A Problem From Hell

by Samantha Power

  The truth of what Serb forces did to Albanians between March 24, 1999, and June 10, 1999, is of course still emerging. As of November 2000, the UN war crimes tribunal at The Hague confirmed the 4,000 bodies or parts exhumed from more than 500 sites.53 Officials stressed that not all of those executed or beaten to death in Kosovo had been buried in mass graves at all. Many were dumped into roadside ditches, wells, and vegetable gardens. Some Albanian victims who were initially piled into pits for burial were removed. Bulldozers arrived to cover the Serbs’ tracks by scattering body parts in multiple sites or by incinerating the bodies in bonfires or factories. In the village of Izbica, for instance, Albanian villagers buried some 143 bodies after a Serb massacre before they fled in early April. Spy satellite images confirmed the existence of 143 graves. But by the time tribunal investigators arrived in June 1999, the only sign of vanquished life that remained were earthmovers’ caterpillar tracks, which crisscrossed the area. The bodies had vanished.

  Careful scrutiny of American and refugee claims reveals that U.S. government predictions and refugee descriptions proved remarkably accurate. Despite the frantic dash most refugees made to the border and the terror of the experience, Human Rights Watch has confirmed some 90 percent of what its investigators were told. The UN prosecutor at The Hague also found that four out of five Kosovar refugee reports of the number of bodies in the graves were precise.

  The bodies keep turning up. In 2001 some 427 dead Albanians from Kosovo were exhumed in five mass graves that had been hidden in Serbia proper. An additional three mass grave sites, containing more than 1,000 bodies, were found in a Belgrade suburb and awaited exhumation. Each of the newly discovered sites lies near Yugoslav army or police barracks.54

  Some of the wildest rumors that circulated during Serbia’s deportation operation have been confirmed. While NATO was still bombing, essayist Christopher Hitchens received a letter from a former student in Serbia that a friend of his, a truck driver, had been ordered by the Yugoslav army to pick up Albanian corpses in his refrigerated vehicle and drive them into Serbia. Hitchens, a staunch backer of NATO’s intervention, did not publicize the letter because even he deemed it “weird and fanciful.” He was leery of wartime “rumors.”55 But in July 2001 Zivadin Djordjevic came forward to confirm the rumors. Djordjevic was a fifty-six-year-old diver in Serbia who made his living plunging into the Danube River to rescue vehicles and drowning victims. In April 1999 he was asked to examine a white Mercedes freezer truck found bobbing in the Danube near the town of Kladovo, 150 miles east of Belgrade. Believing it was just another unlucky vehicle, Djordjevic donned his wet suit and swam up to the back door of the truck. When he opened it, he discovered a ghastly cargo of men, women, and children. He first saw what he said was “a half-naked, beautiful, black-haired woman with great white teeth.” Then he discerned two boys “no older than 8 years old.” The tangled corpses slid into his arms. As he wrestled one back into the truck, another would slither out. “It was the first and only time in my life I have been confronted with such horror,” the diver later said.56

  Two days after NATO began bombing in 1999, we now know, Milosevic ordered his interior minister, Vlajko Stojilkovic, to “clear up” the evidence of war crimes in Kosovo. Stojilkovic used all available refrigeration trucks to remove corpses from execution sites in Kosovo and to destroy or rebury them in Serbia. According to witnesses, some of the corpses were incinerated at furnaces in Bor, Serbia, and Trepca, Kosovo. Milosevic’s government thus not only permitted, encouraged, and ordered its security forces to murder the Albanians, but it also tried to cover up the crimes. The UN tribunal has received reports that some 11,334 Albanians are buried in 529 sites in Kosovo alone.57

