War Crimes Laid Bare from Beyond the Grave

12:17 am 20 May 2019

The Bone Woman: A Forensic Anthropologist's Search for Truth in the Mass Graves of Rwanda, Bosnia, Croatia, and Kosovo - Clea Koff

Some 15+ years ago, towards the end of the years when I was practicing law in the U.S., I was asked to represent a young woman from the Democratic Republic of Congo (DRC, the former Zaire) in an immigration case. My client was a Tutsi, in her twenties; a shy, slender young woman with delicate features

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, who had come to the U.S. literally owning only the single set of clothes that she wore – including her underwear, which she washed every night. As she was sitting across from me at a table in the offices of the refugees’ aid society that had taken up her case (and referred the legal aspects to my firm, on a pro bono basis), she told me her story:

Until the 1997 power grab by rebel leader Laurent Kabila, her family had been prosperous; her father was well-connected politically and in the business community. Once Kabila had seized power, he swiftly instituted an anti-Tutsi campaign similar to that which had ended up in the Rwanda genocide three years earlier; fueled by the fact that thousands of Rwandan Tutsi had actually found refuge in the DRC and were living in camps in the country’s eastern part, though Kabila’s campaign was by far not limited to the east of the DRC. Tutsi residents of the capital, Kinshasa, like my client’s family, took to hiding in their cellars every night, and sometimes also during the day. It was no longer safe for them to go out on the streets. Many lost their jobs; an increasing number of Tutsi were arrested (without warrant) or simply killed. My client’s father and husband were shot before her very eyes after Kabila’s militia had ransacked their home and found them hiding – she was made to watch them being killed out on the street before being taken to a prison and shut up there, under appalling sanitary conditions and with little food to eat, with other women – a group of 10 or 15 in each cell. The prison guards used the women for an almost daily game of Russian roulette – the purpose not being a determination which of them were going to be killed next, but which were going to be gang-raped that particular day.

While being transported to a different prison compound some time later, my client took her entire heart into her hands and jumped off the truck. She managed to get away and for the rest of that day, zigzagged through Kinshasa’s streets until she reached the house of a priest with connections to a refugee group that had organized a secret trail into the neighboring Republic of Congo. My client was given a new (false) passport – since her real one, even if she’d still had it (which of course she didn’t), would now have been akin to a death warrant – and a plane ticket to the U.S. … where she found out that the very thing that had saved her life (her false passport, which, as instructed, she surrendered immediately upon entering the country) was now also the very thing that stood in the way of her asylum claim, as legally she had entered the U.S. “under false pretenses”, with an assumed identity; if only for the briefest of moments.

This client’s story – apart from its heartrending intrinsic attributes – to me also added a further element of perspective on the work I had been doing for the past several years until then on another case: one pending before the International Criminal Tribunal for the Former Yugoslavia (ICTY). Because it is one thing to read the witness statements and forensic reports associated with your case, and the summaries of the facts and evidence associated with the cases underlying the ICTY and ICTR (International Criminal Tribunal for Rwanda) judgments we were citing as precedents in our briefs. It is another thing entirely to have one of those eyewitnesses sitting across from you and describing, in a low voice and with downcast eyes, all that she has seen and suffered through herself. At the time when I took up her case, she had already received a substantial amount of trauma-related and other psychological counseling; it was this counseling that enabled her to tell her story at all – and to do so without bursting into tears every other minute. Yet, I can honestly say that I have never met a braver person in my entire life, and all these years later, I still feel a tremendous amount of respect for her.

Clea Koff’s The Bone Women has now provided me, some 15+ years after the fact, with yet another bit of perspective on the war crimes investigations underlying the ICTY and ICTR cases that I hadn’t had until then: Insight into just how the forensic reports making victims speak even from the grave had come into being. I realize that given my own involvement in a case before ICTY, my views on this book probably aren’t the same as those of the vast majority of Koff’s readers, who come to this book without any prior “inside” knowledge.** And while I do think the Telegraph blurb on the cover of my edition of the book (“The ultimate memoir of the post-Cold War decade”) is as vast an overstatement as any blurb can possibly be, I do think this is an important book – as important as many another book about the genocides in Rwanda, Bosnia, Croatia, Kosovo or, for that matter, the Democratic Republic of Congo – or those in Argentina, Chile, Cambodia, (South) Sudan, or anywhere else in the world. It is also unique, in that it is neither an eyewitness nor a journalist’s account of the atrocities but, rather, the account of a scientist sent into these countries after the fact in order to help establishing the truth which the perpetrators of the genocide had tried to hide – by propaganda just as much as by literally hiding the bodies.

Make no mistake, this is a memoir, not a text on forensic anthropology; so there is a limited amount of scientific detail. However, I believe Koff was right in drawing the line where she did – anything more would only have invited prurient sensationalism. And ultimately, I also think to most readers it matters not only to learn about the nature of the forensic anthologists’ work and their findings – e.g., how the graves holding the victims of genocide were identified, how the graves’ parameters were established, how the victims were exhumed, in what general conditions / state of decomposition they were, what kinds of wounds they had sustained (in lay terms) and what conclusions these wounds permitted, what kind of lab work was performed in the morgue, etc.; all of which Koff does cover at considerable length – but also to learn about the background, setup and conditions in which Koff’s missions took place, her and her team’s interactions with the local population and the victims’ relatives and friends, their attitude towards their work (how do you stay sane, confronting the moldering remains of the victims of several of the worst genocides of the recent past every day and learning from their bodies all that you do learn about their final moments, their suffering and their cruel death?), the physical and, particularly, psychological and emotional stress involved in this kind of work, and ultimately Koff’s general take-away from the six missions in which she participated.

