Milwaukee's Role at The Hague
March 28, 2002
Volume 23, Issue 13
As the world knows, the 1990s was a very bloody period in the history of the former Yugoslavia but, hopefully, a major leap forward in the development of civilization will result with the creation of a system of world justice. The international community is shedding the notion that a brutal ruler can engage in ethnic cleansing or genocide with impunity as long as it's done within national boundaries. Why should national boundaries, which in some cases were arbitrarily drawn, allow ethnic minorities to suffer mass murder or rape, while the world looks on helplessly? This is the issue before the world.
After the fall of communism in 1989, the former Yugoslavia, which was a federation of six republics-Serbia, Croatia, Bosnia-Herzegovina, Slovenia, Macedonia and Montenegro-began to split apart. As Yugoslavia splintered, civil war erupted. There were major wars in Croatia and Bosnia and even in a province of Serbia itself, Kosovo, where ethnic Albanians militants, the KLA, were fighting for an independent state.
After years of conflict and tens of thousands of people slaughtered, NATO finally intervened. NATO forces, led by the U.S. and Britain, bombed Serbian-led forces that were holding the Bosnian people under siege. A few years later, NATO again attacked and bombed Belgrade, Novi Sad and elsewhere in Serbia, in response to Serbia's military actions against Kosovar Albanians.
In 1993, the Security Council of the United Nations, set up the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian, known as The Hague Tribunal, which was designed to try the perpetrators of various war crimes like genocide and ethnic cleansing. Through these actions, the international community began to chart new territory, including crossing national borders to apprehend alleged war criminals and bring them to trial at the Tribunal in The Hague. Currently, we are reading accounts of the trial at the Tribunal of the most prominent figure in the former Yugoslavia, the former president, Slobodan Milosevic.
Is this system of world justice working? And is The Hague Tribunal changing the way the world reacts to ruthless leaders? Had this system been in place in the 1930s would Hitler have had the opportunity to commit genocide against Jews in Germany? Should there be a Tribunal for war crimes committed by Pol Pot and company in Cambodia? Will Saddam Hussein be indicted by a future tribunal and eventually stand trial?
Pursuant to the 1998 Treaty of Rome, the international community has also proposed a permanent International Criminal Court that is very close to being ratified by the necessary 60 nations to become a reality. The U.S. is opposed to this permanent International Criminal Court because of its role in the world as international policeman and because of some strong anti-American feelings by a significant number of countries, some of our high level officials could be unfairly indicted. Despite U.S. objections, the International Criminal Court will come into existence.
The Hague Tribunal, however, seems to be working despite various criticisms. The United Nations (UN) has apprehended a number of alleged war criminals and brought them to trial in The Hague and found them guilty. Will this deter future war crimes? Who knows, but it is at least a start. Is this current tribunal without flaws? Certainly not, as the following interview with two prominent Milwaukee attorneys who are currently defending an alleged war criminals in the Hague will clearly explain.
Milwaukee attorney, Nik Kostich, is a defense attorney with Kostich, LeBell, Dobroski & Morgan, who is very active in Serbian-American community. Tom Kuzmanovic is a Milwaukee trial attorney and a partner at Hinshaw & Culbertson and a very active member of the Croatian-American community. Conducting the interview for the Shepherd Express were Milwaukee attorney Lawrence G. Albrecht, partner at First, Blondis, Albrecht, Bangert & Novotnak, who has taught and consulted extensively in the Balkan region and serves as the Shepherd Express' chief foreign correspondent, and Louis G. Fortis who in addition to being publisher of the Shepherd Express has a Ph.D. in political economy and is an international consultant who advises parliaments in developing countries. He spent part of this past February working in the Balkans.
Shepherd Express: There are less than 10 U.S. attorneys defending accused war criminals in The Hague. How did you become involved?
Kuzmanovic: I got involved in May 1998 through a cousin who was a prominent criminal defense lawyer in Croatia. His name is Zeljko Olujic. He was well known throughout the late '70s, early '80s and into the '90s in defending political dissidents in Croatia during the communist era and when he got involved in the Tribunal, he didn't have familiarity with Western common law practices that we have in the United States and which are used extensively at the Tribunal. So even though I don't have a specific criminal law background, I have extensive trial experience and a common law background and he asked if I would get involved. It also helped that I speak and read Croatian, so being bilingual was also very beneficial. So I could also communicate with the client as well as with Zeljko and then deal with the lawyers and the judges.
Kostich: I got involved in '95. The war in Bosnia was still on at that time, and I was the president of the Serbian-American Bar Association. I went to Bosnia and Yugoslavia on sort of a fact-finding mission, vis-a-vis their legal system. I met the president of the Serbian Bar Association who was a member of the Dusko Tadic defense team, the first defendant at the Tribunal. He asked me a number of questions about common law principles, certain criminal defense terms and so on. Later, I did some research for him, and sent him some things. I was then invited to join the Tadic team in October of '95. That was my first case.
