WAR CRIME AND PUNISHMENT

What the United States could learn from the Milosevic trial

By Guy Lesser
Harpers Magazine
January 2004

 


I love it whenever liberals
don't like something, they call it "criminal" . . .
     Late-night radio talk-show caller, February 11, 2003

What is most disconcerting about the proceedings currently underway at The Hague, which began a year ago this past February and are likely to continue for another two years or more, is the disjunction between what you see before you and the events being addressed: a decade in which a country's long-dormant potential for violent ethnic hatred became the central fact of its existence, many thousands of its citizens lost their lives, millions lost their homes and property, and many hundreds of thousands were either forcibly displaced within what had been a stable state or condemned to exile. But here all is calm and orderly. The room is brightly lit, and in contrast to more traditional courtrooms there is none of the usual mahogany majesty or cathedral scale to dwarf the visitor or to imply the traditional pieties that the Law is as eternal as Truth and Reason. What you see instead is more like a conference-center meeting room in which a group of professionals are routinely going about their jobs, Even the bulletproof glass wall, which screens visitors such as myself from the proceedings, seems almost decorative, lending to the courtroom space the suggestion of an old museum diorama or a giant, waterless aquarium.

The defendant, Slobodan Milosevic, Yugoslavia's former leader, arrives each morning immaculately groomed. He favors dark blue, wool business suits of conservative British cut, freshly ironed blue or white cotton dress shirts with French cuffs, and silk ties, in either vivid maroon or red-white-and-blue regimental stripes. His black shoes are meticulously polished, his white hair carefully combed and recently cut. And his black leather Hermes briefcase is invariably well stuffed in preparation for the day to come, since he has chosen to appear pro se and is enthusiastically waging his own defense a situation that is unusually challenging for both his judges and his prosecutors, who must afford him a "fair trial," 1 but seems very much to the liking of "the Accused," as Milosevic is often termed.


TORN POSTER of Slobodan Milosevic, Belgrade, 2001

Before going to The Hague, I had followed the proceedings on' a regular basis, either by watching live webcasts at 3:00 A.M. on the Internet or by downloading trial transcripts when they appeared on the U.N. website a couple of weeks later. As a form of reality television, the trial is, to put it plainly, a bit of a slog. Occasionally, there is a day when a witness gives as good as or better than he gets under Milosevic's blunt but frequently effective cross-examination. And many of the so-called crime-based witnesses (often farmers from tiny villages) tell utterly harrowing stories of narrow escapes from death squads and of helplessly watching their sons, daughters, and parents being summarily executed. There have even been a few insiders (or "co-perpetrators" of Milosevic's "criminal enterprise," to employ the language of the indictment) who have given true-life cloak-and-dagger details of how guns and money made their way from Belgrade to either nationalistic local militias or the sinister paramilitary groups responsible for most of the decade's worst dirty work. But ultimately the most interesting challenge in watching the proceedings is less about trying to sort out the daily testimony as it is presented by the prosecutors and more about trying to size up Milosevic as a man and to ponder the enduring human capacity for evil. For as you watch Milosevic conducting his own defense, peppering every witness with minutely detailed questions regardless of how distant or unimportant the witness may be to the issue of Milosevic's own part in events it is hard to avoid concluding that here is someone (1) temperamentally incapable of delegating the smallest task, (2) utterly obsessed with knowing every minor aspect of just about everything, and (3) remarkably jealous of continually maintaining total control over whatever he may be doing, whatever it might be. 2  Fortunately for Milosevic, nothing he says or does in the courtroom when acting as his own advocate will affect the judges in any way in their final assessment of the case's "evidence."3 But one can glean clues to his personality from the pro forma way in which he usually greets the crime-based witnesses, particularly those whose stories are the saddest. "I am sorry for what happened to you," he'll say, in a harsh baritone. Then, virtually without a pause, he'll add, "if it happened to you."

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (lCTY) was established in May 1993, after nearly four years of horrific news coverage fueled an impassioned worldwide public consensus that it was imperative for the international community to do something. Almost three years of diplomatic initiatives, U.N. special reports, various ultimatums, and the imposition of sanctions had failed to have any appreciable effect on the conflict in Yugoslavia, or, evidently, to make much of an impression on Yugoslavia's political and military leaders. When it became clear that neither the UN. nor NATO was willing to mount an invasion force to impose peace, the United Nations Security Council passed Resolution 808, setting in motion the process for establishing an ad hoc tribunal to go after as criminals those responsible for violations of International Humanitarian Law in Yugoslavia. 4 It seems unlikely that initially anyone believed the top leadership of Serbia or Croatia would be brought to trial. Instead, it was hoped that the threat of prosecution could be part of a strategy that might put effective pressure on the parties to start complying in a more wholehearted way with the will of the international community. But this first tribunal began to take on a life of its own and paved the way for establishing other IHL courts under the U.N.'s auspices. In November 1994 the Security Council passed Resolution 955, setting up a second, closely related ad hoc tribunal to deal with events in Rwanda (with jurisdiction over appeals from the two tribunals vested in a shared appellate division). And in the years since, the U.N. has set up other additional tribunals for East Timor and Sierra Leone. These have been created on a slightly different model than that of the Yugoslavia and Rwanda tribunals, the thinking being that justice would be better served if the courts were located within the country where the conflict had taken place and if at least some of the judges were nationals of the country concerned. 5

The ICTY is divided into three wholly separate, mostly harmonious entities: Chambers; the Office of the Prosecutor (OTP); and the Registry, whose function is not unlike that of a Clerk's Office in an American court but which also oversees many areas of responsibility usually well outside the umbrella of a national court's operations, such as running the legal-aid program by which almost all defendants get legal counsel, seeing to all aspects of the welfare of detainees on trial, and administering nearly every aspect of the Tribunal's relations with witnesses, including protection measures and travel. In general, the prosecutors have received most of the mainstream media's attention, beginning with Richard Goldstone, the influential and charismatic South African Constitutional Court justice, who took a leave of absence from his post to accept an appointment as the Tribunal's first prosecutor. Goldstone had the shrewd sense to know that if the Tribunal did not remain in the news, priming the world's indignation, the will of the international community to see the Tribunal become operational was almost certain to flag. Chambers and the Registry, which both tend to be comparatively reticent, may not always see matters from quite the same viewpoint as the Tribunal's prosecutor, whose statements, more often than not, tend to be what are quoted by journalists.

During the ten years the ICTY has been in existence, it has completed, against many less celebrated defendants, a score of trials that are bound to have lasting importance, first in establishing the specific judicial facts of what happened in Yugoslavia between 1991 and 2000 but also (and potentially of far greater importance) in establishing exactly what kind of conduct within the context of armed conflict actually constitutes, for example, Genocide, Crimes Against Humanity, and Grave Breaches of the Geneva Conventions. 6

In addition, the cases that the Tribunal has decided are beginning to create a body of specific blackletter law 7 and to provide some general guidance about just who, in addition to those who have actually been physically involved in committing atrocities, may be held personally accountable for IHL crimes either because crimes were committed on their orders; because they are deemed accomplices on the basis of their assistance to those directly involved before, during, or after events; or under some theory of "command responsibility," 8 which, as a matter of far-reaching legal precedent, may develop into the Milosevic case's most significant and controversial issue.

