Destructive Secrets and
CARLA DEL PONTE AND THE WORLD COURT DECISION
The recent decision of the International Court of Justice (ICJ) to not
hold Serbia directly responsible and accountable for the genocide that occurred in
Bosnia-Herzegovina is troubling and disappointing. The decision strengthens the cynical
perception of the international community obstructing Bosnia-Herzegovina's need for
justice to rebuild a stable and unified society. In 1995, the Dayton Peace Agreement
fractured Bosnia-Herzegovina into two dysfunctional and heteronomous entities: the
Federation of Bosnia-Herzegovina and Republika Srpksa. The latter was established through
the force of genocide. Not unsurprisingly, the two entities remain irreconcilable. The
nationalist Serb leaders primarily responsible for planning and carrying out genocide in
Bosnia-Herzegovinia remain un-arrested; Radovan Karadžic and Ratko Maldic will likely
live out their lives to their deaths without answering for their egregious crimes. This
decision of the International Court of Justice is surprisingly under-reported in the
global media. This decision consummates a contemporary history of betrayal that the people
of Bosnia have suffered. The opportunity to redress this history was clearly available but
tragically abandoned with the World Court's decision.
A perplexing aspect of the judgment is that the World Court chose not to
consider evidence already given by Serbia to another court at the Hague, the International
Criminal Tribunal for the former-Yugoslavia (ICTY), evidence that would surely have
decided the case differently. Geoffrey Nice, who was Prosecutor at the ICTY trial of
Slobodan Miloševic, reported that Carla del Ponte, Head Prosecutor at the ICTY, made a
secret agreement with Belgrade. To attain the evidence she thought was needed, del Ponte
allowed Serbia to keep aspects of this evidence concealed from the public. While the
decision would serve the interest of ICTY in attaining a conviction against Miloševic, it
would later damage the law suit of the state of Bosnia-Herzegovina against the state
Serbia at the ICJ. The ICTY considers cases involving individuals and the ICJ cases
involving states. The ICJ did not seek this evidence pertaining directly to Bosnia's law
suit, as was lamented in the written statements of two of the fifteen judges presiding
over the case.
This study restricts itself to analyzing the morally confounding aspects
of the few media reports regarding World Court decision, not from a legalistic,
historical, or philosophical point of view, but from a sociological point of view. The
study in particular draws upon the writing of Erving Goffman on impression management and
the maintaining of secrets. Goffman notes that, with respect to protecting a team's
definition of the situation, secrets are destructive information the performing team needs
to keep concealed. The revealing of secrets damages the definition of the situation, which
the team needs to maintain to achieve its objectives and keep good standing in society.
Goffman says there are different types of secrets, and knowing what type
of secret a secret is helps the team keep its secrets as well as measure the damage that
occurs when a secret is disclosed. Three secrets--as formulated by Goffman--will be
reviewed and applied to this subject: the dark secret, the strategic secret, and the
entrusted secret. One secret, of course, can be viewed in different ways, depending upon
the viewer's social status, psychological perspective, or historical position.
A dark secret is destructive information that is incompatible with a
definition of the situation that a team maintains before its audience. Dark secrets
involve moral betrayal. Dark secrets are the most destructive to the expressive coherence
of the social reality that a team seeks to maintain.
For some holding to a conspiracy model, the disclosure of del Ponte's
agreement with Belgrade reveals a dark secret. The definition of the situation del Ponte
seeks to maintain is that she is legally, professionally, and morally committed to convict
those responsible for war crimes in former-Yugoslavia. This is del Ponte's front region.
