Three ICTY Battles:
- for SURVIVAL (1993-1996)
- for RESPECT (1996-2002)
- for TIME (2003 -----)
THE UN SECURITY COUNCIL, 25 May 1993
YULI VORONTSOV, Russian Federation Ambassador
Will those in favor of the draft resolution contained in document S25826 please raise their hand...
MADELEINE ALBRIGHT, December 2002, ICTY courtroom
“It was easy enough to take the first vote in February to get the Tribunal created, but nobody really believed that it would work.”
The result of the voting is as follows. Fifteen votes in favor. No votes against. Zero abstentions. The draft resolution has been adopted unanimously.
SPICA: AGAINST ALL ODDS
The Security Council passed the decision on the establishment of the Tribunal just as easily as it declared Srebrenica and Zepa “safe areas” and set up the “heavy weapons exclusion zone” around Sarajevo... only to watch helplessly as the “safe areas” were smothered and fell and Sarajevo was shelled day after day.
MADELEINE ALBRIGHT, U.S. Ambassador
“To these victims we declare by this action that your agony, your sacrifice and your hope for justice have not been forgotten. And to those who committed those heinous crimes we have a very clear message: war criminals will be prosecuted and justice will be rendered”
Apart from being meant to show the world public, outraged by the live TV coverage of violence and atrocities, that something was being done, the Tribunal was also meant to serve as another threat to the warlords in the Balkans. The threat that the international community, having been unable or unwilling to prevent war crimes, would at least punish those who committed them. Despite the fine-sounding declarations, in May 1993 not even those who founded the Tribunal believed in the credibility of their own threats.
MADELEINE ALBRIGHT, December 2002, ICTY courtroom
Still nobody thought it would work. They said that there would never be indictees, and then they said there would never be any trials, and then they said there would never be any convictions, and there would never be any sentencing.
Despite the skepticism of the Tribunal founders, the UN General Assembly managed to elect the first 11 judges who made the solemn declaration on 17 November 1993 in the Peace Palace in The Hague, the seat of the International Court of Justice. Immediately after the ceremony, the judges were confronted with the less than rosy reality and the first great battle that the Tribunal faced – the battle for survival.
ANTONIO CASSESE, ICTY President (1993-1997)
When I came here I hoped the Tribunal would start operating right away but then I released that actually we had nothing, zero... There was nothing, zero, there was no rules of procedure, no case, no prosecutor.”
GABRIELE KIRK – MCDONALD, ICTY President (1997 – 1999)
“We didn’t have a budget in the beginning. The UN would give allotments to us for say three months, like you give to a child and say – don’t spend it all in one place. How do you set up a tribunal when you can’t even give contracts to people?! Frustrating.”
GRAHAM BLEWITT, Deputy Prosecutor
“The halls were empty, there were hardly any desks or chairs. But, you know, I expected that to be the case. That was the starting point.”
All signs seemed to show that the prophecy with which his Parisian colleagues saw off Judge Claude Jorda to The Hague would come true.
CLAUDE JORDA, ICTY Judge from 1994 – President (1999-2003)
“...At that time, I was Chief Prosecutor: Very well, Mister Chief Prosecutor, but, you know, fortunately, you will be back to the Court de cassassion very soon, because this Tribunal is never going to work.”
“I knew coldly if I could think in a cold way I knew that we have no chance in succeeding but I thought we should show a lot of enthusiasm and at least work, do whatever we could.”
The judges, however, could do nothing without a prosecutor… and his appointment in the first half of 1994 was blocked by no less than 8 vetoes: five from Russia, and one each from America, Great Britain and Pakistan. The collapse of the Tribunal seemed imminent, but it was forestalled by the nomination of an eminent South African judge, whose appointment no one could oppose, at least not publicly.
RICHARD GOLDSTONE, Chief Prosecutor (1994-1996)
“When I got in the Tribunal in August 1994, it had been almost written off by many well wishers, not by the opponents of the Tribunal. Many people, particularly in the media, had written off the Tribunal as some sort of conscience of the West that it did not intend to work.”
Whatever the founding fathers` and mothers` real intentions, the judges, investigators and other Tribunal’s "pioneers" took their mission seriously and got to work. Deputy prosecutor Graham Blewitt, Australian hunter for Nazi war criminals, had already set up the foundation for the Office of the Prosecutor and launched its first investigations by the time Richard Goldstone came on board. Investigations were based on the materials gathered by the UN Experts Commission, also known as the Bassiouni Commission.
“I can say that the first investigation really commenced in June 94 when the first investigator walked in the door. He was followed by several other investigators, so that by July there was a handful of people here. We made a decision that we would continue the work the Bassiouni commission had done in the Prijedor area.
The war is raging and investigations are conducted far away from the crime scenes, in refugee centers scattered all over the world, where the victims of persecution, deportation, incarceration, torture, rape… are located. The indictments and the accused are nowhere in sight, yet the first courtroom and the UN Detention Unit are hastily being constructed. The eleven judges, who have spent their first year in The Hague drafting the Rules of Procedure and Evidence, are pushing the Chief Prosecutor, who has just arrived, to issue the first indictments as soon as possible.
