[Joint House and Senate Hearing, 115 Congress]
[From the U.S. Government Publishing Office]









115th Congress                                Printed for the use of the 
1st Session             Commission on Security and Cooperation in Europe 
________________________________________________________________________



 
              The International Tribunal and
                Beyond: Pursing Justice for 
              Atrocities in the Western Balkans
            









[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]















                     DECEMBER 12, 2017


                     
                     
            Joint Briefing of the 
   Commission on Security and Cooperation in Europe
    and the Tom Lantos Human Rights Commission
_______________________________________________________________________
                      Washington: 2018
                      
                      
                      
                      


























            Commission on Security and Cooperation in Europe
                       234 Ford House Office Building
                           Washington, DC 20515
                                202-225-1901
                            [email protected]
                            http://www.csce.gov
                              @HelsinkiComm






                  Legislative Branch Commissioners

         HOUSE                                    SENATE
CHRISTOPHER H. SMITH, New Jersey           ROGER WICKER, Mississippi,
   Co-Chairman                                Chairman 
ALCEE L. HASTINGS, Florida                 BENJAMIN L. CARDIN. Maryland
ROBERT B. ADERHOLT, Alabama                JOHN BOOZMAN, Arkansas
MICHAEL C. BURGESS, Texas                  CORY GARDNER, Colorado
STEVE COHEN, Tennessee                     MARCO RUBIO, Florida
RICHARD HUDSON, North Carolina             JEANNE SHAHEEN, New Hampshire
RANDY HULTGREN, Illinois                   THOM TILLIS, North Carolina
SHEILA JACKSON LEE, Texas                  TOM UDALL, New Mexico
GWEN MOORE, Wisconsin                      SHELDON WHITEHOUSE, Rhode Island

                   Executive Branch Commissioners

                       DEPARTMENT OF STATE
                      DEPARTMENT OF DEFENSE
                     DEPARTENT OF COMMERCE
                     
                                  (II)
                                  
                                  
                                  
                                  
                                  



  ABOUT THE ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE

    The Helsinki process, formally titled the Conference on Security 
and Cooperation in Europe, traces its origin to the signing of the 
Helsinki Final Act in Finland on August 1, 1975, by the leaders of 33 
European countries, the United States and Canada. As of January 1, 
1995, the Helsinki process was renamed the Organization for Security 
and Cooperation in Europe (OSCE). The membership of the OSCE has 
expanded to 56 participating States, reflecting the breakup of the 
Soviet Union, Czechoslovakia, and Yugoslavia.
    The OSCE Secretariat is in Vienna, Austria, where weekly meetings 
of the participating States' permanent representatives are held. In 
addition, specialized seminars and meetings are convened in various 
locations. Periodic consultations are held among Senior Officials, 
Ministers and Heads of State or Government.
    Although the OSCE continues to engage in standard setting in the 
fields of military security, economic and environmental cooperation, 
and human rights and humanitarian concerns, the Organization is 
primarily focused on initiatives designed to prevent, manage and 
resolve conflict within and among the participating States. The 
Organization deploys numerous missions and field activities located in 
Southeastern and Eastern Europe, the Caucasus, and Central Asia. The 
website of the OSCE is: .


  ABOUT THE ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE


    The Commission on Security and Cooperation in Europe, also known as 
the Helsinki Commission, is a U.S. Government agency created in 1976 to 
monitor and encourage compliance by the participating States with their 
OSCE commitments, with a particular emphasis on human rights.
    The Commission consists of nine members from the United States 
Senate, nine members from the House of Representatives, and one member 
each from the Departments of State, Defense and Commerce. The positions 
of Chair and Co-Chair rotate between the Senate and House every two 
years, when a new Congress convenes. A professional staff assists the 
Commissioners in their work.
    In fulfilling its mandate, the Commission gathers and disseminates 
relevant information to the U.S. Congress and the public by convening 
hearings, issuing reports that reflect the views of Members of the 
Commission and/or its staff, and providing details about the activities 
of the Helsinki process and developments in OSCE participating States.
    The Commission also contributes to the formulation and execution of 
U.S. policy regarding the OSCE, including through Member and staff 
participation on U.S. Delegations to OSCE meetings. Members of the 
Commission have regular contact with parliamentarians, government 
officials, representatives of non-governmental organizations, and 
private individuals from participating States. The website of the 
Commission is: .




        The International Tribunal and Beyond: Pursuing
          Justice for Atrocities in the Western Balkans


                           December 12, 2017


                                                                                        Page

                              PARTICIPANTS

Hon. Randy Hultgren .................................................................      8 
Hon. Eliot L. Engel .................................................................     11
Robert Hand, Policy Advisor, Commission for Security and Cooperation in Europe ......      1
Serge Brammertz, Chief Prosecutor, International Criminal Tribunal  for the 
  former Yugoslavia .................................................................      3
Nemanja Stjepanovic, Humanitarian Law Fund (via videoconference) ....................      9 
Diane Orentlicher, Professor of Law, Washington College of Law, American University ..    13


                                APPENDIX


Prepared Statement of Hon. Eliot L. Engel ............................................    27
Press Release Addendum submitted by Hon. Eliot L. Engel ..............................    29
Prepared Statement of Serge Brammertz ................................................    33
Prepared Statement of Nemanja Stjepanovic ............................................    36
Prepared Statement of Diane Orentlicher ..............................................    39




                                             [IV]
















                      The International Tribunal and Beyond: Pursuing
                       Justice for Atrocities in the Western Balkans

                              ----------                              

                           December 12, 2017

                Commission on Security and Cooperation in Europe
                            Washington, DC



    The briefing was held at 10:07 a.m. in Room 2255, Rayburn House 
Office Building, Washington, DC, Robert Hand, Policy Advisor, 
Commission for Security and Cooperation in Europe, presiding.
    Panelists present: Hon. Randy Hultgren; Hon. Eliot L. Engel; Robert 
Hand, Policy Advisor, Commission for Security and Cooperation in 
Europe; Serge Brammertz, Chief Prosecutor, International Criminal 
Tribunal for the former Yugoslavia; Nemanja Stjepanovic, Humanitarian 
Law Fund (via videoconference); and Diane Orentlicher, Professor of 
Law, Washington College of Law, American University.

