By many standards, the most successful of the ad hoc criminal courts was the International Criminal Tribunal for the Former Yugoslavia, which laid charges against 160 of the Serbian, Croatian, Bosniak, and Kosovar leaders who perpetrated the mass slaughters and other horrors of the Balkan wars. Although the Yugoslav court was still working its way through pending trials, it closed its doors to new cases in 2004. The International Criminal Court, which opened in 2002, became in every practical sense, from inherited personnel—including judges, lawyers, and administrators—to shared procedures, the Yugoslav Tribunal’s far larger offspring.
By the late 1990s, the UN had recognized that the proliferation of special criminal forums in The Hague bespoke one sad fact: Genocide and wartime atrocities were not about to end. Negotiations commenced on a global treaty to establish a permanent war crimes court, the ICC. Yet as those talks wore on, more and more of the world’s powers recognized the perils of submitting to criminal penalties controlled by foreigners. Not only the US, but also Russia, China, Israel, India, Pakistan, North Korea, and most of the Arab nations refused to join. The Europeans, the Latin nations, and the Africans signed on, all deeply chagrined with the US and other countries for backing out.
An hour later, I presented myself at the prison-like entry to the ICC. At the foot of two conjoined white high-rises, the security checkpoint was closed off on three sides by ten-foot iron gates, buttressed by chain link and topped by five taut lines of barbed wire.
Eventually, Olivier appeared in his shirt and tie, but with no jacket. Without Hélène around regularly to keep an eye on him, he had gained at least thirty pounds. His fine features were now puddled in flesh and his midsection looked like a globe was hidden under his shirt. His warm, emphatic manner, however, was unaltered, and he lit up like a boy as soon as he saw me, hugging me strongly once I’d been buzzed through the revolving doors.
He ushered me upstairs to the spartan office that in a matter of days would become mine. We sat at a small table just inside the door, chatting about our kids and my departure from Kindle County, before turning to the job.
“It will frustrate you at times,” he said then. “I shouldn’t pretend. Do you know the phrase ‘With great power comes great responsibility’? At the ICC you get great responsibility and no power. You are investigating the worst crimes committed on earth, with little if any functional authority to compel witnesses to speak to you—even the victims—or documents to be surrendered.” He sat back in his Aeron chair and rested his hands behind the shrub of graying hair that ringed his bare scalp. “I must admit to you that if the decision were mine, I probably would not have moved forward on this Roma case.”
“Now you tell me,” I said, smiling. On the phone, Olivier had actually said more than once that the case would be ‘a challenge.’
“One problem,” said Olivier, “which you surely understand, is that the event in question took place eleven years ago. These investigations—‘situations’ as they call them here, to be delicate—are like trying to chase an echo in the best of circumstances. You charge a general and at trial he pretends to have been a nun: ‘Show me the order that says “Shoot.” Or “Burn.” Or “Rape.”’ Now, when memories are stale and records are gone, the problems of proof in your case are likely to be insurmountable.
“But the largest obstacle will be the US military. The Service-Members’ Protection Act prohibits any American assistance in an ICC investigation, even to point the finger at someone else. Since the US Army was in control of this area where the alleged massacre occurred, it is guaranteed that a mass of significant evidence will be beyond you.”
“So then why did the powers-that-be here decide to proceed?”
He smiled mystically, while the back of his hand trailed off in space in that worldly French way.
“The prosecutor and the chief deputy felt no obligation to explain to me,” he said. “But many here would regard declining to investigate as rewarding American intransigence. Also, I’m sure you have noticed where all thirty-six of the defendants this Court has charged happen to reside.”
I had. Every case the Court had brought in its thirteen-year history arose in Africa—Congo, Kenya, the Ivory Coast, Libya as examples. Failing to pursue an investigation that could culminate in charges against white folks risked deepening the outrage about the ICC on the African continent.
“But,” said Olivier, raising a finger, “I have one positive note.” He sat forward, folding his pudgy hands, as if this truth required some formality. “I regard this as the best job I’ve ever had as a lawyer, even better than my years as a crown prosecutor. If I could dislodge Hélène from Montreal, I would stay another decade.”
“And what’s the good part? The mission?”
“Yes, the overall mission is noble. For most of recorded history, the victors in wars have not even pretended to do justice. They simply executed the vanquished. But beyond that, the stakes here are so high that you will never question the value of your labors, as we all often do in private practice. You are responsible for bringing justice to four hundred souls. When you leave, stand in front of the Court and count the pedestrians going by until you reach that number. It will take a while. The importance of what you are doing, and the limited tools to accomplish it, will require extraordinary imagination from you. You will inspire yourself.” He chortled a little at his own description, then slapped the desk.
“But now,” he said, “work begins.” He handed over the two-page order, which the Court had issued last week, requiring Ferko to testify before the Pre-Trial Chamber a couple of days from now.
In the US, a grand jury was supposed to supervise the investigative work of the prosecutor. At the ICC, the judges of the Pre-Trial Chamber played that role. Until the chamber approved, the Office of the Prosecutor—‘the OTP’—could not so much as ask a direct question of a potential witness. Before that, the only information on a case was what third parties, like newspapers or human rights organizations, had gathered.
In the last few weeks, I had read the ICC treaty, all the Court’s rules, and the vast majority of its decisions. One fact stood out now: The Pre-Trial Chamber had never before called for live testimony in passing on an OTP application to investigate.
“True,” Olivier said, “but we’ve all agreed it has some validity. That is why we asked you to rush here early. In our cases, ordinarily there are hundreds of victims. In this one, there is a single survivor. The Court wants to be certain that he is truly willing to give testimony—and will make sense when he does. No point inviting controversy if it turns out he’s missing a few tiles.”
I accepted that, but confessed that I was less comfortable with the European practice that required me to present Witness 1’s testimony without talking to him in advance, relying instead on a few prior statements.
“You will want to meet with this barrister, Esma Czarni,” Olivier said. “She’s from the European Roma Alliance, and found this gentleman in the first place. She’s planning to be here.” He rooted around on his desk and eventually handed over a Post-it with her number. He lifted a finger in warning. “You will find her disarming. Very bright. Très jolie,” he said, accompanied by a little French wiggle of his eyebrows. “But very single-minded about the Roma cause.”
By way of summation, he offered another hearty laugh, then turned with great enthusiasm to discussing our options for dinner.
3.
Going to Work—March 3–4