National Journal, October 7, 2000
By now you have probably heard of two of the three central characters in the struggle for the Yugoslav presidency. Slobodan Milosevic, the authoritarian incumbent, came to power in the late 1980s and subsequently was responsible for two Balkan wars and countless acts of "ethnic cleansing." Vojislav Kostunica, the opposition's moderate leader, challenged Milosevic in elections on Sept. 24 and plausibly claimed to have won, despite the government's dubious insistence on a runoff. The third key character, by contrast, is more obscure. Her name is Carla Del Ponte, and she works 650 miles away from the Balkans, in The Hague, where she is chief prosecutor of the United Nations' International Criminal Tribunal for the Former Yugoslavia. Last year, she indicted Milosevic for war crimes committed by his forces in Kosovo.
On Sept. 19, less than a week before the election, the Associated Press asked Del Ponte about reports that Milosevic might be given immunity from prosecution in exchange for agreeing to step down and disappear. "It's impossible," she said, "because the indictment against Milosevic can be withdrawn only after a request from the prosecutor to the judges. And I'm now the prosecutor and I will never, never, never request a withdrawal of the indictment." In case anybody didn't understand "never, never, never," she added that her investigators were preparing to expand the Milosevic indictment. So much for any deal to end Yugoslavia's nightmare.
A tactless independent prosecutor—imagine that! Americans know a thing or two about this prickly, 10-thumbed species. Lawrence Walsh, the Iran-Contra independent counsel, tripped up the Bush campaign by indicting former Defense Secretary Caspar Weinberger only days before the 1992 election. Donald C. Smaltz investigated former Clinton Administration Agriculture Secretary Mike Espy obsessively for four years, only to see Espy acquitted on all 30 charges in 1998. Kenneth Starr—well, one barely knows where to begin.
All of these lawyers were honest and conscientious and dedicated, and so is Carla Del Ponte. But independent prosecutors are paid to prosecute independently—a fact that bears reflecting upon as the world moves toward creating an international version of Starr.
As of now, according to the State Department, 113 countries have signed a treaty to establish an International Criminal Court. Among the few demurring nations is the United States, which supports the ICC in principle but opposes provisions that the Clinton Administration fears might haul American peacekeepers or soldiers before judges in The Hague even if the United States chooses not to join the ICC. Nonetheless, 21 countries have ratified the treaty, and when the total reaches 60, the ICC will be open for business.
The idea is to replace ad hoc war crimes tribunals, such as the U.N. tribunals for Yugoslavia and Rwanda, with a permanent court in The Hague. An independent prosecutor would investigate alleged war crimes and crimes against humanity: genocide, enslavement, rape, forced pregnancy, ethnic persecutions, and so on. Then the prosecutor could bring charges against individuals. Member nations will be required to cooperate and extradite suspects.
Might an excitable prosecutor run amok? Unlikely, say the ICC's proponents. For one thing, the prosecutor is supposed to defer to states' own good-faith investigations of alleged war crimes. Moreover, the prosecutor cannot begin an investigation without the permission of her overseers—a three-judge panel.
A three-judge panel? Like the one that oversaw Starr, Walsh, and other American independent counsels? If this is starting to sound familiar, it should. The ICC and America's mercifully defunct independent-counsel law resemble each other because both start from the same premises: First, justice is sullied when it compromises with politics; second, powerful people and regimes cannot be trusted to investigate themselves. Prosecutors and courts, therefore, must be as detached, independent, and incorruptible as possible.
All true, up to a point. The ICC's proponents are right to hold justice to exacting standards. They are right to complain that many regimes are either unwilling or unable to bring genocidaires, ethnic cleansers, and torturers to justice. They are right to say that the threat of a war crimes indictment can be a powerful moral inducement even when it cannot be enforced. But they can be right about all of that and still be wrong about the ICC. If you want to see why, look around.
Last year, the Indonesian armed forces, in collusion with militia thugs, killed hundreds—perhaps thousands—of independence supporters in East Timor and laid waste to the region. While that was going on, Indonesia was itself in transition from authoritarian rule to a precarious democracy, led by a decent man named Abdurrahman Wahid.
The United Nations spoke of sweeping into Indonesia with a Hague-style tribunal to investigate and try the leaders of the massacres, among whom were six top generals. Horrified, Wahid objected that the armed forces might react by destabilizing the country. Wisely, the United Nations backed off; but what if an independent prosecutor were in charge? Could the world count on a professional prosecutor to tread lightly in a delicate situation? The question practically answers itself.
Often, as in Milosevic's Yugoslavia, it's impossible to know whether the threat of prosecution will deter a leader's savagery or prolong it by blocking his exit. On the one hand, Kostunica used the indictment as ammunition in his campaign, taunting Milosevic as a president who "doesn't dare leave home." On the other hand, no one doubts that the indictment increased the determination of Milosevic and his allies to cling to power. Because of the indictment, Kostunica said in September, Milosevic is "actually fighting for his life."
Calculating the odds in such a case will never be easy; the question is, Who should do the calculating, politicians or prosecutors? Politicians and diplomats see and weigh many variables. Compromising with lesser evils to avoid greater ones is the essence of their trade. Independent prosecutors, by contrast, see only crimes and laws. A deal with the devil? "Never, never, never."
The ICC's defenders often imply that the alternative is simply to let war criminals off the hook. In fact, says Catharin Dalpino, an East Asian expert at the Brookings Institution and a former State Department human rights official, a better alternative may be emerging under our noses. In Cambodia, under an arrangement brokered by Sen. John F. Kerry, D-Mass., two U.N. judges will join with three local ones to try the leaders of the Khmer Rouge genocide. In principle, as Dalpino points out, this hybrid method could become an international model. "It recognizes state sovereignty but also allows a significant role for the international community," she says. Moreover, the trials will take place in Cambodia, which, as Dalpino notes, is important. "When you take a trial out of the country, you seem to be saying you don't trust that country to be fair or accountable."
Unfortunately, many human rights activists hate this new concept. "We're afraid that this is a precedent that will come back to haunt the U.N. elsewhere," Kenneth Roth, the executive director of Human Rights Watch, told The New York Times in May. The United Nations, he added, has conducted trials with "scrupulous regard for due process." Cambodian judges, he implied, will not.
Such advocates mean well, but the Kiplingesque condescension implicit in their positions—a kind of legal colonialism—becomes evident from the Times headline announcing the Cambodian deal: "U.N. Allows Cambodians to Take Part in Trial of Khmer Rouge." Moreover, much though Westerners hate to say so, American-style judicial meticulousness is a luxury that not all poor or unstable countries in recovery from genocide or mass butchery can afford. The agonizingly slow International Criminal Tribunal for Rwanda has managed to complete only eight or so trials since 1995. Some of the sentences—for genocide, mind you—have been as low as 12 years. The Rwandan government, whose own brand of justice is rougher but swifter, is understandably dismayed.
The ICC may be inevitable, and it is certainly well intentioned, and it may work out fine in the end. But it nonetheless smacks of moral grandstanding, and it deserves more critical scrutiny than it has received. The Clinton Administration has been content to challenge the ICC on parochial grounds while accepting its broad premises, which is a pity. Americans, of all people, are well equipped to point out that independent prosecutors often become obsessed with their causes, take forever to accomplish not much, and pour gasoline on political fires. And Bill Clinton, of all people, is well equipped to make the case against globalizing Kenneth Starr.