The Daily - Why Proving War Crimes Is Difficult and Rare

Episode Date: April 6, 2022

This episode details graphic scenes. Many around the world are calling the indiscriminate attacks on civilians in Bucha, a suburb northwest of the Ukrainian capital, Kyiv, a war crime.But investigating such atrocities is painstakingly complicated. Could one case that resulted in convictions — the genocide in Bosnia in the 1990s — offer lessons on how to proceed?Guest: Roger Cohen, the Paris bureau chief for The New York Times.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: With Russian forces retreating, Ukrainians in Bucha are finding scores of bodies in yards and on the roads amid mounting evidence of intentional and indiscriminate killings.The images from Bucha spurred Western leaders to promise even tougher sanctions against Russia.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

I'm Carlotta Gaul. I reported from Bucha, Ukraine, on Sunday, April the 3rd. We drove in from the west, and one of the first things you see is along the highway, and then at intersections, smashed cars. You can't understand how or what happened, but it's chilling, cars. You can't understand how or what happened, but it's chilling because some of them look like they've been pushed aside by tanks or even rolled over. And so when we got into Bucha, just as we were exploring, and that's what you do when you're a reporter, you drive into a place, you start looking and talking to people. And a woman was in great distress, begged us to go to a house where she said a woman, a civilian woman had been killed in her garden. So she took us up there.

And her elderly mother was there, who was 76. And she described what happened. She said a column of tanks, of Russian tanks, drove in down the road. You know, her daughter ran out into the garden saying, they're ours, they're our troops. And they immediately opened fire on her. We saw the bullets in her fence and her daughter died in the garden right there. And then this poor woman didn't know what to do was shooting and shelling you know for days and so she half buried her daughter by covering her in plastic sheeting and then covering her with wooden boards and she took us into the garden showed us where her daughter lay and you you could see her feet still in her sort of patterned socks and galoshes poking out under the boards. So that was one of the first things that happened to us when we drove into Bucha on Sunday.

I'm Andrew Kramer. I cover Ukraine for the New York Times. When I got to Bucha over the weekend, I didn't know what I would find. And as we were driving down the road, we began to see bodies on the road. First, it was one man lying face down on the street. Another man shot in the head. I ended up talking to the town's coroner, and he's found so many bodies that he dug a mass grave in a churchyard,

and even on the day when we met, he had found 13 bodies with their hands tied and shot in the head in an execution. found 13 bodies with their hands tied and shot in the head in an execution. He showed me a video on his cell phone of the scene of five bodies lined up, kneeling against the wall of a basement, their hands bound behind them. I can't write because my pen broke. But basically that showed, those videos and those pictures showed, were they men, tied hands in a basement who had been shot in the head, all kneeling against a wall. In all my conversations with people in Bucha, it was clear that whatever an international court might decide,

certainly the people living there, when they thought about their loved ones, their friends, their relatives who had been murdered and were still lying on the streets, they were saying that, in their view, these were war crimes. From The New York Times, I'm Sabrina Tavernisi. This is The Daily. As global outrage grows over Russian atrocities in the town of Bucha, a number of world leaders, like residents, are calling what happened there a war crime. Today, my colleague, Roger Cohen, explains that proving such crimes is both difficult and rare. I spoke to him about one of the very few cases where it worked. It's Wednesday, April 6th.

Roger, tell me what went through your mind when you first saw those images out of Bucha over the weekend. Well, it was the horror of it that struck me, and I hate to say it, but in a way, the familiarity, if you've covered wars as I have, atrocities tend to happen. Nevertheless, seeing these victims in Bucha, apparently summarily executed, and apparently by the Russian occupying army, well, it sent a shiver through me. This looked on the face of it very much like war crimes. And when you say it's a war crime, what are the rules of engagement specifically that kind of define that? Well, Sabrina, international law, as compiled, put together, defined, requires that the parties to a conflict

distinguish between competence and non-competence, between competence and civilians. And it is a war crime to intentionally target civilians or places where civilians might well be, including hospitals, schools, houses, places of worship. And that kind of indiscriminate attack on civilians can constitute a war crime. On the face of it, it does. And when did these ideas become international norms? I mean, how did the world agree on these definitions? Well, slowly and painfully, what happened was that after World War II, a decision was taken to hold two international trials. This is the building in Nuremberg where 20 top Nazis are being tried for many crimes.

One in Nuremberg, the principal one, and another also in Tokyo. 28 Japanese war criminals, including former Premier Hideki Tojo, go on trial in Tokyo to answer for the aggressive cruelty which they sponsored. And the prisoners are charged with crimes against humanity and peace.

