This paper by a former ICTY judge sheds interesting light on ICTY, perhaps unintentionally. We have added some annotations in red type to her text to highlight some of the most questionable of the points she makes. Perhaps the most striking aspect of her paper is that it demonstrates how little the ICTY knew about what had happened: the Tribunal relied on untested reports and testimony and failed to mount any kind of robust investigation.
The Georgetown Journal of Legal Ethics
SECTION: Vol. 16, No. 3; Pg. 445; ISSN: 10415548
HEADLINE: General Radislav Krstic: A war crimes case study
BYLINE: PATRICIA M. WALD*;
* Judge, United States Court of Appeals for the District of Columbia Circuit, 1979-1999; Chief Judge, 1986-1991; Judge, International Criminal Tribunal for the former Yugoslavia, 1999-2001; LL.B., Yale Law School, 1951. The text of this article was the subject of the Thomas F. Ryan Lecture at Georgetown University Law Center on November 6, 2002.
ABSTRACT: This article focuses on a major war crimes trial that took place before the International Criminal Tribunal for the former Yugoslavia. In microcosm, the article raises and perhaps helps to answer many questions surrounding war crimes tribunals, their achievements and shortcomings. The factual scenarios of war crimes are complex – especially those committed by leaders far distant from their victims. The more powerful and highly placed the leader, the harder it may be to trace his trail down to the atrocities at the battlefield or village level. Contemporary tyrants have learned valuable lessons from their Nazi predecessors; they put little on paper; they give few direct orders to kill or abuse. [Association with the Nazis has been used repeatedly in anti-Serb propaganda – smearing by false association] To some degree, international justice will always be a hostage of international diplomacy and national sovereignty. The procedural rules under which international courts operate are inevitably a mixture of different legal systems; the pieces do not always fit neatly, yet these rules, especially rules of evidence, can control the outcome of trial. [The last point is certainly true: the ICTY’s Rules of Evidence were disgracefully biased against defendants.]
This article will focus on one major war crimes trial in which I participated as a judge of the International Criminal Tribunal for the former Yugoslavia (ICTY). In microcosm, I believe it raises and perhaps helps to answer many questions surrounding war crimes tribunals, their achievements and shortcomings. Among those questions are: Should major military exercises and the chaotic and anarchistic behaviors by soldiers and their leaders they so often spawn be justiciable at all or better left to the settlement negotiations? Is it fair for the international community to impose war crimes tribunals on some countries engaged in armed conflicts but not others? [In the case of the ICTY, it was illegal under the UN Charter and international law to create an international criminal court under the auspices of the UN Security Council] Do international courts operate in too cocoon-like an atmosphere, remote from the cultural milieu of the countries involved? Is case law interpreting international humanitarian principles so sparse and embryonic that it amounts to a violation of the universal maxim-nulle crimen sine lege (no crime without law)-which forbids trying an individual for something he could not have known was a crime at the time of commission? Finally, does it offend basic notions of justice to convict and imprison a middle-level officer of war crimes while his superior-the principal offender-walks free because the court has no authority to secure the arrest of the top leader?
THE FALL OF SREBRENICA
[Hard to know where to begin with this section, since almost every sentence is inaccurate or misleading. ICTY trials have produced no hard evidence to support any of the claims made about what happened at Srebrenica. In particular, the primary evidence for both the forensic and DNA findings put forward by the International Commission for Missing Persons was totally withheld from the defence teams and from the Tribunal itself.] In July 1995, the fourth year of the Bosnian war, and only months before the Dayton Accords ending the hostilities, what United Nations Secretary General Kofi Annan called “a massacre on a scale unprecedented in Europe since the Second World War”1 took place in a remote valley of Southeastern Bosnia-Herzegovina. A later United Nations report detailed the systematic slaughter of thousands of young men who had been supposedly protected by the U.N.-created safe haven of Srebrenica:
The tragedy that occurred after the fall of Srebrenica is shocking [for two reasons:] first and foremost, for the magnitude of the crimes committed . . . [second] because the enclave’s inhabitants believed that the authority of the United Nations Security Council, the presence of [U.N.] peacekeepers, and the might of NATO air power, would ensure their safety.2 [This is a fantasy. There were 6,000 well-armed Bosnian Muslim troops in the safe area. They had no need for 60 lightly armed Dutch peacekeepers to fight their battles for them. They could easily have defended Srebrenica had they chosen to do so]
In 1998, the International Criminal Tribunal for the former Yugoslavia arrested General Radislav Krstic, the former Commander of the elite Drina Corps of the Bosnian Serb Army in 1995, on an indictment charging him with genocide, crimes against humanity, and war crimes arising out of the events following the downfall of Srebrenica.3
Prior to the attack, Srebrenica was a village of some 37,000 inhabitants [Justice Wald seems unaware that this figure entirely rules out the possibility that 8,000 Bosnian Muslim men and boys could have been murdered at Srebrenica. As more than 39,000 survivors of Srebrenica can be accounted for, there would have had to be 47,000 people in the safe area when it fell. This is far beyond any credible estimate. The facts available now overwhelmingly suggest that the massacre claims were vastly inflated. None of the primary graves identified by US pictures contained more than a few bodies. The vast cover-up allegation – the secret excavation, transportation and reburial of more than 500 tons of decomposing human remains without detection by the vast mass of US hi-tech surveillance equipment passing over Bosnia every day – is nonsensical] in Eastern Bosnia, south of Sarajevo and fifteen kilometers from the Serbian border; until the war began its population worked in nearby factories and zinc and bauxite mines, and was 73% Muslim and 25% Serb. The standard of living was moderately high and ethnic tensions low. From the start of the war its location in the Central region of Bosnia made it of strategic importance to the Bosnian Serbs who sought to form a unified territorial nation of predominantly Serbian character. After Bosnian Muslim and Bosnian Serb armies went back and forth in capturing and recapturing the town in 1992, and Muslim refugees from the surrounding towns and farms flooded inside its borders, Srebrenica was declared a “safe area” in April 1993 by the United Nations to be “free from armed attack or any other hostile act.”4 [But the UN never carried out its promise to demilitarise the safe area – indeed, it allowed more than 6,000 men of the 28th division of the Bosnian Muslim Army (ABiH) to remain in the safe area, holding on to many of their arms and easily able to reclaim the few they had handed over if the need arose. Over the next three years the 28th division, as a deliberate provocation, proceeded to murder several thousand peasant farmers and their families who lived in remote villages within the safe area] Bosnian Serb Commander-in-Chief Radko Mladic and Bosnian Muslim General Emar Halilovic signed a truce calling for the enclave to be disarmed and under the protection of a six-month rotating U.N. Protection Force command. That command in 1995, however, consisted of less than 600 lightly armed, mostly young and inexperienced Dutch soldiers manning a dozen outposts around and inside the enclave. In contrast, the Bosnian Serb army in the area [The BSA was not in the area. It was outside and had the job of defending a front line many hundreds of miles long] had up to 2,000 soldiers and was well-equipped with tanks and artillery. From January 1995 on, that army impeded humanitarian convoys from reaching the increasingly deprived inhabitants of the town [the main abuse of food supplies was done by the ABiH 28th division which took control of all supplies and sold them to their own people at black market prices] whose fuel, water, food and medicine were in desperately short supply, and it even prevented Dutch soldiers from returning to duty after home leave, so as to deplete their numbers.5
In the first week of July 1995, the Bosnian Serb army’s Drina Corps, led by General Ratko Mladic and General Krstic, moved on Srebrenica-ostensibly to reduce its borders and prevent future forays into Serb villages by the Muslim army remnants there. But after quickly overcoming the U.N. outposts, whose Dutch guardians [the role of Dutchbat was not to defend Srebrenica on behalf of the Bosnian Muslims. They were there only to try to maintain the peace. With more than 6,000 troops and huge arms supplies shipped into them from the Middle East via Tuzla airport, the ABiH could easily have defended Srebrenica village against the small force Mladic brought to the outskirts of the town, which news media on the spot estimated at around 300 troops and 4 tanks. Mladic only decided to enter the village when it became clear that it was not being defended because the ABiH had already left] either surrendered or fled into the enclave, and “emboldened by this military success and the surprising lack of resistance from the Bosnian Muslims, as well as the absence of any significant reaction from the international community, President [Radovan] Karadzic [of the self-declared autonomous Bosnian Serb Republic,] issued an order authorizing the . . . Drina Corps to capture the town of Srebrenica.”6 The head of the Dutch U.N. contingent guarding the town sent urgent requests for NATO air power to strike back at the Serbs, but his requests were either misdirected or ignored; one NATO plane dropped one bomb on one Serbian tank and abandoned the scene. A Serbian threat to kill captured Dutch soldiers, and to shell the nearby U.N. compound at Potocari to which some 25,000 to 30,000 Srebrenica refugees had fled, aborted any further NATO response.7[Repeated calls from the Bosnian Muslims for the UN to intervene on their side took place throughout the Bosnian war. As their army was for the most part ineffective (not least because its commanders were chosen more for their loyalty to the regime than because of their military skills), the Izetbegovic government always wanted the international community to fight the war for them]. At the same time a band of some 10,000 to 15,000 able-bodied Muslim men from Srebrenica began a treacherous 40-mile march through Serbian-held woods to Tuzla, the nearest Muslim-held center.8 Muslim army generals, who later testified at the Hague, said the town could have been defended with reinforcements but a strategic decision was made at the highest levels of the Bosnian Muslim military and civil leadership not to do so because of other priorities.9 By July 11, Bosnian Serb Commander in Chief Ratko Mladic was striding victoriously through the empty streets of Srebrenica.10
The panicked population, mostly women, children and elderly but including some young men, crowded into and around the U.N. base at Potocari. Witnesses described them as “terrified” and the situation as “chaotic.” Bosnian Serb soldiers were burning houses and haystacks nearby; sniper fire was heard throughout the nights of July 11-12; random murders and rapes of refugees in the fields and huddled inside factories and warehouses were committed [no primary evidence to support these claims has ever been produced. A substantial US team sent to debrief the 35,600 Srebrenica survivors gathered at Tuzla in July 1995 could not find a single eyewitness to massacre in more than a week of interviews]. General Mladic appeared on the scene with a TV crew handing out candy to the children.11
On July 12, buses under the exclusive control of Serb soldiers arrived at Potocari, and the women and children were herded into them. All men-and some teenage boys-were forcibly separated from the lines and taken to a holding structure-known as the White House-where they were stripped of their identification and held overnight under brutal conditions; some were beaten and killed. Dutch soldiers who tried to accompany the buses were blocked and their vehicles commandeered by the Serbs. In less than forty-eight hours, some 25,000 Muslim women and children were transported out of Serbian-held territory and disgorged to walk the last few miles of “no-man’s land” into Muslim-held territory and to face the uncertain future in refugee camps that awaited them.12[This only happened because Alija Izetbegovic insisted that all survivors should be brought to Tuzla, not spread among a number of reception centres prepared for them by the UNHCR. Izetbegovic wanted the news pictures of refugees crowded into a centre not big enough for all of them]
The men who had fled to Potocari were held at the infamous “White House” until July 13, then separately bused out to Drina Corps headquarters towns, where they were jammed into schools, warehouses and trucks. Their belongings and identification were piled up in front of the White House and burnt in bonfires as they left-Dutch onlookers told of the men’s terror and their prophetic cries for help-“They will kill us.” Within the next few days they were indiscriminately mingled in other holding sites with several thousand Muslim men captured along the road while trying to escape by foot through the woods. Many were enticed to surrender by Serbian promises they would be treated according to the Geneva Conventions, sometimes by Serbs’ wearing U.N. headgear and pretending to be U.N. peacekeepers or Red Cross observers.[This claim appeared in reports, but appears to have been based on hearsay only]. On July 13, the captured men were assembled on football fields along the road; at least 1,000 were marched to a warehouse, crammed inside and murdered by Serb soldiers’ firing shells and pitching grenades into the building.[This story is patently false. The small amount of firearms damage to the Kravica warehouse is shown by television pictures to be wholly inconsistent with a crime on anything like this scale] Eerily, U.S. intelligence satellite photographs taken the same day documented the men gathered on the field just hours before the mass executions.[These pictures provided no proof whatsoever of mass executions.]