  As high as the death toll turned out, it was far lower than if NATO had not acted at all. After years of avoiding confrontation, the United States and its allies likely saved hundreds of thousands of lives. In addition, although prospective and retrospective critics of U.S. intervention have long cited the negative side effects likely to result, the NATO campaign ushered in some very positive unintended consequences. Indicted by the UN war crimes tribunal for Serbia’s atrocities in Operation Horseshoe and defeated in battle, President Milosevic became even more vulnerable at home. The Serbian people realized that a Milosevic regime meant corruption, oppression, death, and a future of international isolation and economic desolation. When a Serbian economics professor, Vojislav Kostunica, ran against Milosevic on a platform of change in Serbia’s September 2000 election, Milosevic was roundly defeated. When Milosevic attempted to contest the results, the country’s miners, workers, police, and soldiers joined with Belgrade’s intellectuals and students to end his deadly thirteen-year reign. In March 2001 the Kostunica government arrested Milosevic and in June 2001, in return for some $40 million in urgently needed U.S. aid, Belgrade delivered him to The Hague. The political turnover finally enabled Serbia’s citizenry to begin reckoning with Serbian war crimes, a prerequisite to any long-term stability in the region.

  The man who probably contributed more than any other single individual to Milosevic’s battlefield defeat was General Wesley Clark. The NATO bombing campaign succeeded in removing brutal Serb police units from Kosovo, in ensuring the return of 1.3 million Kosovo Albanians, and in securing for Albanians the right of self-governance. Yet in Washington Clark was a pariah. In July 1999 he was curtly informed that he would be replaced as supreme allied commander for Europe. This forced his retirement and ended thirty-four years of distinguished military service. Favoring humanitarian intervention had never been a great career move.

  Samantha Power

  Graffiti tributes to Western leaders scrawled in Pristina by Kosovo Albanians after Serbia’s surrender.

  AP/Wide World Photos

  Former Serbian president Slobodan Milosevic escorted by a UN security guard into the courtroom at The Hague, July 2000.

  Chapter 13

  Lemkin’s Courtroom Legacy

  Courtroom Dramas

  When Serbian president Slobodan Milosevic arrived at the International War Crimes Tribunal at The Hague, he was the thirty-ninth Yugoslav war crimes suspect to end up behind UN bars. He was initially indicted only for crimes against humanity carried out in Kosovo, but the UN prosecution later broadened the indictment to charge him with genocide in Bosnia. His wife and political accomplice, Mirjana Markovic, condemned the tribunal as a “concentration camp with gas chambers for Serbs.” In his initial courtroom appearance, Milosevic lashed out at the “false tribunal” and refused to accept legal counsel. When asked if he wanted to hear his fifty-one-page indictment read to him, he snorted, “That’s your problem.”1 At a subsequent session he elaborated: “Don’t bother me and make me listen for hours on end to the reading of a text written at the intellectual level of a 7-year-old child, or rather, let me correct myself, a retarded 7-year-old.”2

  But if Milosevic retained a tough pose, times had changed. As he geared up for a long courtroom scene against NATO and the “illegitimate” tribunal, the presiding judge, Richard May, interrupted him. Irritated by the defendant’s insouciance, Judge May simply turned off Milosevic’s microphone and adjourned the session. “This is not the time for speeches,” May said. The once mighty Serbian strongman was escorted from the trial chamber back to his ten-by-seventeen-foot cell. In August 2001, desperate for attention, Milosevic broke the tribunal rules, making a prohibited phone call to Fox News. On the air he repeated his charges against the “illegal” court and said of his role in the Balkan wars, “I’m proud of everything I did.”3 The tribunal reprimanded him and threatened to revoke his phone privileges. The man who ran circles around Western negotiators for nearly a decade was told another transgression would cost him his monthly phone card and seven-minute allotment of daily phone calls.

