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Carla Del Ponte:


by Victor Tsilonis*


Carla Del Ponte is the Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) since 1999 and is arguably regarded as the most famous Prosecutor ever to attain this position. Her reputation began quite early in her career when as a prosecutor at the Italian-speaking canton of Switzerland she had to deal with dangerous cases related to the Italian mafia. Since then, her personal image of the tough, incongruous and non-conformist woman who does not succumb to any kind of pressure was forged. A little later, as the Chief Prosecutor she clashed with the deep-rooted and omnipotent banking system of Switzerland which aided and abetted money laundering practices, tax evasion and other unlawful activities, although the final outcome of her efforts is still being cast under a shadow of a doubt. The last station of her career thus far has been the position of the Chief Prosecutor of the ICTY, a position through which she earned the sobriquet of the “Iron Lady of the Hague ”. People have also accused her of being overtly suspicious and non-cooperative with even the closest of her associates, while some permanent member-states of the Security Council, such as the United Kingdom and USA , have been beleaguered from time to time by the exercise of her duties and consequently sought to curtail her powers. This interview was conducted on 14 th June 2004 at her office and Ms Del Ponte demonstrated extreme patience with answering all my questions.





Quite often people have characterized you as the "Iron Lady of The Hague ". Bearing in mind that the American Society of International Law conferred on you recently the prestigious Goler T. Butcher Medal do you believe that being tough with people is an inevitable characteristic of conducting successfully your difficult work?

Not necessarily. Sometimes one has to be tough, sometimes one does not. It always depends on the people and the situation I have to deal with. However, one must necessarily be tough when one has to face the political pressure from states or other interested parties; in fact one cannot truly remain for long at this place and conduct her duties appropriately if she can not be tough. Hence, my answer is that it is not necessary to be tough but sometimes you need to, because you simply cannot conduct your duties competently if you are soft.



What is your view regarding the work of the International Criminal Tribunal for the former Yugoslavia (ICTY)1, taking particularly into account this year's developments 2 ?

I feel very satisfied. At present we are running simultaneously five trials and important decisions on critical issues like genocide (Krstic, Brdanin) have been handed down already this year. Moreover, the first phase of Milosevic trial is eventually over and the second phase will commence hopefully later this year. Thus, I would not hesitate to parallel the Tribunal now with a machine operating relentlessly with all its bursting pistons at full speed in order to bring justice and do whatever is possible for meeting the stringent completion strategy deadlines.



Do you believe that the work of ICTY has been promoted sufficiently to the world and that its impartiality, its focus on achieving justice, peace and reconciliation in the Former Yugoslavia has been successfully propagated, so that “justice is not merely done but seen to be done”?

Yes I strongly believe so. We are ceaselessly trying to achieve justice for the victims and their families by indicting and bringing in The Hague the most serious offenders no matter how top in the political, social, economic hierarchy they were or are. Nonetheless, we are also making every possible effort to respect the accused's rights. Thus, in total, we are doing our best to ensure that “justice is not merely done but seen to be done”.

President Theodor Meron has recently reiterated that ICTY should not close its doors before Karadzic and Mladic are brought to justice. While, admittedly one cannot easily over-emphasize the importance of these two cases do you consider that, if the efforts to arrest them are not eventually fruitful, this might haunt the work of the Tribunal as a whole?

Unfortunately, I cannot disagree with this inference. There truly exists a peril that the legacy of Tribunal will be compromised and the image of the Tribunal will be haunted if people like Mladic, Karadzic and Gotovina are not caught before the closure of the Tribunal but remain everlastingly at large. Moreover, it can somewhat justifiably lead people to conclude that the work of the Tribunal as a whole constituted merely an alibi for justice than true justice and that is something we should avoid at all costs. That is exactly one of the main reasons why we are doing everything in our power to arrest these criminals and make them face justice. Nevertheless, we cannot easily achieve this goal unless the states of the former Yugoslavia conform or at least be obliged to conform to the Security Council's mandate and cooperate fully with the Tribunal. Needless to say, this is an issue where the role of the Security Council and the international community as a whole remains of critical importance. Along with the Tribunal, the international community has a great responsibility to exert its powers prudently in order that these criminals are ultimately brought to justice.



Croat Mirco Norac is by no means the sole example of an ICTY indictee being regarded as a hero in his country (other notorious examples include General Gotovina, General Mladic, Karadzic and Milosevic). Do you believe that these commonly held beliefs by the people of the former Yugoslavia could potentially compromise the legacy of the Tribunal?