    Mr. Hand. OK, I think it's time for us to begin our briefing this 
morning. We may be joined in a few minutes by Representative Randy 
Hultgren of Illinois and also Representative Eliot Engel of New York. 
My name is Robert Hand. I'm a policy adviser at the Commission on 
Security and Cooperation in Europe, better known as the U.S. Helsinki 
Commission, and I'd like to welcome you to this joint briefing of the 
Tom Lantos Human Rights Commission and the U.S. Helsinki Commission. 
Both commissions and their members are dedicated to ensuring that human 
rights and democracy are integrated elements of U.S. foreign policy.
    The Tom Lantos Commission is co-chaired by Mr. Hultgren, as well as 
Representative Jim McGovern of Massachusetts, while the Helsinki 
Commission is chaired by Senator Roger Wicker of Mississippi and 
Representative Chris Smith of New Jersey.
    Today's briefing has been organized in light of the closing of the 
International Criminal Tribunal for the former Yugoslavia, better known 
as ICTY, which has sought to hold individuals accountable for serious 
violations of international humanitarian law, including war crimes, 
crimes against humanity, and genocide.
    The conclusion of the international tribunal's work, much of it 
unprecedented since World War II, obviously means time for an 
assessment. It is also time to take note of the issues regarding 
justice which remain in the Western Balkans and to shift our focus from 
the international efforts to the national level or efforts by the 
countries of the region to deal with the outstanding cases that remain.
    As the moderator, I will turn to each of today's panelists to 
provide that assessment and to describe the shift of focus from their 
perspectives. Given my own three decades of experience as a policy 
adviser at the Helsinki Commission following the Western Balkans--
before, during and since the Yugoslav conflicts of the 1990s--let me 
instead just briefly describe some of the challenges as I saw them 
along the way, from the beginning to today.
    While there was widespread concern and even outrage over events in 
the second half of 1991 and early 1992, that early period was frankly 
dominated by a lot of wishful thinking about negotiating a quick end to 
the fighting. It was really not until the summer of 1992, with the 
revelation of Serb-run camps in northwestern Bosnia, such as Keraterm, 
Omarska, and Trnopolje, and other, associated atrocities, when 
policymakers realized that the horrific nature of what would be an 
ongoing series of Yugoslav conflicts necessitated a response of its 
own.
    It was at that time that efforts leading to the creation of a 
tribunal began in earnest, with considerable support from government 
officials, certainly from members of Congress, and also from the 
broader human-rights community. Once formed in May 1993, the challenge 
turned to taking the tribunal's goals seriously, especially while the 
conflict was still taking place. International negotiations with those 
responsible for criminal acts created concern that impunity would be 
traded for peace, as numerous other compromises were being made to end 
conflict.
    By the time the conflict erupted in Kosovo in the late 1990s, 
however, it became increasingly evident that such deals would not lead 
to the long-term stability the region really needed. Therefore, justice 
would be pursued.
    The next challenge, therefore, was implementation, by which I mean 
arresting or capturing and transferring to The Hague those individuals 
indicted by the international tribunal. The initial focus was focused 
on the need to convince NATO-led peacekeepers, who considered their 
main task to be to prevent new hostilities, to help capture at-large 
indictees. Over time they did.
    Attention then turned to the responsibility of the governments of 
the Western Balkan countries themselves to locate, arrest, and 
transfer. While some did cooperate, others hesitated or resisted. And 
it was not until 2011, when Serbia apprehended and transferred Ratko 
Mladic in May and Goran Hadzic in July, that all those indicted by ICTY 
finally found themselves in The Hague.
    Meanwhile, there was the ongoing work of the tribunal itself; 161 
indictments, I believe, overall led to more than 10,000 trial days that 
included more than 4,500 witnesses, all of which needed to be handled 
properly, according to the rules of procedure. Witnesses to crimes 
needed to be found and assisted in order to make their testimony 
possible, which was a tremendous undertaking. Those convicted, which 
were a majority of those indicted, needed a place to serve their 
sentences.
    And this is just the obvious. To somebody who isn't a lawyer, 
hasn't worked in a tribunal, I'm sure that underneath that there's a 
whole host of other things that needed to be done. It was truly a great 
logistical undertaking.
    Finally, as the workload increased, capacity became a challenge, 
given the numbers of crimes committed. The international tribunal was 
created in part because the countries of the region lacked the capacity 
themselves to hold individuals accountable for the egregious crimes we 
remember today. But the countries still needed to develop a capacity by 
forming special chambers of their judicial systems, with international 
urging and assistance. Doing so would not only help complete the 
effort, but bring justice closer to where the crimes were actually 
committed and hopefully have more impact. This, of course, was also 
easier said than done. But the alternative is no justice in some 
important cases.
    That brings us to today. I point out these past challenges because 
we often think that we inevitably end up as originally planned, and we 
fail to consider the incredible commitment and decisive moments that 
steer events to our current reality and not to some other. We need not 
only to look at the outcome we reached, but also understand how we 
reached that outcome in order to move forward from here.
    And in short, I think that we cannot take justice for granted today 
and assume it will be served. And certainly we cannot conclude that 
ICTY's closing means the pursuit of justice has been completed.
    Now, to help provide an assessment of where we are at this turning 
point in the pursuit of justice, we first have the international 
tribunal's current chief prosecutor--the fourth, I believe, in the 
history of the court--Serge Brammertz of Belgium. There is probably 
nobody right now more qualified to speak on today's topic than he. We 
are truly honored to have him here with us at this important time.
    We will then hear from Nemanja Stjepanovic, who is up on the screen 
to my right, to the audience's left, who is a member of the team of the 
Humanitarian Law Center in Belgrade. The center, under the early 
leadership of Natasa Kandic, has done incredible work to document 
atrocities and report on them in a serious and professional way--and 
with some risk, I would add--leading to concrete action.
    It is very promising to see a new generation of human-rights 
advocates in Belgrade carrying on this work that is so vital.
    Nemanja, we look forward to hearing your views as well.
    Finally, we have Diane Orentlicher, a professor of law at the 
Washington College of Law at American University, who has long studied 
the work of the tribunal and its impact on the countries in the region. 
She has participated in hearings and briefings of both the Helsinki 
Commission and the Tom Lantos Human Rights Commission in the past, and 
we are glad to have her back today for her assessment.
    The biographies of all of our panelists have been made available. 
So I will turn to each in turn for short remarks, followed by a 
question-and-answer period. I hope that members of the audience who 
come to the microphone will identify themselves and ask short, clear 
questions. And I should mention that the comments of some of our 
speakers may be officially constrained by other unresolved issues 
regarding the Western Balkans, such as recognition of Kosovo statehood 
or the name Macedonia. We're under different constraints, and so we may 
refer to these things in different ways. Until those issues are 
resolved, I prefer to acknowledge them here, up front and at the 
beginning, so that we can have a productive discussion of the central 
issue of the briefing, with an understanding of differing institutional 
positions.
    So with that, let me turn to Dr. Brammertz for his remarks. If the 
members of Congress come in, depending on where you are, I may 
interrupt or I may just wait until you're finished with your remarks 
before turning to the members.
    Dr. Brammertz.
    Dr. Brammertz. Good morning, everyone, excellency; nice to see all 
of you. Thank you very much for inviting me to give a short briefing on 
where we are after 24 years of judicial activities in The Hague, what 
is the current situation, and what do we think will be the challenges 
for the future.
    We have all seen, over the last two, three weeks, the events in The 
Hague, with the Mladic judgment being one of the most important in the 
history of the tribunal; Praljak's judgment, with everything coming 
with it, as you have seen. The irony was that this case got 100 times 
more attention in the media than we would have expected, given all the 
attention to the crimes of those individuals who were convicted for 
many other thousand victims, which, you know, are perhaps a little bit 
underreported compared to crimes committed by others.
    With last week our closing ceremony at the Security Council last 
session there, after 24 years of existence, and we, while accepting 
that of course everything can be better--everything can always be 
better--we really think that the tribunal had credible results. This 
was very much the conclusion of almost all members of the Security 
Council, making it clear that it was very much ``mission 
accomplished.'' And when we speak with the member Security Council in 
the 1990s, when the tribunal was set up, if people back then would have 
known that at the end of the day 161 individuals would have been 
indicted, I think they would have even signed more easily.
    So I think that the results are critical. You mentioned already 161 
indictments, more than 90 convictions, more than 15 acquittals. It's 
also important that in a court of law it's not automatic that there are 
convictions; a few acquittals, which we were very unhappy with, others 
which were the result of witness interference or not sufficient 
evidence, but that's how it is; no fugitives at large, which I think is 
a very, very important result in the sense that we are today the only 
international tribunal with no fugitives at large.
    I remember very well, when I had the privilege of being appointed 
by the Security Council 10 years ago in my current function, there was 
a lot of pessimism about any chance of having one day Karadzic and 
Mladic arrested. And meeting with Bosnian victims' organizations 30 
times over those 10 years, this has always been the number one request: 
We want and we need to see Karadzic and Mladic convicted in order to 
move forward. And today both are convicted, which I think is an 
important result.
    But, of course, it's not only about figures and statistics. We all 
know that behind all those cases are many victims who lost their lives, 
and many survivors, who for many they still don't know where their 
loved ones are. So the issue of missing persons is something we are 
still trying to put high on the agenda, because for many, many families 
to move forward, as long as they don't know where their loved ones are, 
it's very difficult.
    I don't have to speak about the crimes. Many of you are from the 
region. You know all the atrocities which have been committed. The 
ethnic-cleansing campaigns in Croatia and Kosovo, but of course in 
Bosnia-Herzegovina, with the shelling and sniping of the city of 
Sarajevo. And, you know, I have still always on my desk a book I got 
from the association of parents of killed children during the siege of 
Sarajevo, pictures of the more than 1,500 children.
    And every time I have visitors mentioning that this is a conflict 
which is 25 years old, it's time to move forward, well, I like 
feeling--having people feeling a little bit embarrassed by showing 
these photos; say, look, those are not issues of yesterday. This is 
still in the center of the life of people today; all this to say that 
it is very, very much present still in the minds of many, many people.
    And what I wanted to do today is, we need to speak about three of 
our lessons learned, three key reflections. Just three elements which I 
would say are important in our experience and in terms of lessons 
learned.
    First one, cooperation. You know, having been a prosecutor, 
prosecutor general in Belgium for 15 years, it's relatively easy to 
work in a quite secure environment. You have the support by everyone. 
You work in the national context. Almost 100 percent of your work is 
conducting investigations abroad. So you really very much rely on 
cooperation.
    Cooperation together mandate, which is something you mentioned 
already, how important it was that the number of European capitals, but 
also very much Washington at that time, was pushing very hard to make 
sure that the Security Council took the political decision to set up a 
tribunal. We all know that all international accountability mechanisms 
are always the result of a political decision. And we all know that 
today it is quite much more difficult than in the 1990s, at the end of 
the day, to get a consensus at the international level to put 
accountability mechanism in place.
    So the early 1990s, I think, was really, from a political consensus 
and a political willingness, to fight impunity, I think an extremely 
important moment where your country and many others played an important 
role.
    But cooperation has been and the support for cooperation has really 
been in the center of our work for many years, because my predecessors 
had many difficulties during a number of years to access military 
archives, to access witnesses, to access documents in general. And the 
arrest of fugitives, as I mentioned already, has been a big, big 
challenge since the beginning.
    And we got from many administrations--in fact, all administrations 
since the creation of the tribunal--a lot of support in order to be 
successful. And we have really learned that all conditionality policies 
were, at the end of the day, the most efficient tool to nicely but 
surely force countries in the region to cooperate.
    You remember all very well that in relation to the arrest of 
Milosevic, it was very much on American pressure. It was the day before 
the U.S. was organizing a donor conference that finally he was 
surrendered to The Hague. So it was obviously extremely important 
support at that time.
    Since I took over office, it is obvious that the conditionality 
policy put in place by the European Union has really been instrumental 
linking the EU enlargement process directly with a full cooperation 
with our office. So every six months we were preparing reports to the 
Security Council, but also I had a number of meetings with the European 
Council of Ministers.
    And based on our assessment, while our job was, of course, not to 
say who should or shouldn't move to the next level in EU enlargement, 
we were very pleased to see that politicians, governments, were taking 
our reports into consideration for not moving to the next level. And 
personally, I'm absolutely convinced if there would not have been the 
international support by the U.S., by the European Union and others, we 
would not have had a judgment, a life sentence for General Mladic, two 
years in court. I really want to be clear on this point.
    And the lesson learned here is very, very clear. International 
justice, international tribunals, accountability mechanisms, can only 
be successful if there is a clear political support and if the 
political agenda is going in the same direction, you can be successful. 
And it is definitely one of the lessons learned at our tribunal.
    Second element--and, of course, I could speak hours about the legal 
legacy. As the first tribunal after Nuremberg, it is obvious that the 
experiences we had, the way we were working, the structure put in 
place, it was very much also the basis for the creation of many other 
tribunals--the Rwanda tribunal, Sierra Leone, Cambodia, Lebanon--and 
also for the International Criminal Court, which has taken over a 
number of practices we have used.
    Jurisprudence. Of course, jurisprudence is extremely large and is 
used in many countries around the world in relation to command 
responsibility, in relation to the law on genocide. But one area I 
really would like to say a little bit more about is conflict-related 
sexual violence, where, by the way, we had a big conference on in 
Sarajevo very recently, a few months ago, where we had the opportunity 
to show the Bosnian version of a book we wrote together with a number 
of colleagues on all our experiences over 25 years of prosecution of 
conflict-related sexual violence, where in the early days, in our early 
cases, we had relatively little success in getting commanders convicted 
for crimes committed by their soldiers in relation to sexual violence. 
Why? Because sexual violence was considered as not being linked to the 
conflict. It was considered as opportunistic and not as a weapon of 
war.
    Later on our jurisprudence, which was much more clear in accepting 
sexual violence as torture, accepting sexual violence as enslavement, 
and convicting a number of commanders for the sexual violence committed 
by their soldiers because they considered those crimes as being 
foreseeable, this is very important jurisprudence I wanted to mention, 
which, as I said, we collected--translated already in the languages of 
the region that which will be a very important tool for training in the 
future.
    And the third point I wanted to make is what we have learned, that 
to be successful and to really have impact in terms of looking for 
accountability, you need, when possible and where possible, an 
integrated approach between the international level and the national 
level. You know, the ICTY was put in place as the tribunal with primacy 
over national jurisdiction. So it has always been the rule that the 
ICTY could take whatever cases we wanted to take from the region if we 
thought that our jurisdiction was triggered.
    And it was only after 2004 when the Security Council decided about 
the completion strategy that we had to transfer as many cases as 
possible to the region and should only keep the most important ones. 
And this has somehow forced us to start working much more intensively 
with the colleagues in the region. And the results today are really 
very much visible in Bosnia-Herzegovina, but also in Croatia and in 
Serbia, despite many problems.
    For example, we have more than 9 million pages of documents in 
relation to the conflict. And we organized remote access for 
prosecution offices in the region to access our not confidential part 
of the databases. We put in place over the last 10 years, with the 
financial support of the European Commission, liaison prosecutors.
    So I have, for the last 10 years, a Bosnian, a Serbian and a 
Croatian prosecutor physically in our office, having access to our 
databases, and using those information in the region. And we have 
really seen that this is a very efficient way of working. It is 
reducing the famous impunity gap we are always speaking about, that if 
you have an international accountability mechanism, international 
tribunal, which is only dealing with 5, 6, 10 accused, and the 
thousands of perpetrators which are on the ground, which are much more 
visible for the victim's community, are not prosecuted, I think you 
have a major problem.
    And having been in Sarajevo a few weeks ago, there are still 3,000 
cases ongoing in relation to crimes committed in Bosnia-Herzegovina, 
which makes it obvious that if we want to have impact, we need an 
integrated approach. I mentioned already that we had 161 indictments at 
our tribunal. It is a lot. It is, in fact, more than all other 
tribunals together. But it's very little if we look at the number of 
crimes which have been committed.
    So in conclusion, well, what will happen, what is the future? Is it 
over with the closure of the ICTY? Of course not. If the ICTY is 
closed, if the Security Council took this decision, it is not because 
the work is over but because the Security Council is of the opinion 
that one should not trust more than in the past national jurisdictions 
to do their work. It will be a difficult challenge. I have to say that 
the quality of cooperation among countries in the former Yugoslavia 
went backwards over the last few years. This is a reality we have seen.
    You have seen all the comments over the last weeks by, I think, 
irresponsible politicians glorifying the war criminals. And it's always 
trying, as a number of the accused have tried in the courtroom, to 
paint the picture of, well, our people and our country is at trial, 
where we, of course, always insisted on the individual criminal 
responsibility. We are prosecuting individuals for their crimes and for 
their crimes alone, and are never prosecuting countries and people. But 
we have seen over the last weeks that we are far from achieving 
reconciliation in this regard, and that many politicians unfortunately 
are playing a negative role in this regard. But I'm personally 
absolutely convinced that, without all the work the ICTY has done and 
without the work national prosecutors are doing, so without 
accountability there would be no chance of seeing reconciliation being 
successful one day.
    So the work we are doing--and my colleagues are doing the region--
is not sufficient to achieve reconciliation, but I think it is really 
an important starting point. And very pleased to see our friends from 
the civil society world--you know, all those are--they're an 
exceptionally important work, and I really want to use this opportunity 