GABRIELE KIRK – McDONALD
“I was terribly frustrated. because I came to do justice. I had been a judge who had presided over criminal cases, and I came here for that purpose. Although I enjoyed drafting rules, because I had thought that procedure, so I liked that, I did not expect that to be my life’s work with the tribunal.
“The judges were angry and frustrated and I understood that, I felt sympathy for them in not having work being prepared. One of the judges even said he felt embarrassed, he couldn’t go to his club in his home town because his friends laughed at him: What kind of a judge are you? You’re getting salary from the UN and you got no work to do?”
Goldstone had to hurry and sign his first indictment in November 1994, against Dragan Nikolic a/k/a Jenki, the commander of the Susica camp in north-eastern Bosnia. He did this not because of the pressure he was getting from the impatient judges, but for other, more pragmatic, reasons.
“..they told me in the UN in New York: If we did not have an indictment out by November 1994 we wouldn’t get money that year for 1995. Shortly before November there was only one person against whom we had evidence that I was prepared to sign an indictment. He wasn’t an appropriate first person to indict in the first ever international criminal tribunal. But if we didn’t do it we would not have got the budget.”
The first of Goldstone`s indictments may have made the UN bureaucrats in New York happy, but not so the judges in The Hague. In January 1995, they passed a resolution severely critical of the Strategy adopted by the Office of the Prosecutor.
“...he said from the outset very clearly that he would take what he called pyramidal strategy and we thought that it was absolutely absurd, nonsense to start from the soldiers and go up to the generals. I remember I said to him “look, it will take you 20 years to arrest and indict Milosevic, Karadzic and others. Why don’t you start from the top?” He said: “no I will start from the bottom”. There was a struggle between judges and the prosecutor. Huge struggle.”
“Our problem was that unlike Nuremberg, if you look at the Nuremberg record you will find evidence, mainly documentary, the Nazis left documents, they convicted themselves out of their own handwriting. In the former Yugoslavia there was no smoking gun, we had to build cases with witnesses. Who could the witnesses tell us about? They could tell about the people in the camps, the camp commanders. They had no evidence to give us about the orders higher up. So we had to build up the cases from the bottom up.”
Amid the wrangling about the prosecutor`s strategy, an opportunity that neither Goldstone nor the judges wanted to miss presented itself. Dusko Tadic, an obscure café owner and karate instructor from Kozarac, was arrested in Germany. He was recognized in the streets of Munich by Bosnian refugees – former inmates in the camps in Omarska and Keraterm – as one of their tormentors. As Goldstone managed to find enough evidence in the files of the Bassiouni commission to indict Tadic, the procedure for his case to be deferred to the Tribunal by the German justice system was initiated.
CHRISTIAN CHARTIER, Head of Press and Information Office
“On the eve of the very first hearing – deferral hearing in Tadic--, it was the 8th of November 94, the courtroom was not ready. It was not. I remember going home saying “my god we will never make it.” When I came the following morning 4-5 hours later and everything was there, it was carpeted, there was blue on the desk, we had chairs… it was amazing and I had the feeling that miracles can happen.”
In April 1995, the German authorities transferred Dusko Tadic and he became the first inhabitant of the newly constructed UN Detention Unit. Tadic was also the first – and only – accused who was separated from the other participants in the courtroom by a wall of bullet-proof glass during his initial appearance before the Tribunal.
“First we found this overdone. There is already a bulletproof glass between the public gallery and the courtroom so what is the point in having yet one more that implies that the threat to the accused could be coming from the courtroom participant... very unlikely. And secondly something that we just had not thought about, that it was an obstacle to the free consultation between the accused and his defense lawyer. So we said we’ll remove this.”
The first war crimes trial before an international court since the Nuremberg and Tokyo trials began on 7 May 1996 – three years after the establishment of the Tribunal. It generated enormous interest. Two huge marquees were erected in front of the Tribunal for the hundreds of accredited reporters from all over the world. Some fifty seats for the reporters in the public gallery were allocated by lottery, and other reporters followed the events in the courtroom on the marquees via closed circuit TV.
GRANT NIEMANN, Prosecutor
The evidence of the Prosecution will prove beyond a reasonable doubt that the accused Dusko Tadic committed the crimes with which he has been charged, and that it was pursuant to a widespread or systematic attack against the non-Serb population of the opstina Prijedor.
MICHAIL WLADIMIROFF, Defense Counsel
The Tribunal has not been established to satisfy the victims only, but to bring justice to all, including the accused. It should disregard the public cry for a sentence of the first accused to stand trial. On the contrary, it should without dispute conduct a fair trial, whatever the outcome of this case may be.
“I was fully aware that I had two obligations that should not conflict – one to serve the interest of Dusko Tadic the best I could, and on the other hand to give the tribunal a chance. Because it was very easy to ruin it, in the first trial to do everything to have the whole thing collapse.”