SE: We all saw really gruesome images on TV regarding the wars in the former Yugoslavia. Is it difficult to defend alleged war criminals?
Kostich: The question is asked, anytime you speak publicly-particularly to any groups of lay people, or you're at a cocktail party-how can you represent people like that? I think that an experienced lawyer, litigator who has taken the oath to represent people will present defenses no matter how serious, how horrific the alleged perpetrator may be, whether it's a serial killer or a rapist, or in this case we've got war crimes charges.
In this country we do it because the Constitution guarantees various rights and the right to have a lawyer and to have a defense. And if you can't afford to hire a lawyer under our Constitution, the government has to appoint a lawyer for you. This principle, the Gideon principle, continues in the international system. If a war crimes suspect cannot afford a lawyer, the Tribunal will assign a lawyer.
One role of the defense attorney is to keep the prosecutor honest. I think it's also to guarantee a fair trial. And I think history will judge society, our involvement and everybody else's involvement in this project and give high marks if the trials are fair, if the accused is defended properly with good lawyers.
I also think that because I hail from the region, I'm a Serb, and I'm bilingual and I'm able to assist in this case, I think it made it even more interesting to me. I'm not involved to represent any particular ideological concept or political concept. But I have to admit that I do in some way feel responsible for the Serbian viewpoint particularly if I feel there's some unfairness based on ethnic issues. Sometimes this is a difficult concept and people will ask, well are you defending me as an individual or are you defending some kind of a political ideology or a concept? And I just want to make sure that all of the facts are brought out. And if some of the facts are ugly, you have to live with that. And there have been a lot of ugly facts that have come in out of the litigation in these cases.
Kuzmanovic: From my perspective, you have a duty, an ethical obligation to represent your client zealously, ethically and to the best of your abilities. And I felt that in my position I had a unique opportunity to be able to participate in the defense of my client because of my abilities as a Croatian American, someone with knowledge of the situation, a deep background into the region and knowing that in a lot of instances what's presented in the indictments and characterizations of the conflict in certain terms weren't accurate.
So from a legal perspective it was very important to get involved to represent the client. But the Tribunal is also a search for justice and, in a sense, a search for the truth. And as a defense lawyer you are not only interested obviously in a search for justice in defending your client, but you want the truth to come out as it pertains to your client and the issues that he faces. So I think there has to be due process. There has to be fairness. There has to be the ability of your client to have a fair shake. And I think that's the role of a defense lawyer, especially at the Tribunal.
Kostich: One additional thing I want to tell you, which I think does color our representation, is the way the Tribunal has a very political role to play. It was set up with a political purpose; to bring peace and stability to the Balkans according to the resolution. Most of the prosecutors, particularly the last two, have been very political in how they have advanced their office, the budgetary issues and things of that nature. I believe that politics have come in to play a role in the trials.
SE: So what you're saying is that the prosecution has an advantage. And part of what you're saying is the Tribunal is trying to make a statement that war criminals get sent to prison. If people walk away from The Hague after being acquitted, that defeats the purpose of what you're arguing the Tribunal was set up for?
Kostich: Of course. Of course.
SE: Is that what you mean by political?
Kostich: That's one aspect. The other aspect is that in all of the trials so far there have been expert witnesses who have come in and they have testified, for example, as to the history of the region, the politics of the region. Why did the conflict begin? And they give you sort of a political science history lesson. And one of the things that occurs is that I don't always agree with these expert witnesses as to their analysis. But that becomes a political factor. So you come in as a defense attorney and you begin to cross-examine and challenge their findings and their analysis. Because a part of the whole thing does go back to the war. Who started it? Could Yugoslavia have been kept together or not? Was it smart to recognize Bosnia? All of those kind of issues. They're all political issues and you're cross-examining them. And that, of course, raises the political ante in this process. Tom, please, am I out in left field or what do you think?
Kuzmanovic: Well there is definitely a political angle to the Tribunal. The Tribunal is a political animal. It was set up by the United Nations Security Council by political means. It is used as a tool to try to promote peace and stability in the Balkans, and in the sentencing schemes that have been handed down they try to use these punishments as a deterrent to prevent future conduct of a similar sort in the Balkans. And in my view, that really has failed because the deterrence really hasn't manifested itself from what I've seen. And you have to look at the Tribunal. It's called the International Criminal Tribunal for the Prosecution of War Criminals. Not the International Criminal Tribunal for the Trial of War Criminals. So the political bent I believe is inherent in the name of the Tribunal.
SE: But every court has a "political aspect" to it in trying to preserve the status quo, and whether it's a capitalist society or a communist society or whatever, to keep people from violating the laws that the political process has created. So how is this court any different? They're all designed to keep people from deviating from the desired behavior promulgated by the political establishment.