to ask for your support, of course, for prosecutors in the region, 
because there is a lot of work still to be done, but also for civil 
society because it is much more difficult job than the job we are doing 
with the mandate of the Security Council, because if you have to work 
in a society where the political leadership, where large part of the 
populations is not supporting you, I think it is extremely difficult 
and even more important to do the work Natasa Kandic with the 
organization and many others are doing.
    You know, as a kind of anecdote, I saw today in the media--you saw 
perhaps that there was again a big event in support of the Croatian 
convicted war criminals in Zagreb yesterday--so we've a lot of, you 
know, music and speeches and considering all individuals as heroes, but 
there was one organization, one NGO calling for a kind of work in 
support of the victims of the crimes committed by those individuals--so 
only one small NGO having the courage to take these kind of steps. I 
very often believe more in the new generation than in a number of 
individuals who are today in power.
    I thank you very much for your attention, for your support, and of 
course I'm happy to answer all questions you may have.
    Thank you.
    Mr. Hand. Thank you very much, Dr. Brammertz.
    Before we turn to the Humanitarian Law Center, let me first give 
the floor to Representative Randy Hultgren of Illinois, who, as I 
mentioned earlier, is co-chair of the Tom Lantos Human Rights 
Commission. He's also one of my bosses, being a member of the U.S. 
Helsinki Commission, and we've worked together in the past on a variety 
of issues. And it's great having you here, sir. The floor is yours.
    Mr. Hultgren. Thank you, Bob. Thank you to our panelists. I 
appreciate all of you being here, and welcome to this joint hearing 
between the Helsinki Commission and the Tom Lantos Human Rights 
Commission. It's important for us to have this briefing on the 
International Criminal Tribunal for the former Yugoslavia and the state 
of accountability for atrocities committed during the 1990s Balkan 
Wars.
    I'd like to thank again our panelists for coming here today and 
joining us via technology, and really appreciate their willingness to 
share their expertise and help us understand more what has happened, 
but also what we can do.
    While many date the Balkan Wars to the succession of Slovenia and 
Croatia from Yugoslavia in 1991, it's worth noting that the late 1980s, 
Slobodan Milosevic, at the time the president of the Serbian Republic 
within Yugoslavia, used demagoguery against the Albanian population in 
Kosovo to his own political ends, the beginnings of the ethnic and 
nationalistic extremism that would soon violently flare up throughout 
the region.
    Tom Lantos, the namesake for the commission that I have the 
privilege of co-chairing, was one of the first members of Congress to 
draw attention to the plight of the Kosovar Albanians in the 1980s, as 
was Senator Bob Dole.
    The Balkan War started in Croatia and spread to engulf Bosnia and 
eventually Kosovo. Some saw the complexities of Balkan ethnic groups, 
warring factions and history, and, feeling overwhelmed, decided to cry 
``a pox on all their houses'' and avoid U.S. attempts to stop the 
conflict. This certainly seemed an easier path than to attempt to seek 
a meaningful investigation into the atrocities and ensure that at least 
the worst perpetrators would face trial and their victims find justice.
    But Tom Lantos, Bob Dole and others, including my Tom Lantos Human 
Rights Commission colleague, Eliot Engel, continued to draw attention 
to atrocities committed in these wars and demand justice. Because of 
the work of these men and women and others, members of Congress from 
both parties have closely followed the actions and efforts of ICTY 
since its founding in 1993.
    It's also why I, as co-chair, Representative McGovern and 
Representative Engel and others are co-sponsors of a bill introduced by 
Representative Virginia Foxx: H.R. 3851, the War Crimes Rewards 
Expansion Act, which would provide for rewards for the arrests or 
conviction of certain foreign nationals who have committed genocide or 
war crimes, even if those arrested are tried in national courts rather 
than in international tribunals.
    The ICTY isn't perfect, but it remains a model with lessons to 
teach. As Tom Lantos remarked during the 10-year commemoration of the 
massacre at Srebrenica, ``It is essential that we recommit ourselves to 
see justice for the victims, well-deserved punishment for the 
perpetrators, and commit ourselves to take all possible action to 
ensure and assure that such atrocities do not again occur in Bosnia, or 
in Rwanda, or in Darfur, or indeed, any place on this small planet.''
    Again, I want to thank our panelists. I thank my colleagues for 
their important work on this, and I look forward to hearing what our 
panelists have to say and figuring out, again, next steps for us.
    So thank you so much, and I yield back.
    Mr. Hand. Thank you, sir.
    We'll now turn to Nemanja Stjepanovic in Belgrade, with the 
Humanitarian Law Center.
    Mr. Hultgren. Can I say something?
    Mr. Hand. Sure.
    Mr. Hultgren. I do want to say something really quickly. I do 
apologize--obviously there are a lot of things happening on the Hill 
today, but we have a markup, so I would love to be here. I've got a 
markup in Financial Services right now, so I do have to excuse myself. 
But again, thank you so much, and we'll certainly be monitoring this 
and watching this. But I have to go back.
    Mr. Hand. OK.
    Mr. Hultgren. Thank you.
    Mr. Hand. Thank you.
    So we'll go to Nemanja now. You can hear us OK?
    Mr. Stjepanovic. Yes. Can you hear me?
    Mr. Hand. Yes, you sound pretty good.
    If I could ask those in the audience who might be using the house 
Wi-Fi if maybe they could turn it off on their phones or while he is 
speaking. It might improve the reception, especially as we go to his 
presentation and then the question and the answer period.
    So the floor is yours, Nemanja, and let me say that I think the 
Helsinki Commission and the Tom Lantos Human Rights Commission both 
share the spirit of Dr. Brammertz's comments about the brave work of 
various people in civil society in the countries of the region. You are 
making a big difference, and you have our support. We can only hope 
that if we were in the same situation you were we would be doing the 
same thing, and you are inspiring and have our admiration.
    But the floor is yours.
    Mr. Stjepanovic. Thank you very much, and thank you for your words. 
Thank you for recognizing our work as something important, and thank 
you for the opportunity to address you today during this briefing.
    More than 20 years since the wars in Croatia and Bosnia, and almost 
20 years after the conflict in Kosovo, the region is not just far from 
reconciliation, but in recent years--and we heard something about that 
already--there has been a notable regression. Politicians both in 
Serbia and in the region--and when I say Serbia you can also read 
Croatia, especially Croatia, but also the others--politicians claim 
that the work of the ICTY did not contribute to reconciliation. And at 
same time, the same politicians are refusing to accept the evidence and 
conclusions of the Court which could lead to reconciliation.
    The current Serbian leadership openly rejects discussion of the 
accomplishments of the ICTY, calling them, quote, ``biased.'' And we 
have heard about the situation--literally from day to day we've heard 
the same. And yesterday, our prime minister, Ana Brnabic, she said 
again that the Court was biased, and they are arguing that it was only 
prosecuting Serbs.
    The true reason for such an approach lies in their refusing to 
accept the role of the political leadership of Serbia, and also in 
Croatia, Bosnia, and in Kosovo. For the same reason, war crimes trials 
in Serbia have never fully come to life, and now have further slowed 
down. Basically, they are extinguished.
    In the last three years, the Serbian War Crimes Prosecutor's Office 
has issued only eight indictments. So in three years we have only eight 
indictments. And--only in 2011 we had, for example, 15 indictments, all 
in that one year. We don't have a single indictment for almost four 
years for the war crimes committed against Kosovo Albanians.
    Since the beginning of the war crimes trials, the Serbian War 
Crimes Prosecutor has never accused--and that is probably the biggest 
problem--never accused a high-ranking military or police officer or 
high political officials in Serbia of Serbian ethnicity. The 
Prosecution's targets are almost exclusively direct perpetrators of 
crimes, and from the indictments and judgments it is not possible to 
see their relationship with the state.
    The Humanitarian Law Center has been pointing for years to the 
responsibility of the army commanders in Kosovo. Also the others, but 
especially army commanders--commanders who were engaged in Kosovo. But 
the national judiciary have never reacted.
    One of the commanders of the military brigades in Kosovo is today 
Chief of Staff of the Serbian armed forces, former commander of 37th 
Brigade, Ljubisa Dikovic, whose members--members of his brigade--took 
part in attacks on Kosovo villages and massive crimes were committed. 
And after that, they were also involved in transferring bodies from 
Kosovo to mass graves in Serbia. In Serbia, four sites with mass graves 
have been discovered since 2001, with--nearly 1,000 Albanian civilian 
bodies were found there.
    In one of these mass graves, at a place called Petrovo Selo in 
eastern Serbia, bodies were discovered--the bodies of American citizens 
were discovered, ex-members of the Atlantic Brigade of the Kosovo 
Liberation Army, Ylli, Agron and Mehmet Bytyqi, who were arrested in 
Serbia without arms and without uniforms in their attempt to help a 
Roma family get out of Kosovo. They were arrested and sentenced to two 
weeks in prison with the explanation that they had no proper documents.
    After being released, they were again arrested by police, taken to 
Petrovo Selo, and executed there. In Serbia there was a trial against 
two policemen--again, low-level policemen who arrested the Bytyqi 
brothers when they were released from prison and who took them to 
Petrovo Selo, but those two policemen were acquitted. Despite the 
evidence that the order for the execution came from the top levels of 
the police, no senior police official has ever been charged for this 
crime.
    I am giving this just as an example of when we have a situation 
that we already know a lot about some particular case, but nothing is 
final because there is no will to accuse anybody from the top of the 
structure.
    Now we are expecting the first indictments of the newly established 
special court for Kosovo in The Hague. It is a court of the Kosovo 
National Judiciary, before which the crimes members of the KLA 
committed from 1998/1999, mostly, will be prosecuted. After the ICTY 
trials that brought limited satisfaction to KLA victims, that court 
represents a new chance for justice--but also brings a fear, especially 
for us here, that its work will be presented in Serbia as a proof that 
crimes in Kosovo were committed primarily against Serbs, which is not 
the case, and that there is no need for further trials in Belgrade, 
which are still a problem.
    As part of the accession negotiations, the European Union has 
recognized the problem of war crimes trials as an important issue under 
Chapter 23 relating to justice and the rule of law, and we are of 
course satisfied with that. The adopted action plan for Chapter 23, a 
national war crimes prosecutor strategy, foresees a number of concrete 
steps that Serbia must take in order to improve war crimes prosecution. 
But nearly two years since their adoption, the action plan and the 
strategy remain dead letters. Literally, nothing is going on and more 
or less, nothing is applied.
    In the meantime, suspected war criminals remain in public office, 
and what is particularly worrying is that convicted war criminals are 
returning to public life. They are trying to be installed as new moral 
authorities of this society, and not only in Serbia, unfortunately.
    The most recent example is the appointment of General Vladimir 
Lazarevic, General of the Army of Yugoslavia. He was present in Kosovo. 
He served a 14-year sentence before the ICTY for crimes in Kosovo, and 
now he has become a lecturer at the Military Academy. And after that we 
have promotion of Nikola Sainovic, sentenced in the same case for the 
crimes against Kosovo Albanians. So he is promoted to the presidency of 
one of the ruling parties, the Socialist Party of Serbia. And these are 
not the only examples. I can go further in details.
    At the same time, Serbian President Aleksandar Vucic gives 
conciliatory statements, while ministers and media loyal to him keep 
sending messages that Serbia does not accept responsibility for the 
policy that led to the gravest crimes on European soil since the Second 
World War. So we have always that situation that we have conciliatory 
statements, usually from the President or some top officials, and then 
their colleagues from the government, from the Parliament, and 
especially media--which are government-controlled--they go with a 
completely different story.
    The result of this hypocrisy being that Serbia's international 
partners are calm--and we are very unhappy because of that--while at 
the same time, further conflicts in the region are being fueled with 
those statements and acts, which I already mentioned.
    That's it for now. Thank you for your attention, and I hope that 
you could hear me well.
    Mr. Hand. Thank you very much, Mr. Stjepanovic. Your message was 
heard very clearly, both through the technology, but also 
substantively. So I thank you for your remarks.
    Let me turn to Representative Eliot Engel of New York who has 
joined us--the ranking Democrat on the House Foreign Affairs Committee 
and the co-chair of the Albanian Issues Caucus in the House of 
Representatives.
    Mr. Engel?
    Mr. Engel. Well, thank you--thanks very much. And I thank the 
speaker who we just heard--the very important message that he sent, so 
thank you for your testimony. It's important that the world knows what 
has gone on and what continues to go on, so it takes a great deal of 
courage, and so we all salute you for your courage. Thank you so much.
    Mr. Chairman, as the ranking member of the House Foreign Affairs 
Committee and as someone who has followed the Balkans for a long, long 
time, I want to thank the Tom Lantos Human Rights Commission and the 
Helsinki Commission for holding today's excellent joint briefing on the 
state of accountability for atrocities committed during the wars in the 
western Balkans in the 1990s.
    As the International Criminal Tribunal for the former Yugoslavia 
winds up its work, this is the right time to look back on its successes 
and failures, and to learn the lessons of its efforts to bring the 
perpetrators of war crimes to justice. We all know the history, to one 
extent or another. After the death of Tito, who held Yugoslavia 
together for many years, the country began to break up, but unlike the 
peaceful division of Czechoslovakia, Yugoslavia's dissolution turned 
into a vicious ethnic bloodletting, the most brutal to occur on the 
European continent since World War II. The conflicts over Yugoslav 
succession--conflicts were characterized by widespread, flagrant 
violations of international humanitarian law, war crimes and crimes 
against humanity, and ICTY was set up to bring the violators of the 
worst crimes to justice.
    I'd like to commend the Helsinki Commission and the Lantos 
Commission for working together on this joint briefing to assess the 
tribunal's work, but Mr. Chairman, even as ICTY closes down, I fear 
that the need for justice in the former Yugoslavia has not diminished, 
and I would like to highlight two particularly horrific cases in 
Serbia.
    While there has indeed been progress toward democracy in Serbia, I 
believe it has been held back by a continual unwillingness to deal with 
crimes committed during the 1999 Kosovo War. First, let's recall the 
fate of the Bytyqi brothers, three American citizens, who were murdered 
after they were arrested by Serbian police while trying to help their 
neighbors, a Roma family, return home.
    Serbia's President Vucic promised Vice President Biden, and 
personally promised me, to bring the criminals to justice and said it 
would happen very soon. That was a long time ago, and it has not yet 
occurred despite widespread understanding of who was behind the crimes.
    Before continuing, I would like to highlight the very important 
work of the Belgrade-based Humanitarian Law Center, which forms the 
basis of what I am about to recount. I thank you, representative, again 
for being with us here today from Belgrade.
    On January 31st of this year, the Humanitarian Law Center released 
a dossier called ``The Cover-Up of Evidence of Crimes During the War in 
Kosovo: The Concealment of Bodies Operation.'' This report describes 
mass graves in Serbia containing the bodies of 941 Kosovo Albanians, 
maybe civilians, killed outside combat situations in Kosovo during 
1999. According to the report, and I quote it, ``The evidence 
corroborated the decision to conceal evidence of crimes committed was 
planned as early as March 1999 at the highest level of the government 
and indicated that members of both departments of the Serbian NUP, 
which is the state security department and public security department, 
and the Yugoslav army's departments in charge of, quote `clearing up 
the terrain,' were involved in it. The murder and mass burial of almost 
1,000 innocent civilians is a grave crime against humanity, but the 
perpetrators have not only gone unpunished, they have not even been 
pursued.''
    Mr. Chairman, it is long past time for Belgrade to face the facts 
of injustice--to bring to justice the people, including high officials 
in its very government, who are behind these very serious crimes. At 
the same time, the Serbian unwillingness to achieve justice has brought 
no adjustment in policy to the United States, and the European Union's 
willingness to proceed with Serbia's accession process to the EU has 
been unaffected. This has to stop. It has to stop now.
    Until Serbia brings those who have committed these serious crimes 
to justice, the EU should not move ahead with Belgrade's accession 
process, and the United States should think twice before advancing our 
relations with Serbia.
    Mr. Chairman, I asked Secretary of State Tillerson and Deputy 
Secretary Sullivan what they were going to do about this mass murder 
and cover-up. In its response to me, the State Department expressed the 
beliefs, and I quote, ``that those guilty of moving the bodies of 
Albanian civilians from Kosovo to clandestine mass graves in Serbia to 
conceal evidence of earlier massacres should be brought to justice,'' 
unquote. The Department has, quote, ``brought the report by the 
Humanitarian Law Center to the attention of Serbia's newly appointed 
war crimes prosecutor,'' unquote.
    I thank the State Department for raising the issue with Serbia's 
war crimes prosecutor. This is an important step forward and, in the 
days ahead, I look forward to an update from the Department and will 
pay close attention to whether Belgrade finally brings to justice those 
who committed these horrific crimes.
    So again, thank you to the commissions for this briefing and for 
your willingness to tackle these difficult issues. Thank you so much.
    Mr. Hand. Thank you very much, Mr. Engel, for all the work you have 
done regarding Kosovo, and the Balkans and Serbia over the years. I 
think your advocacy of justice in Serbia is not only in the interest of 
the other countries in the region, but also in Serbia's own interest to 
pursue, and so it's much appreciated.
    Mr. Engel. I really agree. This is not anti-Serbian by any stretch 
of the imagination.
    Mr. Hand. Right.
    Mr. Engel. It's something that I believe is the best thing for the 
Serbian people. If they want to become part of the EU and part of 
Europe, then this is a good thing for them, but they need to confront, 
they need to come to grips, they need to admit what happened.
    Mr. Hand. Yes, I fully agree.
    And I would also note that House Concurrent Resolution 20, 
regarding the murder of the Bytyqi brothers has also been made 
available here at this briefing, and we have a member of the Bytyqi 
family here. Ilir is present with us today.
    Mr. Engel. If I might, Mr. Chairman, highlight what I already said 
before, I had a personal meeting with Mr. Vucic who promised me that 
this would be resolved within a month. That was probably about a year 
ago.
    Mr. Hand. Yes. Well, I was present when he made promises at the 
Johns Hopkins University as well, and we have yet to see actions. 
Hopefully we can address that in more detail during the question and 
answer period.
    Now, if I could, I'd like to turn to our last panelist before going 
to the question and answer period, Professor Diane Orentlicher, for her 
statement.
    Professor?
    Ms. Orentlicher. Thank you. Honorable Member and Chair, thank you 
so much for inviting me to participate in this briefing, and more 
important, for convening it. The excellent presentations of other 
panelists enable me to be brief.
    I want to just strongly endorse what others have said about the 
crucial role that American sustained attention to the issues we're 
addressing here has made. Today sustained American engagement remains, 
in some ways, more important than ever for reasons that have already 
been highlighted.
    I was asked to speak about what the ICTY has accomplished as it 
prepares to close later this month after operating for 24 years, as 
well as what remains to be done. I've just finished a book that 
explores these questions with a focus on the two countries that have, 
in many ways, been most affected by its work, which is Serbia and 