One of the things that I most appreciate about Koff’s approach was that however many victims’ bodies she exhumed and examined, she always respected the fact that the individual body she was concerned with at any given time had been a living and breathing person once, and she not only respected their individuality but went to great lengths to highlight how it showed even after death, and how it illustrated the life from which they had prematurely been snatched:

“I kept working, following Bill’s instructions, and exposed the scarf and cranium of a woman on my edge of the grave. She was lying on her left side, her back to the wall of the grave, and the radiating fractures from a hole on the left side of her head reached around her cranium like fault lines. […]

I was finding it hard to work in a crouched position because of the heat and the stench: normally I would be alternately standing and crouching, picking and troweling. But I forgot my discomfort when I found pink necklaces around the skeleton’s neck vertebrae and some hair. Now I was totally focused. This woman had been alive once, not so long ago, and had fastened the necklaces herself. Ralph wondered later if the smaller of the two necklaces would turn out to be a rosary like a plastic one I had found on a surface skeleton. But as I crouched over this body, I couldn’t know what the pink necklaces had meant to her.”

The Bone Woman, 2005 Random House trade paperback edition, p. 45 (Kibuye)

“After lunch, I started working on my next grave and things became interesting. Again, there was neither drraza [note: an angular wooden lean-to above the body, keeping the soil away; commonly placed above coffins inside Kosovo graves] nor coffin, neither sheet nor blanket wrapping, just soil on top of a body lying on its back. The body was clothed in two hooded sweatshirts, a jacket, and tracksuit pants. The many layers of clothes reminded me first of the Kibuye bodies and then of the Vukovar hospital bodies.” [Note: The many-layered clothing indicated the victims had been on the move when killed and uncertain if and when they would return home or find lasting shelter.]

“[…] A cloudy turquoise marble had turned up in the soil above the body. I laid it aside in an evidence bag.

[…] The skeleton was that of a young person. But I wasn’t thinking about children.

[…] Quickly, I leaned over to examine the skull, which I had exposed but not yet detail-cleaned. I carefully cleaned the soil away from the teeth. Yes: mandibular canine and second mandibular molar erupting, second maxillary molar still in the crypt. This person was probably between twelve and fifteen years old when his life ended.

With renewed vigor despite the afternoon heat, I cleared all the dirt until I had just the body lying on the floor of the grave. I could tell that items were lodged in the dirt-caked right hip pocket of the tracksuit pants. I didn’t have to expose much more to see that they were marbles. Lots of them. A good handful. Suddenly I was thinking about children. About how I’d noticed young kids playing what I thought of as the ‘old-fashioned’ game of marbles while the forensic teams had played soccer with the older children from our neighborhood a few weeks earlier. I had watched these little kids when I left the soccer field for a break (we’d been run ragged). Two little boys flicked their marbles in grass so long they could barely track the progress. It was great to see children playing a game outdoors, a game that didn’t involve a television and that was perhaps passed on from parent to kid, from kid to kid. I was thinking about children, boys especially. About how they can be so different from young girls, who sometimes stalk their adulthood, wanting to wear training bras even when they have only the hint of breasts, or wanting to wear makeup before their parents will allow it. Boys can be slower in this race, perhaps surreptitiously checking their reflections in mirrors, looking for the first signs of mustache hair but otherwise trying to get away with juvenile behavior for as long as possible. The boy in my grave had a pocket full of marbles, and that told me more about his life than almost anything else could.

The marbles didn’t necessarily have evidentiary value for the Tribunal, given that the skeleton with its trauma would tell the story that he was both a child and a noncombatant. But in the grave with him, I saw beyond the forensic facts to the boy he might have been. Derek had given me time to clean this boy’s body and clothing […]. I spent the rest of the afternoon with the boy and his marbles.

[…] When we finally carried the boy’s body on the stretcher to the freezer truck, I was reminded of how much I value this part of the process. […] [P]utting a body bag into the reefer for transport to the Tribunal morgue feels like the only quasi-ceremonial step that marks an Unidentified’s formal entry onto the path of becoming an Identified.”

The Bone Woman, 2005 Random House trade paperback edition, pp. 226-229 (Kosovo)

Exhuming the boy with the marbles
(The Bone Woman, 2005 Random House trade paperback edition, unpaginated photo insert p. 14; photo by Ms. Koff's team mate Justine Michael)

More generally, I also appreciate the fact that Koff’s narrative perspective, in each section of the book, closely mirrors that of her perspective during that particular mission as such. There is a limited amount of foreshadowing, but by and large, it is easy to see how her own perspective and insight evolved over time (and how she was increasingly able to put into context her very first experience during her mission to Kibuye, Rwanda). To me, this again makes her book relatable on a personal level (I guess the path she travelled is similar for many people). But I do also think it may provide an additional, albeit perhaps unspoken, layer of understanding to readers coming to her narrative without any kind of prior knowledge.

In the grand scheme of things, my quibbles with Koff’s book are relatively minor, but not so negligible as to not mention them at all:

As already mentioned in my status update regarding the “Kosovo” section of the book, in the two parts of the narrative dealing with missions where a significant part of Koff’s work took place in a morgue (Kigali and Kosovo), I had less of an immediate feeling of being “right there” with her as in the sections dealing primarily with work assignments at the exhumation sites (Kibuye, Bosnia and Croatia). Both the Kigali and Kosovo sections made up for this to some extent by the fact that they, too, included at least some amount of “exhumation” narrative, as well as very empathetic descriptions of Koff’s interactions with surviving victims and the relatives of the murdered. Still – and possibly this may be because a substantial part of morgue work is pathologist, not anthropologist work – the overall sense I have gained of the work processes inside the morgue, and the way in which the anthropologists’ and the pathologists’ work fused into one whole piece is less precise and acute than my sense of the anthropologists’ work involving the graves as such. (The Kigali section of the book feels a bit chopped apart anyway; it’s as if it originally had been longer, but had been curtailed as a result of an editor’s intervention.)