GABRIELE KIRK – MCDONALD
On 7th May 1997 the Trial Chamber rendered its Opinion and Judgment, unanimously finding you guilty of serious violations of international humanitarian law...You committed these offences intentionally and with sadistic brutality, using knives, whips, iron bars, the butt of a pistol, sticks and by kicking the victims and tightening a noose around the neck of one of them until he became unconscious.
Would you please rise, Mr. Tadic?
The Trial Chamber sentences you, Dusko Tadic, to 20 years` imprisonment.
GABRIELE KIRK – MCDONALD
“After the judgment had been issued, I was in the hall talking to someone, I said I feel like I was one of the Wright brothers – the two who flew the first airplane in the US, because we did not know whether our rules of procedure and evidence would fly, whether they would work, how they would work. But the plane flew and it landed. There was some turbulence but it did land.”
“Thanks to the first cases, which were not important, but which enabled us to test the feasibility of a judicial system comparable to a national system. This will make you laugh, but you might never know how much we owe to Mister Tadic.”
In July 1995, after a series of indictments against the so-called small fry, Goldstone`s first thunderbolt struck: indictments against the Bosnian Serb political and military leaders – Radovan Karadzic and Ratko Mladic. Goldstone`s move finally made the judges happy, but greatly irked the international mediators who had been negotiating peace plans to end the war in Bosnia and Herzegovina with the accused, particularly with Karadzic.
“Many politicians in a number of countries felt that it was irresponsible to indict Karadzic particularly but also Mladic when negotiations were in the air. It was before Dayton when the first indictment came out. My attitude was – that’s my job. My job is when we have the evidence to indict people and not to withhold indictments or time indictments to coincide with political events on the ground.
It was the first, but by no means the last time when the Tribunal prosecutors were accused of endangering the diplomatic processes and ignoring the political consequences of their actions.
No prosecutor can act that way. I wasn’t a politician, I had no political advisers. I didn’t know what the politicians were doing and for them to expect me to guess what the political ramifications would be - would be ridiculous.”
“On Sunday morning the then Russian ambassador to the Hague came to the Tribunal asking to meet urgently with the president. Fortunately Cassese was on this weekend in the Hague so he came to the Tribunal and he found out that the Ambassador came to request the Tribunal to freeze the indictment against Karadzic. Cassese was in the easy position to say “sorry, it is none of my business. You have to talk to the prosecutor.”
I explained to ambassador Skotnikov that it wasn’t within my power to suspend an indictment, it was possibly in the power of the judges. But I said the judges wouldn’t do it if I don’t ask them to do it, and I won’t ask them to do it.
Karadzic and Mladic have not come to The Hague yet, but they did not go to Dayton in 1995 either and did not participate in the peace talks that ended the war in Bosnia and Herzegovina. The accords were signed in December 1995 by the then presidents of Serbia, Croatia and Bosnia and Herzegovina. Three years later, Slobodan Milosevic was indicted, and Franjo Tudjman and Alija Izetbegovic died before the OTP completed the investigations conducted against them. In addition to Milosevic, three other participants in the Dayton peace talks - Momcilo Krajisnik, the former speaker of the Bosnian Serb Assembly, Milan Milutinovic, the then Yugoslav foreign minister, and Jovica Stanisic, the former chief of the Serbian secret police – have in the meantime come to the Tribunal’s Detention unit. In the course of the talks, there were concerns that the Tribunal might be bargained away as a “sweetener” to a peace deal, or that some of the participants might predicate their acceptance of the agreement on immunity from criminal prosecution. This, however, did not happen. The Balkan warlords turned peacemakers probably felt that they were untouchable, and thus missed their chance to get protection against the actions of the Tribunal.
“The Security Council established the Tribunal based on Chapter VII. The Chapter VII stipulates that the Tribunal be dissolved once peace is restored. Peace was restored in 1995. Fortunately, we’d started functioning… That is to say, if you want to dissolve us, you can, but what you can not do is act under the pretext that it doesn’t work.”
The survival of the Tribunal was no longer an issue, but there was a new battle ahead: to gain respect. Although they were bound to cooperate and to comply with all its orders, the States of the former Yugoslavia persistently ignored the Tribunal, refused to arrest and surrender the accused, hampered investigations, and denied access to documents and witnesses.
GABRIELE KIRK – MCDONALD
My background had been a federal judge where, when I issue an order, it is obeyed. If it is not obeyed, then someone is going to pay the consequences. But in the international setting we did not have that compulsory power.
“On at least two occasions many judges in plenary meetings expressed their frustration and one or two judges I remember said: “Well is there a point in continuing our job? Why don’t we resign?” and I immediately agreed and other judges agreed and then we said let us send a message to governments.”
