Global Policy Forum

By Jeffrey T. Kuhner

Since ancient Greece, one of the central questions in Western political life is: "Who guards the guardians."

This is especially pertinent regarding the international criminal tribunal for the former Yugoslavia (ICTY) at The Hague. The tribunal was created in 1993 by the United Nations Security Council; it was charged with the responsibility of bringing to justice those who committed war crimes during the violent break up of Yugoslavia. Sadly, The Hague has been a disappointment: The prosecutor's office has engaged in abuses of power and issued flawed indictments that pose a threat to U.S. national interests.

The most obvious example of the tribunal's incompetence is the current trial of former Serb strongman Slobodan Milosevic. This has been a public relations disaster for The Hague, as Mr. Milosevic has put the prosecutor's office on the defensive, charging that he is the victim of a Western smear campaign.

Despite the overwhelming evidence that the Butcher of Belgrade masterminded the ethnic-cleansing campaigns in Croatia, Bosnia and Kosovo, the prosecution has so far failed to document Mr. Milosevic's numerous crimes. These include the destruction of Vukovar, the massacre of more than 7,000 civilians at Srebrenica, the savage shelling of Sarajevo, and the murder of countless ethnic Albanians, whose graves are now being discovered all over Serbia.

The tribunal's chief prosecutor, Carla Del Ponte — like most European leftists — is uncomfortable with the notion of moral absolutes. She refuses to acknowledge that Mr. Milosevic in particular, and the Serbs in general, bear the brunt of responsibility for the war crimes committed in the Balkans. Hence, she is looking for an ethnic scapegoat to offset the complaints from Belgrade that her office is demonstrating "bias" against the Serbs. Mrs. Del Ponte believes she has found it in the Croats.

In June 2001, the prosecutor's office issued an indictment for Croatian Gen. Ante Gotovina on charges that he exercised "command responsibility" over a 1995 military operation in which Zagreb recovered territories seized by rebel Serb forces during Croatia's successful drive for independence in 1991. The operation resulted in the mass exodus of 150,000 ethnic Serbs from Croatia. The United States supported the offensive because it rightly concluded that Croatia was pivotal to altering the strategic balance of power in the Balkans. The operation not only restored Croatia's territorial integrity, but also paved the way for the Dayton peace agreement that ended the war in neighboring Bosnia.

The Gotovina indictment is deeply flawed; it is also revolutionary in its implications for international criminal law. The theory of "command responsibility" violates the basic tenet of the definition of a war crime — the principle of personal responsibility for one's actions. The Croatian general is not accused of individually committing or ordering atrocities; he is simply guilty of being in "command" when alleged war crimes were committed. The ultimate goal of the indictment is not only to punish the Croats for exercising their legitimate right to self-defense, but to make war itself a crime.

Rather than dropping the charges against Gen. Gotovina, Mrs. Del Ponte's office is now examining whether to expand the indictment to include high-ranking U.S. officials — such as former President Bill Clinton — on the grounds that they exercised ultimate "command responsibility" for the operation.

Troubled by the implications of the Gotovina indictment, the State Department has asked the prosecutor's office to transfer cases involving Croatian military officials back to the domestic courts in Zagreb. But Mrs. Del Ponte continues to thumb her nose at the United States, demanding that Gen. Gotovina be arrested and sent to The Hague to face trial.

Furthermore, the prosecutor's office is abusing its powers. ICTY spokesman, Florence Hartmann, has directly lobbied journalists and media outlets in Croatia, demanding that pro-Gotovina coverage be dropped. She has sought to bully and intimidate reporters asking about the ICTY's basis for the Gotovina indictment.

Mrs. Del Ponte is now requesting that her mandate as chief prosecutor be extended past its September 2003 expiration deadline until Mr. Milosevic's trial is over. Instead of renewing her mandate, the Bush administration should demand an independent investigation of Mrs. Del Ponte's office for its abuses of power, its unethical indictment of Gen. Gotovina and its utter incompetence in prosecuting the greatest mass murderer of the late-20th century.

At the very least, the United States should use its veto at the U.N. Security Council next year to block Mrs. Del Ponte's reappointment. Washington must hold The Hague accountable for its actions. If it doesn't, who will?

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