I also think in her final remarks and her general take-away from her missions, Koff underestimates the role that racism played in the genocides she investigated. She is right, of course, in pointing out that there are almost always other motives at play as well, and indeed may be the true reason why the racism card is played: The Nazi “Lebensraum im Osten” (“settlement” or “living space in the East”) campaign, which to Germans justified the slaughter of millions of Poles, Ukrainians and of course Jews even above and beyond the lie that it had been the Poles who had started WWII was, in fact, nothing but a naked territorial and economic power grab, justified by the alleged inferiority of “the Slavic races”. In more recent times, politicians from Trump to Orbán to the Brexiters and the Austrian and German right-wing extremists haven been – and are – stoking the flames of racism to achieve everything from their own, personal financial gain to unbridled political power (and more often than not, a combination of the two). So yes, those who incite xenophobia and racial hatred will often, and almost invariably, be motivated by something entirely different – there is a reason, after all, why corruption and autocrat regimes go hand in hand.

But the fear of, and the need to defeat “the other” is a powerful motivator in anybody who feels threatened or belittled (however unjustifiedly); and demagogues have known since time immemorial that nothing ensures their success as quickly, easily and decidedly as tapping into and activating that fear. The Balkans in particular have been a powder keg of racial, ethnic and religious hatred at least since the 1389 battle of Kosovo Polje (probably even longer, but for our purposes let’s just go along with the moment in history that one of the key parties, the Serbs, themselves pin down as the origin of it all). Serbian leaders and activists have, ever since then, again and again pointedly chosen the anniversary of that battle for any purpose in the book, unleashing Serbian racial and religious resentment against the enemy of the moment (Ottomans / Turks, the Austrian empire, Bosnians, Albanians and Croats, you name it) to achieve their aims. The Croats, to give them their “due”, haven’t been any better – in WWII, the Croat Ustaša movement was a staunch ally of Hitler and the Nazis. Tito managed to keep the powder in the keg in post-WWII Yugoslavia by centralizing government, and by essentially replacing ethnic allegiance and identification with an enforced allegiance to a seemingly unified Yugoslavian state, combined with economic incentives. But inside the keg, resentment had been brewing all the time, and the lid flew off with a bang after Tito had died and the Warsaw Pact had collapsed, along with the Soviet Union as the world had known it (even though Yugoslavia hadn’t even been a member of the Warsaw Pact). Not having been able to prevent the break-off of economically prosperous Slovenia, the Yugoslav leaders resorted to the Balkans’ time-honored tradition in their reaction to the “defection” of Croatia (almost equally prosperous as Slovenia) and Bosnia: “Serbs, go get ‘em, those traitorous Ustaša and Muslim bastards who are destroying our sacred and beloved Yugoslavia (and, um, cough, Serbia).” The next thing the world knew, former neighbors were at each others’ throats with a vengeance, tens and hundreds of thousands of people were driven out of their homes and murdered, solely on the basis of their ethnicity and religion – and everybody else, from the rest of Europe to the U.N., NATO and the entire world was staring at the Balkans in absolute horror. The Dayton Peace Accord, which eventually brought the violence in Croatia and Bosnia to an end, placed ethnic and religious reconciliation at a premium for a reason – and so do peacekeeping missions to any other part of the world where racism is one of the driving forces of the conflict.

Still and all: This is an important book – and now more than ever, timely and highly recommended reading.

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** In my status updates for the five major individual sections of the book – to recap, they are here:

Kibuye: http://themisathena.booklikes.com/post/1882346/reading-progress-update-i-ve-read-79-out-of-277-pages

Kigali: http://themisathena.booklikes.com/post/1882857/reading-progress-update-i-ve-read-112-out-of-277-pages

Bosnia: http://themisathena.booklikes.com/post/1883449/reading-progress-update-i-ve-read-157-out-of-277-pages

Croatia: http://themisathena.booklikes.com/post/1884395/reading-progress-update-i-ve-read-194-out-of-277-pages

Kosovo: http://themisathena.booklikes.com/post/1885738/reading-progress-update-i-ve-read-256-out-of-277-pages

– I have tried to supplement Koff’s descriptions of her work “on the ground” by a summary of how her team’s findings eventually played out in the ICTR and ICTY proceedings against the key players accused of these crimes, as well as some more general comments on ICTR’s and ICTY’s role and the way their proceedings played out.

But I’ve refrained from going into any detail on the case in which I was involved (or the humanitarian mission training I gained after having returned to Germany – another experience I share, at least in a very general sense, with Clea Koff), because (1) this whole thing is about the book under review, not the reviewer herself (well, duh) and (2) the case I worked on, while sharing certain characteristics with both the main Srebrenica case (Prosecutor v. Popović et al.) and the Vukovar case (Prosecutor v. Mrkšić et al.), wasn’t related to these cases or to Koff’s work in any other way, so I felt it could add little in terms of an immediate additional perspective.

However, for those interested in – so to speak – putting my personal perspective into perspective, I’ll add some information on this case, and also on my European / OSCE humanitarian mission training and experience, under the spoiler tags below. (Fair warning: It’s easily as long as, if not longer than the above text, so you will be falling down a major rabbit hole once you open the spoiler tags.)