In terms of the sheer quantity of information that is freely made available, in remarkably rapid time, it is difficult to complain about the ICTY, which puts any U.S. court to shame. You can readily access all 30,000 pages of the transcript of the trial's first eighteen months (though a comparatively small number of pages are redacted to preserve the confidentiality of "protected witnesses," who are believed to be in some imminent personal danger for coming to testify at trial) as well as the half-dozen decisions made by the Tribunal's appellate chamber in the case, especially those from January and February 2002, which determined that Milosevic's trial would be held in a single long proceeding instead of being divided into two shorter ones, as originally planned. You can obtain a copy of the three-part, 163-page indictment, and with it the prosecutors' initial 50-page pretrial brief concerning the conflict in Kosovo between January and June 1999 as well as their 306-page pretrial brief concerning earlier conflicts in Croatia and Bosnia between 1991 and 1995.

Also available are any of roughly 200 decisions and orders that the Milosevic trial court has already issued, some on comparatively minor questions such as scheduling but many others of crucial importance (such as that concerning the events contributing to Yugoslavia's disintegration, which the court has already decided to accept as "adjudicated facts"). Then there are the judgments of other Tribunal cases. Among the most important of these is Prosecutor v. Dusko Tadic, decided in May 1997. Tadic, a zealous Bosnian Serb nationalist, was a small-town cafe owner who worked as a policeman following the Serb takeover of the Prijedor District in 1992. During his off-hours, he was a regular visitor to the three detention camps in the area Omarska, Keraterm, and Trnopolje and participated on numerous occasions in sadistic beatings and torture of the mainly Muslim inmates of Omarska, the most notorious of the three camps. He was also involved in the local "cleansing" campaign, though it is unclear to what extent. The case remains important to tribunal jurisprudence because it dealt with such fundamental issues as the "legality" of the Tribunal's creation, the logic of its jurisdiction, and the protection of witnesses. The Tribunal also had to determine, for the first time, the basic narrative of what had happened in Yugoslavia. 9

The problem for anyone attempting to follow the Milosevic trial is that institutional "transparency" does not necessarily imply that whatever is made available to the public is also readily intelligible. The daunting volume of what is available can seem anything but helpful if you are seeking to make some general sense of the Tribunal's work and mission as a whole, and particularly if you are trying to understand where the enterprise of international criminal justice might be going. I suspected there was much about the current rapid development of this area of law that I was failing to grasp, at least beyond a general sense that its importance had been growing at a surprising rate and that the Yugoslavia Tribunal had been a catalyst. The only thing to do was to visit The Hague, where the Tribunal is located, and see if any of the people who worked there would speak with me. My hope was that if I could get a handle on some of the more practical concerns in the decision to try Milosevic, I might begin to get some sense of the world's future prospects for bringing its many other Milosevics to justice.

II


A criminal trial is anything but a pure search for truth. When defense attorneys represent guilty clients as most do most of the time their responsibility is to try, by all fair and ethical means, to prevent the truth about their client's guilt from emerging.

  Alan Dershowitz, Reasonable Doubts (1996)

In the week before my departure I was determined to seek out at least a few of the many Americans who had spent time working at the Tribunal. Like other organs of the United Nations, the rules that apply to the ICTY provide that no two of the current sixteen permanent judges may be nationals of the same country. Once I reached The Hague, I hoped, might be able meet the current American judge at the Tribunal, Theodor Meron, a distinguished scholar who has taught International Humanitarian Law for many years at the NYU law school. But since a number of people I had spoken to had claimed that the Tribunal's existence, at least during its early years, had been possible only because of strong albeit far from unanimous behind-the-scenes U.S. support (especially from Madeleine Albright, first at the U.N. and later as secretary of state), I was also, accordingly, eager to meet Meron's American predecessors. The most recent had been Patricia Wald, for twenty years one of the most respected judges of the Washington, D.C., Federal Court of Appeals. Before Wald, there had been Gabrielle Kirk McDonald, a former federal court trial judge from Texas, who had been one of the first eleven judges appointed to the Tribunal in 1993 as it began operations. Like Meron, McDonald had been president of the Tribunal (from 1997 to 1999), which gave me ample reason to hope her overview and knowledge of the first years would be enlightening. 10

Since McDonald was coming to New York for a few days, she agreed to lunch, suggesting that the dining room of the Regency Hotel on Park Avenue, called The Library, was both quiet and congenial at midday. I knew comparatively little about McDonald, except that much of her career had been spent as a top civil-rights litigator in private practice in Houston, specializing in class-action lawsuits, and that when she had been appointed to the U.S. District Court in 1979, at the tender age of thirty-seven, she was only the third African-American woman to be appointed to the federal bench, and the first from Texas. Since I had worked as a law clerk, after graduating from the Yale law school in the early 1980s, I hoped that my background might help me avoid at least a little of the underlying condescension that experts usually find unavoidable in their conversations with lay people about specialized subjects.

The Library, as it turned out, was aptly named if your idea of libraries includes a large color television (with the sound turned down, tuned to CNN) and you regard books with the disdain implicit in the professional decorator's terminology, which refers to them as "furniture." Still, it was, as McDonald had said, the perfect setting for conversation. While I waited, Saddam Hussein flashed on the screen above me and mute commentators standing in front of brightly colored maps of the Middle East tried to explain to viewers where in a general way Iraq was located. 11

McDonald is tall and slim and possessed of an almost offhand elegance. The hint of cultivated Texas mixed into her accent gives her voice an agreeable music. I asked about the Tribunal's first years, and she told me that the key had been the remarkable enthusiasm of the small and very able group who had taken posts at the start. Nearly everyone involved, she explained, believed that they were part of an "important and noble enterprise" they were determined to make work. When she'd first arrived, the Tribunal had only the temporary use of a small office in the Peace Palace 12 (where the U.N.'s International Court of Justice is based), and a lengthy search for a suitable prosecutor had been the first major obstacle to be faced. Ramon Escovar-Salom, the public prosecutor of Venezuela, had accepted the job (in October 1993) but changed his mind less than four months later. Accordingly, with no immediate prospects for any defendants being transferred into the custody of the Tribunal, the group of eleven judges, including McDonald, had begun their work by drafting detailed rules of procedure, which would embody contemporary international standards for fair trials and humane detention of persons accused of crimes. This was a momentous undertaking. The only predecessors of the Tribunal had been the Nuremberg proceedings (along with a string of important war-crimes trials that followed, held in Germany under American auspices between 1947 and 1949) and a trial somewhat similar to Nuremberg held in Tokyo of Japanese leaders. In both of these cases, the rules of procedure adopted had been fairly cursory and, at least at the Tokyo tribunal, had vitiated any claim to basic trial fairness. 13 McDonald enlisted the help of the U.S. Justice Department to produce a first draft, and although this initial version of the rules seemed a reasonable starting point to her judicial colleagues from Italy, Costa Rica, Nigeria, China, Canada, Australia, Pakistan, Egypt, Malaysia, and France their first impression, she admits, was, "It's so American."

As for the length, complexity, and costs of trials at the Tribunal, a recurring subject of criticism, McDonald pointed out that, in any international trial, some costs, such as translation of both documents and live testimony, are obviously unavoidable. 14 We talked about what she had been proud of during her tenure at the Tribunal. She explained that, although rape when carried out on a widespread and systematic basis had been specifically made part of the statute that created the Tribunal, and had been defined as a "war crime," prosecutors had not initially paid much attention to crimes against civilian women per se. This, said McDonald, is no longer true, and the Tribunal's cases are increasingly regarded as significant and pioneering precedent for what is now emerging as a significant imperative of International Humanitarian Law.

III


Currently, our Tribunal has approximately twenty investigators for all the crimes over which it has jurisdiction. . . . This, I believe, speaks volumes for the tremendous problems with which we are confronted.

