AUTOPSY OF A WAR CRIME: BRINGING CHARGES
Chicago Tribune - September 7, 1999

By Charles M. Madigan and Colin McMahon

THE HAGUE – The families and loved ones of the victims of the massacre at Bela Crkva will come here for justice, to a bullet-proof, glass-enclosed courtroom where three internationaljudges dressed in black-and-red robes wade through the abysmal details of assaults against humanity and war crimes. There is no swift justice at the International Criminal Tribunal for the Former Yugoslavia. Cases can take years to play out. Defense attorneys and prosecutors spar over obscure but crucial points of law. The prosecutions are vastly complicated, mixing in the criminal behavior of the defendants with evidence of military strategy and debates about whether a victim was slain during an international conflict or a local squabble. The 64 people who were slain on March 25 in the small town in west Kosovo by Serbian police in a classic "ethnic cleansing" maneuver will most likely never find the kind of individual justice much of the world expects when known killers are apprehended and put on trial. Instead, they will become an important footnote in the Kosovo case against Yugoslav President Slobodan Milosevic, accused along with four key aides of crimes against humanity that could put them all in prison for life, assuming they ever face trial. The tribunal was set up by the United Nations Security Council in 1993 as a response to the atrocities that followed Yugoslavia's collapse into brutal ethnic and political warfare beginning in 1991. The UN set up a similar tribunal -- the only other international war crimes tribunal -- to address atrocities in Rwanda. But the Yugoslavia tribunal has never been well-funded enough to investigate every crime against humanity. The death toll in Yugoslavia since 1991 has climbed into the tens of thousands. In Kosovo alone, the tribunal estimates, the violence claimed at least 11,000 lives. Instead, the tribunal is limiting its prosecutions to the suspects it already has indicted or is holding in prison and to the leaders and commanders in Belgrade believed responsible for an ethnic cleansing campaign that has swept across the former Yugoslavia since 1991. "What we do is very modest in comparison to the magnitude of the crime," said Louise Arbour, chief prosecutor for the past three years who is leaving the tribunal to take a seat on the Canadian Supreme Court. Arbour's term signaled a significant change in the direction of the prosecution arm of the tribunal. Aggressive, bold and unresponsive to political criticism, she shifted the tone of the tribunal from genteel cooperation and persuasion, long the velvet gloves of international law, to thorny, in-your-face, criminal-law aggression, punctuated by high-level indictments and tough public statements. "In three years (the tribunal budget has) grown at the rate of about 40 percent a year, and this in a United Nations which is in a zero-growth position, where its major shareholder, the United States, is not paying for the ride," she said. The U.S. owes hundreds of millions of dollars in dues to the UN. "In that kind of environment, we have got to face the reality that (our job) has more or less got to be done on this scale." Why the tribunal was created >From its inception, the tribunal has been viewed as an imperfect creation of a confused world community working under substantial pressure as the push for human-rights prosecutions became more intensive in the wake of atrocities in the former Yugoslavia and Africa. Funding was inadequate from the start, as was cooperation from the world community. The new court and its prosecutors were challenged from every direction by nations that demanded action in the former Yugoslavia but displayed reluctance, or indifference, to the call for arrests of war crimes suspects and the need for larger budgets. At one point, its investigators were grounded by a blanket freeze on travel budgets at the financially troubled UN. The tribunal also found itself up against a wall in the republics of the former Yugoslavia, where its arrest warrants were generally ignored and its demands for evidence and records went unheeded. Human Rights Watch founder Aryeh Neier says the Security Council performed "the right deed for the wrong reason" -- setting up a court to avoid taking more determined action to stop atrocities in the former Yugoslavia. This court exists, in large part, because the UN Security Council was shy about using military force to end the conflict in Yugoslavia in the early 1990s. Still, it felt morally obliged to do something because of the daily reports of Serbian atrocities in Bosnia-Herzegovina, where Serb forces were slaughtering Muslims by the thousands. That UN reluctance was mixed with a growing demand from human-rights activists for an international criminal court to address the crimes so common in the last half of the 20th Century, an idea that sends shudders through much of the world's diplomatic and foreign policy