Berlin

Though by training and inclination a civil / commercial lawyer, I first crossed paths with the human rights angle of criminal law when I had the unusual opportunity of observing, from not one but two distinct vantage points, the post-German unification trial of Erich Honecker and several other key figures of the former East German “border security” (read: Wall) system for the deaths of the East German refugees who hadn’t survived the Wall’s mine strips and sniper fire. On the one hand, the attorney in whose office I had worked before passing my mandatory second legal state (bar) exam, somewhat to his own surprise, ended up becoming one of the defense attorneys of one of Mr. Honecker’s co-defendants; on the other hand, the trial started shortly after I had just become a judge in Berlin – where the trial took place – myself.^† Though I wasn’t personally involved with the Honecker trial (I was a civil, not a criminal judge) you couldn’t be a member of the Berlin judiciary at that time without getting at least a part of the inside scoop – and since I also kept in touch with my former boss, we of course continued to have discussions about the case as well. Obviously, I also continued to follow the developments of the “Wall shootings” cases (there ended up being several) over the course of the following years.

One of the defendants’ contentions in this trial was that since they had acted as members of government – and the government of a no-longer-existing state – who had essentially just implemented government policy, not “merely” civilian acts – and since the court now trying them had not been a court of “their” state but was a court of another state – or at any rate, had been the court of another state when the deaths at the Wall occurred – they were not subject to this Berlin court’s jurisdiction but, if they were to be tried at all, they could only be tried before an international criminal court. Since such an international court (at the time) didn’t exist, they were not to be tried at all. (In hindsight, this was sort of taking the Trump “no sitting president may be criminally indicted” line to its ultimate, extreme end.) The argument failed before every court where they pursued it – from the Berlin trial court all the way to the German Supreme Court (Bundesgerichtshof), the Federal German Constitutional Court (Bundesverfassungsgericht), and finally the European Court for Human Rights; but it highlights the vacuum faced by the international community with regard to the former Yugoslavia and Rwanda only a few years later: How do you provide justice for the victims of an inhumane regime if neither the courts of that same country where the crimes occurred nor the courts of a potential successor state can be trusted with providing that justice – in a fair trial which will stand up to scrutiny from every angle?

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^† In Germany, like in most civil law countries, the judiciary and the (attorneys’) bar are separate careers: If you want to become a judge, you enter the judiciary either immediately or at most very few years after having finished your legal training and passed your second state exam; the same is true, conversely, if you want to become an attorney. “Cross-overs” do happen, but if they do, they happen early on; mostly by young women who conclude that the prospect of a guaranteed lifetime appointment (after an initial “probationary” period of typically three years) and the motherhood benefits and pension plan of public service make the judiciary a better option for combining family and career. To do what I did – to leave the judiciary after several years of service as a judge and become an attorney – is a much rarer step. For me, though, it was definitely the right thing to do; even if I definitely don’t regret my initial years of service on the bench, either.

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Cornell Law School

When I left the Berlin judiciary a few years after the beginning of the Honecker trial (initially on the basis of an unpaid leave with the option to return) and enrolled at Cornell to obtain a graduate American law degree, one of the classes on the curriculum that immediately stood out to me was a seminar on the U.N., human rights, peacekeeping and justice, taught by Prof. Muna Ndulo, who at the time had already served as advisor to the post-Apartheid U.N. mission and the U.N. Special Representative in South Africa, and who would later also be an advisor to the U.N. missions in East Timor, Kosovo and Afghanistan (as well as working with a plethora of other international bodies and institutions). This seminar would end up being one of my favorite classes. In my research paper, I looked in detail at the different approaches then being explored to bring the perpetrators of human rights to justice; inter alia, in Germany, by ICTY (which was just beginning its work at the time) and by the proposed International Criminal Court (ICC), whose statute had just been finalized at the time and was awaiting – with bated breaths being held all over the world – ratification by enough countries to allow it to actually become a functioning U.N. institution. (Prof. Ndulo later encouraged me to publish my paper, but I had put so much work into it that I’d just run out of steam. Oh well.)

ICTY

Participation in this seminar would, however, come to stand me in good stead roughly two years later when (now having formally resigned from the Berlin judiciary) I joined the L.A. office of a large international law firm which, it turned out (though funnily enough, this never even came up during my job application process), had started working on one of the earliest cases before ICTY, that of Croatian general Tihomir Blaškić. Working on this case was exciting from a professional POV, because it provided the once-in-a-lifetime opportunity to help shaping the procedure before an international court, newly created to fill the vacuum that the genocide in the former Yugoslavia and in Rwanda and, to a certain extent, also the German “Wall shootings case” defendants’ “there is no court that has the jurisdiction to try us” argument had revealed:

Unlike the Nuremberg and Tokyo war crimes tribunals after WWII – which, although international in name, were essentially victors’ tribunals, with a largely common law procedure and with judges and prosecutors from the victorious WWII powers –, ICTY (like ICTR and, now, the ICC) was a truly international creature, with judges and prosecutors from across a wide range of U.N. member countries and from civil law and common law systems alike.^††

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^†† Put at its most simplistic – on a level that Terry Pratchett’s scientist co-authors in The Science of Discworld would most definitely poo-poo as a convenient lie to children –, the difference between the civil law system (most prevalent in continental Europe and Latin / South America) and the common law system (chiefly U.S., UK and British Commonwealth) is that the civil law system is traditionally code-based, whereas the common law system is traditionally case law-based. Obviously the systems have gotten ever closer and more similar over the course of time, but their origins still impact a lot of things, from the role of the judge, the weight given to judge-made law (case law) vs. statutory law, etc.

Also, while civil law countries do have what they consider an “adversarial system” in civil cases – with the parties, not the judge, in control of substantial parts of the proceedings –, criminal justice in these countries is typically administered in an “inquisitorial system”, with the court and the prosecutor seen as universal truth-finders charged with an all-encompassing inquiry into the crime (and obliged to objectively consider both the facts pointing to the guilt as well as the facts pointing to the innocence of everybody connected to the crime and emerging as a possible suspect); while the defense attorney’s job is chiefly that of a guardian of the defendant’s rights. In common law criminal procedure, by contrast, essentially the same adversarial system prevails as it does in common law civil procedure. There are legal boundaries designed to prevent an overzealous prosecution, but while the court’s role may be weightier than it is in civil trials, the procedural system is still based on the basic understanding that “the parties” – i.e., the prosecution and the defense – are, on an equal footing, in control of the proceedings. (In practice, the role of the defense attorney in civil law countries is just about as weighty as it is in common law countries, particularly vis-à-vis the prosecution, but the role of the court – and the position of both prosecution and defense vis-à-vis the court – is definitely a different, and ultimately less powerful one.)