Kostich: The Clinton administration was really behind the Tribunal because it was either that or go in and bomb Serbs or whoever they thought were the bad guys. And I think that that was a political act to push it through the Security Council using Article 7. And I think there's a criticism that that particular article doesn't really allow for the setting up of additional institutions. It allows peacekeeping activity and so on, but not the actual creation of another entity. And that was argued at the Tribunal but lost. That had to do with jurisdiction.
There were many conflicts between Nuremberg and the Bosnian conflict, but this was really the very first tribunal that was set up. And I think that the people in the region wonder why there wasn't a tribunal set up for Vietnam or for some other activities here and there, and why it was this one. And that's why the question of this political tribunal, the setting up of it is looked upon as a political act. I just don't want you to misunderstand my other point; and that is that in my role, when I'm trying a case, I'm not just trying the facts of the case but I'm also trying the politics of the case because the prosecutor sets it up that way.
Kuzmanovic: It's supposed to be a trial of individuals for individual responsibility. But when you read the indictments and you listen to some of the opening statements that are made, it is not a trial of an individual, it's a trial of a country and a people. And while they say publicly that they don't do that, in practice they do. And that's really disconcerting. And that's why you have a lot of people from the region that are turned off to the Tribunal and why there's a big uproar because it's not directed at someone's individual culpability. For example, with the Croatians the angle is directed at Croatia's perceived attempts to try to secure through military means half of Bosnia. And that's what the Tribunal is trying to establish. The Tribunal is attempting to rewrite the history of the region by making everyone equally culpable when its not the case. It's not why the Tribunal is there. The Tribunal is there to try individuals who have been accused of committing crimes of war or crimes against humanity, not to try countries through those individuals for acts that went on during the course of the war.
SE: You're not arguing the fact that with respect to all these horrific crimes that we have viewed on television or read about in the newspaper, that someone should not be held accountable for those. You take issue with the fact that they are not necessarily going after individuals. They're trying a culture or a country or a people?
Kostich: Sure. I'll give you an example. I currently represent a fellow named Momcilo Krajisnik. He was the speaker of the Bosnian Assembly first and then he was a member of the expanded presidency of the Republika Srpska. He was a prominent politician. We have just received an amended indictment which says that my client was a member of a joint criminal enterprise. Sort of like a conspiracy theory in American law. And then what it says is that he was aligned in a joint criminal enterprise with a number of other people. And this is where Tom's statement is interesting because, I know this is painstaking, but what the indictment does, it proceeds to name all of the members of the Republika Srpska Parliament at that time, all of the ministers and their deputies, most of the Ministry for Interior which is your police, all of your leadership of the army as well as members of the army, all of the members of the municipal governments as members of the joint criminal conspiracy,
SE: So they're indicting an entire society?
Kostich: Exactly. That's what I'm trying to tell you. Because when I counted out how many people are involved in this, essentially I came down with numbers that are something in the neighborhood to 40,000 to 50,000 men and women that they're indicting as a joint criminal enterprise. When I go to Serbia and Bosnia, the Republika Srpska, the Serbian part, 95% of the people feel that they've all been indicted, that they all feel like somebody wants to make them guilty. It is not creating peace and stability. And by watching all of these trials they're not feeling any better about their neighbors of other ethnic backgrounds, unfortunately. It's bringing up bad feelings, the scars that people have from the war, and they're festering again.
Kuzmanovic: My thought is that the Tribunal as a whole, it's receptiveness in Croatia is almost, I don't want to say it's nonexistent, but there's only a very small percentage that feels the Tribunal is being fair when it comes to dealing with Croatian indictees. Congress just had a hearing on February 28th dealing with the Tribunal, and in a lot of ways the people who testified echoed some of the comments that have been made by people about the Tribunal and its perceived lack of fairness.
SE: Do they think it's being fair when they're prosecuting Serbs?
Kuzmanovic: Well it really depends on who they're talking about. That's a good question. Because I think what you have here is from the Croatian viewpoint, and the Bosnian Muslim and Croatian people, they feel like they have been overwhelmingly the victims. There was a CIA report '94 or '95 that said something to the effect that of all the war crimes about 10% were committed by either Croats or Bosnian Muslims. Yeah, they're "responsible" perhaps for 10% in retaliation. But they feel like they're getting victimized again for simply defending themselves.
SE: By the Serbs?
Kuzmanovic: Right. So their position is "look, we were victims of this war and yet we're the ones who are getting shafted here." The Croatians feel that way more so than the Muslims do. There are some Muslim defendants now. There haven't been for a while. And they overwhelmingly feel like they're the victims as well. And I sense some dissatisfaction. I mean, Serbian General Krstic was convicted of genocide for the Srebrenica massacre where it's alleged that 7,500 Muslims, men and boys, were killed. He got convicted of genocide and he got 46 years. And people were outraged in Bosnia because they felt slighted that he only got 46 years. That should have been a life sentence to them.
Kostich: Although the guy is 55.