community, which opposes yielding that kind of power. The U.S. resists the idea of an international criminal court because it can imagine situations in which American soldiers might be arrested and carted off to The Hague. But the State Department not only backed the tribunal effort, it worked behind the scenes to get Chinese and Russian votes in the Security Council. The tribunal has a limited mission that allows it to prosecute only four types of offenses in the former Yugoslavia since 1991: grave breaches of the 1949 Geneva Convention, violations of the laws or customs of war, genocide and crimes against humanity. Given those responsibilities, the process at the tribunal works like a funnel. Evidence of atrocities pours in the top. Justice dribbles out the bottom. Slowly. The raw details of what happened in the village in western Kosovo on March 25 have already become part of the tribunal's process. They are at the top of the funnel. But they have a long way to go on their journey to the bottom. The tribunal's scale is small in comparison to the weight of war crimes and crimes against humanity committed in the former Yugoslavia, where victims of murder, rape and beatings number in the tens of thousands. The tribunal has issued 27 public indictments that included 90 suspects, Milosevic and his aides among them. There may be other sealed indictments but they are kept secret because the tribunal doesn't want to tip off likely suspects it might be able to arrest. As of mid-August, there were 30 prisoners in custody, 17 arrested by various peacekeeping forces in former Yugoslav republics and 13 who turned themselves in. Six suspects have died. One committed suicide. One suspect was shot to death during an arrest attempt by British forces. Indictments against 18 suspects have been withdrawn as the tribunal has sharpened its focus on Milosevic and other political and military targets. Suspects beyond the pale Five years into the tribunal's existence, only six suspects have either entered guilty pleas or been convicted after trial. In some of those cases, the suspects were such low-level functionaries that they would not even be indicted today. They were tried because they were on hand and, at the time, the tribunal was under strong UN pressure to show results. The tribunal, which has spent some $278 million since its inception, runs on a United Nations-supplied budget, now about $100 million a year to cover prosecution, investigation and administration, much more than it was receiving a few years ago. But it is much less than it needs to pursue crime down to the triggerman level in Bela Crkva and a hundred other villages like it all over Kosovo. The tribunal has 780 employees -- 14 of them judges -- three courtrooms, one local prison for its suspects and convicts and no police agency to arrest the people it has indicted. By comparison, Cook County has 46 judges working in 38 courtrooms on criminal cases; for courtrooms alone, its annual budget is $38 million. Most of the suspects the tribunal has indicted are, like Milosevic and his aides, in havens in Yugoslavia or in Republika Srpska, the Serbian area of Bosnia, both of which generally ignore tribunal subpoenas and arrest warrants. Even with a $5 million price tag on his head (a U.S. contribution to the effort) Milosevic is untouchable as long as he stays in power in Belgrade. This is the cause of growing frustration. Two of the tribunal's most wanted suspects, Bosnian Serb leader Radovan Karadzic and military commander Ratko Mladic, are in Pale in Republika Srpska, where Karadzic has a big house on a mountainside. Authorities in Bosnia-Herzegovina have been holding arrest warrants for the two since 1995 but say "they are residing in the temporarily occupied territory controlled by the aggressor and are therefore beyond the reach of . . . legitimate authorities," according to the prosecutor's office. At one point, both suspects were literally in Milosevic's back yard, visiting a guest house at one of his Belgrade compounds when NATO commanders and diplomats dropped in to try to find a solution to the crisis in Bosnia-Herzegovina. Because the tribunal's rules forbid trials in absentia, the cases against those indicted but not under arrest must wait until they are brought to The Hague. Court officials readily admit the tribunal was overwhelmed by what happened in Kosovo. The tribunal already was so severely strained by the cases in Croatia and Bosnia that it had to pull investigators and attorneys from field investigations so they could prepare for trials. Arbour said the tribunal is "constantly tripping over actuality." Deep into its pursuit of war crimes in Bosnia, it was presented a huge challenge at Bela Crkva and the other massacre sites in Kosovo. The tribunal must respond, she said, but ultimately it must return to the cases it was pursuing in Bosnia. "I think in Kosovo we rose to the challenge, but we can't let it eat us up. We have got to redeploy on other matters and take our time," Arbour said. The tribunal