  Judge Antonio Cassese, president of the International Criminal Tribunal for the Former Yugoslavia, November 14, 1994

Whatever your expectations, the anonymous, three-story, rough white-brick building housing the ICTY is almost certain to disappoint. The Tribunal's immediate neighborhood, about half an hour's ride on the Number 10 tram from The Hague's historic center of cobbled streets, brick churches, bicycle paths, canals, parks, palaces, small shops, embassies, museums, elegant Old World government buildings, and understated luxury hotels, is a slightly run-down, vaguely suburban, mixed-use zone of residential, commercial, and industrial structures. You might be in nearly any small and dreary city nearly anywhere in northern Europe.

Originally built in the Churchillplein Plaza as the corporate headquarters of the Aegon Insurance Company, the ICTY's building dates from the early 1950s and suggests a grudging admiration for the neoclassical simplicity of the Italian Fascist period. Probably the most immediately striking feature of the Churchillplein is not the Tribunal but the Congress Centrum's football-field-size fountain and the animated advertising sign hawking stage shows like Disney on Ice and The Sound of Music. The Tribunal, in contrast, takes low-key discretion to an extreme, and the only hint of what goes on inside is an enormous satellite dish atop its roof and the pale blue U.N. flag hanging listlessly on a flagpole in front of the building's tall, black iron gateway. It is easy to miss.

In theory, any interested member of the public is allowed to attend Tribunal trials. But security is tight. You present yourself at a guardhouse some twenty feet away from the building, show your passport to a uniformed U.N. officer sitting in a booth, and obtain your blue or pink ticket, duly stamped with the date and indicating your status as VIP, Press, or Visitor (or some combination thereof). Then you walk through a metal detector sensitive enough to be triggered by no more than the combination of a watch, a small belt buckle, and the metal eyelets of shoes, so you must empty your pockets and begin the whole ritual again.

Once inside the building, you undergo security screening a second time before you are allowed to go upstairs to the visitors' gallery of Courtroom One, which is occupied most mornings by the Milosevic trial. There are usually few spectators present from less than ten to around fifty, depending on whether something new or noteworthy is going on. All Tribunal courtrooms are rigged with cameras in surveillance style, and most offices in the Tribunal building have televisions that allow access to the court's closed-circuit system. 15 Almost no one, except the members of Milosevic's Belgrade defense team, stays for the duration of the session. At the entrance, you will see a rack of radio transmitters, and unless you are fluent in English, Bosnian/Croatian/Serbian "B/C/S," as it is called here, with a nicely politic sense of recent history and Albanian, you'll want to take one. Earphones neatly coiled are to be found at each of the gallery's hundred or so chairs.

Earphones, you soon realize, are worn by everyone, not just visitors. Although translators remain unseen at the Tribunal they occupy a booth with one-way glass on the left wall of the courtroom most often it is their voices that you, the judges, and the prosecutors hear. This is a matter of some significance, since in a trial setting much has traditionally turned on a judge's opportunity to experience and assess "the demeanor" of a witness and how he or she sounds when speaking. 16

The day of my arrival should have been an especially exciting one to watch. One of the case's more highly placed political "insiders," officially known at the time only as "Witness C-061," was beginning the third of eleven days of , testimony about the founding within Croatia of the separatist Serb statelet of Krajina in the early 1990s. The hope was that Witness C-061 might provide crucial evidence for establishing both Milosevic's personal involvement as a matter of fact and his "intent" as a matter of law. The prosecutors contend that the so-called Log Revolution the harbinger of the rapid fragmentation of Yugoslavia into increasingly polarized, antagonistic ethnic groups and a decade of savage conflict was not a spontaneous grass-roots movement but a carefully planned set of events, fueled by propaganda and orchestrated on Milosevic's orders or, at the least, carried on with his knowledge, approval, and help. Milosevic's control of Serbia's media, and his use of it as an instrument of state for demoralizing his enemies while bolstering the morale of combatants, as well as a means of persuading his constituency, is an important part of the prosecutors' case. In the event that the trial court decides that Milosevic's propaganda campaign constituted conduce they deem criminal in nature, a great many thorny issues about the relationship between a country's press and its government's war effort will need to, be more squarely faced than they have been in the past. It is important to bear in mind that prior to and during Yugoslavia's period of conflict, the rhetoric of Belgrade, presented to its citizens in the form of news reports and government intelligence, suggested that Croatia was mounting a campaign of genocide against all ethnic Serbs, and that the ethnic Muslim population of both Bosnia and Kosovo were "terrorists" closely allied with such radical foreign groups as the mujahedeen.

Trials often have been compared to plays, but the public visitor to virtually any proceeding involving a serious violation of International Humanitarian Law will experience something more like a "set visit" to a major Hollywood movie. You will see, even over the course of several lengthy days, only a small, frequently dull or mystifying piece of a long and complex story, and unless you've read the script with care (which is to say, the indictment), you will have absolutely no idea where the piece you've seen belongs. In the Milosevic case, the last-minute joinder of three separate indictments has made it exceedingly difficult for an observer to follow the trial's basic narrative. It was determined that Kosovo, the first of the three indictments filed (chronologically, the historic third act of Milosevic's political career), should be the first part of the prosecution's case; the case against the accused for crimes committed in Croatia (Act I) and Bosnia (Act II) would be presented afterward. Witness C-061 figured at a comparatively early stage in the chronology of Yugoslavia's breakup, so the idea apparently was to use his testimony about his role in helping to create and run Krajina, and the contact he'd had with "Belgrade," to show that Milosevic had instigated or been an early party to events. Since Milosevic has consistently claimed that he was defending or supporting his fellow Serbs against ethnically motivated violence, and not leading a campaign instigated by Serbs against others, a number of journalists were optimistically predicting that C-061 might prove to be the case's "smoking gun." Maybe C-061's testimony wouldn't cause Milosevic to break down in open court and confess, but it was thought that a face-to-face confrontation between the two "co-perpetrators" might undermine Milosevic's version of events. Before the end of his first week on the stand, C-061, in response to four days of Milosevic's taunting cross-examination, made the dramatic decision to give up his status as a protected witness and reveal that he was as most journalists covering the trial had assumed Milan Babic, at various times the president, prime minister, and foreign-affairs minister of Krajina.

It is difficult to infer exactly what sort of trial the prosecutors originally hoped to bring. Their indictment against Milosevic for IHL crimes in Croatia is confined to counts of Crimes Against Humanity, Grave Breaches of the Geneva Conventions, and Violations of the Laws or Customs of War. In this indictment, although fifteen other participants are named in "the joint criminal enterprise," Milosevic is the sole defendant, implying, as in fact is the case, an intention to try him on his own. The Kosovo Indictment, however, names him and four others as defendants, implying the intention to hold a trial more like Nuremberg, in which top ministers and military leaders would share the docket. The Bosnia Indictment, on the other hand, is much the same as the Croatia Indictment, though an additional count of Genocide is added. Milosevic's fourteen key co-participants are named in this indictment, but he is charged as the case's sole defendant. Many of those who are named in the three indictments, such as General Ratko Mladic and Radovan Karadzic, have also been charged in other indictments. Consequently, they are fugitives whom all U.N. member states are under obligation to arrest and transfer to The Hague if found within their territory. Others, such as Biljana Plavsic (Karadzic's successor as president of Bosnia's separatist Serb republic), have chosen to surrender to the Tribunal and in Plavsic's case, pursuant to a plea bargain, she has already pleaded guilty and been sentenced. Still others, including Croatian president Franjo Tudjman and the notorious paramilitary leader Arkan, are dead.