When she took over as the Chief Prosecutor in September 1996, Canadian Louise Arbour found a handful of the accused in the Detention Unit, without much hope of increasing their number in the foreseeable future. The order of the day were Rule 61 hearings, where the Prosecution presented some of its evidence in the absence of the accused, and the judges were increasingly toying with the idea of holding trials in absentia. Arbour quickly discovered that the battle for respect must be fought on home ground too, in the Tribunal itself.
“What I found was very surprising. It was an institution that I thought in terms of its legal definition was very unaware of its powers and its strength. It behaved very much like an NGO, not surprising in a sense. That’s the community within which it was operating. All its friends were NGO friends. While in fact, because I only read the Statute I thought this was an immensely powerful institution. It was a Security Council Chapter 7 creature. You can’t get any more power than that, and my own attitude from the outset was to try to assert that. To change the mood of the place which was essentially a mood of uncertainty and dependency into a mood of authority and strength and power.”
Instead of pretending she did not have it, Louise Arbour started using the power vested in her by the Security Council. Together with Jacques Klein, the UN administrator in Eastern Slavonia, in June 1997 she organized the first international operation to arrest a person accused of war crimes. Slavko Dokmanovic, the former president of the Vukovar municipality, fell into the trap set by Arbour and Klein. Dokmanovic was accused of being an accessory in the massacre of more than 200 civilians who had been taken from the Vukovar hospital in November 1991. By showing that such operations could be carried out, Arbour wanted to force or to shame SFOR into action. Chance was again on her side.
“One of our investigators was in Prijedor and he was talking to one of the local SFOR commanders who was expressing frustration at the constant obstacle that Drljaca, then local chief of police, was providing to the local SFOR people. The comment was made by the local SFOR commander that if we were able to indict Drljaca, SFOR would arrest him. That SFOR commander did not realize we were on the verge of indicting Drljaca in any event. So, within two days of this statement being made we had an indictment prepared, submitted for confirmation and it was confirmed shortly after that. Louise Arbour stood her ground, and she insisted she would publicly expose NATO if they refused to arrest Drljaca.”
The notorious police chief and the main architect of the Omarska, Keraterm and Trnopolje camps did not survive Operation Tango, carried out on11 July 1997 by British commandos. Drljaca was fishing on the bank of a lake when they came. He tried to resist and was killed in the exchange of fire with the British. The same day, Dr. Milan Kovacevic, who was also charged with genocide, was arrested in the Prijedor Hospital. Apart from the protests of the colleagues of the arrested Dr. Kovacevic, SFOR`s "premiere," did not result in any major upheavals.
Major CHRIS RILEY, SFOR portparol
“Following these events SFOR has deployed sufficient forces to follow the situation carefully and react appropriately to any given situation. Indications are that the situation on the ground remains calm.”
When SFOR realized that WW III wasn’t going to start after they started to apprehend people, that it wasn’t going to involve a lot of retaliations, then SFOR’s confidence to proceed with more arrests was just strengthened. That’s what eventually happened.”
The Detention unit, which initially had only 24 cells, was practically full in the second half of 1997.
THIMOTY MCFADDEN, The U.N. Detention Unit Commander
When I came here, I think I had five. Five on the 1st of July 1997. By December 1997, I must have had very close to 24, if not 24. Now I have 57, including those on provisional release. I have had more than that at times. Because I have transferred some quite recently for enforcement and some have been released. I have an immediate capacity for 70. And I can expand that at any time, as well, very quickly.
In the first ten years, the Office of the Prosecutor issued 114 indictments against individuals responsible for serious violations of international humanitarian law in the territory of the former Yugoslavia. Of the 114, 93 indictees have appeared in proceedings before the Tribunal and 21 – foremost among them Karadzic and Mladic – are still fugitives, featuring in Tribunal and Interpol arrest warrants. So far, 42 accused have been tried before the Tribunal’s Trial Chambers.
MARK HARMON, Srebrenica trial
This is a case about the triumph of evil, a story about how officers and soldiers of the Bosnian Serb army, men who professed to be professional soldiers, men who professed to represent the ideals of a distinguished Serbian past, organized, planned, and willingly participated in genocide or stood silent in the face of it.
GEOFFREY NICE, Lasva Valley trial
As the Court will know, on the morning of the 16th of April of 1993, the small village of Ahmici, lying close to Vitez, was turned red by the flames of its houses that were burnt to the ground and by the blood of its innocent inhabitants who were killed in a massacre, killed by those favoring the interests of the Croats against the Muslims.
ERIC OSTBERG, Celebici camp trial
The crimes are alleged to have been committed in connection with the Celebici camp in the Celebici village in the municipality of Konjic in Central Bosnia, set up in May 1992 to detain persons of Serbian ethnicity from villages surrounding the town of Konjic, captured in the conflict that erupted between Serbs, on one hand, and Bosnian Muslims and Bosnian Croats on the other in the spring of 1992.
THEODORE MERON, ICTY President
If you take into account our work during the last ten years, there is no question whatsoever that our records provide an incredibly effective articulation for the voice of the witnesses and victims.