Bosnia-Herzegovina. So I'm going to address the tribunal's legacy in 
those two countries.
    Being guided by the priorities of those who supported the tribunal 
in those two countries, my remarks focus on the three expectations that 
were most important to them as they embraced the creation of the ICTY. 
So let me begin with what I consider the most important priority of 
victims in particular, and that is quite simply but profoundly 
importantly, justice--what some call justice for its own sake.
    Over the course of many, many, many interviews with many Bosnians 
over a long period, I repeatedly heard how many survivors of atrocities 
desperately needed justice. They were acutely aware that no measure of 
justice could redeem their loss, but they craved the moral satisfaction 
that they believed the ICTY alone could provide. So how well did the 
tribunal do in meeting that particularly?
    First let me say the hard part before I get to the really important 
overall message. It's impossible to talk to victims in Bosnia without 
hearing a litany of criticisms about discrete aspects of the ICTY's 
performance. Among them, sentences are too short, trials take too long; 
certain suspects who represented themselves, notably Slobodan Milosevic 
and Vojislav Seselj, turned the courtroom into what often seemed like a 
theater of the absurd; a series of controversial acquittals, starting 
in November 2012, shook victims' confidence in the tribunal.
    It's often said that survivors of mass atrocities are never 
satisfied with the quality of justice, so it's important to recognize 
that many experts have echoed their concerns, and I believe that the 
prosecutor himself has often voiced the same concerns of survivors. To 
its credit, the ICTY undertook some important course corrections in 
recent years, and those have been important. Going forward, with 
respect to other tribunals with which we are engaged, I think it's 
really important for us to keep sight of the sort of mundane aspects of 
the delivery of justice that make all the difference to victims.
    Now the big picture: in light of all of the criticisms I hear 
whenever I travel to the region--of discrete aspects of the ICTY's 
performance--it's been astonishing to see that survivors remain 
overwhelming happy that the ICTY was created. In the words of one 
actually very frequent critic from Bosnia, despite concerns about 
aspects of its performance, the ICTY is, quote, ``the best thing that's 
happened to the former Yugoslavia since 1991, when it began to 
implode.''
    Last month's historic verdict in the case of Ratko Mladic was a 
real capstone for many victims. I'd like to quote the words of just 
one, which I think capture what the verdict meant to so many Bosnians. 
The day the verdict was announced, Mirsada Malagic, who lost her 
husband, two sons, and other relatives during the war, and who 
testified in Mladic's trial, responded this way when she was asked what 
difference the tribunal had made in the lives of survivors. What she 
said is, quote, ``It's good that the Hague tribunal exists. The killing 
of so many people has been proven. They were sentenced just enough for 
us to get some peace in our souls.''
    And again, her response to the question really captured what I've 
heard so often from survivors. They got justice and that meant 
everything.
    Beyond the importance of what many in the region call justice for 
its own sake in interviews that I did for my study, many Bosnians and 
Serbians hoped that, by judicially authenticating the fundamental facts 
of ethnic cleansing, the tribunal would dispel pervasive denial about 
those crimes, and more affirmatively, advance a wide-ranging process of 
acknowledgment.
    As previous speakers have highlighted, those hopes have been 
frustrated. Nationalist discourses are on the rise with toxic effect in 
both Bosnia and Serbia. Strident challenges--strident nationalist 
discourses include--again this has been mentioned--challenges to 
fundamental facts and findings of the ICTY. And--again, as other have 
mentioned but it bears repeating--those convicted by the ICTY have been 
welcomed home, time and again, as heroes, and elevated, as Mr. 
Stjepanovic mentioned.
    So what are the takeaways from that? I'd like to briefly mention 
four. There's a lot to be said about this, but I'm going to be brief. 
First, I think one takeaway is that the experience in the region 
reminds us that we have to be careful, going forward with other 
mechanisms of international justice, not to raise unrealistic 
expectations about what they can achieve.
    One of my Bosnian interlocutors noted, quote, ``Disillusionment 
with the Hague tribunal was not just a problem of the Hague tribunal. 
It was also the problem of how we understood what it was going to do 
for us. Courts do not set political reality, right?'' I think there is 
a lot of wisdom in her observation.
    Second, I would nonetheless challenge the claim that the ICTY did 
not have an impact on acknowledgment. Importantly, public opinion 
surveys in both Bosnia and Serbia reflected rising levels of 
acknowledgment of wartime atrocities in roughly the first six years of 
this century. Bosnians and Serbians whom I've interviewed, including 
quite a few people who administered these surveys, are convinced that 
the ICTY played a huge role in that progress during that period. They 
saw this increasing level of acknowledgment as a direct dividend of 
Hague justice.
    And so, again, I want to emphasize that, while we shouldn't raise 
expectations that are difficult to meet, we should also recognize that 
The Hague tribunal has made a difference and can make a difference 
under auspicious circumstances.
    Which leads me to the next point. A tribunal, like the ICTY, and 
specifically the ICTY, can make a profound difference, even in these 
tough issues like acknowledgment, when local political circumstances 
are relatively auspicious. So in Serbia we saw progress in dispelling 
denial about Srebrenica, for example, during the years in which 
reformists were--held leadership positions in Serbia. Similarly--or 
somewhat similarly, we saw a high point in Bosnian-Serb acknowledgment 
of Srebrenica in the same period when there was robust engagement by 
the international community in Bosnia.
    The last point I want to make about this is that--and it follows 
from my previous point--the international community can and, in my 
view, must remain profoundly engaged in addressing the toxic political 
developments in Bosnia in particular, but in the region more widely if 
we really want to see the full realization of the legacy of the 
international tribunal. It's no coincidence that there has been a surge 
in denialism in Bosnia precisely during the period when we've seen a 
retreat of robust international engagement.
    Turning to the final area of impact that I want to touch upon, as 
other speakers have noted, one of the most tangible and hopefully 
enduring legacies of the ICTY was in spurring the development of local 
war crimes prosecutions. In Bosnia, the ICTY played a concerted role in 
launching domestic war crimes institutions, working with the Office of 
the High Representative as well as local Bosnian lawyers, whose 
contribution is often overlooked, to create these institutions. It 
didn't play the same deliberate role in Serbia. Nonetheless and 
therefore notably, the ICTY played a key role in catalyzing the 
development of Serbia's war crimes institutions in 2003.
    That's a fascinating story in itself. I'm going to just quote one 
former Serbian official about his conception of the role the ICTY 
played. What he told me was that the ICTY, through its existence and 
work, enabled the reformists and the coalition government in Serbia--
the first post-Milosevic government in Serbia--to realize their own 
aspirations to ensure accountability. They were operating in a deeply 
constrained and contested political space, and the ICTY, through its 
work, widened that space, enabling them to play a key role in 
addressing the legacy of Serbian violence itself.
    I want to pay tribute to Mr. Brammertz because, under his 
leadership, the ICTY office of the prosecutor seized the opportunity 
that emerged when these institutions were created. His office has, as 
he mentioned, developed a number of really innovative programs to 
bolster the capacity of the ICTY's partners in the region.
    As I've mentioned in my book, I think those initiatives are a model 
for all international criminal tribunals, and I hope that they receive 
more attention. Yet, as others have noted, particularly Mr. 
Stjepanovic, those institutions are fragile, and in recent years have 
seen some backsliding in their important achievements. What has been 
clear throughout their life is that sustained international engagement 
has made a critical difference in addressing political pressures that 
have threatened, sometimes very seriously, their independence and their 
continued viability. As the ICTY closes, it's going to be more 
challenging to sustain that engagement but more important than ever 
precisely for that reason.
    In closing, I want to note that the ICTY's legacy will extend far 
beyond its formal lifetime, and the tribunal can continue to have a 
profound impact if we nurture the seeds that it has planted. We know it 
took decades for Germany to embrace Nuremburg. Yet, as we also know, 
Germany eventually became what some have called a model penitent in 
relation to its painful past.
    If the ICTY is to have its own salutary, long-term impact in Bosnia 
and Serbia, it won't happen without our sustained support and so, for 
that reason, I'm grateful for the two commissions that convened this 
hearing, for their leadership in constantly marshaling the attention of 
the U.S. Government when it has been necessary to do so.
    Thank you.
    Mr. Hand. OK. Thank you very much.
    Now that we've heard from all of our panelists, we'll turn to a 
question and answer period. We have two microphones on either side of 
the room. If people could come up and, again, identify themselves, 
indicate if you want to address a specific one of the panelists or just 
ask the entire panel a question, and then make a brief comment and ask 
your question, and then we'll hear the answer to it.
    So if you're interested, we'll start with Ilir, if you'd like to go 
up to the microphone. And then others, start thinking of your 
questions. And if you want to come up, feel free to do so.
    Questioner. Thank you, chairman, panel, Tom Lantos, and the 
Helsinki Commission for this opportunity. My name is Ilir Bytyqi.
    I have three brothers, Ylli, Agron and Mehmet, all American 
citizens who were kidnapped and murdered in 1990s by the Soviet 
Government officials. Soviet President Vukcevic has promised numerous 
times to bring justice to this case, to us and the Vice President Joe 
Biden, to resolve the issues when he's here or talking with western 
Balkans. He knows exactly what to tell them. When he's back in Serbia, 
he tells a different story. He refuses to prosecute high ranking 
officials and suspects, and tells the Serbia media that we are kicking 
him in the head and insulting Serbia. What powers does the MICT have 
when a national government refuses to prosecute war criminals? What can 
the U.S. and the European government do in such cases?
    Thank you.
    Mr. Hand. Thank you. I think we would first go to the chief 
prosecutor and see if he would to comment specifically on what the 
mechanism--MICT--might be able to do. But then we may also want to hear 
some comments from Belgrade, from Mr. Stjepanovic, in terms of how he 
sees the case and the government's reaction to it.
    So, Mr. Brammertz?
    Dr. Brammertz. Sure. It's more difficult to me to comment on the 
specific case. As I understand, the case is hopefully ongoing with the 
Serbian judiciary. But of course, what you experience and what the 
member of Congress explained, about the assurances getting--well, I'm a 
very similar situation, because I meet with the Serbian president also 
every six months in relation to a number of open issues which are 
directly linked to our mandate. And it is true that it takes often a 
lot of time for issues to be resolved. And a number of the issues we 
have raised are still open, including in relation to the execution of 
arrest warrant of the tribunal in Belgrade, including in relation to 
the execution of sentences of courts from Bosnia-Herzegovina, which are 
not executed as they should be in Serbia.
    So the specific situation you are mentioning, I think we all agree 
is that it remains in Serbia very, very difficult to have cases 
conducted in relation to mid-level or higher-level perpetrators. The 
few cases we have seen are all in relation to the physical perpetrators 
with relatively clear evidence. But if it's about a hierarchy or 
superiors, we see that this remains a big problem in Serbia, as it is a 
problem in the other countries. So this is very much one of our 
conclusions, that there has been some progress in relation to 
prosecutions of physical perpetrators, but in the entire region the 
moment it concerns someone who has a more political profile, then the 
investigations are not moving forward. So, in this sense, I see the 
problem.
    Now, what can the MICT do? So the MICT is a mechanism, an 
international community tribunal, which is the successor of the 
organization of the ICTY. And we are receiving a lot of requests. And a 
lot of organizations are sharing concerns with us. The nongovernmental 
organizations in the region, of course, many members of the diplomatic 
community, but even those prosecutors in the different countries who 
are really willing to move forward are saying, well, we still need a 
partner in The Hague to continue working on those cases.
    So while the name ICTY will not be there anymore, the mandate of 
the MICT is very, very similar. We cannot do new investigations or new 
trials. But in terms of supporting national prosecutions, it's exactly 
the same, continuing to organize access to our databases, having 
liaison prosecutors in The Hague. So what we are--you know, I had 
yesterday an all-day meeting at the State Department to see how the 
U.S. Government can continue supporting the MICT to make sure that you 
are relevant. We are having similar meetings in Brussels with the 
European Union because, as it was mentioned by Mr. Engel, well, the EU 
enlargement process is still an important tool to create incentives, if 
not to say stick and carrot policy, to make sure that things are 
changing.
    So I know I'm not giving an answer to the situation of your family. 
This is, of course, a case which is very well known, which is very 
symptomatic for, unfortunately, a number of situations where people 
have just been killed, bodies disposed of, and where investigations are 
not done very often the way they should be done. And sometimes, with 
trials taking place where we receive the comments from civil society 
saying, Well, this is everything but a correct trial, and not a 
decision supported by the evidence.
    So it remains very, very fragile. But as I said, the MICT for a 
number of years to come continues the work of the ICTY. We still have 
one trial ongoing, Stanisic/Simatovic. Important trial, Stanisic having 
been the head of the Serbian intelligence service. We have the appeals 
proceedings, Karadzic/Mladic. And we will continue doing capacity 
building and training and support. It was mentioned the new war crimes 
prosecutor in Belgrade. She's taking a tough job. It's not very popular 
to be in this kind of job.
    And just again, as an example, the predecessor, Vukcevic, during 
which time much more people have been prosecuted, and during which time 
cooperating was reaching much better, he, after retiring from office as 
a state official, he asked to become member of the bar, and he was 
refused by the bar association with the argument that he would not be 
worth joining the bar association because all his life he has 
prosecuted Serbs for crimes committed. And so just to say that it 
remains a big problem in the different countries of the former 
Yugoslavia, but definitely in Serbia, but also in Croatia. That those 
prosecutors who are trying to do their job are very often not supported 
by the political leadership, which remains a problem for many years to 
come.
    Mr. Hand. Thank you. Mr. Stjepanovic, do you want to comment 
specifically on the Bytyqi case from your perspective, in terms of 
President Vucic and the Serbian Government's response, promises, and 
then criticisms of those who are reminding them of those promises and 
responses?
    Mr. Stjepanovic. Yes. Well, I can say that these promises usually 
come together with the visits of U.S. officials. So usually we hear the 
promises during or after that time, and then after that they remain 
quiet.
    The Bytyqi brothers' case is actually part of broken problem, as I 
already tried to explain. We can't solve Bytyqi brothers without a 
decision to go with accusing of high officials from the police, in this 
case. During the trial, we heard that an order for the killing of the 
Bytyqi brothers came from the top of the police, from the Ministry of--
at that time, Minister of Interior Vlajko Stojiljkovic, who committed 
suicide before he came to the ICTY.
    So that means that if an order came from the top, that order 
couldn't be delivered to the direct perpetrators who were only--who 
were accused, and yet acquitted. And the reason why they were acquitted 
is also--I believe it is also--that the reason is that you can't 
convict in that case only two persons who are low level, because of 
fear that they can say what actually happened and who gave the order, 
et cetera. So that is the problem in that case. We have a situation 
that what did they--and we believe that if they want to go deeper in 
that case, they will do so.
    We heard about--and I'm really proud that that dossier was 
mentioned--I am the author of that dossier about moving the bodies from 
Kosovo to Serbia. We, as an NGO, identified--of course, thanks to 
documents and evidence from ICTY--but we identified by name 110 of the 
persons of predominantly ground police who were involved in that 
operation. And can you imagine what the Prosecutor's Office can do 
about the police? And I will remind you that three out of four mass 
graves in Serbia were found after only, let's say, one month's 
investigation in 2001. After that, nothing or almost nothing happened, 
especially no initiative--we didn't see an initiative from Serbia.
    So, if we speak about that, we speak about a lack of will, and 
that's all. And we have the impression that the international partners 
have been failing to clearly communicate in recent times--and I would 
say in recent years--clearly to communicate with Serbia that the 
stalling of war crimes prosecuting and also widespread denial of court-
established facts are unacceptable. So we don't--I mean, maybe it's our 
impression because we, as civil society, always wants more, but we 
don't see that will also from international partners.
    So I will conclude. If we speak about the Bytyqi brothers, nothing 
is--we don't see that something is going on. And we believe that that 
is because there is no will to prosecute high-ranking officials from 
the police.
    Mr. Hand. OK. Thank you very much. It sounds like we still have our 
work cut out for us.
    If I could ask a question: The international tribunal has ruled 
unequivocally that the massacre at Srebrenica constituted a genocide. 
But it has not supported the contention that other atrocities, either 
alone or collectively, constituted the crime of genocide.
    Mr. Prosecutor, you noted in your remarks after the Mladic verdict 
that while the court acknowledged the crimes committed in six 
municipalities, I believe it was, but they did not convict Mladic for 
those crimes on the genocide charge. You indicated your office would 
review the court's reasoning. And I was wondering if you could 
elaborate on that issue.
    And, Professor Orentlicher, you were asked the same question 10 
years ago at a Helsinki Commission hearing in 2007. And I think your 
answer was one of the best take-aways from that hearing. You first 
indicated that convicting for genocide is difficult because of the need 
to prove beyond a reasonable doubt that the crimes were committed, but 
also with the specific intent to destroy a group, in whole or in part.
    You went on to use several words to describe how truly enormous and 
terrible crimes against humanity are. And you urged people as well not 
to devalue crimes against humanity, and their horrendous nature, 
because of the existence of genocide as a separate charge. I think 
that's important because I've seen some people criticize the tribunal 
decision. Even though they convicted Mladic on 10 of the 11 counts, and 
he got a life sentence, that they did not say that genocide was 
committed in these areas, other than Srebrenica.
    So I was wondering if you could comment on that again as well, but 
perhaps after Dr. Brammertz first gives us an update based on his own 
reaction to the Mladic verdict.
    Dr. Brammertz. Sure. I have to explain the genocide charges in a 
little bit more broader way. We have as office of the prosecutor, since 
the beginning, defended the hypothesis that there was not only 
genocidal intent in Srebrenica, and where we have been followed by the 
judges in a number of cases, but we were of the opinion that genocidal 
intent to destroy part of society--entirely a part of society for very 
specific reasons, that this intent was also present in a number of 
municipalities where massive killings have taken place.
    The judges did not follow our thesis, our approach, at least not 
for the municipalities. Somehow, with the explanation that, well, as 
the number of persons who have been forcefully displaced is much higher 
than the numbers of people which have been killed, well, there was not 
a clear evidence about this genocidal intent. As I said, we disagreed 
from the beginning with this approach, and have always kept in our 
indictment genocide charges for the different municipalities. And in 
