If you saw the grainy footage of Saddam Hussein being brutally hanged on December 30, 2006, amid the taunts of his political enemies, "international justice" is probably not the first thought that came to mind. "Tribal vendetta" is a more likely guess. More than sixty years ago, the need to avoid vendettas was one of the factors behind the establishment of an international military tribunal at Nuremberg to judge Nazis accused of war crimes. The Nuremberg tribunal has since served as a model of sorts for the handful of international tribunals created by the United Nations in the past two decades to judge people accused of committing war crimes in Cambodia, Sierra Leone, Rwanda and the former Yugoslavia. In July 2002 the International Criminal Court, a permanent tribunal responsible for trying cases of genocide, crimes against humanity and war crimes, opened its doors.
A few months earlier, Slobodan Milosevic had appeared before the International Criminal Tribunal for the former Yugoslavia (ICTY) at The Hague on the charge of genocide, becoming the only former head of state to be tried for crimes against humanity by such a tribunal. He accused the court of being a tool of realpolitik wielded by major Western powers; Western officials have routinely dismissed such allegations as conspiracy theories. They will have a much harder time making that argument with Florence Hartmann, a former official at the ICTY, who in Paix et châtiment: Les guerres secrètes de la politique et de la justice internationales (Peace and Punishment: The Secret Wars of Politics and International Justice), published in September in France, describes how the ICTY has been hampered not only by the predictable obstruction of Balkan governments but also by the meddling hands of its main sponsors–France, Britain and the United States. Hartmann openly accuses them of sabotaging the court's work by infiltrating its personnel, withholding key evidence and failing to arrest two of its main indictees–Bosnian Serb leaders Radovan Karadzic and Ratko Mladic–for more than a decade.
Hartmann argues that France, Britain and the United States have obstructed the court in order to avert the public disclosure, during the course of a trial, of their failure to prevent the violent implosion of Yugoslavia and, more egregious, despite ominous warning signs, the July 1995 Serbian-led massacre of an estimated 8,000 Bosnian Muslim men and boys in the town of Srebrenica. Hartmann's claim is not new, but her evidence is. As such, the book raises serious questions about whether Western leaders–including members of the Clinton Administration, who justified US intervention in the Bosnian war on humanitarian grounds (a justification invoked, in turn, by politicians and journalists of various political stripes who backed the invasion of Iraq)–failed in their legal duty to prevent crimes against humanity. Hartmann's allegations of obstruction and sabotage are based on the UN-sponsored 1948 Convention on Genocide, which obliges all signatories (of which the United States is one) to do their utmost to prevent such crimes from occurring. A few months after Srebrenica, Karadzic, the political leader of the Bosnian Serbs, and Mladic, the commander of the Bosnian Serb Army, were indicted by the ICTY on charges of genocide for their role in the massacre. Milosevic was indicted on similar charges in 1999, and the ICTY formally declared Srebrenica a genocide in a 2001 ruling.
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Hartmann is a former reporter for Le Monde, France's newspaper of record, and the author of a noted biography of Milosevic. She worked from 2000 to 2006 as a spokesperson for Carla Del Ponte, the chief prosecutor of the ICTY. Paix et châtiment provides a vivid insider's account of realpolitik at the ICTY based on notes and documents Hartmann accumulated during her stint in Del Ponte's office, where she also served as her adviser on the Balkans. The book has received broad and positive coverage in France, and it kicked off a storm in the Balkans even before translations appeared in bookstores there in early November, with local politicians using it to attack the ICTY's legitimacy. When Hartmann and I talked in Paris in October, she told me she had not consulted with her former boss about her book. (For her part, Del Ponte said through her spokesperson Olga Kavran that she found the book "interesting.") Hartmann's salvo is certainly a preview of the memoir Del Ponte has already announced she will write after her eight-year tenure ends on December 31. To write her book, Hartmann flouted the tribunal's confidentiality rules, which forbid current and former employees from disclosing information ruled confidential by the court or its chief prosecutor. She risks being cited for contempt of court and, if found guilty, imprisoned for up to seven years for breaching those rules.
Hartmann decided to take such a daring step because she fervently believes that the newest incarnation of the principle of international justice, the International Criminal Court, needs to draw lessons from the ICTY and other UN international courts to fulfill its promise. "The will to reaffirm the rule of law and to castigate criminals that has expressed itself for the last decade through the multiplication of judicial organs has not managed to chase away old habits" whereby governments privilege their national interests over international justice, she writes.