In the past ten years, over 3,000 witnesses appeared in the Tribunal’s courtrooms. Almost half of them are victims who have come to The Hague to give evidence of the horrors which were visited upon them before the judges, and even more importantly, before the accused.
EMIR BEGANOVIC, Omarska camp prisoner
People were walking around all bloodied, maggot-infested, with pus, they would have 2, 3 liters of pus on their backs, all beaten up like that. 50 percent of the people had dysentery, excrement was 20, 30 cm deep. This is where the people slept and ate.
ABUDULAH AHMIC, Ahmici massacre survivor
Then he told me to take two steps forward. I obeyed, and he shot at me from one meter away, and the bullet entered here and went out here. I just felt warmth and I was spattered with blood. He turned away and I pretended to fall down or, rather, I fell down and remained lying there.
WITNESS “O”, Srebrenica execution survivor
I was trying to hide amongst the people as long as I could, like everybody else. I just wanted to live for another second or two. Some people shouted, "Give us some water first and then kill us." I was really sorry that I would die thirsty.
TOMISLAV VISNJIC, Defense Counsel
There are witnesses whose tale when told is such that the best thing to do is not to ask them anything, but simply let them bring out their emotions in the courtroom and then for us to continue with our work.
GROZDANA CECEZ, rape victim from Celebici camp
I think that I was just getting separated from my body out of sorrow. After that he told me not to say this to anyone, and soon the candle went out and I got up, and then another man came after that. I did not see that one, and he raped me too.
FW, Rape victim from Foca
When I entered in the Tribunal in The Hague, when I saw Dragan Kunarac, it simply was not easy for me. I, if I had enough strength, enough … I would have strangled him right away, just as he was strangling me, cutting me, raping me, killing me, burning me with cigarettes, there`s not a thing he hadn`t done to me.
PATRIZIA WALD, ICTY Judge (1999-2001)
..clash of people who had been in some terrible situations together confronting each other ten years later. The courtroom is charged, I mean, sometimes you feel like electricity in the courtroom, sometimes you feel that if somebody says one more word it may set a spark off and everything will go up. Fortunately it doesn’t happen, people usually stay in control.
DAN MANNING, Investigator
It has metal tag identifying it. It also has what I believe to be hair and human tissue in it. As you can see it was spread out and has shrink a little bit in a washing process but it is the blindfold that you see on the image on the large easel.
HABIBA HADZIC, witness
No, they are not alive. Jenki knows that. I would ask only one thing: to know where they were buried, so that their mother can give them a decent burial. So that I can at least look. To come there where their bones lie, so that their mother can see them. So that I know where they are buried.
WOLFGANG SCHOMBURG, Judge
Is your client prepared to answer the desperate question put to your client by this witness?
DRAGAN NIKOLIC “JENKI”, Accused
As far as her sons are concerned, as far as I heard, and I wasn`t there, they were taken, I think it was on 30 September, with a group of about forty people to Debelo brdo and were liquidated there. Among them were the sons of Mrs. Hadzic, Enes and Bernes.
“Now a judge is not expected to cry in court and there were at least on one occasion, not only me and Mumba, weak people. Mumba and I were probably weak, fragile psychologically. But May who is very strong had tears on his cheeks. So, that means it is devastating. Because, of course, you can’t help sharing what they tell you. The feelings.”
Out of 42 accused tried in the first ten years of the Tribunal, 37 have been found guilty and sentenced. One of the accused has been sentenced to the severest penalty there is – life imprisonment – and others were sentenced to terms of imprisonment of 569 years total. The sentences range from 3 to 46 years and the average sentence for those sentenced to limited terms is almost sixteen years.
CLAUDE JORDA, Judge (Lasva Valley trial Judgment)
If armed conflict is unavoidable, those who have the power to take decisions and those who carry them out must ensure that the most basic rules governing the law of nations are respected.
General Blaskic, you showed no respect for these rules and this is something which you know. Consequently, the Trial Chamber sentences you to a prison sentence of 45 years.
FLORENCE MUMBA, Judge (Foca rape trial Judgment)
You abused and ravaged Muslim women because of their ethnicity, and from among their number, you picked whomsoever you fancied on a given occasion.
This behavior calls for a severe penalty commensurate with the gravity of your crimes.
The Trial Chamber therefore sentences you, Dragoljub Kunarac, to a single sentence of 28 years imprisonment.
ALMIRO RODRIGUES, Judge (Srebrenica trial Judgment)
You are guilty of the persecution suffered by the Bosnian Muslims of Srebrenica. Knowing that the women, children and old people of Srebrenica had been transferred, 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.
I think we are here to try people and to do justice. This is our primary goal. But our work, our determination of facts, our elucidation of facts creates the sort of record. I think that future historian who would want to write the record of what happened in those years will find more than he or she will want to read.
The Tribunal convicts and... acquits. To date, five of the accused were found not guilty and were acquitted.
