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The Balkans on Trial

This book assesses the legacy of the International Criminal Tribunal for former
Yugoslavia (ICTY) and examines the conflicting intersection of law and politics
in the search for justice, both thematically and through close analysis of some of
the major trials.
It analyses the related case brought against Serbia and Montenegro by Bosnia
and Herzegovina at the International Court of Justice (ICJ), as well as the Ganic
case in London where the ICTY and ICJ findings were challenged. The book
addresses the following questions:

• To what extent the political climate in which the ICTY was conceived, and
continues to operate, has affected the declared aims of its founders?
• Have political considerations and political correctness, and the perceived
need for political stability and democratic transition, at times proved an
obstacle to the administration of justice?
• Are some of the acknowledged failings of international policy in the 1990s
finding some resonance in more recent court proceedings?

This highly relevant and comprehensive book will be of interest to students and
scholars of political science, international relations, transitional justice, Balkan
area studies, human rights law, international criminal and peace and conflict
studies.

Carole Hodge is a former Research Fellow and Head of Research and Study at
the South-East European Research Unit at the University of Glasgow, UK.
Routledge Advances in European Politics

Uncovering the Territorial Dimension of European Union Cohesion Policy

Cohesion, Development, Impact Assessment, and Cooperation
Edited by Eduardo Medeiros

The Crisis of the European Union

Challenges, Analyses, Solutions
Edited by Andreas Grimmel

Promoting National Priorities in EU Foreign Policy

Czech Republic and the EU
Tomáš Weiss

Italy from Crisis to Crisis

Political Economy, Security, and Society in the 21st Century
Matthew Evangelista

Lobbying Success in the European Union

The Role of Information and Frames
Daniel Rasch

Muslim Attitudes Towards the European Union

Bernd Schlipphak and Mujtaba Isani

The Populist Radical Left in Europe

Edited by Giorgos Katsambekis and Alexandros Kioupkiolis

External Energy Security in the European Union

Small Member States’ Perspective
Matúš Mišík

The Balkans on Trial

Justice vs. Realpolitik
Carole Hodge

For more information about this series, please visit: www.routledge.com/

The Balkans on Trial
Justice vs. Realpolitik

Carole Hodge
First published 2019
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2019 Carole Hodge
The right of Carole Hodge to be identified as author of this work has been
asserted by her in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record for this book has been requested
ISBN: 978-0-415-63870-8 (hbk)
ISBN: 978-0-429-27374-2 (ebk)
Typeset in Times New Roman
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To all the child war victims and their families
Contents

Prefaceix

Introduction 1

1 Genesis of the tribunal 5

2 Teething problems 30

3 Srebrenica: a catalyst for change? 51

4 Post Dayton: genocide and impunity 68

5 Kosovo indictments and sentencing: an exercise

in equalization? 96

6 Self-representation: balancing the rights 129

7 The Šešelj trial: a miscarriage of justice? 151

8 The ICJ judgement in Bosnia and Herzegovina v

Serbia and Montenegro 181

9 Insider critics: the cases of Florence Hartmann and

Frederik Harhoff 214

10 The Ganic case and Serbia’s law courts 235

11 Crimes and punishment: indictments and sentencing

at the ICTY 254
viii Contents
12 The top of the pyramid: Karadzic, Mladic, genocide
and the western role 279

Conclusion 303
Afterword 309

Index 312
Preface

One of the challenges in bringing this book to a close was where to draw the line,
with major trials still ongoing in late 2018, 25 years after the establishment of the
ICTY. Close study of some of the more recent judgements and decisions, more-
over, suggests that some trial and appeals chambers have become increasingly
remote from the compelling testimony of numerous witnesses spanning more than
two decades.
In 1995, people worldwide were seized by the horrendous events at Srebrenica
and looked to the ICTY and the major world powers and institutions for justice. It
was a time when the tribunal was buzzing with energy and hope, albeit with some
trepidation, at the mammoth task it was facing. Yet 25 years on, the trials of some
of the tribunal’s most notorious defendants, Radovan Karadžić and Ratko Mladić,
indicted as early as 1995 for crimes against humanity and genocide in Europe’s
first major war since the Holocaust, linger on at half-mast and mostly away from
the public eye.
The Bosnian war, Europe’s first serious challenge since World War II to what
some like to call ‘European values’, was the catalyst which arguably cast those
values into a quite different perspective.
The legacy of the ICTY is likely to be extensively analysed in legal terms over
time. What follows here is primarily a political analysis of some aspects of the
tribunal’s work, and of the Mechanism which succeeded it, particularly in the con-
text of international policy in the Balkans in the 1990s and the resultant restraints
on the tribunal’s development.
This work has benefited from many discussions with tribunal officials, as well
as politicians, lawyers, regional and international, human rights activists and oth-
ers over the years, some of whom have preferred to remain unnamed. My grati-
tude goes to them all.
Carole Hodge, PhD, LLM
19 December 2018
Introduction

In the Spring of 1993, with tens of thousands of civilians killed and over two mil-
lion displaced, and amid increasingly fruitless negotiations with Serbian, Bosnian
and Croatian leaders in Geneva, London, New York, Belgrade and elsewhere,
the one glimmer of hope was the International Criminal Tribunal (ICTY) at The
Hague, founded to bring to justice the main perpetrators of some of the worst
crimes against humanity in Europe since World War II.
But for some time, it remained just a glimmer. The siege and slaughter continued
for another two-and-a-half years, met by a series of abortive international peace
plans, until the Srebrenica genocide in July 1995, captured by cameras worldwide,
prompted some capitals finally to focus on a more meaningful attempt to end the
war. Even then, despite the indictment of Bosnian Serb political and military leaders
Radovan Karadžić and Ratko Mladić for genocide just days after the fall of Srebren-
ica, neither was arrested. Instead, they were brought secretly into the Dayton peace
negotiations, in which the Serbian president had a leading role, while the ICTY was
sidelined and implicitly snubbed. It was only due to a handful of dedicated people at
The Hague and elsewhere that the tribunal, against all odds, survived and eventually
indicted 161 individuals, including the Serbian president, Slobodan Milosevic, once
he was no longer deemed useful to the international negotiating process.