cannot prosecute everyone. It cannot identify every war crime or crime against humanity. It cannot arrest individual triggermen and rapists and call them to account. Instead, as Arbour grew more and more aggressive in her chief prosecutor's job, the tribunal decided it would focus its resources at the top in a bid to catch and prosecute responsible commanders and political leaders. In a way, it is betting all its chips on the eventual arrest (or surrender) and prosecution of Milosevic and his aides. If it is able to capture members of the high command or field generals, so much the better. But it cannot reach down to the ranks of the actual killers in the small towns and villages of Kosovo that were hit so hard as Serbian forces pushed through to intimidate those who survived to leave the province. New emphasis on human rights Even advocates admit that at best, the International Criminal Tribunal for the Former Yugoslavia is a sign that the world has decided to take one small step in attacking the kind of state-sponsored brutality that has marred so much of the past century. Sovereignty was the driving force behind international law for most of the 20th Century, but it is slowly yielding to a strong, new emphasis on human rights and prosecution of human-rights violations. Precedents are being set. Last year, for example, Britain arrested former Chilean leader Augusto Pinochet after a Spanish judge issued an extradition order on grounds Pinochet should face trial for human-rights abuses. The arrest already has withstood a series of court tests, but Chile still strongly opposes any action taken by any nation but itself on grounds its sovereignty is being violated. Human rights also was the central reason cited by NATO in justifying its air war against Yugoslavia, claiming the Kosovar Albanians were targets of renewed "ethnic cleansing" by Belgrade. The tribunal also has provided the only avenue open to Yugoslavs of every ethnic description to pursue objective truths about what happened to their country and their kin since 1991. That is not a small matter in Yugoslavia, where the many Serbs and Albanians who have shunned violence and advocated protection of human rights view the tribunal and its work with a passion. "This is about finding out what happened, the only way the people can know the truth," said one Belgrade journalist and lawyer who has become legendary for her knowledge of the war crimes cases and the legal issues they raise. "It is not political. It is not ineffective." The tribunal also has taken on a special weight in Kosovo, where survivors were so eager to pursue justice that they put off burying their dead until someone could come to collect evidence to add to the case. As poignant as that might seem, officials say, the tribunal had no intention of collecting all evidence of all war crimes and crimes against humanity. Prosecutors and investigators alike say they needed to collect only enough to help build the case against Milosevic. At worst, the tribunal is viewed as a very small Band-Aid on a very serious wound, enough of a stab at justice to ease the world's conscience but not enough to put fear into the hearts of the actual killers. "We are selling packaged, prefabricated justice, Madison Avenue style," said M. Cherif Bassiouni, the highly regarded international law professor at DePaul University whose seminal investigation of the wars in the former Yugoslavia for the UN Security Council set the stage for the birth of the tribunal. "You want a truth commission? We will set you up a truth commission. You want a tribunal? We will set you up a tribunal and give it enough credibility so that it appears to you to provide justice. And so the question becomes not whether you are achieving justice in terms of the perception of justice by the victims, but whether you are achieving justice in terms of the perception of justice by world public opinion. "And those are absolutely different worlds." He sees the tribunal as one part on one side of a world-scale political struggle that pits the people he calls "the realpolitizia" (the political and diplomatic world) against a human-rights community determined to bring violators to court. >From Bassiouni's perspective, the process should focus on a more direct justice for the victims at Bela Crkva and elsewhere in the former Yugoslavia, because that is the only hope for reconciliation between ethnic groups that have been slaughtering one another for generations. But that is not what has evolved in the former insurance company building on Churchillplein in The Hague, where the tribunal has its heavily secured headquarters. Tihomir Blaskic, still baby-faced at 38 although his fluffy black hair is thinning, sits at a desk behind a bullet-proof glass wall that separates the court from a small gallery of court-watchers. Showing no emotion, he takes voluminous notes as a prosecutor sums up the tribunal's case. The prosecutor describes Blaskic as a liar who, as a general in the Croatian Army, commanded