PATRIZIA WALD, Judge (Ahmici trial Judgment)
Accordingly, the Appeals Chamber REVERSES the convictions of Zoran Kupreskic and Mirjan Kupreskic for persecution under count 1 of the Amended Indictment and FINDS Zoran Kupreskic and Mirjan Kupreskic not guilty on this count.
Antonio Cassese was presiding judge of the Chamber which, previously, found three Kupreskic’s guilty of war crimes.
It’s a good sign that the Tribunal works very well, namely that I mean, five judges can decide, unanimously, that the three judges unanimously were wrong.
We have also developed for the first time since Nuremberg a credible body of jurisprudence, case law, developing, articulating, specifying legal principles in a way that national jurisdictions can and will benefit from. So the greatest legacy of this tribunal when we eventually finish our work will be in this body of jurisprudence that we will leave to all courts - international and national.
The defense counsel, who since the Tribunal started have been fighting for the "equality of arms" with the Prosecution, have undoubtedly given their contribution to this legacy.
At the very, very beginning I felt equal to the prosecutors in terms of knowledge of the law. Nowadays there might be a problem because lawyers come and lawyers go, and prosecutors stay, so their knowledge within the office of the prosecutor accumulates.
TOMISLAV VISNJIC, Defense Counsel
Equality of arms is a phrase which is used very often here, both by the defense and the chambers, and eventually by the Prosecution too. It is obvious that the gap is closing, which means that it was very big at the beginning of the Tribunal, favoring the Prosecution.
At the very beginning no expert was inclined to assist the defense because you were defending a war criminal. Being a prosecutor, it was honorable to assist the tribunal. Nowadays it has changed, the defense has more proper access to experts, lawyers, law professors and so on. So it’s more in balance now. In those days I felt not equal to the prosecution in resources, money. Nowadays I think it’s more balanced, because it is not much better for the defense, but it is less for the prosecution, so they went down and therefore it is more balanced
While in the courtrooms the horrors and trauma of the wars in the former Yugoslavia are being relived, in the UN Detention Unit the erstwhile enemies have achieved reconciliation.
There was a discussion about the fact that this institution, the Tribunal, should establish a lasting peace in Bosnia and Herzegovina through us. We sat down together later and realized that we have reached the lasting peace here, but what really worries us is how those guys down there in Bosnia will do it.
THIMOTY MCFADDEN, Detention unit Commander
There is no apparent animosity between detainees of different ethnic backgrounds that are currently in the detention unit. They support one another in their daily lives. I think the reason for it is that, one, they are all facing the same judicial process, so they have the same problem, albeit for different reasons. They share that information with one another. So, it’s through those things that this reconciliation, or apparent reconciliation, takes place.
And while among their compatriots in the former Yugoslavia, denial and myths of innocence and victimhood still reign supreme… in the Detention Unit there is a growing willingness to confess to crimes and one`s responsibility for them.
BILJANA PLAVSIC, 17 November 2002
I have now come to the belief and accept the fact that many thousands of innocent people were victims of an organized, systematic effort to remove Muslims and Croats from the territory claimed by Serbs. At that time, I easily convinced myself that this was a matter of survival and self defense. In fact, it was more – our leadership, of which I was a necessary part, led an effort which victimized countless innocent people.
The admission of guilt by Biljana Plavsic created a large crack in the wall of denial. After her, in the first half of the year when the Tribunal celebrates its tenth anniversary, eight other accused persons pled guilty, on the basis of plea agreements with the Prosecution: as many as in the nine years before.
This may give the victim more than finding of guilt when the accused time after time after time proclaims that he is innocent. In other words this is a departure from denial. He says: yes I did it, yes I am sorry, I am very sorry that I have committed those crimes. So morally this is very significant.
The Tribunal, its indictments, trials and judgments did not deter some of the most terrible crimes, such as the massacre in Srebrenica in July 1995 and the mass deportations and killings of the Kosovo Albanians in 1999. The culture of impunity struck deep roots in the Balkans; among other things, they fed on the fact that the international community tolerated for a long time the Balkan warlords and their blithe disregard of the Tribunal. As early as 1998, Louise Arbour tried in vain to begin on-site investigations, but Belgrade persistently denied access to her investigators, claiming that the events in Kosovo were not under the jurisdiction of the Tribunal. In January 1999, two days after the first reports of the massacre in Racak hit the world headlines, Arbour showed up at the Macedonian-Yugoslav border.
LOUISE ARBOUR, 18 February 1999
"I entered the custom post and asked to speak to the person in charge. I spoke to an officer who identified himself only by a badge number and he told me he had authority and knew who I was - I repeated to him that I was the prosecutor of the war crimes tribunal, that I had a mandate under Chapter 7 of the U.N. charter, that I was entitled to enter all the territory of the former Yugoslavia to conduct investigations and that he should let me in. He told me that I needed a visa and I could apply at the embassy in Skopje".