Time is probably the most important recurring issue in the case. And Milosevic's decision to represent himself, his regular exercising of his "right" to equal time for cross-examination, and his bouts of chronic illness have in combination given him a crude but effective strategic advantage. He almost certainly has concluded that there is little chance he will be found innocent of all sixty-six counts of the indictments against him, and realizes that conviction for anyone of them carries the probability of a long prison term. Since he is now sixty-two years old, even a moderate sentence would be for all practical purposes a life sentence. From his point of view; the only thing that will change when his trial is concluded is his status from that of an accused, presumed innocent and in detention, to that of a convict serving a prison term. Accordingly, he has every incentive to drag the trial on for as many years as possible. Each day Milosevic can fill or have cancelled because of illness is potentially one day fewer for the prosecutors to present their case in all its detail. And the net result, already plainly evident, is that a far less comprehensive case will be made against him in the end. 17

The case's lead prosecutor, Geoffrey Nice, is a British barrister with long experience in both criminal cases and extremely complex civil litigation, and when in court he displays an easy command of the logic and details of his case, the applicable law, apposite Tribunal precedent, and the subtleties of the Tribunal's continuously evolving trial procedure. Moreover, he seems attuned to the practical wisdom of the old litigator's saying, "It is better to know the judge than it is to know the law." In more than a year of watching the case, I have never seen him ruffled in any way by tough questions from the bench, though he is entirely capable of purposefully showing his exasperation at rulings he feels unwise or that have not gone his way. Nice is small, lithe, and dark-haired, and unlike his "learned colleague" Steven Kay (the barrister usually leading the team of amici appointed to raise legal arguments on Milosevic's behalf), Nice does not wear the barrister's traditional white-powdered wig to court, though, like everyone else in the room, except the court reporters and guards, he does wear black robes and the starched white collar, or "bib." 18 If I have a cavil about Nice, it has little to do with the substance of his skills or the thoroughness of his preparation and only to do with his courtroom manner and the style of his advocacy. Always at pains to cast his argument or request in solicitous terms of how the OTP might better or more fully be of "assistance" to the bench, he reminds me of the various head boys I instinctively disliked at boarding school.

Dermot Groome, the American lawyer who has most often appeared in court on the prosecution team, is tall, blond, broad-shouldered, and always well prepared, poised in direct examination and possessed of a canny ability to zero in on what of consequence has really been put at issue in the course of Milosevic's cross-examination. He has been in charge of the Bosnia phase of the case, and he is skilled at quickly making a few brief, big, and straightforward points during redirect.

Hildegard Uertz-Retzlaff, a third principal member of the prosecution team who regularly appears in court, is addressed by Milosevic as "the Lady on the Opposite Side," a mix of outward gentlemanliness and pointed condescension that is clearly meant to be irritating. Since the Croatia charges are her part of the case, it falls to her, on the morning I arrive, to examine Witness C-061. Perhaps because English is not her first language, or because she is from Germany, a civil-law country where trials are conducted on a non-adversarial basis, she is noticeably less smooth on her feet than her two colleagues, and her deliberate, step-by-step style is sometimes frustratingly slow. 19 Unlike Nice, Uertz-Retzlaff can be rattled when things go wrong and particularly by the almost thespian displays of pique of presiding judge Richard May, who clearly sees hurrying matters along as a key part of his role in the management of trial time.

Judge May is strict but scrupulously fair, almost preternatural in his understanding of human weakness and wickedness in every guise, impatient, very rarely fooled, and as quietly capable a criminal court judge as I have ever seen. Even Milosevic seems to grudgingly afford him a measure of respect. His memory and grasp of detail of the case presented thus far is often tested and displayed, especially when Milosevic on cross-examination tries to sum up or restate a witness's prior testimony for purposes of posing a leading question. Whenever May feels Milosevic has crossed the boundary from recasting data in an advantageous light into genuine misstatement, he pulls out his handwritten notes, almost instantly locates the testimony alluded to from hours, days, or weeks earlier and corrects Milosevic with verbatim quotation. 20

The two other judges sitting on the Milosevic case, Patrick Robinson of Jamaica and O-Gon Kwon of South Korea, also are jurists of impressive prior accomplishment. Prior to his appointment as a judge of the ICTY, Robinson devoted much of his legal career to IHL and human-rights concerns, frequently acting as his country's ambassador and/or negotiator on treaties. He is also an experienced prosecutor and was for several years a deputy solicitor general of Jamaica. He is the most empathetic of the three judges, and his questioning suggests he sees as paramount the victims' viewpoint as well as that of the criminal defendants. Of the three judges, he is the most skeptical of Nice's various proposals to assist the bench and speed up the trial, and the most consistently solicitous of Milosevic's health. Judge Kwon, the youngest of the three judges, holds a 1985 graduate law degree from Harvard and was a rapidly rising judicial star in Korea before his appointment to the ICTY. Appointed senior judge in the Seoul District in 1999, he was elevated to senior presiding judge in the Taegu High Court in 2000.

The morning moves slowly. From the visitors' gallery what appears in transcripts as several blank redacted pages translates into long idle spells of pantomime colloquies. Today about fifty Dutch soldiers in uniform are in the gallery, but it is the group of Milosevic's Belgrade legal "associates" who catch nearly everyone's attention. This includes three women who remind me of Charlie's Angels. C-061, like all protected witnesses, is completely screened off from the gallery. The glass wall separating the courtroom from the gallery has an accordionlike screen divided into three sections that extends the entire length of the room. Although the central section is lowered to block all view of protected witnesses, the other two are not. Accordingly, even when the court goes into "closed session" and the feed of microphones, translations, and cameras is turned off, you can still see most of what is happening. 21

Uertz-Retzlaff has decided to use C-061 to identify the voices on a series of some fifty intercepted cellular-phone conversations that the OTP is offering as evidence of Milosevic's personal involvement in events. Of them all, it is conversations between Milosevic and Radovan Karadzic, the long-term leader of the breakaway Bosnian Serb republic, who is under indictment and still at large, about which anticipation is keenest. Since Witness C-061 was not a participant in the calls, was not physically present to overhear them when they took place, and was not the person who recorded them, the Milosevic amici have raised objections, and the court has invited each of the parties to orally amplify their various prior written "submissions" about the admissibility of the intercepts. After a Ms. Higgins speaks on behalf of the amici, it is Milosevic's turn. He contends in forceful terms that the intercepts were illegally obtained and perhaps subsequently doctored, then asks how the witness can possibly "confirm the authenticity of conversations between me and a third person." Nice, however, has the final word. He argues that, as a general matter, it makes better sense for evidence under challenge in this way to be "provisionally admitted" when it is clear that more evidence will be forthcoming by which the first piece of evidence can be properly weighed and its admissibility and value assessed.

When the trial resumes after a twenty minute recess (taken so that the members of the bench can discuss in chambers how they will proceed), Judge May announces that the court deems the intercept recordings admissible on "a prima facie" basis, but stresses that at a later time the OTP will have to submit further evidence about the circumstances under which the recordings were made. The court seems to be conceding, at least tacitly, that it may have to face the question of to what extent the initial "legality" of what is essentially a wiretap during conditions of conflict or war should be a factor in either admitting such evidence in the first place or assessing its reliability or "weight" once admitted. 22

Unfortunately for the gallery, it soon becomes clear that Uertz-Retzlaff does not propose to play the tapes in their entirety in open court, since, she explains, "that would take approximately two days." Instead, she suggests that it would be more expeditious to play just enough of several tapes so that the voices can be identified; and that instead of having the witness listen to each intercept something he has obviously already done she will submit a written "declaration" made by C-061 in the course of his prior two-day listening session. This she requests be placed "under seal," which is to say, not as part of the public record.

