War Crimes Court Breaks New Ground

By Karen DeYoung

Thursday, December 2, 1999

THE HAGUE Dario Kordic and Mario Cerkez are an odd couple of defendants. Kordic sits straight and stiff in the courtroom, hands folded quietly in his lap and eyes unmoving behind wire-rimmed glasses. Next to him, Cerkez is fidgeting all over his chair, his mobile face reflecting irritation and occasional amusement.

The two do not look at or talk to each other not particularly surprising because they held different stations in life before they ended up here, one a politician and the other a small-unit military commander.

But prosecutors claim that the two men, both Bosnian Croats, have a lot in common. They are officially charged with crimes against humanity, violation of the laws and customs of war, and "grave breaches" of the Geneva Convention on treatment of civilians during wartime. More specifically, prosecutors allege they helped develop and implement a plan for the killing, imprisonment and torture of Muslims during the early part of this decade, when the part of central Bosnia where they all lived was a free-fire zone among warring ethnic groups.

Kordic, the politician, and Cerkez, the soldier, are in the seventh month of their trial before the International Criminal Tribunal for the former Yugoslavia, unwilling participants in the world's first international effort to judge, and punish, war criminals.

More than half a century after the architects of the Nazi regime were tried in Nuremberg, after the Geneva Conventions and the treaties that laid down the rules of warfare 50 years after the promise of "never again" the world is finally trying to prove that there are consequences for inhumanity.

It is an effort that seems appropriately historic for the millennium, for it is really an effort to triumph over history itself. It requires the community of nations to transcend all that divides them from borders and individual interests to culture and legal traditions to fully and fairly judge acts they long ago agreed have no place in a world that calls itself civilized.

In a dank, gray building in this city on the edge of the North Sea, judges and lawyers from as many as 80 countries have spent the past six years slogging through the joyless chronology of Yugoslavia's dismantlement, and assessing blame for the crimes that attended it. To the extent this tribunal and a similar effort to judge war crimes in Rwanda succeed, they will provide a foundation of case law for a much more ambitious effort in the next century: an International Criminal Court, with worldwide jurisdiction over war crimes.

Not every government or policymaker approves of the idea of tribunals some argue that they are by definition subjective and single out only the weak and internationally powerless or of a broader, international version. And, although it strongly supported creation of the tribunals, the United States, along with six other nations, last year voted against establishing a permanent international court on grounds that it would subordinate the U.S. Constitution to international law, and might endanger U.S. troops overseas. Some U.S. policymakers believe it would hamper effective domestic conflict resolution elsewhere, such as the truth commissions that helped bring peace to South Africa and El Salvador.

But 120 countries including virtually all major U.S. allies signed the treaty establishing the permanent court. Once 60 of their governments have ratified it a task that is likely to take years and will require some to rewrite their domestic laws it will become a reality.

"When that's in place," said Louise Arbour, who served as chief prosecutor here for three years until last September, "then I think we can really say 'Never again.' Not that these things won't ever happen again. They happen every day. But it will be the end of impunity."

A Turning Point

Genocide, says Diane Orentlicher, an American University law professor and internationally recognized expert on the crimes of war, is "a paradigmatic crime of the 20th century."

Wholesale slaughter of fellow human beings, of course, is not a purely modern phenomenon. A century and a half before the birth of Christ, conquering Roman legions exterminated most of the civilian population of Carthage. The Crusaders, Genghis Khan and Tamerlane all left wide swaths of civilian blood behind them. Entire tribes were destroyed during the age of colonialism.

But this century, which began with the killing of 1.5 million Armenians by the Ottoman Turks, and the gassing in the trenches of World War I, has seemed to mark a turning point in both the scale and the frequency of mass killing and atrocities.

It was Rafael Lemkin, a Polish Jew at the U.S. War Department who lost 72 members of his family in the Holocaust, who argued in 1944 even before the extent of the Nazi exterminations of World War II was fully realized that such crimes deserved a whole new word. Genos, the Greek word for tribe or race, and cide, the Latin term for killing. The attempt to annihilate an entire ethnic, religious, racial or national group.

To Lemkin, killing wasn't the only form of genocide. Dismantling religious or political institutions, destroying a language, eliminating economic infrastructure, all could be considered genocide, as long as the aim was to wipe out a separate people.

And while genocide has become nearly synonymous with "war crime" in popular parlance, it was only one criminal subcategory of the new framework of international law that was constructed in the years following the Second World War.

The charter of the Nuremberg military tribunals, under which the victorious Allies judged the vanquished Nazis in 1945; the Genocide Convention of 1948 and the four Geneva Conventions in 1949; the treaties against chemical and biological weapons and torture and other accords all outlined rules for how both soldiers and civilians were to be treated during wartime, and called on all nations to "prevent and punish" violations.

