A Problem From Hell

by Samantha Power

  Although some of the corrupt early employees were fired, the tribunal still had not gained its stride by late 2001. International observers continued to fault the snail’s pace of the proceedings. Repeated delays exasperated Rwanda’s survivors. In addition, human rights advocates began noting the severe due process ramifications to locking up defendants for years on end without trial.

  Department of State, Rewards for Justice Program

  In 1999 the State Department issued a $5 million ransom for information leading to the apprehension of Yugoslavia’s three leading war crimes suspects. U.S. forces in the Balkans were not ordered to arrest the indictees.

  Courting Attention

  Despite the presence of high-powered defendants in UN custody, none of the early trials had the effect on survivors that the 1961 trial of Adolf Eichmann, the Nazi official in charge of Jewish deportations, for instance, had on Israelis. Citizens in Rwanda and Bosnia paid almost no attention to the court proceedings. Israelis recall the days when they huddled around their radios to hear for the first time the details of Nazi horrors, whereas Bosnians and Rwandans just shrug when the courts are mentioned. They are deemed irrelevant to their daily lives. Ignorance is rife.

  For their first six years of existence, the tribunals themselves did virtually nothing to reach out to the countries on whose behalf they were doing justice. The courts thus missed opportunities to deter, to legitimate victim claims, and to establish individual (as opposed to collective) guilt. Although almost every Bosnian had a television set, the trials at The Hague were not broadcast live back to the region. Indeed, shockingly, the UN Press Office did not translate its press releases into Serbo-Croatian until February 2000. Only a few of the indictments were available online. Judges and lawyers accustomed to working within national judicial systems that needed no promotion had spent their careers assiduously shying away from the press; they had no experience attracting attention, as they needed to do if they were to engage Bosnians or Rwandans with the proceedings. As one senior lawyer in the court registry at The Hague put it:

  In Western countries courts automatically have a certain respect. They are recognized in the community. People understand their role; they are covered in the press; citizens may serve in juries. They simply don’t need to promote themselves. But if you are doing what we are doing, hundreds of miles away, in a different language under a different system, you have to do things that courts don’t ordinarily do. . . . If you just sit here and hear cases, you simply won’t get the job done.

  The trials also moved so slowly that local interest was hard to sustain. Conducting complex investigations in foreign lands through interpreters years after the crimes and without much pertinent international legal precedent was no easy chore. Courtroom participants had to adjust to the hybrid nature of the law itself. The tribunals’ statute took its adversarial nature and rules of evidence from the Anglo-American tradition, but, as in continental Europe, it denied trial by jury, allowed hearsay, and permitted the questioning of defendants. As precedents were set and the tribunals began to establish a jurisprudential, historical record of the war, the trial pace began to quicken somewhat.

  But the slowness could not be blamed on the novelty and complexity of the process alone. Tribunal courtooms in the The Hague and Arusha were more often vacant than full. Judges allowed innumerable breaks in the proceedings and rarely challenged the relevancy of the counsels’ frequently rambling lines of inquiry. Defense counsel earned in excess of $110 per hour, an unremarkable rate in the United States and Western Europe but a monthly wage, or windfall, for Balkan or African lawyers. The incentive structure thus invited prolix posturing, as defense lawyers stalled trials in order to be able to bill more hours.

  In late 1999 the Hague tribunal finally launched an outreach program designed to help the trials reach citizens of the former Yugoslavia. This small office of five was set up to conduct educational seminars, arrange visits for courtroom personnel to the Balkans, and attempt to generate local media coverage. Although it was a tall order to win (or open) the minds of a skeptical Bosnian audience, the new outreach office made a few early inroads. With its help, Mirko Klarin, the same independent journalist who in 1991 had recommended the establishment of an international war crimes tribunal and who had covered the Hague court’s proceedings since they began, prepared fifteen-minute weekly television summaries of the tribunal’s activities. Only Bosnia’s independent television networks picked them up, but this at least meant some viewership. One more daring proposal was to stage actual portions of the UN trials on Balkan soil. Some groaned at the mammoth security risks of hauling defendants, lawyers, and judges to a volatile region. Others argued that the money could be better spent on investigations or that the gimmicky nature of a road trip would necessarily make the proceedings seem more like show trials than trials. The greatest boon to interest in the tribunals will be the Milosevic trial, which will start in 2002.

