No Sanctuary

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Down a long logging road deep in the Glumina Mountains in the Bosnian Serb Republic, white United Nations trucks and a refrigerated trailer dotted a sunny hillside one September afternoon in 1998. At first glance, they looked like ambulances that arrived too late at the scene of an accident. Nearby, U.N. forensic experts and a handful of U.S. troops taking part in the NATO Stabilization Force (SFOR) for Bosnia stared into an excavated grave at what looked like unearthed clumps of clay. After further inspection the shapes turned out to be grotesquely contorted arms and legs, interspersed with broken shards of skull. This was the scene of an atrocity, not an accident.

"That's the sixth grave site we've unearthed in this region this year," said an official who worked with the U.N. International Criminal Tribunal for the former Yugoslavia (ICTY). "We're almost certain those bodies are the aftermath of the slaughter of Srebrenica." Even on a scenic hillside on a sunny day, the name passed like a dark cloud.

Srebrenica was the U.N. protected "safe haven" overrun by Bosnian Serb troops and paramilitary units in July 1995. While Dutch U.N. peacekeepers looked on helplessly, the Serbs rounded up somewhere between 5,000 and 7,000 Muslim men and boys. They were later executed by machine gun and rifle fire, their bodies scattered throughout the countryside in mass gravesites like the one on a steep embankment in the Glumina Mountains. Srebrenica has since come to be known as the worst European atrocity since World War II.

The horror of Srebrenica was evident in September 1998; what was less clear was why the U.N. forensic teams continued so scrupulously about their gruesome task. Though the international tribunal had been in existence since 1993, almost none of the senior leaders responsible for the terrible war crimes of the Bosnian War had faced the court. Many observers viewed the tribunal as little more than a fig leaf slapped over Balkan atrocities to mask Western inaction during the early years of the war. Meanwhile, the NATO military leaders who commanded SFOR made little secret of their desire to avoid arresting the war criminals indicted by the court for fear of sparking renewed violence and possible casualties in Bosnia.

Even the SFOR troops at the Glumina site that day had stopped by only briefly while on regular patrol. SFOR commanders had denied the U.N. forensic team's request for a permanent guard, lest NATO be seen by the Serbs as taking the side of the tribunal.

Still, the tribunal forensic teams persisted. "As long as NATO provides us some security, we're going to keep gathering evidence on the people who did this. We know who they are," said the tribunal official that September day. "We have to have security because the perpetrators know we're here and they live in and around Zvornik, " he added, referring to a nearby industrial hamlet on the banks of the Drina River. Known as a haven for Serbian hardliners, Zvornik had been home to 40,000 Muslims before the Bosnian war. They were effectively "cleansed" from the town in the early 1990s, many ending up floating face down in the Drina. Zvornik's former mayor, a Serbian nationalist, razed the town's historic mosque in retribution for the destruction of a Serbian church-in 1463-by the Ottoman Turks.

Until the perpetrators of atrocity in the Balkans are finally brought to justice, many observers believe the region will never escape its endless cycle of revenge and retribution. Bringing perpetrators to justice was the original ideal motivating the ICTY, just as it motivated the Nuremberg trial of Nazis after World War II. What no one standing over a mass grave on a hillside in the Glumina Mountains could have known two years ago, however, was just how close the tribunal was to achieving that lofty ideal. Indeed, the ICTY has proven so successful in bringing senior indicted war criminals to justice in the past year that it is beginning to make even some of its creators nervous.

Breaking Through
Each workday, on the outskirts of The Hague, a windswept city on the North Sea coast of the Netherlands, the banality of evil confronts the cumbersome bureaucracy of international justice. In recent months, Radislav Krstic, a middle-aged man with ashen features in an ill-fitting suit, has sat impassively on one side of a sterile, brightly lit courtroom separated from onlookers by a partition of bulletproof glass. Krstic is the most senior military officer tried in the seven-year history of the tribunal. He was the general in charge of Bosnian Serb forces that overran Srebrenica in July 1995. Day after day, the tribunal's prosecutor carefully has presented his evidence. It includes video footage of Krstic at the crime scene in Srebrenica; intercepted phone conversations between Serb officers discussing the need to "distribute" 3,500 "parcels;" satellite imagery of mass graves appearing shortly after Srebrenica was captured; photographs of bullet-riddled skulls; and eyewitness testimony.