During the next few days, thousands of other men captured from the column or transported from Potocari were moved to remote holding places farther north. There, as the Tribunal found, they were slaughtered in “carefully orchestrated mass executions” that “followed a well-established pattern.” The men were lined up in groups of ten, blindfolded, wrists bound with wire ligatures, shoes removed and then shot. Miraculously, a handful escaped to testify later at the Hague. “Immediately afterward and sometimes even during the execution, earth-moving equipment arrived and their bodies were buried.” Months later they were reburied further north in Serb-held territory to avoid discovery as the Dayton Accord negotiations began.13[Everything in this paragraph is uncorroborated testimony from a very small number of men, some of whom told totally different stories to different journalists]
The International Criminal Tribunal for the former Yugoslavia (the Tribunal) was established in 1993 by a United Nations Security Council Resolution to prosecute and try war crimes, crimes against humanity and genocide committed on the territory of the former Yugoslavia from January 1, 1991 onward.14 [The UN Secretary-General at the time, Boutros Boutros-Ghali, told the UN Security Council that there were only two legal ways for the UN to set up such a Tribunal – by a vote of all UN Members at a formal meeting of the General assembly, or by the creation of a new International Treaty. Neither course was followed. The Hague Tribunal was created under humanitarian powers in Chapter VII of the UN Charter. These powers were never intended for the purpose of creating an international court, and in any case only applied in the case of an international conflict. The Yugoslav wars were all civil wars; even when Yugoslavia itself had effectively ceased to exist, the conflicts were between ethnic groups within the new states that had been (illegally) internationally recognised. Serbia did not ‘invade’ any other part of Yugoslavia at any time.] It represented a response by the international community to the steady stream of horror stories emanating from that beleaguered region in 1992-93. The prime mover in its establishment was the United States.15 [Every single one of the ‘horror stories has been shown to be either entirely untrue or hugely exaggerated]
General Krstic was forcibly arrested [illegally, since NATO had no UN mandate or any other mandate to intervene in any way on Serbian territory] in December 1998 by NATO soldiers in an ambush on a Bosnian road and detained at the U.N. detention unit on the outskirts of the Hague; his case was assigned to Trial Chamber I which began trial in March 2000. The three trial judges were myself; Judge Fouad Riad of Egypt, an international law professor, author and arbitrator, and Tribunal member since 1995; and Judge Almiro Rodrigues, the presiding judge, a former Deputy Attorney General of Portugal, professor of law, and member of the Tribunal since 1997.16
A few details about the Tribunal: The judges are nominated by their respective countries but elected by the United Nations General Assembly for four-year terms. The President of the Tribunal, selected by the judges, assigns the judges to one of three Trial Chambers or to the Appeals Chamber. No more than one judge can come from any one country.[Almost 50% of the judges had no formal legal qualifications or professional courtroom experience]
The working languages of the court are French and English; all Chambers staff are expected to speak and write at least one of them fluently, but this still makes for everyday frustrations where, as in Chamber I, my two fellow judges and most of the staff spoke and wrote primarily in French. My law clerk and I were fluent in English only; in such circumstances, it took much time and effort to deliberate usefully and to issue an authoritative decision, often of hundreds of pages, that truly reflected the views of all three judges, even when no real substantive differences were involved.
Trials at the Tribunal are long, consuming on the average over a year; several have gone on for two years.17 Everyone in the courtroom-defendants, counsel, prosecutors, judges-is provided with simulcast translations in three languagesFrench, English and Bosnian/Croat-Serb-and video transcripts on the screen. But this need for continuous translation rules out fast-paced examinations or colloquies among counsel and witnesses and inevitably lengthens the trial. Witnesses must often come from across several continents, and prosecutors often indict only after five years or more of field investigations. Defense counsel are often unfamiliar with the novel procedures of the Tribunal; some have never engaged in cross-examination before, a talent in which one does not become immediately expert. Some judges have no prior courtroom experience running trials.
The Tribunal makes its own rules [This was not supposed to happen. The UN Security Council gave clear and binding instructions to the Tribunal to enforce only existing international law. The Tribunal blatantly ignored this and wrote a Statute which gave it power to do whatever it liked. On this basis alone, its operations were entirely illegal] which provide for a basically adversarial trial. Although there is no grand jury, a judge must confirm the indictment to assure that there is evidence to support the charges prima facie. After a pretrial period, in which motions are heard and discovery-far more liberal than in our system-is completed, the prosecution puts on its case-in-chief; the defense responds; and surrebuttal follows. After that comes the judges’ deliberations, continuing for months, and finally the rendering of their written judgment, including sentence (guilt must be beyond a reasonable doubt, but may be by two to three of the judges). Both the defendant and the prosecutor may appeal the verdict and/or sentence to the Appeals Chamber.18[As noted above, the ICTY passing judgement on itself, always in its own favour]
The rights of the accused follow the lines of the European Convention on Human Rights [very, very loosely]; the accused has the right to be notified in his own language of the charges against him; a right to counsel, appointed if he is indigent; to be present at his trial; a right against self-incrimination; a right to be brought to trial within a reasonable time; to examine the witnesses against him; to put on his defense; and to be informed of any evidence [never happened]in the hands of the prosecutor that tends to show his innocence or mitigate his guilt.19
The Tribunal, now in its ninth year, has convicted thirty-six defendants, acquitted three, is currently engaged in trial or pretrial proceedings involving a dozen more, most notably Slobodan Milosevic. It is expected to finish its last trial at the end of this decade and its last appeal a few years later. After that, any war crimes from the Bosnian or Kosovo conflicts will have to be prosecuted in local courts; the new International Criminal Court has no jurisdiction over crimes committed before it came into existence in July 2002.20
On March 3, 2000, when his trial began, General Krstic was the most senior military officer to stand trial at the Hague.21 He was indicted for genocide, war crimes, and crimes against humanity based on the Srebrenica events; President Karadzic and General Mladic had also been indicted for the same crimes but were at large. Even as the trial began, the press repeatedly noted that Krstic should not have been alone in the dock; Karadzic and Mladic belonged there by his side.22 As of now-almost three years later-neither man has been arrested.23 Six months before Srebrenica, Krstic had lost a leg in a land mine accident; his prior record was unblemished; and he had been a valuable and cooperative partner with the Western powers in the implementation of the Dayton Accords since 1995.24 One reporter described him later as “a mild mannered man [who] oversaw the worst atrocity committed in Europe since the Nazis.”25 The Los Angeles Times called the trial “the most important yet.”26
Krstic was represented at trial by two able, dedicated and thoroughly professional lawyers from Belgrade, counsel of his own choice. [All defence teams were at great disadvantage compared to the prosecutors: unlike the prosecutors they had no immunity granted to them and could be – and were – held in contempt at any time; their resources were far fewer; they were not treated even-handedly by judges]The lead prosecutor was an experienced former U.S. Department of justice lawyer and public defender from California, who had tried several major trials at the Tribunal. A tribunal spokesman promised the trial would be “a unique mixture of academic international humanitarian law and the nitty gritty of a police investigation.”27[It was in fact a fantasy of lies supported by unsubstantiated claims. There was no investigation, let alone one resembling the ‘nitty gritty of a police investigation]
Highlights of the trial
The trial lasted for ninety-eight days over a period of seventeen months; 118 witnesses testified; over 1,000 exhibits were introduced.28 Given time limits, I can only briefly focus on the two sides’ trial strategies and highlight a few of the most interesting issues of proof. Chief Prosecutor Mark Harmon opened dramatically: “This is a case about the triumph of evil, about men who professed to be professional soldiers . . . [who] organized, planned and willingly participated in the genocide, or stood silent in the face of it.”29 Krstic, he said, was a participant from the beginning in a diabolical plan hatched by Mladic on july 11 to transfer the women and children refugees of Srebrenica out of Serb-held territory and kill all the men. Krstic, on the other hand, maintained that he did not become Commander of the Drina Corps until weeks after the executions, that he spent the crucial week of july 11-18 many miles away from the scene of the alleged massacres, preparing for and executing a separate military campaign against Zepa, the other “safe enclave” in the region. He said this was on explicit orders of Mladic, who personally directed the cleanup operation in Srebrenica, and he, Krstic, learned nothing of the executions until late August.30 [Krstic had been very seriously ill for two weeks in a Belgrade hospital before he took up his new command. There was no hard evidence to support claims of a rapidly conceived Bosnian Serb plan to carry out a genocide at Srebrenica. A few clear forgeries and some transcripts of radio intercepts (the original tapes had conveniently been destroyed) were a poor excuse for real evidence]
The defense never disputed that the executions and secret burials took place. [Very difficult, especially on the uneven playing field of an ICTY trial, to produce witnesses to prove that something didn’t happen. To have any chance, an ICTY defence had to concentrate on something that might make headway in a climate of overwhelming bias].The prosecution nonetheless led off with a parade of heart-wrenching witnesses who had either lost family members or themselves suffered terrible injuries (but miraculously managed to survive) at the execution sites. [How very convenient] The emotional impact of their testimony cannot be overstated. One particularly compelling witness had lost a husband, son, father, brother and twenty-six male relatives during that one fateful week and announced from the stand, “we wish him a death penalty, for him to disappear from the face of the earth.” Another witness echoed, “If he would have ten lives, all ten should be taken from him for all the horror he caused.”31 Fifty-eight witnesses sought some form of protected status, a pseudonym or face or voice distortion on television to avoid retaliation in their home villages; nine were heard in closed session.32[The ICTY strategy at all times was to deluge the record with unsupported victim testimony. Even when given anonymously and remotely, there were repeated indications of shameless witness-coaching. Protected status for fear of reprisals from neighbours must be one of the weakest excuses ever put forward in a court. It suited the prosecution to have anonymous witnesses because it reduced the chances they would get tripped up in cross-examination]
A series of forensic experts testified about the exhumations of the primary and secondary burial sites in which 2,500 bodies-many blindfolded and hands tied behind them-had been dumped by trucks, then later hastily dug up and reburied elsewhere, body parts so separated and disjointed, identification was virtually impossible. [All they did was to read written reports of their conclusions. The Tribunal was never informed about the details of such things as the DNA identification technique that had been used, what steps had been taken to avoid contamination in the DNA process (an acute problem with DNA), how and why the massive re-burial cover-up theory had been identified (one of the most ridiculous theories ever advanced) etc, etc. Military satellite photographs from the United States intelligence services verified the witnesses’ accounts-they showed men lined up on fields, freshly disturbed soil where graves were dug, and even piles of bodies.33[It is generally agreed that these images prove absolutely nothing – pictures of men on fields and piles of bodies could very well have been associated with the intense fighting between the Bosnian Serb Army and the 28th division of the ABiH which both sides agreed had led to around 2,000 deaths in total. Presumably this is why these images were quickly classified and remain unavailable] The effect of this imagery was powerful, underscoring the planned nature and massive dimensions of the killings. The press reported Krstic as “still and utterly impassive” in the “bland, antiseptic surroundings of a comfortable Dutch courtroom,” displaying “not a flicker of emotion,” giving a “chilling performance.”34 Others said he “swallowed and stared at his hands when pictures of bodies in mass graves were flashed in the courtroom.”35
However, as I noted, the prosecutor’s challenge was not to show that the alleged massacres had taken place (which was not even in dispute), [it has always been disputed bythose who have studied the evidence. The ICTY’s Serbian defendants had no personal knowledge of events that never took place and had few means to gather detailed information about what had actually happened] but to demonstrate beyond a reasonable doubt that General Krstic knew about the executions in time, had power to do something to stop them, and failed to do so. Evidence was plentiful throughout the trial of Mladic’s presence in the immediate area-on the killing fields themselves-but not so for Krstic, who was engaged during the week in a military campaign north of Srebrenica.36 The prosecution nonetheless relied on two legal theories to show Krstic’s responsibility for the executions. First, a theory of command responsibility holds a superior responsible for the misdeeds of his troops if he knew or had reason to know about them in time to prevent them, or, if finding out about them too late to prevent them, he did not take all reasonable steps to see the miscreants are punished. The second theory was one of joint criminal enterprise-similar to our conspiracy doctrines-that Krstic entered into a common plan with others to accomplish an illegal objective and could therefore be held responsible for the criminal actions of all other participants in the enterprise advancing that common purpose if he knew or could have reasonably foreseen those actions. In sum, the prosecution had to prove-under either theory-that Krstic had reason to know about the executions in time to prevent (or punish) them, that he actively assisted in implementing them, or at least did nothing to stop them.37[This drivel reflects the new bits of law that the ICTY introduced, in breach of its instructions from the UN Security Council, most notably the charge of Joint Criminal Enterprise (JCE). Dubbed ‘Just Convict Everyone’ even by an ICTY insider, this was strongly criticised by the American Bar Association and is widely perceived to be an indefensible innovation}
Yet, even under these theories of criminal liability, proof of Krstic’s complicity in the killing of the men of Srebrenica was a complicated matter. He had already left Potocari before the men were bused out, and the column of Muslim men was marching in the opposite direction from where Krstic had his command post. Here, the prosecution had to rely on two lines of proof: first, that Krstic had in fact been made Commander of the crucial Drina Corps mid-week on the 13, not a week later on the 20 as he argued; therefore, he would have received as a matter of course all of the Corps communications relating to the disposition of the Muslim men in the territory of his command, both those captured from the column and those bussed out of Potocari. second, because Mladic, even as Commander-in-Chief, could not have carried out so massive a genocidal mission (7,000-8,000 executed within five days in a forty-mile radius) without substantial support of Drina Corps men and equipment, Krstic as Corps Commander not only had to know but to assent, explicitly or implicitly, to that action. [This is the nub: no hard evidence was put before the court to substantiate this story, but General Krstic was nevertheless questioned on the basis that it had all been proved and he must have known about it] The warehouse, where 1,500 [this figure has grown] prisoners were shot on July 12, was on the main road through the Drina Corps territory; women being bused out later that day testified they saw the bodies lining the roads. A Drina Corps witness, who had earlier pled guilty to shooting prisoners, testified that 1,200 Muslims on buses escorted by Drina Corps troops were killed in one afternoon, and a few hours later hundreds of men locked in a village cultural center were similarly killed.38[This was the ICTY’s so called ‘Star Witness’, Drazen Erdemovic. A Croatian-born mercenary, he fought on all sides during the Bosnian war. The prosecution alleged that, at the time of Srebrenica, he was with a unit called the Skorpions which was attached to the Bosnian Serb Army. This has been disproved. The Skorpions’ only Serbian link was well before Srebrenica when they were briefly employed by the Krijina Serbs to guard their petrol storage facility. The 1,000 murders Erdemovic claimed they had committed at Srebrenica were in fact a much smaller number of killings conducted more than 150km from Srebrenica. The whole story is full of holes: Erdemovic, used as key witness in most major ICTY trials, was in poor mental health and was originally found mentally unfit to stand trial; plea-bargaining had secured his testimony; his seven accomplices were never interviewed by the ICTY even though their whereabouts was well known. In short, inadmissible evidence in any other jurisdiction.]