The war that broke out in Yugoslavia in 1991 pitted the Federal Republic of Yugoslavia, dominated by the former Communist turned Serbian nationalist leader Slobodan Milosevic, against independence movements in several of the federation's regions–Bosnia, Slovenia and Croatia. Milosevic sought to assert Serbian control over those territories by offering political and military support to their Serb minorities. In 1992, after a brief conflict with Slovenia in July of the previous year, and as fighting in Croatia was raging, multiethnic Bosnia became the main theater of Milosevic's pan-Serbian ambitions, and its Muslim population became the main target of Serbian firepower. After three years of ineffectual UN and NATO intervention to stop the bloodshed orchestrated by Milosevic and his henchmen Karadzic and Mladic, and following the fall of Srebrenica, the international community mustered a more robust military response. It also launched a US-led diplomatic effort that culminated in the negotiation of a peace deal in November 1995 in Dayton, Ohio. The Dayton Accords created two similarly sized autonomous entities in Bosnia–a Muslim-Croat federation and a Bosnian Serb republic–under close international supervision. A shaky peace has held for the past decade (events in Kosovo notwithstanding), but it has come at the expense of the new justice standards that the international community had championed in the face of the atrocities committed in the region.
When the UN Security Council established the ICTY on May 25, 1993, it marked the first time an international court was granted such wide-ranging powers: concurrent jurisdiction to prosecute war crimes, crimes against humanity and genocide perpetrated in the former Yugoslavia since 1991; a powerful chief prosecutor; and the obligation of all UN member states to collaborate with the tribunal. The reason for this sweeping mandate was simple and cynical: the court was never supposed to be used. It was a prop meant to quell the public outcry prompted by reports in August 1992 by Newsday's Roy Gutman and the Guardian's Ed Vulliamy of starving Bosnian Muslim and Croat prisoners being held in the Serb-run detention camps of Omarska and Trnopolje in northern Bosnia. The ICTY was "widely viewed as little more than a public relations device," as Richard Holbrooke, who would become the chief US diplomat in the region in 1995 and lead the effort to reach the Dayton Accords, put it in his 1998 memoir To End a War. But the prop became the stage of real political drama for the ICTY's main sponsors once the court became an obstacle to the Dayton negotiations. Milosevic, one of the ICTY's prime targets, was also "the key to the peace, the one who would sign the Dayton accords in November 1995, putting an end to three and a half years of war and ethnic cleansing in Bosnia-Herzegovina," Hartmann writes. As a result, the evidence of his role in coordinating the war crimes in Bosnia, primarily the infamous massacre in Srebrenica, had to be kept from the public, Hartmann says.
Milosevic did end up in the dock at the ICTY several months after he was toppled from power by a popular revolution in October 2000. Hartmann credits then-Serbian Prime Minister Zoran Djindjic for arranging Milosevic's transfer to The Hague in June 2001. While Pierre Richard Prosper, who was US ambassador at large in charge of war crimes from 2001 to 2005, told me that the United States worked feverishly to achieve such an outcome, Arnaud Danjean, a former French intelligence analyst who was in charge of tracking Yugoslav war criminals from 1996 to 1998, is adamant that "Djindjic and Djindjic alone pulled it off," adding that his efforts to hand over other war criminals, especially Mladic, are the main reason Djindjic was assassinated by Serb nationalists in March 2003.
Hartmann claims that the court's proceedings–primarily Milosevic's trial, which was ended by his death in March 2006–were obstructed by secretive manipulations of and within the ICTY. For instance, she explains the crucial role of the so-called Military Analyst Team (MAT), which the tribunal's investigators had to rely on to determine crucial details about military command-and-control issues. Hartmann charges that the MAT, largely staffed with US and British analysts, promoted the notion that Karadzic and Mladic acted on their own in Bosnia rather than on Milosevic's orders and doggedly excluded the possibility that special forces from Serbia participated in the Srebrenica killings. The MAT's assessment had a major impact on the Milosevic prosecution and was overcome only when the ICTY obtained minutes of key meetings of the Serbian leadership in early 2004 and, most vividly, when footage of the slaying of six Srebrenica men by members of a Serb paramilitary group became available in 2005.