A survivor of the Srebrenica massacre identified only as "Witness L" told the tribunal's three international judges how he lay under a bleeding corpse for hours as Bosnian Serb soldiers machine-gunned successive truckloads of Muslim prisoners in a killing field. Throughout the testimony the accused closely studied the desktop in front of him, seemingly unwilling or unable to meet the witness' eyes. If he is found guilty, Krstic will be the first person convicted of genocide by the tribunal. The tribunal has achieved a striking number of significant milestones and firsts in the past year. After early years marked by low-level prosecutions, bureaucratic inertia and a conspicuous lack of international support, the tribunal finally is targeting and in many cases trying the senior architects of wartime atrocity in the Balkans.

Just last year the tribunal issued its historic criminal indictment against Slobodan Milosevic for ordering the brutal ethnic-cleansing campaign in Kosovo, establishing for the first time the precedent in international law that sitting heads of state are not immune from prosecution for crimes against humanity.

The two most notorious figures on the tribunal's "Most Wanted" poster remain at large: Bosnian Serb political leader Radovan Karadzic, and Bosnian Serb military leader Gen. Ratko Mladic. But after much public arm-twisting by tribunal officials, NATO peacekeepers recently arrested and delivered to the Hague Momcilo Krajisnik, a close political ally of Karadzic and the most senior war crime suspect so far taken into custody. Krajisnik's apprehension follows the arrest in late December of Maj. Gen. Stanislav Ganic, commander of the Bosnian Serb forces responsible for the bloody siege of Sarajevo between 1992 and 1994, and Gen. Momir Talic, another Bosnian Serb charged with 12 counts of genocide, war crimes and crimes against humanity. Last April, NATO troops detained Dragan Nicolic, the commander of the notorious Susica prison camp. He has been charged with murder, torture and unlawful imprisonment. In March, the court dispensed the longest sentence ever handed down by an international tribunal, giving a Bosnian Croat general 45 years for war crimes. Later that month, the tribunal opened the first U.N. trial ever to focus on systematic sexual violence against women-including rape camps, gang rape and sexual slavery-as crimes against humanity.

The ICTY is one of a number of recent groundbreaking efforts to prosecute those accused of heinous acts of inhumanity. A similar tribunal has been created to redress the genocide in Rwanda and one has been proposed to prosecute former Khmer Rouge leaders responsible for the "killing fields" of Cambodia. Recently, the United States asked the U.N. Security Council to create a similar tribunal to prosecute the perpetrators of atrocity in Sierra Leone. That campaign will likely reach a major milestone in the next couple of years with the anticipated creation of a permanent International Criminal Court (ICC) in The Hague.

Last year, a Spanish judge nearly brought former Chilean dictator Gen. Augusto Pinochet to trial, despite his claims to immunity as a former ruler. Although the 97-year-old Pinochet was returned home after it was determined that he was too ill to stand trial, the Chilean Supreme Court was sufficiently emboldened to rule on August 8 that Pinochet should be stripped of immunity in order to face possible indictment for human rights violations.

Assault on Sovereignty?
The success of the ICTY and the international movement to eliminate sanctuary for war criminals has sparked considerable controversy. Many conservatives especially view it as an affront to national sovereignty. While the United States has supported the limited charters of the Yugoslav and Rwanda Tribunals, the Clinton administration has steadfastly refused to join 120 other countries that signed the treaty for the International Criminal Court (ICC) in 1998. When 60 states ratify the statute-probably sometime in the next two years-the court will have jurisdiction when national courts are unable or unwilling to prosecute cases of genocide, war crimes or crimes against humanity.

