[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)
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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).
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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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