The Butcher’s Trail. The Legacy


This is the second excerpt (Chapter 13, “The Legacy”, 27 pages) from Julian Borges’ acclaimed book The Butcher’s Trail : how the search for Balkan war criminals became the world’s most successful manhunt. New York : Other Press, 2016. xxx, 400 pages : illustrations, maps. It follows my own analysis and the author’s  Introduction to his work.
I encourage BlogGuinée’s visitors to purchase and read this work. It is a well-written account of a key episode in the permanent and worldwide struggle against dictatorship, human rights violations, genocide, war crimes and crimes against humanity.
Tierno S. Bah

Chapter 13
The Legacy

After these verdicts, it’s very difficult to speak about justice in the region.
—Nataša Kandić, Serbian human rights activist

Julian Borge

There were 161 names on the list of indicted war crimes suspects drawn up by the International Criminal Tribunal for the former Yugoslavia. Ten died before they ever got to The Hague. Another twenty had their indictments withdrawn. Of the remainder, sixty-five fugitives were tracked down and arrested.
According to the official records, the rest handed themselves in. But the real number taken to the Dutch capital against their will was much higher. Many arrests were dressed up as “voluntary surrenders” so the indictees could salvage some dignity and receive cash benefits offered by their governments for coming out of hiding.
Almost no one would have submitted to justice willingly if the likely alternative had not been apprehension. Without the Balkan manhunt, the cells in Scheveningen prison would still be empty and the Hague Tribunal would have been no more than a hollow gesture in the general direction of international justice.

There were 161 names on the list of indicted war crimes suspects drawn up by the International Criminal Tribunal for the former Yugoslavia. Ten died before they ever got to The Hague. Another twenty had their indictments withdrawn. Of the remainder, sixty-five fugitives were tracked down and arrested.
According to the official records, the rest handed themselves in. But the real number taken to the Dutch capital against their will was much higher. Many arrests were dressed up as “voluntary surrenders” so the indictees could salvage some dignity and receive cash benefits offered by their governments for coming out of hiding.
Almost no one would have submitted to justice willingly if the likely alternative had not been apprehension. Without the Balkan manhunt, the cells in Scheveningen prison would still be empty and the Hague Tribunal would have been no more than a hollow gesture in the general direction of international justice.

The three men most responsible for unleashing carnage on the people of the former Yugoslavia, the three master butchers, Slobodan Milošević, Radovan Karadžić, and Ratko Mladić, were brought one by one to stand before the Hague Tribunal. But the triumvirate was never reunited there. Milošević—Yugoslavia’s kamikaze pilot who brought his country and its people down in flames—ultimately cheated final legal judgment. In March 2006, four years into his turgidly long trial, he died in his cell of a heart attack, well before Karadžić or Mladić were even caught.

The two Bosnian Serb leaders, both indicted for genocide, did meet again in the tribunal’s Courtroom Number One in a moment of farce in January 2014. Like the revival of an old double act after twenty years in the wilderness, the two pensioners dressed in their Sunday best and struggled to recover their swagger. Karadžić had called Mladić to the stand to testify for him, but proceedings had to be suspended because the old general had left his dentures in his cell. Even with his teeth in, he refused to answer the questions put to him, insisting on reading a prepared statement instead.
When the judges refused to admit the seven-page soliloquy as evidence, Mladić snarled at the bench: “Thanks for preventing me from stating what I wanted to say. You have confirmed to me that the Hague Tribunal is not a court of law but a Satanic court.”

At the height of their power, Karadžić and Mladić could never have been described as friends, but they had complemented each other. Mladić had done the dirty, bloody work that was necessary to make Karadžić’s vision of an ethnically pure Serb republic a reality. Karadžić’s bloviation and clunky poetry provided the gossamer veil of romanticism and deniability for Mladić’s slaughter.

In the glare of global scrutiny in the Hague courtroom, the two men found common cause. Karadžić addressed Mladić respectfully as “General, sir,” and on his way out of the court, Mladić could be heard to tell Karadžić, “Thanks a lot, Radovan. I’m sorry these idiots wouldn’t let me speak. They defend NATO bombs.”
In the course of their trials, the two men sought to keep alive the cult of exclusive victimhood they had used first to rationalize, then to obscure the mass killings for which they stood accused. Their strategy was to play the martyr and fill the court with noise, in the hope that the tens of thousands killed at their behest were kept silent, without a compelling voice in the courtroom.