Besides the fact that the criminal court treaty almost certainly would fail in a hostile U.S. Senate, administration officials fear that it could lead to the third-party arrest and prosecution of some of the more than 200,000 U.S. troops stationed overseas. Those concerns deepened after it was revealed last December that the international tribunal was investigating NATO for possible war crimes during the 1999 Kosovo operation. Thus administration officials are left in the uncomfortable position of opposing the court while trying to champion the cause of international justice.

"The United States is in a difficult position in these negotiations on the ICC, and I'm distressed that we are being criticized for undermining or subverting the cause of international justice," says David Scheffer, U.S. Ambassador at Large for War Crimes Issues. "The United States has been a leader in that effort for years. We just disagree on how to get there." Because the United States has special responsibilities as the world's only superpower, Scheffer argues that it needs special exceptions for its troops deployed around the world.

"The willingness of the United States to participate in another Kosovo-type operation will be put in jeopardy if a permanent court is in place that might seek to arrest our forces under criminal law," Scheffer says. However, in July Scheffer testified against legislation proposed in the Senate that would go much further, not only barring U.S. cooperation with an International Criminal Court, but also requiring immunity for U.S. troops who participated in future U.N. peacekeeping missions. The "American Servicemembers Protection Act of 2000" would also bar any country that ratified the ICC treaty from receiving U.S. military assistance (with certain exceptions).

While opposing the legislation's most restrictive measures, Scheffer argues it clearly indicates congressional skepticism about an ICC that might usurp aspects of U.S. sovereignty. "Having said that, we would like nothing better than to make the world totally inhospitable to people like Saddam Hussein and Slobodan Milosevic, and the good track record the ICTY is assembling in thoroughly investigating and prosecuting true war criminals is a positive step in that direction," he says.

Outlawing Barbarity
Despite continuing controversy over how best to bring perpetrators of genocide to justice, there is a palpable sense among war crimes tribunal staff and supporters that after a troubled infancy the tribunal finally is living up to the lofty principles for which it was established. "Really for the first time since the Nuremburg and Tokyo trials-which were basically military tribunals set up by the victors in World War II-this tribunal is trying to establish enforceable norms for the way human beings treat each other even in the worst times of crisis, such as war and civil conflict," says Patricia Wald, an American judge at The Hague tribunal who formerly served on the U.S. Court of Appeals in the District of Columbia.

"As a result of the Holocaust there is substantial international law against genocide-and many vague and sometimes elusive concepts involving humanitarian law. But there's been no consistent effort over time to apply those concepts and interpret those laws in real cases involving real human beings," Wald continues. "So we're setting a lot of precedent on issues as fundamental as what it actually means to have 'genocidal intent.'"

That burden of precedent weighs all the more heavily because tribunal officials clearly view themselves as laying the legal and procedural foundation for the permanent International Criminal Court. Reflecting its international bent and makeup, the court has thus developed a legal hybrid. It mixes Anglo-Saxon "common law," with an emphasis on the adversarial give-and-take of cross-examination and objection, and French-inspired "civil law," where cases are decided not by juries but rather by professional judges who are given wide latitude in directly questioning prosecutors, witnesses and the accused. The historically elusive goal is to establish an international court with enforcement power whose legitimacy is accepted around the world.

"The idea of a permanent court for war crimes was a dream of the prosecutors at the Nuremburg trials, but it was only a dream at that time," says Graham Blewitt, the tribunal's deputy prosecutor who was present at its creation in 1993. Before joining the tribunal, Blewitt spent years in Australia prosecuting Nazi war criminals. "We realized from the beginning that the success of the tribunal would be critical for the cause of a permanent court, and we took that responsibility very seriously. As we gained momentum and became more successful, I believe it did make people more willing to endorse a permanent International Criminal Court. That's rewarding, because I think we contributed to something that will benefit mankind."

