How to prosecute a war crime

After nearly five years of investigations, a Bosnian Serb general faces tribunal in The Hague today.

When Bosnian Serb Gen. Radislav Krstic goes on trial here today for managing the massacre of thousands of men from the Muslim town of Srebrenica in 1995, the hearings will do more than clarify the most horrific episode of the Bosnian war.

They will also shed fresh light on the secretive way in which war-crimes prosecutors and investigators build their cases, officials say, with the prosecution planning to make heavy use of forensic and other new sorts of evidence for the first time.

The International Criminal Tribunal for the former Yugoslavia, investigating allegations of genocide, crimes against humanity, and other war crimes in Bosnia and Kosovo, "is a unique mixture of academic international humanitarian law and the nitty gritty of a police investigation," says tribunal spokesman Paul Risley.

"And there's a lot of nitty gritty," adds Brenda Hollis, a senior trial attorney in the prosecutor's office.

With more than a dozen investigations still under way, prosecutors are reluctant to reveal too much detail of their work, for fear of compromising their future operations. But in interviews, officials working for chief prosecutor Carla del Ponte described a pattern of work that they say often involves simply applying ordinary police skills to extraordinary circumstances.

Extraordinary not only in the scale of the alleged crimes, but also in the problems of investigation. Last November, for example, when NATO troops raided offices in the Croat-controlled area of Mostar, in western Bosnia, they found a computer used by Croat intelligence officers. When they copied its files, they discovered a memo proposing operations against an upcoming mission to the area by tribunal investigators that was meant to be secret.

The average district attorney rarely has to cope with international espionage, but would be familiar with many other aspects of the work done by the prosecutors and investigators who over the last six years have mounted the first war-crimes prosecutions since World War II.

Simply put, "You start by going to somewhere where you know something happened to find out exactly what happened," says Patricia Sellers, a legal adviser in Ms. del Ponte's office.

That takes traditional skills. Indeed, more than two-thirds of the men and women working in the prosecutor's office are not prosecutors, but former police officers, detectives, and other investigators, along with intelligence analysts and Balkans experts.

Prosecutors first began investigating the events that occurred near Srebrenica in mid-July 1995, when thousands of Muslims fled a United Nations safe haven that had been overrun by Bosnian Serb troops and were then summarily executed. "The Krstic case is the first case that required the tribunal to act in an investigative and police role," says Mr. Risley. Forensic experts with experience searching for the victims of Latin American dictatorships were called in to unearth mass graves that US spy satellites had detected.

Earthmover intrusion

The exhumations have provided a convincing picture of just how the victims were killed, prosecutors say. But the forensic experts were up against an adversary with more resources than a normal criminal seeking to cover up his crime. Repeatedly, officials here say, they found that no sooner had they identified a gravesite than someone with earthmoving equipment dug up the bodies, and the investigation developed into a gruesome paper-chase for corpses.

Searching for witnesses is equally complicated. One and a half million Bosnians fled their homes during the war, and most of them have still not gone back. Investigators have travelled worldwide to track them down to take their statements.

In Bosnia itself, "sometimes even being seen talking to us can put people at risk," says Gavin Ruxton, an adviser on the investigations team. Investigators often have to make surreptitious overtures to potential witnesses through third parties, and take particular care to win their trust. Sometimes trial witnesses are allowed to hide their identity behind a pseudonym, and a few have even been given new identities in witness-protection programs.

Prosecutors can draw on a much broader range of evidence than witness accounts, though. Needing to prove that General Krstic was indeed in command of the soldiers said to have committed the Srebrenica massacres, the prosecution will show video from Serb TV, showing Krstic meeting Dutch UN peacekeeping troops for negotiations - acting as the responsible commander - just before the killings took place.

In past cases, prosecutors have used evidence given by UN peacekeepers, journalists, aid-agency workers, and other outsiders in Bosnia during the war. They have also used documents that they have seized in raids, or which fell into enemy hands during fighting, and occasionally they can use methods unavailable to DAs in domestic cases.

Needing documentary evidence from the Croatian government in one case, prosecutors persuaded Western governments to threaten to withhold economic assistance from Zagreb unless the authorities handed it over.

Some of the most sensitive evidence is material given to prosecutors by US and European intelligence services, gleaned by spy satellites, radio intercepts, telephone taps, and other secret sources. They do not always get everything they would like, but nevertheless "we depend on their help," Risley says of NATO governments.

Prosecutors face a major difficulty, though, in finding ways to present evidence that does not compromise the source of the intelligence - in which case governments would not let them use it - and at the same time also demonstrates enough veracity for the judges to accept it. "The Krstic trial will be one of the first real tests of the admissibility of evidence gathered from NATO countries," says Risley.

With NATO help

NATO's cooperation was of especial importance in Kosovo, where "we were written in more to the plan for going in" as the Serbian troops departed from the Albanian-dominated province, says senior trial attorney Brenda Hollis. "We could go in with KFOR [the NATO peacekeeping troops] which gave us more direct access to gravesites and more realtime evidence" of massacres of ethnic Albanians before the war.

Investigators discovered, in Risley's words, "the world's largest and most perfectly preserved scene of a crime, but almost all the perpetrators had left." That contrasted with the situation in Bosnia, where many of the crime scenes had been built on, altered, or interfered with over the course of several years, but where most of the alleged war criminals still lived.

With so many allegations of atrocities during the 3-1/2 year war, reluctantly the prosecutors have decided to focus on the most-senior officials accused. "Talk of big fish and little fish implies that unless you are high on the scale of authority you are not worth going after, and that's an insult to the person whose family was blown away by a little fish," regrets Ms. Hollis. But we "look at the ones with the broadest span of control; by prosecuting them we are condemning everything they had control over."

(c) Copyright 2000. The Christian Science Publishing Society