Well, it is true that Norac used to be deemed a hero in his country but I would consider him being a half-hero now. Norac has already been convicted to twelve years imprisonment by the Croatian Courts and has been indicted by the Tribunal for the atrocities that took place especially during the “Medak Pocket” operation . But overall, and leaving aside the Norac case, I deem that this whole issue of naming heroes is a political one and I am not interested at all in politics. The fact that other people as well are considered to be “heroes” is indisputably also part of the same political agenda. However, for my part I am only interested in justice and I have dedicated myself exclusively to fulfilling this aim. Hence, my work is to bring before the Tribunal people responsible for committing great breaches of the Geneva Conventions, genocide and other egregious war crimes, try them and eventually secure their convictions and their punishment. Thus, to recap, I do not care about politics and do not believe that politics should play a role during the conferment of justice.



My next question concerns the completion strategy. A considerable number of people are oblivious to the fact that the Tribunal has to complete all its investigations by the end of this year and all its work by 2010. Do you believe there is a concealed danger that some states and other interested parties might attempt to exploit the extremely tight time constraints of the completion strategy?

Yes, of course there is such a danger. All the accused are counting the time, various states are counting the time, possible future indictees are counting the time. In brief, every party concerned estimates the remaining time before the Tribunal closes down and disappears from the face of earth. However, what I find more worrying and distressing is that various people have not dithered over expressing their time-related thoughts in public. To name but one striking example, Karadzic's wife has openly stated that “my husband has already been a fugitive for nine years and now he must simply remain fugitive for another four years until it's all over”. So, we have now reached a state where criminals and their families have gone far enough to begin disseminating the view that whoevercan win over this sui generis time race can also escape from justice.



Are you currently examining of proposing or setting up new mechanisms for tackling this issue (e.g. judicial assistance, exemption from the Security Council's mandate for certain cases etc.)?

I do not think it is very possible to get an exemption from the Security Council's mandate at the moment but we are in the process of considering a number of other options in order to refute the aforementioned ill-willed aspirations. More recently, Rule 11bis was altered for facilitating the use of the judicial assistance mechanism and, consequently, the transfer of cases to other states.



Unavoidably, another critical issue linked to the completion strategy is the “Rules of the Road” project. As you are well aware of, the “Rules of the Road” project essentially entails the preparation of the judicial mechanisms of the former Yugoslavian states to try efficiently the remaining and probably less important cases. What are the results of this project thus far and what kind of measures are still deemed necessary for assisting the domestic judiciary to fulfill competently its new role?

We are in constant contact with the judiciary of the states of the former Yugoslavia . We have been often meeting members of the judiciary during the last few years in order to inform them on legal issues related to the international criminal justice and exchange views. Furthermore, we have also set up extensive seminars and organized visits in The Hague so that they can personally see how things are run in the Tribunal. We are still quite far from completing this project but I have the opinion there is sufficient time remaining to complete this project successfully.



Certainly, another major issue is the degree of cooperation between the ICTY and the states of the former Yugoslavia . Do you feel that things have changed since 11 October 2003 when you stated your dissatisfaction to the Security Council?

Well, things since October 2003 have definitely changed. The cooperation between Serbia-Montenegro and the Tribunal has become much worse, especially following the recent election results. Consequently, I have reported this unpleasant and dissatisfying situation to President Meron who will in turn submit a report to the Security Council regarding this issue so that measures can be taken. On the other hand, as far as Croatia is concerned, I am happy that we have established a high level of cooperation and we can now have full access to the state archives, all gathered information, and witnesses. I must highlight it is very encouraging that the Government of Croatia is now comprised of politically intelligent people who have realised that it is essentially for Croatia's own interest and prosperity they must cooperate with the Tribunal. Inescapably, their full cooperation will significantly assist the country to be acceded soon into the European Union too. As far as Kosovo is concerned there has been some level of cooperation and some Albanians have been arrested but I cannot say I am fully satisfied with the presently attained level of cooperation. As far as Republica Srpska is concerned 3-despite their verbally expressed good will repeatedly during the last few months- a sufficient degree of cooperation has not been established in practice thus far. I do not know for sure, but I can understand there might be a lot of political pressure right now that the local politicians have to confront, so we might just have to wait and see what will happen during the next few months.


So, do you believe there now exist satisfactory pledges for cases like that of Mirco Norac to be transferred pursuant to Rule 11bis to domestic courts or that the transfer of cases is an inescapable step to be taken in the future and only due to the stringent timetable of the completion strategy?

Yes, it is a possible scenario that the case of Mirco Norac might ultimately be tried in Croatia and not in The Hague . More generally, as I have already indicated, we are currently in the process of establishing judicial assistance with other states and that is the reason why Rule 11bis was very recently changed. Hence, some of the people indicted by the Tribunal might eventually have their cases tried in other countries, provided that the judicial systems of the interested in assisting countries can satisfy all the criteria underlying the proper conferment of justice.