Not everyone, however, has lauded the tribunal's efforts. Because of the travel and logistics involved in an international court-and the need to provide not only judges, prosecutors and public defenders, but also numerous interpreters and scores of investigators-the tribunal is expensive, with an annual budget of nearly $95 million. Critics also have targeted the glacial pace of the tribunal's proceedings, and what some see as an already calcified bureaucracy involving too many U.N. organizations.

Late last year a group of international experts led by Jerome Ackerman, the long-serving American member of the U.N. Administrative Tribunal, found that "ideally the trial of an accused should commence and be concluded expeditiously following an indictment. But that has not generally been the case in the ICTY." The Ackerman Report cites various reasons for the pretrial delays, ranging from a shortage of chambers and judges to deliberate stalling by defense lawyers. For instance, last April, tribunal officials were embarrassed by an appeals chamber ruling that two Bosnian Serbs held in custody for over two years on charges of planning a "campaign of terror" had to be released for lack of a speedy trial.

Viewing the tribunal as a likely precursor to a permanent International Criminal Court, a number of conservatives also object to it in principal. In their view, such international organizations are an affront to national sovereignty and prerogatives, and are frequently politicized and turned against the United States. That view was bolstered by reports last year that the tribunal had launched an investigation of NATO's actions in Kosovo, albeit an informal inquiry that eventually ended without charges being levied.

"The tribunal's investigation into whether U.S. actions in the former Yugoslavia were an act of aggression . . . puts on the table the open question of whether these international judicial organizations will become politicized," says John Bolton, a former assistant secretary of State for International Affairs in the Bush administration, and senior vice president for the American Enterprise Institute, a conservative think tank in Washington. "The possibility that [Secretary of State] Madeleine Albright could be served with a subpoena while overseas brings that issue into focus. There's also a kind of paternalism inherent in this idea that the international community will dispense better justice than the nations involved. That's not only elitist but also ultimately counterproductive, because forcing nations to deal with these issues themselves leads to a political maturity the international community cannot bestow.

Sometimes countries may also decide that political reconciliation and justice are incompatible." Former U.S. Secretary of State Lawrence Eagleburger echoed that sentiment in recent testimony before the House International Relations Committee. "[The ICC] is in my judgment a creation that is both illegitimate and illogical," said Eagleburger. "We are probably far better off right now by saying we want nothing to do with it. There is a fundamental here that really bothers me. I have a very serious problem if we concede that the United Nations should be making international law."

In cases of mass crimes against humanity, however, advocates believe the tribunal and a permanent follow-on are necessary precisely because political and emotional reconciliation are incomplete absent a sense that those responsible have been brought to justice. Largely for that reason, international authorities in Kosovo announced last April that they were setting up a local war crimes court to focus on atrocities during the conflict in 1998 and 1999 between Serbian security forces and ethnic Albanians. Cases will then be handed over to the ICTY in The Hague upon request. The United States has also been the key proponent for creation of international tribunals for war crimes in Cambodia and Sierra Leone.

Justice Deferred
Certainly when the ICTY was created in 1993 with a single courtroom (versus three today) and the Bosnian conflict still raging, it represented little more than an empty threat to the ethnic-cleansers in the Balkans that the "world was watching." The conflict ended in 1995 with the signing of the Dayton Accords requiring signatories to turn over indicted war criminals and directing NATO's Implementation Force [IFOR] to take them into custody if encountered during the conduct of normal business. But few officials outside of The Hague showed any appetite for confronting the perpetrators. Senior U.S. military officers who led IFOR into Bosnia were particularly cautious. The U.S. military high command still had fresh in its collective memory the painful lesson of Somalia in 1992.

That year, a humanitarian mission expanded into a hunt for a Somalian warlord and a firefight that killed 19 U.S. service members, leading directly to what many in uniform viewed as the ignoble withdrawal of U.S. forces. In the tense, early years in Bosnia, NATO military officials thus greatly feared that any confrontation with indicted war criminals and their followers would lead to NATO casualties and possibly serve as a flashpoint for renewed hostilities that could jeopardize the entire mission. "There's no doubt that in the early years the emphasis for NATO troops was to pacify Bosnia, and not to rock the boat with arrests of war criminals," says a knowledgeable source at NATO headquarters in Brussels.