The Croatian war in 1991, where over 10,000 were killed and the multi-cultural
town of Vukovar fell to Serb-led forces, presaged the Bosnian genocide, where
Sarajevo was laid to siege, hundreds of thousands of civilians were forcibly
expelled or killed and concentration camps set up, and where the process of sys-
tematic rape and torture became the norm in numerous municipalities across Bos-
nia and Herzegovina. International institutions and major state powers were made
aware at the time of the scale of the crimes but failed to act or to form a concerted
international policy to end the slaughter. On the contrary, Slobodan Milosevic,
who was pivotal in both wars, was courted for many years in the apparent hope
that he would order an end to the rampant nationalism he had rekindled in 1987
at Kosovo Polje.
2 Introduction
The Commission of Experts was established by the United Nations (UN) in late
1992, mainly as a sop to public outrage at the apparent inertia of their politicians,
yet was starved of funding and otherwise thwarted by senior UN officials and
(mainly British) politicians and diplomats, and wound down prematurely. Credit
for the volume of material it was to produce during its short duration, laying the
foundation for evidence in several ICTY cases, was due mainly to its chairman,
M. Cherif Bassiouni, and a dedicated group of specialists working with him in
challenging conditions.
The ICTY, established by the UN Security Council under Chapter VII of the
UN Charter, met with similar difficulties but survived and became a fully fledged
institution thanks to the commitment and enthusiasm of its pioneers. In the early
stages of its existence, the opposition in some international circles was not the
only issue to hinder the tribunal. Its officials were working from a virtual blank
sheet, struggling to draw up rules without expert knowledge. The closest prece-
dent was Nuremberg but, due to its reputation for ‘victors’ justice’, it was rejected
as a blueprint.
It was hoped after the Srebrenica genocide that the ICTY would gain momen-
tum and secure more support from the UN, which had created it, and from major
world powers in funding investigations and facilitating arrests. Yet the Dayton
Peace Agreement, which brought hostilities to an end, offered little hope. The
ICTY was excluded from the ‘high table’ at the implementation conferences,
while Slobodan Milosevic and Franjo Tudjman, the Croatian president responsi-
ble for the war between Croats and Bosniaks, were amongst the main signatories.
Reference to the ICTY was omitted from the Dayton final text due to pressure
from Milosevic, signalling to perpetrators that they were unlikely to end up at
The Hague.
Disagreements amongst major world powers on the configuration of post-war
Bosnia’s constitutional arrangement were also unhelpful and resulted in a low-
est common denominator solution – a weak, ethnically divided state with two
separate entities and little power to central government. North Atlantic Treaty
Organization (NATO) forces were brought in to cement the ethnic borders, but not
to arrest indicted war criminals, allegedly for fear of local reprisals. At this time,
over 40 individuals had been indicted but very few were in custody, with implica-
tions for those intrepid enough to attempt to return to their homes.
Politicians who were later to be indicted for genocide enjoyed leading roles in
Bosnia in the aftermath of Dayton, while military commanders, later convicted for
genocide in Srebrenica, remained in powerful positions for several years. Instead,
Dusko Tadić, a prison guard arrested in Germany and transferred to The Hague,
became the first suspect to be tried at the ICTY in a legally significant but lack-
lustre trial. International initiatives to arrest indictees in 1997 turned out to be
less promising than proclaimed at the time, as Karadžić and Mladić remained at
large for another 13 and 16 years, respectively, despite the continuing presence of
NATO troops on the ground in Bosnia.
The indictment of Milosevic in the midst of NATO action in Kosovo was a
significant boost to the tribunal and led to further indictments of Serbian generals
 Introduction 3
involved in the Kosovo war. The task before ICTY Chief Prosecutor Carla Del
Ponte was demanding, but her efforts to demonstrate impartiality and secure
arrests meant unacceptable compromises, including indictments which failed to
stand up in court and weakened the tribunal’s standing. Her fragile indictment of
Kosovar leader Ramush Haradinaj, tried twice at The Hague for comparatively
minor offences and acquitted both times, was compounded by the trial cham-
ber acquittal of Milan Milutinović, a close confidante of Milosevic, and Serbia’s
president during the Kosovo war.
Self-representation tested ICTY credibility to its very core. The Milosevic
experience might have indicated to the tribunal that, for egregious crimes against
humanity committed on a massive scale, self-representation was not a viable
option. The handling of the Šešelj case by the presiding judge is discussed in
some detail, as it exemplifies the extent of abuse of process which can occur to
the detriment of the victims whose justice the tribunal was committed to achiev-
ing. The case also raised questions about witness protection and the accountabil-
ity and impartiality of appointed judges. This was to come to a head in 2018 at
the Mechanism for International Criminal Tribunals in an unprecedented clash
between judges, which also implicitly raised questions over the composition of
previous ICTY trial and appeals chambers.
The ICJ case, whose task was to determine the responsibility of Serbia as a
state for the genocide in Bosnia, was pivotal in establishing the nature of the war
there and the question of reparations payable, if any. The ICJ, unlike the ICTY
which focused on individual responsibility, was in a position to approach the issue
holistically. Yet the Court did not make use of its position, nor did it seek disclo-
sure of the crucial Serbian Defence Council documents critical to forming its
judgement, but merely reflected ICTY jurisprudence in rejecting genocide in the
Bosnian municipalities in 1992.
The cases of Florence Hartmann, former official spokesperson at the ICTY, and
Frederik Harhoff, ad litem judge at the tribunal, raised legitimate concerns about
tribunal practice, and both paid the price: one in a brief prison sentence and the
other in unceremonious expulsion from the ICTY. The judges’ handling of their
respective cases is examined in some detail against the legal backdrop of freedom
of expression.
The arrest of Ejup Ganic moves the trial of suspects in the Bosnian war from The
Hague to London, where Dr Ganic, a former Bosnian president, was arrested in 2010
following an extradition request by Serbia for alleged crimes relating to the so-called
Dobrovoljacka episode, where a number of Yugoslav National Army (JNA) troops
were killed in Sarajevo in early May 1992. Ganic spent nearly five months in deten-
tion or house arrest before being acquitted. The case highlighted some of the irregular-
ities in the Serbian war crimes court, not least in the Jurisic case, and raised questions
over the 2003 Extradition Act, but also about the British government’s motives in
choosing to act on what was clearly a faulty request. The request did, however, reflect
a renewed confidence on the part of Serbia to rewrite the history of the Bosnian war
and was later followed by similar extradition requests for Jovan Divjak in Austria and
Ramush Haradinaj in France for alleged war crimes in Kosovo.
4 Introduction
ICTY indictment procedures have been questioned as much for significant omis-
sions of senior political and military leaders as for their timing and scope in high-
profile cases, while sentencing patterns were often viewed as inconsistent and in
some cases based on controversial plea agreements, most notably that of Biljana
Plavsic. Political pressure and claims of ethnic bias prompted indictments which
attempted to demonstrate the impartiality of the ICTY. But they often lacked firm
evidence and led to acquittals. In 2012 and 2013, a series of controversial acquit-
tals of senior political and military defendants were denounced by international
commentators and survivors on the ground alike, while also challenging aspects
of established ICTY jurisprudence and raising wider political questions.
The first-instance judgements of Karadžić and Mladić in March 2016 and
November 2017, respectively, were generally applauded internationally and seen
as bringing closure to the ICTY as it handed over to the Mechanism. But closer
scrutiny revealed some questionable legal reasoning which would be left to the
appeals chamber to address.
In June 2018, in a dramatic turn of events at the Mechanism, both the Mladić
and Karadžić defence teams secured the withdrawal of several judges from the
appeals benches, including the president, Theodor Meron. In the short term, it led
to the postponement of both convicts’ final judgement, delaying their transfer to
serve their sentences in the harsher conditions of national prisons. It also raised
questions about judicial ethics and the adequacy of the Rules of Procedure. In
the longer term, and most seriously, it opened new channels for rewriting the
Bosnian war.
1 Genesis of the tribunal

