War-Crimes Court Makes a Case for Itself

Four and a half years ago, former Texas federal Judge Gabrielle Kirk McDonald found herself sitting in a borrowed meeting room here, sharing a conference table with 10 other foreign judges and a single secretary.

“We all just sort of looked at each other and said, ‘Now what?’ ” she recalled.

The task before the group: to create, more or less out of thin air, a court to handle cases involving conduct during war--a corner of international law that had become something of a bitter joke, so vast was the emptiness between the noble-sounding language of the Geneva Conventions and the brutal reality on the ground.

Until recently, some observers feared that body that grew out of the initial meeting--the International Criminal Tribunal for the Former Yugoslavia--would be little more than a punch line to the joke. A building was acquired here in The Hague, a courtroom outfitted, prison cells constructed, rules of procedure arduously drafted, indictments issued, and then--virtually no cases.

The tribunal’s presiding judge in 1995, Italy’s Antonio Cassese, threatened to disband the panel rather than carry on with “an exercise in hypocrisy.”

What a change a few months can bring.

Today, all 24 prison cells built for the tribunal are full, thanks to a newfound willingness on the part of NATO peacekeepers to seize war-crimes suspects.

More cells are being built, since the pace of arrests and surrenders shows no sign of letting up. Four trials, with multiple defendants, are now crowding each other out of the tribunal’s single courtroom, and defense lawyers are complaining about an overcrowded docket.

The tribunal staff is growing, from the original 11 judges and a secretary to more than 600 expected by the end of the year.

McDonald, who has succeeded Cassese as presiding judge, is lobbying the U.N. Security Council for additional jurists.

The most notorious suspects--men believed to have whipped up the fighting frenzy and encouraged the atrocities--remain at large.

But the tribunal has several ranking politicians and military officers in custody. And in recent weeks, unconfirmed but plausible rumors have made the rounds that the tribunal’s most-wanted man, former Bosnian Serb leader Radovan Karadzic, is secretly negotiating his own surrender.

Karadzic has been indicted for genocide, and, if he does appear in The Hague, his will be one of the most closely watched international court proceedings since apprehended Nazi leaders were put on trial at Nuremberg after World War II.

“If anyone had told me a year ago that I wouldn’t be able to remember how many people we had in custody, I would have said, ‘This is my dream come true,’ ” said Louise Arbour, a Canadian jurist who is now the tribunal’s chief prosecutor.

McDonald, meanwhile, sees in the tribunal’s considerably improved fortunes hope that the international community is at long last willing to enforce its own rules of war.

“I can’t quite imagine why there’s been this change,” McDonald said. “In the very early days, I had concerns about whether the world community really wanted us to succeed. Now we’ve gone beyond that. We’ve gone from the Nuremberg dream to, finally, the probability that an international criminal court is going to be established.”

Advocates of such a court argue that it would be a forum where international principles would supersede national sovereignty, where the Pol Pots and Saddam Husseins of this world could be brought to justice.

In June, negotiations will be held in Rome to draft a treaty to organize such a court.

McDonald, who is convinced that the negotiations will succeed but far less sure how effective the resulting body will be, sees the tribunal here in The Hague as a laboratory.

Conducting the tribunal’s first war-crimes trial “was like building an airplane, and we didn’t know whether it would fly,” she said. “But it did fly, and it landed safely.”

The first person convicted, prison camp guard Dusan Tadic, was sentenced last year to 20 years; his lawyers are appealing.

McDonald takes pride in the tribunal’s 302-page decision in the Tadic case, in which the judges tried to describe the forces that turned Tadic’s once-placid Bosnian hometown into a war zone, and an otherwise prosaic defendant into a Muslim-hating killer of remarkable ferocity.

“It was important to me to demonstrate the role of propaganda in this conflict,” said McDonald, an African American who says her own background in the U.S. civil rights movement gives her a particular interest in finding international legal structures that can better protect minorities.

“There is a lead-up to violence,” she said. “It doesn’t just happen. You have to tell the story of what led up to this conflict, and then, if people [in other countries] want to, they can find parallels [with their own societies]. Because there are parallels.”

McDonald will speak at the June negotiations to share the lessons she has learned.

The tribunal’s greatest weakness--one that could also plague a permanent court--has been its lack of enforcement mechanisms to make sovereign states comply with its orders, she said.

Arbour said her top priority for the permanent court “is to have an independent and strong prosecutor. With all the powers that we already have, you can see how long we had to struggle just to get arrests performed.”

In recent months, the reluctant governments of Croatia and Republika Srpska, the Bosnian Serb Republic, have shown a greater willingness to cooperate with the tribunal, though Serbia remains a staunch holdout. And the North Atlantic Treaty Organization peacekeepers who once shied away from arresting indicted suspects have shown a notable new willingness to help transfer suspects to The Hague.

Part of the change: After issuing public indictments for several years, the prosecutors here finally began keeping the names and facts of their newest cases secret. The idea, Arbour said, was to avoid driving the indicted deep underground, leaving them to expose themselves to easier capture.

It worked. In July 1997, British NATO forces carried out a raid in northwest Bosnia, capturing one suspect and fatally shooting another.

Before long, men with reason to believe that they too might be on secret lists in The Hague began negotiating surrenders.

“I have always said, ‘All we need is one,’ ” Arbour said. “If there is just one arrest, then there will be surrenders.”

The growing number of men in custody, she said, has made it easier to persuade potential donor nations that their money will not be wasted if they helped finance the court’s work. Last year, Britain put up $500,000 for a new courtroom, and in January, the United States and the Netherlands jointly contributed $2.6 million for a third courtroom.

Canada, for its part, recently offered $425,000 to help U.N. investigators resume the grisly warm-weather job of exhuming mass graves near the city of Srebrenica, a former U.N.-designated “safe haven” for noncombatant Muslims, overrun by Serb forces during the war. And Britain recently solved a procedural problem for the tribunal by offering asylum to witnesses who might face retribution if they returned home after testifying.

“All you need in the international community is to displace one pillar of strength,” Arbour said, “and a lot of things start going better.”