And in these trials, some new concepts were introduced, particularly the idea of a crime against humanity. A crime against humanity being the intentional targeting of a particular group of people, of civilians, in order to eliminate them. So these trials were held, and they resulted in convictions in many cases. And that was really the beginning of the serious thought about setting down international rules, laws. which no international criminal court or international tribunal was set up that could prosecute anyone using this new range of laws that had emerged from the horrors and the holocaust of World War II. So, in essence, during the Cold War, you just had a big gap, a big vacuum, during which, having established the laws, nobody seemed prepared to act on them. So, essentially, back in the 40s, the laws were established. There was this long period where no one really used them. And then what happened?

period where no one really used them. And then what happened? Well, then the Cold War ended and felt like the outbreak of peace across the world. But in fact, the most terrible fighting in Europe since World War II broke out pretty quickly with the breakup of the former Yugoslavia. with the breakup of the former Yugoslavia. Yugoslavia, much like the Soviet Union, broke up after the fall of communism. And in that breakup, terrible wars broke out that lasted for four and a half years. There was a genocide in Bosnia. So for the first time, all these rules that came into being in the 1940s were actually going to be tested. Now, it's very complicated. We look at a body in Bucha with a Ukrainian man or woman with his or her hands bound. And we think, well, clearly there's been a crime. But to get the evidence, to bring a defendant to court, to go through all the investigation is painstakingly difficult. It is a very slow, painful process. That's been the lesson of the last

20, 30 years that came out of the Bosnian trials. Okay, so how did it work in Bosnia? So much like with the breakup of the Soviet Union, when Yugoslavia broke up in 1992, When Yugoslavia broke up in 1992, its constituent republics went their own way newly independent states, Bosnia, 40% or extend as far as there was any Serb, much like President Putin from very early in the 90s was feeling deeply aggrieved that 25 million ethnic Russians or Russian speakers had ended up outside the Russia that was born at the collapse of the Soviet Union. Okay, so this is a guy who, as you said, very much like Putin, sees this collapsing state and sees his people,

ethnic Serbs who are Christians, scattered around it, and wants to claim rights and territory on their behalf, in this case in Bosnia. So what does Milosevic do? Unlike President Putin, who waited some years to annex territory and ultimately invade Ukraine, President Milosevic did not wait at all. President Milosevic did not wait at all.

He went to war the day that Bosnian independence was recognized in 1992. And he set out to ethnically cleanse wide areas of Bosnia. That's to say, remove any non-Serb population. And his idea was that thereby he could extend Serbia to become Greater Serbia, while at the same time effectively destroying Bosnia at its birth. I went into Bosnia for the first time in 1992, a few months after the war began. I was asked to go cover the war.

And it was one of the craziest scenes I'd ever witnessed. What did you see? Well, I went in on a bus from Belgrade and everyone on this bus was giddy with Milosevic's wild nationalism and visions of Serbs avenging past wrongs against them. And they were singing and they were drinking. And as soon as we got to the Bosnian border, somebody got onto the bus and handed out automatic rifles to everyone on the bus.

Whoa. And on we went into this crazy war. to everyone on the bus. Whoa. And on we went into this crazy war. We went to the Bosnian Serb so-called capital, a place called Pale, P-A-L-E. And then from there, you know, Sarajevo is the capital of Bosnia.

The Sarajevo Winter Olympics had been held only a few years earlier. It's a mountainous area. And we went to the mountains overlooking Sarajevo. And I was taken to positions where Serbian artillery was firing shells down onto the city. Now, you remember what we said about war crimes and the indiscriminate targeting of civilians. This was not an attempt of any kind to hit any sort of military target. It was simply an attempt to terrorize the Bosnian Muslim population of Sarajevo. So at the same time as I was witnessing this indiscriminate Serbian shelling of Sarajevo, in other parts of Bosnia during that summer of 1992, it was far worse. Tens of thousands of these Bosnian Muslims who had been hounded out of their homes were processed through a series of Serb concentration camps gathered around northern and western Bosnia.

Oh. Now, there was a great deal of outrage when news of these Serbian-run camps filled it out. But there was no real reaction from the West or anybody else until 1995, three years later, when the Serbs perpetrated a single crime that finally convinced the world that something had to be done. What was that crime? That crime has a name. Its name is Srebrenica. Srebrenica is a small town in eastern Bosnia where unlike almost all the towns around it in that part of the country, the Bosnian Muslim population had hung on through three and a half years of war until 1995. The Serbs decided enough already.