Over the last few years there have appeared intermittently rumours suggesting that some of the Security Council permanent members were feeling uneasy about the Chief Prosecutor's powers. Does the latest unforeseen amendment of Rule 28 of the Rules of Procedure and Evidence requiring judges to confirm apart from the existence of sufficient evidence the seniority also of the accused4 signify a significant curtailment of the Prosecutor's powers or is merely a tempest in a teacup?

Well, I view the whole issue under a quite different perspective. Theoretically speaking, Rule 28 is an extremely significant rule and its amendment could hinder the prosecution's work and be even regarded as a scandal of magnitude proportions. But, practically the issue can be viewed quite differently. I have already five ongoing cases and presently all of the indicted persons indisputably meet the leadership criteria set by Rule 28. Hence, currently, there appears to be no problem with the work of the Prosecutor's Office. If you asked me, of course, “can this amendment hinder the Prosecutor's work in the future?” I would simply answer that I cannot be certain of that but I genuinely hope it would not.


Allow me now to turn on the financial aspects of justice. According to the account that Ms Catherine Bertini presented on Friday 21 May 2004 during a UN Headquarters financial press briefing most UN member states have not been paying their assessments, even though it is estimated that they would be 100 million dollars due by the end of 2004. Do you believe that this is a sign of member states having relegated the importance of the Tribunal by giving priority to other matters of international concern or not?

Obviously, I cannot be certain of the reasons regarding the non-payment of the outstanding amounts by the member states. You should better ask the officials and leading politicians of the concerned states themselves. It is possible, of course, that there might be a shift of interest to other areas or issues of international concern but states must realize that the work of the Tribunal and its legacy are equally significant and they do deserve equal attention; otherwise there is a frightening peril that the work of the Tribunal might be considerably hindered and inevitably give credit to some people's beliefs that the Tribunal operated as an alibi of justice for the international community and not truly as an edifice of international criminal justice whose principal aim was to bring justice, peace and reconciliation. And I vehemently believe that this is a conclusion we should not allow any ground for anyone to reach.


In Serbia a law was recently passed authorizing the state to contribute towards the legal expenses that ICTY indictees have to incur during their legal battle. Do you believe that its prospective enforcement could enhance the conferment of justice or that it could actually bring substantial adverse effects?

Well, I do not believe that the recently enacted law by the present Serbian government aims at serving justice. I believe, instead, that this law was enacted due to political reasons and in order to satisfy exclusively internal political needs. On the other hand I strongly hold the view that the current legal aid scheme run by the Registry of the Tribunal protects and promotes adequately the equality of arms principle and justice in general.


In the past you have proposed that ICTY could be an ideal institution for trying Bin Laden and Saddam Hussein. Are you still an advocate of the position that justice could better be served if the mandate of ICTY was extended?

Yes, I am still an advocate of this position because I believe that this institution provides all the essential safeguards in order notorious and despicable criminals like them to be tried while respecting the rule of law and the principles of justice at the same time. Moreover, taking into account the accumulated experience of many significant trials that have already taken place during the Tribunal's operation all these years we simply cannot overlook the fact that many critical difficulties will arise if these people are tried by ad hoc tribunals being set up in the territory of their states. To name but one crucial example, the majority of witnesses will be petrified and deny testifying in fear of themselves and their families, unless certain protective measures are put into place. Unequivocally, one of these safeguards would be to testify far away from their country because it will be more difficult for others to track them down, reveal their identity, and threaten their personal security. A place like the ICTY is one of the most ideal places because we have ample experience and expertise in dealing with such sensitive issues.



My last question concerns the present situation in Iraq . The recent media storm unveiled the extended abuse of Iraqi prisoners in the Abu Ghraib prison facility as well as the flagrant violation of their rights. Taking as an exemplar the smooth operation of the ICTY detention unit do you deem that there are any useful elements the ‘international community' should integrate from that experience regarding the proper confinement of suspects and respect of their rights?

The detention unit of the Tribunal is a one of a kind, five-star detention unit and in that respect one can rightfully assume that it can and should be regarded as an exemplar by the international community before any other detention unit or prison of international interest is established. However, I have to tell you that as a Prosecutor I am not particularly keen with the idea of criminals being treated that well, too well one might add. The founding reasons of my view originate from the side of the victims and their suffering. When one observes their shattered lives does not only feel extreme sympathy but also realizes it is impossible for these people to believe that justice is done if the prisoners are treated so luxuriously.



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