Karadzic and in other cases before, we never got a conviction in 
relation to those charges.
    The Mladic judgement is a little bit different in the sense that 
while Mladic was also not convicted for genocide in the municipalities, 
for the first time--and it's the first time the judges confirmed that 
in a number of municipalities a number of physical perpetrators had a 
genocidal intention, but are not linking this genocidal intent up the 
chain of command to Mladic. It's an issue we are carefully looking at, 
because it is not necessarily for us absolute logic to have on one hand 
a genocidal intent accepted in relation to a number of officers, but 
not with Mladic. But, again, we are still really carefully doing our 
analysis to see what kind of remedy we will use.
    But I will leave it to Professor Orentlicher, indeed, to explain, 
again, that crimes against humanity, war crimes, are as grave crimes as 
genocide is. And we, of course, have always seen that people try to--
also victims, to create a kind of hierarchy among crimes. And we're in 
the press conference after Mladic. I insisted very much to say that, 
well, the crimes for which he was not convicted, for genocide, exactly 
for the same crimes he was convicted for murder, for persecution, as 
crimes against humanity, which were very important convictions leading 
to the life sentence as well.
    Ms. Orentlicher. Thank you. I would just add that--you know, 
obviously, I still believe what you quoted me saying 10 years ago, but 
I believe it even more so. I think it's unfortunate that we forget that 
in the most symbolically resonate verdict for many of us historically--
which is the judgement of Nuremburg--the surviving Nazi leaders were 
convicted of crimes against humanity. They were convicted of crimes 
against humanity, not genocide. And so I think we have to work harder 
to reinvest that conviction with the moral power that it had at 
Nuremberg, and not disparage the verdict. It should come as--provide 
great moral satisfaction to victims that Mladic was convicted of crimes 
against humanity.
    There is a paradox that I don't think we know yet how to handle, 
which is that the person who campaigned for the genocide convention and 
coined the term, Raphael Lemkin, succeeded in investing genocide with a 
very unique stigma. And that's been useful. It has helped mobilize 
action. I remember, as the conflict in Kosovo geared up, I got a lot of 
calls from Congress asking me if what was happening in Kosovo met the 
definition of genocide. And I kept on making the case that a key point 
of the genocide convention is to persuade states to take action to 
prevent it from happening. So you don't need moral certainty or legal 
certainty that genocide has been committed in order for the convention 
to be relevant.
    And indeed, it was mobilizing, I think, for many members of 
Congress to know that there was a risk of genocide. So that's one side 
of the paradox. The other side is that unfortunately, precisely because 
it does have that stigma, many victims feel that their own suffering 
was somewhat devalued, when it really shouldn't be.
    Mr. Hand. Yes, and, again, I think that's why it's important to 
stress this point now, to let them know that we do not devalue what had 
happened to the victims. And I can recall vividly, referring to what 
you had said about the genocide convention and the commitment of the 
parties to the convention to do something to prevent genocide, about 
the many congressional hearings we had, including some that were titled 
``Genocide in Bosnia-Herzegovina,'' trying to convince members of the 
executive branch to concede that genocide was taking place or about to 
take place.
    And they resisted, because what it meant is they needed to do 
something in response to try to stop it. And I think the biggest fear I 
had coming away from the whole Balkans experience is that you don't 
have the political will to do something to stop genocide until it has 
already occurred. And that's where, I think, the definition really 
comes into play, that you don't want it to be that way. You want it to 
try to generate the political will, to try to stop it.
    Let me, again, turn to the audience. I don't see anybody in our--
well, there's one person, over here. Do you want to introduce yourself 
and then ask your question?
    Questioner. I'm Erika Schlager with the Helsinki Commission staff.
    And I'd like to start out by thanking our speakers here today in 
Washington, as well as across the Atlantic, for participating in this 
briefing. My question is about the impact of the tribunal on Roma. 
Before the conflict in Yugoslavia, before the wars, Yugoslavia had 
perhaps the largest Romani minority of any country in Europe. Roma were 
victims of every aspect of this conflict--victims of the genocide, they 
were among the first who felt the consequences of this ethnically 
driven--or framed war, war crimes, crimes against humanity. But also 
for survivors, incredible legacy of continuing displacement and loss of 
citizenship.
    So mindful of how many decades it has taken to get recognition of 
the genocide Roma experienced under German National Socialism, has the 
tribunal been able to play a role in either legal accountability for 
the crimes that were committed against Roma, for Roma as victims, and/
or play a role in building a record that will help people understand 
the consequences of this conflict on Roma, that are experienced by 
Romani survivors who are now displaced all over Europe?
    Thank you.
    Dr. Brammertz. Well, in a number of cases we have, of course, 
important number of victims from the Roma community. And among the main 
victims there are many. Now, would there be a study or a reflection on 
the impact of the cases on the Roma community? Unfortunately, I would 
say no. Of course, it's studied much more from a sociological 
perspective to see what the situation is. You know, we have in terms of 
victims of crimes, for example, by Bosnian Serbs, perpetrators, who 
would always call the victims ``the non-Serb community,'' just also to 
avoid making every time the differences between the different 
communities. But it is a sort of fact that an important number of 
members of the Roma community have been victims of those different 
crimes. But, again, I see absolutely your point in terms of impact.
    We see the impact is much more visible, of course, in relation to 
the other communities where it was, of course, very clearly--if we take 
Srebrenica, which is, of course, always the most symptomatically, the 
number of Bosnians living in Srebrenica before the war, and the 
political situation now afterwards. So there you can very, very easily 
see, in terms of ethnic cleansing, the impact on specific communities 
in relation to the war.
    But you have an important point. This is much less visible in 
relation to the Roma community, which by definition is much less 
located to a very specific place.
    Mr. Hand. Would either of the other panelists want to say anything? 
Mr. Stjepanovic? No? OK.
    OK. Over here we have a question.
    Questioner. Thank you, sir. My name is Martina Hrvolova, and I 
manage the Balkan section at the Center for International Private 
Enterprise.
    Thank you for the presentations to all the speakers. I'd like to 
ask prosecutor Brammertz a bit broader question. Could you please 
kindly share your vision of international criminal justice for us? Are 
you concerned? And what are the key challenges in international 
criminal justice for the coming years?
    And then, Professor, if you could elaborate; I don't know if you 
had a chance to look at this, but what is the level of awareness of the 
importance of prosecution of war crimes outside of those countries that 
were affected?
    Thank you.
    Dr. Brammertz. Well, for the broader picture, I don't want to be 
too negative, but the fact is that today we have the highest number of 
ongoing conflicts since World War II, the highest number of internally 
displaced persons and refugees. We have conflicts where civilians are 
the major victims--where historically, you know, conflict was very much 
between armed forces, nowadays the main victims. Then, of course, we 
have the modern forms of conflict in relation to ISIS, terrorism in 
general. And if we look at accountability, well, the reality is that 
for the majority of victims for all those conflicts, accountability 
will be the exception and not the rule.
    You know, I worked two years in Lebanon as head of the 
investigation commission after the assassination of Rafik Hariri. So I 
know quite well the Middle East as well. If you look at the Middle East 
today, total chaos. If you look at the Syria situation, more than 
400,000 victims, already three times more than in the wars in Bosnia-
Herzegovina; conflict ongoing for four or five years, and no 
perspective of any tribunal or anything of this nature.
    So it is the unfortunate reality that when the ICTY was created, 
you had a consensus in the international community to create an 
accountability mechanism. This consensus is not there today. We're not 
entering to the politics, but it is obvious that international 
community is not speaking with one voice.
    If you look at Yemen, Syria and others, well, there are now for 
Syria an investigation commission has been put in place, but collecting 
information, looking into information, transferring it to the competent 
authorities, but not with their own judicial authority. You had until a 
few weeks ago so-called Joint Investigative Mechanism (JIM). This was 
also a body put in place by Security Council in relation to the use of 
chemical weapons in Syria. Well, this mechanism was closed two weeks 
ago, but there were some critical voices in the Security Council.
    So the picture is not great. But again, it's not a reason not to 
continue fighting for it, pushing for it. We have shown, I think, that 
with the tribunal for the former Yugoslavia that time plays in our 
favor. You know, we all know this expression, justice delayed is 
justice denied. Well, at the international level, someone who is well 
protected today and cannot be prosecuted, this can change 5 years 
later, 10 years later.
    And the main challenge today is to make sure that you collect 
evidence as soon as possible. You asked about challenges. I would say 
that's the biggest challenge today. We have seen in the former 
Yugoslavia if--for Srebrenica, for example, we all remember that the 
genocide in Srebrenica happened after the creation of the tribunal. So 
we always speak about deterrence. Well, the creation of the tribunal 
has no deterrence impact.
    But the massacres--the genocide took place after the creation of 
the tribunal, but it still took one year for the first investigator of 
the tribunal to be on the ground in Srebrenica. And in the meantime, 
Bosnian Serbs have moved thousands of bodies from the primary mass 
graves to hundreds of secondary graves, where still today bodies are 
found.
    So while we are today back in a situation where we have 
accountability mechanism for a number of conflicts, one would at least 
hope that, in securing evidence, some progress is made, just to avoid 
that in 20 years, if there is a tribunal for Syria, colleagues will be 
again in the same situation, looking for evidence and having 
difficulties to find it.
    So political consensus is absent today in terms of accountability. 
That's the biggest problem. And then, from a practical perspective, if 
you are not able to secure evidence as soon as possible, prosecutors 
later in court will have big, big difficulties to convince judges about 
individual responsibility.
    Mr. Hand. Professor?
    Ms. Orentlicher. Well, of course, I agree with everything the 
prosecutor just said about changing the political environment. It's 
striking to me that it took, I think, 18 years from the day the ICTY 
was created until the day the final fugitive was arrested. So it was an 
uphill struggle, to say the least. And yet it answered all of its 
indictments because there was almost a singular international 
commitment to the ICTY.
    So you faced challenges. You had to constantly remind governments 
of their responsibilities. And yet you have one of the strongest and 
most concerted commitments that the international tribunal has enjoyed 
over a sustained period. Obviously, the International Criminal Court 
struggles to garner that kind of support to apprehend many of those 
against whom it's issued arrest warrants.
    That said, I think two things are true. One is that we keep seeing 
that there's a very strong demand for justice in many countries where I 
wouldn't frankly expect it, where we see victims who are struggling to 
survive on a daily basis. They're still trying to collect evidence and 
provide a foundation for accountability in the future. And I think 
that's going to continue to be a factor in the future emergence of 
mechanisms of accountability in places where it doesn't now seem likely 
that it will happen.
    I also think we need to educate the public and diplomats more about 
what international justice has achieved in ways that are not always 
visible. For example--and I'll be brief here--we talked earlier about 
the rise of nationalist rhetoric, which is indeed extremely worrying. 
And we should mobilize very hard to address that phenomenon.
    It's often, I think, easy to sort of say, OK, so the international 
justice didn't work. It didn't dispel denial. That's not, as I said 
earlier, a fallout of international justice. It's a symptom of a much 
deeper problem in post-conflict countries where we're seeing this 
resurgence of nationalism.
    What we don't see--as I said, that part is visible and it's easy to 
see--what we don't see so much is the many occasions in which the work 
of the ICTY strengthened reformists, removed political spoilers from 
the scene during critical and fragile moments of transition. Many 
Serbians have talked to me about the importance to their transition. 
But Milosevic was physically removed from Serbia. And many Serbians 
have talked to me about the specter of what their transition would have 
been like if the ICTY had not removed some of those spoilers from their 
scene.
    So I think we need to learn more about the ways in which tribunals 
have been and potentially can be helpful, because I think we know all 
too well the ways in which countries continue to struggle in the 
aftermath of conflict even when there's international justice. That 
other story needs to be told more.
    Mr. Hand. OK, thank you.
    I think we have what will probably be the last question for our 
briefing.
    Questioner. Hi. Thank you very much. My name is Praveen Madhiraju, 
and I'm the executive director at Pretrial Rights International and 
also pro bono counsel to the Bytyqi family.
    I essentially have a peace-versus-justice question, which I think 
the professor addressed a little bit just now. But in Washington, in 
the NGO community there has been a recent effort to get the U.S. re-
engaged in the Western Balkans, and I think primarily from a security 
perspective. And by that I think the effort was preventing a return to 
war and the ascendance of Russia in the region.
    I'm wondering if you have thoughts on the role of transitional 
justice in security--for the future security of the Western Balkans, 
and also things that the United States can do, the government can do, 
to advance those causes.
    Mr. Hand. OK. Thank you.
    I think that Praveen was referring especially to a recent Atlantic 
Council report that was released about U.S. policy towards the Balkans 
and trying to generate greater interest by Washington in the region. 
It's an excellent report. It's very comprehensive. But it does also beg 
the question of the role that transitional justice plays in U.S. policy 
and U.S. strategy, as well as that of the European Union and our other 
partners that work together in trying to integrate the Balkans into 
Europe and make a more stable, peaceful and prosperous place.
    Dr. Brammertz. Well, you're asking what the U.S. can do. And I 
think it is crystal clear. And my experience, after being 10 years in 
this job, the fact is that changes will not happen because the 
political leadership thinks that it's now the right time for 
reconciliation to move forward all together.
    Without incentives from outside, without giving the crystal-clear 
message that there's no alternative to the accountability, I think we 
will not see progress. It's very much the message I'm also giving in 
Brussels when I meet with members of the European Commission or the EU 
commissioner for enlargement, to say very, very clearly, well, the 
unfortunate reality is that people will do the minimum necessary to 
please the international community and not the maximum possible, where 
we would all hope that responsive politicians would, in the interest of 
their people and in the interest of a joint future, do the right 
things. This is not the case.
    So government support from the U.S. is extremely important. As I 
said, it was instrumental to set up the tribunal. It was instrumental 
in getting the different fugitives arrested. But at a period where the 
region is going backwards, it is again as important as it was in the 
early days.
    Now, transitional justice, well, this will remain a very long 
process. I said it earlier. In Bosnia-Herzegovina alone, there are more 
than 3,000 cases which still need to be conducted, more than 350 in 
relation to midlevel or senior-level individuals. There is very little 
appetite and readiness in the region to cooperate, because many of the 
physical perpetrators of crimes committed in Bosnia-Herzegovina are in 
Serbia or in Croatia. But those countries are not extraditing their own 
nationals, so in theory they should take over in the context of the 
provision of justice. They should take over those cases.
    But how do you want a prosecutor to do a good job if he hears in 
the media the head of state or the president of Republika Srpska or 
whomever saying, well, all those are heroes? How do you want an 
investigator, a junior investigator or a junior prosecutor, to do 
serious work on war crimes investigations if you have, like, General 
Lazarevic, as it was mentioned, a general who was convicted because of 
grave violations of the Geneva Conventions, who is then teaching at a 
military academy?
    So as long as the political leadership is not showing strong 
support for war-crimes investigations, I'm very much afraid that we 
will see little progress. And this transitional justice will continue, 
I'm afraid, for a long time. There will be new war-crimes strategies to 
be put in place in Bosnia very soon. In Serbia it still needs to be 
implemented. But I don't want to finish, because I understand there 
will be also a record, and what we are saying will be in the public 
domain.
    I, at the same time, want to say I don't want to be only critical 
towards my colleagues in the region, because I see the role of the MICT 
to really support prosecutors in Bosnia-Herzegovina, in Serbia and in 
Croatia to do their job by helping them in getting evidence, moving 
their cases forward, and making sure that they have knowledge in order 
to address those cases.
    Mr. Hand. OK, thank you.
    We are running out of time, and so we need to bring the briefing to 
a close. If either Mr. Stjepanovic or Professor Orentlicher, do you 
have any last comment on that last question or anything else before we 
close? But please keep it short if you do.
    Mr. Stjepanovic. I would like to add one sentence, if I may. When 
we speak about impunity, about accountability, about work of the ICTY, 
I can imagine a situation in which, if the ICTY was never established, 
that we would have Radovan Karadzic as the President of Republika 
Srpska and Jadranko Prlic as the leader of the Bosnian Croats today, 
because everything what we've seen that is happening now can show us 
what would have happened if the ICTY was never established, with, of 
course, all the criticism which we can address to that institution.
    Mr. Hand. OK. Thank you very much.
    At this point I'll bring the briefing to a close. I think this has 
been an excellent discussion we've had here. And I do see a fairly 
positive assessment of the work of the ICTY. As I mentioned to the 
prosecutor at the beginning, I think the challenge now is that as we 
look at what the countries themselves will do, we don't have ICTY to 
set the standard by which we can judge their actions. When somebody was 
indicted by The Hague, we knew there needed to be that cooperation to 
arrest and transfer them. We're now not quite sure what needs to be 
done, et cetera.
    We hope that through the mechanism, through the MICT, that we'll 
continue to hear reports about how the countries are doing. We hope 
that civil society in Serbia, but also working with the civil societies 
in all the other countries, will also be putting out their press 
releases, issuing their reports on how they see their countries are 
doing, and that people here in Washington and the Congress and our own 
NGO community will continue to press the United States to continue to 
push for justice as an integrated part of the solution for stability in 
the region.
    I'd like to thank the Bosnian ambassador for being here today, 
Ambassador Hrle; and Voice of America for covering our briefing today. 
And I see other friends out there--Nina Bang-Jensen, who probably 
should get the most credit for the forceful U.S. effort in support of 
the tribunal when she was head of the Coalition for International 
Justice over the years, and particularly for pressing for 
conditionality on assistance to Serbia until they handed over all at-
large indictees.
    And Praveen and Mr. Bytyqi, thank you for being here today and for 
your good work in reminding us all that there are still these 
outstanding cases that need to be resolved, and pressing us to do our 
job in making sure that they get resolved.
    At this point this briefing is adjourned. Again, thank you. Have a 
good day, everybody.
    [Whereupon, at 11:52 a.m., the briefing ended.]
    