In extreme situations, silence is culpability.

– Elie Wiesel1

Introduction
The proposal for an international tribunal had already been mooted as a preven-
tive measure in 1991, and again in early 1992, with the aim of prosecuting war
crimes.2 It only gained momentum, however, in response to worldwide public
outrage following the exposure of Serb-run detention camps in northern Bosnia in
August 1992. The graphic news reports of camp conditions with video footage of
emaciated inmates, combined with the tacitly acknowledged failure of Lord Car-
rington’s yearlong peace conference, underscored the international failure to end
the carnage.3 A new initiative was called for to demonstrate that the crimes would
not go unpunished.
Initially, there was considerable reluctance amongst leading international play-
ers to setting up a tribunal and as an interim measure a so-called Commission of
Experts was established in its place. The Commission served to appease world
public opinion, while creating the impression that something was being done to
address the war crimes, but was beset by obstacles from the outset. It lacked both
resources and funding, and there were disagreements as to its role and purpose
within the UN and amongst major world powers. Also, the practical difficulties
of collecting evidence in a war zone, where the priority was the protection of UN
troops on the ground, were overwhelming.
One of the main difficulties faced by the Commission of Experts (and later
the ad hoc tribunal) was the refusal of leading international players to recognize
the true nature of the war and act accordingly. Instead, over a year into hostili-
ties, major world powers led by Britain and France continued to characterize the
conflict as a civil war, born of ancient ethnic hatreds, with atrocities on all sides.
This assumption of equivalence of guilt between the parties deflected from Serb
responsibility and allayed public concern while facilitating ongoing negotiations
with the main perpetrators, in particular Slobodan Milosevic, the Serbian presi-
dent, and Bosnian Serb leader Radovan Karadžić.
6 Genesis of the tribunal
To view international policy in Bosnia in the summer of 1992 in its full per-
spective, it is worth noting the situation in the area prior to the discovery of the
camps.

