so it seemed.

However, their glee was short-lived. On October 25, one day after commentator Jeffrey Kuhner announced in the Washington Times that US policy was turning against the tribunal, this was flatly denied by a State Department spokesperson, who reiterated that US policy remained unchanged.

The claims made by Kuhner – a long-time lobbyist for tribunal fugitive General Ante Gotovina – are hardly worth commenting on, especially in the light of an official denial by the US administration. He describes the UN court as “a Frankenstein monster”, dismissing Chief Prosecutor Carla del Ponte as a “Lady Macbeth of the Balkans”, and also accuses her of issuing weak indictments.

The Kuhner article and a previous commentary by William Montgomery, former US ambassador to Serbia and Montenegro, also allege that the tribunal and Del Ponte have created political instability in the Balkans and hampered the growth of a capable domestic judiciary.

Montgomery’s criticism, which appeared in several outlets in the Balkans in mid-October, verges on the incredible at times. The former ambassador writes that, to avoid creating political instability in the region, the tribunal should have issued all its indictments in the first two years after the war.

But Montgomery must know that, in the immediate post-war period, no prosecutor could properly investigate and issue indictments in all cases that warrant war crimes prosecution. Given the pervading climate of impunity in the region, most alleged criminals would not have been tried at all.

To a foreign policy “realist”, however, stability seems to be more important than the notion of justice and basic decency, both of which require those responsible for war crimes to be brought to justice.

The issue of whether instability stems from tribunal indictments in the first place is a separate one. Montgomery and many Hague opponents argue that this is the case, but another equally plausible explanation is that impunity has allowed many war criminals to remain in positions of power from where they can destabilise the transition to democracy.

Montgomery also claims that, by prosecuting war criminals in The Hague, the tribunal has hampered the development of domestic judiciaries.

In reality, it is the local political elites – not Hague prosecutors and judges – who have controlled the judiciaries and discouraged fair and effective war crimes prosecutions in the region. If anything, the tribunal has spurred on the establishment of special war crimes chambers in former Yugoslavia.

The former ambassador, not a lawyer by training, also believes that he can teach Hague’s prosecutors and judges a legal lesson. The tribunal should have relied less on the concept of command responsibility, he argues, because some nominal superior officers often had no actual control on the ground.

But the tribunal is already aware that a nominal superior may not have had de facto control over his subordinates. Establishing the existence of such control is a key requirement of a successful prosecution in cases of command responsibility.

In any event, nationalist elements in the region seem mainly to object when the tribunal pursues those superior officers who did have effective control over the perpetrators of a war crime.