As the ICTY's former liaison in Sarajevo, William Stuebner witnessed firsthand just how far NATO was determined to go to avoid confrontations with indicted war criminals. "I was in a constant fight with NATO officials because they repeatedly said they didn't know where the war criminals were, so a bunch of us went looking for people already indicted by the tribunal. Within two weeks we found 80 percent of the list, and we spoke to many of them," says Stuebner, who now works as an advisor on Bosnian reconciliation at the U.S. Institute for Peace.

According to Stuebner, one indicted war criminal was living within 100 meters of the British garrison in Banja Luca, Bosnia-Herzegovina. Another got drunk over a bad conscience and tried to turn himself in at a Dutch checkpoint, but was turned away because his picture didn't appear on the tribunal's "wanted poster." Still another reportedly thought it was a big joke that he passed through an American checkpoint everyday with a military I.D. card that clearly identified him.

"I personally witnessed a group of Italian peacekeepers at a checkpoint literally turn their backs as a convoy carrying Radovan Karadzic came by with lights flashing, just so they wouldn't 'encounter' him," says Stuebner. "Meanwhile, both Karadzic and Ratco Mladic, the two most wanted war criminals, were seen every day on the streets of the cities of Pale and Hans Piesek, in the French and American sectors respectively."

According to sources in the ICTY and NATO, two events broke the resistance to arrests. Because NATO had studiously avoided confrontations with accused war criminals who were on their guard after being tipped by public indictments, in March 1997, tribunal officials began issuing sealed indictments. Not only did sealed indictments allow NATO officials to plan secret and often very complex operations to snatch accused war criminals, but tribunal officials pressured NATO by threatening to go public with the indictments if the accused were not arrested. "The first arrest under a sealed indictment was made by United Nations personnel under U.N. commissioner Jacques Klein, and that put pressure on [NATO's Stabilization Force] to match that effort with their own arrests" says Blewitt of the ICTY. "I think it shamed NATO into action. And once SFOR began making arrests, they were pleasantly surprised that the anticipated backlash by the associated ethnic groups failed to materialize."

The second factor in breaking resistance was the 1997 election of British Prime Minister Tony Blair, who reportedly held a deep conviction that the perpetrators of Balkan war crimes must be brought to justice in order for a lasting peace to take hold in the region. Only two months after Blair's election, Britain's renowned Special Air Service (SAS) commandos began making arrests in Bosnia. On their own or in concert with the Dutch, the British have made at least half of the arrests in Bosnia.

The pace has picked up dramatically since the United Kingdom's former defense minister Lord George Robertson took control as secretary general of NATO seven months ago. Robertson is said to see eye-to-eye with NATO's former Supreme Allied Commander Gen. Wesley Clark, a key architect of the Dayton Accords who was intent on including the arrest of senior war criminals as an important part of his legacy in the Balkans.

Robertson was unequivocal on the point of continued arrests after prison camp commander Dragan Nicolic was taken into custody April 22. "This represents the seventh such arrest since I took over as Secretary General in October of last year," said Robertson in a formal statement issued April 22. "Slowly but surely, those responsible for heinous crimes committed in Bosnia-Herzegovina are being forced to face up to their actions. "Justice is being done. For without justice, there can be no lasting peace in the Balkans."

Even reluctant French peacekeepers in Bosnia have recently gotten into the act. According to ICTY sources, when French President Jacques Chirac visited the tribunal earlier this year, he was handed a piece of paper by Carla Del Ponte, the blunt and no-nonsense former attorney general of Switzerland who had recently been publicly critical of NATO for its timidity in arresting accused war criminals.