Hartmann asserts that up to that point, Sir Geoffrey Nice, the British head of the Milosevic prosecution team, had tried repeatedly to throw out the gravest charges against the Serbian strongman, such as the genocide count; the Srebrenica massacre; and the siege of Sarajevo, Bosnia's capital. But Del Ponte held firm. "We were that close, really that close, to having an indictment against Milosevic without those three key elements," Hartmann told me, adding that she had threatened to resign at the time. Hartmann–whose 1999 biography Milosevic: La diagonale du fou (Milosevic: The Madman's Diagonal) documents the Serbian leader's overall control of Serbian underlings in Croatia and Bosnia–says she can understand why the allegations about Serbian special forces would have been treated skeptically by typically cautious legal minds. "But once the evidence to the contrary started to accumulate and they continued to fight against it, it became troubling," she adds. "Those who were pushing this had orders, and their attitudes hewed to the position of their respective countries."
Since the publication of Paix et châtiment, Hartmann and Nice have exchanged angry letters in French and Balkan newspapers. As I discovered, the bad blood between the former colleagues in the prosecutor's office runs deep. Nice has claimed that Hartmann was not privy to all key meetings, and the former spokeswoman has countered that as a member of Del Ponte's cabinet and as her Balkans adviser, she was intimately familiar with the ICTY's decision-making process. "This is a pre-emptive attack on behalf of Del Ponte in order to forestall the criticism of her job that will inevitably come out once she steps down," Nice told me.
Both Nice and Hartmann left the ICTY in the spring of 2006, but for different reasons. He departed after the death of Milosevic, while she was forced out for unclear reasons. She claims it was because of her criticism of the international community's tepid efforts to arrest Mladic and Karadzic. Del Ponte's office merely stated that she left at the end of her contract. One can argue that such internal disputes are unavoidable in an international bureaucracy–and bound to come out once the main protagonists have left office. And it's not as though Hartmann's book is flawless. Her obvious dislike of Milosevic and her grudges against former colleagues such as Nice sometimes color her judgment and even her accuracy. For instance, she describes an ICTY judge as having previously served as both US ambassador to Israel and Israeli ambassador to the United States. He was neither. Nevertheless, when Hartmann sticks to the facts and relies on her prime access to key meetings and documents to reveal the inner workings of the court and the interactions of its chief prosecutor with Western officials, her claims about how these officials tried to conceal evidence from the ICTY are shocking. "What she provides is the proof that the court was in effect managed by Western powers," says Diego Arria, who was Venezuela's ambassador to the UN and was instrumental in setting up the tribunal. "I find it scandalous."
According to Article 29 of the ICTY's statutes, all states have an obligation to cooperate fully with the court and answer without delay any request for assistance, including requests for evidence, witnesses and aid in the arrest of indicted individuals. While Balkan countries, Serbia especially, have often ignored Article 29, there are troubling indications that Western countries, including the United States, have done the same. One especially galling incident involves the so-called Kula Tape, a video from May 1997 showing Milosevic and key Serbian leaders participating in a ceremony marking the sixth anniversary of the Red Berets, a unit of Serbian special forces created on the eve of the Yugoslav wars. As Hartmann told me, a transcript of the tape was provided to the tribunal in late 2001. It was riddled with "inaudible" mentions and mostly unrecognizable names. However, when the prosecutors received the original footage a year later, they discovered that the names were, in fact, perfectly clear and that "inaudible" passages contained descriptions of the wartime "accomplishments" of the Red Berets in Croatia and Bosnia, and also identified Milosevic as their godfather. Hartmann describes the video as a treasure trove because it contains the names of key personalities of the Milosevic network. The tape was eventually presented in court in February 2003, leading to the dismantling of the Red Berets a few weeks later in Serbia after the tape was broadcast on television there. Hartmann does not identify the source of the translated tape in her book. When I pressed her, she told me that the country involved in the translation was the United States.
It seems, then, that the Kula Tape was sent by the US Embassy in Belgrade to Washington in 2001 and only ended up in The Hague in late 2002, Hartmann told me. In the meantime, the United States provided the ICTY with a truncated transcript of the tape that concealed its most important information. Pierre Richard Prosper told me the United States was not the originator of the tape, although he conceded having limited knowledge of the incident. According to Nice, a member of the prosecution team failed to grasp the importance of the tape, and then a colleague realized its value. "There might have been a bad translation at some point, but there is absolutely no reason to believe the providing source didn't want to help us out," he says.