troops that killed hundreds of Muslims in central Bosnia's Lasva Valley between May 1992 and January 1994. He is charged under the Security Council resolution that established the tribunal and gave it the task of prosecuting "persons responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991." Justice in slow motion The Blaskic trial is a worst-case model for the challenges the tribunal faces and the pace of its work. Blaskic is accused of three counts of crimes against humanity, 11 counts of violations of the laws or customs of war and six grave breaches of the 1949 Geneva Convention. His case is important because it is the first trial that raises the kinds of "chain of command" arguments that would be crucial in any prosecution of Milosevic. The prosecution, which wants Blaskic imprisoned for life, has constructed an elaborate case that hinges on the fine points of international laws of warfare, the nature of command in the Croatian army and the forensic details of violent deaths. Blaskic's defense attorneys argue the Lasva Valley campaign was not an international conflict and hence, the charges against him are not appropriate. Blaskic, the defense team said, did his best to control "a bunch of farmers with hunting rifles and pitchforks" who were out of control. A Belgrade-trained former Yugoslav army officer who was absorbed into the officer ranks of the Croatian army after Croatian independence in 1991, Blaskic surrendered to the war crimes tribunal on Jan. 4, 1996. His trial began June 24, 1997. It has taken more than 220 court days to try just his case. A total of 158 witnesses appeared before the three judges hearing the case. (There are no jury trials at the tribunal.) The judges, Claude Jorda of France, Fouad Riad of Egypt and Mohamet Shahabuddeen of Guyana, are likely to take many months to digest the evidence and reach a verdict. Unlike American courts, the tribunal has fairly informal rules of evidence. The goal is for the judges to hear everything that is available and then decide on the weight and admissibility of evidence when they retire to come to a verdict. The court seems to thrive on complexity, which slows everything as the process wades through page after page of defense motion and prosecution answer, charges and counter-charges based on the fine points of the law of war and the Geneva Convention. Proving someone was responsible for a murder is often not enough. To meet the standards, it must have been a murder that happened during an international conflict and that somehow fits into patterns that tie it to command structures and the course of events that surrounded the incident. "(Blaskic) is charged with bombarding a town, a mixed town of Bosnian Muslims and Croats, in Herzegovina during the war, and he said, 'Well, I didn't do the actual bombardment,' " Bassiouni said. "In order to establish his command responsibility in the case, they had to re-establish where the Croatian army was during the event. Where were the irregulars? Who was in command, and so on. By the time they did just that, a year and a half was past. That was totally unnecessary." Up to this point, in almost every trial, the prosecutors have carried the burden of proving just about every element, no matter how abstract, attached to their cases. They find themselves reconstructing what happened in the Balkans, where the truth is always complex and elusive, to set the stage for every case. 'Big fish, small fish' Complex and slow though it may be, the process has many defenders. "There may in fact be more justice at the tribunal than we would typically find for a homicide in the United States. If we can get this right . . . justice will be defined by going to the masterminds of the horror as opposed to the mindless perpetrators on the ground," said David Scheffer, U.S. ambassador at large for war crimes issues. "The expectation has to be one of the long term for Kosovo, not the short term. The wheels of justice in the Balkans turn slowly, but they do turn." Sean Murphy, an international law professor at George Washington Law School in Washington who has written extensively on the evolution of the court and the quality of its work, argues that even though the individual killers at Bela Crkva will not face trial, going after Milosevic is legitimate and important, given the tribunal's limited budget. "The reality is that the people killed in Bela Crkva were in fact touched by Milosevic and his cronies, maybe not quite as vividly and directly as by those who pulled the triggers, but they were most certainly touched. If you go after Milosevic and some of his cronies, you are getting a bigger return on the resources you put into those trials," Murphy said. Murphy touched on one of the most common criticisms of the tribunal, that it has been able to prosecute only "small fish." Tribunal prosecutors are so sensitive about this subject that they refer to it as the "big fish, small fish thing." But going after Milosevic, and actually getting him, are different matters. The