On the paper were the names of three Bosnian Serbs in the French sector whose sealed indictments Del Ponte had just signed. The indictments included Momcilo Krajisnik's. The French recently had been excoriated in the press for having never arrested an accused war criminal in their sector, and for essentially providing a de facto safe haven for accused war criminals. It has been widely rumored, though never conclusively proven, that the French may have struck a secret deal not to pursue accused Serbian war criminals in exchange for the return of two French pilots formerly held by the Serbs. Whatever the reality, knowledgeable sources say Del Ponte's implicit threat to go public with her own criticism of the French was clear at her meeting with Chirac. A month after the meeting, French troops captured Krajisnik, arresting the most senior official yet brought before the tribunal.

"A lot of this effort is personality driven, and I think you've had a group of people in power recently who seem more committed than at any other time to bringing the most senior perpetrators to justice before the tribunal," says Heather Ryan, a Hague-based liaison to the tribunal from the Coalition for International Justice, a human rights group. "I also think the recent high-level arrests reflect acknowledgement by NATO's military command that removing the people most responsible for committing these crimes makes reconciliation and repatriation of refugees much easier. I think they're starting to realize that if the international community is ever going to get out of Bosnia, an important step is removing these people so peace can take hold."

The Nature of Evil
NATO and ICTY officials insist that their sights are now squarely set on former Bosnian Serb political leader Radovan Karadzic, who is thought to still reside in the French-controlled sector of Bosnia near the town of Pale. As recently as March, Gen. Ratko Mladic was seen in public at a soccer match in Belgrade, Yugoslavia. Tribunal officials know that they will ultimately be judged by their ability to bring to justice those most closely associated with the hatred and atrocity that convulsed the Balkans for nearly five years. "What happened in the Balkans was not a religious war. These people were living in relative harmony," says Blewitt of the ICTY. "Then along come these ultra-nationalists, and they purposely whipped-up fears and suspicions among Serbs, Croats and Muslims into such a frenzy that suddenly the person you were drinking a beer or sharing a backyard barbecue with last week is raping your wife and killing your children. I find that very scary." To end that terrible cycle of violence and retribution Blewitt believes the tribunal must bring to justice the most senior leaders responsible for fomenting hatred. "A trial will show ordinary citizens in Bosnia that they were led into the conflict by false prophets like Karadzic. "That's why I believe one day we'll see him here in The Hague. Because failure to arrest Karadzic will be seen not only as a failure of this tribunal, but a failure of the Dayton Accords and the international mission in the Balkans."

With each new high-profile arrest and successful trial at the tribunal, pressure will increase on the United States to find some accommodation with the permanent International Criminal Court. The most recent Clinton administration proposal calls for a wait-and-see period. During that time, the United States would cooperate with and even support the ICC without signing the treaty as long as the ICC charter clearly states that no American (or other nonparty national) acting in an official capacity could be arrested and surrendered to the court. "As the ICTY continues moving into high gear by trying these really high-level defendants, I think the idea of a permanent court will gain support in Congress," Sen. Arlen Specter, R-Pa., a member of the Judiciary Committee, says. Specter once co-sponsored with Sen. Christopher Dodd, D-Conn., an unsuccessful resolution establishing an international court. "Some lawmakers are concerned that we not surrender national sovereignty, and I share those concerns. But I think we can avoid that and still create an international court that sets limits against dehumanizing behavior such as mass rapes and killings. That could have a very salutary affect in international relations."

As to the more fundamental question of how seemingly ordinary people could commit acts of such extraordinary depravity, tribunal officials may be no closer to the truth than their predecessors at Nuremburg.

"In this business it's hard not to think about the nature of evil. As best I can figure, people seem to get into situations so difficult and atmospheres so terrible that the part of their brain that would normally tell them right from wrong-or give them compassion for their victims-simply shuts down," says Ryan of the Coalition for International Justice. "That's why the tribunal is so important. As a society we arrive at our morals by public consensus, and we as human beings need a place to say that in a civilized world certain behaviors are simply unacceptable, even during terrible times such as war. The tribunal is a place we can say that out loud and ingrain it into our collective culture."

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