Yugoslavia 1991
Ironically, it was the Bosnian president, Alija Izetbegovic, who in the first half
of 1991, together with the Macedonian president, Kiro Gligorov, made the great-
est effort, through a series of ‘Yu-summits’, to hold Yugoslavia together in the
knowledge that its disintegration would be likely to unleash violence in Bosnia
and Herzegovina, and possibly Macedonia.4 The declarations of independence by
Slovenia and Croatia in June 1991, however, compounded by the collapse of Lord
Carrington’s plan for a loose confederation in mid-October 1991, prompted the
Bosnian parliament to vote later that month to declare Bosnia a ‘sovereign repub-
lic’. The aim, according to Izetbegovic, was to ensure equal status for Bosnia with
the other republics in the event of the secession of Slovenia and Croatia.5 During
the conflict in Croatia in 1991, Bosnia proved a vital base for JNA operations,
exacerbating the tension between the ethnic groups.6
Bosnian Muslim leaders at this time were also preparing for resistance in the
case of escalation of the war to Bosnia, in part through the newly formed Patriotic
League, which had a civilian and a military wing, the latter mainly comprising
former JNA officers of Muslim ethnicity. In this, however, Bosnia was faced with
almost insurmountable obstacles. A blanket arms embargo7 imposed on Yugosla-
via by the UN Security Council in September 1991 meant that Bosnia, virtually
landlocked, had no access to the means of self-defence against the might of the
JNA, then one of Europe’s largest armies. Each republic also had its separate
Territorial Defence (TO), but at the end of 1991, an order came from Belgrade to
Bosnian TO staffs to surrender their heavy weapons. This was endorsed by Presi-
dent Izetbegovic to appease the JNA and only rescinded the following March.8
From early 1991, Serbian Autonomous Regions (SAOs) began to be estab-
lished in both Croatia and Bosnia.9 From late August, the JNA participated in
attacks on majority-Croat areas, together with the SAO Krajina special police
(MUP),10 in order to connect Serb-held territory.11 Systematic acts of violence
and intimidation were carried out by the JNA, Serbian paramilitaries and police
against the non-Serb population, with the objective of driving them out of SAO
Krajina.12 On 1 October 1991, Dubrovnik came under siege by the JNA, civilians
came under attack and the city was cut off by land and sea till late December.13
More serious still were the JNA operations in Eastern Slavonia. In August 1991,
the multi-national town of Vukovar came under siege and fell in November, fol-
lowed by a massacre of civilians in nearby Ovcara.14
Two days later, on 20 November, the Bosnian president appealed to the UN for
peacekeeping troops.15 Following the international recognition of Slovenia and
Croatia in December 1991, the situation in Bosnia rapidly deteriorated. JNA tanks
and artillery were withdrawn from Croatia to Bosnia, and heavy artillery posi-
tions were set up around Sarajevo and other large Bosnian towns in the winter of
 Genesis of the tribunal 7
1991–1992.16 The JNA openly favoured Serbs in its personnel policy, with non-
Serb officers heavily pressured to resign. More than 90% of all JNA officers were
now Serb or Montenegrin.17
By this time, the JNA had some 90,000 troops in Bosnia, it controlled most
armouries and munitions stockpiles and could call on over 40 fighter planes, 6
helicopters and hundreds of tanks and heavy artillery. Added to this were thou-
sands more troops stationed in Serbia and a sizeable number of Serbian para-
military groupings. The Bosnian territorial forces numbered about 50,000, but
possessed mainly small arms and, until 1993, just a single tank.18 At the Bosnian
Serb Assembly session of 27 March 1992, Karadžić recommended that, where
possible, territorial units formed by the crisis staffs should be placed under JNA
command. Once the JNA formally withdrew from Bosnia and Herzegovina they
all, including the Serb territorial units, became part of the Bosnian Serb army, or
Vojska Republika Srpska (VRS).19
The international response consisted of a series of abortive ceasefire agree-
ments and setting up an international peace conference as a basis for negotiating a
peace deal acceptable to all sides. The blanket arms embargo imposed in Septem-
ber 1991 was extended to Yugoslavia’s successor states.20

Bosnia, 1991–1992
By early May 1992, large swathes of territory in North-Western, North-Eastern
and South-Eastern Bosnia, and around Sarajevo, had already been taken over
by the JNA in coordination with Serbian paramilitaries and the special police
forces. Attempts at resistance by civilians and forces loyal to the Bosnian govern-
ment varied from municipality to municipality but were largely unsuccessful due
mainly to the disparity in weaponry.