The possibility that del Ponte colluded with lawyers from Serbia to the advantage of war
criminals is incompatible with the definition of the situation del Ponte seeks to
maintain. Lawyers from Serbia are an opposing team, representing the war criminals del
Ponte is charged to bring to judicious trial. A secret agreement between del Ponte and
Belgrade suggests that del Ponte is a double-agent, working more on behalf of the opposing
team than on behalf of her own team. In helping Serbia keep crucial evidence that is
damaging to itself from the World Court, del Ponte serves the state of Serbia and betrays
the victims of Serbia's genocide. She also does a disservice to Serbia in that it is in
Serbia's interest to make itself right with a people and country grotesquely violated. No
state can maintain a true solidarity within its society while thinking genocide is an
acceptable and effective tool for achieving its political ends.
A second type of secret is the strategic secret. The strategic secret is
one that pertains to "intentions and capacities of a team which it conceals from its
audience in order to prevent them from adapting to the state of affairs the team is
planning to bring about" (Goffman, p. 141) The disclosure of a strategic secret is
less destructive to a team's definition of the situation than the disclosure of a dark
secret. Nevertheless, the disclosure of a strategic secret disrupts and compromises a
team's performance, "for suddenly and unexpectedly the team finds it useless and
foolish to maintain the care, reticence, and studied ambiguity of action that was required
prior to loss of its secret" (Goffman, p. 142).
It is easy to imagine how from the viewpoint of ICTY a secret deal with
Belgrade to attain evidence to convict Miloševic was a strategic rather than dark secret.
The agreement was not an end-in-itself, but a means to an end to which del Ponte committed
herself. From the viewpoint of del Ponte, the gain in using this means outweighed the
cost. If the agreement with Belgrade led to a conviction, something that never happened
because of Miloševic's death, the procedure, in so far as it was not illegal and fell
within legitimate legal practice, was justified. For del Ponte, this strategic secret is
not a dark one. In the New York Times on April 9, 2007, del Ponte explains this
Mrs. Del Ponte confirmed that she had sent a letter in May 2003 to the
former Serbian foreign minister, Goran Svilanovic, saying that she would accept the
sealing of "reasonable" portions of the records. "It was a long fight to
get the documents, and in the end because of time constraints we agreed," she said.
"They were extremely valuable for the conviction of Slobodan Milosevic."
The matter was simply strategic: del Ponte agreed to the sealing of
reasonable portions of the records from the Yugoslav Supreme Defense Council in order
simply to attain them; they were deemed necessary to convict Miloševic. While del Ponte
was doing what good lawyers do, the problem is first, that no conviction against
Miloševic was attained because he died before the over-extended and excessively long
trial concluded, and second, the way in which a conviction against Miloševic was sought
by the ICTY undermined the ability of Bosnia-Herzegovinia to attain a conviction against
not the people of Serbia but against the state of Serbia at the ICJ.
A third type of secret, the entrusted secret, provides another frame
from which to consider the same matter, albeit from yet another perspective. Entrusted
secrets are "the kind which the possessor is obliged to keep because of his relation
to the teams to which the secret refers" (Goffman, p. 143). If del Ponte agrees to
keep in confidence state documents from Serbia, Belgrade gains an entrusted secret, that
is, a secret whose exposure discredits, not the definition of the situation Belgrade seeks
to maintain, but the definition of the situation ICTY seeks to maintain as an impartial
seeker of justice. Nice said that he had warned Del Ponte not to make any concession to
Serbia. He, nevertheless, reports that "She approved by a letter to Goran Svilanovic,
the former Yugoslav Minister of Foreign Affairs, the protective measures of a 'reasonable'
part of the collection of the documents, without prior inspection of the
In making such a deal, del Ponte entrusts Belgrade in two problematic
ways. First, she entrusts that Belgrade will be reasonable in taking protective measures
to conceal part of the collection of the documents shared with the ICTY without prior
inspection of the Prosecution. Second, she entrusts that Belgrade will also keep this
potentially destructive information regarding ICTY from the public because she is helping
Belgrade to keep destructive information regarding Serbia from the public. That is, del
Ponte assumes that her favor will generate a reciprocal favor. The problem is that del
Ponte becomes beholden to Belgrade, but Belgrade will not necessarily feel beholden to
ICTY. This was a trap that the Serbian team legal set, and del Ponte stepped into it,
which is terrible given how many times the identical trap had been repeatedly set by
Serbia for the international community during its aggression against Bosnia-Herzegovina.