Kuzmanovic: Right. He's 55. Forty-six years is life for him. But the principle of it for the Bosnian Muslims who were the victims in Srebrenica is that he should have gotten life in prison.
SE: Let us get to some procedural issues. What kind of procedural differences do you see defending a client in The Hague versus defending a criminal client in Milwaukee?
Kostich: The first difference, of course, is that most serious matters in state and federal court in this country or in this state will go to a jury trial. So you don't have a jury trial. Everything is done by a three judge chamber or panel. They're both the trier of fact and of the law. I would imagine that conceptually it's very difficult to establish juries for international tribunals. But anyway, that's one difference. The judges come from both common law and civil law, or continental background. The judges from the continental background can be much more involved in the trial than our judges. Because in the continental system, their judges do the bulk of the questioning. In the trials at the Tribunal, the prosecutor goes first, the defense attorney does his cross-examination, often the judges will then continue questioning of the witness and really at some length. And that's much different. In this country, a judge will occasionally ask a question, a clarification question. The rules of evidence are not as rigorous as they are here. Hearsay is allowed. Oftentimes written statements are allowed, and if you don't want to cross-examine a witness, a written statement comes in as a testimony of a witness
Kuzmanovic: One of the key issues is the ability of an accused to confront his accusers and those testifying against him. It's a basic constitutional right in this country but at the Tribunal, it isn't necessarily so. A witness can come in and testify in a closed session. Curtains can be drawn. A partition can be set up so that the person cannot even be seen by the accused or by the defense counsel, although the practical effects of that are tough to fathom. And you don't know what that person is going to say. They come in as witness A or witness B or witness C and oftentimes will give damaging testimony and you'll really have no way to attack their credibility based upon their status as a protected witness.
SE: Basically, you don't even know who this person is.
Kuzmanovic: Oftentimes that's the case. You won't know. You'll get a name a week or two before and you've got a week or two to find out who this person is and where they come from and what their ax is to grind. And you're in trial at that time so you're under pressure to try to find something out about this person who may live in Australia. The other difficulty I see is in a criminal case in the U.S., if the prosecution loses and there's an acquittal, the prosecutor cannot appeal. At the Tribunal, if the prosecution loses, it can appeal. That's one of the reasons I think some of these trials have gone on longer than necessary. Finally, there is no death penalty. The maximum sentence is a life sentence. But the Tribunal, in the sentencing determinations, is supposed to take into account what the sentences would have been in former Yugoslavia.
Kostich: I think that the sentences at The Hague actually are not as lengthy as they are here in the United States. The sentences at The Hague will run anywhere from as low as three to five years up to the upper twenties, 25, 28, up to 30. That's the usual bracket, although there are some exceptions. I did the first two plea bargains at the Tribunal and in those cases I think the clients got extremely low sentences. One received five years and the other got 10 years. Then you get credit for the time you spent awaiting trial. There's apparently a tendency to plug into the parole system that is in effect in those countries where the defendants serve their time usually somewhere in Europe that has about a third off for good behavior. When I look at sentences across Europe that I'm familiar with, I think the United States is basically doubling the numbers on European sentences.
Kuzmanovic: I think you're right, Nik. The other factor in the Erdemovic case that benefited him on sentencing was the defense that was raised of duress.
Kuzmanovic: His defense was "look, I was forced to be part of this team. It was either, if I didn't pull the trigger they would have shot me in the head," so that obviously helped mitigate his sentence.
Kostich: And that's interesting because duress used to be a complete defense at one time. It is now just to be used in mitigation of a sentence.
SE: Many people who champion human rights are pleased to see The Hague Tribunal actually cross over a country's border and bring alleged mass murderers to trial. Do you think that it's working and fulfilling its mandate? I realize that earlier we talked about the political nature of it, but is it working in any aspect?
Kostich: Tom and I talked about the congressional hearings vis-a-vis the Tribunal a few weeks ago. A professor testified that international tribunals may not be the best instrument to handle these kinds of problems. He was concerned about the state sovereignty issue. He was concerned about the fact that diplomacy would not play a role. He was concerned that it becomes very selective because only certain people have vetoes in the Security Council. And he had concerns that there's no enforcement for the Tribunal. In this case, NATO has been used to arrest people. The Bush administration is back pedaling on this concept of international tribunals because the U.S. is very active globally. We have become a de facto cop and the administration doesn't want our armed forces to be the subject of a prosecution in front of an international tribunal. We never did have an international tribunal for many prior conflicts. I don't think we're going to have an international tribunal for Cambodia, for example.
SE: That seems to be falling apart.
Kostich: It's falling apart. As a lawyer, obviously, when you look at human rights issues you do have to support democracies, rights, civil liberties, things of that nature. So on one level you say, "well, we really need somebody to step in and take care of these issues." I'm not prepared yet to accept Tribunals because they have become political. Who is the prosecutor really responsible to? That's a problem.
SE: Who would the prosecutors say they answer to?