While Hartmann and Nice squarely disagree in their accounts of the tribunal's internal dynamics, they reach similar conclusions about the role of Western powers, especially the United States, in the war's seminal event: the killings in Srebrenica in July 1995. In the spring of that year, negotiations between Milosevic and Western officials over the shape of Bosnia were reaching a turning point. While there was general agreement to divide the country into two autonomous entities, the outlines of the map were still in dispute. The main point of contention was three Muslim enclaves–Srebrenica, Zepa and Gorazde–nestled in the midst of Bosnian Serb territory. In 1993 they had been designated by the UN as "safe areas" to protect them from Mladic's army. But in July 1995 Mladic and Karadzic decided to force the issue by launching a major offensive against the enclaves, starting with Srebrenica. The story of how the city was overrun and several thousand inhabitants were executed as UN peacekeepers watched helplessly has been recounted many times, most grippingly by David Rohde, an American reporter who first uncovered evidence of the massacre and whose Endgame: The Betrayal and Fall of Srebrenica (1997) describes the event through the eyes of seven witnesses. Rohde concluded that the litany of mistakes that led to the massacre was a "passive conspiracy" rather than a cynical backroom deal.
While acknowledging their failure to prevent Srebrenica–which was documented in French and Dutch parliamentary reports published in November 2001 and April 2002, respectively–UN, NATO and Western officials have always claimed they never imagined that the Bosnian Serb takeover of the city would result in the worst massacre on European soil since World War II. And they have consistently rejected the accusation that they purposely allowed the Bosnian Serb takeover of Srebrenica and, a few days later, Zepa in order to negotiate the release of dozens of UN troops being held hostage by Bosnian Serbs or to facilitate the peace agreement that was reached four months later in Dayton. Western officials have stressed that major powers actually prevented Mladic from taking over Gorazde.
In recent years, that official version of history has come under scrutiny. In Srebrenica: Un génocide annoncé (Srebrenica: A Genocide Foretold), a book published in France on the tenth anniversary of the massacre, French writer Sylvie Matton offers some fresh acknowledgments by senior European political and military officials–mostly French–that the tragic fate of the enclave was no mystery. The most vivid acknowledgment is provided by Alain Juppé, who was prime minister of France at the time of the Srebrenica massacre. "It was widely known that the Serbs wanted to take the enclaves and annihilate the men," Juppé told Matton, who then asked Juppé what he meant by "annihilate." "Let's say we knew they would take no prisoners," he answered.
In a November 2005 interview on Bosnian television, Holbrooke, who at the time of Srebrenica was assistant secretary of state for European and Canadian affairs and who later spearheaded the US mediation that led to the 1995 Dayton Accords, declared that his "initial instructions" were to "sacrifice Srebrenica, Gorazde and Zepa." His remarks went unnoticed for a year until Muhamed Sacirbey, who was the Bosnian foreign minister at the time, noticed them while watching a tape of the program. It was indeed a stunning reversal. Holbrooke had always said that the initial US policy during the summer of 1995 was to push the Bosnian Muslims to abandon only Gorazde–a policy he claims he successfully rejected, the proof being that the Bosnian Muslims never fled Gorazde while it was under siege. But in November 2005 he seemed to admit that the United States, in fact, envisioned sacrificing the three enclaves–which would have made it an accessory to the goals of the Bosnian Serbs.
Holbrooke told me he had misspoken in the television interview, and that the orders he received–and rejected–involved only Gorazde, thus returning to the original script. Sacirbey thinks a veteran diplomat like Holbrooke would be too savvy to make such a mistake, especially during a formal television interview taped on the occasion of the tenth anniversary of the fall of Srebrenica. "I think he is in fact quietly dispersing blame in the face of mounting evidence of Western foreknowledge of Srebrenica," Sacirbey told me.
Hartmann is "convinced there was a deal between Western officials and Milosevic on the three enclaves reached in May 1995." Nice, ever the cautious lawyer, told me that "in light of the information we got and information we knew existed but that we were unable to get, I am left wondering whether the West knew and gave the Serbs an orange light to take over Srebrenica," adding that he had planned to raise the issue during the Milosevic trial before its abrupt ending. "Unfortunately, this will likely never be discussed in a court." Del Ponte's office said there was "no evidence that we were able to present in court that any 'Western powers' knew with certainty that genocide was about to be committed in Srebrenica."