Unfortunately for Uertz-Retzlaff, nothing proceeds smoothly. The "index of intercepts" she has prepared to "assist" the bench is for some minutes a source of confusion, and once she is allowed to begin playing the first tape, the sound quality is so poor that Witness C-061 complains about the "interference in the headphones." I glance at Milosevic, who seems thoroughly pleased by her discomfort.

The short excerpt that is played proves to be fairly dull; it sounds like any conversation between two political leaders who, wary of being overheard, have learned to express their thoughts in a language that is on its face pointedly unobjectionable.

Notes

1 As the American, British, French, and Russian architects of the famous Nazi war-crimes trials held at Nuremberg in 1945 discovered, the common law's "adversarial" tradition is not easily reconciled with the "inquisitorial" (or investigative) approach of traditional civil law, and conducting trials in which judges, prosecutors, and defendants come from different countries (or legal cultures) poses a host of difficulties.

Nevertheless, there are some thirteen elements to trial fairness about which there is a measure of consensus, and being afforded the choice to defend yourself when a trial is essentially adversarial in nature is almost universally recognized. Among the other twelve (often expressed in the language of "fundamental human rights") there is at least some agreement that to be "fair": (1) a trial should presume the defendant is innocent and treat him accordingly; (2) the trial should be limited in its subject matter by an indictment that clearly sets out the charges against the defendant and specifically spells out both what conduct of his was criminal and what laws were thereby broken; (3) the defendant should have the opportunity to be present at the proceedings; (4) his trial should be conducted in public; (5) he should be allowed a lawyer of his own choice or provided competent appointed counsel if he cannot afford to retain one (and all their dealings should be regarded as privileged, with reasonable provision made for them to consult regularly throughout the trial); (6) the defendant should neither be compelled to testify against himself nor be coerced to confess prior to trial, but he must have an opportunity to testify on his own behalf if he chooses to do so; (7) he must be afforded the opportunity to confront and question witnesses against him; (8) the court must ensure that some "equality of arms" exists between the defendant's side and those prosecuting his case (in, for example, their general level of resources and the time each side is given); (9) the prosecution must provide the defense any exculpatory evidence they discover in the course of their investigation or find afterward to be in their possession; and (10), as a general matter, the evidence against the defendant must have been obtained in a lawful manner, given the circumstances of the case. After the trial is held, ( 11) the judgment of the trial court must be written and must set out specifically the facts and laws on which the court reached its conclusions; and, finally (12), after the judgment is entered (or when necessary or useful during the course of trial), provision must be made for appeal to a higher court that is competent to address whatever legal issues the case may implicate. As it happens, probably the most controversial topic in the debate about trial fairness is whether to use a jury. My own view is that in the context of very lengthy, complex cases, especially those that turn on numerous difficult legal issues that involve little settled prior precedent, the arguments against juries are compelling. Similarly, that criminal trials be "speedy," another sacred idea, makes far less sense when both sides will require months of preparation to be effective in dealing with cases that are likely to involve hundreds of witnesses, many thousands of pages of documents, and relatively untried areas of law.

2 Although Milosevic is acting pro se, he is not unaided. Before the trial started, the prosecutors and the trial judges assumed that Milosevic might very well sit mutely at his table throughout the proceedings, a not unreasonable assumption given his early statements that he regarded the court as "illegal." In their determination that all relevant legal issues would be forcibly raised on his behalf during the course of the proceedings, the trial chambers appointed three seasoned attorneys (a British barrister, a Dutch attorney who had tried several prior cases at the Hague, and a Yugoslavian well acquainted with the complicated facts and politics of Yugoslavia's war years). Nominally, the three were designated as amici curiae or friends of the court who were expected to "assist" the court during the trial, but in fact they have functioned, albeit with a measure of restraint due to Milosevic's very active daily participation, as advocates wholly on the side of the accused, and not as disinterested expert advisers. In addition, Milosevic has two prominent Belgrade trial attorneys designated as his "associates," with whom he evidently consults after trial on a daily basis. Backed by their law firm's staff and, some claim, sympathetic souls within the current Belgrade government's security services, they prepare dossiers on prosecution witnesses, carefully sift through the vast quantity of discovery materials supplied by the Office of the Prosecutor, find news items relevant to events, and, some journalists guess, also consult high-level Serb military and political figures with personal knowledge of the particulars of a witness's testimony. Nonetheless, Milosevic sits by himself at the defendant's table, and it is likely he is purposefully trying to convey the impression that he is acting entirely on his own, overmatched by the overwhelming resources of what he calls "the Other Side." This tactic, of course, plays very nicely into the Serb myth of the hero stubborn, indomitable, and courageous, particularly when faced with certain doom.

3 "Evidence," strictly speaking, is confined to the testimony of witnesses under oath and documents introduced at trial to the fact finder, whether judge or jury. The comments made by an advocate in the course of trial are not "evidence" but are instead meant to be regarded as no more than how a party to a proceeding would like the fact finder to interpret the data presented. But in a recent order issued by the Milosevic tribunal ostensibly concerned only with procedure and the mechanics of the defendant's upcoming presentation of his side of the case-the court warned him that comments he might make in his advocate's capacity concerning "facts" of the case would be "considered." What exactly this means is, as yet, very much an open question.

4 International Humanitarian Law, or IHL, suggests that the conduct of conflict of any kind is of vital concern to us all, regardless of who is involved or where it occurs. Many of those who work in IHL believe that the twentieth century was by far the most brutal in recorded history, and feel that the record of crimes committed by governments against civilians provides strong evidence that IHL has been consistently violated "with impunity" from its genesis in the mid-nineteenth century, when Europe's Great Powers began to create rules and to write treaties in hopes of making war more humane. Many advocates of IHL believe that it will never be "law" until well-funded international institutions exist to investigate, apprehend, and try those who commit major IHL crimes. Critics of this vision, however, tend to dismiss IHL as being as unrealistic as disarmament efforts before and after World War I or the various attempts to declare war itself "unlawful." Regardless of your own point of view on what is "law," you can be sure that the legal advisers to armies and political leaders in the developed nations of the world are going to be very careful readers of the Tribunal's jurisprudence for some time to come.

5 The question of where or how IHL crimes ought to be tried has long been a subject of debate. When the U.N. was first created following the Second World War, it had been hoped that a permanent criminal court could be established to carryon the legacy of the war-crimes trials at Nuremberg. Such a court, it was thought, would be the first step in creating "an enforcement mechanism" for a comprehensive legal scheme to protect civilians in future from both the threat of "total" war and any systematic domestic campaign of persecution. By 1993 this planned court had been stalled in obscure U.N. committees for a little more than four decades, and the idea of setting up ad hoc forums by using the Security Council's emergency powers was regarded as the only way of cutting through the unavoidable red tape that pursuing the matter in the General Assembly would have involved. A version of the original U.N. plan, although no longer technically under the umbrella of U.N. operations, has at last been realized in the International Criminal Court, or ICC, created by a multinational treaty concluded in Rome in 1998. This treaty was ratified in record time, and the ICC currently has ninety-two state parties, the United States conspicuously not among them. Last spring the ICC appointed its first eighteen judges, and last summer it swore in its first prosecutor and registrar.