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And while ICTY disposed of a Statute setting forth its purpose, powers, structure, and the crimes to be tried there, and, a little while later, it also had a set of basic Rules of Procedure and Evidence, those merely provided the bare-bones essentials: Everything else had to be hashed out and created on the spot, trying to bring together views from every conceivable angle of the legal spectrum; and even after multiple amendments of the Statute and the Rules, leaving room enough for dispute and argument with every new situation arising.

All this was true not only for the views and mechanism within the Tribunal itself but also in its relationship to the defense attorneys. Our case, on the trial level, had been a particularly bad case in point, with a presiding judge (at the time, also the President of ICTY) from one of the most pronounced “all-powers-to-the-court” inquisitorial systems (France: there, even the investigation of the crime is not in the hands of the public prosecutor, but in the hands of an “inquisitional judge” [judge d’instruction] with wide-ranging powers), and a defense team coming from the extreme other end of the spectrum, consisting virtually exclusively of American attorneys used to aggressively assert their and their client’s rights. You can probably imagine how this went down: While I had not yet been part of the team at the trial level, my teammates later regaled me with stories about all sorts of clashes – and worse, it had very obviously impacted the conduct of the case. Thus, when I joined the firm – as it turned out just in time for work on the appeal – one of the key things my team looked to from me was to act as a sort of “interpreter”: to frame our arguments – in particular, the legal arguments – and our procedural approach in such a way as to actually speak to and reach the appeals judges, instead of passing them by or (at worst) offending their sensibilities.

Despite the obviously interesting professional challenge that work on this case was sure to offer, it was not a given that I would have agreed to join the team: I could never have done so if I had believed that our client – fresh from a 45-year sentence at trial – truly was the monster as which the prosecution and the Trial Chamber had painted him. (I do believe that every accused has the right to competent legal representation. I do not believe that I personally have to be a part of that representation under any and all circumstances.) One thing that played a key role in my ultimate decision was the fact that everybody else on the team believed our client not responsible for the one crime that had “earned” him a de-facto life sentence at trial; most importantly, this was true for the team leader, who had been a U.S. attorney (prosecutor) himself for years before switching into private practice and credibly asserted that he himself wouldn’t have accepted the case, either, if he had believed the prosecution’s allegations were true. By the same token (and that, too, played a role in my decision), nobody in our team was out to “whitewash” our client and paint him as better than he had been. The war in Bosnia had been a dirty war on all sides, and if ICTY in fair proceedings eventually held our client responsible for the things he really had done, then so be it. Our job was to see that the proceedings really were fair (there was a feeling in the team that the trial hadn’t been, at least not in every respect; ultimately, that fortunately was neither here nor there), and that he wasn’t made to shoulder more than really was his due. That was an effort I was happy to join.

The cornerstone of the case against Mr. Blaškić was an April 1993 massacre committed in the predominantly Muslim village of Ahmići in the Lašva Valley in central Bosnia, during which over 100 Bosnian Muslims were killed (either burned or shot), and 170 of the 200 houses inhabited by Muslims were burned down, whereas the minority Bosnian Croats had been warned of the attack in advance and had been advised to leave the village and seek shelter elsewhere.

There was no question that the massacre had occurred – and it was also clear that it had been a planned attack (not only because the resident Croats had been warned in advance). The one essential question was whether any guilt with respect to that massacre attached to our client. Spoiler alert: It didn’t; and the Appeals Chamber eventually found as much, reversed the trial judgment in this respect and reduced the sentence to 9 years, which at the time of the appeals judgment essentially amounted to “time served” and secured his almost immediate release.

But to take things from the beginning:

Tihomir Blaškić was an officer – in the final year, from August 1994 to November 1995, the overall commander – of the so-called Croatian Defence Council (Hrvatsko vijeće obrane or HVO), the main military force of the Bosnian Croats. He was a career military officer who had graduated from the Belgrade Military Academy in 1983 and had moved on to becoming an officer in the Yugoslav People's Army (JNA). In the 1990s’ Balkan wars, there was a line of command both from the HVO and from the Bosnian Croat paramilitaries all the way up to the Croatian government under then-President Franjo Tuđman: One of the most contented issues during the Blaškić trial was whether there was one single line of command (as the prosecution alleged) or two separate lines; one for the HVO and one for the paras (as we argued). (Significantly, as in the case of the Bosnian Serbs and the Belgrade / Yugoslavian Milošević government, any line(s) of command and communication from the Bosnian Croat players to the Croatian government indicated – as did the participation of “external” regular military such as the JNA on the side of the Serbs – that this was no mere internal Bosnian civil war but that external powers were, themselves and for their own ends, active participants in the war.)

The original indictment against Mr. Blaškić dates from November 1995; it was amended about a year later. Roughly six months after first being indicted, in April 1996 – on the orders of Tuđman, but for purposes of the Tribunal, voluntarily – he surrendered to the Tribunal.