North-Western Bosnia
By the time Bosnia and Herzegovina gained independence in April 1992, a con-
siderable amount of territory in North-Western Bosnia was already under the con-
trol of the JNA and Serb paramilitary groups, following the establishment of SAO
Bosanska Krajina. There is also evidence of detention camps in existence by 30
April.21
The strategy of destruction in the Prijedor municipality (44% Muslim, 43%
Serb, 6% Croat and over 6,000 Yugoslav) had begun over six months earlier,
despite the absence of any threat against the Serb inhabitants.22 Serb officials began
building their own administration, parallel to the legitimate authorities, which
included a Serb police force with secret service functions.23 In the early hours
of 30 April 1992, JNA forces and Serb police took control of Prijedor, setting up
checkpoints, occupying its most important buildings and taking over municipal
administration organs and large companies. Police officers were obliged to pledge
loyalty to the new Serb authorities, and Muslim police commanders were replaced
by Serbs. Non-Serbs were removed from functions in the municipal assembly
8 Genesis of the tribunal
and administration and prohibited from entering the building. Shortly afterwards,
Serb soldiers and reserve police officers levelled the predominantly Muslim old
town with heavy machinery and destroyed the local mosque.24 On 31 May, Serb
nationalists ordered all non-Serbs to mark their houses with white flags or sheets
and to wear a white armband if they left their homes.25
The shifting demographic balance in favour of the ethnic Muslim popula-
tion had become a central issue in the municipality’s political life in the prel-
ude to hostilities. After the declaration of independence in Croatia and Slovenia
in June 1991, Serbian nationalist propaganda became increasingly visible, with
Serbs being encouraged to arm themselves, allegedly to prevent a repetition of
the massacres of Serbs which had occurred in World War II. A large simultaneous
influx of Serbs from Croatia exacerbated the situation.26 In August 1991, Serbian
paramilitaries took over the Mt Kozara transmitter station, and TV Sarajevo was
replaced by broadcasts from Banja Luka and Belgrade.27 The economic situation
began to deteriorate as a result of power cuts and a disruption of traditional ties
to Croatia and Slovenia.28 In September 1991, the Prijedor Territorial Defence
was mobilized and deployed to support the JNA offensive in Croatia. At a second
mobilization on 7 November 1991, it was declared that whoever did not wish
to participate could go home, but would have to surrender their equipment and
weapons, further contributing to divisions between the communities.29
On 19 December 1991, the main board of the Serbian Democratic Party (SDS)
in Bosnia adopted ‘Instructions for the Organisation and Activity of Organs of
the Serbian People in Bosnia and Herzegovina in Extraordinary Circumstances’,
which involved the formation of Serb government bodies, assemblies, executive
boards, administrative organs, courts, public security stations and Serb crisis staff
in Bosnian municipalities.30 On 7 January 1992, Serb members of the Prijedor
Municipal Assembly and local SDS presidents voted to join the Autonomous
Region of Krajina (ARK). Further decisions to reinforce the crisis staff and create
a number of clandestine Serb police stations set the scene for the forcible takeover
of power in Prijedor on 29–30 April 1992.31 The non-Serb population responded
by establishing checkpoints in Kozarac, Hambarine and Brdo.32 The people of
Kozarac (99% Muslim) tried to control the perimeter of their town and organ-
ized patrols of around ten residents armed with hunting rifles. Nonetheless, within
three weeks, Kozarac was taken over by the JNA and Serbian paramilitaries.33
On 29 February and 1 March 1992, coinciding with the Bosnian referendum
on independence, Serb paramilitaries blockaded the municipality building in
Banja Luka and on 3 April set up checkpoints around the town.34 Civilians were
killed, frequent attacks were carried out against property and businesses owned
by non-Serbs, with thousands arrested.35 By the end of 1992, most non-Serbs had
been expelled or fled the region, with those remaining exposed daily to dangerous
tasks, such as digging at the front lines.36
In March 1992, the municipality of Bosanska Krupa (74% Muslim and 24%
Serb) was divided into Serb and Muslim areas, with the areas claimed by Serbs
required to pledge loyalty to the Bosnian Serb Republic. On 19 April, the Serbs
unilaterally proclaimed Bosanska Krupa a Serb municipality. Two days later, as
 Genesis of the tribunal 9
Serb civilians were seen leaving the town, Serb forces attacked with mortars from
surrounding hills. Resistance, organized by members of the police and Patriotic
League, broke down after four days, during which time most civilians fled, and a
number were killed.37
In Prnjavor (71% Serb, 15% Muslim, 4% Croat) in March 1992, 250–300 Mus-
lim men were interrogated and beaten by Serb guards, police officers and sol-
diers.38 During the same month, the municipality of Sanski Most (47% Muslim,
42% Serb, 7% Croat) was divided along ethnic lines. On 17 April, the Serbs took
control of Donji Vakuf (55% Muslim, 39% Serb, 3% Croat), while in Ključ (49%
Serb, 47% Muslim, 1% Croat), two paramilitary groups and a number of JNA
units entered the municipality and organized a Serb territorial unit.39 In Kotor
Varoš (38% Serb, 30% Muslim, 29% Croat) during April and May 1992, pub-
lic institutions, including health and social services, and financial and postal ser-
vices, began receiving their instructions from Banja Luka.40 On 3 April, the Serb
assembly issued a statement that as of 20 April only Bosnian Serb Republic laws
would be in effect in ‘Serb’ Sanski Most. That day, Muslims and Croats, including
judges, company directors and directors of the local radio and health centre, were
dismissed from their jobs, along with Serb managers who had allowed Croats and
Muslims to work in their companies. On 11 April, the Muslim president of the
municipal court was told that he should leave Sanski Most, or his family would be
harmed. On 17 April, the police were divided on ethnic lines, with police officers
ordered to wear the Bosnian Serb Republic insignia to demonstrate their loyalty
and to sign a declaration that they would respect its laws. Following attacks and
intimidation during March and April 1992, many non-Serbs left the municipal-
ity.41 In April, Teslić (55% Serb, 21% Muslim, 16% Croat) was barricaded, road
signs put up in Cyrillic and all non-Serb police officers fired,42 while in Bosanski
Novi (60% Serb and 34% Muslim), the newly appointed Serb police chief dis-
missed all non-Serb officers and sacked non-Serb employees in the municipality.
Later that month in Suhaca, Muslims surrendered their arms, and the villagers
were instructed to move to a nearby field while Serb forces burned houses and
mosques in the village and surrounding hills.43
By May 1992, Serb-run concentration camps were established in Omarska,
Trnopolje, Keraterm, Manjaca and elsewhere. On 15 May, Bosnia’s UN ambas-
sador informed UN Secretary General Boutros Boutros-Ghali, but no action was
taken.44