The defense nevertheless argued that General Mladic had set up a separate chain of command for the executions without either requesting permission from or informing the regular Drina Corps Command. The prosecution’s response was to show that though Mladic’s Main staff was indeed heavily involved in the cleanup operations, at virtually every stage Mladic had to call on Drina Corps destination picked by the Serbs. Id. at [para] 149. Mladic was quoted by one witness as saying, “We’ll evacuate them all-those who want to and those who don’t want to.” Id. at [para][para] 147, 530.
38. See generally judgement, supra note 4, at [para][para] 178, 183, 187-91, 215, 224-25. There was also evidence that thirty buses-many the same ones used to transport the women and children out of the territory-left from Bratunac, a Drina Corps stronghold, carrying 2,500 men between july 13-15, delivering many of them to their deaths at Orahovec, on July 14; a detachment of Drina Corps military police were dispatched to the execution site the same night. On July 15, Drina Corps engineers made ten round trips to Petkovic Dam, a major execution site for 2,000 more men. Id. at [para] 231. [None of this stuff ever amounted to anything]
This kind of “paper trail” is somewhat unusual for Tribunal trials which normally have to depend to a far greater extent on live witnesses then Nuremberg where the meticulous Nazis kept voluminous records of their nefarious activities. [Since many of the documents put forward by ICTY prosecutions turned out to be fakes, this ‘paper trail’ should be treated with extreme scepticism] The Nuremberg prosecutor assembled five million pages of documentation; the SS files alone reportedly filled six freight cars. Gary J. Bass, A Look at . . . War Crimes and Punishment; It’s Risky Business. What can we gain by prosecuting Serbia’s Milosevic and Other Wartime Killers?; Tribunals are Flawed But Not Futile, wash. post, Nov. 26, 2000, at B03. The Drina Corps records were the result of SFOR raids of VRS headquarters; the prosecution’s chief military expert, Richard Butler, a U.S. army intelligence analyst, studied 30,000 documents to prepare for his expert testimony on the way in which the Bosnian Serb army operated. [Very questionable to use a US army intelligence officer as an expert witness: although officially neutral, it was by this stage well known that the US had been arming and training the Bosnian Army and was quite clearly on the Bosnian side. The conviction of Krstic was important to back up the official fantasy of what had happened]
It is worth noting that the Tribunal’s quite careful perusal of the evidence-or lack thereof-of Drina Corps participation produced conclusions that the Corps was not shown beyond a reasonable doubt to have been directly involved in several executions at the Kravica warehouse, Tisca, Cerzka Valley or Jeda River or in the reburial activities. See judgement, supra note 4, at [para][para] 200, 204, 215, 219, 261. resources to carry them out.39
But still it would not be enough to show the engagement of Drina Corps men and machines unless knowledge of those actions could be imputed to General Krstic and he had the power to do something to stop them. This was the final and unquestionably the most difficult part of the prosecution’s case.
A substantial amount of trial time was spent in arguing over exactly when Krstic became Commander of the Drina Corps-in the middle of the fateful week or not until a formal handover ceremony a week later when the executions had ceased. If Krstic was Commander during that week, his liability would be clearer. The Court concluded that though Krstic’s formal commission from President Karadzic as Commander did not technically take effect until July 15, Krstic began acting as the de facto Commander as of the evening of July 13.40
It was the intercepts, however, that sealed Krstic’s fate. These were field communications between Bosnian Serb troops and officers-often heavily laden with code terminology-that amateur radio signalmen and army experts working for the Muslim army surreptitiously listened to during that week. The radiomen had recorded, on tape, conversations they thought relevant, then transcribed them into schoolboy-type notebooks, dated and numbered them, identified (when they could) the participants, typed them out on a computer, and sent them to the Bosnian Army Headquarters where the hundreds of notebooks and tapes were eventually stored in archives. Now, a parade of these radiomen appeared in court to authenticate the notebooks and the conversations translated from the tapes. The defense strenuously objected to their admission on a number of grounds. Krstic insisted that it was not even his voice that was heard on some of those attributed to him.41 But these objections were overruled by the court and the information was deemed to have been sufficiently authenticated. [This ‘evidence’ was pitiful and should never have been pout forward]
What the hundreds of intercepts showed was that during the week of July 11-18, the Drina Corps Command was kept fully informed of the captures of the Muslim men from the column.42 Further, on July 15 an intercept showed Colonel Beara of the Bosnian Serb Main Staff reporting that, “There are still 3,500 ‘parcels’ that I have to distribute and I have no solution.” Krstic, stating in response, “I’ll see what I can do.” (“Parcels” was code for Muslim prisoners.) This incriminating conversation was recorded separately by three different field operators. The evidence showed that Beara was deeply involved in the killings and his conversation with Krstic took place in the midst of the executions.43
In his defense, Krstic denied that the conversation took place at all and argued further that even had he known of the executions, he had no power to do anything to countermand them since they were conducted under direct orders from Mladic.44 But the prosecution showed tellingly that Krstic and other Drina Corps Brigade Commanders had earlier dissuaded Mladic from directly attacking the refugee enclave at Potocari on the grounds that it would cause a furor in international circles; the prosecution argued he might well have been dissuaded again, if Krstic had tried. Nor did General Krstic help his defense measurably by taking the stand for five days. The prosecution was able to exploit inconsistencies in his trial testimony from an earlier pretrial interview, to disprove his testimony on his precise whereabouts during the critical week, and to discredit his denial of the conversations transcribed by the field radiomen. One reporter described his performance as having an “air of an exasperated teenager who has to explain again what should be obvious: that he is innocent of all charges.”45[That is exactly what he was]
In its judgment of conviction, the Trial Chamber concluded that:
The plan to execute the Bosnian Muslim men may not have been of [Krstic’s] own making, but it was carried out within the zone of responsibility of the Drina Corps. Furthermore Drina Corps sources were utilized to assist with the executions from 14 July 1995 onwards. By virtue of his position as Drina Corps Commander from 13 July 1995, General Krstic must have known about this. . . . On July 15, 1995, thousands of prisoners were still alive; had General Krstic intervened at even that late date they might have been saved.46
General Krstic was charged with war crimes, crimes against humanity, and genocide, all based upon the same factual scenario. The most serious charge, of course, was genocide-“the crime of crimes.” Krstic’s trial would be the first in the Yugoslav Tribunal to try the charge of genocide through to completion.
There was sparse judicial precedent construing the Genocide Convention of 1948; only a few prosecutions of Nazi leaders in national courts-including Adolph Eichmann in Israel-and several Hutu leaders in the Rwandan Tribunal, including the Prime Minister of Rwanda who pled guilty to the genocide charge. The Hutu slaughter of over 800,000 Tutsis, however, lent itself much more naturally than the Bosnian killings to the prototypal genocide perpetrated by the Nazis against the Jews that gave rise to the 1948 Convention.
From the beginning of the Bosnian war, there had been disputes among international scholars as to whether the Serbian-type “ethnic cleansing” of Bosnian Muslims constituted genocide. One respected judge on the International Court of Justice had said in a preliminary opinion that the “forced migration of civilians, more commonly known as ‘ethnic cleansing,’ is, in truth, part of a deliberate campaign by the Serbs to eliminate Muslim’ control of, or presence in, substantial parts of Bosnia-Herzegovina. Such being the case, it is difficult to regard the Serbian acts as other than acts of genocide,”47 and several U.N. Resolutions had referred to “the abhorrent policy of ‘ethnic cleansing’ which is a form of genocide.”48
But the drafters of the Genocide Convention had deliberately resisted including forcible transfers or deportation per se in the definition of genocide. They feared that unless strictly construed “the idea of genocide [could] be expanded indefinitely to include the laws of war, protection of minorities or respect for human rights,” thereby diluting its stigma which must be be reserved for the “most heinous crimes of intentional group destruction.”49
The definition of genocide in the Convention and in the Tribunal Statute contains two essential requirements. First, the actions constituting genocide must fall within five specific categories only the first three of which are relevant here: (1) killing members of a targeted group; (2) causing members of the group serious bodily and mental harm; or (3) deliberately inflicting upon members of the group conditions of life calculated to bring about its physical destruction, in whole or in part.50
In Krstic’s case, the prosecution charged, and the proof easily showed, that “all of the military-aged Bosnian/Muslim males [from Srebenica] that were captured or fell otherwise in the hands of the Serb forces were systematically executed,” and serious bodily and mental harm was inflicted on those few who survived.51[This is nonsense. There was no such proof revealed by the trial]
The harder job was to prove the second element of genocide; that these acts were done with the specific intent to destroy a protected ethnic, racial or religious group in whole or in part, rather than as a military objective to advance the war, or even as revenge by a frustrated Serb army led by General Mladic, who was enraged because the Muslim army had not surrendered at Potocari as he demanded.52
Unlike Rwanda and some earlier genocides, there had been no public calls in Bosnia for the killing of any group; the court therefore had to infer the required genocidal intent from the pattern of the executions and deportations themselves. From such evidence, it did find that “a decision was made . . . to capture and kill all the Bosnian/Muslim men indiscriminately. . . . No efforts thereafter were made to distinguish the soldiers from the civilians.” The captured men had been stripped of their identifications; their belongings piled up and burned; their annihilation had to have been the only goal. Nor did the mass executions bespeak of unplanned or uncontrolled rampage by furious troops. They were carefully planned and orchestrated-dozens of holding places, hundreds of blindfolds, ligatures, burials on-site, and reburials.53[As Justice Wald says, there were very few eyewitnesses. In each case their evidence was uncorroborated and many of them have given wholly inconsistent stories to different people. Quite how the Judges came to see their stories as compelling evidence will always be a mystery]
But was an intent to kill the young men from Srebrenica-civilians and military alike-sufficient to meet the Convention’s requirement that there be an intent to destroy “a national, ethnical, racial or religious group in whole or in part, as such.” These words, as it turned out, have a long and tortured history.54
In the Srebrenica case, the indictment originally named all Bosnian Muslims as the targeted group, but the prosecution later changed its position to argue only the Srebrenica Muslims constituted the group. The defense argued, on the other hand, that the Bosnian Muslims of Srebenica were not a specific national, ethnical, or religious group with characteristics distinguishable from the rest of Bosnian Muslims.55 On this issue the court sided with the defense-that meant the 1.5 million Muslims in Bosnia, not the 37,000 Muslims in Srebrenica were the relevant protected “group” for purposes of the genocide definition.56
The next question, then, was whether it had been sufficiently shown that the Srebrenica Muslims were a distinct enough “part” of the larger group of Bosnian Muslims for the genocide definition to apply, since no one was claiming the Serbs had set out to destroy all the Muslims in Bosnia. Here the prosecution relied on proof that a strategic objective of the Serbs was to unite in a single state all the Serbs in this predominantly Serb region of Bosnia and by so doing to erase the border which separated Serbia from Eastern Bosnia. In this campaign only a few small enclaves like Srebrenica, where the population was predominantly Muslim, stood in the way. The permanent removal of the Muslim population of Srebenica was essential to that goal. The Srebrenica Muslims were, in short, a distinct “part” of the total Bosnian Muslim population the Serbs had slated for destruction.57[This is nonsense. It is well known that the two sides (and international negotiators) had been discussing territorial exchanges for some time and were bound to trade isolated enclaves in each other’s regions. They Bosnian Serbs had no need to kill Muslim men from Srebrenica to achieve this objective]
There was one last bridge to cross: not all the Bosnian Muslim inhabitants of Srebrenica had been targeted for killing, only the military-aged men. The women and children had been transported unharmed to Muslim territory. So how, the defense argued, could one say that this even smaller fraction of Bosnian Muslims could qualify as a substantial enough “part” of the entire group to meet the definition? Here, in what I believe to be a novel interpretation, the court reasoned, based on testimony of social science experts who appeared before it, that the Serbs fully realized that the Muslim society in Srebrenica was a patriarchal one and that by depriving family units of their principal breadwinners and male authority figures, “they would profoundly disrupt the bedrock social and cultural foundation of the group.” The women would not return to Srebrenica alone-ever. In the words of the prosecutor, “by killing the leaders and defenders and deporting the remainder, the VRS and General Krstic assured the Bosnian/Muslim community of Srebenica and its surrounds would not return to Srebenica nor would it reconstitute itself in that region or indeed anywhere else.” Which is indeed what has actually happened.58 The widespread destruction of Muslim homes and mosques in that town added to the evidence of such an intent.59 [Sorry, but this is also completely nonsensical – an explanation manufactured to bolster the complete lack of knowledge and evidence that bedevilled all the ICTY indictments]