Kostich: It's my understanding that the prosecutors want prosecutors to be very independent.
Kuzmanovic: I agree. But that's another political issue. The prosecutors are appointed and approved by the Security Council. So in a sense the prosecutor is accountable to the United Nations Security Council. The prosecutor takes the position that she represents the victims, whoever they may be, of the wars of the former Yugoslavia. And I think she has definitely staked herself out to be independent and to do what she wants when she wants. That's not necessarily good or bad. But there is no real accountability. If the prosecutor abuses her function as a prosecutor what remedy does a defendant or a defense lawyer have? I don't know of any.
SE: Can't you appeal that?
Kuzmanovic: Well, you can't. A judge is supposed to confirm an indictment. Well, I don't know of any indictment that hasn't been confirmed, first of all. There might be, but I know of none. And the prosecutor is basically doing what she wants in terms of investigative work, travel, speeches, press releases. There's a whole apparatus set up to support the prosecutor. There's none of that for the defense.
Kostich: Let me add one thing. In '99, NATO bombed Yugoslavia in regard to the Kosovo issue, and there are people who believe that NATO committed war crimes, that they killed civilians.
SE: Milosevic certainly feels that way.
Kostich: But I'm not talking about Milosevic, I'm talking about other people like Human Rights Watch and Amnesty International. Civilians were killed. And also that a part of the air campaign was actually directed at civilians by bombing electric power lines and things of that nature.
SE: Didn't we also inadvertently bomb the Chinese embassy?
Kostich: Right. And so they're saying those are war crimes. Certain people from Yugoslavia and some international scholars, professors and others, asked the prosecutor to investigate the NATO activities in regard to these war crimes. The question becomes, now is this prosecutor going to be very zealous in investigating NATO activities when she uses NATO personnel to enforce, to arrest suspects? And I would imagine of the Tribunal's $100 million budget, the NATO countries are probably by far the major contributors to that budget. The United States provides $25 million a year to the budget. How zealous is this prosecutor going to be when the money comes from this group? Now whether you buy this argument or not, there's always that appearance of impropriety.
SE: It could be argued that the prosecutor is just being real careful, conservative and strategic in terms of who she is prosecuting. Isn't that a reasonable argument?
Kuzmanovic: This prosecutor has made it clear that she is going after people who were supposedly higher up. The previous prosecutor, Louise Arbour, actually dismissed maybe 20 or 25 indictments. I think every one was a Bosnian Serb of the so-called small-fry type. The people who committed individual acts, who had personal responsibility for beatings, tortures, killings, or that sort of thing. She said the Tribunal was set up to concentrate on the larger group of commanders, the military people who were responsible for planning and executing the activities that were in contravention to international law. While the big people may have been there pulling the strings, it was people on the ground who actually committed the acts. And the local courts there are not set up or equipped in any way, shape or form to try local people for committing acts against individuals of another ethnic group. There are two levels of defendants here. The high people who really need a trial on their individual responsibility for what they did, and the little people who committed the acts. And it's really difficult to see how dismissing the "little people" actually has contributed to the furtherance of justice in former Yugoslavia.
SE: Didn't Nuremberg supposedly take away the defense of "I was just following orders"? Isn't that what Nuremberg established?
Kuzmanovic: I think in a sense "I was just following orders" doesn't fly when you're defending someone accused of war crimes. There were local trials set up by single judges post-Nuremberg that dealt with the individual actors and tried them and if warranted, convicted and punished them. There were judges who were placed in various localities within Germany that tried these people. Presently, there is no international judicial system set up throughout the Balkan region trying these small people. These small people are still running around.
Kostich: The obvious fact is that Germany was occupied and Yugoslavia, particularly Serbia, Montenegro, Croatia are not occupied. Bosnia is, I think, occupied to some degree. Furthermore, they just don't have the resources. They don't have the money to pay for a judicial system. In Banja Luka, the chief judge has one computer. He is having a difficult time finding prosecutors and judges. In fact, I talked to him directly. He's hoping that new graduates will want to be judges. So you're going to have judges who are what, 25, 26 years old?
SE: With no experience.
Kostich: With no experience. And, of course, the cops don't have it. The investigators don't have it. I honestly don't think there's a desire and willpower to go out and prosecute people in the community who may have committed a lower level crime. I don't know what the situation is in the Bosnian Federation.
Kuzmanovic: You know, I think if there's going to be accountability and "justice" done, and if you want people to return in Bosnia to the places from which they were either ethnically cleansed or had to flee, you're not going to go back if your neighbor is the guy who chased you out with a gun and said "leave because you're Muslim" or whatever. If those people aren't prosecuted, you're not going to have refugees return. Serbs aren't going to come back to Sarajevo and Croats and Muslims aren't going to go back to the Republika Srpska. No one's going to go back to the Bosnian Federation because no one's going to want to go back to a place where they were chased out of. And until the individual people who did the chasing are held accountable, you're not going to have reconciliation. And I think the Tribunal misses the boat on that issue by letting the small fry go.