  AP/Wide World Photos

  Indicted by the UN war crimes tribunal for war crimes and genocide in 1995, Bosnian Serb army commander General Ratko Mladic remained at large as of December 2001. Mladic here relaxes in March 1996 at one of his command posts.

  Radio is Rwanda’s media outlet of choice. But although the UN tribunal prosecuted well-known, high-level suspects right from the start, few Rwandans listened to the proceedings. In 2000, Internews, an entrepreneurial American NGO, prepared a documentary in the Rwandan language on the UN trials in Arusha. New York producer Mandy Jacobson arranged town-hall-style screening sessions throughout Rwanda. The Rwandans who gathered had never before seen trial footage and gasped at the sight of their tormentors in the dock.

  Truth-Telling

  For all of the imperfections of the two courts, one reason many tribunal staff were converted to the idea of moving portions of trials to the Balkans and Rwanda was that they thought the proceedings were increasingly delivering messages essential to reconciliation. For the first time, the perpetrators of genocide and crimes against humanity were being forced to appear before a court of law, where their self-serving arguments could be formally challenged. If Serbia’s Slobodan Milosevic and Rwanda’s Théoneste Bagosora once insisted that “uncontrolled elements” were carrying out the killings, the prosecutors at the Yugoslav and Rwanda tribunals had the opportunity to dismantle these claims, showing that these men were very much in control. The evidence proved that what were once called “failed states” were in fact all too successful in implementing their designs.

  In order to achieve their truth-telling aims, prosecutors presented damning visual and oral evidence, including documentary paper trails and hundreds of witness interviews. The very same defendants who claimed to be “out of the loop” were proven repeatedly to be central to it. The lawyers spelled out the elaborate command and control arrangements within each of the factions, demonstrating that military and political leaders were in close contact with the forces committing atrocities.

  In the Srebrenica trial, for example, General Krstic said that General Mladic, the true villain, had already dispatched him to Zepa when Mladic began killing the men around Srebrenica.35 Krstic said this alternative assignment was “no accident” because General Mladic would never have had the nerve to order the murder of so many men in his presence. Yet the prosecution presented evidence that placed Krstic at the scene of the crime and that recorded his directives. They showed Bosnian Serb leader Karadzic later hailing Krstic as a “great commander” and decorating him for his heroics in “planning and implementing the Srebrenica operation.”36

  In both the Yugoslav and the Rwanda tribunals, the self-serving defendants have aided the prosecutors. In the hopes of securing lighter sentences, the suspects have frequently turned on one another. This has facilitated the prosecution of several perpetrators and enabled the courts to establish certain “facts” by broad consensus. Krstic, as mentioned, implicated General Mladic and five more junior officers, describing them as “mad” and responsible for “anyt
hing that might have gone on.”37

  The trials have also belied a second claim made by the perpetrators (and, incidentally, by Western policymakers)—that the “ethnic” violence simply exploded spontaneously. Mounds of detailed evidence have demonstrated sophisticated planning and organization behind the bloodiest operations. Elaborate requisitioning of men, vehicles, ammunition, and remote locations were indispensable to most large-scale massacres. The Rwanda trials have shown how lists of Tutsi victims were prepared and systematically distributed down the chain of command, from the state level, to the regional level, to the prefectures, to the communes, and then to the individual hamlets, or cellules. That perpetrators and planners were so few in number and so identifiable indicated that they also could have been stopped.