But if the lesson of Nuremberg was that the world would no longer tolerate such barbarity, the rest of the century showed how little had been learned.

Stalin sent millions to the gulags and killed countless others outright, largely out of paranoia, and died, still in power, in his own bed. Countless Chinese were slaughtered during the Cultural Revolution for insufficient zeal in following the dictums of Mao Tse-tung. The Khmer Rouge killed two million Cambodians they decided simply didn't fit in to their totalitarian vision of an agrarian state. Tens of thousands were left dead or "disappeared" in the 1970s and '80s by Latin American dictators who perceived them to be a political and cultural threat.

In the Anfal campaign of 1988, Iraqi forces murdered 50,000 Kurds who declined to be ruled by Saddam Hussein. Hundreds of thousands of Africans have been murdered or maimed or doomed to starvation by their fellow countrymen for belonging to the wrong tribe or practicing the wrong religion.

For all the international pledges, nothing much happened to those who came after the Nazis. No one was indicted, no international criminal court was established.

It was always too hard for the world to agree on who deserved to have the entire legal weight of the community of nations brought down upon them. The truth was that while World War II supplied the impetus to name the crimes and create the laws to punish those crimes, what followed the war provided the excuse to ignore them.

"The simple reason why justice was put in the freezer for 50 years is the Cold War," said Kenneth Roth, executive director of Human Rights Watch, the largest U.S. human rights organization. Under the United Nations system established in the same decade as the Geneva Conventions, only the U.N. Security Council has the power to enforce international law against member states. "Most of the atrocities between World War II and the 1990s were on Cold War battlefields," Roth said, "where one or the other of the superpowers was determined to exercise its veto to block any prospect of justice." So no one ever tried.

"It was easy when you talked about putting Nazis and Japanese generals on trial," said University of Texas law professor Steven R. Ratner. "But when it was about putting the leaders of other states on trial," he said, each side in the Cold War was "more interested in making the other side look bad."

Every despot, it seemed, had his friends or at least those with their own reasons for opposing the efforts of others to put him in the dock.

Nor was it even entirely clear under the treaties what constituted a war crime. If Cambodians murdered their own unarmed citizens largely at random, with no discernible attempt to eliminate a specific racial, religious or ethnic group, was it genocide?

"Cambodia is almost in a class by itself," said Jerry Fowler, staff director of the Committee on Conscience at the Holocaust Memorial Museum. "It's not really a genocide, since certainly the vast bulk of those killed were not targeted for ethnic or political reasons. . . . But it was on a genocidal scale."

And even when the "crimes against humanity" seemed clear, the world hesitated to interfere directly in "domestic" issues. Putting the architects and enforcers of South African apartheid, or the death squad murderers of Salvadoran priests, in the international dock was never seriously on the table.

Finally, there has always been the fear that if a real international criminal court were established, with independent and binding jurisdiction over everyone, the world's leading nations might lose control over who its next target might be.

When assessment of responsibility for atrocities has conflicted with the policies of the powerful, policy has won out. Labeling combatants terrorists, or calling a war an uprising can avoid triggering international law. "In Turkey, you have a civil war" against the Kurds, said Antonio Cassese, the Italian legal scholar who served as the Yugoslav tribunal's first chief judge. "But nobody dares say to the Turks, you should apply Article III" of the Geneva Convention, governing crimes in noninternational armed conflicts.

"Let's call a spade a spade," argued Cassese. "Let's identify serious violations in a civil war as war crimes."

But it wasn't until the century, and the Cold War, drew to a close, that a spade was dealt that everyone could agree on.

The place that broke the logjam, "the former Yugoslavia," as it is known here in legal documents, probably would have escaped international judgment but for the widely publicized nature of the crimes that occurred there as the country broke into pieces crimes that were too reminiscent of the Nazis to ignore and the shame many nations felt for failing to do something before it was too late.

"There is an echo in this chamber today," then-U.S. Ambassador to the United Nations Madeleine K. Albright told the Security Council on the day in May 1993 when it voted unanimously to approve the statute of the Yugoslav war crimes tribunal. "The Nuremberg Principles have been reaffirmed."

Secret Indictments

Yet even as the Security Council took a stand, it seemed taken aback by its action, and for some time afterward seemed to wish the tribunal would go away. It took more than a year for the United Nations to agree on the court's initial 11 judges and a chief prosecutor. Its 1994 budget less than $11 million was considered barely enough to pay the rent and salaries, let alone conduct the kinds of complicated investigations prosecutors were expected to undertake. Recruitment of top international staff was difficult for so tentative an undertaking.

Meantime, war crimes were still being committed in the Balkans. Although the tribunal's initial indictments were issued in 1994, two years passed before the first trial began. The prosecution, conviction, and ensuing appeals, of Bosnian Serb Dusan Tadic, accused of murder and inhuman treatment of Bosnian Muslim concentration camp prisoners, finally ended this month with a sentence of 25 years.