They could be wrong. In November, families of Srebrenica victims learned that a complaint they had filed against the Netherlands and the UN could proceed after a court in The Hague dismissed pleas by public prosecutors that the case should be dropped after the UN invoked its legal immunity. The lawsuit, filed by the victims' families in July, argues that the Dutch were to blame for the massacre because they refused crucial air support to their own UN troops defending the Bosnian town.
At the Milosevic trial, the prosecution managed to get only one representative of the fifteen-member UN Security Council to testify: Arria, the former Venezuelan ambassador. "All the others refused because they lied when they said they didn't know about Srebrenica," he told me. In 1993 he conducted a fact-finding mission to Bosnia and then warned the Security Council that a slow-moving genocide was taking place in Srebrenica: "So you have in effect a cover-up that continues to this day."
The question of what and when the Western powers knew about the Srebrenica endgame is one that Del Ponte has been trying to probe, first and foremost by chasing down alleged US wiretaps of conversations between Belgrade and the Bosnian Serb leadership, especially during the pivotal summer of 1995. In January 2002, after her office obtained excerpts of such wiretaps from Croatia and received other indications of their existence, Del Ponte asked Washington for the transcripts or the actual recordings of the wiretaps. Three months later, the Dutch parliamentary report was published. In an appendix, it mentioned a White House meeting, without mentioning the date, between Vice President Al Gore and chief EU negotiator Carl Bildt. Citing an anonymous Western diplomat, the report claimed that after Bildt tried to convince Gore that Milosevic was a worthy peace partner, the Vice President responded by reading transcripts from US intercepts showing that Milosevic had consulted with Mladic about the attack on Srebrenica. Gore then reportedly told Bildt: "Forget about this. Milosevic is absolutely not the friend of the West." The prosecutor's office set out to learn more about the meeting. Hartmann provides new elements about that encounter, such as the date–early August 1995, a few weeks after the fall of Srebrenica–and the names of three other European participants: Alain Dejammet of France, Michael Steiner of Germany and Pauline Neville-Jones of Britain, all of whom represented the Contact Group, an informal diplomatic forum for Balkans-related issues.
Gore and Neville-Jones declined comment and Steiner did not respond to queries. Bildt, who is now Sweden's foreign minister, told me that all the participants have consistently claimed that the account about Gore reading the intercepts is incorrect. Dejammet seconded him, noting that Bildt is "someone who has a good memory." If so, then why have the US, French, British and German governments rejected Del Ponte's official request to testify about the meeting? Gore was willing to testify, but the Clinton Administration apparently barred him from doing so, according to Hartmann and Nice. And why has the United States refused to hand over the minutes of the Gore-Bildt encounter to Del Ponte's office? This meeting is important, Hartmann told me, not only because it proves the existence of the intercepts but also because it shows that Western countries knew Milosevic was the mastermind of the Srebrenica massacre at a time when they were negotiating with him.
Nice fully agrees about the importance of the intercepts and described to me his efforts to obtain them. But while he confirms that Western powers have rejected his entreaties, he claims that Del Ponte actually undermined him by withdrawing some of his requests. "She did this for some strange reason, and it ended up weakening our case against Milosevic," Nice told me. Del Ponte's office denies the assertions.
One of the difficulties faced by Western diplomats in reaching a peace accord at Dayton was the decision of the first ICTY chief prosecutor to issue an indictment against Karadzic and Mladic in July 1995. As a result, the two could not attend the Dayton summit, and instead were represented there by Milosevic. Moreover, the ICTY prosecutor issued a fresh indictment against them for their role in Srebrenica on November 16, 1995, five days before the final accord was reached. But bringing them to the ICTY was a nonstarter in Dayton not only for Milosevic but also for the Pentagon, which resisted making their arrest a priority for the 60,000 NATO troops about to be deployed. Their mandate was to bring stability to the troubled region; undertaking arrest operations against those still-powerful figures was seen as risky–and thus was quietly put on hold, according to Holbrooke's memoirs. But as Karadzic actively opposed the implementation of the Dayton agreement, he became a threat to that stability. In turn, in July 1996 Holbrooke negotiated with Milosevic the end of Karadzic's reign as the head of the Serbian Democratic Party and a moratorium on his media appearances.