6 The term "Genocide" was coined in the 1940s by one Raphael Lemkin, a Polish legal crusader who lobbied tirelessly for what became the U.N.'s 1948 Genocide Convention. The convention declared that persecuting an ethnic or religious group with the object of destroying it was subject to criminal punishment under during a time of conflict or exclusively against a domestic population. The concept that "laws of humanity and the dictates of the public conscience" applied to conduct during conflict seems to have had its first formal recognition in the preamble to The Hague Convention of 1907, "Respecting the Laws and Customs of War on Land." The related term "Crimes Against Humanity" began to gain currency during the Allies' discussions of the proposal, following World War I, to try Germany's Kaiser Wilhelm before an international tribunal of five judges for "a supreme offense against international morality and the sanctity of treaties." "Grave Breaches of the Geneva Conventions" were first defined in 1949 (in Article 147 of Convention IV), when, in the aftermath of World War II, the treatment of civilians became an urgent concern among governments. These breaches include, with qualifications, killing, torture (including biological experimentation), deportation, confinement, compelling service in the armed forces of a hostile power, taking hostages, the destruction and appropriation of property, and depriving "a protected person" of the right to a fair trial.

7 The term refers to legal principles that are fundamental and well settled, and has come to mean what the law is rather than what it should be. "Blackletter" derives from the custom of printing medieval books in a heavy Gothic black type.

8 As anyone who remembers the Watergate scandal will recall, the key questions were: What did Nixon know and when did he know it? Obviously, when a superior explicitly orders a subordinate to commit a crime, the matter of his guilt is fairly straightforward. But in many situations common to criminal law and to civil liability as well, a superior's culpability or vicarious liability is based on what he should have reasonably done or known, regardless of what he did do or did know. In consequence, he may be held responsible for what a subordinate does that is ultra vires beyond his power and what, at least nominally, he has expressly forbidden that subordinate to do. Although many legal cultures speak of "facts" and "law" as existing at a remove from each other, important questions can turn on their interrelation. If, in the Milosevic case, the trial court determines that he personally directed a decade of "ethnic cleansing" campaigns, the legal implications of the court's decision may well prove much less far-reaching than if a conviction turns primarily on the idea that either (1) he could have stopped what was going on but failed to do so; or (2) regardless of what he actually ordered or wished, he should be held personally and criminally accountable because he possessed ultimate formal (de jure) or actual (de facto) "command responsibility" for the acts of organized armed forces that he and his government supported and "controlled" in only a general way. Such an outcome would be a source of considerable anxiety to almost every national leader on earth.

9 The main thrust of Tadic's strategy was simple alibi, and he contended throughout his trial that prosecution witnesses had wrongly identified him, or that he was never present at any of the crimes they described.

Following the Tadic trial, both sides appealed. The Appellate Chamber's decision is especially significant in its discussion of whether the conflict in Bosnia was "internal" or "international" for purposes of determining the application of the 1949 Geneva Conventions' "Grave Breaches" provisions. The trial court had decided that the conflict was "international" up until May 1992 and "internal" thereafter. This conclusion was premised on Belgrade's formal "withdrawal" of its armed forces, the JNA, from Bosnia in response to an ultimatum issued by the U.N. Security Council. The withdrawal, however, took place mainly on paper and consisted of dividing the JNA into a Serbian "VJ" and a legally distinct Bosnian Serb "VRS" army. In reality, the men and the weapons Belgrade had sent to Bosnia remained, and virtually the only change was one of name and uniform.

10 Each year, one task of the Tribunal's president a judge, elected, for a two-year term, by his or her peers is to write an annual report addressed to both the U.N. Security Council and the General Assembly. Reports from the Tribunal's early years in operation are instructive, and the first year's report especially is both candid and surprisingly plaintive. The Security Council's commitment to making the Tribunal a robust entity with a staff and resources adequate to perform its job appears, in retrospect, to have been decidedly halfhearted. Initially, the Tribunal was funded in six-month cycles, with an initial start-up commitment of just $5.6 million for the January to June 1994 period. Evidently, the choice of a six-month fiscal period had the unfortunate consequence of preventing the Tribunal from signing a lease on property for a headquarters and proved a serious impediment to recruitment, since no contract for more than half a year could be promised to anyone. By the Tribunal's second year, much of this had been sorted out, and its overall funding had been increased to more than $25 million a year, with authorization for some 260 posts. But initially, the charity of a number of states making "voluntary contributions" had been crucial. The United States supplied the Office of the Prosecutor with a $2.3 million computer system and temporarily reassigned twenty-two professional staff members to work without salary from the Tribunal for up to two years. Other nations joined in with similar offers of voluntary staff and gifts in kind, while some, including Malaysia and Pakistan, which both had judges appointed to serve at the Tribunal, sent cash (in the amounts of $2 million and $1 million, respectively). At present, the Tribunal's annual budget is in the region of $125 million a year, a very significant share of the U.N.'s non-peacekeeping expenditure. And the Tribunal's staff has grown to some 1,300, who come from eighty-three different U.N. member states.

11 Much has been written of late about bringing Hussein and his top lieutenants to trial as "war criminals," presuming of course they are captured alive. Those who have some say in the matter would do well to study the Milosevic proceedings. The several years of both direct and indirect preparation involved in, for example, marshaling adequate admissible evidence and finding witnesses is but one- issue. Others include whose notion of a "fair" trial will prevail, and whether the trial is to deal with almost twenty-five years of International Humanitarian Law and human-rights abuses or ought to be a brief proceeding limited in its scope. If the latter, victims' families are certain to raise passionate objections. A trial of broad scope, on the other hand, would undoubtedly drag on for several years. And it is quite easy to imagine that much would be made of active U.S. support of Hussein's regime during the country's conflict with Iran, that the "legality" of the United States invasion would be vigorously contested by the defendant(s), and that every effort possible would be made to play to the region's anti-American audience, portraying Hussein as both a martyr struggling to defend Islam from the West and something of a pawn, turned upon and betrayed by his former ally, the United States. Doubtless, too, some attempt would be made not only to portray the current Bush agenda for the Middle East in a sinister light but also to implicate the United States during the period prior to Iraq's invasion of Kuwait, perhaps even in the role of an accomplice that supplied and trained Hussein's armed forces while turning a blind eye to IHL crimes they were fully aware of and might have done something to prevent.

12 The Peace Palace fulfills the Victorian era's canon that it is always a good idea to decorate the decoration. The building, which was inaugurated with great fanfare on August 28, 1913, required almost ten years to complete and was to be the seat of the Permanent Court of Arbitration, which was created under the auspices of The Hague Peace Conference of 1899 and its Hague Convention I, "For the Pacific Settlement of International Disputes." The building's costs were paid in their entirety by the Scottish-American steel magnate turned philanthropist Andrew Carnegie, who had an unshakable faith in what was once termed "progress" and believed the inexorable path of humanity toward perfection was as incontestably part of the scheme of things as Darwin's law of natural selection. Peace was Carnegie's great cause in his later years, and the "Temple of Peace" at The Hague was only one of three he managed to complete before the outbreak of World War I's hostilities suggested that progress toward perfection might not be quite so inexorable as all that.

13 To give one example, the International Military Tribunal for the Far East, as it was' called, was made up of eleven judges, drawn from each of the countries involved in that theater of conflict. It was a complex case brought against twenty-eight high-ranking Japanese defendants, and the proceeding, described at the time as "the biggest trial in recorded history," lasted from April 1946 until November 1948. Since the judges were not required to attend the proceedings on a daily basis (and many chose not to, even for weeks at a stretch), the Tribunal's rulings on crucial questions like the admissibility of evidence demonstrably varied from day to day, depending entirely on which judges were or were not present. In the end, five of the eleven judges wrote dissenting or partially dissenting opinions. Astonishingly, the Tokyo judgment remained unpublished until 1977 (when it appeared in an Amsterdam university press monograph). Prior to 1977, the majority opinion and five dissents could be read only by seeking out a handful of surviving stenciled copies.