The trials have ground on at a glacial pace in the tribunal’s bid to be comprehensive and fair beyond reproach. The lawyers in court, their billing meters ticking, have little interest in stepping up the tempo. The court has made many of them rich. And meanwhile the defendants bide their time inside the walls of the old Dutch prison in The Hague’s beach suburb of Scheveningen, where the Nazis once locked up members of the Dutch resistance. In 2005, a new state-of-the-art facility was built inside the complex to house prisoners from the ICTY and indictees of the International Criminal Court, all of them so far African
The prison wardens at Scheveningen witness a daily phenomenon that many of citizens of the former Yugoslavia could have predicted. The warlords, militiamen, and ultranationalists from all sides, who were once ready to kill in the name of ethnic distinctions, have found they get along famously when locked up together. They play in mixed football teams, cook each other meals, and even swap clothes. In this Dutch prison, a thousand miles from the Balkans, Tito’s dream of Brotherhood and Unity has achieved a strange afterlife, providing an esprit de corps among war crimes defendants from Yugoslavia’s constituent nations.

Wry post-Yugoslav jokes often imagined a scene in heaven or hell where the three main nationalist leaders—Serbia’s Slobodan Milošević, Croatia’s strongman Franjo Tudjman, and the Bosnian Muslim leader Alija Izetbegović—meet, chat, and spar. In the tastefully designed Dutch purgatory at Scheveningen, only Milošević turned up to act out the joke for real. The other two nationalist presidents died while under investigation by the ICTY: Tudjman for ethnic cleansing in central Bosnia and the killing of Serb civilians in Croatia’s Krajina region, and Izetbegović for importing Arab mujahideen, who fought and allegedly committed war crimes outside the Bosnian army’s chain of command
In the absence of other erstwhile heads of state, Milošević played the role of the boss of bosses, requiring people to address him as Mr. President, remaining largely aloof from the crowd. He never joined in the football games, just the occasional bit of volleyball, in which he participated in the same condescending manner as an elder statesman on the campaign trail.
“He always acted like he was the boss, with his chin held up in the air,” recalled Naser Orić, a Bosnian army officer. “Someone was bringing him in brandy and whisky in milk or juice cartons. He always smelled of alcohol.”
Orić was tried, and eventually acquitted on appeal, for alleged war crimes committed in raids mounted from the Srebrenica enclave. I met him in February 2014 in the café of a Sarajevo gas station. He came in a black leather bomber jacket, and chewed on a Cuban cigar as he told me about the security precautions he had to take to avoid abduction by Serbian intelligence. He also explained how his earlier career was intertwined with Milošević in a manner that embodied the complexities of Yugoslavia’s collapse.
By a twist of Balkan fate, Orić had once served in Milošević’s security detail. He stood guard in June 1989 when the then Serbian president unleashed the forces of nationalism with his speech marking the six-hundredth anniversary of the Battle of Kosovo. As the young Yugoslav policeman stared out at the crowd he could see bands of Serb Chetniks dressed in the same fur hats and death’s-head badges their forefathers had worn when they slaughtered Bosnian Muslims like him in the Second World War.
Orić grew even more uneasy in the run-up to the war in 1991 when he was ordered to take part in the smuggling of arms from Belgrade to Serb separatists in Croatia.
“We were told that if any civilians saw the guns we had to kill them. Not even a chicken can see the weapons. That was another sign of what was going to happen,” Orić recalled. He fled his police post soon after, moving to Bosnia with warnings of the approaching catastrophe that few of his fellow Bosniaks could bring themselves to believe.
Orić was finally reunited with Milošević in Scheveningen, where he witnessed the last days of the leader who had unchained Yugoslavia’s demons. He believes Milošević’s death was the suicidal act of a lonely and broken man. “Milošević was always longing for his wife, Mira. When she went to Moscow, he starting trying to get sent there for treatment for his heart condition. He was taking blood pressure pills and other pills to counter the effect of the blood pressure pills. When he was refused permission to go to Moscow and see Mira, he just stopped taking his pills.”
When Karadžić arrived in Scheveningen in July 2008, he also sought a leadership role in the cell block, albeit in a more garrulous, convivial manner than Milošević, playing the gracious host at visiting times, assiduously remembering the names of fellow inmates’ wives and children.
He continued to pursue his obsession with maps, putting up a large city plan of Sarajevo on the wall of his cell, on which he stuck pins marking alleged locations of Bosnian army positions. His defense was that the Bosnian military was using the city as one huge human shield.
Mladić is on a different floor of the facility and hardly sees Karadžić. By all accounts, he cuts a more reclusive and curmudgeonly figure, spending long spells alone in his cell.
The rest of Schveningen’s Balkan population has sorted itself into groups according to shared interests rather than ethnicity. For a while, a five-a-side football club developed around the more athletic of the professional soldiers, including Orić, as well as the Croatian general Ante Gotovina, the Montenegrin colonel Veselin Šljivančanin, and Ramush Haradinaj, a former prime minister of Kosovo and commander in the Kosovo Liberation Army.
“We mostly played in mixed teams, but on at least one occasion there was a Serbs versus Croats game. Gotovina was marking me, but I have to say, he was very correct,” said Šljivančanin, who was jailed for ten years for his role in the executions of more than 260 Croat prisoners near Vukovar
When he was released in July 2011, Šljivančanin sought out Gotovina to say goodbye and the two officers embraced. The Montenegrin also got on well with Orić.
“He loved sport. He was very proud and very correct. We had no conflict. He just wanted to do sport,” Šljivančanin recalled of Gotovina.
Orić agreed there was a group of inmates who coalesced around a type of military-sporting code. “Gotovina and I always got along, and Šljivančanin and I were on the same team. He played on the right wing. I was on the left wing.”
“All the people there were always very pleasant and they always wanted to help. We looked out for each other. If someone looked from outside at us they would say: These people are friends. Why did they go to war?” said Momčilo Krajišnik , Karadžić’s closest associate and one of the architects of Bosnia’s ethnic cleansing. “We had very close relationships. We had friendly relations. Our common problem brought us close together. I had better conversations with some Muslims and Croats than with some Serbs simply because these men were more compatible with me. If you go to trial and you don’t have a suit, someone lends you a suit. If someone makes a nice meal, you wouldn’t say I will give it just to Serbs, you would give it to Croats and Muslims. We all ate together. When we talked we discussed different things, business, sports, and so on. It was civilized.”
The one exception to the prison bonhomie was Vojislav Šešelj, the leader of the Serbian Radical Party, who had recruited the ultra-nationalist paramilitary groups responsible for atrocities in Croatia and Bosnia. He was at least consistent in his snarling irascibility, showing no signs of mellowing once he was in custody. He swore constantly at the guards. He took no part in team sports and refused to be in the gym at the same time as Orić. He tormented Šljivančanin for having once been Tito’s bodyguard, “Tito’s piglet” Šešelj called him.
Orić told the story of a chess match between Šešelj and Mladen “Tuta” Naletilić, a Bosnian Croat crime boss who commanded a “convicts’ battalion” in the war and was sentenced to twenty years in prison for torture and forced labor. Šešelj was perpetually angry anyway, but the white-haired bewhiskered Croat wound him up further.