SE: Did NATO commit war crimes by bombing Yugoslavia in response to what was going on in Kosovo? What you're saying is that the U.S. and Western European countries, NATO and the like, basically still are beyond human rights law.
Kostich: You know, both Tom and I are human beings in addition to being defense lawyers. Sometimes people say, you guys have looked at all these autopsy photos and know all this awful stuff and you still trundle on as defense attorneys. What kind of people are you? My hometown was the first town that was bombed. Novi Sad. I'm sitting on my duff in Milwaukee, and all of a sudden NATO starts bombing Yugoslavia and the first thing I see is my hometown and I see buildings burning and bombs dropping.
What I'm trying to say in that regard is, should NATO be looked at by the prosecutor, actually investigated? And if they finally decided that the military action was justified, at least they would have made an attempt to investigate. But they didn't do that. That's the problem. My personal observation was that there was an attempt to influence the civilians, the lay people. NATO bombed the power grids, the water grids. There was no hot water. There was no electricity. People with kids had problems. Never mind the accidental bombing of the Chinese embassy or some hospital or some train or bus and all of that. NATO at that time literally said, it wanted the Serbs to hurt so that they would then get to Milosevic.
One other thing was the use of cluster bombs in various cities. And as you know, cluster bombs explode before they hit the ground. NATO used cluster bombs in towns, in urban areas, where the justification might be that there were military targets. Yugoslavs used to put military barracks within urban areas. But cluster bombs don't know the difference between soldiers and people going to the market, as occurred in Nis, in southern Serbia. My criticism is really more with the prosecutor's office because I think that's a very politicized office and I think that is where some of the policies have been wrong. Of course the NATO bombing of Yugoslavia is one of those.
Kuzmanovic: I have a differing view about the NATO bombing than Nik does, and that comes from the experience of Croatia having been in a war from 1990 to 1995 and having dealt with ethnic cleansing, indiscriminate bombing, use of cluster bombs by either the Yugoslav National Army, which was essentially a Serbian army, or the Serbian paramilitaries in Croatia.
Kostich: We don't agree on everything by the way.
Kuzmanovic: My level of sympathy with respect to the NATO bombing is not there. I don't know how long the NATO bombing lasted.
Kostich: It lasted almost three months.
Kuzmanovic: Three months. Compared to five years worth of indiscriminate shelling and cluster bombs, to me there isn't necessarily a comparison. I do believe that the prosecutor should have investigated, to maintain some level of balance. I don't think that the investigation would have come to the conclusion that the bombing and the campaign constituted war crimes, but my thought is that the Tribunal is attempting to maintain some sort of a balance among and between the ethnic groups in former Yugoslavia, although we haven't seen any indictments of individuals in the Kosovo Liberation Army.
SE: Do you think the proposed international criminal court, the ICC, will become a reality?
Kostich: I think it's going to be a reality. The Europeans are very much in favor of it and have lobbied for it. I've been told that they've actually bought land in The Hague to build this court. So apparently they know things we don't know. However, if the United States does not join, I'm not really sure how effective it'll be. Who's going to finance it because we won't be involved? If the U.S. doesn't become a part of it does the practice of that Tribunal become international customary law? Do the precedents become a part of customary international law if the biggest and most important country in the world is not involved?
Kuzmanovic: It's going to be a reality, it's just a question of whether it's going to have U.S. involvement or not and as long as there's a Republican administration and Republican control of the Congress, even though the Democrats control the Senate, they'll never get enough votes to ratify, needing two-thirds of the Senate to do so. I don't see it happening and I don't think it's going to be effective.
SE: Do you foresee a time when this court will indict an American and it will become a major international incident?
Kostich: Good question. It's my understanding that it is going to have an independent prosecutor and that there is jurisdiction in regard to individuals who are citizens of countries who have not ratified the treaty and become members. So I foresee that it could happen with all the adventures that the American administration gets involved in overseas. Obviously we're not going to extradite anybody. But somebody could be grabbed. And then you've got an international incident.
Kuzmanovic: I think the probability, if the war on terrorism continues the way it is in the future, the probability is high that there will be an attempt. In my view, it'll be a political attempt to indict an American in the ICC to prove some kind of a political point.
Kostich: And as I understand it, if the person is arrested in a country that has ratified the treaty, I don't believe that you even have a right to an extradition hearing. I understand it's just automatic handing over to the jurisdiction of the ICC.
Kuzmanovic: The proposed ICC has a jurisdiction of generally four areas. One is the crime of genocide. Another is the concept of crimes against humanity, which would include things like ethnic cleansing. Another would be war crimes. And then the fourth category would be crimes of aggression. And those are all defined in the specific areas of the ICC statute.