Since the prosecution couldn’t present the Tribunal with any direct order by Mr. Blaškić commanding anyone to commit the Ahmići massacre, their case chiefly relied on two things:

(1) A collection of circumstantial evidence allegedly showing his connivance in the massacre as part of a systematic ethnic cleansing campaign, culminating in a series of battle readiness orders of his – there was “regular” military fighting going on in the area at the time – which, stripped off their inflammatory garnishings, approximately amounted to “Don’t let up, be relentless, go after the bastards with all you have” (one of the many ugly truths about war being that, in order to boost morale, commanders do take recourse to language and characterizations of the enemy that are definitely not fit for polite society or balanced political discourse); and

(2) The contention that Blaškić – an HVO colonel at the time of the Ahmići massacre – had “command responsibility” over the actual perpetrators; i.e., that he was in a position to give them orders and could be held responsible for (a) either not preventing their acts (to the extent that he had known of those acts beforehand or had willfully blinded himself to that knowledge) or (b) not punishing the perpetrators after learning of their acts, so as to deter others.

While initially there had been some confusion as to who exactly had carried out the massacre (it had occurred at night, and some witnesses believed they had seen men in HVO uniforms), it ultimately emerged that the actual perpetrators were several paramilitary units, most notably the so-called Džokeri (Jokers), a roughly twenty-member squad created in January 1993 with the mission to carry out “special assignments” such as sabotage.

The prosecution contended that Blaškić had command responsibility over the paramilitaries. We argued that the paras (including and in particular the “Jokers”) would have laughed him off their turf if he had tried to order them to do so much as bring him a cup of coffee. The only people they actually did listen to were their own commanders, as well as radical politicians such as Dario Kordić, then-President of the so-called Croatian Democratic Union of Bosnia and Herzegovina (HDZ-BiH) as well as Vice-President / member of the self-appointed Presidency of the Croatian Community of Herceg-Bosna (HZ H-B; later “Croatian Republic of Herceg-Bosna”, HR H-B) – who had their own line of command and communication going all the way to Croatian President Tuđman. Kordić in particular was notoriously fanning the flames of racism, and the “Jokers” simply loved him.

The Trial Chamber, in its judgment, considered the battle readiness orders given by Blaškić actual attack orders that (sort of implicitly) also included the Ahmići massacre, and it also held that Blaškić had command responsibility over the units that actually carried out the massacre. (“He was a senior HVO officer in the area at the time and later ended up becoming the most senior officer of HVO overall, and you’re trying to make us believe he couldn’t have ordered a bunch of lowly thugs like the Jokers to hell and back? You’ve got to be kidding us.” They didn’t exactly phrase it in those words, of course, but that is what they seem to be saying in between the lines.) Resulting sentence: 45 years in prison – given Blaškić’s age at the time, equivalent to a life sentence.

In the face of such a sentence, the challenge on appeal was obviously enormous. This was even more true as the Blaškić sentence was, at the time, one of the first major sentences to have been meted out against an accused who was not a Serb, and who was one of the leading figures in the conflict to boot.

Yet, on the factual side we had one significant lucky break: In the interim (although too late to be of any good to our client during the trial), Croatian President Tuđman had died – and it turned out that, much like Richard Nixon, he had kept a secret personal record of his time in office that amounted to a veritable treasure trove of documents and records which he had stashed away from public scrutiny. Several of these items, once reviewed, turned out to be of high (and exculpatory) relevance to the Blaškić trial.

Our first challenge was getting this new material admitted as part of the appellate proceedings: While the ICTY Appeals Chamber’s review powers were slightly broader than those of an average common law court of appeals, they, too (like those of a common law court of appeal) were designed to focus chiefly on a legal review of the trial judgment, not on a reassessment of the facts. So, in the ordinary course of things, we might not have been permitted to introduce this material, even if we had only become aware of it after the end of the trial. However, we argued that a combatant state ruler’s secret cache of documents unexpectedly (1) turning out to exist at all and (2) becoming available before the end of the ICTY proceedings was a unique, exceptional situation that warranted admission of this new evidence even if only on appeal, and doing otherwise would have constituted a grave miscarriage of justice. And the Appeals Chamber agreed.

Henceforth, our appeal was thus based on several grounds (both errors of fact and errors of law):

* Even on the basis of the evidence available at trial, Mr. Blaškić shouldn’t have been held responsible for the Ahmići massacre.

* Even less so could he be held responsible on the basis of the evidence newly having become available from the secret Tuđman archives, because that evidence underscored even more clearly that:

(1) He had neither ordered nor otherwise participated in, instigated or aided and abetted in the massacre (in fact, he only learned about it afterwards – and, according to his own account, was horrified about what he learned).

(2) He did not have command authority over the “Jokers” and the other paramilitaries who committed the massacre – he couldn’t have stopped them even if he had tried (and there was no way he would have been able to punish them after the fact, either). Their line of command entirely bypassed him and the regular HVO forces.

* Moreover, the Trial Chamber misconstrued the legal requirements of both “direct responsibility” (participation, ordering / instigating, aiding and abetting – the accused’s own acts in furtherance of the crime) and of “command responsibility”.

Our appellate team was split into two “sub-teams”: one, the “facts team”, charged with addressing the Trial Chamber’s evidentiary analysis as well as the new evidence obtained from the secret Tuđman archives, and the other one, the “legal team”, charged with addressing the legal aspects of the trial judgment. Those legal aspects went far beyond the “individual / command responsibility” issue – they also included a number of issues of statutory interpretation with regard to the substance of the crimes for which Blaškić had been indicted and convicted, which were handled by other members of the legal team.

The “individual and command responsibility” aspect (the interpretation of Article 7, paragraphs 1 and 3 of the ICTY Statute), however, ended up being my “baby”. (So was our appeal on sentencing – there had initially been some doubt as to whether we should go after the specifics of the Trial Chamber’s computation of the sentence at all, but after I’d argued that in my view the Trial Chamber had also misapplied the rules on sentence computation, which were very similar to the way this works in Germany, eventually I got a sort of grudging “oh well, you might as well write something on that, too, though don’t pin your hopes too high” agreement from our team leaders.) Fortunately (for me), four of the five judges of the Appeals Chamber were from civil law countries; one of them even from Germany – so I decided to tailor my arguments to these judges, particularly to the presiding judge (who was from Italy) and, of course, the German member of the Appeals Chamber. Judging by the extent to which the appeals judgment eventually followed the lines of argument we had advanced on individual and command responsibility and even on the method of computation of the sentence (i.e., above and beyond the overall length of the sentence), too, I’d say my approach was largely successful.