It is poor judgment to expect Serbia not to disclose this entrusted
secret at an opportune time. To facilitate the process of European integration, Serbia
needs the positive endorsement of del Ponte that it is co-operating with ICTY even when it
refuses to arrest Ratko Mladic and hand him over to the ICTY. It is therefore in the
interest of Serbia to discredit ICTY in whatever way it can. It is surprising that ICTY
put itself in this compromising situation with Serbia. Natašha Kandic, director of the
Humanitarian Law Center in Belgrade, reports this conversation after news of the ICY
After the verdict, she said, she met with a leading member of the
Serbian team. 'He was very pleased,' she said, 'but I confronted him. I said, 'You did not
tell the truth.' The man, a scholar she said she could not name, replied: "It's
normal, every country will do everything possible to protect the state. Bosnia wanted a
lot of money for damages.' Ms. Kandic adds: 'I said that one day the truth will come out.
And my friend said: 'But that's the future. Now it's important to protect the state.'
The point is clear: the team of Serbian lawyers manipulated del Ponte.
While they betrayed and sacrificed Miloševic as an individual, they saved the state of
Serbia and its people. Miloševic, the political master of scapegoating, became the
state's scapegoat in order to secure the state's interest in undermining Bosnia's case at
the World Court holding Serbia responsible for genocide and its terrible costs. Once
again, the international colluded in this vulgar political ritual.
It is unfair to say that del Ponte willfully betrayed Bosnians who were
victims of war crimes, crimes against humanity, and genocide. As a morally committed
lawyer, this was never her intention. She, too, is a victim of this situation. It is fair
to say that she was unwittingly entrapped by the Serbian legal team into the discrepant
role that Goffman calls "the shill." Ratko Mladic entrapped the well-intentioned
United Nations and its peace keeping forces into the same role, in particular during fall
of Srebrenica. In 1995 Dutch soldiers did not only witness the murders and sadistic abuse
of Bosnian Muslims in Srebrenica; Dutch soldiers also became passive accomplices of the
genocide due to Mladic's artful co-optation. The shill is a term for a deceptive practice
at a carnival aimed at luring customers. The shill allows ordinary members of the audience
to watch him or her win handily at a game in order to entice them to play. The shill,
though, is not an ordinary member of the audience; the shill is deceptively working on
behalf of the carnival and against the better judgment of the audience.
In what sense did del Ponte inadvertently act in league with Serbia
while appearing to be an ordinary member of the world audience? Her agreement with
Belgrade helps support the definition of the situation that Serbia seeks to foster,
namely, that it is neither legally nor morally accountable for genocide in Bosnia. As Head
Prosecutor at ICYT, del Ponte's tolerance toward Serbia's request to keep damaging
evidence protected and the trust it demonstrates toward Belgrade become a model. If the
Trial Chamber hearing Miloševic's case grants protective measures for the documents
originating from the Yugoslav Supreme Defense Council, why should the rest of the world
not adapt the same lenient attitude? Why should the rest of the world not be just as
protective? Just as members of the audience at a casino desire to mime the lucky player
who wins handily at the booth, the rest of world desires to mime del Ponte's permissive
attitude toward Serbia with regard to its responsibility for genocide in Bosnia.