For example, crimes against humanity would include things like murder, enslavement, ethnic cleansing, torture and rape. War crimes would be something committed as a part of a plan or policy as part of a large-scale commission of crimes like willful killing, compelling a prisoner of war to serve in the forces of a hostile power, the taking of hostages, things like that. So those are similar to the crimes set forth in The Hague Tribunal statute.
SE: Bringing it closer to home, how has the conflict in the former Yugoslavia affected the local Serb and Croat communities in Milwaukee?
Kuzmanovic: It affected the Croatian-American community very deeply, obviously because of relatives and family members over in Croatia. The strong ties between the people here and the people there. Most of the people that came to this country came because they didn't want to live under communism. They wanted a chance to live their lives in freedom and they kept the ties to their friends and relatives in Croatia and Bosnia-Herzegovina. There was nothing they could do really in the beginning. And what we ended up doing was binding together as a community, both politically and economically.
SE: In Milwaukee?
Kuzmanovic: In Milwaukee. And then on a national level. And then finally even on an international level. We agitated Congress for international recognition of Croatia as an independent country. We agitated for things like lifting of the arms embargo and economic assistance to Croatia. As a Croatian-American community, we were in a large part successful. We also raised tremendous amounts of humanitarian assistance. Food, clothing, medical supplies that went to Croatia during the course of the war.
SE: What's the estimate of the number of Croatians in the United States?
Kuzmanovic: There are close to two-million people of Croatian descent throughout the United States, most concentrated in the Midwest-Chicago, Milwaukee, Cleveland-and there are also large communities in Los Angeles, Kansas City, Pittsburgh and New York.
SE: And the Croats are Roman Catholic predominantly?
Kuzmanovic: Yes, predominantly Catholic.
SE: Nik, do you want to comment about what the war did to the Serbian community in Milwaukee?
Kostich: I think the community was really troubled by the war. I think that because of the nature of the war and the position taken by the United States and some of the Western powers who placed sanctions on Serbia. First, Slovenia was granted independence. Croatia second. And then Bosnia third. Then, of course, Macedonia. So what was left-Serbia and Montenegro-became Yugoslavia. So sanctions were placed on those particular entities, as well as the part of Bosnia that was controlled by the Serbs, the Republika Srpska. Similar to the Croat diaspora, Serbian people were very upset because they had relatives and family and friends who were living in this situation who were potentially refugees. The economy was devastated there. So they banded together and tried to do what they could. They also raised a lot of help in terms of relief, both monetarily and items.
SE: What's the estimate of the number of Serbs in the United States?
Kostich: My guess is it's anywhere from a million to two million Serbs. I know that's not very accurate, but you don't know because a lot of people are not always involved in the ethnic community. It's funny, but Serbs and Croats tended to emigrate to the same areas, the Midwest, this whole southern Lake Michigan area, along the border from Gary, Indiana, to Chicago, Milwaukee, Pittsburgh, Cleveland, Detroit, New York. And there was real early immigration out west; Los Angeles and San Francisco. And at one time mining areas in the West. You'll have pockets of Serbs in Arizona, Montana, Nevada and so on. Balkan immigrants tended to go to the same areas because that's where the jobs were. And they actually tended to live in same areas. And even have relationships and intermarriage. After World War II, you had another wave of immigration and both the Serbs and Croats who emigrated were anti-communist. They fled because they didn't want to live under the Tito regime. But change came because of what happened during World War II. The Serbs and the Croats fought each other. And there was literally separation and very little contact between Serbs and Croats as ethnic groups from '45 on. Even my own personal experience is such. Because all the immigrants played soccer and had some cultural activities, you would then come in some contact with other groups, including Croats.
SE: Wasn't there a period of time when Serbs and Croats played soccer against each other and then when the war took place in the '90s that ended? And now after the war ended they are playing soccer again?
Kuzmanovic: That's true. After a few incidents the games were discontinued because the Wisconsin Soccer Association did not want to have any potential problems that would develop either by the Croatian teams going to the Serbian fields or the Serb teams coming to the Croatian fields. After the war was over they started playing each other again. And from what I understand, there have been no incidents since then.
SE: There are Serbian restaurants in Milwaukee. Do you go to any?
Kuzmanovic: I have never been to one.
Kostich: You should. It's good food.
Kuzmanovic: But there's no Croatian restaurants, which I find sad actually.
SE: A market opportunity.
SE: What can the Serb and Croatian diaspora do in Milwaukee and the United States to promote reconciliation in the Balkan Peninsula?
Kostich: As you know, Milosevic was thrown out October 5th, almost 18 months ago. There was an election, he wouldn't leave, and then there was a struggle, a relatively peaceful revolution. Not many people got hurt. There's a new government in Serbia. And we, the diaspora, are still exploring our relationship to that new government. Under Milosevic, many of us in diaspora, and I'm including myself, did not have a relationship with Milosevic's government because we didn't approve of it. Just simply didn't like him. And I think I'm correctly quoted someplace that I thought he was an unreconstructed communist.
Now, we're feeling our way along with the new government. Remember, we're Serb Americans, we're American citizens. They are wondering why we left, what our loyalties are, whether we want to come back, what are our intentions. So we are not plugged in with the new government. They're being very careful in terms of dealing with the diaspora. For that reason, we don't have much of a role to play yet in Serbia and Montenegro. So that's problematic. Over here I think that we have become more Americanized. I personally have advocated for years that there ought to be some kind of a Truth and Reconciliation Commission for Yugoslavia at some level. Because if we are going to rely purely on a tribunal, that is not going to be the solution. I think that's where the diaspora can come in and play a role in both the Serb and the Croat diaspora.
SE: In promoting this Truth and Reconciliation Commission?
Kostich: Yes, I think so. And I think we all have to deal with each other. And I'm going to be criticized, but I think that Serbs have got to look to the future. In other words, to become part of the European Union, Council of Europe, any of the other international, particularly European organizations. The Croats are looking to do the same thing. So what it means is they're all going to be in the same group at some point. They've got to start talking to each other, dealing with each other. And since the languages are very similar, there are certain traditions which are similar, they are occupying a pretty small space over there. They ought to share it. They ought to see each other. And I think there has to be an attempt to begin developing relationships, both at the state level, NGOs, sports teams, cultural, then finally professional organizations
SE: With a Truth and Reconciliation Commission, you're talking about people coming forth and admitting their crimes, but not in a formal court situation?
Kostich: The South African Commission had a general amnesty for people who came in and admitted their crimes and were questioned. I don't know how realistic it is for Yugoslavia. I don't know how you compare South Afrikaners to Serbs, Croats, Muslims and others. But I think at some level this has to be done. There has to be an explanation. And I think it's an instrument that can answer these questions. The Tribunal cannot answer those and is never going to answer those questions.
Kuzmanovic: My thought is that there's going to be quite a long period of time where at least the Croats are going to be dealing with Yugoslavia at arm's length simply because of what happened during the course of the war. There's a feeling that the victims haven't been compensated, either monetarily or otherwise as a result of the war. And I don't see in the near future Croatia dealing with Yugoslavia on anything other than an arm's-length basis.
We deal and talk with the Croatian government and their representatives here in the embassy and their consulates very frequently and we've been pushing this for a long time. Croatia is a member of the World Trade Organization. Croatia is a candidate eventually for membership in the European Union. Croatia is a current member of the Partnership for Peace, which is a precursor for NATO. If and when, and I believe it will be sooner rather than later, Croatia becomes a NATO member, its security will never again be challenged. And that for us as Croatian Americans is extremely important.
Once that security is established, I think you will see a difference in how Croatia deals with other countries in the region. But Slovenia is probably going to be the next country that's going to be granted NATO membership, and Croatia is not very far behind Slovenia, as a former Yugoslav republic. The other thing that we have to focus on with respect to Croatia and eventual reconciliation is the transference of the economy from a communist one to a free market economy. It's not just Croatia's issue. The Truth and Reconciliation Commission is not a bad idea but I don't know in practice how that would work. Croatia, Bosnia, Yugoslavia, vis-a-vis each other. I think it's still too close in proximity to the war for it to have any chance at success. I don't say that it wouldn't but it's too early.
SE: Nik, you have been at this for seven years, how much of your life is your work at The Hague taking?
Kostich: Depending on the case that you're involved in, that's one thing. Right now it's taking, for example, an incredible amount of my time. Probably as much as 80% of my time during certain months. In the past, if you're in trial of course you are not at home, you're not in your office and you're gone for two, three weeks. There was a practice earlier to try cases sort of on a staggered basis where you would try a case for let's say two or three weeks, then you'd have a break and then you'd go back and so on. Now they seem to be interested in doing it straight for a very long time. So it takes an awful lot of your time. Fortunately, my wife is very supportive, but it is difficult.
SE: You've been back and forth what, 72 times?
Kostich: Something like that.
SE: Tom, you have a family with three young children?
Kuzmanovic: Twelve is the oldest. For me, I have a very supportive family, my wife has been fantastic. I've been gone about half of the time that Nik's been gone. But it's not an easy thing to pick up and leave. It's an extremely difficult thing. And one of the huge difficulties that we face, especially being defense lawyers, is that we don't have an office to go back to. We don't have a secretary we can hand something to get typed. We don't have a research assistant. We have to do everything ourselves and that's usually out of your hotel room with your laptop.
SE: Can't you hire like a lawyer or a paralegal there to assist you?
Kuzmanovic: Well you can have that as part of your team. And many people do. But you still don't have anywhere to work other than your hotel room. You don't have an office to go back to. There is a defense room which is very tiny, but the facilities there really aren't conducive for you to be able to use it. You have to share it with 20 other lawyers who might be there at the same time.
SE: It sounds like you both have very difficult but important roles at the Tribunal. Thank you.
Send comments to email@example.com