“Tuta was saying to Šešelj, ‘Your great-grandfather was a Croat, but was caught stealing an egg and was excommunicated.’ Šešelj got furious and ranted at Tuta, but whenever he lost his focus, Tuta would steal one of his pieces,” Orić said.
It could be a scene from any village square in the Balkans. Two aging men squabbling over a chessboard. But Schveningen is a far more comfortable place to grow old than the war-ruined countries they left behind. It is half prison, half spa. It has yoga classes, top-flight medical care, language-study rooms, a library, classes on pottery and painting, musical instruments, personal trainers, public sculpture and murals in the courtyard. There is an extensive cafeteria, but the prisoners are allowed to order in groceries and do their own cooking, using a €15 weekly stipend. Families can spend seven consecutive days per month with the detainee, and even girlfriends are allowed conjugal visits. According to the prison authorities, quite a number of babies have been conceived at Scheveningen
Haradinaj told an acquaintance: “In Pristina, you could stick three stars on this place and charge money.”
“I honestly expected it was going to be like Guantánamo,” Orić said. “But if our children had been looking for a retirement home for us, they couldn’t have done better. No retirement home has such conditions.”
The dissonance is jarring. Punishment for some of the worst crimes humanity has witnessed is being handled by the Dutch penal system, one of the most liberal on the planet. While most of the inmates tend to mellow in such conditions, few have shown genuine remorse.
Krajišnik, who played a pivotal role in organizing the ethnic cleansing of Bosnia from his comfortable perch in Pale, now claims to be a humanist at heart. “I never made distinctions between people on the basis of their ethnicity and religion. I have always believed that God made all men so I hate none,” he said
Krajišnik is now back in Pale after having served two-thirds of his twenty-year sentence, most of it in British jails. He runs various businesses from a suite of offices above a gas station on the road into town from Sarajevo. Pale itself is as picturesque as ever: serene, alpine, small. At the time Karadžić and Mladić strutted through its streets, it was Bosnia’s Berchtesgaden, a tranquil hideaway from which to plan the ethnic purification of nations.
Krajišnik says he found Zen-like equanimity while in prison, but he does not acknowledge having personally committed any wrong over the course of the Bosnian war. All the bad things were done by other people, whom he will not name. “I don’t know what happened during the war. It was clear that it takes just a few of those pathological murderers to set a whole city on fire.” One man in prison, he recalled, would wake up in the middle of the night sweating, convinced he could see the faces of all his victims at the window in the dark. Not Krajišnik. He sleeps peacefully.
It is probably too much to ask of justice that it drives the guilty to remorse. A spartan prison regime of bread and water and bucket toilets probably would not have made any of the perpetrators any sorrier but rather just fed the cult of victimhood that is the lifeblood of the nationalist cause.
Most of the surviving victims and families of the dead are appalled at the cushy conditions at Scheveningen, but the imbalance between the horror visited on them and the redress offered by any system of justice is unbridgeable anyway. For such crimes there will never be any such thing as closure and it was ever thus. In 1946, after the forty-seven minutes it took to sentence the convicts at Nuremberg, the American journalist Martha Gellhorn observed: “Justice seemed very small suddenly. Of course it had to be, for there was no punishment great enough for such guilt.”
The same was true more than sixty years later in the Balkans. A better measure of value of the Hague arrests is to contemplate the awfulness of the alternative, if the perpetrators had been left to walk free, an outcome that would have assigned no value at all to the tens of thousands of lives they took away.
The states that emerged from Yugoslavia are finding it hard enough to escape its debris. The task would be immeasurably harder if the demagogues and their regiment of butchers had been left at liberty after the war. This was probably the greatest contribution of the manhunt. It extracted the likes of Milošević, Karadžić, and Mladić from the Balkan arena and in so doing removed a powerful force for conflict and instability.
The assumption of the NATO generals after the Dayton Accords that peace and justice were alternatives, that the arrest of war criminals would bring an instant return to fighting, was proved wrong. What is striking about the post-Dayton period in Bosnia is an almost total absence of reprisals. Given the gory horrors of the conflict in which the killers were often neighbors well known to the victims’ families, that lack of vengeance is an astounding phenomenon. It is explained, at least in part, by the faith Bosnians put in the Hague Tribunal’s capacity to dispense justice.
The fact that the killing came to a halt so abruptly, as if a switch had been flicked, also demonstrates the decisive role of political leadership in creating the conditions for the mass murders of the 1990s. The nationalist leaders who assumed power at the breakup of Yugoslavia were not struggling to contain the murderous impulses of their people. On the contrary, they created circumstances for psychopaths and sadists to kill with impunity.