The material analyzed here are the appearances that exist in the media
regarding the ICJ judgment. No interviews were conducted; no documentary investigation
occurred. Since the appearances are socially and culturally constructed, they have a
certain empirical weight in their own right in that they influence not only perceptions
but also actions. It is difficult to surmise what Goffman calls the back region of this
subject, that is, the facts behind these media appearances, given the conflicting reports
and the sealed agreements. It, though, is easy to surmise the moral significance of these
appearances, even if we can neither confirm nor refute the facts behind them. While the
back region of the ICTY and the ICJ is inaccessible to journalists and scholars, this
limit does not prevent an investigation of the matter. The symbolic interactionalist
approach of Goffman, which focuses on the observable interplay between the front and back
region of the team, avoids positivistic debates on matters not knowable through direct
observation and rhetorical squabbles on semantics regarding international law; the
symbolic interactionist approach frames for observation the social phenomenon itself and
its egregious content.
In a media release, del Ponte categorically denies that she made a deal
with Belgrade regarding the protection of evidence as was reported by Nice. From del
Ponte's point of view, Nice, as a key member of ICTY, is what Goffman would call a
traitor, a renegade. Nice betrayed the definition of the situation defining the
performance of ICTY for a higher principle; he writes, "There was no conceivable
reason for making a deal with Yugoslavia." The disclaimer of del Ponte, however true
and valid, is without a doubt still an instance of impression management where the motive
is to sustain a certain definition of the situation for ICTY and curtail the damage of
exposed secrets and destructive information. In the disclaimer, del Ponte notes that the
World Court and the ICTY are two different and independent courts. One judges states as
actors (ICJ) and the other individuals (ICTY). She notes that when it comes to cases at
the World Court, it is the responsibility of that institution, not the ICTY, to determine
what evidence it will consider and request the documents it deems necessary. She
understandably transfers responsibility for the matter to the World Court and asserts her
independence from the decision. As can be read in the ICJ judgment that is available
online, the World Court, for some unexplained reason, did not request the documents in
question, as is noted in the dissenting statements of two of the fifteen judges presiding
over the case at the World Court.
It could be argued by seasoned pundits that it was not realistic to
expect the World Court to find and hold Serbia responsible for planning, initiating, and
carrying out genocide in Bosnia. The hope was naive. Other countries have been guilty for
the same crime throughout history. To single out Serbia in this way, such reasoning
argues, would be hypocritical. Serbia would again see itself as the scapegoat of a
hypocritical international community, and this would just make matters worse. What Serbia
did was no different from what other countries have done and will do in the future
throughout human history.
To resist this political realism and this moral indifference, it should
be noted that the World Court had an opportunity to set a moral standard for states to
which not only Serbia but also all countries would be accountable. If Serbia were found
guilty and held responsible for the horrific consequences of genocide, a precedent would
have been set. A moral bar would have been raised a little higher. Other countries would
have had to think twice about the consequences of being responsible for war crimes, crimes
against humanity, and genocide. Iraq would have had a better chance of suing the United
States for the crimes against humanity inflicted in its country; Lebanon would have had a
better chance of using the state of Israel for war crimes against civilians during its
several wars against Lebanon; and Chechnya would have a better chance of suing Russia for
atrocities inflicted against its people. It is said that the decision of the World Court
irreparably damaged Bosnia; it also irreparably damaged world order, of which Serbia, too,
is a truly desperate part. Tragically, Serbia was denied the opportunity to answer for its
war crimes. The international community was an accomplice of Serbia; it, too, is guilty,
and perhaps the international community is protecting not so much Serbia but itself.
The real tragedy here is that the judgment of the World Court does great
harm to world order: Serbia and other states will continue to live under the illusion that
it is advantageous to commit gross injustices at the collective level and do so with
impunity. No individual in the world sees this position as moral, but some see it as a
principle of greatness. The World Court did little to cure this moral ignorance that
infects the world order today. Instead, the World Court paid homage to this demented
principle of greatness to the disadvantage of Serbia and every state in the world.
Goffman, Erving. 1973. Presentation of Self in Everyday Life.
Middlesex, England: Penquin.
Simons, Marlise. 2007. "Genocide Court Ruled for Serbs Without
Seeing Full War Archive." New York Times. April 9th.
Nice, Geoffrey. 2007. Letter to The International Herald Tribune,