The last legal issue in this case involved assessing the individual responsibility of General Krstic; different persons participating in a genocide may have differing degrees of criminal responsibility. As I said earlier, the Tribunal Statute incorporated the concept of command responsibility: A superior officer is responsible if he knew or had reason to know that his troops planned, or had already committed a genocide, even if he did not order or personally participate in the genocidal acts. There was, additionally, Tribunal precedent that an accused can be a co-actor in a joint criminal enterprise if he knowingly participates in acts to advance the goal of the enterprise. In such a case, he can be held responsible not only for the acts of others advancing the common purpose, but also for acts that were foreseeable even though not within the object of the original plan.60 [This and the subsequent paragraphs comprise an attempt to justify the crazy machinations of a Tribunal, formed on a deception, which was charged with implementing a false and wholly political form of injustice. The ICTY issued its indictments without having evidence to back the charges, put gathering of crucial evidence into the hands of an organisation that was 93% staffed by Bosnian Muslims, rigged its processes to ensure that defence teams were severely disadvantaged at all times – and still found it nigh on impossible to present any serious prosecutions]
The court ultimately decided Krstic’s behavior fitted the criminal enterprise mold best; he planned and implemented the events that caused the refugees to flee to Potocari and actively participated in their subsequent forcible transfer out of the region. As of July 13th, the original Mladic plan to ethnically cleanse Srebenica of Muslims had apparently escalated to a plan to kill military-aged men. By the evening of July 13th, when he became Commander of the Drina Corps, Krstic must have known executions were taking place. From July 14 on, he effectively participated in the executions by rendering “tangible and substantial assistance and technical support.” “General Krstic,” the court said, “may not have devised the killing plan or participated in the initial decision to escalate the objective of the criminal enterprise from forcible transfer to destruction of Srebenica’s Bosnian Muslim military-aged male community, but there can be no doubt that, from the point he learned of the widespread and systematic killings and became clearly involved in their perpetration, he shared the genocidal intent to kill the men.”61
The prosecution asked for a life sentence, arguing that nothing less would be justified on a conviction of genocide.62 The defense made no submission on a sentence.63 In its judgment of conviction, the court cited prior decisions stressing the gravity of offense, individual circumstances, and deterrence as primary criteria in determining a sentence, but also noted that the statute instructed sentencing courts to take into account “the general practice regarding prison sentences by the courts of the former Yugoslavia.”64 Although Yugoslav courts had at one time been authorized to hand down the death penalty for genocide, the Bosnian Code in 1998 abolished the death penalty and set twenty to forty years as the range for long-term imprisonment “for the gravest forms of criminal offenses.”65 In pronouncing its sentence of forty-six years imprisonment, the court said:
The [court’s] overall assessment is that General Krstic is a professional soldier who willingly participated in the forcible transfer of all women, children and elderly from Srebrenica, but would not likely, on his own, have embarked on a genocidal venture; however, he allowed himself, as he assumed command responsibility for the Drina Corps, to be drawn into the heinous scheme and to sanction the use of Corps assets to assist with the genocide. . . . General Krstic remained largely passive in the face of his knowledge of what was going on; he is guilty, but his guilt is palpably less than others who devised and supervised the executions all through that week and who remain at large. . . His story is one of a respected professional soldier who could not balk his superiors’ insane desire to forever rid the Srebrenica area of Muslim civilians, and who, finally, participated in the unlawful realisation of this hideous design.66
The press in attendance at the sentencing described Krstic as “looking drawn and grey”; they said [he] “swallowed hard at the verdict.”67 In Serbia a reporter wrote the reaction to Krstic’s conviction and sentence was not a high-decibel one. “People want to get on with their lives, put these the bad days behind them.”68 Krstic’s counsel told reporters, “we expected this judgment from the very start of the trial.”69 Bosnian Muslim women refugees from Srebrenica interviewed were outraged that he did not receive a life sentence.70 However, the lead prosecutor, Mark Harmon, said in an interview: “What happens to someone . . . who gets 45 [sic] years has got to give pause to any rational commander in the future who envisions, or who wants to participate in the commission of war crimes.”71 Most reporters agreed that, “Even by the standards of the war crimes tribunal, this trial was harrowing.”72
Answers to those perplexing questions I posed earlier do not come easily. In concluding, I will underscore only a few key points:
(1) The factual scenarios of war crimes are complex-especially those committed by leaders far distant from their victims. The more powerful and highly placed the leader, the harder it may be to trace his trail down to the atrocities at the battlefield or village level. We are seeing some of that at the Milosevic trial now.73 Contemporary tyrants have learned valuable lessons from their Nazi predecessors; they put little on paper; they give few direct orders to kill or abuse. The proof of their involvement at trial is usually circumstantial and their complicity inferential. For those schooled in Western norms of criminal justice, this can turn out to be a risky-and very time-consuming-undertaking. Krstic was an appealing defendant in some respects: his sin-moral and legal-consisted of not standing up to the evil of his own superiors. He does not wholly fit the model of the bloodthirsty, wildly ambitious and reckless war criminal.74 Yet, because of the vicissitudes of international arrests, his superiors walk free. That basic paradox will not change with the new International Criminal Court though States Parties to that Court are required to turn over charged suspects in their custody or to apprehend those in their jurisdiction. But to some degree, international justice will always be a hostage of international diplomacy and national sovereignty.
(2) However, many believe individual accountability for grievous crimes against innocent victims is just as much an urgent imperative for international as for national self-respect and the integrity of legal order.75 There was no other forum in which General Krstic’s case could have been heard; Bosnian court structures were in tatters after the war; Serbia, then under Milosevic, certainly would not have done it. We may all agree that the preferable solution is for war crimes to be tried in the native country of the suspects, if those countries are truly committed to fair and open trials. And, indeed, the new International Criminal Court embraces that principle, making provision for the accused’s home country to conduct the trial if it is willing and able to do so.76 But even today major nations and wartime countries admit openly they are not so willing or able.77 We need this permanent international forum to fill that void, lest the advances made in international criminal and humanitarian law during the past century deteriorate into mere rhetoric.
(3) “Command responsibility” and “criminal enterprise” are useful doctrines in an international criminal jurisprudence that deals with far-flung military campaigns, serial massacres, and nationwide strategies, such as ethnic cleansing; Milosevic’s current trial covering five years and hundreds of activities in several countries is based on a criminal enterprise theory. But the way in which such theories are applied must be carefully monitored lest they escape legitimate limits and provide too easy an escape from the burden of proving guilt beyond a reasonable doubt in individual cases, especially in special intent crimes like genocide. There are arguments that military, and even civilian leaders should be presumed knowledgeable of and responsible for what goes on in their commands or jurisdictions, but such a presumption makes many Western criminal scholars uncomfortable, especially given the geographical scope and uncertain command structures that characterize many current wars. As for criminal enterprise, our own United States experience with overreaching under conspiracy doctrines should give us pause in too facilely globalizing those doctrines. Where precisely the line should be drawn needs further exploration and refinement.78
(4) The procedural rules under which international courts operate are inevitably a mixture of different legal systems; the pieces do not always fit neatly, yet these rules, especially rules of evidence, can control the outcome of trial. The draft rules of the new International Criminal Court represent an improvement over those of the two ad hoc Tribunals but undoubtedly can themselves be improved with experience. The goal is a fair trial, not a familiar one.
(5) War crimes trials provide a unique service in documenting wartime crimes and atrocities and giving such records the imprimatur of international factfinding. In this way they pose a barrier not only to future denials that the crimes ever took place but to the phenomenon of war fatigue that envelops nations in the decades following the wars and impels them to ignore their own documentation efforts. “Those who do not heed the past are condemned to repeat it,” George Santayana said, and a thorough record of wartime misdeeds compiled in the immediate aftermath is a contribution to history and hopefully to deterrence.
(6) The War Crimes Tribunals represent a maiden effort at defining and enforcing international humanitarian law which had previously been the exclusive sphere of diplomats and scholars. This application has required a tremendous effort to flesh out bareboned, sometimes vague, sometimes conflicting, definitions and doctrines within an overriding principle that no one must be punished for something that was not clearly recognized as a crime at the time he did it. There is much more work to be done to establish a complete and coherent body of international humanitarian law, and my fervent hope is that eventually the United States will rejoin the community of nations to make its proper contribution to that development in the International Criminal Court. We were pioneers in this effort at Nuremberg and the Hague; it is sad to see the United States now in retreat. Nothing worthwhile-in the law or outside-comes easy and the fledgling efforts at international justice of the current Tribunals richly deserve attention, assessment, and, I personally like to think, even modest applause.
1. Press Release SG/SM/7489, Secretary-General Kofi Annan, United Nations, Srebrenica Tragedy Will Forever Haunt United Nations History, Says Secretary-General on Fifth Anniversary of City’s Fall (10 July 2000), available at http://www.un.org/News/Press/docs/2000/20000710.sgsm7489.doc.html.
2. Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, U.N. GAOR, 54th Sess., Agenda Item 42, U.K. Doc. A/54/549 (15 Nov. 1999), [para][para] 467-68.
3. More recently, the Dutch government in charge of the U.N. forces guarding the enclave resigned after a Dutch internal investigation of the incident. Peter Finn, Dutch Government Quits After Report on Serb Massacre, wash. post, Apr. 17, 2002, at A8 (“Dutch government resigned today in response to a ‘damning report’ on the slaying in 1995 of more than 7,000 Bosnian Muslims . . . the single most brutal chapter of the 1992-95 war in Bosnia-a moment that discredited all the international peacekeepers involved . . . the worst mass murder in Europe since the genocide of World War II has haunted the liberal Dutch conscience for seven years, and today’s mass resignation was a belated act of collective penance. . . . Srebrenica, a mostly Muslim town of 36,000 people before the war now has a population of 8,000, most of them Serbs.”).
4. Judgement, Prosecutor v. Radislav Krstic, case No. 1T-98-33-T, [para] 18 (2 Aug., 2001) [hereinafter JUDGEMENT].
5. Id. at [para][para] 11-22. Unless otherwise referenced, all facts set out in this article concerning the Srebrenica events and trial are to be found in the Judgement. I will not attempt to cite separately every fact so contained, but rather to indicate the paragraphs of the Judgement in which the facts being discussed can be found.
6. Id., at [para] 33.
7. See Tom Walker, SAS Book on Bosnia Blocked, THE TIMES (London), July 9, 2000 (reporting that Mladic threatened to kill forty-four Dutch soldier hostages if NATO bombing continued).
See also Anthony Goodman, Holbrooke Mourns Srebrenica; Urges Reconciliation, REUTERS, July 11, 2000 (reporting that Holbrooke calls Srebrenica “one of the seminal events of our time”; says as a U.S. Assistant Secretary of State, “we tried desperately to get the U.N. to act, to bomb the Bosnian Serbs who were in the process of massacring people.” But NATO bombing then required U.N. approval, a procedure never again “countenanced.”); Henry Porter, Days of Shame, GUARDIAN (London), Nov. 17, 1999. (reporting that General Janvier declined to order U.N. bombing because Karrerman had used the wrong request form. “If sufficient numbers of aircraft had attacked on July 11, there is little doubt that the Serbs would have been unable to carry out the massacres five days later.”).
8. See JUDGEMENT, supra note 4, at [para] 60.
9. See id., at [para] 35.
10. See id., at [para] 36. Five years later, in 2000, there was a daylong pilgrimage back to Srebrenica by Muslim relatives of victims. See also ICTY Tribunal Update #391 (Aug. 7, 2000), reprinting press clipping from REUTERS, Oct. 1, 2000 (four cases of arson on Muslim homes in Srebrenica in past two months; S.D.S. (Karadzic party) said would hold “liberation” celebration on day of memorial for Srebrenica victims).
See also Zeljko Crijanovic, Dodik Owns Up to Srebrenica, INST. FOR WAR & PEACE REPORTING, BALKANS CRISIS RPT., July 18, 2000, available at http://www.iwpr.net/index.pl?archive/bcr/bcr_20000718_1_eng.txt (last visited Mar. 3, 2003) (noting that 3,500 relatives of victims visited Potocari on the fifth anniversary of the massacre; that over 7,000 Srebrenica men are still missing; that first time Republican Srbska Prime Minister “own[ed] up” to Srebrenica, an act that may cause him political damage; and that Serbs accuse Tribunal of paying more attention to Muslim and Croat victims of war crimes than to Serb victims: for instance, only two accused in Celebici detention camp run by Muslims convicted); id. at 137 (8,000 members of Association of Mothers of Srebrenica and Zepa ask, “Five years later only Krstic is in the Hague. Would you call it justice, would you call it a success?” 4,000-5,000 survivors left Bosnia to live abroad; others still trying to leave).