Once the leadership was removed and that permissive climate came to an end, the blood stopped flowing. So the manhunt for the architects of ethnic cleansing and their transfer to The Hague was not a trigger for renewed conflict. Quite the reverse. It was vital to prevent a return to bloodshed. The lesson taught by the pursuit of the Yugoslav war criminals is that there can be no sustainable peace without some measure of justice.
The effort to deliver justice was sprawling and complex. It brought together prosecutors from across the globe, led in turn by South African, Canadian, Swiss, and Belgian prosecutors. It was spearheaded by a maverick American diplomat, a handful of Polish commandos, Britain’s SAS, and later the special forces of the Netherlands, the United States, Germany, and France. For a few years at least, the manhunt was the top priority of the CIA, MI6, and the DGSE. Finally it was the work of officials, human rights activists, and journalists in the region who defied the omertà and denial enforced by nationalist propaganda.
Only on occasion was this a concerted international effort. For the most part, the manhunt was driven forward fitfully by the domino effect of separate actions. The perseverance of the ICTY prosecutors ultimately bore fruit with the arrival of sympathetic officials like Madeleine Albright, Wesley Clark, Jacques Klein, and Robin Cook. Their decision to enforce the tribunal’s indictments ultimately shamed others into following suit. They created a new norm. Fear of capture by armed commandos provoked voluntary surrenders. Once the cells in Scheveningen were being filled and the ICTY’s credibility was beyond doubt, it became easier for prosecutors to demand that Western aid and European Union membership be made conditional on states handing over the wanted men. That in turn emboldened pro-Western and democratic politicians in Serbia and Croatia to make a stand against the nationalist orthodoxy of denial.
The ultimate success of the Hague manhunt was not the outcome of some grand master plan. Nor were its many failures along the way. The eighteen lost months between the Dayton Accords and the first arrests by the international community were not signs of conspiracy but of timidity. NATO governments and their generals judged the peace in the region to be far more fragile than it was in reality. The people of the former Yugoslavia were weary of war and contemptuous of their leaders’ venality. Once Western policy-makers realized that there would be no backlash, and it was clear there would not be reprisals against their soldiers for carrying out detentions, they poured substantial resources into the hunt.
France was an exception. The French military dragged its feet throughout the process. It was the last of the five powers in Operation Amber Star to carry out arrests and was more of a hindrance than a help in tracking down Karadžić. To some extent, this reticence was a product of bitter experience. More French soldiers had been killed during the Bosnian war than peacekeepers from any other nation. Army commanders were not in a hurry to sacrifice more of their troops for an enterprise they believed would jeopardize the peace. But sentimentality about France’s historical ties with Serbia led some French officers to turn a blind eye to the atrocities committed in Serbia’s name. As to a secret deal with Karadžić, it may not be hard to imagine President Jacques Chirac purring assurances of immunity to the Bosnian Serb leader, particularly at a time French servicemen were being held hostage. But Karadžić never produced documentary proof to back such claims.
Nor is there any concrete evidence for Bosnian Serb claims of similar guarantees from the US diplomat Richard Holbrooke. America’s hesitancy to commit to the manhunt was a consequence of the Pentagon’s risk-averse culture after the Black Hawk Down disaster in Somalia. But that complex was eventually shrugged off. By the end of the Clinton administration, the pursuit of Karadžić in Bosnia represented the biggest mission deployment of US special forces anywhere in the world. Its failure reflected the fact, to be demonstrated later in the hunt for Osama bin Laden, that finding fugitives in their natural habitat is diabolically hard and strength in numbers is not necessarily an advantage to the pursuers. On the contrary, it can make it easier for the quarry to see them coming. That is why the ICTY’s own tracking team, for all its faults, proved a better value on an arrest-per-dollar basis than the far more formidable spy agencies deployed by the Western powers.
By saving the ICTY from oblivion, the manhunt changed legal history. Throughout the twentieth century, idealists had talked about a permanent international court that would hold accountable those responsible for the worst crimes, including political leaders and heads of state. There was a burst of enthusiasm for such a court in the immediate aftermath of the Nuremberg trials, but it subsided as the Cold War set in and such universalist idealism faded.
The end of the Cold War, however, set in motion a new drive to create institutions dispensing international justice. The examples set by the ICTY and its ad hoc African twin, the International Criminal Tribunal for Rwanda, showed such institutions could work and offered at least the hope of deterring future atrocities. The creation of the International Criminal Court (ICC) in 2002, not far from the ICTY’s headquarters in The Hague, marked a historic and significant transfer of legal authority from sovereign states to an international institution. More than 120 states now give the ICC the power to initiate proceedings against high functionaries suspected of serious crimes, including genocide, crimes against humanity, war crimes, and aggression 10