There have now been 91 public indictments mostly Bosnian Serbs with a sprinkling of Croats and Muslims but only 33 of the accused are in the tribunal's detention cells inside a Dutch prison near The Hague. The SFOR, the NATO-led international military force now on the ground in Bosnia, has made only 13 arrests in the past four years, a paltry total that so angered Chief Prosecutor Arbour that she began issuing secret indictments so SFOR troops could not longer say indictees were "avoiding" them.

Thirteen defendants have surrendered voluntarily, and the rest of those in custody were apprehended in other countries. Charges have been dismissed against 18 indictees, and six have died. In addition to Tadic, only one other man has been convicted and exhausted his appeals.

Among the 32 public indictees remaining at large are the biggest fish on the list: Bosnian Serb leaders Radovan Karadzic and Ratko Mladic, and Yugoslav President Slobodan Milosovic and four other senior Belgrade officials.

The tribunal has been criticized for the small number of trials, and their excruciatingly slow pace. Officials such as Arbour tend to blame the former on international failure to go after the accused. The latter, they say, is a reflection of how long it has taken to translate the grand and sometimes imprecise language of international treaties into a modern criminal code.

Unused for 50 years, said Gabrielle Kirk McDonald, who served six years as a tribunal judge until resigning this month, "the law it applies must, in many instances, be interpreted and applied for the first time."

Every crime requires a definition, and a standard of proof. As each case builds upon previous cases, said Arbour, "we know more of what it's going to take. With crimes against humanity, the conduct whether it's murder, rape, deportation, enslavement, persecution," she said, rattling them off as if they were one word, "has to be widespread or systematic. What does it take? Two? Two hundred? What is widespread? And is it the same as systematic? Or is it something different?"

Even genocide is a crime this court has found difficult to define, and even harder to prove. Until the tribunals, no one including the Nazis at Nuremberg was ever prosecuted for it.

"In the Genocide Convention, it talks about destroying a group 'in whole or in part,' " said the Holocaust Museum's Fowler. "One of the Senate's understandings, when it ratified it, was that it meant 'in substantial part.' There's a general consensus that you can't just intend to kill 10 people out of the group, and that makes it genocide."

Proving genocide requires proving an intent to annihilate all members of a separate, definable group. "One good test of a genocide . . . is are members of the group killed even when they offer no resistence," Fowler said. "That was obviously the case in the Holocaust. It was the case in Rwanda, and in Armenia."

Although the Rwanda tribunal has handed down several genocide convictions, the only judgment so far in the Balkans' cases was an acquittal. Tribunal judges ruled last month that prosecutors had failed to prove beyond a reasonable doubt that confessed killer Goran Jelisic, a Bosnian Serb known around the Luka concentration camp in the northern Bosnian town of Brcko as "the Serb Adolf," had acted with the "intent" to eliminate an entire group of people.

The treaties, said Canadian William Fenrick, the tribunal prosecutor's chief legal adviser, provided "general expressions like 'it's unlawful to direct an attack against civilians.' " The tribunal spent much of its early years "trying to figure out how you went about prosecuting that."

Domestic law, Fenrick said, is relatively simple. "You have a murder, where X killed Y." But there is no such simplicity in wartime, when "killing people some of the time is okay. Some attacks are perfectly lawful. Sometimes, if you kill some civilians along the way, that's okay too."

Through the judgments it has issued so far, The Hague tribunal already has fundamentally changed the definition of the term war crime itself, ruling that international law applies not just in conflicts between states but in civil, or internal, conflicts as well. It has said that, in certain circumstances, an individual's "citizenship" can be established through ethnicity and religion, as well as through nationality. In convictions of guards at a Bosnian Muslim detention center, it has defined rape as a war crime.

"These are the stones out of which this edifice must be built," said Cassese. "It is a huge body of law, on paper, that has rarely been applied. Our task is to flesh it out so they can become reality."

In the Trial Chamber

On a crisp October morning, Tribunal Courtroom III is crowded with bustling, black-robed lawyers and clerks. Three judges, looking magisterial in scarlet mantles with white dickeys, peer down from a dais on the brightly lit, blue-carpeted chamber. Defendants Cerkez and Kordic sit quietly along a wall to one side, flanked by uniformed policemen. On this day, there is only one spectator in the visitors' gallery that is divided from the chamber by a bullet-proof glass wall.

The case is moving slowly as Cerkez' Croatian counsel cross-examines a prosecution witness, a Bosnian Muslim who is saying he once heard Cerkez speaking over a military radio as certain crimes were planned.