See also Carlotta Gall, Bereaved Muslims Return to Bosnia Massacre Site, N.Y. TIMES, July 12, 2000, at A10 (describing “fleets of buses under heavy policy protection” sojourning to Srebrenica). Gall states that “Srebrenica is now populated only by Serbs and lies within the Serbian entity within Bosnia, where few Muslims have dared return since the war.” Id. Muslim victims’ relatives say: “We came here not to take revenge, not to forgive . . . . [W]e are here to let the world know that we will not abandon our request for justice.” Id.
See also Rory Carroll, Convoy of Mourners Return to Srebrenica, GUARDIAN (London), July 11, 2000. “Srebrenica stands today as a charred memorial to inhumanity. Two-thirds Muslim before the war, it is now populated by 18,000 Serbs, has a Serb flag over its town hall, and lies deep within Republica Srbska, a para-state within Bosnia ceded to the Serbs by the Dayton Accord. It is almost 100% Serb. Four Muslims have returned to live there.” Id. In addition, local Serbs still maintain no one was hurt or killed in Potocari: the dead Muslims were killed in combat or blown up by land mines. They mostly consider themselves refugees from ethnic cleansing in other parts of Bosnia. Id.
Janice di Giovanni, Safe Haven that the World Let Be Destroyed, THE TIMES (London), Aug. 3, 2001 (“Six years on, Srebrenica is a haunted place, one of deep-rooted hatred and suspicion. Its history will always be written in blood. A few Bosnians have tried to reclaim their houses. But they will never forgive or forget the world complacency that allowed such a catastrophe”).
11. See JUDGEMENT, supra note 4, at [para][para] 41-48.
12. See id., at [para][para] 48-52. The Trial Chamber heard extensive testimony about what happened to these deported women and children. For most of the women, life after Srebrenica meant collective refugee shelters. Accustomed to a patriarchal society where men made the decisions and were responsible for the economic support of the family, they were slow to adjust; most did not find employment; the adolescents wanted to leave Bosnia altogether; the younger children had adjustment problems, flashbacks, nightmares; many of the women still feel they are without status-neither married, widowed, nor divorced; they seek closure in knowing for sure whether their husbands, fathers, brothers, sons are dead; many cling to the hope their missing men will turn up still and cannot move onto new lives. Their plight has coined a new term in social counseling known as the “Srebrenica syndrome.” See id. at [para][para] 90-94, 720. See also Nermina Durmic-Kahrovic, Srebrenica Massacre Victims Remembered, INST. FOR WAR & PEACE REPORTING, BALKANS CRISIS RPT., July 11, 2000, available at http://www.iwpr.net/index.pl?archive/bcr/bcr_20000711_1_eng.txt (last visited Mar. 3, 2003) (stating that after the massacre, “[t]housands of refugees remained at the airport until autumn, living in tent villages with little food or water. Children suffered first and second degree burns from exposure to the sun on the airport tarmac. Some elderly people died. Then the refugees were separated again and . . . moved to refugee settlements across the region”).
13. Daniel McGrory, Britain Forgets Bosnia’s Nameless Dead, THE TIMES (London), Aug. 28, 2000, available at http://www.gendercide.org/times_08-28-2000.html (last visited Mar. 3, 2003) (discussing a new laboratory opened in Tuzla to match the DNA of 4,000 Muslim victims’ bodies stacked in a warehouse called the “House of Death, containing scraps of clothes, photographs, keys and other items found in the graves).
But see David Rohde, Five Years Later: The Battle of Srebrenica is Now Over the Truth, N.Y. TIMES, July 7, 2000, at D3. Rohde writes, “Aided by the Internet, a revisionist interpretation of the war has begun to radiate out from Belgrade; some American and European leftists, who a year ago took exception to NATO’s bombing of Kosovo, are now backing Serb nationalist claims that Western governments and journalists exaggerated Serb war crimes not only in Kosovo but in Bosnia as well.” Id. See also Joseph Lelyveld, The Defendant, NEW YORKER, May 27, 2002, at 82, 95 (citing an account of Dr. Zoran Stankovic, a leading Yugoslav forensic expert, who gave testimony for the defense at the trial to the effect that: “Srebrenica was not a genocide. It was a classic example of revenge”).
The Office of the Prosecutor (OTP) conducted twenty-one exhumations in the relevant areas involved in the Srebrenica episode-fourteen in primary gravesites, seven in secondary ones, where bodies originally buried elsewhere were dug up and reburied. The Trial Chamber heard eight expert witnesses of varying nationalities who analyzed the remains, including ballistics, soil and material witnesses, as well as medical doctors. The defense contributed two reports of its own on the exhumations. In all, so far, between 2,000 and 4,000 bodies (or parts thereof) have been exhumed; the majority were found not to have been killed in combat but shot in the head. Seven-and-a-half thousand persons are still reported as “missing,” since most of the exhumed bodies or parts were in such bad condition that they did not permit identification (although DNA testing is now being conducted on some). See JUDGEMENT, supra note 4, at [para][para] 71-84. Recent reports, however, say that 1,500 bodies have been matched to the missing persons list by DNA testing. See, e.g., Daniel Simpson, DNA Tests Help Some Families of Bosnia Victims, but Not Most, N.Y. TIMES, Dec. 23, 2002, at A14.
All of this happened in one week between July 11 and July 18, 1995. When did the world find out about it? By July 14, the worldwide media was reporting on the captures of the Muslim men by the Serb army. On July 18, the Special Representative of the Security General in Bosnia heard from the U.N. Secretariat about “‘widespread and consistent’ reports of atrocities committed by Bosnian Serbs during the recent take-over of Srebrenica.” See JUDGEMENT, supra note 4, at [para][para] 88-89. During the latter part of July, the Muslims negotiating the terms of surrender in nearby Zepa, also a U.N. “safe enclave,” captured by General Krstic, were complaining of the “missing men” from Srebrenica and striving for guarantees against a like fate. See id.
Why did the world, once alerted, do nothing? There are many reasons suggested in retrospect. It happened too fast-a vast majority of the executions occurred within a few days, although reburials went on through the fall. In the case of the United States, the Administration had been debating military intervention over the preceding ten years of the Bosnian war. See, e.g., SAMANTHA POWER, A PROBLEM FROM HELL (2002) (quoting then-Secretary of State James Baker as saying “[w]e don’t have a dog in that fight”). Supporters of intervention, however, felt they had no adequate support within or without the Administration for that kind of aggressive course. Reports of behind-the-scenes agreements among Serbian, French, and even American policymakers to let Srebrenica fall have always abounded but never been proven. Why, for example, was Nasser Oric, the famed Muslim defender of Srebrenica three years earlier sent out to Sarajevo for “training” just before the 1995 capture of Srebrenica? Why did pleas of Srebrenica Muslims to Bosnian President Alija Izethegovic for help go largely unheeded? See DAVID HALBERSTAM, WAR IN A TIME OF PEACE (2001) (detailing a fascinating account of internal and international diplomacy on the “Bosnia problem” during this period).
See also Henry Porter, Days of Shame, GUARDIAN (London), Nov. 17, 1999 (assumption that anything like Srebrenica could not happen may also account for inaction, and that during that entire week, the Secretary General’s top envoy in Bosnia, Yasushi Akashi, insisted no large-scale atrocity had taken place).
See also PATRICK MACCARTHY AFTER THE FALL (2000), at 41 (the U.N. Military Observers Commander in Tuzla issued a report at the time that it was “very unlikely” that “the Serbs intend to launch a fullscale attack” on Srebrenica because “liquidation of a registered population of this size would be impossible” as would their forcible removal without U.N. cooperation).
14. See S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 6, U.N. Doc. S/RES/827 (May 23, 1993), amended by S.C. Res. 1166, U.N. Doc. S/RES/1166 (May 13, 1998).
15. See LeLyveld, supra note 13, at 85-86:
The Hague Tribunal is the first truly international criminal court that the world has seen. Nuremberg was a military tribunal under the aegis of the occupying powers in Germany. The Israeli court that tried Eichmann was a national court claiming jurisdiction on the basis of a principle of ‘universal jurisdiction’ for crimes against humanity. The Hague Tribunal is an agency of the United Nations, with a staff of nearly twelve hundred, drawn from seventy-seven nations. In the beginning, it had scant means to compile evidence or to compel the appearance of those it charged, and so its jurisdiction seemed more symbolic than real. The early indictments were notable for their vagueness, not to mention the relative insignificance of those who were indicted. The early judgements were long and, not infrequently, loosely reasoned. More recently, the Tribunal has managed to put together a respectable record: twenty-seven people have so far been convicted and five have been found not guilty. The Tribunal now has forty-three additional accused war criminals in detention. It is running six trials at once. It has set its own judicial precedents and tightened some of its procedures, and it now functions, like an established institution, in a hermetic, security-conscious world of its own. Among staff members, human-rights advocates, and some students of international law, there is hope, approaching pious faith, that the Tribunal is doing more than righting Balkan wrongs. Its real work, in this view, is to secure the foundation of an international jurisprudence on war crimes and crimes against humanity which can be brought to bear globally.
16. ICTY Yearbook, 1998, at 29-30, 100-07.
17. Justice in the Balkans: Hague tribunal sets a valuable precedent, GUARDIAN (London), Aug. 6, 2001, at 17 (“The Tribunal has often seemed to proceed at a snail’s pace, delayed by the complexities of evidence gathering and its judges’ inexperience as much as by difficulties in apprehending suspects.”)
18. See generally International Criminal Tribunal for the Former Yugoslavia, Statute of the International Tribunal, available at http://www.un.org/icty/basic/statut/stat2000.htm#24 (last visited Mar. 3, 2003) [hereinafter ICTY Statute] and ICTY Rules of Procedure and Evidence IT/32/Rev. 21 (July 2001), available at http://www.un.org/icty/basic/rpe/ITE32-rev24.htm [hereinafter ICTY Rules]. On the workings of the ICTY, see RICHARD MAY, ET AL., ESSAYS ON ICTY PROCEDURE AND EVIDENCE (2000).
19. The detention unit for war crimes accused is run by the U.N. under the direction of a former Irish army officer, Tim McFadden. It is located inside a Dutch prison where Resistance fighters were imprisoned during World War II. The cells are twelve square yards apiece (one man to a cell) with windows, showers, toilets, and coffee machines. Satellite televisions carry Serbian and Croatian channels and BBC in the Serb/Croat dialect. There are recreational rooms, rooms for conjugal visits, an infirmary, a library of 600 Serb/Croat books, outdoor recreation, and cooking facilities, telephones, a shop, and classes. The inmates are described as “mostly middle-aged men, plucked from privileged homes and with no previous experience of incarceration. Krstic is the unit’s table tennis champion.” Martin Fletcher, Friendly Days Inside the Prison for Evil, THE TIMES (London), June 20, 2001.
20. The United States has had a checkered history in supporting international tribunals. It opposed British Prime Minister Lloyd George’s proposal to put the Kaiser on trial after World War I, on grounds that it would interfere with national sovereignty. This resistance was “softened” after World War II and the Nuremberg and Tokyo war crimes trials were conducted with the full support of the United States, although Justice Jackson insisted on inclusion of only crimes committed as part of a plan for aggressive war. The United States ratified the Genocide Convention of 1948 only in 1985 after the furor over President Reagan’s visit to a German military cemetery at Bitburg had occurred. Yet, both the outgoing Bush and the incoming Clinton administrations supported Tribunals for both the Yugoslav and later the Rwandan conflicts. Secretary of State Lawrence Eagelberger warned, “A second Nuremberg awaits the practitioners of ethnic cleansing.” Lelyveld concludes, in his New Yorker article, that the current United States position is “International justice is for broken-down states . . . not for the one superpower.” The United States is adamantly opposed to the new International Criminal Court and although President Clinton authorized signature of the Rome Treaty on the eve of leaving office, he warned it should not be submitted to the Senate for ratification; the Bush administration subsequently formally notified the U.N. that it had no obligations to the new court and is in effect boycotting it by seeking agreements from all countries where Americans may be present that they will not hand over our nationals to the ICC. This is because no one could “satisfy the Pentagon that a wayward or politically motivated international prosecutor would not be able to indict, say, an American pilot whose bombs had missed a target and killed civilians.” Meanwhile, the United States did leverage its power in the form of humanitarian aid to Serbia to facilitate the handover of Slobodan Milosevic (and several of his top lieutenants) for trial on charges of war crimes, crimes against humanity, and genocide. See Lelyveld, supra note 13, at 86-87.
At its beginning, commentators were pessimistic about the ability of the Tribunal to accomplish much. Indeed, it did not try its first suspect-a relatively low-level offender-until 1996. David Forsythe wrote in 1994: “The obstacles to the Tribunal’s successful functioning always were, and still are, profound, leading to the depressing conclusion that such endeavors cannot basically succed in contemporary international relations.” David P. Forsythe, Politics and the International Tribunal for the Former Yugoslavia, 5 CRIM. L. F. 401, 402 (1994).