    
    
    
    
   

                              A P P E N D I X

=========================================================================


               PREPARED STATEMENT OF HON. ELIOT ENGEL

    Mr. Chairman, I would like to thank the Tom Lantos Human Rights 
Commission and the Helsinki Commission for holding today's excellent 
joint briefing on the state of accountability for atrocities committed 
during the wars in the western Balkans in the 1990s. As the 
International Criminal Tribunal for the former Yugoslavia winds up its 
work, this is the right time to look back on its successes and 
failures, and to learn the lessons of its efforts to bring the 
perpetrators of war crimes to justice.
    We all know the history to one extent or another. After the death 
of Tito--who held Yugoslavia together for many years--the country began 
to break up. But, unlike the peaceful division of Czechoslovakia, 
Yugoslavia's dissolution turned into a vicious ethnic bloodletting--the 
most brutal to occur on the European continent since World War II.
    The conflicts over Yugoslav succession were characterized by 
widespread and flagrant violations of international humanitarian law, 
war crimes, and crimes against humanity, and the ICTY was set up to 
bring the violators of the worst crimes to justice.
    I would like to commend the Helsinki Commission and the Lantos 
Commission for working together on this joint briefing to assess the 
Tribunal's work. But, Mr. Chairman, even as the ICTY closes down, I 
fear that the need for justice in the former Yugoslavia has not 
diminished, and I would like to highlight two particularly horrific 
cases in Serbia.
    While there has indeed been progress toward democracy in Serbia, I 
believe that it has been held back by a continual unwillingness to deal 
with the crimes committed during the 1999 Kosovo War. First, let's 
recall the fate of the Bytyqi brothers, three American citizens who 
were murdered after they were arrested by Serbian police while trying 
to help their neighbors--a Roma family--return home. Serbia's President 
Vucic promised Vice President Biden and personally promised me to bring 
the criminals to justice, but that has not yet occurred--despite 
widespread understanding of who was behind the killings.
    Before continuing, I would like to highlight the very important 
work of the Belgrade-based Humanitarian Law Center which forms the 
basis of what I am about to recount. I thank their representative for 
being with us from Belgrade and HLC for its critical work to see 
justice and the truth.
    On January 31st of this year, the Humanitarian Law Center released 
a Dossier called, ``The Cover-Up of Evidence of Crimes During the War 
in Kosovo: The Concealment of Bodies Operation.'' This report described 
mass graves in Serbia containing the bodies of 941 Kosovo Albanians, 
mainly civilians killed outside combat situations in Kosovo during 
1999.
    According to the report:

``The evidence corroborated that the decision to conceal evidence of 
                    crimes committed was planned as early as March 1999 
                    at the highest level of the government, and 
                    indicated that members of both departments of the 
                    Serbian MUP (State Security Department and Public 
                    Security Department) and the Yugoslav Army's 
                    departments in charge of ``clearing up the 
                    terrain'' were involved in it.''

    The murder and mass burial of almost 1000 innocent civilians is a 
grave crime against humanity, but the perpetrators have not only gone 
unpunished, they have not even been pursued. Mr. Chairman, it's long 
past time for Belgrade to face the facts and bring to justice the 
people--including high officials in its government--who are behind 
these very serious crimes.
    At the same time, the Serbian unwillingness to achieve justice has 
brought no adjustment in policy from the United States, and the 
European Union's willingness to proceed with Serbia's accession process 
has been unaffected. This has to stop and has to stop now. Until Serbia 
brings those who have committed these serious crimes to justice, the EU 
should not move ahead with Belgrade's EU accession process and the 
United States should think twice before advancing our relations with 
Serbia.
    Mr. Chairman, I asked Secretary of State Tillerson and Deputy 
Secretary Sullivan what they were going to about this mass murder and 
cover-up. In its response to me, the State Department expressed its 
belief that ``those guilty of moving the bodies of Albanian civilians 
from Kosovo to clandestine mass graves in Serbia to conceal evidence of 
earlier massacres should be brought to justice.'' The Department has 
``brought the report by the Humanitarian Law Center to the attention of 
Serbia's newly appointed War Crimes Prosecutor.''
    I thank the State Department for raising this issue with Serbia's 
War Crimes prosecutor. This is an important step forward, and in the 
days ahead, I look forward to an update from the Department and will 
pay close attention to whether Belgrade finally brings to justice those 
who committed these horrific crimes.
    Again, thank you to the Commissions for this briefing and for your 
willingness to tackle these difficult issues.




          PRESS RELEASE ADDENDUM SUBMITTED BY HON. ELIOT ENGEL
          
For Immediate Release
November 17, 2017

        STATE DEPARTMENT: BRING PERPETRATORS OF CRIMES IN
             HUMANITARIAN LAW CENTER REPORT TO JUSTICE

WASHINGTON--In a response to questions Representative Eliot L. Engel, 
Ranking Member of the House Committee on Foreign Affairs, submitted for 
Secretary of State Rex Tillerson and Deputy Secretary of State John 
Sullivan, the State Department expressed its belief that ``those guilty 
of moving the bodies of Albanian civilians from Kosovo to clandestine 
mass graves in Serbia to conceal evidence of earlier massacres should 
be brought to justice.'' The Department has ''brought the report by the 
Humanitarian Law Center to the attention of Serbia's newly appointed 
War Crimes Prosecutor.''

Below are the full texts of questions by Rep. Engel and responses from 
the State Department, followed by Humanitarian Law Center's Summary of 
its ``Dossier: The Cover-Up of Evidence of Crimes During The War in 
Kosovo: The Concealment of Bodies Operation.''

EXCHANGE WITH DEPUTY SECRETARY JOHN SULLIVAN:

REP. ENGEL: ``The response to Engel QFR #26 from the hearing with 
Secretary Tillerson said, ``We take seriously the allegations raised by 
the Humanitarian Law Center, and are reviewing the report.'' Now that 
you have had opportunity to review the report, have you engaged the 
government of Serbia on how it will prosecute the perpetrators of the 
massacres or whether some form of international tribunal will be 
needed?''

DEPUTY SECRETARY SULLIVAN: ``We have brought the report by the 
Humanitarian Law Center to the attention of Serbia's newly appointed 
War Crimes Prosecutor. We believe that those guilty of moving the 
bodies of Albanian civilians from Kosovo to clandestine mass graves in 
Serbia to conceal evidence of earlier massacres should be brought to 
justice.

``We share your frustration with the lack of progress in Serbia, and in 
the Western Balkans region generally, on investigating and prosecuting 
war crimes cases. We have raised the issue with Serbian officials at 
all levels of government, including with Serbian President Aleksandar 
Vucic, continually emphasizing the importance of Serbia thoroughly 
investigating such atrocities and bringing those responsible to 
justice. In addition, we remind Serbian officials that prosecuting 
human rights abuses such as these is imperative for Serbia to fulfill 
its obligations under Chapter 23 (Judiciary and Fundamental Rights) of 
the European Union (EU) acquis as it pursues EU accession. The U.S. 
Ambassador to Serbia, Kyle Scott, regularly speaks out, both publicly 
and privately, on the need to bring war criminals to justice.

``The United States has strongly supported the International Criminal 
Court for the former Yugoslavia (ICTY). Following the closing of the 
Tribunal this year, the United States will continue to push for justice 
for war crimes committed in the Balkan conflicts of the 1990s-but now 
it is imperative that momentum shift toward national prosecutions. The 
United States continues to push for timely and just prosecution of the 
remaining cases, without regard to the ethnicities of victims or 
perpetrators. To that end, we have worked to help Serbia and other 
former Yugoslav states improve their judicial systems and to expand 
regional cooperation, which is critical to building solid cases and 
conducting successful prosecutions.''

EXCHANGE WITH SECRETARY REX TILLERSON:

REP. ENGEL: ``I am deeply concerned with the lack of justice for 
murders and crimes committed by the government of Serbia during and 
after the Kosovo War. In particular, there have been no charges brought 
against anyone for the murders of the three American citizens, the 
Bytyci brothers, despite widespread understanding of who was behind 
them.

``Serbian President Vucic and Acting Prime Minister Dacic have promised 
very senior U.S. government officials for many years that they would 
bring to justice the perpetrators of this crime and the crime of 
burning our embassy in 2008. They both also made these promises to me.

``On January 31st of this year, the respected Humanitarian law Center 
of Belgrade released a Dossier called, ``The Cover-Up of Evidence of 
Crimes During the War in Kosovo: The Concealment of Bodies Operation.'' 
This report described mass graves in Serbia containing the bodies of 
941 Kosovo Albanians, mainly civilians killed outside combat situations 
in Kosovo during 1999. According to the report:

``The evidence corroborated that the decision to conceal evidence of 
crimes committed was planned as early as March 1999 at the highest 
level of the government, and indicated that members of both departments 
of the Serbian MUP (State Security Department and Public Security 
Department) and the Yugoslav Army's departments in charge of ``clearing 
up the terrain'' were involved in it.

``The murder and mass burial of almost 1000 innocent civilians is a 
crime against humanity, but the perpetrators have gone unpunished. It's 
long past time for Belgrade to face the facts and bring to justice the 
people--including high officials in its government--who are behind 
these very serious crimes.

``At the same time, the Serbian stalling and stonewalling has brought 
no adjustment in policy from the United States, and the European 
Union's willingness to proceed with Serbia's accession process has been 
unaffected. This has to stop and has to stop now. Until Serbia brings 
those who have committed these serious crimes to justice, the EU should 
not move ahead with Belgrade's accession process and the United States 
should think twice before advancing our relations with Serbia.

``What is the United States doing to press Serbia to bring to justice 
the murderers of the Bytyci brothers, those who burned the United 
States Embassy, and those who murdered and buried in mass graves almost 
1000 innocent Kosovo civilians? With the ICTY no longer accepting any 
new cases and closing down at the end of this year and Serbia seemingly 
unwilling to prosecute anyone for these grave offenses, will you 
support a new international or special tribunal, similar to that which 
was established in Kosovo, to prosecute those responsible?''

SECRETARY REX W. TILLERSON: ``We share your frustration with the lack 
of progress in the Bytyqi case and the slow progress in the 2008 
Embassy burning case, and raise the issue with Serbian officials at all 
levels of government, including with Serbian President Aleksandar 
Vucic. We have also informed Serbian officials that these issues stand 
in the way of closer bilateral relations. Serbia recently appointed a 
new Special War Crimes Prosecutor--the position had remained vacant for 
almost a year-and-a-half--and we have called for the Bytyqi case to be 
a priority in her work. We are hopeful that that appointment will serve 
to advance the investigation and prosecution of those responsible for 
the Bytyqi murders.

``There have been some recent developments in the Embassy burning case, 
as five high level Serbian police officials, including the then-Chief 
of the Armed Police, have been indicted for allowing the attack to take 
place. Additionally, the re-trial of seven hooligans involved in the 
burning itself is scheduled to begin July 21. We will follow both of 
these prosecutions and continue to insist that those responsible be 
held accountable. We take seriously the allegations raised by the 
Humanitarian Law Center, and are reviewing the report.

``The United States has strongly supported the International Criminal 
Court for the former Yugoslavia (ICTY), which served as a model of 
fairness, impartiality, and independence in the trials of defendants 
accused of the worst crimes known to humankind: genocide, war crimes, 
and crimes against humanity. Justice for war crimes committed in the 
Balkan conflicts of the 1990s will remain a U.S. priority following the 
close of the Tribunal later this year. It is important to ensure both 
that justice is done and that heinous crimes do not go unpunished in 
the future. As the ICTY's work draws down, it is imperative that 
momentum shift toward national prosecutions. The United States 
continues to advocate with relevant actors in support of the swift and 
fair prosecution of the remaining cases, without regard to the 
ethnicities of victims or perpetrators.''

              HUMANITARIAN LAW CENTER RELEASE ON REPORT

January 31, 2017

Dossier: ``The Cover-Up of Evidence of Crimes During the War in Kosovo: 
The Concealment of Bodies Operation''

Since 2001, mass graves containing the bodies of 941 Kosovo Albanians, 
mainly civilians killed outside combat situations in Kosovo during 
1999, have been found on four locations in Serbia. 744 bodies of Kosovo 
Albanians have been discovered in Batajnica, on the outskirts of 
Belgrade, at least 61 in Petrovo Selo, and 84 at Lake Perucac. At least 
52 bodies have been subsequently found in the mass grave at Rudnica.

The bodies found in mass graves belonged not only to males, but also to 
females and children. The cause of their deaths, in most cases, was a 
gunshot wound, mainly to the head, suggesting that the victims did not 
die in combat but as a result of execution-style killings outside 
situations of combat.

The analysed testimonies and witness statements could be divided into 
two groups: the first group comprises statements given by eyewitnesses 
and survivors of crimes; the second group, more numerous, comprises 
statements of insiders, mostly members of the police and workers of 
utility companies, who took part in the transportation and burial of 
the bodies. In addition to these, numerous police and military 
documents were also analysed, primarily those available through the 
ICTY database, but also some documents the Humanitarian Law Center 
acquired on its own, independently of the courts.

The evidence corroborated that the decision to conceal evidence of 
crimes committed was planned as early as March 1999 at the highest 
level of the government, and indicated that members of both departments 
of the Serbian MUP (State Security Department and Public Security 
Department) and the Yugoslav Army's departments in charge of ``clearing 
up the terrain'' were involved in it. Civilians and workers of 
municipal utility companies also took part in removing the corpses, and 
the machines and other equipment of these companies were also used for 
this purpose.

Now, sixteen years after the discovery of the mass graves in Batajnica, 
Petrovo Selo and at Lake Perucac, and more than three years after the 
discovery of the mass grave at Rudnica, all these locations remain 
unmarked, without any sign to indicate that hundreds of bodies of men, 
women and children who had been killed in numerous mass crimes in 
Kosovo were buried in Serbia. The Humanitarian Law Center has launched 
an initiative to establish a memorial site at the Batajnica mass grave 
site. At the time of the publication of this Dossier, the online 
petition in support of the initiative has been signed by several 
hundred people.

No one has ever been held accountable before courts in Serbia for the 
large-scale operation of concealment of bodies of Kosovo Albanian 
victims in mass graves.