14 At present, the expectation is that the Tribunal will not wind up its affairs before 2012. If its present docket and annual budget are projected forward, it is not unreasonable to guess that at the end of its eighteen years in existence the Tribunal will have tried approximately 100 cases at a total cost of more than $1.5 billion. This figure provides at least some sense of the scale and cost of what it is possible for an international criminal tribunal to do. Today the prevailing view among prosecutors and others with whom I've spoken is that before indictments are sought it is essential to understand a conflict as a whole and only then to target those who have played the largest part or most crucial roles in events. To deal with the many thousands of other potential defendants, rebuilding, or helping to create, smoothly functioning domestic courts is an essential task that must be part of the larger picture with which the international community is concerned.

15 In addition to the live broadcast feed to the Internet, there is a daily archive of the feed compiled by Bard College that can be readily accessed by the public, and at least one U.S. university is compiling video archives of all the Tribunal proceedings. Roughly a dozen journalists regularly use the press room in the Tribunal building, the majority of whom are from dailies of the former Yugoslavia.

16 In terms of the typical relationship between trial courts and courts of appeal (which are charged with deciding, among other matters, if the trial below was conducted fairly), the trial court's opportunity to assess demeanor is often key. For example, in the federal court system of the United States, and in most state courts as well, except in the most unusual circumstances (or when confronted by the most blatant sort of error), appellate courts defer completely to whatever "facts" the trial court has determined. Part of the basis of this policy, as it is routinely justified, is that trial judges have actually seen and heard the witnesses, and transcripts can never adequately convey enough about the person on the stand for anyone who wasn't present to confidently second-guess those who were.

17 Whether and in what ways this matters is a question that goes to the root of how IHL trials are or should be different from garden-variety criminal ones. If the goal is, as it was at Nuremberg, to assemble a somewhat complete historic record of events, create a comprehensive documentary archive for posterity, and vindicate the stories of survivors and victims that had seemed too horrible to be plausible, then strict time limits are a major failing. If the idea is primarily, as one seasoned American ICTY prosecutor phrased it, "to get the bad guy," then a conviction on one count, which results in a life sentence, is as good as a conviction for sixty-six counts.

18 "Bibs" and robes are required for counsel making court appearances. To buy, bibs cost an astonishing 450 euros but may be rented from the Tribunal at 150 euros a month (with an option to purchase).

19 In major American criminal trials, in contrast to British practice, prosecution witnesses typically undergo extensive "preparation," or rehearsal, so that there will be few surprises when they testify, both on direct examination and subsequent cross-examination. The OTP does not seem to have a clear policy on whether such preparation is important, in accordance with the American view, or wholly improper, in line with British thinking. What is clear is that in most trials at the ICTY, at least some of the live witnesses either have not been entirely candid about themselves with the lawyers who have called them to testify or have changed their stories in unexpected ways from an earlier version. To a certain extent, even in legal systems where trial preparation is extensive, this is a problem that a seasoned trial attorney must allow for. But at the Hague, three factors aggravate the situation. First, the problem of witness intimidation has not been wholly solved by the ICTY's efforts at witness protection; second, the OTP, and often defense teams too (particularly that assisting Milosevic), have become remarkably skillful at rapidly assembling detailed personal dossiers about witnesses that frequently contain unflattering information useful to undermining "credibility" on cross-examination; and third, given the horrific events involved, and the fact that many who have lived to tell their tale were not disinterested bystanders, Tribunal trial judges often have the unenviable task of deciding how much to accept the truthfulness of a witness who is plainly lying about, or at the least minimizing, his own role. These problems are important to note, especially in the context of the ICTY's debate over using written statements as a time-saving alternative to live testimony.

20 A visit to SlobodanMilosevic.org, which offers a daily summary of the trial, is instructive. For example, their view of a recent day of "crime-based" testimony attacks May as being both unfair and incompetent: "After President Milosevic had explained, to this pathetic excuse of a 'judge,' the concept of 'innocent until proven guilty,' which appears to be completely foreign to 'Dick' May, Mr. Tapuskovic [one of the trial's amici] had to explain to this idiot what his job was in the first place. Mr. Tapuskovic explained to that crimson robe-wearing fool that as a judge his job is to sit and listen to the evidence and then decide, after hearing all of the evidence, if the witness is telling the truth or not."

21 In the United States, allowing cameras into courtrooms has fired contentious debate since the rise of television and the advent of modem mass media in the 1950s. One scholar I spoke to, who has watched the Tribunal with interest since its founding, felt strongly that cameras in courtrooms profoundly affect proceedings. His view is that when people know there is a camera present, they can't help but perform. There may be some truth to this. I have difficulty, however, discerning much difference between the effect of the presence of cameras and that of what might be called "a live studio audience."

22 In common law, in a criminal trial before a jury, the submission of evidence follows strict rules. In a U.S. criminal trial, the Fourth Amendment prohibition against "unreasonable searches and seizures" can be of crucial importance, and the twentieth-century judicial enforcement mechanism by which evidence can be excluded from consideration if obtained by prosecutors illegally is popularly known as the "fruits of the poison tree" doctrine. Accordingly, in a U.S. trial where wiretap evidence is offered, an able defense lawyer typically hones in on the question of where, how, by whom, and under what legitimating authority recorded intercepts of a defendant's telephone conversations were obtained.

SLOBODAN MILOSEVIC: Factually speaking, Yugoslavia is defending its territories, and it's a matter of viewpoint how you look at it.

RADOVAN KARADZIC: Well, we have to protect our people, the people living on those territories. We don't want anything that doesn't belong to us that's the main thing.

SLOBODAN MILOSEVIC: Yes. If they got bogged down, down there, we have our ways. . . . Although these people said about the Sava Center tomorrow, that they will not attack them. But if it is really necessary, then they can be attacked as well.

Uertz-Retzlaff does try to elicit from C-061 some sense of what is "really" being discussed in this and a few of the other intercepted conversations she uses him to "introduce." But mainly C-061 sticks to dryly literal explication, such as when he thinks the conversation must have taken place and the location of references like "the Sava Center." After a few transcript excerpts are read into the record by Uertz-Retzlaff, most of the remainder of the morning is held in closed session. I watch Milosevic rise to his feet and launch into a tirade. Judge Robinson, who generally speaks little and asks questions comparatively infrequently, also becomes animated. I wonder what might be going on. When finally the court returns to open session, it is only to adjourn for the day. The morning leaves me pondering the irony that I am far less able to follow what is going on, or understand its significance, in person than from afar.

For an outsider on a visit to an institution like the Tribunal, the distinction between legitimate security and secrecy can sometimes feel fairly academic. All telephone numbers within the Tribunal are unlisted, all offices and even the Tribunal's library and cafeteria are forbidden to persons not part of the Tribunal staff, and even if you have an appointment to see someone who works here, you will be escorted both to and from your destination only after you've surrendered your passport to the guards at the reception desk. Also, since court proceedings take place in rooms sealed from their gallery, and many senior staff members arrive and leave by car (entering the building from an underground parking lot), you don't bump into the Tribunal's personnel very often. You do, however, especially if you are a smoker, find yourself in the company of a reasonably broad cross section of defense attorneys from the former Yugoslavia who like to take their breaks outside the Tribunal's entrance, where cigarette smoking is permitted.