Elizabeth Rehn, The Future of Peace Efforts, 25 FLETCHER F. WORLD AFF. 101 (2001), explained that the Western powers “worried” that the Tribunal would interfere with diplomatic efforts to terminate the fighting, efforts that “depended on the cooperation of suspected war criminals” and so didn’t initially support the Tribunal with money, personnel or evidence; the Security Council “tiptoed toward the Tribunal,” appointing an investigative Commission first. The Tribunal had an $ 11 million budget for 1994. Many thought an international criminal court could not function in an ongoing armed conflict without a clear loser and “some problems are simply too large for a judicial solution.”
21. Krstic’s indictment was sealed until his arrest. At that time his identity was revealed but not that of others who may have been on the same indictment. Since the Krstic trial seven other Drina Corps and Main Staff officers have been indicted for their involvement in Srebrenica (Major Obremovic, Lt. Colonel Pandurevic, Deputy Commander Borovcanin, Colonel Blagojevic, Lt. Drago Nicolic, Lt. Colonel Popovic, and Colonel Beara). Mladic and Karadzic of course were indicted for Srebrenica in November 1995 and were the subject of a Rule 61 proceeding in which the prosecutor puts before a panel of judges his evidence in order to secure an international arrest warrant. Such proceedings, no longer conducted at the Tribunal, are ex parte and treated as such in any actual criminal trial that ensues.
Judge Fouad of Egypt, who confirmed the indictment of Karadzic and Mladic in November 1995, wrote (an unusual occurrence since confirming judges rarely comment on the evidence they review other than to confirm its sufficiency to support the charges in the indictment), “The evidence tendered by the prosecutor describes scenes of unimaginable savagery: thousands of men executed and buried in mass graves, hundreds of men buried alive, men and women mutilated and slaughtered, children killed before their mothers’ eyes, a grandfather forced to eat the liver of his own grandson. These are truly scenes from hell, written on the darkest page of human history.” Prosecutor v. Karadzic and Mladic, Review of the Indictment, Case No. IT-95-18-I (16 Nov. 1995).
22. See, e.g., Richard Becson, “Genocide Hearing Turns Attention on Serb Leaders” THE TIMES (London), Mar. 14, 2000 (Karadzic and Mladic “could emerge as the real figures in the dock”).
23. Anne Swardson, Boldly Mladic Goes to Belgrade Soccer Match, WASH. POST, Apr. 1, 2000 at A14 (stating Mladic attended a soccer match with “eight burly bodyguards”). In December 1999, the International Herald Tribune reported “Western diplomats, human rights advocates and Balkans specialists say much of Bosnia has become a virtual haven for war crime suspects.” In the U.S. Zone, three suspects had been apprehended; in the French Zone, zero. The British were the most aggressive, apprehending twelve. The French were perceived to be most sympathetic to the Serbs, their soldiers seen drinking alongside suspects in the cafes. Philip Shenon, Much of Bosnia is a Haven for War Criminals, Specialists Say, INT’L H. TRIB., Dec. 14, 1999, at 6.
Rod Nordland, Crimes Against Humanity, NEWSWEEK, Aug. 13, 2001, at 8 (It is “common knowledge that Karadzic stays in a house in the mountains between Foca and the Montenegrin border – and occasionally visits his old home in Pale. . .” Mladic is believed to be in a military complex north of Sarajevo, “hunkered down in a warren of tunnels and underground bunkers designed by former Yugoslav dictator [Tito]. . . . The days when either man swaggered around his fiefdom, without fear of arrest, are long gone. The image now is of a hunted animal gone to ground.”).
According to a New Yorker article in early 2002, however, Mladic and Karadzic, who have been indicted for war crimes and genocide based in Srebrenica, have not lost standing among Serb nationalists. Mladic calendars are on sale in downtown Belgrade. The article also quotes Milosevic as telling General Wesley Clark, NATO’s Commander during the Kosovo conflict in 1998, in answer to a question, “Why did you let General Mladic do what he did at Srebrenica?” “Well, I warned him not to do this, but he wouldn’t listen to me.” Mladic came in first last year in a poll of Serbians asked to name their greatest defender, but current President Kostunica denies his federal army is protecting Mladic. Lelyveld, supra note 13, at 90-92, 94.
As of this writing in the summer of 2002, SFOR had been renewing its efforts to capture Karadzic in an intensified surveillance of the Bosnian village of Celebici and roads leading into Montenegro, but as yet to no avail. German, French, and U.S. troops are reportedly involved. RFE/RL NEWSLINE, No. 153, Part II, 15 August 2002 (“SFOR Goes After Karadzic Again”) available at http://www.rferl.org/newsline/2002/08/ 150802.asp (last visited Mar. 3, 2003); see also RFE/RL NEWSLINE, Vol. 6, No. 195, Part II, 16 Oct. 2002 (“Hague Prosecutor Says Yugoslavia is not Cooperating”) available at http://www.rferl.org/newsline/2002/10/ 161002.asp (last visited Mar. 3, 2003) (reporting ICTY Prosecutor asks ICTY President to inform U.N. Security Council that Belgrade is not “cooperating” with the Tribunal in arresting Mladic).
24. JUDGEMENT, supra note 4, at [para][para] 3, 298-99, 301, 724.
25. Ambrose Evans-Pritchard, The Mild-Mannered Monster of Srebrenica, DAILY TELEGRAPH, Aug. 3, 2001.
26. John-Thor Dahlburg, Genocide Trial of Bosnian Serb is to Start Today, L. A. times, Mar. 13, 2000, at A4 (“The butchery in Srebrenica . . . marked a turning point in the war. Four months later, U.S. pressure produced the Dayton, Ohio, Peace Accords and a heavily armed peace force for Bosnia led by [NATO].”). For the first few years of its existence, the Tribunal was not able to secure the capture of senior military or civic leaders accused of war crimes violations. But by 2000 it had either completed or was in the process of trying a half dozen or more such “big fish,” thus disarming at least in part earlier criticisms such as: “[T]rials of small fish from the Balkans, while arguably better than no trials at all, leave a … distaste for this type of criminal justice. It is profoundly unjust.” Forsythe, supra note 20, at 417.
27. Peter Ford, How to Prosecute a War Crime, CHRISTIAN SCI. MON., Mar. 13, 2000, at 6.
28. JUDGEMENT, supra note 4, Annex I-Procedural History, at [para][para] 29-30, 59. A lengthy recess of several months occurred in January 2001 when General Krstic had to have restorative surgery on his amputated leg. His discomfort at trial had become increasingly apparent over the prior year. He wanted to go back to Republica Srpska or the Federal Republic of Yugoslavia for the surgery so that his communications with the doctors could be facilitated. The compromise eventually worked out was that he would have the surgery in the Hague but that a team of Yugoslav doctors could observe it and stay on for the immediate post-operative period to insure his recovery. Trial resumed on March 19, 2001 (the Trial Chamber heard parts of a second ongoing trial during the interval).
29. Ian Black, Serb Genocide Trial Starts in Hague, GUARDIAN (London), Mar. 14, 2000, at 14.
30. See judgement, supra note 4, at [para][para] 301-10. Before the trial began, Krstic had in fact surprisingly provided this same basic scenario of the facts to the prosecutor in a filmed interview, which the prosecution was able to use to its advantage when Krstic took the stand at the trial. Judgement, supra note 4, at [para] 20. Although Tribunal Rules provide for such a voluntary interview at which the accused can have his counsel present, it is difficult to see why an accused who is not pleading guilty and who plans to testify at trial would wish to present the prosecution with such a valuable preview before trial.
31. Anthony Deutsch, Serb Goes on Trial for Genocide, ASSOCIATED PRESSassociated press, Mar. 13, 2000.
32. Judgement, supra note 4, at Annex I-Procedural History, [para] 59.
33. See Jerome Socolovsky, U.S. intelligence photos used to prove killing field, associated press, June 2, 2000 (U.S. military satellite photos used for first time in an international tribunal. The Pentagon was originally reluctant to hand them over, but without their use, secondary mass grave sites could not have been found.). “Using an aerial photograph of the farm taken on July 17, 1995, Erdomevic pointed out where the buses were parked, where the detainees were taken and where they were shot. A pile of bodies could be seen in the photo as well as a freshly dug mass grave.” Institute for War & Peace Reporting, General Krstic Trial, available at http://www.iwpr.net/index.pl?archive/tri/tri 177_1_eng.txt (last visited Feb. 28, 2003). There was further evidence of blood, hair and skin on the walls of warehouses and sports centers where the prisoners inside had been massively shot at from the exterior.
34. Fletcher, General Goes on Trial for Massacre, supra note 19.
35. David Rolide, Trial Opens on Serb General Accused in Srebrenica Massacre, N. Y. times, Mar. 13, 2000, at A09.
36. Judgement, supra note 4, at && 171, 268, 290 (Mlaclic sighted on Sandovic Meadows and at Nova Kasaba talking to prisoners and observing the executions at Orahovic). The last sighting of Krstic in the area was in Potocari on July 12 where he gave a short interview to Serb television, boasting of the Srebrenica victory as the busing of the women and children began. Id. at && 348-57. One witness saw him the same afternoon near the infamous White House where the men were being kept. Id. at && 363-67.
37. A second part of the prosecution’s case was based on Krstic’s participation in the forced evacuation of the women and children from Potocari to Tuzla. Here the proof was more direct that he had played a substantial role in assembling the buses for the evacuation and it was he who had ordered the road cleared for their passage. Although he originally denied that he had anything to do with the evacuation, a Serb video interview of July 12 was produced in which he was shown in Potocari boasting of Srebrenica’s fall (“Finally the time has come to take revenge on the Turks”) against a backdrop of the evacuation buses used for transporting the women and children out of Potocari. See JUDGEMENT, supra note 4, at && 305, 338-43, 344-47. As a result of this video, his credibility was damaged. Further, telephone intercepts in which Krstic organized the buses and issued orders on the patrolling of the road over which they would travel were admitted along with live witness testimony to the same effect. Eventually, on this part of the indictment he was found guilty of a crime against humanity for knowingly participating in the forcible transfer of the Srebrenica refugees and of creating the humanitarian crisis in Potocari which caused the 25,000 refugees to consent to evacuation because of the chaos, rampant rapes and killings, and lack of food, medicine, water, or shelter in the U.N. compound there. Id. at && 335, 337.
The defense claimed that the evacuation of the women and children from Potocari was voluntary-the mass movement of civilian refugees when an area is captured by the enemy is a regular occurrence in wartime. Id. at & 145. Indeed, the beleaguered Srebrenica refugees were desperate to leave the area after the shelling and burning of nearby houses and the random rapes and killings the previous night. The prosecution relied on witness testimony to demonstrate that they had no choice; they were herded onto the buses and taken to a
39. See id. at [para][para] 263-76, 291-96.
40. See id. at [para][para] 311-31. The time of Krstic’s appointment might not necessarily have been controlling as to his liability even if he had not been Commander, since even as a Chief of Staff and Deputy Commander he might still have been found criminally responsible if he had knowledge of what was going on and took no action to stop it, even by protesting to his superior. But there is no question that if the proof showed he became Commander while the executions were still going on, he had both a greater responsibility for and a greater likelihood of knowing what was going on in his own command. There was evidence on both sides: VRS regulations provided for a formal handover ceremony in which the outgoing and incoming Commanders sign a document before the Command formally changes hands; no such document could be produced here. The decree signed by President Karadzic appointing Krstic Commander stated it would take effect on July 15. Witness II (a pseudonym), who was a Drina Corps member, testified that he traveled with General Krstic to the Main Headquarters at Vlasenika on July 13 where Mladic appointed Krstic Commander. Witness II’s account was corroborated by a transcript of an out-of-court interview by an OTP investigator with “OA” (another Drina Corps pseudonym) who told the OTP investigator that such an event did take place on July 13 or 14. Late in the case, after the defense surrebuttal had been completed, General Zivonovic, whom Krstic replaced as Commander, gave an OTP investigator on another investigative team a document dated July 13, in which an announcement went out to Corps personnel that Krstic had been made the new Commander.
An interesting procedural question arose as to the admissibility of OA’s statement. He was scheduled to testify personally but claimed at the last minute, for medical reasons, he could not come to the Hague. The prosecutor proffered the testimony of the OTP investigator who had been present at the questioning of OA as well as the transcript of that interview. The defense objected. But under the more lenient evidentiary rules that govern Tribunal proceedings, the court allowed the testimony, noting that the witness had counsel present at the interview, and the OTP witness to the interview could answer questions as to the accuracy of the transcript. The court did not, however, allow that portion of the transcripted interview at which the OTP investigator was not present. The transcript was admitted under a Rule that allowed corroboration of live testimony on a disputed fact by affidavit with the court’s consent. See JUDGEMENT, supra note 4, at Annex I-Procedural History, [para][para] 19, 50.
Another key witness on the handover question testified by videolink from another country where he currently resided. See ICTY Rules, supra note 18, at Rule 71b.
