Protecting National Security Evidence While Prosecuting War Crimes: Problems and Lessons for International Justice from the ICTY

Abstract

Prior to Serbia's surrender of Slobodon Milosevic to the International Criminal Tribunal for the Former Yugoslavia (ICTY), General Radislav Krstic was the biggest "big fish" to be put on trial in the Hague. Krstic seemed to cut a sympathetic figure compared to many of the thugs and petty camp tyrants who had previously appeared before the Tribunal's judges. A mild-mannered professional soldier, Krstic had lost a leg in a land mine incident in December 1994 and was considered a valuable and cooperative partner with the Western powers in implementing the Dayton Accords. Krstic, however, also had a darker side. He had served as Chief of Staff and then Commander of the Drina Corps, a formation of the Bosnian Serb Army, during July 1995 when the Drina Corps participated in the forced evacuation of 25,000 Muslims from the United Nations "safe haven" of Srebrenica. The Drina Corps was heavily implicated in the accompanying massacre of approximately 7,000 Muslim men of military age. Charged with genocide, war crimes, and crimes against humanity, Krstic did not deny that the executions and secret burials had taken place. Instead, he insisted that he did not become commander of the Corps until after the crucial week when the massacre happened, that during the time in question he was miles away conducting an operation in Zepa, and lastly that he did not even learn of the atrocities until months later, in August. Ultimately, Krstic's story came unraveled in the face of evidence from hundreds of intercepts like the one that opens this Essay, recorded and transcribed by the Bosnian Army. These intercepts "sealed Krstic's fate," in the words of ICTY Judge Patricia Wald. The Turks were, indeed, listening.