We're done with Srebrenica. It's a little island in the middle of this greater Serbia we're establishing and we need this population to go. 8,000 Bosnian Muslim men and boys were summarily executed. Whoa. And the women and some of the children were pushed across the lines, mainly to a town called Tuzla, where I witnessed in the summer of 1995, these people arriving in the most desperate states, wailing, talking about what had happened to their husbands, to their sons, pleading with us journalists or indeed anybody to try to help to find them. It was an absolutely desperate situation.

And when I think back to that bus ride three and a half years earlier, this was the endpoint of that madness. And what did that do to the international community? Well, it finally galvanized the international community and particularly the Clinton administration to act. Good morning. I am very disturbed about what has happened in Srebrenica. We are very concerned about the fate of the refugees, and we have been working hard for the last couple of days to determine what options there are to deal with the immediate humanitarian problems,

and we intend to do everything we can on that. At last a decision was taken to use military force and airstrikes by NATO were finally ordered on various Serb positions and as a result of this within days Slobodan Milosevic, the Serbian leader, folded. However, the story was far from over. Milosevic was still in power in Belgrade, and increasingly, the Western world felt that he had to be brought to justice. He had to stand trial in an international court for crimes against humanity and for genocide. It would, however, be a long road to that day.

We'll be right back. Roger, you said it was a long road to get to the actual trial of Milosevic. Tell me about that. What did they do? How did they build the case? Well, it was extremely complicated and on multiple levels. When the war ended in Bosnia, it was 1995, Milosevic remained in power until the year 2000. The possibility of extraditing him for trial before an international criminal court in The Hague until he was out of power was pretty much impossible. Then there was the whole question of how to prosecute him.

Milosevic had never himself set foot in Bosnia. How did you establish a chain of command running up to him from the commanders in the field in Bosnia? How did you establish a chain of command running up to him from the commanders in the field in Bosnia? How did you find the witnesses that were needed to make the case? In the end, there would be almost 300 witnesses used against him. So all this took an enormous amount of time, against him. So all this took an enormous amount of time, and it was extremely complicated. Roger, you said there were around 300 witness interviews. What were investigators looking for in these interviews? Well, they were looking for people who could testify to war crimes, who had been processed through those concentration camps, for example, who had been in Srebrenica and had seen what had happened there. People who could in some way establish the

link between Milosevic and orders that were given in Bosnia. The net was cast very wide. I myself at one point was questioned by an investigator from The Hague. What kind of questions did the prosecutor ask you, Roger? Well, it was relating to one of those camps, and it was a camp that I had found that had been unknown until that point, a camp in the eastern part of Bosnia by the name of Susica. And I was approached by a Serbian commander who had been present at the camp and whose conscience had stirred and had witnessed some of these crimes. So the court was interested

in reaching this perpetrator and establishing the chain of command up from him to whomever had told him to do what he did. So I think this was the case in many of the interviews. It was piece by piece, moment by moment, specific crime by specific crime. So it was a huge undertaking. And Roger, how long did it take for investigators to amass the evidence that they needed to bring charges against Milosevic? Well, it took five, six years. It wasn't until the early 2000s that he was finally brought to the court and charged with these numerous counts of genocide, complicity in genocide, murder, persecution on political, racial or religious grounds. I mean, the list goes on. So it takes five or six years to get Milosevic to a trial for a crime that in a lot of ways seemed very obvious on its face, right? The death and execution of thousands of Muslim men in Bosnia. Yeah, Milosevic was still in power. He was still in power for five years after the end of the Bosnian War. In 2000, Milosevic was ousted, but he's still living in a country called Serbia. Now, here, European politics come in, in that Serbia,

like the other countries in the Balkans, had this target of one day getting into the EU. No way that was ever going to happen if Milosevic was not extradited. So finally, about a year after he was ousted from power, Milosevic was extradited to The Hague. But in a way, it sounds like his extradition is really a kind of almost accident. I mean, it required him losing an election, and it required his country to kind of be looking toward the EU and potential membership to be willing to give him up. Yeah, it required those two things. It required a political change in Serbia, a fairly radical political change. That change did happen. And as a result of that, this court that had been set up eight years earlier, finally had the former leader of Serbia in the courtroom.

And so these proceedings began. They were supposed to last no more than two years. That proved to be a pipe dream. How long did they last? two years. That proved to be a pipe dream. How long did they last? It lasted four years, but it didn't end after four years with a conviction. It ended after four years because Slobodan Milosevic died in his cell. He had a heart attack. And as a result, the conclusion to the whole proceedings was unsatisfactory in that Milosevic died during his trial. However, this was not by any means the end of the matter because in 2011, the military commander in Bosnia who had been present in Srebrenica, General Ratko Mladic was finally brought to trial in the same court in the Hague. And he, after six years, was convicted of genocide and other crimes.