(A collateral effect of our appellate brief was an amendment of the rules of procedure to the effect that all legal authorities not originally in one of the Tribunal’s official languages – English and French – had to be translated into English: I had, of course, made full use of the then-extant German “Wall shootings” case law (which at the time existed only in a German version), as well as other case law from a number of jurisdictions all around the world; and while I bet the German judge – and the German staff – on the Appeals Chamber were mighty peeved at having to convey the gist of these decisions to the other Appeals Chamber judges and put them into context for their colleagues’ benefit, even before all those judgments had been translated into English, it is quite likely that these discussions themselves also contributed to the Appeals Chamber’s thought process.)

Make no mistake: The work on this appeal was a herculean team effort, and we were successful to the large extent that we were because a lot of people pulled together and because we had several strong lines of argument. I’d even go so far as to say that the new evidence from the Tuđman archives was the key element – without that, we might have obtained a reduction of the sentence, but even if the Appeals Chamber had accepted our legal argument, it still would have been anybody’s guess whether it wouldn’t nevertheless have interpreted the evidence as broadly (and with as much willingness to conjecture) as had the Trial Chamber. And strictly speaking nobody who didn’t sign our brief on appeal – i.e., nobody other than our team leaders, who took responsibility for all of its contents and oversaw its final redaction – gets any bragging rights with regard to its contents. All the rest of us just helped with one distinct assignment; even if we had to coordinate among each other to keep our approach consistent in all respects.

Also, make no mistake: Even though we managed to get Mr. Blaškić’s conviction for the Ahmići massacre overturned, the Appeals Chamber did uphold his conviction with regard to a number of other acts set out in the indictment, such as using civilians as human shields, the sum total of which the Appeals Chamber still found grave enough to merit a nine-year prison term. However, without Ahmići, the real “meat” of the case was gone – and as by the time of the Appeals Judgment our client had already served almost nine years and, what with the length of the proceedings, the reduction of the sentence (combined with factors courts will always consider in this context, such as his cooperation with the court, deteriorating health, etc.) equaled his almost immediate release.

By way of a coda, I will also note that (in part based on the new evidence from the Tuđman archives) one of the actual instigators of the massacre – Dario Kordić, the politician to whose responsibility we’d been pointing all along – was also tried and, in 2004, sentenced to 25 years' imprisonment. His co-defendant Mario Čerkez, the commander of the HVO Vitez brigade, was sentenced to six years' imprisonment for other war crimes but like Mr. Blaškić cleared (in the appeals judgment, albeit not the trial judgment) from responsibility for Ahmići. Also tried, convicted and sentenced to lengthy prison terms for their active participation in the massacre were two commander of the “Jokers”, Anto Furundžija and Vladimir Šantić, as well as another member of that unit, Miroslav Bralo, and one HVO soldier who was individually found guilty of having shot a Muslim man before the eyes of his family and then having proceeded to burn their house, Drago Josipović. The other “regular” HVO soldiers indicted for the massacre, however – including the brothers for whom the largest one of Lašva Valley cases had been named (Prosecutor v. Kupreškić et al.) – were even acquitted entirely on appeal (after the Trial Chamber had still found them guilty, as it had our client).

All in all, the Blaškić case – in part, also seen in conjunction with the other Lašva Valley cases – is illustrative of both the strengths and the weaknesses of ICTY:

* The key strengths were, first, an early demonstration that the Tribunal’s job was not merely to unilaterally go after the Serbs but, rather, to mete out justice regardless of ethnic and national affiliation: The Lašva Valley indictments – against Croats, one and all – were among the earliest issued by the ICTY Office of the Prosecutor (they all date from 1995). Secondly, by (1) interpreting the rules so as to allow significant new evidence on appeal that nobody could have known about at the time of the trial and (2) by having the courage of its conviction to overturn one of the Tribunal’s early “prize” trial judgments, the Appeals Chamber demonstrated for all to see that ICTY’s mission was to provide justice, not to secure convictions at any prize and on whatever shaky grounds available.

* On the other hand, the pressure on the Office of the Prosecutor was enormous – especially so, in the early years – and that more than once caused prosecutors (and Trial Chambers) to go, hell-for-leather, after everybody they could lay their hands on (while at the same time not remaining sufficiently openminded to entertain other avenues of prosecution with regard to the same incidents). At least in connection with the Ahmići / Lašva Valley complex of war crimes they did indict some of the actual perpetrators, as well as (after a bit of prodding) the true main instigator (Kordić). However, both the Vukovar Hospital case (Prosecutor v. Mrkšić et al.) and, to a certain extent, also the main Srebrenica case (Prosecutor v. Popović et al.), like the case against Mr. Blaškić ultimately didn’t have the outcome that the prosecutors had confidently expected; and in connection with Vukovar Hospital, none of the actual perpetrators were ultimately prosecuted, so when the case against the members of the regular armed forces who had instead been indicted folded, the prosecution ultimately went empty-handed.