As was the case with the ICTY at its inception, few initially gave the ICC much chance of survival. It was designed to operate independently of the great powers in the UN Security Council. Its judges and prosecutor are elected on a one state, one vote principle. Without a dominant say, the major powers have distrusted the new court, fearing it might one day turn its attention to them. They have tried to suffocate it in the cradle. Clinton belatedly decided to sign the Rome Statute establishing the ICC on New Year’s Eve 2000, one of the last days of his presidency. His successor, George W. Bush, spent his first months in office seeking to reverse that decision and “unsign” the document. The bare-knuckle, legally dubious methods the United States and its allies employed in their post-9/11 war on terror only deepened the reluctance to risk scrutiny by a foreign court.
The Bush administration could not stop the ICC from coming into being, however. A rush of ten ratifications of the Rome Statute in April 2002 brought it over the threshold of the sixty member states necessary to bring it to life. It was formally born on July 1, 2002. Nations joined up faster than anyone had expected, in part because the court came to be seen as a counterweight to the Bush administration’s unilateralist leanings. Unlike most international institutions, it was the creation of mostly small and midsize nations* rather than the permanent five Security Council members.

n the long term, however, it is hard to run an international institution without Security Council support. The lack of US endorsement, along with India’s and China’s refusal to join, have hobbled the workings of the ICC, which depends on state contributions to function. It does not have an agency like the tracking team that is empowered and willing to carry out international arrests,11 and it can investigate war crimes against the wishes of the government involved only if it is armed with a referral from the UN Security Council. In practice that means that all eight ICC indictments up to 2014 have been against Africans. Washington, Moscow, and the other competing powers have less at stake in Africa, so have less reason to veto investigations. But the focus on African crimes has inevitably drawn accusations of racism and threats of a boycott from the African Union.
In the face of the slaughter in Syria and Iraq, the ICC has been powerless. With a return to sharp-edged great-power rivalry following the post–Cold War lull, there is a real danger of the ICC stalling. To this day, the ICTY is still the high-water mark of international justice for crimes against humanity.
That is not surprising. The conditions that permitted the pursuit and capture of the Hague indictees were unique. The crime scene was in Europe and was patrolled in the immediate postwar period by a substantial NATO force, which eventually agreed to act as the ICTY’s arresting officer. Furthermore, the governments of the region sorely wanted something that Europe had to offer, EU membership, giving Western capitals the sort of leverage that is hard to reproduce elsewhere.
The ICTY’s great achievement, pushing back the culture of impunity for mass atrocities, was born of a particular set of circumstances. Now, in the absence of those circumstances, its legacy is in danger of unraveling.
It was always going to be a fragile legacy, vulnerable to erosion. The justice on offer in The Hague was destined to be incomplete. More than 130,000 people were killed in the course of Yugoslavia’s disintegration, most of them civilian victims of war crimes. Across large swaths of Bosnia and Kosovo, there were atrocities in almost every town. In the face of murder on this scale, the Hague indictment list of 161 suspects was illustrative rather than comprehensive. Originally intended to net the worst offenders and architects of ethnic cleansing, the Hague list ended up a mixed bag, involving plenty of small-fry prison guards and soldiers simply because they were easy to indict when the court was fighting for survival. Even after all the suspects on the list had been rounded up and transferred to The Hague, or otherwise accounted for, it left a lot of killers at large in the Balkans and many atrocities ignored and forgotten by justice.
In Serb eyes, the justice meted out by the Hague Tribunal was partial in more ways than one. Crimes against Serbs, they say, have largely gone unpunished. They point in particular to the killings of hundreds of mostly elderly Serbs in Croatia in the aftermath of Operation Storm in August 1995, and the murder of Serb civilians at the hands of the Kosovo Liberation Army (KLA) guerrillas after the 1999 war. There was outrage over the acquittal of Orić, the Bosniak commander in Srebrenica, and of Haradinaj, the former KLA commander. The latter’s trial was marked by the death and disappearance of several of the witnesses.
The Serbs are right to think that crimes against their countrymen have gone unpunished but incorrect to think they are alone in being so wronged. There are too many graves containing the bones of all ethnicities for international justice to cope with, given finite resources. Such inadequacy does not discriminate against Serbs in favor of Bosniaks, Croats, and Kosovars. It discriminates against victims in favor of perpetrators.
Some of the deficit has been made up by national war crimes courts established in the former Yugoslav states—another legacy of the ICTY. The parallel courts in Serbia, Croatia, and Bosnia have been able to cooperate better than expected and have mounted hundreds of prosecutions. However, they lack political support and have on occasion stumbled spectacularly. In 2013, the court in Sarajevo was forced to release twelve men who had been indicted for war crimes, including six allegedly involved in the Srebrenica massacres, because the European Court of Human Rights in Strasbourg ruled they had been tried under the wrong criminal code 12