There were also a series of orders and intercepts produced by the prosecution showing that the last order ever issued by Zivonovic as Commander came late on July 13 and only three hours later Krstic signed an order as Commander. But the next day, on July 14, Zivonovic told Drina Corps subordinates, “Take this as an order”; but also on the same day said, “I’m slowly packing my knapsack; they’ve already asked me to go somewhere else.” Other intercepts on the 14th from subordinates speak of “Krstic com[ing] up here. . .I suggested what he should do, so he’ll do something.” On July 15, Zivonovic replied to a request for troops that he could not arrange for men anymore, “to call Zlota” (a code name for the command headquarters where Krstic was) after which Krstic and the caller had a conversation about Krstic getting help to the caller.
41. See JUDGEMENT, supra note 4, at [para][para] 105-17.
42. Id. at [para][para] 370-77, 379.
43. Another intercept revealed that on July 15, Krstic’s predecessor, General Zivanovic, called Krstic to ask that Lt. Colonel Pandurevic, the head of the Zvornik Brigade, then at Zepa, return to Zvornik because of the “situation there.” At trial Krstic said he did not inquire why Pandurevic and his brigade were being called back. The next day Pandurevic sent an Interim Combat Report to the Drina Corps Command to personally complain about the “large number of prisoners distributed throughout schools in the brigade area as well as obligations of security and restoration of the terrain. . . .[ ]This command cannot take care of these problems any longer. . . . If no one takes on this responsibility, I will be forced to let them go.”
As the defense pointed out, Pandurevic’s words raised a legitimate question as to whether he knew of the executions at the time he complained of the burden of holding the Muslim prisoners in his brigade territory. The defense military expert argued, not implausibly, that if Pandurevic had known of the executions, he would not have referred so openly to the prisoners in a bold communique to avoid implicating himself. He was, according to Radinovic, only referring to the burden of caring for the prisoners. On the other hand, as the prosecution countered, there was a complete absence of any evidence that anyone in Zvornik at the time was doing anything to coordinate supplies of food, water or shelter needed for the short- or long-term care of thousands of prisoners. The Trial Chamber ultimately concluded Pandurevic, as Commander of the Zvornik brigade, had to know about the executions-it was, after all, his men and equipment that had been out scouting detention and execution sites for the past two days. On July 18, Pandurevic sent a second report wondering who was responsible for placing “3,000 Turks of military age . . . in schools . . . in addition to the 7,000 or so who have fled into the forest” and noting the “great discontent among the people and the general opinion is that Zvornik is to pay the price for the taking of Srebrenica.” Again, Krstic claimed he never received these reports. On July 16, Colonel Popovic, Assistant Commander of the Drina Corps for Security, called the Command to “tell the General . . . I’ve finished the job. . . . [U]p there, there were horrible problems and that thing the Commander sent [the reinforcements to Branjevo for execution squads] it was just the right thing.” Witness “OH” (a VRS soldier) also said in his transcript interview he had personally told Krstic before July 20 of the executions. During this period Krstic also saw Mladic personally several times at the Command Headquarters but denied they ever discussed the fate of the captured Muslims. JUDGEMENT, supra note 4, at [para][para] 380, 385, 388-99, 400-04, 405, 407.
44. JUDGEMENT, supra note 4, at [para] 416.
45. Maggie O’Kane, “Revenge on Turks” put general in the dock, GUARDIAN (London), Oct. 26, 2000.
General Krstic was still sticking to his story that he heard about the executions only at the end of August when one of his Drina Corps officer subordinates told him that VRS Main staff officers and one Drina Corps officer were involved. Krstic said he later tried, unsuccessfully, to have the participating Drina Corps officer removed from his post, and there was “nothing else he could do given that a superior officer from the Main staff had instigated the crimes,” fearing for his own safety and that of his family if he persisted. He said he never contemplated resignation because he had done nothing wrong. After Srebrenica, he stayed in Srbska Republica, became Commander of the 5th Sarajevo Corps, and was personally applauded by President Karadzic for his brilliant strategizing in Sreberenica. He also signed a petition, along with other military leaders, objecting to Karadzic’s proposed removal of Mladic, and he contributed, constructively by all accounts, to the implementation of the Dayton Accords before he was arrested in December 1998. JUDGEMENT, supra note 4, at [para][para] 309, 334.
46. JUDGEMENT, supra note 4, at [para][para] 421-23. Two other trial-related incidents deserve mention: First, the prosecution in its rebuttal tried to introduce an intercept in which Krstic’s voice is heard telling another officer, “Kill them all,” referring to the Muslims in the territory still uncaptured. The defense objected that this intercept took place weeks after the mass Srebrenica executions had been completed and that the prosecution already had the intercept in its possession at the time of its case -in-chief and reserved it until late in the trial for its shock value. The court ruled the intercept inadmissible for the latter reason. Second, the court, pursuant to ICTY Rule 98, called two Muslim generals as its own witnesses. (Both were later indicted for war crimes involving different episodes in the war, a fact unknown to the court at the time although significantly the OTP asked them no questions at the Krstic trial.) The defense asked for copies of all prior statements of the witnesses in the hands of the prosecution-something allowed under Rule 66 for prosecution witnesses. ICTY Rules, supra note 18, at Rule 66. The prosecutor, for reasons now more obvious, refused. The defense’s right to such statements under the Rule was never settled legally because an access agreement was worked out between the prosecutor and defense. JUDGEMENT, supra note 4, at Annex I-Procedural History, [para][para] 39-41.
47. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegonia v. Yugoslavia (Serbia and Montenegro), Separate Reasons of Judge ad hoc Lauterpacht, [para][para] 68-70 (April 8, 1993).
48. “The Situation in Bosnia and Herzegonia,” U.N. GAOR, 47th Sess., 44 U.N. Doc. A/RES/47/121 (1993). See also U.N. Doc. A/47/PV 91 (1993). For citation to other U.N. Resolutions to the same effect, see WILLIAM A. SCHABAS, GENOCIDE IN INTERNATIONAL LAW, (2000), at 189-201.
49. The Commentary on the Secretariat Draft of the 1948 Convention explicitly said: “Mass displacement of population from one region to another does not constitute genocide. It would, however, become genocide if the occupation were attended by such circumstances as to lead to the death of the whole or part of the displaced population.” U.N. Doc. E/447, p. 24. Everyone admitted, however, there was a logical progression from one to the other. See also SCHABAS, supra note 48, at 9. In Professor William Schabas’ words, “Ethnic cleansing is . . . a warning sign of genocide to come. Genocide is the last resort of the frustrated ethnic cleanser.” SCHABAS, supra note 47, at 201. As the Bosnian war dragged on from 1992-95, it was a common practice for Serbs who took over a Muslim-dominated town (and vice versa) to arrange for the evacuation of the Muslims-sometimes both sexes, but other times mostly women and children, while the young men were held under hellish conditions in camps for interrogation. Although many inmates were shot or died of deprivations at the hands of their captors or vengeful outsiders who moved into the camp, there was no consensus among judges or scholars that this pattern of incarceration and violence amounted to genocide.
50. ICTY Statute, supra note 18, at art. 4.
51. JUDGEMENT, supra note 4, at [para][para] 504. Serious mental harm has been defined by the Tribunal as not necessarily permanent or irremediable but harm that goes beyond “temporary unhappiness, embarrassment and humiliation and constitutes harm that results in a grave and long-term disadvantage to the person’s ability to lead a normal and constructive life.” Prior Tribunal cases had held that cruel treatment, torture, rape, sex abuse and deportation could constitute such harm (the U.S. reservation to the Convention, on the other hand, limited this phase to permanent impairment of mental facilities). JUDGEMENT, supra note 4, at [para][para] 507-14.
52. The prosecution’s military expert had called the executions “unfathomable in military terms” since such a huge number of prisoners of war would have provided a healthy currency for ongoing prisoner-of-war exchanges with the Muslim authorities. JUDGEMENT, supra note 4, at [para] 70.
53. There were a few exceptions-some wounded men were allowed to leave Srebrenica-area hospitals under UNPROFOR protection. judgement, supra note 4, at [para][para] 85-86, 347. Also, at the end of the week, several thousand men in the column were given free passage to Bosnian territory. The court held that this latter-day exception was mandated by military necessity because the weakened Zvornik brigade simply couldn’t fight off the remainder of the column, by then fortified by Muslim forces attacking from their home base across the wartime border. JUDGEMENT, supra note 4, [para] 547.
54. JUDGEMENT, supra note 4, at [para][para] 551-55 (emphasis added). See generally SCHABAS, supra note 48, at ch. 3, 102-51, 230-40. To begin with, there is a question as to what kinds of groups qualify as ethnical or national. The consensus is that the definition clearly excludes political, linguistic, economic or ideological groups or gender; the drafters’ focus was on national minorities who had been the traditional victims of genocide. The Rwanda Tribunal had interpreted the virtually identical genocidal provision in its statute subjectively to apply to any “group identified as such by others,” including the perpetrators of the crimes. The perceived basis for the group’s targeting, they said, is the important thing, not the objective reality of the group’s commonality. International experts generally are less liberal in their definition of a “group”; they agree the adjectives-national, ethnical, racial or religious-are “social constructs, not scientific expressions” and shouldn’t be examined for autonomous and independent meanings but read together for an overarching sense of their meaning as a whole, but they stop at the point of including political, economic, social or gender groups.
For a comprehensive discussion of the “group” definition in genocide, see Diane Marie Amann, Group Mentality, Expressivism and Genocide, 2 INT’L CRIM. L. REV. 93 (2002).
55. JUDGEMENT, supra note 4, at [para] 558.
56. Id. at [para][para] 559-60.
57. SCHABAS, supra note 48, at 179-89, 223, 228-30; JUDGEMENT, supra note 4, at [para][para] 575-80, 581-95.
58. JUDGEMENT, supra note 4, at [para][para] 591-99. See Daniel Simpson, Bosnia Tries to Stitch its Unwieldy Fabric Back Together, N.Y. TIMES, Mar. 30, 2002, at A3 (“failed state sustained since 1995 by a drip feed of $5 billion in foreign aid and tens of thousands of NATO-led peacekeepers”; unemployment rate in Federation is 40%; S.D.S. party of Karadzic is popular among “disillusioned Serbs”; some 200,000 have returned to areas where they are minorities, “although few Muslims have settled in the hostile mountains of eastern Bosnian Serb Republic, whose lush slopes are littered with abandoned fire-bombed houses. . . . Years after bullets and shrapnel tore holes in many of Srebrenica buildings, repair work has barely begun; in part because international officials withheld reconstruction aid until the municipality did more to encourage Muslims to return. Resentment runs deep among many of its Serbia inhabitants. . .”).
59. JUDGEMENT, supra note 4, at [para][para] 575-80, 595.
60. Id. at [para] 601. However, caution is required in applying this concept to genocide. SCHABAS, supra note 48, at 303.
61. JUDGEMENT, supra note 4, at [para][para] 606-33. Krstic had been charged alternatively with complicity in genocide-a rough equivalent to aiding and abetting. The Rwandan Tribunal had ruled in one case that knowledge of the principal’s genocidal intent would be enough for complicity without the accomplice having to share that intent, though that view is controversial. SCHABAS, supra note 48, at 285-87, 294-303. The court considered whether participation in a criminal enterprise with genocide as its goal amounted to genocide or only complicity in genocide. The Tadic case had referred to “common design” as a form of accomplice liability, but this court accorded the status of a co-perpetrator to a member of a joint genocidal enterprise where the member’s participation is of an extremely significant nature and at the leadership level. Krstic’s role of coordination was deemed such a key one. JUDGEMENT, supra note 4, at [para][para] 636-44.
The court also found Krstic met the criteria for the crimes in the indictment under Article 7(3) (command responsibility), but did not enter a conviction on that count. JUDGEMENT, supra note 4, at [para][para] 603-04. Schabas has opined that an act of omission, as well as commission, can constitute genocide. Thus, failing to intervene when subordinates are actually carrying out acts of genocide would support a conviction so long as the genocidal plan or objective of their actions is known to the superior (objectives not details). The superior in such a case must know that the subordinate’s conduct could destroy the group; a “should have known” standard is inappropriate in genocide, although willful blindness-an individual who deliberately fails to inquire as to consequences of an action and knows such inquiry should be undertaken-will suffice. In short, according to Schabas, not only must the offender have the specific genocidal intent, but his accomplices must also have that intent to be found guilty of genocide. SCHABAS, supra note 48, at 217-25, 226-28, 303-13. He notes, “Extending command responsibility from war crimes to genocide raises particular problems with respect to the intent element.” Id. at 304. ICTR has rendered three genocide convictions based on command responsibility. See, e.g., Prosecution v. Kambanda, Case No. ICTR 97-23-S, Judgement and Sentence (Sept. 4, 1998), available at http://www.ictr.org/wwwroot/ENGLISH/cases/Kambanda/judgment/kambanda.html (last visited Mar. 3, 2003); Prosecution v. Seruchago, Case No. ICTR 98-39-S, Sentence (Feb. 5, 1999), http://www.ictr.org/wwwroot/ENGLISH/cases/Serushago/judgmement/os1.htm (last visited Mar. 3, 2003); Prosecution v. Kayshema, case No. ICTR 95-1-T, Judgement (May 21, 1999), http://www.ictr.org/wwwroot/ENGLISH/cases/KayRuz/judgement/index.htm (last visited Mar. 3, 2003).