And yet: Based on the number of cases concluded successfully (against both Serbs and Croats) and, notably, considering the fact that at least on the Serbian side, the men at the very top of the chain of command – Slobodan Milošević, Radovan Karadžić and Radko Mladić – were arrested, indicted and (in Karadžić‘s and Mladić’s cases) ultimately convicted, even if two decades after the Balkans war, I’d say ICTY was way more successful than anybody would have believed when it was first created. The same is true with regard to its “sister” Tribunal, ICTR. And that, more than anything, also makes both of them great role models for their successor, the International Criminal Court. Now, if only the U.S. would break ranks with the likes of Yemen, China, Russia, Turkey and North Korea and actually ratify the ICC statute … (of which it is a signatory!)

EU / OSCE

The Blaškić appeals judgment was only published after I had already returned to Europe; but my work on that case, after my return to Germany, also prompted my participation in two EU training peacekeeping courses, as well as a mission as an election observer in the Republic of Georgia. The first of the EU training courses involved basic peacekeeping mission training; everything from the fundamentals of peacekeeping and reconciliation (analysis of the causes of war, definition and criteria of a “failed state”, mission planning and preparation, practical approach to communication with local authorities, victims, and the – divided – population at large, mediation and conciliation techniques, project management, etc.) to mine and sniper awareness, walkie talkie and 4WD training, hostage situations, and ultimately a survey field exercise where all of these elements were brought together; the “passing a radical militia checkpoint” and “hostage taking” parts of which having turned out particularly memorable.

The EU team at the end of our field reconaissance mission -- all very relieved after having passed, inter alia, a "militia" roadblock and (all but one) survived a (mock / training) hostage situation

The second EU peacekeeping and reconciliation course was one addressing lawyers in particular, and as chance would have it, during this course I ran into the very guy who had actually written the Blaškić trial judgment; i.e., whose work I had helped unravel – not the Presiding Judge of the Trial Chamber himself but his chief assistant (who later went on to become an appeals judge in a court district just outside of Paris). We got along fine, though discussing the case with him, I found confirmation of what my American teammates had already conveyed from their side of the proceedings at trial – there had been a profound failure of communication, which unfortunately had spilled over into not only personal resentment but also the conduct of the case. He remained adamant that Blaškić had been one of the worst war criminals the Balkans war had ever seen (“But how else, if not as attack orders covering Ahmići, can you interpret those orders he gave?”) – and he hated the leader of the defense team with a passion. For my part, I told him that the Trial Chamber had simply gotten it wrong; that their zeal to hold someone responsible for Ahmići had caused them (and the Office of the Prosecutor) to go after the wrong guy – whatever else he really might have been guilty of. (It definitely also didn’t help that the appeals judgment was relatively fresh at the time when we met.) Once we found we’d reached an impasse over Blaškić, we decided to move on to other subjects, which was definitely the more productive thing to do. (He did, however, continue to bristle whenever he happened to see our erstwhile defense team leader’s name pop up in my email inbox – of course I had congratulated the remaining defense team, and our team leader in particular, on the outcome once the appeals judgment had been rendered.)

Finally, during an OSCE election observation mission to Georgia, I could put into practice some of what I had learned during the EU courses. In particular, though we did see a lot of the famed Georgian spirit of hospitality and were, ourselves, treated with the utmost friendliness and civility, on one of my assignments I did get an impression of what intimidation may look like in a small rural community – and what kind of fear it may incite.

The first thing my team partner and I noticed in that particular polling station (in a village on the slopes of the Caucasus) was that people were walking from the polling booth to the ballot drop box with their marked ballot papers openly visible. (This made me wonder whether they had been instructed to use the booth only for our benefit to begin with.) Then our interpreter told us – we were a team of two international observers – that there were a few individuals who wanted to speak to us. I asked if there was a room where we could provide them with a modicum of privacy. The best that was eventually located was a windowpane- and doorless room in a decrepit adjacent building (until that trip to Georgia, I’d never seen an allegedly “industrialized” country where so much had been crumbling to ruins as a result of sheer lack of the resources required for basic upkeep). As soon as we had settled down with the people who wanted to speak to us, I noticed a group of well-muscled men assembling right outside the entrance to that room, who, upon being questioned, declined to state their purpose other than being “interested” in the goings-on. So I pulled my sternest “judge-on-the-bench” face that I hadn’t had any use for in years, and told our interpreter to convey in the most unequivocal manner possible that there was nothing there for them to see and I wanted them gone right now. – They did eventually withdraw from the entrance, albeit not the building (and our subsequent conversation was held in low enough tones so, even standing at the other end of the short hallway, they couldn’t overhear what was said), but I was nevertheless furious – it didn’t even occur to me to be afraid for my own sake – and this was definitely not made any better by (1) the reluctance of our interlocutors to actually tell us what they wanted to say, even after they had decided to come forward in the first place, and (2) the fact that, when we pulled over to the side of the road on our way back down into the valley and to the nearest town in order to write up our report, we saw a car haring down the mountain road for all it was worth, some belongings tied to its roof, and inside, some of the very people that we had talked to not an hour earlier. So when I had finished writing up the incident, my team mate, who had to co-sign our report, turned to me and asked, slightly ironically: “I thought you’d done defense work before – this reads like you’re writing for the prosecution …?” “I am,” I snapped back – and that was that. (And yes, he did co-sign that report.)

So now, whenever I hear that elections in a country being monitored are declared “substantially fair” (as those elections in Georgia were at the time), I mentally put a qualifier on that language: “Substantially” doesn’t mean “fair throughout”, and the exceptions that cause such a choice of words to be used can nevertheless be quite severe – they can include threats severe enough to make whistleblowers fear for life and limb, both their own and that of their families, and seek shelter elsewhere.

My practice these days is still international, though on the civil side of things (corporate / commercial arbitration) – but those years and cases, and Blaškić in particular, will remain with me forever.

(show spoiler)

Final note: I already finished this book a week ago, but I needed some time to organize my thoughts -- and this is one book for which I did want to write a review by all means; not only because it was a buddy read with Elentarri and Ani.

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