  The Hague detention center, once a deserted emblem of Western half-heartedness, had become the bustling home to many of Milosevic’s former partners, subordinates, and foes. Bosnian Serb general Radislav Krstic
, commander of the Drina Corps that had carried out the assault on Srebrenica, had also ended up in the Dutch prison facility. U.S. troops swooped up Krstic in eastern Bosnia in December 1998.4 The arrest was unusual, as the U.S. troops enforcing Bosnia’s 1995 Dayton peace agreement had largely abstained from making raids. On the eve of the U.S. deployment, Clinton pollster Dick Morris asked Americans which tasks U.S. soldiers should be performing in Bosnia. The results daunted the president. “The arrest of war criminals was the one they most opposed using American troops for,” said Morris. “I think probably because of the heritage of Somalia, hunting for the bad guy.” Morris believed that the Bosnian war criminals were never “well enough known for them to be hated.” He estimated that Bosnian Serb political leader Radovan Karadzic had 20 percent name recognition as against close to 100 percent for Saddam Hussein: “I don’t think that the public ever really got that Karadzic was a son of a bitch. Because he wasn’t a head of state, just a general, I think most people didn’t know the name.”5 Karadzic was not in fact a general but a self-styled “president.”

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

  But by late 1998, Serb unity had crumbled and NATO had changed its arrest policy. U.S. intelligence officers knew that Krstic was not as dangerous as Mladic (which Krstic himself would argue at length in the Dutch courtroom). And because the UN had kept his indictment secret, he was caught off guard by the sudden confrontation.6

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

  A story about how officers and soldiers of the Bosnian Serb army, well-educated men, men who professed to be professional soldiers, who professed to have faith in the Almighty and who professed to represent the ideals of a proud and distinguished Serbian past, organized, planned and willingly participated in genocide or stood silent in the face of it.7

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

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

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

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

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

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

  •Organizing the killing squads;

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

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

  •Preparing and coordinating propaganda from the Drina Corps and all levels of [Serb] military and government . . . to rebut the well-founded claims that atrocities had taken place.8

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

  Although the Bosnian atrocities had stirred vivid reminders of the Holocaust, the genocide question remained contested years after the war’s end. It was clear that the Bosnian Serbs, backed by Milosevic in Serbia, had used the 1992–1995 war to purge all Muslims from the territory under their control and had killed tens of thousands of civilians. Yet they did not murder each and every Muslim they got their hands on, as the Nazis and the Rwandan Hutu had done. If the Holocaust and Rwanda were clear-cut genocides, Bosnia presented the judges with the challenge of deciding how broad a definition of genocide to adopt. Because only Muslim men of fighting age were systematically executed around Srebrenica, whereas women and children were by and large deported, the Krstic defense team argued that the Serbs did not commit genocide.

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

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

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

  “Stated otherwise,” Rodrigues said, “what was ethnic cleansing became genocide.”9 The UN court found that the genocide convention required physical and biological destruction but did not require a plan to exterminate all the members of a group. “In July 1995,” the judge said, addressing Krstic’s personal responsibility, “you agreed to evil. . . . You are guilty of having agreed to the plan to conduct mass executions of all the men of fighting age. You are therefore guilty of genocide, General Krstic.” Since the Nuremberg judges had ignored Lemkin’s appeals and excluded genocide from their verdicts, this marked the first ever genocide conviction in Europe. Krstic, fifty-three, was sentenced to serve forty-six years in prison, the court’s harshest sentence to date.

  Background: The Path to Enforcement

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

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

  But in 1959, the year of Lemkin’s death, the legal routes to enforcement promised only dead ends.10 Why, in the 1990s, did the world suddenly begin punishing genocide, when the genocide convention had been violated so flagrantly and ignored so unblinkingly since the Holocaust? And what, if anything, have the new courts achieved?

  Iraq

  The first postwar wave of enthusiasm for international war crimes trials came in 1990 after Saddam Hussein invaded Kuwait. Margaret Thatcher first mooted the idea of prosecuting the Iraqi dictator for war crimes because he seized Western hostages. The British prime minister said in a September 1990 television interview, “If anything happened to those hostages then sooner or later when any hostilities were over we could do what we did at Nuremberg and prosecute the requisite people for their totally uncivilized and brutal behavior. . . . They cannot say: ‘We were under orders.’ That was the message of Nuremberg.”11 President Bush endorsed Thatcher’s recommendation in mid-October. He warned, “Remember, when Hitler’s war ended, there were the Nuremberg Trials.”12 On October 28, 1990, Bush elaborated: