Despite what commentators view as a disappointing sentence for Radovan Karadzic, the first ad hoc tribunal since Nuremberg has indicted 161 suspects. The pursuit and capture of the fugitives was the most successful manhunt of modern times and a high point of international humanitarian law.
The verdict delivered on Radovan Karadzic in March for charges of genocide and crimes against humanity was the most important ruling in the 23-year history of a judicial experiment, the International Criminal Tribunal for the former Yugoslavia (ICTY).
Slobodan Milosevic, the president who oversaw the violent dismantling of Yugoslavia, was the tribunal’s most high-powered defendant, but he died in The Hague in 2006 while the court’s painfully slow cogs were still turning. But Karadzic, his underling, the chieftain of the Bosnian Serbs, and the face of ‘ethnic cleansing’, has lived long enough to face a judgment from the court.
A decisive moment, many felt the ICTY had a chance to redeem itself after years of glacially paced trials and a litany of controversial verdicts. Mark Ellis, the IBA’s executive director, has been actively engaged in the ICTY since its inception. ‘The tribunal’s most important legacy is reinforcing the principle that accountability must always trump impunity for international crimes,’ he says.
Ellis is, though, critical of the Karadzic verdict. ‘The sentence of 40 years is disappointing,’ he says. ‘Sentencing practices at international criminal tribunals tend to suffer from a lack of consistency and transparency. This judgment is an example of such practices, complicated to understand and undoubtedly difficult to accept from the point of view of the victims.’
Nevertheless, the tribunal, the first ad hoc war crimes court since Nuremberg, does have one epochal achievement under its belt. It indicted a list of 161 suspects for the atrocities of the Balkan wars of the 1990s, and all of them have faced justice one way or another. International humanitarian law was enforced to the hilt. The pursuit and capture of the fugitives represented the most successful manhunt of modern times.
Along with Karadzic and Milosevic, many other war criminals have stood in the dock in the converted insurance building at 1 Churchillplein, in the Dutch capital. Ratko Mladic, the Bosnian Serb general who personally led the siege of Sarajevo and the 1995 slaughter at Srebrenica, is still on trial. Bosnian Croat paramilitaries, Bosnian Muslim camp commanders and Kosovo Liberation Army guerillas have also been tried
Few of them came to The Hague voluntarily, and the process of getting them all there was long and plagued by false starts, timidity, incompetence, mixed loyalties and motives. The fugitives had the advantage of hiding among a mostly sympathetic population. And yet the ICTY prosecutors persevered until they were all accounted for, drawing on support in different ways and at different times from NATO special forces, western intelligence agencies, and ultimately from governments in the region, spurred into cooperation by international economic pressure and domestic political change.
None of this was inevitable. When the ICTY was established by the UN Security Council in February 1993, it was a sop to public opinion appalled at the daily televised slaughter in a country at the heart of Europe. The Council would not stop the killing, but it would judge the perpetrators after the slaughter was over. That was the tribunal’s promise, but it was set up to flounder. Sceptical powers, the UK and France in particular, ensured it was starved of funds. For its first year of existence, it could neither afford interpreters, nor the down payment on a lease. It took 18 months to find a jurist of sufficient stature willing to fill the seemingly dead-end job of chief prosecutor. When the war finally ended and Bosnia was garrisoned by a substantial Nato force of 64,000 at the beginning of 1996, its commanders flatly refused to carry out arrests for the tribunal, rejecting the task as ‘mission creep’, an unplanned and unwelcome diversion from the core mission of peacekeeping.
The tribunal’s most important legacy is reinforcing the principle that accountability must always trump impunity for international crimes
Executive Director, International Bar Association
From these unpromising beginnings, the ICTY defied expectations and completed its mission. Pursuing and arresting war criminals evolved from a geopolitical irrelevance to a new international norm. This transformation originally owed more to determined individuals than to states, but the actions of those protagonists created a cascade of consequences that swept governments in their wake and established a new norm.
From the beginning, the judges and prosecutors hired to staff the tribunal were not prepared to settle for being walk-on players in a judicial pantomime. They had professional pride and made themselves a nuisance. The first chief prosecutor, Richard Goldstone, a veteran of the anti-apartheid movement in South Africa, issued a flurry of indictments in absentia after his arrival in the summer of 1994, to ensure the tribunal did not collapse under sheer inertia. ‘When I arrived at the ICTY on 15 August 1994 it was really against the ropes,’ Goldstone recalls.
‘The judges were embarrassed and extremely anxious and frustrated. There was only a skeleton staff. In effect, the ICTY had been written off by the politicians and the media. My first appointment on the day I arrived was an interview with Mike Wallace [of CBS News 60 Minutes], whose segment on the tribunal was called “An Act of Hypocrisy”.’
Goldstone’s successor, Louise Arbour, a Canadian judge, harried Nato Member States into reluctantly carrying out arrests, threatening at one point to create her own SWAT team if they refused. Her successors as chief prosecutor, Carla del Ponte and Serge Brammertz, pursued quite different tactics that better suited the phase of the manhunt during their watch in the first decade of the 21st century. They hounded western governments to ensure there would be no let-up on the economic pressure on Serbia and Croatia where most of the remaining,
high-value fugitives had sought refuge. It was often an unpopular stand, especially when the number of suspects at large dwindled to a handful and some European governments argued they were not worth running the risk of destabilising precarious post-nationalist governments in Zagreb and Belgrade with economic demands and condemnation before the UN Security Council. But the tribunal prevailed.
The pivotal role of individuals became apparent again and again in the course of the manhunt. The first arrest on behalf of the ICTY, in June 1997, was planned and executed by an unlikely array of UN employees in North-Eastern Croatia. They included an American diplomat-general, Jacques Klein, a US prosecutor, a British policeman, a Czech homicide detective, and a newly formed Polish special forces unit. Together, without consulting their respective governments – they came to the conclusion that they were obliged to carry out their UN mandate to arrest ICTY war crimes suspects within their reach and concocted a remarkable sting operation to lure a high-value suspect, Slavko Dokmanovic, across the border from his haven in Serbia into UN-run territory.
Dokmanovic was the former mayor of Vukovar, a Croatian town that suffered the first major massacre of the Yugoslav wars. In November1991, patients were dragged out of Vukovar’s hospital by Serb paramilitaries and executed on a nearby wooded ravine – 263 men, boys and one woman. Dokmanovic oversaw the process.
The UN sting operation, codenamed Little Flower, used the lure of real estate, the restitution of his property, to draw Dokmanovic across the border where he was grabbed by Polish soldiers on 27 June 1997. The operation hung by a thread for several more hours. As tribunal investigators were putting Dokmanovic on a plane to The Hague, a Croatian police patrol arrived to question them about the unnamed passenger on the manifest. Even after the men from The Hague had bluffed their way through the interrogation and the plane had taken off, a completely unexpected risk remained. Over the course of the two-hour flight, the captured suspect repeatedly asked for his briefcase on a series of pretexts. First he wanted to consult some documents; then he needed cigarettes. Each time he was turned down. It was only when the party arrived at the Scheveningen prison, the tribunal’s detention facility, that it was found that the case contained a loaded Magnum revolver. If he had got hold of his case, Dokmanovic would have been the only one with a gun on the plane. He could have forced it to turn around and fly to Belgrade. Operation Little Flower would have ended in ignominy, presented as botched abduction in the press. Klein and his team would have been disgraced and any momentum for arresting war criminals would have evaporated.
Even without such disasters, the operation was controversial. The US and Polish military establishments were furious they had not been consulted, but it was ultimately hard to argue with success. Little Flower increased the pressure on Nato forces in Bosnia to carry out their own detentions, and here professional pride came into play. The men of Britain’s Special Air Service (SAS), the US Delta Force and Seal Team 6, saw themselves as the world’s best special operations units yet, while they had been held back for fear of casualties, they had been beaten to the punch by an obscure, upstart unit from behind the old Iron Curtain.
Back before 9/11, Bosnia was the most active deployment on offer for such special operations units. They started agitating to get involved and by the summer of 1997, and they were pushing at an open door. The political circumstances had changed. Bill Clinton had won re-election at the end of 1996 and was thus less concerned about being derailed by casualties. Shortly after inauguration in January, he installed Madeleine Albright – an enthusiast for war crimes arrests – as secretary of state. In May, Tony Blair’s New Labour won by landslide in the UK, bringing to the foreign office a Scottish politician, Robin Cook, determined to make the ‘ethical dimension’ the defining quality of Britain’s global role. Even before the UK general election, he had held talks in a London with Albright about the use of the SAS for hunting war crimes suspects. And by mid-1997, Albright and Cook had an ally high up in Nato. Wesley Clark, a scholar-general and Clintonite, became the Supreme Allied Commander, Europe (Saceur).
The arrival in office of such powerful advocates of change did not lead to an immediate transformation on the ground. While the interventions of individuals set the manhunt rolling and broke the taboo on enforcing ICTY indictments, powerful institutions could act as a powerful brake on action.
There was general unease in both the American and British militaries about the legalities of soldiers arresting civilians. A complex minuet had to be arranged in which troops the Nato peacekeeping force SFOR would detain suspects on the request of the ICTY, until tribunal officials could arrive to make the arrest.
There were bigger obstacles, however. While Clinton had given the green light for arrest operations, it was also true that in the upper ranks of the US military at that time, it was said that a general could not earn his next star if there were casualties on his watch. Since the ‘Black Hawk Down’ debacle in which 18 US Rangers and other solders were killed in the 1993 battle of Mogadishu, the culture was entirely risk-averse. The troops in Bosnia even had to wear armour while playing baseball, even though scarcely a shot had been fired since the end of the war.
SFOR commanders, like US General Eric Shinseki were resistant to special forces arrest operations because they believed their troops would bear the brunt of any backlash.
Operation Amber Star was assembled in Patch Barracks in Stuttgart against this backdrop of mixed motives and conflicting agendas.
It brought together the special force commands and intelligence agencies of five countries – the US, UK, France, Germany and the Netherlands – who plotted an ambitious scheme to round up Karadzic, Mladic and most of the Bosnian indictees at the same time. It was perhaps too ambitious. It involved a Franco-American assault on Karadzic’s stronghold in the village of Pale, including special forces troops sliding down ropes from helicopters to the roof of his house. It read like the plot to an action film and when they got wind of it, it caused considerable anxiety among British officers that they would be asked to take part. ‘This is not the way UK forces would approach the problem,’ the foreign office observed drily.
It is possible Amber Star was designed to cause alarm by generals who wanted to scare their political masters away from the whole project. If so, their bluff was never called because the whole edifice was brought tumbling down in the summer of 1997 by what was called the Gourmelon affair. Herve Gourmelon was a French infantry major tasked with liaising between SFOR and the Bosnian Serb leadership and gathering intelligence on Pale’s inner workings. But the CIA came to suspect that the intelligence was flowing in the wrong way and that Gourmelon was giving away SFOR plans. The US confronted the French top brass, who seemed surprisingly unconcerned. Eventually, the penny dropped for the CIA. Gourmelon had not been a rogue double agent, but had been practising a particularly French form of force protection with the full approval of Paris, warning the Serbs where SFOR would be patrolling to avoid any misunderstandings that could lead to an exchange of fire. Nevertheless, the CIA made sure that Gourmelon was driven out of Sarajevo by the end of 1997, and the affair soured Franco-American military relations for years afterwards. It also killed off Amber Star as a viable multinational manhunt. The level of distrust was too high. After Gourmelon, the planning cell at Patch Barracks was used for deconfliction, but the manhunt would henceforward be pursued by national armies in their own zones of control in Bosnia.
The first Nato arrests were carried out by SAS, who brought with them ample experience in manhunting from Northern Ireland. Even so, the first operation, codenamed Tango, was far from an unmitigated success. Of the three war crimes suspects targeted in July 1997 in the town of Prijedor, one was shot dead resisting capture; another was taken from a hospital by soldiers disguising their intentions by carrying a parcel with the red cross emblem on it, a breach of the Geneva conventions. The third suspect escaped. However, the SAS persevered along with Dutch soldiers in their zone and together carried out the first dozen detentions.