So we're now talking 2017, 22 years after the end of the war in Bosnia. So there were convictions. In Milosevic's case, justice was not carried out to the full simply because he died. Roger, I guess thinking of the story you just told me, it makes me wonder whether these calls for war crimes investigations right now in Ukraine will actually amount to anything. I mean, you have Putin, the leader of Russia, who's not going away anytime soon. It's very unlikely there'd be a change of power there. And even if there were, it's even more unlikely that a new government there would, you know, extradite him, would give him up to the West. I guess I'm left with this question of, is this going to mean anything? Well, I think it means something in the sense that it sets down a marker. The President of the United States calls Putin a war criminal. That doesn't mean, obviously, that he's been convicted of such a crime.

But it brings, in a very forcible way, attention to the fact of the horror of what has been perpetrated. Now, the distance from that horror, wherever it may be in Ukraine to a conviction is, as we've been discussing, a long one. But if the label war criminal sticks to Putin, he's going to be very limited in the places he's able to go because of the web of extradition relationships that exists between many countries. Meaning he'd be stuck in Russia. Yeah, if he leaves Russia, and especially if he leaves Russia once he's no longer a head of state. At some point, he will no longer be head of state, one has to assume. So I don't think, even if it's cumbersome, even if it's long,

even if it's difficult, I don't think that it's pointless. On the contrary, if we simply throw up our hands and say, it's just too difficult, it's just too complicated. Look at Bosnia, it took two decades. Then we'd simply offer impunity for war crimes. Roger, what's the lesson of Bosnia? Roger, what's the lesson of Bosnia? Well, the lesson of Bosnia, as of Ukraine, is that the unthinkable can happen. Europe was lulled at the time of Bosnia into thinking that war had been banished from the continent. And certainly since then, it was lulled into that same state of amnesia. state of amnesia. Peace, however, in terms of the sweep of history, is an exceptional state. It's an unusual state, and it takes great effort to preserve it. The people who were killing each other in Bosnia until they started killing each other were neighbors.

They lived side by side. They were friends. It doesn't take much to inject the virus of hatred. All it takes is for a leader to designate those former neighbors as your enemy and for somebody to start shooting. The virus of hatred is always there, just beneath the surface. There was no need for Vladimir Putin to attack Ukraine. It's not a country that really needs more land. It's by far the largest state on the face of the earth.

But autocratic leaders develop obsessions. Vladimir Putin developed one with Ukraine. And you know what? That's really why these institutions that have been created to make sure that international law can actually be applied to war crimes, to genocide, to crimes against humanity, that people can be held accountable. That is why they are so important. They're imperfect. They're cumbersome. But what's the alternative? Those bodies lying in Bucha, they had families, right?

They had kids. Some justice being brought, even if it's 10 years down the road, that will be meaningful. Roger, thank you. Thank you, Sabrina. We'll be right back. Here's what else you need to know today. On Tuesday, Ukraine's President Volodymyr Zelensky addressed the United Nations Security Council.

Speaking by video through a translator, Zelensky compared Russian soldiers to members of ISIS, saying that, quote, there was not a single crime they would not commit. He said those responsible for the crimes in Bucha should be brought before a tribunal, like the one in Nuremberg that tried surviving leaders of Nazi Germany after World War II. And he predicted more atrocities in Ukraine would come to light and called on the United Nations to hold Russia accountable. And on Tuesday, lawmakers in Oklahoma approved a near total ban on abortion. The measure would make performing the procedure a felony, punishable by up to 10 years in prison

or a fine of $100,000, with an exception to save the life of the mother. It's scheduled to take effect on August 26th. The law will have repercussions beyond Oklahoma. Abortion rights advocates say that around half the patients seen by Oklahoma clinics are from Texas, after a law there last year shut down most abortions in that state. And this week, President Biden will allow millions of federal student loan borrowers to freeze their payments until August 31st. It's the latest extension of a pandemic relief measure that began more than two years ago. Americans owe $1.6 trillion on federal student loans, more than they owe on car loans, credit cards, or any consumer debt other than mortgages. credit cards, or any consumer debt other than mortgages.

Today's episode was produced by Lindsay Garrison, Sydney Harper, and Ricky Nowitzki, with help from Rochelle Bonja. It was edited by M.J. Davis-Lynn and Lisa Chow, contains original music by Marian Lozano and Alicia Baitube, and was engineered by Chris Wood. Special thanks to Andrew Kramer and Carlotta Gall. Our theme music is by Jim Brumberg and Ben Landsberg of Wonderly.

That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow. Thank you.