Madame Prosecutor

In the spring of 2001, at her second meeting with CIA Director George Tenet, Carla Del Ponte, the chief prosecutor of the United Nations war crimes tribunals for the former Yugoslavia and Rwanda, pleaded for cooperation from the United States. Six months earlier Tenet had assured her that capturing Radovan Karadzic, a fugitive wanted for the shelling of Sarajevo and ethnic cleansing, was a "top priority" for the United States. But seeing no sign that Tenet had done anything, Del Ponte told him about the assistance she was getting from France, Great Britain, and Germany and said, "If you won't do anything, I think you should at least support our efforts."

"Look, Madame," Tenet replied. "I don't give a shit what you think."

Thus begins Del Ponte's blunt, no-holds-barred account of the obstacles, frustrations, and successes she experienced during her eight - year term (19992007) with the U.N. International Criminal Tribunal for the former Yugoslavia and four - year term (19992003) with its tribunal for Rwanda.

In Madame Prosecutor - which she wrote in collaboration with Chuck Sudetic, a former reporter for the New York Times and an analyst for the Yugoslavia tribunal - Del Ponte offers a highly personal story of how she took on the awesome responsibility of prosecuting war crimes. She says she believed deeply that "[p]utting war criminals behind bars depends on the will of women and men, and especially women and men of the bar, to challenge the assumption that might means right, to shout yes when the chorus is singing no, to demand justice again and again, even when it means suffering ridicule for seeming to be quixotic."

One might imagine that prosecuting high-level government and military officials in the former Yugoslavia and Rwanda accused of unspeakable acts of torture, rape, and genocide would present unique legal and forensic challenges. Del Ponte expected all that and more. What she did not expect were the deliberate and repeated failures of the leading members of the U.N., including the United States, to cooperate with the tribunals and support her efforts. Of course, the obstruction always came with lofty assurances of help. She calls these disguised rejections "muro di gomma," Italian for the wall of rubber.

Del Ponte was unwavering in her commitment to prosecute all sides in these dreadful religious and ethnic conflicts, whether Tutsi or Hutu, Serb or Croat, whether from Bosnia, Kosovo, Serbia, Croatia, or Rwanda. "A war crimes tribunal that tries the accused from only one side of a given conflict is dispensing only a victor's justice," she proclaims. But by pursuing all sides, she inevitably made enemies in the governments that had replaced the lawless regimes, because they too were accused by Del Ponte of committing war crimes.

The centerpiece of Madame Prosecutor is the trial of Slobodan Milosevic, former president of Serbia and Yugoslavia, charged with crimes against humanity, violating the laws and customs of war, gravely breaching the Geneva Conventions, and genocide. The challenge for Del Ponte and her team of investigators and lawyers was to prove that as Yugoslavia's head of state and its military commander-in-chief, Milosevic was responsible for the criminal acts of the police and army troops in Croatia, Bosnia, and Kosovo.

After more than four years of painstakingly presenting scores of witnesses and documentary evidence, Del Ponte was denied the satisfaction of a guilty verdict because Milosevic died of a heart attack in 2006. Fortunately, two years earlier the tribunal had denied his motion to dismiss, finding sufficient evidence beyond a reasonable doubt that he had participated in a "joint criminal enterprise whose aim and intention were to destroy a part of the Bosnian Muslims as a group."

At this point, many readers may find Del Ponte's book taking on a heightened relevance to present circumstances in the United States, which she never explicitly addresses. A wide range of human rights organizations, many political observers, and some elected officials have insisted that the new Obama administration launch investigations and, if warranted, prosecutions of George W. Bush, Dick Cheney, Donald Rumsfeld, Alberto Gonzales, David Addington, John Yoo, and others for alleged war crimes and crimes against humanity. And if the new administration fails to do that, one or more international tribunals should be convened for this purpose. Defenders of the Bush administration scoff at such allegations, denying that these high government officials have any criminal responsibility for any acts of torture, killing, or other crimes committed in Afghanistan, Iraq, Guantanamo, or secret CIA prisons around the world.

But the 2004 rulings in the Milosevic case suggest that it is not that simple. Among other things, the tribunal found that Milosevic "aided and abetted or was complicit" in the commission of the crimes charged "in that he had knowledge of the joint criminal enterprise and that he gave its participants substantial assistance," aware of the aims and intentions of the participants. Furthermore, the court found that Milosevic was "a superior to certain persons whom he knew, or had reason to know, were about to commit or had committed" the crimes charged and "failed to take the necessary measures to prevent" the commission of those crimes "or punish the perpetrators."

With the recent announcement that a Spanish court is exploring a criminal investigation against six former Bush administration officials to determine whether they broke international law by providing the legal framework to justify torture, it remains to be seen whether leaders and courts in the United States and elsewhere will exhibit comparable political will and courage.

Del Ponte did a remarkable job in bringing to justice "men and women who had gained power and were striving to enhance and retain it by whipping up their people's fears into hysteria and turning them against one another." She concludes her engaging personal narrative with a list of 24 important lessons she learned from her experience, which should be required reading for every political leader in the world.

We can only hope that there are other lawyers today (and future ones in law school) ready to confront war criminals with the courage, skill, perseverance, vision, and strength of character of Madame Prosecutor Carla Del Ponte.

Stephen Rohde is a constitutional lawyer with Rohde & Victoroff in Los Angeles, the author of Freedom of Assembly, and the editor of Webster's New World American Words of Freedom.

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