North-Eastern Bosnia, late 1991/May 1992

Bijeljina (59% Serb, 31% Muslim, 1% Croat) was the first municipality to be
overtaken by Serb forces, when Serb paramilitaries took control of the main town
structures on 31 March 1992. On 1–2 April, armed JNA reservists surrounded the
town, and journalists and European monitors were prevented from entering. At
least 48 civilians were killed during the takeover, most of them shot at close range,
and 3,000 were displaced. 45 The pattern established in Bijeljina was later repeated
in other municipalities in the area. Firstly, paramilitaries would arrive from Serbia
10 Genesis of the tribunal
and intimidate local Muslims, Croats and ‘disloyal’ Serbs. Many non-Serbs would
be killed and, as a result, those remaining would leave their towns and villages.
The JNA would then move in, allegedly to restore peace.46
Bratunac (64% Serb, 34% Muslim) was taken over by Serb forces in early
April 1992, with a deadline of 29 April issued by the Serb authorities for non-
Serbs to sign oaths of loyalty to Serb rule in the municipality.47 In May 1992,
385 non-Serb civilians were reportedly massacred.48 In Brčko, the JNA began
preparations for military operations in February 1992. By the end of April, they
had dug trenches, set up machine-gun nests and moved artillery, weapons and
ammunition stores outside the town. On 1 May, 1,000 Serb forces, including JNA
units, launched an attack on Brčko (44% Muslim, 25% Croat, 20% Serb), using
heavy weapons, tanks and artillery.49 In January and February 1992, 500 ‘White
Eagles’ paramilitaries entered the Doboj municipality (41% Muslim, 39% Serb,
13% Croat), and in March and April, the JNA set up checkpoints there, taking
control of the town on 3 May, aided by police and paramilitaries.50 In Vlasenica
(55% Muslim, 42% Serb), Muslims working in state-owned companies were dis-
missed from their jobs from late 1991. In late April 1992, JNA soldiers took over
Vlasenica, and Muslims were subjected to various disciplinary measures.51 From
early June 1992, large numbers of non-Serbs were detained in the Susica camp.52
In Zvornik (59% Muslim, 38% Serb), two days after a mass exodus of Serb civil-
ians from the town, Serb paramilitaries arrived and erected barricades through-
out the municipality. On 8 April, a combination of Serb forces, partly originating
from Serbia, launched an attack against Zvornik where dozens of civilians were
killed and thousands displaced.53 On 10 April, BBC correspondent Martin Bell
witnessed the rearguard of the forced migration of some 2,000 Muslims and Cro-
ats from Zvornik.54 Žepa, Srebrenica, Konjevic Polje and Cerska were bombed by
aircraft from Serbia on a regular basis from early June 1992.55 By that summer,
Bosnian Muslims in the Drina valley were corralled into four areas, Gorazde, Sre-
brenica, Žepa and Cerska, surrounded by heavily armed Serb forces and without
access to humanitarian aid.56

