A Problem From Hell: America and the Age of Genocide (78 page)

But if Milosevic retained a tough pose, times had changed. As he geared up for a long courtroom scene against NATO and the "illegitimate" tribunal, the presiding judge, Richard May, interrupted him. Irritated by the defendant's insouciance, judge May simply turned off Milosevic's microphone and adjourned the session. "This is not the time for speeches," May said. The once mighty Serbian strongman was escorted from the trial chamber back to his ten-by-seventeen-foot cell. In August 2001, desperate for attention, Milosevic broke the tribunal rules, making a prohibited phone call to Fox News. On the air he repeated his charges against the "illegal" court and said of his role in the Balkan wars, "I'm proud of everything I did."' The tribunal reprimanded him and threatened to revoke his phone privileges. The man who ran circles around Western negotiators for nearly a decade was told another transgression would cost him his monthly phone card and seven-minute allotment of daily phone calls.

The Hague detention center, once a deserted emblem of Western halfheartedness, had become the bustling home to many of Milosevic's former partners, subordinates, and foes. Bosnian Serb general Radislav Krstic, commander of the Drina Corps that had carried out the assault on Srebrenica, had also ended up in the Dutch prison facility. U.S. troops swooped up Krstic in eastern Bosnia in December 1998.' The arrest was unusual, as the U.S. troops enforcing Bosnia's 1995 Dayton peace agreement had largely abstained from making raids. On the eve of the U.S. deployment, Clinton pollster Dick Morris asked Americans which tasks U.S. soldiers should be performing in Bosnia. The results daunted the president. "The arrest of war criminals was the ore they most opposed using American troops for," said Morris. "I think probably because of the heritage of Somalia, hunting for the bad guy." Morris believed that the Bosnian war criminals were never "well enough known for them to be hated." He estimated that Bosnian Serb political leader Radovan Karadzic had 20 percent name recognition as against close to 100 percent for Saddam Hussein: "I don't think that the public ever really go_ that Karadzic was a son of a bitch. Because he wasn't a head of state, just a general, I think most people didn't know the name"' Karadzic was not in fact a general but a self-styled "president."

Washington was so nervous about casualties that NATO commander U.S. admiral Leighton Smith had given troops clear instructions: "Do not provoke"; "live and let live." Although the U.S. base was twelve miles away from the headquarters of Bosnian Serb General Ratko Mladic, the most wanted nian in Bosnia, the United States allowed the cocksure general to go right on working. Anxious to avoid inflaming the rage of the now notoriously trigger-happy Mladic, U.S. forces had announced their visits to his army headquarters ahead of time.

But by late 1998, Serb unity had crumbled and NATO had changed its arrest policy. U.S. intelligence officers knew that Krstic was not as dangerous as Mladic (which Krstic himself would argue at length in the Dutch courtroom). And because the UN had kept his indictment secret, he was caught off guard by the sudden confrontation.''

Krstic was the highest-ranking military official to be tried in an international courtroom since 1945. On March 13, 2000, a little less than five years after the fateful Srebrenica onslaught, the Serb general found himself pinned into a defendant's box. He had lost his right leg in a wartime mine accident, and as he listened to the opening address of an American prosecutor, Mark Harmon, Krstic rubbed the stump. "This is a case about the triumph of evil," Harmon said:

A story about how officers and soldiers of the Bosnian Serb army, well-educated men, men who professed to be professional soldiers, who professed to have faith in the Almighty and who professed to represent the ideals of a proud and distinguished Serbian past, organized, planned and willingly participated in genocide or stood silent in the face of it.'

Harmon laid out the painstaking, sophisticated planning necessary to kill as many men and boys as quickly as forces under Mladic and Krstic had managed. "Consider, for a moment, what was required to conduct this massive killing operation," Harmon told the tribunal:

• Issuing, transmitting, and disseminating orders to all units that participated in or assisted with the movement, killing, burial and reburial of the victims;

• Assembling a sufficient number of buses and trucks to transport the thousands of Muslim victims to detention centers near the execution sites;

• Obtaining sufficient fuel for these vehicles, at a time when fuel was precious because of the fuel embargo ...

• Identifying and securing adequate detention facilities near the execution sites in order to hold the prisoners before killing them ...

• Obtaining sufficient numbers of blindfolds and ligatures for these prisoners ...