62. The prosecutor has appealed the sentence. JUDGEMENT, supra note 4, at [para] 690.
63. Id. Probably in part because the Tribunal Rules call for the verdict and sentence to be issued simultaneously, thus putting the defense counsel in the unenviable position of having to make any pleas for leniency at the same time he is stoutly maintaining that his client should be acquitted. ICTY Rules, supra note 18, at Rule 98.
64. ICTY Statute, supra note 18, at art. 24, Rule 101 (May 25, 1993).
65. Judgement, supra note 4, at [para] 697.
66. Id. at [para] 724. Although the Statute and Rules tell the court to take into account mitigating and aggravating circumstances, they do not list any. The level of the offender’s participation (commander v. subordinate), premeditation and motive were cited by the court as legitimate aggravating circumstances, but only the first was applicable here (“The consequences of a person’s acts are necessarily more serious if he is at the apex of a military or political hierarchy and uses his position to commit crimes.”). Cooperation with the prosecutor is a mitigating circumstance set out in the Rules, but the court said that although Krstic gave a voluntary statement here, it was neither complete nor wholly true.
Judgement, supra note 4, at [para] 722 (“He put up a false defense on several critical issues. . . . General Krstic’s manner was one of obstinacy under cross-examination. He continually refused to answer directly or forthrightly legitimate questions put to him by the Prosecution or even Judges. Overall, his conduct during the proceedings evidences a lack of remorse for the role he played in the Srebrenica area in July 1995.”).
There were issues of “cumulative convictions” which affected Krstic’s sentencing in which peculiarities of Tribunal law figured prominently and which I will not treat here. Basically, he was given one total sentence for convictions of genocide and crimes against humanity (persecutions) and crimes against the laws of war (murder), all based on the same fact pattern. See Judgement, supra note 4, at [para][para] 655-89.
There had been an ongoing issue in Tribunal jurisprudence as to whether crimes against humanity outranked crimes against war in a gravity hierarchy. The Appeals Chamber eventually decided that no such hierarchy was contemplated by the Statute or international law. But see Allison Dunner, Constructing a Hierarchy of Crimes in International Criminal Law Sentencing, 87 VA. L. REV. 415 (2001) for a contrary view. There is, however, widespread consensus, though no specific Appeals Chamber ruling, that if a sentencing hierarchy existed, genocide would be at its apex. The Trial Chamber here, however, recognized that even within the contours of genocide, there are different degrees of culpability that may justify different penalties. JUDGEMENT, supra note 4, at [para][para] 698-700, 720-21.
Under Tribunal law, sentences are served in the prison systems of cooperating states (e.g., Denmark, Finland, Norway, Spain), with whom the Tribunal has negotiated agreements, but any pardons or commutation of sentence must be approved by the President or ICTY Rules 103, 104, 123-25. David Tolbert & Asa Rydberg, Enforcement of Sentences, in MAY, supra note 18, at 533.
67. Rod Norland, Crimes Against Humanity, NEWSWEEK, Aug. 13, 2001, at 8.
68. Id. See also Ian Black, General Gets 46 Years for Srebrenica Genocide, GUARDIAN (London), Aug. 3, 2001, at 2.
69. David Lister, Serb is jailed for genocide in “safe haven,” THE TIMES (London), Aug. 3, 2001.
70. Black, supra note 68, at 2.
71. Lawrence Comiteau, Balkan War Crimes: Serving Justice, TIME MAGAZINE, Aug. 8, 2001.
72. Stephen Castle, Bullet marks and blood stains told tale of Srebrenica horror, THE INDEPENDENT (London), Aug. 3, 2001, at 12.
73. Among the sixty-one charges against Milosevic in the “Bosnian-Croatian indictment is the Srebrenica genocide which he adamantly maintains was a “plot hatched to make the world hate Serbs,” masterminded by French spies and the Bosnian Muslim government. “President Karadzic swore to me he didn’t know a thing about this,” Milosevic said in his opening statement and “I am convinced the military honour of Mladic and Krstic would not allow them to execute civilians.” BBC World/Europe Broadcast (BBC radio broadcast, Sept. 27, 2002, 11:04 GMT 12:04 U.K.) See also Marlise Simons, Milosevic Now Faces Genocide Charges, N.Y. TIMES, Sept. 27, 2002, at A8. There was no mention of Milosevic’s involvement in the record of the Krstic trial.
74. Scholars and historians continue to debate the nature of evil in reference to the perpetration of mass crimes. Recent discussions have focused on Joachim Fest’s biography of Albeit Speer (Max Frankel, Hitler’s Architect, N.Y. TIMES BOOK REVIEW, Oct. 6, 2002, at 14), referring to “the lingering question of when, in any polity, compliance with injustice turns into complicity” and “how easily, given appropriate conditions, people will allow themselves to be mobilized into violence, abandoning the humanitarian traditions they have built up over centuries to protect themselves from each other.” See also Judith Shulevitz, There ‘s Something Wrong with Evil, N.Y. TIMES BOOK REVIEW, Oct. 6, 2002, at 39 (expressing the post-modern view that an individual can be “evil” even if he believes what he is doing is morally right if objectively it is not):
What if we took at face value Eichmann’s claim that he didn’t hate or want to kill Jews, he just wanted to advance in the ranks of the Nazi party? Would he be any less responsible for evil?. . . It’s easy to see how, in an age of instant mass destruction, a gap could arise between what people see themselves as doing and the harm they are able to do. . . . How strongly you believe in something is irrelevant; what matters is whether your beliefs are the correct ones, and we figure that out by examining what your beliefs lead you to do.
75. There are, however, others who believe that replaying the horrendous events of 1992-95 and assessing blame on particular individuals does nothing to bring about reconciliation between the ethnic or national groups so recently involved in the prolonged armed conflict. In the words of one such critic, “[g]iven the adversarial nature of proceedings in a Western-style criminal court-a system designed to produce clear ‘winners’ and ‘losers’-it is hard to see how the courts could achieve [reconciliation], absent any broader political strategy for fostering peace. . . .” Helena Cobban, The Legacies of Collective Violence, BOSTON REV., April/May 2002, at http://bostonreview.mit.edu/BR27.2/cobban.html (last visited Feb. 1, 2003).
Crimes of war, the critics argue, are somehow different from ordinary crimes and defy ordinary ethical and legal assumptions about the nature of individual responsibility, the purposes of punishment, and the normal conditions of human life upon which a criminal court system is built.
In civil wars, especially, the entire nation may turn into criminals:
Millions of men and women [lose], for some period of time, all recognition of the humanity of their victims, and even of their own self-respect and humanity. . . . How can anyone start to assign a specific amount of responsibility to each one of the hundreds of thousands-probably millions-of people who took part in [the Rwandan massacres]. . . . How, in short, can one apply conventional methods of legal judgment to the giant mass of the Hutu people who were caught up in a profoundly abnormal reality?
Hannah Arendt engaged in this same debate about the Holocaust, which she called “an organized attempt. . . to eradicate the concept of the human being,” but in the end concluded:
It seems to me. . . we have no tools in hand except legal ones with which we have to judge and pass sentence on something that cannot even be adequately represented either in legal terms or in political terms.
Arendt’s concern was that to escalate these terrible crimes to some level that transcended our social and legal means to cope with them would give to them a cosmic quality that contradicted their frequent banality and justified or at least made historic celebrities of the perpetrators. War crimes commentator Gary Bass agrees:
“Ultimately war crimes trials are the right choice, not because they are too morally pure to be questioned, but because they are the least bad of a number of bad choices before us. We should reject the only alternatives-summary executions or ignoring the atrocities. . . . There is no such thing as truly appropriate punishment for something as hideous as the Srebrenica massacre, in which Serbian forces killed some 7,000 Bosnian Muslim men. . . . Any situation in which there is a need for a war crimes tribunal is a situation that has gone horribly wrong . . . After atrocity all options are awful. War crimes tribunals are simply-in both moral and political terms-the least awful option we have.”
Gary Bass, War Crimes and Punishment: It’s a Risky Business. What can we gain by prosecuting Serbia’s Milosevic and other wartime killers? Tribunals Are Flawed, but not Futile, WASH. POST, Nov. 26, 2000, at B03.
But some countries have gone a different route; they have substituted (or complemented) war crimes tribunals with Truth and Reconciliation Commissions which provide amnesty to war criminals who confess completely their misdeeds and accept communal penance in the form of restoration to victims or community service levied by lay judges. South Africa’s is the best known Commission; Bishop Desmond Tutu has publicly commented that the apartheid leaders would not have agreed to a peaceful transition to democratic rule if Nuremberg-type trials had been in the offing. Yet, parenthetically, part of the South African Truth and Reconciliation regime involved intensive investigations into suspected perpetrators to insure they did tell all, and if they did not, they were relegated to ordinary criminal prosecutions. Cobban, supra. Other countries-Chile, Argentina, El Salvador-have also used commission-style justice; even Bosnia and Serbia now have fledgling (and somewhat controversial) truth commissions. So far as I can tell, however, the jury is still out as to whether truth commissions and community penance can pacify the deep-seated feelings of victims and families where the killings and atrocities have been particularly brutal and extensive as they were in the Bosnian war in general and Srebrenica in particular.
See, e.g., Daniel Williams, A Faint Path to Truth in Serbia, WASH. POST, July 5, 2002, at A12 (resources available to Serbian Truth and Reconciliation Commission are scant, no power to subpoena witnesses or grant them immunity. “It is hard to find people in Belgrade who view the Commission as a vehicle for coming to terms with the wars and Serbia’s role in them”); see also Council in Pakistan Orders Gang Rape, N.Y. TIMES, July 2, 2002, at A9 (Tribal jury ordered the gang rape of eighteen-year-old girl as “punishment” for her brother’s illicit affair. She was then ordered to return home naked before 1,000 onlookers.).
More pragmatic philosophical criticisms of war crimes tribunals, such as the Yugoslav Tribunal, are that they are located too far away from the scenes of the crimes-Bosnia in this case-where the involved people lived. As a result, the audience to whom the revelations at the trials are most important feel “disconnected and powerless.” Louise Branson, With Milosevic on Trial, Reconciliation of Bosnia Another Casualty in the Balkans, WASH. POST, Outlook, Feb. 24, 2002, at B1, B5; cf. David Tolbert, The Evolving Architecture of International Law: The International Criminal Court for the Former Yugoslavia: Unforeseen Successes and Foreseeable Shortcomings, 26 FLETCHER F. WORLD AFF. 7 (2002) (Tribunal has made “scant contribution to the prosecution of war crimes and crimes against humanity . . . the courts or the states of the former Yugoslavia”).
More recently-established tribunals, like Sierra Leone and East Timor, are constructed along hybrid national/international lines with judges selected from both national and international sources and the court located in the country where the conflicts took place, although applying international law norms and procedures. It is hoped that the people in the country will learn firsthand what their former leaders did and avoid such a course in the future.
But see Lelyveld, supra note 13, at 95 (“[I]t’s useful to remember that the Nuremberg trials failed totally in post-war Germany to kindle an interest in the subject of war crimes and crimes against humanity. The German encounter with that past started in earnest only in the sixties, a full generation later. The participants in the Balkan wars may need as much time.”).
76. See Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9 (1998), July 17, 1998, arts. 18, 19, 37 I.L.M. 999 (1998) [hereinafter Rome Statute].
77. See, e.g., Pamela Constable, Report of Mass Afghan Graves Won’t Be Probed, Envoy Says, WASH. POST, Aug. 28, 2002, at A20 (weakness of Afghan government and risk to investigators make it “almost impossible” to investigate reports of mass graves of 1,000 Taliban prisoners reportedly suffocated during transport by Afghan militiamen to military prison); No Remedy for Atrocities, WASH. POST, Aug. 30, 2002, at A22 (“failure by the international community to respond to such acts or to provide the Afghan government with the means to do so only encourages a renewal of the spiral of factional violence that dragged Afghanistan into civil war over a decade ago.”); Doug Struck, Tokyo Court Confirms Japan Used Germ Warfare in China, WASH. POST, Aug. 28, 2002, at A15 (Japanese court confirms use of germ warfare in China in 1941 and 1942 but denies compensation; United States allegedly made secret deal to exempt biological war crimes from the post-World War II Tokyo trials).
78. See Rome Statute, supra note 76, which in Article 28 holds military leaders responsible for subordinates’ war crimes if they know or should have known about them but civilian leaders responsible only if they knew or consciously disregarded information which clearly indicated the crimes were imminent or had occurred. For a criticism of ICTY “command responsibility” doctrine, see Jeffrey T. Kuhner, Hold the Hague Accountable, WASH. TIMES, Sept. 9, 2002, at A19.