They had their own cascade effect, shaming others into risking involvement. General Clark ordered US troops to make their first arrest by the end of 1997, but their initial efforts were initially hampered by an instinctive preference to deploying in large numbers. The first operation, intended to target five suspects in the US sector in northern Bosnia, had to be aborted because so many soldiers and senior officers came, all arriving together in Tuzla on a giant C17 military transport plane, that the whole town was aware a special operation was afoot.
Instead, the decision was made to mount a smaller mission against a single suspect, which was easily achieved with a handful of sailors from Seal Team 6 in January 1998. The downside of this small-scale approach was that other suspects took fright and fled over the border for protection.
Extracting them from Serbia was far more complicated. It was outside SFOR’s jurisdiction but the Americans stuck to their task, hiring Serb mercenaries to bring them back to Bosnia. One suspect, Stevan Todorovic was found in a mountain chalet. The mercenaries knocked on his door in September 1998, brought him down with a baseball bat and trussed him up. He was delivered to US soldiers in Bosnia who they informed had a ‘packaged ham’ waiting for collection in the back of an old red Mercedes.
When I arrived at the ICTY on 15 August 1994 it was really against the ropes. The judges were embarrassed and extremely anxious and frustrated. There was only a skeleton staff
First chief prosecutor of the ICTY and Honorary President of the IBA’s Human Rights Institute
Unsurprisingly, such abductions were challenged by defence lawyers as soon as their clients arrived in The Hague, and in Todorovic’s cases the charges had to be scaled down in a plea deal to avoid the entire case falling apart. But on the whole, the tribunal showed itself lenient to unorthodox capture methods in light of the gravity of the crimes the detainees were charged with.
The manhunting skills learned by western forces in the Balkans were transferred smoothly to the ‘war on terror’. The first renditions of suspected terrorists after 9/11 took place from Sarajevo by officers who had been entirely dedicated to the pursuit of war criminals in Bosnia a few days earlier. Not long afterwards, those officers were redeployed to Afghanistan and Iraq. But the legal underpinning of the Balkan manhunt, woven together by several UN security council resolutions and the Dayton peace treaty, did not travel with them.
After 9/11, the cat-and-mouse drama of the military phase of the manhunt gave way to a prolonged endgame in Serbia and Croatia, where economic leverage and political transformation emerged the driving factors.
Karadzic – who had been hiding in plain sight in Belgrade as a new age healer, lightly disguised with a bushy white beard and top-knot – was picked up on a bus in July 2008 just a few days after the Serbian intelligence agency, BIA, came under new reformist management. Nearly three years later, as the layers of protection from Serbian state agencies (and behind them, Russia’s FSB) fell away, General Mladic was discovered hiding in his cousin’s village house. In July 2011, the last suspect on the list, Goran Hadzic, was cornered in a northern Serbian forest, having run out of money and friends.
The manhunt saved the ICTY from oblivion and changed legal history. The tribunal and its African twin, the International Criminal Tribunal for Rwanda, which has also come close to tracking down its complete list of indictees, showed such institutions could work and offered at least the hope of deterring future atrocities by murderous regimes. They paved the path to the creation of the International Criminal Court in 2002. ‘It is, of course, a huge historical achievement that all the indictees have been accounted for. It was an unthinkable achievement at the time I was prosecutor,’ Goldstone says. ‘It is a significant victory for international justice and a stark reminder of the extent to which international courts depend on government cooperation for their success.’ It is the absence of that cooperation from major powers like the US, Russia and China that has so hobbled the ICC, and unravelled the legacy of the Balkan manhunt.
Without backing from the big powers, and in the face of security council deadlock, the ICC has not had the same sharp teeth and its reach only goes as far as Africa, where the US and Russia do not have the strategic interests that would otherwise lead them to block investigations and indictments. Partly out of self-interest, and partly out of justified outrage at double standards, African governments are rebelling against the court, threatening its existence further.
But the ICTY manhunt is a reminder there is an alternative to impunity for war crimes and crimes against humanity. It remains the high point of the enforcement of international humanitarian law, a benchmark against all future efforts will be judged.
Julian Borger is world affairs editor of The Guardian and author of The Butcher’s Trail: How the Search for Balkan War Criminals Became the World’s Most Successful Manhunt. He can be contacted at firstname.lastname@example.org