“It felt like a total failure, total defeat. I stayed on the border, at the hotel nearby for 2 or 3 days talking to all kinds of people, trying to negotiate my way in. I came back to the Hague almost ready to write a letter of resignation. And yet when I arrived in my office in The Hague, the staff were lined up applauding. This was viewed from the outside as a great success moment of the Tribunal, a moment of force and of visibility. This confrontation at the border was immensely important to explain to the world the work of the Tribunal.”
Armed conflict in Kosovo opened up a direct route for the OTP to the very top of the chain of command, headed by the heretofore "untouchable", Slobodan Milosevic. During the wars in Croatia and Bosnia, he was the president of Serbia, which, as he proudly insisted, "was not at war". This time, however, he found himself in the middle of a double war: the internal armed conflict in Kosovo had resulted in the external NATO intervention. There was no doubt anymore that Kosovo, and Milosevic, were under the jurisdiction of the Tribunal. The fact that this coincided with the air strikes, claims Arbour, does not mean that NATO played any role in her investigation.
“I never received instructions from NATO. I never sought instructions from them. I certainly never asked them what do you think about the Milosevic indictment now or tomorrow or in three weeks, would it be good or bad? My guess is that if I had asked they would have told me to do nothing. Mostly because I believe that they don’t like the uncertainty of a process that they cannot control.”
Just as Goldstone when he signed the indictment against Karadzic and Mladic, Arbour did not try to guess the political consequences of the indictment against the head of the state at war with NATO.
“I felt very strongly that the Security Council had given me a mandate. They knew what I was doing. I was doing exactly what they told me to do. They could change that mandate any time. They could stop me, they could give an amnesty to Milosevic. They could tell me to stop. They could change the terms of the Statute. They could take Kosovo out of it. They could do anything they wanted if they felt that an action on my part along the lines of what they told me to do would provoke WWIII. That was their problem, not my problem...
Her problem was the possibility that NATO could, as part of their "exit strategy" for Kosovo, offer Milosevic immunity against criminal prosecution or some kind of a "golden exile".
“The question of the possibility of Milosevic being put out of reach of the Tribunal was a huge concern for me. I have no information but I assumed that part of the exit strategy might have involved either an amnesty, which frankly, I think, would not have been binding on the Tribunal, only an amnesty issued by the Security Council could have had legal effect. But I was worried about a deal that would make him more out of reach, would make it more difficult in reality to move forward. So I figured, certainly from that point of view, that the sooner we move the better.”
LOUISE ARBOUR, 27 May 1999
On May 22, I presented an indictment for confirmation against Slobodan Milosevic and four others charging them for crimes against humanity, specifically murder, deportations, persecutions and violations of the laws and customs of war.
“The reaction I got was, as is usually the case, the first reaction was from the press and the press was overwhelmingly positive. And therefore the political response was also very positive. To me, that’s quite inevitable. I think that if the reaction coming out of the media had been negative and so on, I am sure that I would have heard in no uncertain terms: what a foolish thing I have done, and how dare I go alone.”
When she announced the Kosovo indictment, Louise Arbour stated that this was not her last word on Milosevic`s responsibility for the crimes committed in the territory of the former Yugoslavia. In September 1999, Arbour left the Tribunal, leaving to her successor the task of finalizing the Milosevic case with the indictments for Croatia and Bosnia and Herzegovina.
CARLA DEL PONTE, Chief Prosecutor
So, my urgent and formal priority was to investigate Milosevic’s responsibility. I must say that the team I’d set up to conduct this investigation didn’t believe that we would be able to prosecute Milosevic, but they were motivated enough that either way, we would be able to use this towards other investigations.
Aware of the fact that there was no chance that she would be able to bring the indicted head of state before the Tribunal while he was still in power, Del Ponte started getting ready for the post-Milosevic period. She established contacts with some of the future leaders in Serbia, primarily with the leader of the democratic opposition, Zoran Djindjic.
CARLA DEL PONTE
I was able to meet with Djindjic in private. It was totally secret, no one was supposed to know. Here, in the office, nobody knew about it, it happened actually during a week-end when I went to Tizan, to Lugano. On Saturday, we met at the police station in Lugano. Naturally, no one knew him, so we were able to stay there without being disturbed in the office of the police chief. We stayed for some three or four hours, we were there, we had a discussion and I should say that I had an immediate favorable impression of Mister Djindjic’s personality. I remember that after this four hour meeting, Mr. Djindjic told me, promised me that Milosevic would be transferred to The Hague.
SCHEVENINGEN, 28/29 June 2001
CARLA DEL PONTE
I remember, we were here, we celebrated, we opened a bottle of red wine which, I must say, was not good, we had paper cups. It was people from the team. It was our way to relax after this hard work. I should say that I was very tired. It was an incredible day for me and I was very satisfied that Milosevic would finally be tried.
INITIAL APPEARANCE, 3 July 2001
I consider this Tribunal false Tribunal and these indictments false indictments. It is illegal not to be appointed by the General Assembly so I have no need to appoint counsel to the illegal organ.
Now, do you want the indictment to be read out or not?