Dossier: ``The Cover-Up of Evidence of Crimes During the War in Kosovo: 
The Concealment of Bodies Operation''



           PREPARED STATEMENT OF SERGE BRAMMERTZ

     Honorable Chairpersons, Members of Congress, Ladies and Gentlemen,
    I am grateful for the opportunity to brief you today on the work of 
the International Criminal Tribunal for the former Yugoslavia, or 
``ICTY,'' and the future of justice for atrocity crimes in the Western 
Balkans.
    Just a few weeks ago, the ICTY completed its mandate with the 
delivery of its final judgments. For twenty-four years, the Office of 
the Prosecutor, which I have had the honor to lead in its final phase, 
fought to bring to justice those most responsible for the horrific 
atrocities committed during the conflicts in Bosnia and Herzegovina, 
Croatia and Kosovo.
    As I reported to the United Nations Security Council last week, I 
believe we achieved credible results in our mandate. We indicted 161 
individuals for genocide, crimes against humanity and/or war crimes. 
The Tribunal completed its proceedings against 109 of these 
individuals, with 90 convictions and 19 acquittals. Another 13 
individuals were referred to national courts in the former Yugoslavia 
for prosecution.
    We are also the only international criminal tribunal that has 
accounted for all fugitives, including men like Radovan Karadzic and 
Ratko Mladicwho for many years were among the world's most wanted men.
    But numbers alone do not tell the story of the ICTY.
    All of us remember the atrocities and devastation in the Western 
Balkans that shocked humanity's conscience. The widespread and 
systematic ethnic cleansing campaigns in first Croatia, then Bosnia and 
Herzegovina and later Kosovo that victimized so many. The campaign of 
terror against the civilian population of Sarajevo. And in July 1995, 
the Srebrenica genocide, during which more than 7,000 Bosnian Muslim 
men and boys were exterminated while 30,000 women, children and elderly 
were terrorized and forcibly displaced from their homes.
    Impossible as it was to imagine twenty-four years ago, and despite 
what seemed at times almost insurmountable odds, I can inform you today 
that many of the most senior leaders who planned and implemented these 
crimes have been brought to justice and punished for the immense 
suffering they caused.
    Equally, the truth of what happened has been proved in a public 
court of law. That men in positions of great authority used propaganda 
and lies to incite fear, division and hate. That these leaders then 
abused their power to commit horrific atrocities in order to achieve 
their political and military aims.
    In large measure, then, the ICTY has achieved what it set out to 
do. In accordance with universally-recognized principles of law, we 
independently and impartially investigated the crimes, prosecuted 
senior leaders from all parties to the conflicts and held them 
individually responsible for their crimes against the victims and 
indeed all of humanity.
    Reflecting on our work for the last two decades, I would like to 
offer three points.
    First, what we concluded in the courtroom began in the halls of 
government, particularly here in Washington, D.C. and European 
capitals. The United States, together with European partners, mobilized 
and led the international community in support of justice and 
accountability for the former Yugoslavia. This resulted in the 
establishment of the ICTY, and its sister tribunal for Rwanda, by a 
unanimous Security Council.
    At the same time, you correctly recognized that continued 
diplomatic and political support was needed if we were to achieve our 
mandate. The greatest challenge my Office faced was obtaining the 
cooperation of the States of the former Yugoslavia, particularly in 
access to evidence and the arrest of fugitives. For many years, the 
governments of Bosnia and Herzegovina, Croatia and particularly Serbia 
refused to provide cooperation, hindering our investigations and 
delaying our trials.
    Yet with bi-partisan commitment across multiple administrations, 
the United States government's support was decisive to achieving 
justice. To take the most dramatic example, the 106th Congress in 
coordination with the George W. Bush Administration successfully 
secured the arrest of Slobodan Milosevic. By conditioning foreign aid 
on full cooperation with the ICTY, Congress ensured that authorities in 
Belgrade adhered to their international legal obligations by arresting 
Milosevic and transferring him to the Tribunal's custody.
    This conditionality policy was then continued by the European 
Union. Linking progress in the EU accession process and Euro-Atlantic 
integration to cooperation with my Office, conditionality policies 
resulted in the arrest of all remaining fugitives, most notably Radovan 
Karadzic and Ratko Mladic.
    The lesson is clear: if there is a clear political agenda in 
support of justice, and if the international community speaks with one 
voice, those most responsible for atrocity crimes can be held 
accountable.
    Second, even after it closes the ICTY's legacy can support further 
efforts to achieve justice for atrocity crimes. The ICTY's 
establishment led to the creation of international tribunals for crimes 
committed in Rwanda, Sierra Leone, Cambodia and elsewhere. Today and in 
the future, the ICTY will continue to be a symbol of justice to other 
victims and survivors, such as the Yazidi and religious communities who 
have suffered from Daesh's horrific crimes.
    But the ICTY is not just a symbol. We greatly developed the law and 
practices needed to bring war criminals to justice. Our work 
prosecuting conflict-related sexual violence is notable in this 
respect. My Office spent more than four years reviewing and documenting 
our lessons learned from prosecuting rape, sexual enslavement, torture 
and other crimes of sexual violence in more than 50 cases. We 
identified what worked, what didn't and the key recommendations we can 
offer to other investigators, prosecutors and judges. These lessons 
have now been published in a book that focuses on improving capacities 
in other justice institutions. We also prepared a training program that 
we are offering to national prosecutors in Africa, the Western Balkans 
and elsewhere in the world.
    This leads me to my third point and what may be my Office's under-
appreciated legacy, our support to national prosecutors and judges in 
the countries of the former Yugoslavia. As the Chief Prosecutor of the 
ICTY, I have been intimately involved in the sustained cooperation and 
coordination between my Office and prosecutors throughout the former 
Yugoslavia in support of national investigations and prosecutions of 
atrocity crimes. This cooperation included numerous capacity building 
activities and close cooperation on concrete cases. Looking at the 
ICTY's experiences, we can see clearly how international justice can 
help reestablish the rule of law in countries devastated by conflict.
    This has been an important lesson. To have more impact, there 
should be an integrated, global solution to justice for atrocities 
crimes. If international tribunals focus on those most responsible for 
the crimes, there will need to be national courts to bring other 
perpetrators to justice in order to avoid significant impunity gaps. As 
the ICTY has shown, if international and national justice mechanisms 
work together, meaningful justice can be achieved. In the future, 
collaboration and intense cooperation between the international and 
national should be the rule, not the exception.
    By way of conclusion, I would like to look to the future.
    The ICTY is closing not because full justice has been achieved for 
crimes committed during the conflicts, but because the Security Council 
decided to transition responsibilities from the ICTY to national 
judiciaries in the former Yugoslavia. The truth is that much more 
remains to be done, and many victims from all communities are still 
waiting for justice. Thousands of cases remain to be processed, 
particularly hundreds of complex cases against senior- and mid-level 
suspects.
    So the completion of the Tribunal's mandate is not the end of war 
crimes justice, but the beginning of the next chapter. Further 
accountability for the crimes now depends fully on national judiciaries 
in the former Yugoslavia.
    It is clear that for this strategy to succeed, our national 
colleagues will need as much--if not more--support as the ICTY and my 
Office received. As my Office has reported over the last few years, 
accountability for atrocity crimes in the national courts of the former 
Yugoslavia faces many challenges, with negative trends often 
overshadowing the positive.
    At the same time, it is also clear that reconciliation has not yet 
been achieved in the Western Balkans. As reactions over the last two 
weeks have reminded us, the crimes have left wounds that still have not 
healed. Convicted war criminals continue to be seen by many as heroes, 
while victims and survivors are ignored and dismissed. Difficult facts 
continue to be denied and rejected.
    So the question is why reconciliation remains a significant 
challenge today. Unfortunately, there is still no true will within the 
region to accept the immense wrongdoings of the past and move forward, 
most of all among the political leadership.
    This is not just an issue of the past, but a risk to peace and 
security in the Western Balkans today. When irresponsible officials use 
fear and division to secure power, conflict and atrocities can gain a 
logic of their own. That was true two decades ago, and it remains true 
now. With the closure of the ICTY, it is more important than ever to 
address this challenge.
    So ultimately, I believe that the ICTY's legacy is not simply 
measured by our own work, but by whether the countries of the former 
Yugoslavia build the rule of law, demonstrate they can secure 
meaningful justice for the victims, and show the courage to accept the 
facts and pursue meaningful reconciliation.
    Following the ICTY's closure, I will continue to serve as the Chief 
Prosecutor of the Mechanism for International Criminal Tribunals. My 
Office is committed to continuing and strengthening our assistance to 
our national colleagues. At the same time, the region's partners, like 
the United States and European Union, can also strengthen their 
engagement, and ensure that national war crimes justice is at the top 
of the diplomatic agenda.
    If we speak with one voice, and provide our full support, more 
victims from all communities will receive a greater measure of justice, 
and hopefully the countries of the former Yugoslavia can achieve real 
reconciliation. Thank you for your attention.


          PREPARED STATEMENT OF NENANHA STJEPANOVIC


    Honorable Chairpersons, Members of Congress, Ladies and Gentlemen,
    On behalf of the Humanitarian Law Center I thank you for inviting 
me to present our views in regard with the prospects of dealing with 
the past and war crimes trials in Serbia and in the region, after the 
International Criminal Tribunal for former Yugoslavia (ICTY) has 
completed its mandate.
    More than 20 years since the end of the wars in Croatia and Bosnia 
and almost 20 years after the conflict in Kosovo, the region is not 
just far from reconciliation, but in recent years there has been a 
notable regression. The latest judgments of the ICTY--to Bosnian Serb 
military commander Ratko Mladic and six Bosnian Croat war politicians--
are clear examples of the former Yugoslav societies' rejection of facts 
pertaining to their past.
    Politicians both in Serbia and the region claim that the work of 
the ICTY did not contribute to reconciliation, at the same time 
refusing to accept the evidence and conclusions of the Court, which 
could lead to reconciliation. The current Serbian leadership openly 
rejects to discuss the accomplishments of the ICTY, calling the court 
``biased'' and arguing that it was only prosecuting Serbs. The true 
reason for such an approach lies in refusing to accept the role of 
Serbia, its political leadership, its army and secret police in the 
wars in Croatia, Bosnia and Kosovo.
    For the same reason--the concealment of the role of Serbian state 
structures in the wars of the nineties--war crimes trials in Serbia 
have never fully come to life, and now have further slowed down, so to 
speak, they are before quenching.
    In the last three years, the Serbian War Crimes Prosecutor's Office 
has issued only eight indictments. The fact that only in 2011 the same 
Prosecutor's Office issued fifteen indictments--speaks for itself about 
the slow down.
    Since the beginning of the war crimes trials, the Serbian War 
Crimes Prosecutor has never accused any high-ranking military or police 
officer, or high political officials of Serbian ethnicity. The 
Prosecution's targets are almost exclusively direct perpetrators of 
crimes, and from the indictments and judgments it is not possible to 
see their relationship with the State.
    For example, at the trial of members of the Scorpions unit for the 
murder of six boys and young men from Srebrenica which happened in 
Trnovo near Sarajevo in the summer of 1995, the least effort was never 
made to establish the connection of that unit with the Ministry of 
Interior of Serbia, while even in the verdict it was never stated that 
the victims were brought from Srebrenica. The obvious goal being to 
prevent establishing Serbia's connection with the Srebrenica genocide 
and, in general, the war in Bosnia.
    Considering the 25-year work of the ICTY and the 14-year work of 
the domestic War Crimes Chamber in Serbia, a paradoxical conclusion can 
be made that the crimes were planned by the highest political, military 
and police officials, while their execution was conducted by the lowest 
levels of the structure. As if there was no one in between them. When 
the domestic war crimes judiciary was established, the idea was for it 
to complement the work of the ICTY by prosecuting senior and middle 
ranked individuals within military-police structures, and not by 
prosecuting mere perpetrators.
    The Humanitarian Law Center has been pointing for years to the 
responsibility of the Army commanders in Kosovo, but the national 
judiciary never reacted. One of the commanders of the military brigades 
in Kosovo is today the Chief-of-staff of the Serbian Armed Forces. This 
is Ljubisa Dikovic, a former commander of the 37th Brigade, whose 
members took part in the attacks on Kosovo villages where massive 
crimes were committed, and the evidence points to their role in 
concealing the crimes, that is, transferring bodies from Kosovo to mass 
graves in Serbia.
    In Serbia, four sites with mass graves were discovered, where 
nearly 1,000 Albanian civilian bodies were found. Their bodies were 
transported as part of a concealment operation of the crimes in Kosovo, 
and it is clear from the ICTY judgments that everything was executed on 
the orders of former FR Yugoslav President, Slobodan Milosevic, and 
with the participation of the highest state structures, primarily from 
the police. None of the hundreds of participants of this process, 
however, has ever been prosecuted before the national judiciary.
    In one of these mass graves, at the police pole in Petrovo Selo in 
eastern Serbia, the bodies were discovered of American citizens--ex 
members of the Atlantic Brigade of Kosovo Liberation Army (KLA) Yili, 
Agron and Mehmet Bytyqi--who were arrested in Serbia without arms and 
uniforms, in their attempt to help a Roma family to get out of Kosovo. 
They were arrested and sentenced to two weeks in prison; after being 
released they were again arrested by the police, taken to Petrovo Selo 
and executed there. In Serbia, there was a trial against two policemen 
who arrested the Bytyqi brothers when they were released from prison 
and who took them to Petrovo Selo, but they were acquitted. No senior 
police official has ever been charged for this crime.
    Former war crimes prosecutor Vladimir Vukcevic publicly said that, 
according to his knowledge, the murder was ordered by the Serbian 
police minister, late Vlajko Stoiljkovic, and that the part of the 
structure that executed this order was Goran Radosavljevic Guri, until 
recently a member of the Main Board of the ruling Serbian Progressive 
Party. Despite the government's promises--which mostly coincide with 
visits by U.S. officials to Belgrade--there is no progress in this 
case. This is yet another example of how high state officials are 
shielded from accountability--in this case, police officers; and an 
illustration of the capitulation of the judiciary before the state.
    Furthermore, only 61 Albanian victims from Kosovo are covered by 
the judgments of the Serbian War Crimes Chamber, which is less than 1 
percent of approximately 7,000 Albanian civilians killed by the Serb 
forces in 1998 and 1999. It is particularly of great concern that the 
domestic War Crimes Prosecution Office has not raised any new 
indictments for crimes committed against Albanians from Kosovo for 
almost four years.
    At the same time, the first indictments of the newly established 
Special Court for Kosovo in The Hague are expected. It is a court of 
Kosovo's national judiciary before which the crimes of members of the 
KLA committed from 1998 to 1999 will be prosecuted. After the ICTY 
trials that brought limited satisfaction to the KLA victims, that Court 
represents a new chance for justice, but also brings fear that its work 
will be presented in Serbia as proof that crimes in Kosovo were 
committed primarily against Serbs and that there is no need for further 
trials in Belgrade. With Serbian war criminals convicted for war crimes 
in Kosovo out of prison and back in Government, we fear that Serbia 
will perceive and present to the public the work of the new Kosovo 
court as Serbia getting a well-deserved ``last laugh.''
    As part of the accession negotiations, the European Union 
recognized the problem of war crimes trials as an important issue under 
Chapter 23 relating to justice and the rule of law. The adopted Action 
Plan for Chapter 23 and National War Crimes Prosecution Strategy 
foresee a number of concrete steps that Serbia must take in order to 
improve war crimes prosecution. Although these documents are not 
perfect, their effective implementation would without a doubt make war 
crimes prosecution in Serbia far more effective. However, nearly two 
years since their adoption, the Action Plan and Strategy remain dead 
letters.
    Our impression is that international partners have been failing to 
clearly communicate to Serbia that the stalling of war crimes 
prosecution and the widespread denial of court-established facts are 
unacceptable. As a result, suspected war criminals remain in public 
office and, what is particularly worrying, convicted war criminals are 
returning to public life.
    The most recent example is the appointment of General Vladimir 
Lazarevic, who served a 14-year sentence before the ICTY for crimes in 
Kosovo, as a lecturer at the Military Academy and the promotion of 
Nikola Sainovic, sentenced in the same case to 22 years in prison, to 
the Presidency of one of the ruling parties--Socialist Party of Serbia. 
These are not the only examples. The Government, more specifically, the 
Minister of Defense publicly stated that ``the time of shame has 
passed.''
    At the same time, Serbian President Aleksandar Vucic gives 
conciliatory statements, while ministers and media loyal to him keep 
sending messages that Serbia does not accept responsibility for the 
policy that led to the gravest crimes on European soil since World War 
II. The result of this hypocrisy being that Serbia's international 
partners are calm, while at the same time, further conflicts in the 
region are being fueled.
    The situation is not much better in the whole region neither, 
primarily in Croatia where refusal to perceive the past has reached its 
peak after a recent verdict to Croatian war leaders in Bosnia and 
Herzegovina. Recent unrest in the region is getting more and more 
frequent, and the calls of politicians to look only in the future do 
not seem promising. For years, civil society offers a suggestion for 
resolving such a situation--the Regional Commission (RECOM) to 
establish all the facts about War Crimes, whose work would be supported 
by all the governments in the region. The Initiative exists for years 
and it is our hope that with the support of the international partners 
in the region, the importance of the initiative will be finally 
understood and the establishment of the Regional Commission supported.
    Thank you for your attention.