Since then, French and Bosnian officials have suspected Holbrooke of having conceded immunity from the ICTY to Karadzic and Mladic during the July 1996 negotiations. Karadzic's entourage has always claimed there was such a deal. US officials have, in turn, maintained that France actually made a secret pact with the Bosnian Serbs to win the release of two French pilots the Serbs held hostage in 1995. Hartmann admits there is no bulletproof evidence of an immunity deal involving Holbrooke; her strong belief that there was one prompted a Serb prosecutor to open a probe into the issue after her book was published. Holbrooke has always denied the existence of such a deal, although he explained in his memoirs that once his initial request that Karadzic leave Bosnia and comply with the ICTY was rejected by Milosevic, he did not push for it.
After Western media reported that the two war criminals were able to move freely around Bosnia, including through NATO checkpoints, a more serious effort to apprehend them was launched in 1997; this prompted Mladic to flee Bosnia for Serbia and Karadzic to vanish in Bosnian Serb areas and even in Belarus for a few months with the help of Russian President Boris Yeltsin, according to Hartmann. But once they vanished from public view, so did the urgency to arrest them. While Mladic is in Serbia, which has consistently dragged its feet in cooperating with the ICTY, Karadzic likely spends most of his time in Bosnia, where international peacekeepers have been on the ground for more than a decade. Hartmann claims the early concerns that Bosnia would relapse into civil war are long gone and that there is no justification for the tepid efforts conducted to nab Karadzic. The reason, she surmises, is that if Karadzic and Mladic were ever brought to The Hague, they would make their first line of defense the exposure of their interactions with Western officials, such as the top UN and NATO representatives, at the time they were perpetrating ethnic cleansing–first and foremost in Srebrenica.
Despite a series of attempts by Western and even ICTY emissaries to persuade Karadzic to surrender to The Hague and pledges of stepped-up efforts to catch him by intelligence services, Del Ponte began to harbor doubts about the major powers' commitment to their obligation. So in 2002 she decided to set up a small team to track down the fugitives. Hartmann recounts how those efforts were undermined on several occasions. On January 28, 2004, Del Ponte learned from a senior Serbian source that Karadzic was in Belgrade and that the local authorities had agreed to hand him over. The French were asked to help transfer him to The Hague, but the Americans intervened, claiming that the Serb official involved was drunk. The next day, according to Hartmann, Del Ponte warned US ambassador for war crimes Pierre Richard Prosper, "Find a way to get Karadzic and Mladic back. I don't want to know what happened yesterday because everyone is lying to me. But I want them both. Karadzic is still in Belgrade, and it's not too late to act." Prosper said he would consult with his government; two days later he called Del Ponte to inform her that he had obtained a green light from the Bush Administration to act on reliable information, Hartmann says. Seeing no action, Del Ponte decided on February 9 to tell the press that Karadzic was in Belgrade. US officials reacted furiously and interrupted all communications with her office for several weeks. Prosper forcefully denies that such a confrontation between him and Del Ponte or such a communications breakdown ever occurred. "Why would Del Ponte need me if the Serbs and the French were lined up?" he told me. Del Ponte would not comment.
Western officials have often portrayed the prosecutor as a stubborn, blunder-prone bully whose frequent outbursts undermined their quiet efforts to resolve war crimes issues. Nice describes her as "a combination of immature politician and ordinary cop." Prosper told me that Del Ponte's tips often proved erroneous, partly because her office was easy prey for tipsters working with a hidden agenda who would feed the office misinformation, an assertion supported by Arnaud Danjean, the former French intelligence analyst who was in charge of tracking Yugoslav war criminals. Danjean also disagrees with Hartmann's sweeping conclusion that the failures to prevent Srebrenica and to arrest Karadzic and Mladic are linked. "She conflates those two separate shames, and it just doesn't hold water," he told me.