South-Eastern Bosnia, late 1991–1992

A similar process was taking place in South-Eastern Bosnia. In Višegrad (64%
Muslim, 32% Serb), between late 1991 and early 1992, on JNA orders, territo-
rial units largely comprised of Muslims were ordered to surrender their weapons.
During that period, the JNA organized military training for the Serbs supplied
local Serbs with weapons brought in from Serbia and provided military train-
ing.57 In early April 1992, the JNA Uzice Corps seized strategic locations in the
municipality, resulting in many Muslim civilians fleeing their villages. The fol-
lowing week, there was a brief counter-attack, as Muslim police officers arrested
12 armed Serbs and seized control of the hydroelectric dam, but the following day,
the Uzice Corps retook control of the dam and entered Višegrad. Soon afterwards,
both Serbs and Muslims raised barricades around the town, which was followed
by random acts of violence.58 A joint media campaign between JNA officers and
 Genesis of the tribunal 11
Muslim leaders tried to persuade people to return to their homes, and set up nego-
tiations between the sides to attempt to defuse tensions.59 However, during the
negotiations, a Serb JNA officer was heard to explain to other officers that the
Uzice Corps had ‘clean[ed]’ areas along the Drina river and indicated that an area
with 4,000 Muslims would be ‘clean’ the following day.60 On 15 April, the JNA
Uzice Corps organized convoys to drive out Muslims from the surrounding vil-
lages. On later returning, many found their houses burned or otherwise damaged,
while Serb houses were untouched. The Uzice Corps set up checkpoints in and
around Višegrad, manned by JNA soldiers and local Serbs.61 In a matter of days,
Višegrad went from being predominantly Muslim to almost exclusively Serb.62
On withdrawing on 19 May 1992, the JNA left weapons and equipment behind
for the Serbian paramilitaries.63 On 14 June 1992, more than 60 Muslim civil-
ians were locked up in a house in Pionirska Street by Serb paramilitaries, and the
house was set on fire with all but six burned alive.64 Many others who disappeared
between April and June 1992 were thrown into the river Drina.65
In Bileća (80% Serb, 15% Muslim) in January 1992, all police officers were
required to wear insignia showing their loyalty to the Bosnian Serb Republic,
and those who refused to comply were dismissed from their jobs. Checkpoints
were erected in the municipality in April and restrictions imposed on the move-
ment of Muslims.66 In March 1992 in Čajniče (53% Serb, 45% Muslim), the local
SDS leader and municipal president, Dusko Kornjaca, gained control of the local
armed forces, assumed the presidency of the Čajniče crisis staff and became SAO
Herzegovina defence minister. In April, local Serb authorities dismissed Mus-
lims from positions of public authority and erected barricades on the roads out of
Čajniče, with Muslims required to have documents signed by Kornjaca in order
to leave the town. In April 1992, the crisis staff in Čajniče ordered the arrest of
prominent Muslims. In mid-April, several Muslim civilians were arrested and
detained in a storage container near a Serb checkpoint operated by the Blue Eagles
paramilitary group. In early May, Serb forces, some in JNA uniform, in conjunc-
tion with paramilitaries, occupied Muslim-majority towns in the area by force.
Homes were looted and burned across Western and Central Čajniče.67
In Foča (51% Muslim, 45% Serb) from April 1992, Muslims were dismissed
from their jobs and restrictions were placed on their movements. Just before the
outbreak of conflict on 8 April 1992, Serbs began evacuating their families and
children, mostly to Serbia or Montenegro. On 7 April, Serbs were mobilized and
issued with weapons. On the night of 8 April, Serbs took over the Foča radio sta-
tion, the warehouse of the regional medical centre and of the TO where weapons
were stored, and deployed heavy artillery on elevated sites around Foča, control-
ling JNA heavy weapons, and also the weaponry of the TO. On 8 April 1992
between 8.30 am and 10.00 am, Serbs, including from Serbia and Montenegro,
attacked predominantly Muslim neighbourhoods of Foča, with infantry fire and
shelling, and proceeded to take over the town area by area, securing the town
within a week and the whole municipality ten days later. Large numbers, mostly
civilians, were wounded, and many left the town. Muslim neighbourhoods were
destroyed systematically by Serb soldiers, even after the town had been secured.
12 Genesis of the tribunal
Between 14 and 17 April, civilians were arrested, including several doctors and
medical staff from Foča hospital, and some were severely beaten.68 Muslim busi-
nesses were looted or burned and equipment confiscated. The destruction of mon-
uments, including the Alazda mosque, began in April 1992. From 19 April 1992,
large-scale arrests of Muslim civilian men and women took place throughout the
municipality, with some killed, raped or severely beaten.69
In Gacko (62% Serb, 36% Muslim), in early 1992, Serb reservists and police
erected barricades. Violence against non-Serbs began in March when members of
a local Serb paramilitary unit killed two Muslims. Muslim houses and businesses
were burned, property looted and the Muslim police chief replaced by a Serb.
From April 1992, Serb forces detained Muslims and Croats in Gacko in at least six
locations. In Kalinovik, harassment and physical intimidation of Muslims began
in late 1991. On 20 April, Muslim police officers, including the chief of police,
were dismissed from their jobs, and the following month, Muslim residents were
required to surrender their weapons.70 In Rogatica (60% Muslim, 38% Serb),
a Serb paramilitary unit was formed, and the municipal SDS president, Sveto
Veselinovic, sought the partition of the municipality and division of the police
and territorial army, which Muslim negotiators agreed to in March 1992, in order
to avoid war, which was then implemented. Yet it did not prevent, from March
onwards, armed Serb locals and JNA soldiers, including the Uzice Corps of the
JNA, from robbing, harassing and otherwise mistreating Muslims in the munici-
pality.71 In March 1992 in Sokolac (69% Serb, 30% Muslim), barricades were set
up, and local Serbs appeared in JNA and camouflage uniforms carrying automatic
weapons. All Muslim police officers were dismissed from their jobs, and several
paramilitary units based themselves in Sokolac and the surrounding villages.72