“That’s your problem”
After the judges left and the public gallery was emptied, Slobodan Milosevic was brought back to the courtroom. Carla Del Ponte was waiting for him at a small table set in the middle of the empty courtroom. Just as she did with every accused person, she offered him the chance to present his version of the events described in the indictments in an interview with her investigators, if he wished to do so.
CARLA DEL PONTE
He didn’t take it well at all. I thought that he felt he was still a president, because he looked at me with disdain. He was very aggressive. He told me that he’d examined the rules of procedure in detail and that he knew very well he could refuse to answer or even remain silent and that he was going to use his rights. Furthermore, he started to repeat what he said during the audience that he did not recognize this tribunal and, in any event, he did not recognize the prosecutor. I must admit that I was pleased that I could tell the security guards to escort him out.
TRIAL OF THE CENTURY: 12 February 2002
CARLA DEL PONTE
Today, as never before, we see international justice in action. This Tribunal and this trial in particular give the most powerful demonstration that no one is above the law or beyond the reach of international justice.
The evidence will show that the accused had a central role in different although closely related joint criminal enterprises, each involving commission of various crimes under the Statute. The issue is or may be: Did he know they were happening? Of course he did.
You said here yesterday that my image was present through all that, and I tell you that it is the image of the neo-Nazism which tore Yugoslavia apart and it is superimposed on the crimes committed in Croatia, Bosnia and Kosovo. The specter of new colonialism is floating over it, and my image can float only with pride for the resistance offered to this new colonialism.
In the year when it celebrates its tenth anniversary, as the “the trial of the century” continues, as an awe-inspiring group of a couple of dozen generals from all the warring armies, presidents, prime ministers, secret police chiefs and other accused holding the highest offices await trial in the UN Detention Unit… the Tribunal faces a new great challenge: the battle for time. Symptoms of "Tribunal fatigue" become more and more apparent among some members of the international community.
CARLA DEL PONTE
Already in 2002, during our informal meetings with the Security Council, we would be asked how much longer our activity was going to last. So, we began to feel the pressure and it reached the peak in 2003.
“The expense of running the tribunal is not insignificant but it is the best investment that the international community could make toward establishing peace and reconciliation in the Balkans consistent with notions of justice and without justice that peace and reconciliation will not be achieved.
Faced with the political and financial pressure of the international community, first and foremost by some of the powers which have supported it until now, the Tribunal has set a tight schedule for the completion of its work. The OTP must complete about a dozen on going investigations against 30-odd suspects at a "very, very high level of responsibility" by the end of 2004. All first instance trials – about forty of them, if all the accused are arrested on time – should end by the end of 2008. After that, the Tribunal would have two more years – before putting the key in the lock – to conclude all the appellate proceedings.
People who are waiting, hoping that we would close our doors before they are arrested and tried - are making a big mistake. Because we will not close our doors before the principal offenders have been tried.
When the UN SC set up the ICTY, it was a statement to the victims: we care about you. Then indictments were issued against perpetrators, particularly against Karadzic and Mladic. They must have felt: now things are happening. Then of course when those warrants of arrest were not enforced, I can just imagine how the feelings of victims must have been too terrible for them. This is a callous way to treat victims. It is almost playing with their feelings and allowing political decisions to get in the way of morality and justice
In addition to its exit strategy, the OTP has set up its transition strategy which should make sure that the ending of their investigations will not mark the return of the era of impunity.
“This evidence vault contains all of the evidence that the prosecutor has gathered during the course of investigations since 1994. And what the prosecutor proposes to do with all of this material when we finish bringing out all of our indictments is to review the material that relates to perpetrators and suspects that have been identified during the investigation process.
It’s our intention then to put the relevant information into dossiers and we will then forward those dossiers to the appropriate law enforcement agencies in the Former Yugoslavia. The idea being that they take over the responsibility for investigating those low level perpetrators and bringing prosecutions against them if the evidence is sufficient.
So, in other words, all of the evidence that we’ve gathered, that we haven’t used to prosecute individuals, we will hand that evidence back to local authorities in the former Yugoslavia.”
“Were it not for the Tribunal, we would perhaps still be discussing whether Srebrenica happened or not, whether the eight thousand people who were killed ever existed at all. All that would be in question were it not for the Tribunal. Keraterm, Manjaca, Trnopolje, all those camps, the crimes in Visegrad, the crimes in Foca, in many other places, in Celebici, would be in question. Were it not for the Tribunal, all that would be in question. The Tribunal has therefore undoubtedly played an extremely positive role. In fact, the only positive role, having in mind the way in which the international community treats what happened in the former Yugoslavia.”
The break down, the death of Yugoslavia was an earthquake in that country and in the region itself. I think ICTY was an earthquake in international law of the same order of magnitude in terms of the wave that it has created. I think ICTY has created a point of no return in accountability, in the end of the culture of impunity and world expectation that military and political leaders must be made to account for their criminal actions. There will be debates as to whether any particular decision was correct or incorrect in law but that will never displace the legacy of the fact that it succeeded against most expectations at the outset.