The Serbian Special War Crimes Court in Belgrade, established in 2003, convicted seventy people in its first ten years of existence, but an Amnesty International report in June 2014 found that, largely due to government support that was tepid at best, “the number of completed prosecutions remains low, and the rate at which indictments are brought is too slow.” 13
The record of the Croatian Special War Crimes Chamber is even worse. An Amnesty International report in 2010 found that the system completed on average only eighteen war crimes trials a year, with seven hundred cases awaiting prosecution. Three-quarters of these cases were targeted at ethnic Serbs. War crimes committed by Croats have gone largely unpunished and un-investigated.

The hardest irony to accept for the prosecutors and investigators who led the Hague manhunt has been the ICTY’s own role in undoing their legacy. After all the suspects had been successfully rounded up, the tribunal’s judges reversed a string of convictions of high-ranking defendants on appeal, including the Croatian generals Ante Gotovina and Mladen Markač in November 2012, and then the Serbian chief of staff, General Momčilo Perišić.
Even more controversially, at the end of May 2013, the tribunal acquitted Jovica Stanišić and Franko Simatović, two senior state security officials from the Milošević era who had been instrumental in arming, equipping, and training Serb paramilitary groups responsible for wholesale abuses in Croatia and Bosnia.
The series of acquittals represented a sharp about-face for the tribunal, which had hitherto held senior officers and officials accountable for the mass atrocities committed by their underlings on the grounds that they were involved in a “joint criminal enterprise.” Under the leadership of an American judge, Theodor Meron, an eighty-three-year-old Holocaust survivor and former Israeli diplomat, the new judgments significantly raised the threshold of proof needed to convict political leaders. It was no longer enough to demonstrate that senior officers had control over the units who committed mass murder. The prosecution now had to be able to show evidence of specific orders to carry out particular crimes. So although the court had evidence that Stanišić had made reference to mass killings and had declared “we’ll exterminate them completely,” that seemingly damning remark was judged “to be too vague to be construed as support for the allegation that Stanišić shared the intent to further the alleged common criminal purpose.” 14
The decisions caused a rift at the heart of the tribunal. Michèle Picard, a French judge on the panel that acquitted Stanišić and Simatović, delivered her dissenting verdict, arguing, “If we cannot find that the accused aided and abetted those crimes, I would say we have come to a dark place in international law indeed.” 15
A Danish judge on the tribunal, Frederik Harhoff, went further in his dissent, circulating a letter to fifty-six friends and lawyers suggesting Meron had put pressure on his colleagues to acquit the high-profile defendants. Harhoff also questioned whether the tribunal president was himself under the influence of the US and Israeli governments, concerned that the principle of “joint criminal enterprise” could one day put them in the dock for backing armed groups in places like Lebanon, Syria, Iraq, or Afghanistan. “You would think that the military establishment in leading states (such as USA and Israel) felt that the courts in practice were getting too close to the military commanders’ responsibilities,” Harhoff wrote. “In other words: The court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed. Thus their intention to commit crime had to be specifically proven.” 16