Under his earphones, British Judge Richard George May is growing visibly impatient with the rapid Serbo-Croatian exchange, as the English interpreters following it from inside a nearby booth keep losing their places. May's two judicial colleagues, Moroccan Mohamed Bennouna and Jamaican Patrick Lipton Robinson, look bored.

"Don't argue, please, with the witness," May roughly interrupts for the third time. "He says he doesn't know. There's no point in pursuing it. Let us move on."

The Croatian lawyer stops abruptly, thanks the judge for his intervention, and sits down with a bow.

"I'll tell you in a word" what it's like to practice before the tribunal, says the lawyer, Bozidar Kovacic, several days later as he sits in the apartment here that serves as temporary office and living space for him and his co-counsel, Goran Mikulicic.

"Difficult."

"I think we are all part of an experiment," Mikulicic adds.

A melding of vastly different legal systems from across the world, with a staff speaking a dozen different languages, the tribunal is indeed an experiment, an attempt to satisfy most nations on most days that justice is being done.

If they have trouble communicating with Judge May, Kovacic and Mikulicic, two scrappy criminal lawyers from Zagreb, sometimes find it even more difficult to talk to the attorneys representing their client's co-defendant, Mario Kordic. They are Americans, from the high-powered international law firm of Hunton & Williams. While the Croatian lawyers are the U.N. equivalent of public defenders, receiving a stipend from the tribunal, Hunton & Williams is employed by the Republic of Croatia, and accepts no U.N. money.

In time-honored U.S. legal tradition, the Americans have bombarded the court with thick documents on the fine points of international law in a flurry of motions throughout the case. The Croatians, from a different legal tradition, wonder "who would read" all these bulky treatises?

What the two sides of the defense do agree on is a belief that their clients are being railroaded by overly aggressive prosecutors who are anxious to make history and sometimes seem to make up the law as they go along. How can a trial be fair, asks Hunton & Williams's Turner T. Smith Jr., when the prosecution has virtually free access to potential witnesses and to the crime scene all of central Bosnia with the search and seizure powers of a military occupation force?

The story their defenders tell of Kordic and Cerkez is the same one told by prosecutors, up to the point that crimes were committed.

It begins in 1991, when local Serbs aided by Belgrade were bulldozing through Bosnia, trying to forcibly displace or eliminate their Muslim neighbors. Bosnian Croats, seeking to claim their own territory inside Bosnia and eventually merge with the newly created Republic of Croatia to the north, were doing the same, fighting the Serbs even as they brutalized the Muslims.

Dario Kordic rose quickly within the Bosnian Croat political and military organization. Born in Sarajevo in 1960, he had studied political science at the university there and, before the war broke out, worked as a journalist. Starting as president of the regional leadership in the community of Travnik, in central Bosnia, by 1993 he was a major figure in the Bosnian Croat leadership. In 1994, he became part of its joint presidency.

Mario Cerkez attained his power at a much lower level. An automobile mechanic in the central Bosnian town of Vitez, near where he was born in 1959, he became commander of the Vitez Brigade when the Croat leadership issued its call to arms.

Many of the Croat attacks against Muslim towns and villages in the region "commenced early in the morning, when most of the inhabitants were in their homes, asleep," reads the tribunal indictment against the two. "At least 100 defenceless Bosnian Muslim civilians, including women, children, the elderly and the infirm, were killed and many wounded or harmed in their homes or yards, while attempting to hide or escape" from Croatian forces. Imprisoned civilians were beaten, sexually assaulted and deprived of basic necessities. Some were used as forced labor to dig military trenches in the Croatian battles against Serbs.

It is here that the defense and prosecution stories diverge. Kordic, the prosecutors charge, "played a central role" in planning those activities and seeing that they were carried out. "He publicly advocated the campaign's goals and encouraged and instigated the ethnic hatred, strife and distrust which served its ends." The brigade that Cerkez commanded, the indictment alleges, was "directly and actively involved in the wide-scale persecution against Muslim civilians."

Taking its cue directly from Nuremberg, the tribunal's statute specifies that any individual who "planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution" of such acts can be held criminally responsible, regardless of civilian or military position. Following orders is no defense, nor can a superior escape responsibility "if he knew or had reason to know" crimes were being committed and failed to stop them.

"This guy was a legislator in the Croat community," says another member of Kordic's legal team, Stephen M. Sayers. "They're saying he was a big commander. Ordering. Instigating. Aiding and abetting. These are things he had nothing to do with, and they've thrown the book at him."

"There were bad Croats in Bosnia," says Kovacic. "But I'm looking for individual guilt. They've got witnesses saying . . . a few bad words about the organization" Cerkez was part of. "What about my client?. . . . He's accused of command responsibility, but there's no allegation he killed or mistreated anybody."

"He was just the wrong guy in the wrong place at the wrong time," says Mikulicic.

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