On one such break, I find myself in conversation with a gray-haired Croatian lawyer who tells me he's tried several cases before the Tribunal over the years. I ask him what he thinks of Judge May. He tells me May presided on a panel that convicted and sentenced one of his clients to fifteen years. But then, beaming approval, he praises May's skill at dispatching motions rapidly on the basis of oral courtroom submissions (much as I had seen May do during the morning session) rather than dragging out matters with endless rounds of briefs. Another lawyer tells me he strongly prefers dealing with the judges from continental Europe, such as Judge Schomburg (from Germany). "I understand how he thinks," he says. "His every move." And a third regales me with the story of a client who wanted him to do everything possible to slow down proceedings once it became clear that the client was to have charges against him dropped. His client, he says, hoped to remain in detention, because "it was winter, and there was no heat or electricity in his village. And with no possibility of work, he was sure he'd starve if he had to return home."

I encountered perhaps a dozen or so defense lawyers who have practiced regularly before the Tribunal, of whom the majority were from either the former Yugoslavia or the United States. Most of the Americans professed, with a measure of disingenuity connoting criticism, to be somewhat bewildered by how continental judges "thought." But they also seemed to be somewhat bewildered by a number of the beliefs generally held by their co-counsel. One told me that when he first proposed making a motion for a mistrial (a very common tactic in U.S. criminal practice and a necessary antecedent to preserving issues for appeal), his Yugoslav colleague had opposed the idea as being "impolite" to the Tribunal. The American lawyer had found this thoroughly amusing, but to me it indicated something of the gulf between legal cultures with very different ideas about what courts do and what role lawyers play. To the Americans, generally, their primary task was to win their case, and aggressively exploiting any and all shortcomings that might emerge in the course of trial, by either the OTP or the bench, was their duty. The idea of being part of a cooperative effort to search for "the truth" was not just foreign to them but seemed to be viewed as a quaint mask for simple incompetence.

In the end, a number of current and former prosecutors, Registry staff, and judges discussed their work and the Tribunal with me, but many of these discussions were on a "background only" basis, and I agreed that anything I wanted to quote would have to be approved later. Again, this reflects legitimate concerns. The process of judicial deliberation is regarded almost universally as something best conducted behind closed doors. And aspects of criminal investigations still in process, if disclosed, can either tip off wanted criminals still at large or put potential witnesses in mortal danger.

Several of my days at The Hague were spent watching proceedings in the Tribunal's two other courtrooms. One morning I watched the proceedings in Courtroom Two. In contrast to Courtroom One, where the Milosevic trial takes place most mornings, it is small, with a gallery that has a maximum capacity of two or three spectators, and it is squirreled away in a remote part of the Aegon building where a visitor must be escorted personally by a guard. One of the ex-Yugoslav defense attorneys I had met claimed that "Courtroom Two is where they put the cases they want to hide." So it seemed an excellent reason to spend a morning watching Prosecutor v. Stakic, a case brought against the wartime Serb mayor of a small town in the same district that had been involved in the Tribunal's first case, Tadic. 23 The defense was premised primarily on the idea that Stakic had been a political moderate kept largely out of the loop on what was going on in the local prison camps, and was, moreover, powerless to intervene in any matter that was purely under military and police authority. In the witness box was a young Serb, from another town, who offered a grim account of his lengthy detention under Croatian military authority and his year of forced labor. According to the prevailing view of the Tribunal, the testimony was completely irrelevant to the issue of Stakic's own guilt or innocence, but the Chambers' presiding judge, Schomburg, seemed to be affording Stakic's counsel a degree of leniency, since this was one of the defense's first witnesses.

23 The duty of the OTP to provide defendants with exculpatory material that comes into its possession does not end with a trial and conviction but continues indefinitely (or, presumably, as long as the Tribunal continues to exist). It is now clear that this duty will occasion a number of significant questions, many of which arise from the long-standing and ongoing refusal of Serbia and Croatia to open their respective government archives to Tribunal prosecutors. Both governments have, instead, selectively complied with requests for documentary evidence on a case-by-case basis; consequently, materials produced may be highly relevant not only for a current case but to another case long since decided.


It would have been easy to imagine another judge simply sending the witness home, or strictly confining the subject matter to his personal knowledge of the defendant. Schomburg was at pains not to do this. Instead, he listened attentively to the witness's story, told him he had made very serious allegations, and asked him whether any arrests had been made or prosecutions initiated against those the witness had spoken of. None had. Schomburg then assured him that his accusations would be looked into: "That's the fundamental reason why the international community decided to set up this Tribunal, especially to avoid impunity, impunity of peoples of whatsoever ethnicity or religion or from whatever military group. And in order to avoid impunity, it's necessary to have witnesses, and therefore we are extremely grateful for your testimony."

Schomburg then asked the witness if he would allow his testimony to be used in other proceedings, and the witness agreed he would. Before the witness was excused, Schomburg added, "I have to thank you for coming, for giving testimony, and hopefully by doing so, participating in the building up of a better future in your home country. Thank you. Have a safe trip home."

Schomburg's words did not ring with eloquence, but in person they had seemed heartfelt, and the sincerity of the judge's commitment to high purpose had been rather moving. If there is a distinction to be made between "victors' justice" and what IHL tribunals aspire to be, it is in such moments that it must be gleaned.

IV


He will carry the hopes of people, numbering in the many millions the world over, who seek a changed world, an improved world, where the victims of Genocide, war crimes, and crimes against humanity are listened to, and where the perpetrators of [these] crimes are made to listen.
  Prince Zeid Ra'ad Zeid AI-Hussein of Jordan, on the swearing-in of Luis Moreno-Ocampo, the first chief prosecutor of the International Criminal Court, June 16, 2003

For most people, a law is not a law if there is no apparatus for punishing those who break it. In both theory and practice, crimes committed by soldiers-including the crimes we casually call "war crimes" are frequently subject to investigation, trial, and punishment, and often culminate in a court-martial, a trial within the regular court system of a defendant's country, or trial in the country where crimes have taken place. At present, institutions that can effectively deal, in their totality, with large-scale humanitarian disaster where civilization seems to break down for an entire region and life reverts to what Thomas Hobbes once termed "a state of nature" are in their infancy. The history of conflict since the Second World War makes it plain that such disasters occur with shocking frequency, and that leaders, even our own, have sometimes seen political necessity and justification in setting such events in motion on foreign soil.

There remains much about the future operation of some of the new jurisdictional concepts of IHL that will require considerable further development. For instance, were universal jurisdiction to gain only sporadic acceptance, the likely spectacle of a fairly random assortment of retired octogenarians, ambushed on holidays or when changing planes hauled into courts lacking some common standard or real IHL expertise, by prosecutors, without a comprehensive strategy, and charged with crimes that took place decades earlier in places remote to the forum would do little to advance the claim of justice. Nonetheless, tribunals such as the ICTY and the new International Criminal Court not only provide the world an opportunity to give some meaning and effect to more than a century of well-intentioned treaties and "customary" international criminal law but will foster the growth of a group of highly skilled and idealistic legal professionals including investigators, lawyers, and judges who can begin to make some coherent legal sense of the worst humanitarian disasters and help create incentives to prevent them.

Whether the threat of trial and punishment will do much to influence the conduct of future Hitlers, Stalins, Pol Pots, Saddams, and Milosevics is hard to know, but specialized forums adequately staffed and charged with enforcing International Humanitarian Law are likely to have a profound effect on the world's law-abiding nations. They may even begin to alter the calculus of leaders who aim to pursue amoral goals within the letter of the law. I suspect that if such tribunals can be made to work, and succeed in earning world respect, they might help determine when peace enforcement is necessary and decisive collective international community action is imperative. Perhaps in future, when policymakers begin to see a distant tragedy unfolding, the argument that they must take action because it is their legal duty to do so will start to sound like a winning one.

 

 


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LETTERS from KOSOVO and BOSNIA, by PETER LIPPMAN

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