tribunal already has issued one extensive indictment that demands the arrest of the Yugoslav leader and four of his subordinates and is preparing a second indictment that eventually will accuse the Serbian leader of responsibility for crimes against humanity in Bosnia-Herzegovina. He is also likely to face genocide charges as the investigation expands, tribunal sources say. But the Yugoslav leader appears no closer to arrest today than he did at the height of the campaign in Kosovo. The indictment and investigation of the Bela Crkva killings already have had an impact on the survivors in the small town, but their faith in justice hinges on how the Milosevic case develops and what it achieves in the end. "I had a bookful of information with me when I went into Bela Crkva and it included the indictment and the names of the dead," said Joanne Mariner of Human Rights Watch, who collected the stories that led to the first worldwide bulletin on what had happened in Bela Crkva. "I met this man who had lost his family in the killings, and when I showed him the indictments and he could see their names listed as among those killed, it was really important to him. "He knows it is really only the first step in the process of getting justice, but just the fact that the international community knows what happened there and has an indictment out against a sitting head of government, that is a step forward and it was important to this person." If Milosevic is not tried, she said, ambivalence about justice as a way to redress grievances could well return to Kosovo. But the weight the villagers attached to the process was apparent to Mariner and others who visited the town when the war ended. "Villagers all over the place were not burying the bodies because they were waiting for these forensic teams to show up. That tells you how important it is to them," Mariner said. Prosecutors at The Hague and diplomats and international law specialists elsewhere frequently argue that Bela Crkva's victims may be able to find justice only once a local system of police and courts is established. But there is substantial skepticism about whether that can ever happen. Michail Wladimiroff, an attorney at Wladimiroff & Spong in The Hague, was defense counsel for much of one of the tribunal's first cases. He represented Dusko Tadic, a Bosnian suspect and low-level police functionary who would not even have been arrested had his case come to the tribunal today. Tadic was initially picked up by German police and then handed over to the tribunal for trial. He was convicted on May 7, 1997, of 11 counts of violations of the laws or customs of war and crimes against humanity and sentenced to 20 years. Wladimiroff is a supporter of the tribunal, both in practice and in concept, but a realist on the question of local justice in any of the republics of the former Yugoslavia. He also has participated in the Rwanda tribunal and uses what happened there to make his point. "In Rwanda, the victors (the Tutsis) got power and therefore arrested all the Hutus they could lay their hands on who were suspected of committing war crimes. They have about 50,000 people in jail there. In confinement. And nothing has happened. They are not able to try them because the judiciary was killed, so they have to train people to do it," Wladimiroff said. "In Bosnia, or in Kosovo, they won't be able to do it because there is no clear victory. There is no one who is willing to do it. You are not going to prosecute your own people. The Serbs won't do it. The Albanians won't do it . . . You need some kind of outside justice, at least to do something. "Nothing will happen in Kosovo. There is an effort to bring in foreign lawyers, prosecutors and judges to run cases on a local basis . . . but I really have my doubts about whether it will be successful." He sees Yugoslavia as a case in which warfare lowered the moral standard of society. And when that happens, everyone shares in the blame, to some degree, for what follows. "In normal times, if there is a killing, you can go deep down to the bottom and go after the little ones, but after a war you simply cannot do that," he said. "In war we have licensed killers . . . It changes everything." Justice for the victims of Bela Crkva, then, is a slave to the same process. When violence is unleashed on such a wide scale and the rules of civil and moral behavior are abandoned, it strains the world's ability to respond. The small institution the world created to address such tragedies is still wrestling with the initial abominations and atrocities of the first half of the decade in the fractured land that was Yugoslavia. "It is not working and it will not work," says Bassiouni, who played such an important role in helping to establish the tribunal. "It is almost like we have to go through a generation of international criminal justice that will not work well until we get to the point where people will say, 'OK, now we have established the principle. . . . We need to make it work better.' "