  In the case of the Yugoslav tribunal, although perpetrators clearly committed their crimes on ethnic grounds, the climate in the detention center that houses war crimes suspects has revealed the limits to much of the ethnic passion in the Balkans. The ruddy-faced, chain-smoking Irishman named Tim McFadden who runs the UN prison configured the facility to mandate mixing among prisoners of all ethnicities. None of the prison floors are segregated by nationality. Those dedicated to killing members of rival ethnic groups have thus been forced to watch television, take English or pottery classes, or lift weights with their onetime foes. The inmates have not become security risks to the guards or to one another. Ironically, as the trials have progressed and indictees of the same ethnic group have begun implicating one another in an effort to mitigate their own sentences, severe intra-ethnic security risks have arisen. McFadden is now concocting schemes to separate members of the same ethnic group who once conspired.

  The trials at the ad hoc tribunals have also affirmed the ghastly claims of survivors, refugees, and Western journalists. The courts were set up, as the Nuremberg court was before them, to verify “incredible events by credible evidence.”38 So far they have given some acknowledgment to victims who were once taunted that their suffering would go unnoticed, unremembered, and above all unredressed. Although the crimes under discussion were eventually documented by journalists in Western countries, the local media in the Balkans and Rwanda usually dismissed the reports as “Western lies.” Thus, many citizens still refuse to accept the nature or scale of the crimes committed in their name.

  During the Krstic trial, again, a former Bosnian Serb soldier took the stand on behalf of the defense and said, “As a human being, I cannot believe.” A former officer in the Drina Corps agreed, noting, “I do not wish or want to believe.” He claimed that the “Muslim media” had wildly exaggerated the number of men killed, calling the figure of more than 7,000 murdered Muslims “incredible.” It would have been noticed, he said, if “7,000 sparrows had been killed, let alone people.”39

  But the prosecution team presented vivid color photos of mass graves and the clothed skeletons within them. They screened satellite photos of the men gathered in fields awaiting execution. They ran Bosnian Serb television footage of the Serbs hauling men from the woods into buses and firing antiaircraft guns into the forests where the Muslims were scrambling for their lives. A lower-level Bosnian Serb soldier testified that the execution squads fired “over and over. . . until their fingers hurt.” And perhaps most damning, the prosecution played intercepted telephone conversations between senior Serb officials. After weeks of denying his own role, General Krstic could only sit stunned and motionless when the prosecution played a recording from July 15, 1995, in which a Serb colonel and Krstic discussed the murder and disposal of their Muslim captives. The colonel asks whether he can have more troops because “there are still 3,500 parcels that I have to distribute.” “Parcels” was code for Muslim men and “distribute” code for murder. “Fuck it,” Krstic is heard saying, “I’ll see what I can do.”40

  Krstic grew visibly agitated in the courtroom as the recording was played, but he recovered quickly, denying his own involvement. Still, it was significant that Krstic’s legal team never contested that more than 7,000 men had been murdered. When Krstic was cross-examined as to why he did not report these crimes, he claimed he had “intended” to do so but “feared for my security and that of my family.”41 “Not in my wildest dreams was I able to take steps,” Krstic said, confirming the savage event and the cover-up.42 Serbs had been the original aggressors in the wars in Slovenia, Croatia, Bosnia, and Kosovo, but their local leaders had emphasized only their suffering. Gradually, thanks in part to The Hague’s refusal to go away, Serbia’s population began to face the atrocities carried out in their name. Many even recognized that because the UN tribunal was establishing individual responsibility, it could do a great deal to rehabilitate Serbia in the eyes of the rest of the world.

  It was not just the perpetrators or the ordinary Serb civilians who needed to hear evidence of what had occurred. It was also, alas, the victims, many of whom still clung to hope. In November 2000, a Muslim woman testified about the fall of Srebrenica and the disappearance of her husband and two sons. Before stepping off the stand, she asked the judges if she could herself pose a question to General Krstic. One of her sons was thirteen when Serb soldiers pulled him away from her outside the Dutch UN base. “I plead that you ask Mr. Krstic if there is any hope,” she said to the judge, as she choked on her grief. “At least for that child which they took alive from my hands. I dream about him. He speaks to me. Does Mr. Krstic know if he is somewhere, alive?” Krstic sat frozen, his head down.43

  Chapter 14

  Conclusion

  Over the course of the last century, the United States has made modest progress in its responses to genocide. The persistence and proliferation of dissenters within the U.S. government and human rights advocates outside it have made a policy of silence in the face of genocide more difficult to sustain. As Serbian president Slobodan Milosevic learned, state sovereignty no longer necessarily shields a perpetrator of genocide from either military intervention or courtroom punishment.