• Organizing the killing squads;

• Requisitioning and transporting heavy equipment necessary to dig large mass graves;

• Burying the thousands of victims who had been executed at diverse locations (and later to do the same in reburying);

• Preparing and coordinating propaganda from the Drina Corps and all levels of [Serb] military and government ... to rebut the well-founded claims that atrocities had taken place."

At issue in the c..se was not only Krstic's individual responsibility but also the unsettled question of whether Serb forces had committed genocide in Bosnia.

Although the Bosnian atrocities had stirred vivid reminders of the Holocaust, the genocide question remained contested years after the war's end. It was clear that the Bosnian Serbs, backed by Milosevic in Serbia, had used the 1992-1991 war to purge all Muslims from the territory under their control and had killed tens of thousands of civilians.Yet they did not murder each and every Muslim they got their hands on, as the Nazis and the Rwandan Hutu had done. If the Holocaust and Rwanda were clearcut genocides, Bosnia presented the judges with the challenge of deciding how broad a definition of genocide to adopt. Because only Muslim men of fighting age were systematically executed around Srebrenica, whereas women and children were by and large deported, the Krstic defense team argued that the Serbs did not commit genocide.

If Lemkin had given the crime of genocide its name back in 1944, it had taken the creation of the UN criminal tribunal at The Hague for perpetrators at last to be pun:shed for genocide and for the meaning of the term to be sharpened.The intervening half century had not been kind to the term. "Genocide" had been used to connote innumerable practices, including segregation, desegregation, slavery, birth control and abortions, sterilization, the closing of synagogues in the Soviet Union, and even suburbanization. Misuse and abuse of language is unavoidable. But one consequence of the nonexistence of a functional international body to dismiss absurd genocide claims and weigh the more difficult ones was that the real victims of genocide had fou id it difficult to distinguish themselves from the victims of crimes against humanity, social marginalization, or persecution.

In the sixteen-month Krstic trial, the UN bench heard from 128 witnesses and viewed 1,093 exhibits, including photographs from grave sites showing skulls with blindfolds and bony wrists tied together with wires and strings. In August 2001, the trial chamber announced its decision. Krstic hobbled into the courtroom dressed in a dark navy suit, white shirt, and yellow and black tie. Presiding judge Almiro Rodrigues began by describing the stakes of the case:

At issue is not only extermination of the Bosnian Muslim men of fighting age alone. At issue is the deliberate decision to kill the men, a decision taken with complete awareness of the impact the murders would inevitably have on the entire group. By deciding to kill all the men of Srebrenica of fighting age, a decision was taken to make it impossible for the Bosnian Muslim people of Srebrenica to survive.

"Stated otherwise," Rodrigues said, "what was ethnic cleansing became genocide."' The UN court found that the genocide convention required physical and biological destruction but did not require a plan to exterminate all the members of a group. "In July 1995," the judge said, addressing Krstic's personal responsibility, "you agreed to evil ....You are guilty of having agreed to the plan to conduct mass executions of all the men of fighting age.You are therefore guilty of genocide, General Krstic" Since the Nuremberg judges had ignored Lemkin's appeals and excluded genocide from their verdicts, this marked the first ever genocide conviction in Europe. Krstic, fifty-three, was sentenced to serve forty-six years in prison, the court's harshest sentence to date.

Background: The Path to Enforcement

If Lemkin could have followed legal developments at The Hague, he would have been gratified. The creation of the International War Crimes Tribunal for the Former Yugoslavia in 1993 in turn helped spark the establishment in 1994 of a UN court to try those who ordered or committed the Rwanda genocide. It has also fueled efforts to bring to justice the Khmer Rouge perpetrators in Cambodia and to punish Saddam Hussein for his atrocities. These developments helped mobilize states to support the creation of a long-sought International Criminal Court. Prosecutors trying to prove genocide today spend their days perusing Lemkin's papers in an effort to glean the Polish lawyer's "original intent."

Lemkin had always argued that it was only a matter of time before the world's leaders would see both the moral value and the utility of punishing the perpetrators of genocide. When he had fought to get the genocide convention placed on the books, he was never so naive as to believe passage was a sufficient condition for enforcement. He was simply convinced that it was a necessary one. The convention would first enable the court of public opinion to condemn the crime; national courts would then follow by prosecuting genocide suspects who turned up in their midst; and eventually, years later, when the world was "ready," an international criminal body would punish the successors to Talaat and Hitler. These international war crimes trials would punish and incapacitate guilty perpetrators, deter future genocide, establish a historical record of events, and by pinpointing individual responsibility, allow ethnic or religious groups to coexist even after horrific atrocities.