But while Danjean admits there was never a strong political will to arrest Karadzic and Mladic, Prosper maintains that Washington undertook an all-out effort to do so during his tenure from 2001 to 2005. He stressed that "hard-core diplomacy" had prompted the region's governments, primarily Belgrade, to hand over some eighty indictees to the ICTY in recent years. This "hard-core diplomacy" involved conditioning foreign aid and future admission to NATO and the European Union on Mladic's handover. But those sticks were sweetened by an enticing carrot: the so-called "completion strategy" of the ICTY. In 2000 the Security Council decided that the tribunal would finish its initial trials at the end of 2008 and its appeals in 2010, the year it would shut its doors. As a practical matter, this has meant reducing the list of indictees and delegating the judgment of low-level officials to the relevant national jurisdictions. When Del Ponte reneged, Hartmann claims, US officials threatened to cut the tribunal's funding, denounced its corruption and, behind the scenes, worked to reduce the chief prosecutor's prerogatives.
In her last appearance as chief prosecutor before the Security Council on December 10, Del Ponte said it was "a stain on the international tribunal's work that two individuals indicted for genocide and responsible for the worst crimes committed in Europe since the Second World War are still fugitives." She also urged the council not to "close the door" on the court before Mladic and Karadzic are brought to justice.
When I asked Hartmann what shocked her most during her time in The Hague, she pointed to a series of obscure rulings by the ICTY judges that she discusses in her book. Those decisions pertain to the handling of a set of crucial documents: the wartime minutes of the Yugoslav Supreme Defense Council, which comprised the head of the Yugoslav federation, the presidents of Serbia and of Montenegro, as well as the army chief, and were in effect a rubber stamp for Milosevic's edicts. After the fall of Milosevic, the prosecutor's office fought for almost two years to persuade Serbia to transmit the minutes to the tribunal. In May 2003 Belgrade eventually allowed a tribunal expert to examine them. The expert reported that the documents provided strong evidence of Belgrade's control over Serbian political and military forces in Croatia and Bosnia, including the heretofore unknown existence of two entities within the joint chiefs of staff in Belgrade in charge of coordinating funding and personnel for the Serbian armies in those two countries. In July 2003 the prosecution asked the ICTY judges to order Belgrade to hand over the full transcripts. The Serbs refused and, in October, were able to persuade the judges to limit the use of the minutes to the Milosevic trial only.
More important, the judges agreed to keep the most incriminating portions from the public and from other judicial institutions–and then rejected repeated attempts by the prosecutor's office to reverse the decision. Belgrade had officially invoked the "vital national interest" to justify its demand. Under that guise, Hartmann claims, the Serbs told the judges that they wanted to avoid paying significant damages if a complaint filed by Bosnia in 1993 to the International Court of Justice (ICJ), a UN court in charge of adjudicating disputes between countries, accusing Serbia of aggression and genocide was successful. If Serbia was found guilty, it would have to pay compensation to Bosnia estimated at upwards of $20 billion; the Serbs argued successfully to the judges that this would impose a major burden on their fragile economy. (Muhamed Sacirbey, the former Bosnian foreign minister, who was the chief proponent of the ICJ case, told me Western powers had been pressuring Bosnia to drop the case for years.) As a result, the full set of documents was never transmitted to the ICJ judges, who in turn did not ask Belgrade to obtain them. This past February, the ICJ ruled that Srebrenica was a genocide but that Serbia was not directly responsible for it and did not have to pay damages to Bosnia.
Nice blames Del Ponte and her decision in May 2003 to write a letter to the Serbian foreign minister offering to keep portions of the documents from the public; he favored obtaining a court order demanding their full original content. "This is a prime example of Del Ponte's corrupting influence on the process," he told me, surmising that she had obtained, in exchange, a promise of further cooperation. Del Ponte's office forcefully denied the allegations, and Hartmann stresses that the letter to the Serbs offered nondisclosure only if the demands were reasonable and within the rules of the tribunal. When they proved not to be, the prosecutor's office fought to disclose the full records. In any case, contrary to Nice's claims, the decision to offer confidentiality can be made only by the judges. "As a result, people blame Del Ponte instead of the judges," Hartmann told me. "I'm not saying the judges were taking orders from their governments, but it begs asking why magistrates acted in a way that is clearly against the law and amounted to withholding documents from another jurisdiction in order to prevent a country from paying damages," she said. "The judges' attitude is a real scandal no one is willing to denounce."
No one, it seems, except Hartmann. A month after the publication of Paix et châtiment, she received a letter from the tribunal reminding her of her administrative and legal obligations to respect its confidentiality rules. But she is undaunted. Not so much because she remains at heart a reporter eager to tell a juicy story but because she wants to send a warning that behind the shiny words "international justice" lies a more somber reality no one should ignore.