Harhoff was subsequently removed from the tribunal’s bench on the grounds the letter reflected bias, and he was criticized for singling out Meron for his US and Israeli identity. But it was hard to escape the conclusion that some of the tribunal’s judges had taken fright at the consequences of its work for all states waging proxy wars through allied militias. They had wanted to bring some justice to the former Yugoslavia, not change the world. Their strongest critics argued that, in acquitting the generals and the spy chiefs, they had done neither.
The acquittals, wrote Eric Gordy, a lecturer in the politics of Southeast Europe at University College London, marked “a sad end to the story of a court that was founded with little hope, encouraged some, then jettisoned it all.” 17
When Meron went to Sarajevo to mark the tribunal’s twentieth anniversary in May 2013, the mothers of the Srebrenica victims turned their backs to him as he began to speak, while other activists walked out holding aloft a banner declaring “RIP Justice.” Nataša Kandić, a veteran human rights activist from Belgrade, said, “The consequences of these rulings are clear. You cannot expect indictments based on command responsibility. After these verdicts, it’s very difficult to speak about justice in the region.” 18
For Hasan Nuhanović, a Srebrenica survivor, the tribunal’s apparent about-face was the last veil to be lifted on an illusion of justice. Nuhanović’s mother, father, and brother were killed by Bosnian Serb forces. His mother’s burned remains were found on a trash dump. The bodies of his father and brother were buried in a mass grave and then dug up with hundreds of others and reburied in a second pit, where they were finally identified.
“We wanted the reconstruction of our homes. Hundreds of villages just disappeared from the map, and we wanted to be somehow compensated, along with getting the arrest of war criminals. We lived an illusion, thinking that if someone lived through something like that, they would be rewarded,” Nuhanović said. “We realize now that package will never be delivered. And what did we get for living through all that? We got the absence of war.” 19
A short-lived Balkan Spring broke out in February 2014, bringing demonstrators onto the streets of Bosnian towns to protest against the country’s economic and political stagnation. It produced a generational divide between the mostly young activists, who wanted more from life, and their parents, who vividly remembered the war and were still grateful they were no longer under fire and their children were no longer being killed.
Even that single irreducible achievement, the absence of war, seems under threat. The youth of different ethnicities mix less now than at any time in the region’s history, and each is taught a different version of history. Reconciliation has never seemed so far off.
The sense of foreboding has grown every time a protagonist in the Yugoslav carnage has been set free. It is not just the ICTY’s acquittals that have fed this dread. Thanks to the liberal sentencing guidelines under which many of the war criminals were jailed, men convicted of dozens or even hundreds of killings are benefiting from early release, having served two-thirds of their sentences. They are returning home, to be welcomed as heroes by their communities.
Krajišnik was greeted in Pale by thousands of people waving flags and placards bearing nationalist slogans. Always under Karadžić’s shadow during the war, he had never previously received such adulation. A former Bosnian Croat separatist leader, Dario Kordić, who had been convicted of orchestrating the massacres of Muslims in central Bosnia, was released in June 2014 after serving two-thirds of his twenty-five-year sentence. He too was met by cheering crowds, flags, and slogans, as well as a Catholic bishop who conducted a thanksgiving mass. Slavo Kukić, a Bosnian Croat university professor who criticized Kordić’s welcome, was beaten up with a baseball bat 20