               PREPARED STATEMENT OF DIANE ORENTLICHER


    Honorable Members of Congress and Chair,
    Thank you for inviting me to brief you this morning, and for your 
longstanding and critically important leadership on the issues that are 
the focus of this briefing. The closing this month of the International 
Criminal Tribunal for the former Yugoslavia (ICTY) offers an ideal 
opportunity to reflect on what the Tribunal has accomplished and, 
perhaps more important, what remains to be done to ensure that its 
contributions have an enduring impact.
    As is well known, the Tribunal unexpectedly became the leading edge 
in the contemporary era of international justice, a field and 
phenomenon that had been dormant since postwar prosecutions in 
Nuremberg and Tokyo until 1993, when the ICTY was created. In short 
order, the UN Security Council created the International Criminal 
Tribunal for Rwanda (ICTR); the United Nations joined with the 
governments of Sierra Leone and Cambodia to create hybrid courts to 
judge mass atrocities in those countries, and a permanent International 
Criminal Court (ICC) was created by multilateral treaty. Other war 
crimes courts have operated with international participation in Kosovo, 
Bosnia-Herzegovina, Timor Leste and elsewhere. Because of this 
dimension of the ICTY's impact, my law students have grown up in a 
world in which leaders responsible for grievous atrocities often end up 
facing judgment before a tribunal instead of enjoying a quiet 
retirement in relative luxury--the norm when I was in law school. To be 
sure, governments' enthusiasm for international war crimes tribunals 
has diminished compared to 20 or even ten years ago. Even so, these 
courts will continue to operate for the foreseeable future: victims 
will demand as much. Thus some of my remarks will consider lessons 
learned from the ICTY's exceptionally rich experience that we would do 
well to apply to the future work of other tribunals--including the 
residual mechanism for the ICTY itself.
    My principal focus, however, will be on the impact of the ICTY in 
the two countries most affected by its work--Bosnia-Herzegovina, which 
endured the highest level of wartime atrocities accompanying the 
implosion of the former Yugoslavia, and Serbia, whose wartime leader, 
Slobodan Milosevic, brought the region to ruinous violence. I will draw 
extensively on the insights of Bosnians and Serbians whom I interviewed 
for my forthcoming book, Some Kind of Justice: The ICTY's Impact in 
Bosnia and Serbia  (Oxford University Press, forthcoming 2018), 2 which 
explores the Tribunal's evolving impact over its unexpectedly long 
lifetime. Citizens of both countries who enthusiastically supported the 
ICTY identified three principal spheres in which they expected it to 
make a meaningful difference in their lives; I will take their 
priorities as my point of departure. The three spheres are: (1) 
satisfying victims' need for justice; (2) dispelling denial and 
fostering acknowledgment of wartime atrocities; and (3) catalyzing and 
bolstering domestic war crimes prosecutions.

I. Victims' Justice 

    In the course of many interviews with Bosnian survivors of ``ethnic 
cleansing,'' I repeatedly heard that it was desperately important for 
them to receive justice. While keenly aware that no measure of justice 
could redeem their losses, they craved the moral satisfaction they 
believed the ICTY would provide. How well, then, did the Tribunal meet 
Bosnians' expectations?
    While the answer inevitably is mixed, there is no question Bosnian 
survivors are overwhelmingly and unambiguously grateful for the 
Tribunal's work. Even so, most are disappointed in specific aspects of 
the ICTY's performance. In their view, for example, trials lasted too 
long; many sentences were too short; some defendants who represented 
themselves, notably including Slobodan Milosevic and Vojislav Seselj, 
turned the courtroom into a theater, mocking the dignity of the 
Tribunal; and a series of controversial acquittals, beginning in 
November 2012, shook victims' confidence in the Tribunal's 
independence. Since it is often said that survivors of mass atrocities 
are never satisfied with justice, it is worth noting that international 
jurists have echoed virtually all of their concerns. To its credit, the 
ICTY undertook a number of reforms to streamline its procedures, 
addressing victims' (and donors') concerns about trial lengths. Still, 
when we invest in other tribunals, we need to ensure they take on board 
the discrete lessons we can learn from the ICTY's experience--
relatively mundane but all-important lessons about court management, 
for example.
    In light of victims' often strong criticisms of the ICTY's 
performance, it is all the more noteworthy and important that Bosnian 
survivors are, as I mentioned, overwhelmingly happy the ICTY was 
created. In the words of one of the Tribunal's fiercest Bosnian 
critics, ``the ICTY was the best thing that happened to the people of 
the former Yugoslavia since 1991,'' when the country began to implode. 
\1\ That survivors of ethnic cleansing feel this way about Hague 
justice is an inestimably precious achievement.
---------------------------------------------------------------------------
\1\ Refik Hodzic, Accepting a Difficult Truth: ICTY Is Not Our Court, 
Balkan Transitional Just. (Mar. 6, 2013).
---------------------------------------------------------------------------
    Last month's historic verdict in the case of Ratko Mladic was, for 
many survivors, a powerful vindication of the hopes they invested in 
the ICTY more than two decades ago. I would like to quote the words of 
one, which capture what the verdict meant to many Bosnian victims. The 
day the verdict was announced, Mirsada Malagic, who lost her husband, 
two sons, and other relatives during the war, responded this way when a 
BBC reporter asked if the ICTY had made any difference in the lives of 
Bosnian survivors: ``It is good that the Hague Tribunal exists . . . 
[T]he killing of so many people has been proven. They were sentenced. 
Just enough for us to get some peace in our souls.'' \2\
---------------------------------------------------------------------------
\2\  News Hour, BBC World Service (Nov. 22, 2017).

---------------------------------------------------------------------------
II. Dispelling Denial and Fostering Acknowledgment

    Beyond the profound importance of what Bosnians and Serbians 
sometimes call ``justice for its own sake,'' many hoped that, by 
judicially authenticating the fundamental facts of ethnic cleansing, 
the Tribunal would dispel pervasive denial about those crimes and, more 
affirmatively, help advance a wide-ranging process of acknowledgment. 
In the view of many in the region, this type of acknowledgment is the 
most important foundation for reconciliation among Bosnia's ethnic 
communities.
    As other panelists have noted, these hopes have been frustrated. 
Nationalist discourses are on the rise, with toxic effect in Bosnia in 
particular. Strident challenges to key findings of the ICTY figure 
prominently in the rhetoric of nationalist leaders like Republika 
Srpska (RS) president Milorad Dodik, and individuals convicted of 
monstrous crimes are routinely welcomed home and celebrated as heroes 
when they complete their prison terms. There is much to say about this, 
but in the interests of time I will make just three interconnected 
points.

    (1) Raising expectations. The first point has implications 
primarily for tribunals that have recently begun their work, like the 
Kosovo Specialist Chambers, or that might be created in the future, as 
well as for the ongoing work of the ICC: We must take care not to raise 
unrealistic expectations about what international tribunals can 
achieve. Claims put forth by diplomats and ICTY officials about the 
impact the Tribunal would have on acknowledgment and reconciliation 
raised expectations sure to be disappointed among those who had already 
suffered enough. At the same time, unrealistic expectations may have 
diverted many citizens' and leaders' attention from the hard work of 
social repair that can only take place locally. As one of my Bosnian 
interlocutors noted, ``Disillusionment with the Hague Tribunal was not 
just a problem of the Hague Tribunal. It was also the problem of how we 
understood what it was going to do for us. Courts do not set political 
reality right.'' \3\
---------------------------------------------------------------------------
\3\  Interview with Svjetlana Nedimovic, Activist, in Sarajevo, Bosn. & 
Herz. (Sept. 18, 2014).

    (2) Contributions to acknowledgment. I would nonetheless challenge 
the claim, now made increasingly often, that the ICTY had no impact on 
acknowledgment. Notably, public opinion surveys in both Bosnia and 
Serbia reflected rising levels of acknowledgment of wartime atrocities 
in roughly the first six years of this century. Bosnians and Serbians 
whom I interviewed, including several who designed and administered 
these surveys, made a convincing case that this positive trend was a 
direct dividend of Hague justice.
    I believe the principal takeaway from this experience is that The 
ICTY could and did have a meaningful impact in dispelling denial when 
political conditions were relatively auspicious in both Bosnia and 
Serbia. In Serbia, we saw progress in dispelling denial of Srebrenica, 
for example, during periods in which reformists, like Zoran Dindic and 
Boris Tadic, held leadership positions in government. We have seen 
deeply worrying regression, however, during the era of governance by 
``reformed'' nationalists, who have led Serbia since 2012. (I address 
Bosnia shortly.)
    This should not surprise us. The ICTY does not communicate directly 
to citizens in Bosnia and Serbia, few of whom have ever read any of its 
judgments. Instead, its work is mediated by political and other elites, 
who have played a powerful role shaping local citizens' reactions to 
ICTY judgments and their opinions of the Tribunal itself.

    (3) External engagement in addressing political challenges. And so 
my third point about the ICTY's failure to end denialism is that 
developments in post-Milosevic Serbia and postwar Bosnian highlight the 
vital importance of sustained attention to the wider political 
challenges that are sure to arise in post-conflict countries as they 
emerge from debilitating violence. As I have suggested, it is naive to 
assume that the work of a tribunal can itself ensure social 
transformation, but in a relatively auspicious political context, it 
can make a meaningful contribution. My point here is that the 
international community has a crucial role to play in addressing and 
shaping the political environment in which denialism either flourishes 
or recedes.
    It is by no means coincidental that we saw the greatest progress in 
Bosnian Serb acknowledgement of wartime atrocities during a period of 
robust international engagement in Bosnia. In the early years of this 
century, with the support of the Peace Implementation Council 
established in Dayton, the Office of the High Representative (OHR) was 
the principal ``motor driving Bosnia forward'' \4\ during the most 
productive period of state-building in the post-Dayton period. Two 
successive High Representatives, Wolfgang Petritsch and Paddy Ashdown, 
helped foster a relatively positive political environment during these 
years.
---------------------------------------------------------------------------
\4\  International Crisis Group, Eur. Rep. 198, Bosnia's Incomplete 
Transition: Between Dayton and Europe i (2009)
---------------------------------------------------------------------------
    In this setting, we saw milestones in Serb acknowledgement and 
condemnation of the 1995 Srebrenica massacre. For example, following 
the release in 2004 of an RS commission's report about the massacre, 
then RS President Dragan Cavic publicly acknowledged that ``atrocities 
were committed in the area of Srebrenica.'' Cavic condemned the 
massacre in words Bosnians would long quote: ``I have to say that these 
nine days of July of the Srebrenica tragedy represent a black page in 
the history of the Serb people.'' \5\ Several months later, the RS 
government issued an apology.
---------------------------------------------------------------------------
\5\  Bosnia Herzegovina: President Dragan Cavic Acknowledges Atrocities 
against Muslims in Srebrenica in 1995,  Reuters (June 22, 2004).
---------------------------------------------------------------------------
    Regrettably, the PIC and OHR have retreated from robust engagement 
since 2006. That same period has seen a deeply troubling resurgence of 
strident nationalism, often manifested in denial of fundamental facts 
about Srebrenica.

III. Catalyzing Domestic War Crimes Institutions 

    One of the Tribunal's most tangible and hopefully enduring legacies 
is its role in spurring the development of domestic war crimes 
institutions. In Bosnia, the Tribunal played a key role, along with the 
OHR and Bosnian lawyers, in designing those institutions. Although the 
ICTY did not set out to help Serbia launch domestic war crimes 
institutions, its very existence catalyzed the creation of a local war 
crimes chamber and the new position of War Crimes Prosecutor in Serbia. 
As explained to me by a former Serbian government official, the ICTY 
enabled reformists in the coalition government that succeeded 
Milosevic, who operated within a contested and constrained political 
space, to realize their own aspirations to ensure accountability.
    During the tenure of Mr. Brammertz, the ICTY's Office of the 
Prosecutor seized the opportunity that emerged, and has engaged in 
innovative and impressive efforts to bolster the capacity of its 
partners in the Western Balkans. These efforts provide a model well 
worth emulating by the International Criminal Court.
    Yet war crimes institutions in both Bosnia and Serbia are fragile 
and face relentless political pressure. Dodik and other RS leaders have 
continuously challenged Bosnia's war crimes institutions, while the 
Office of the War Crimes Prosecutor in Serbia has come under heightened 
and overt pressure in recent years. This has taken a visible toll: its 
work has slowed down markedly.
     In recent years, Mr. Brammertz has provided vital leadership in 
marshaling international support for these institutions at times of 
special peril. He played a key role in neutralizing serious threats to 
the independence and efficacy of Bosnia's Special Department for War 
Crimes in the past year, while he, the United States, and others have 
provided crucial protection to Serbia's War Crimes Prosecutor in the 
past. Regrettably, despite the unique influence the European Union (EU) 
now has in respect of Serbia, a candidate country, it has not fully 
used the leverage it has to address deeply worrying threats to Serbia's 
war crimes institutions.
    It is critically important that the international community 
continue to provide robust support for these bodies, whose independence 
and effective operation can go a long way toward preserving and 
enhancing the ICTY's regional legacy. In the near term, these 
institutions can provide justice to thousands of survivors of ethnic 
violence whose cases have not yet been the subject of prosecution. In 
the longer term, their work can strengthen the rule of law and help 
prevent a recurrence of ethnic violence.

                                      * * *

    In closing, the Tribunal's legacy will extend far beyond its formal 
lifetime. After World War II, it took decades for Germany to emerge as 
a ``model penitent''; notably, when it did, its society embraced 
Nuremberg and the principles for which it stands. There are, of course, 
vast differences between postwar Germany and the Western Balkans. Yet 
Germany's experience reminds us that a Tribunal's future influence can 
be profound. If the ICTY is to have a salutary long-term impact in 
Bosnia and Serbia, it will not happen without the sustained engagement 
and commitment of the international community.
    Thank you.
 

                               [all]


  




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