But in 1959, the year of Lemkin's death, the legal routes to enforcement promised only dead ends."' Why, in the 1990s, did the world suddenly begin punishing genocide, when the genocide convention had been violated so flagrantly and ignored so unblinkingly since the Holocaust? And what, if anything, have the new courts achieved?

Iraq

The first postwar wave of enthusiasm for international war crimes trials came in 1990 after Saddam Hussein invaded Kuwait. Margaret Thatcher first mooted the idea of prosecuting the Iraqi dictator for war crimes because he seized Western hostages. The British prime minister said in a September 1990 television interview, "If anything happened to those hostages then sooner or later when any hostilities were over we could do what we did at Nuremberg and prosecute the requisite people for their totally uncivilized and brutal behavior.... They cannot say: `We were under orders.' That was the message of Nuremberg"" President Bush endorsed Thatcher's recommendation in mid-October. He warned, "Remember, when Hitler's war ended, there were the Nuremberg Trials.'" On October 28, 1990, Bush elaborated:

Saddam Hussein plundered a peaceful neighbor, held innocents hostage, and gassed his own people. And all ... of those crimes are punishable under the principles adopted by the allies in 1945 and unanimously affirmed by the United Nations in 1950. Two weeks ago, I made mention [of] the Nuremberg trials. Saddam Hussein must know the stakes are high, the cause is just, and today, more than ever, the determination is real."

The idea picked up steam in April 1991 after the Gulf War had been won, when reports circulated that Hussein had again begun killing Kurdish civilians. On the prodding of a number of European foreign ministers, international lawyers recommended either the creation of a criminal court or the filing of genocide charges under the genocide convention before the International Court of Justice. German foreign minister Hans-Dietrich Genscher became the leading spokesman for prosecuting Hussein, raising the idea repeatedly in public speeches throughout 1991." Despite this burst of enthusiasm and the meticulous documentation of the Anfal campaign suppled by Human Rights Watch, neither the United Nations nor the individual member states followed up. Only with the crimes committed in the former Yugoslavia did a war crimes tribunal actually come into existence.

The Former Yugoslavia

Mirko Klarin, a leadingYugoslav reporter, may have been the first to urge that the international community prosecute Balkan war criminals. On May 16, 1991, even before the wars in Slovenia and Croatia had begun, and a full year before the Bosnian conflict, Klarin presciently wrote a spirited appeal in theYugoslav daily Borba ("Struggle") entitled "Nuremberg Now!" Klarin derided the Yugoslav political leaders who said they would deal with crimes against humanity and war crimes after the conflict subsided. It was these very leaders, Klarin insisted, who were inciting ethnic violence and stirring the hate that would cause atrocities. "Would it not be better," he asked, "if our big and small leaders were made to sit in the dock instead of at the negotiating table?" He proposed that "impartial foreign experts in the international laws of war" sit on a tribunal-"no matter how small and modest"-to try those leaders responsible for the crimes against peace and crimes against humanity that had already been committed. "There is no reason to leave the Yugoslav mini-Nuremberg for when `this is all over,"' Klarin wrote. "It would be much more cost-effective to do it before, or rather, instead of"' '

But Klarin was ignored. And the wars in Slovenia, Croatia, and Bosnia followed. With the Bosnia carnage carried out in full view of the international media, Western leaders frequently responded to the outrages by warning that perpetrators of atrocity and war crimes would be held "individually responsible" Human Rights Watch, which was systematically recording evidence of the crimes, began calling for the establishment of a court in July 1992. Because the concentration camps were exposed a few days later, the appeal resonated. On August 13, 1992, the United States, under pressure from elite opinion-makers, joined a Security Council request for states and international humanitarian organizations to submit "substantiated information" concerning war crimes.' It was around this time that candidate Clinton helped shame President Bush into compiling all available evidence on the concentration camps. The Holocaust, Clinton said, had taught us the costs of silence in the face of genocide. He urged, "We must discover who is responsible for these actions and take steps to bring them to justice for these crimes against humanity."" Senior European diplomats again proposed the creation of an international tribunal. German foreign minister Klaus Kinkel picked up where Genscher, his predecessor, had left off. At the EU-UN conference held in London in late August 1992, he delivered a speech in which he declared, "What is happening here is genocide. The community of nations will pursue all crimes no matter who has committed them.."" But "pursuit" and "responsibility" were vague terms. Although a state could use the International Court of Justice to charge another state with genocide, no forum yet existed to try individuals for atrocities.