  But such advances have been eclipsed by America’s toleration of unspeakable atrocities, often committed in clear view. The personalities and geopolitical constraints influencing U.S. decision-making have shifted with time, but the United States has consistently refused to take risks in order to suppress genocide. The United States is not alone. The states bordering genocidal societies and the European powers have looked away as well. Despite broad public consensus that genocide should “never again” be allowed, and a good deal of triumphalism about the ascent of liberal democratic values, the last decade of the twentieth century was one of the most deadly in the grimmest century on record. Rwandan Hutus in 1994 could freely, joyfully, and systematically slaughter 8,000 Tutsi a day for 100 days without any foreign interference. Genocide occurred after the Cold War; after the growth of human rights groups; after the advent of technology that allowed for instant communication; after the erection of the Holocaust Museum on the Mall in Washington, D.C.

  Perversely, America’s public awareness of the Holocaust often seemed to set the bar for concern so high that we were able to tell ourselves that contemporary genocides were not measuring up. As the writer David Rieff noted, “never again” might best be defined as “Never again would Germans kill Jews in Europe in the 1940s.”1 Either by averting their eyes or attending to more pressing conventional strategic and political concerns, U.S. leaders who have denounced the Holocaust have themselves repeatedly allowed genocide.

  What is most shocking about America’s reaction to Turkey’s killing of Armenians, the Holocaust, Pol Pot’s reign of terror, Iraq’s slaughter of the Kurds, Bosnian Serbs’ mass murder of Muslims, and the Hutu elimination of Tutsi is not that the United States refused to deploy U.S. ground forces to combat the atrocities. For much of the century, even the most ardent interventionists did not lobby for U.S. ground invasions. What is most shocking is that U.S. policymakers did almost nothing to deter the crime. Because America’s “vital national interests” were not considered imperiled by mere genocide
, senior U.S. officials did not give genocide the moral attention it warranted. Instead of undertaking steps along a continuum of intervention—from condemning the perpetrators or cutting off U.S aid to bombing or rallying a multinational invasion force—U.S. officials tended to trust in negotiation, cling to diplomatic niceties and “neutrality,” and ship humanitarian aid.

  Indeed, on occasion the United States directly or indirectly aided those committing genocide. It orchestrated the vote in the UN Credentials Committee to favor the Khmer Rouge. It sided with and supplied U.S. agricultural and manufacturing credits to Iraq while Saddam Hussein was attempting to wipe out the country’s Kurds. Along with its European allies, it maintained an arms embargo against the Bosnian Muslims even after it was clear that the arms ban prevented the Muslims from defending themselves. It used its clout on the UN Security Council to mandate the withdrawal of UN peacekeepers from Rwanda and block efforts to redeploy there. To the people of Bosnia and Rwanda, the United States and its Security Council allies held out the promise of protection—a promise that that they were not prepared to keep.

  The key question, after a century of false promise, is: Why does the United States stand so idly by?

  Knowledge

  The most common response is, “We didn’t know.” This is not true. To be sure, the information emanating from countries victimized by genocide was imperfect. Embassy personnel were withdrawn, intelligence assets on the ground were scarce, editors were typically reluctant to assign their reporters to places where neither U.S. interests nor American readers were engaged, and journalists who attempted to report the atrocities were limited in their mobility. As a result, refugee claims were difficult to confirm and body counts notoriously hard to establish. Because genocide is usually veiled under the cover of war, some U.S. officials at first had genuine difficulty distinguishing deliberate atrocities against civilians from conventional conflict.