The return of the Hague Tribunal’s convicts has been accompanied by a drive to erase memories of the slaughter. After survivors and bereaved families put up a memorial to the mass murder of Muslims in Višegrad, the response of the local Serb authorities was as unsubtle as it was symbolic. They arrived with an angle grinder and removed the word “genocide” from the stone monument. A group of Višegrad widows tried to restore it in lipstick, only for it to be obscured by municipal white paint a few days later 21
In Višegrad, and at the sites of other mass killings of Bosniaks, Serb nationalists have not only prevented memorials to the victims; they have made a point of erecting monuments to fallen Serb soldiers instead.
“Those who committed the war crimes against us are still winning. They are killing our truth,” said Bakira Hasečić, a Višegrad survivor who was raped multiple times by Serb paramilitaries at her home and in the local police station in 1992. Her sister was raped and killed. Her eighteen-year-old daughter was raped in front of her and had her head smashed by a rifle butt, yet survived.
In western Bosnia, where the most notorious concentration camps were situated, the story is the same. On the grounds of one of these camps, at Trnopolje, where torture and rape were rife and where hundreds of Bosniaks and Croats were killed, a concrete memorial to fallen Serb soldiers has been placed at the entrance and inscribed with an ode to freedom.
Omarska, an iron ore mine that served as a death camp during the war, is now run by a Luxembourg-based multinational steel corporation, ArcelorMittal. The firm says it is perfectly ready to put up a memorial on the site, just as soon as the local authority in Prijedor gives its consent. That is something the town council, run by Serb nationalists, has declined to do.
When he was thirty, Kasim Pervanić spent a few months in Omarska, along with hundreds of other Bosniak men. Every night, the guards would read out a list of names. The men on the list were taken away and never came back. Most were killed in a large shed known as the White House. The guards called Pervanić’s name one night but he hid and the guards left empty-handed. More than twenty years on, he still wakes up sweating at 2:30 a.m., the same time they came for him.
After failing to settle abroad, in the United Kingdom or Holland, Pervanić returned to Kevljani, his village, which is a mile or so from Omarska and the site of a massacre of its Bosniak residents 22 When he got back in 2003, there was nothing left of the settlement. It had been obliterated and its foundations were submerged in tall grass. He spent nine years building a new house, with a traditional square, double-decked roof—a singular act of determination and defiance. He lives alone but the memories come calling every day. The postman was one of the Omarska guards. The man who sells Pervanić metal wire for his construction work was a camp commandant.
He never talks about the past unless they mention it first. Then he cannot help himself. They dwell on the people they saved, not the people that were killed. “So who killed all these people then?” Pervanić asks. “It looks like no one is responsible.
“As time goes by you become numb. You lose your feelings,” he said. “It is nineteen years since the war and fourteen years since I came back here. No Serb has spent the night in a Muslim village, and no Muslim has ever spent the night in a Serb village … If there was a new war, no one would survive. No one would be spared.”
The war criminals are walking free again. Nationalism is on the rise and the memories of the dreadful past are being physically erased. Victims are being made to cower once more. For those who stood by while the crimes were committed and waved their flags on cue, it is more comfortable to imbibe the familiar nationalist bromides, reassuring themselves they were the true victims. The sound of the slogans blocks out the murmurs of the bones buried under their feet.
So after such an extraordinary achievement—the relentless pursuit of the accused until all 161 names on the Hague list had been checked off and the mission completed —what is there left as a legacy?
Some justice was done. A few score of the guilty stood before the dock and were made to listen while the survivors recounted the bare facts. The convicted were deprived of some years of liberty. It is not justice’s fault that this appears so paltry in face of such atrocious crimes. This is all it has to offer. That and a reasonable stab at the truth.
“Without the tribunal there wouldn’t be a database of seven million documents which very clearly gives the history of the conflict, so that no one can deny that crimes have taken place, and that genocide has been committed,” Serge Brammertz, the ICTY’s last chief prosecutor, said 23
Resurgent nationalists in the states of the former Yugoslavia are covering over the truth of what happened with a thick layer of revisionism and denial, but the meticulous record of the tribunal, with its seven million documents, cannot be buried forever. Nor can the demand for justice for humanity’s worst crimes. The Yugoslav manhunt showed that the judgments of an international court could be enforced. It showed that, given time, resources, and political will, war criminals could ultimately be tracked down and held to account. It set a benchmark against which all future efforts will be judged.

1.   “Mladić Refuses to Testify for Karadžić at ICTY Trial,” BBC News (January 28, 2014).
2.  According to anonymous sources within the ICTY prosecutors.
3.  Naser Orić, interview with author, February 13, 2014.
4.  A Dutch investigation in April 2006 found Milošević died of natural causes. Although there had been evidence that he had been taking unprescribed, smuggled medicines in the preceding months, there was no evidence of them in his cell when he died.
5. Veselin Šljivančanin, interview with author, October 31, 2013.
6.  Momčilo Krajišnik, interview with author, February 11, 2014.
7.  “Scheveningen—a Far from ‘Normal’ Prison,” Balkan Investigative Reporting Network (November 27, 2013).
8.  Krajišnik, interview with author, February 11, 2014.
9.  James Owen, Nuremberg: Evil on Trial (London: Headline Review, 2006).
10. For an account of the International Criminal Court’s genesis, see David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (New York: Oxford University Press, 2014).
11. The former US war crimes envoy David Scheffer suggested a legal framework for the ICC’s own tracking team in 2014 (“Proposal for an International Criminal Court Arrest Procedures Protocol,” Northwestern Journal of International Human Rights, Vol.12, Issue 3), but it remains very much a theoretical exercise.
12.  “Euro Court Rules Bosnia War Crimes Sentences Unjust,” Balkan Investigative Reporters Network (July 18, 2013).
13. “Serbia: Ending Impunity for Crimes Under International Law,” Amnesty International (June 2014).
14. ICTY document, trial chamber judgment, “Prosecutor v. Jovica Stanišić and Franko Simatovic,” vol. II (May 30, 2013).
15. Ibid
16. “ICTY Judge Frederik Harhoff’s Email to 56 Contacts, June 6, 2013,” published online by Danish newspaper BT
17. Eric Gordy, “What Happened to the Hague Tribunal,” New York Times (June 2, 2013).
18. Nataša Kandić, interview with author, October 29, 2013.
19. Hasan Nuhanović, interview with author, February 10, 2014.
20. “Bosnian Professor Beaten for Criticising War Criminal,” Balkan Investigative Reporters Network (June 24, 2014).
21. Julian Borger, “War Is Over—Now Serbs and Bosniaks Fight to Win Control over a Brutal History,” The Guardian (March 23, 2014).
22. Kasim’s younger brother, Kemal, who he helped keep alive in Omarska, has made a film about Kevljani called Pretty Village
23. Serge Brammertz, interview with author, October 3, 2011.

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