Sarajevo municipalities, 1992

The siege of Sarajevo began on 5 April 1992, but the surrounding area came under
threat much earlier.
In the Ilidža municipality (43% Muslim, 37% Serb, 10% Croat and over 5,000
declared Yugoslav) at the beginning of March 1992, a Serb crisis centre was cre-
ated. Muslim police officers were dismissed from their positions, followed by the
arrival of several paramilitary formations, including Arkan’s men. In Novi Grad
(51% Muslim, 28% Serb, 7% Croat), a Serb municipality was established around
22 February. In March, local Serb leaders threatened to attack Muslims who did
not leave the village. In early May, Arkan’s paramilitaries and the White Eagles
arrived. In Novo Sarajevo (36% Muslim, 35% Serb, 9% Croat) on 1 March 1992,
Serbs began organizing barricades at strategic points in Sarajevo and the sur-
rounding municipalities. The following day, non-Serbs set up barricades. Many
were detained at Lukavica, where detainees were regularly beaten.73 By the end
of April 1992, JNA heavy artillery, rocket launchers, anti-aircraft guns and tanks
fired every evening on targets in Sarajevo. In Ilijaš (45% Serb, 42% Muslim, 7%
Croat) in March 1992, Serb flags were hoisted on the municipal building and
police station, and non-Serb police officers, school, bank and hospital workers
 Genesis of the tribunal 13
were dismissed, while Serb crisis staff took over all major military and civilian
institutions and facilities, including the media. In Hadžići (64% Muslim, 26%
Serb, 3% Croat) from mid-April 1992, JNA reserve units were brought in from
Serbia and Montenegro in liaison with JNA barracks commanders, where they
occupied strategically important buildings and positions.74 At the end of April,
JNA forces shelled Sarajevo and its surrounds, including Bijelo Polje and Novo
Sarajevo.
In Pale (69% Serb, 27% Muslim, 1% Croat), non-Serbs were dismissed from
the police in early March 1992. In March and April 1992, Serb paramilitaries, local
police and reserve soldiers set up checkpoints in Pale which severely restricted
the movements of Muslims. Local armed Serbs assisted at the barricades. In late
March, the Pale chief of police, Koroman, told a Muslim delegation that he could
no longer guarantee the safety of non-Serbs in Pale. In Trnovo (69% Muslim, 29%
Serb) in March and April 1992, Serbs and Muslims both erected checkpoints. By
early April 1992, Serb police officers formed their own police force and hoisted a
Serb flag on the local culture centre which they had taken over as their base. On
26 April, at an SDS municipal board session, the division of the municipal admin-
istration along ethnic lines was called for.75
In early March 1992, in Vogošća (51% Muslim, 36% Serb, 4% Croat and 1,730
declared Yugoslavs), SDS delegates established their own assembly, calling for
the municipality to be divided along ethnic lines, with Serbs controlling the town
centre, important communication links and all local industry The JNA set up
roadblocks around important factories in Sarajevo, including the Pretis artillery
and rocket manufacturing plant in Vogošća, one of the largest in Europe. The
police were divided along ethnic lines and, between 4 and 17 April, a large part of
Vogošća was brought under Serb control by military force. On 2 May 1992, Serbs
surrounded and shelled surrounding villages.76

The city of Sarajevo, April 1992

The siege of Sarajevo began on the eve of the European Community recognition
of Bosnia Herzegovina as an independent state. The Bosnian Assembly building,
Sarajevo Airport and other buildings were seized by armed Serbs, following which
President Alija Izetbegovic ordered the full mobilization of the Bosnian Territorial
Defence and police reserve forces. As thousands of protestors took to the streets
in spontaneous peace marches, heavy machine-gun fire was heard across the city,
accompanied by explosions and shooting into crowds of demonstrators by uni-
dentified gunmen. At least seven people were killed and ten injured.77
On 6 April, the Old Town (Stari Grad) and Bazaar Districts, the main television
tower and the centre for social work were hit. At least 11 were killed and a hun-
dred wounded. Fierce fighting ensued in the battle for control of the airport. The
EC Monitoring Mission office in Sarajevo reported that Serb police had seized the
Interior Ministry police training centre, holding a number of cadets and teachers
hostage. The JNA was reported to have joined Serbian irregulars on two outlying
hillsides in launching rocket, mortar and artillery strikes, with Bosnian forces
14 Genesis of the tribunal
returning small arms fire. A state of emergency was declared.78 On 8 April, the
bombardment of the Old Town began at 5.30 am, lasting two hours, following a
warning from a senior JNA general.79 Intermittent shelling continued throughout
April.
On 2 May, the JNA and Serbian paramilitaries established a total blockade of
Sarajevo, cutting off major access roads, and attempted to divide the city and
destroy the Bosnian presidency building.80 At that time, its six barracks were
surrounded by the Bosnian Territorial Defence. Between 3.30 and 5.00 am, the
JNA shelled the city in the largest single bombardment to date. Many govern-
ment buildings were targeted and the post office and the main telephone exchange
destroyed.81 Forty thousand phone lines were knocked out, including all those
serving the city centre, where the government buildings were located.82
The earlier events represent just a cross-section of war crimes in the Bosnian
municipalities during that time and are confirmed in ICTY judgements. The UN
already had UNPROFOR (United Nations Protection force) troops in Sarajevo at
the onset of war, as their operational base for the UN mission in Croatia. When
Sarajevo came under attack, they pulled out, leaving just a small contingent of
‘peacekeepers’. The UN later struck a deal with the Serbs to control Sarajevo
airport, but it remained de facto under Serb control throughout the war.

International policy, 1992

In Bosnia, the situation differed from some other countries where war crimes have
occurred due to specific international policies which generally favoured the main
aggressor. These policies persisted despite information about wide-scale atrocities
and the existence of camps held at the time by the UN, the Red Cross and Western
government officials and analysts.83
On 14 April 1992, a classified memorandum submitted by US Assistant Secre-
tary of State for European and Canadian Affairs Thomas M.T. Niles to US Deputy
Secretary of State Lawrence Eagleburger described the Serbs’ ‘clear pattern of
use of force, intimidation, and provocation to violence aimed at forcibly parti-
tioning [Bosnia] and effecting large transfers of population’.84 US official Jon
Western and his colleagues had been sifting through up to a thousand documents
on Bosnia daily since the beginning of the war from a multitude of sources and, by
early July, had acquired clear evidence of a vast network of concentration camps
across Bosnia.85 Through satellite imagery, they were often able to predict immi-
nent attacks by Bosnian Serb forces.86 But it was not until journalists’ exposure
of the camps in early August that Niles admitted publicly to prior knowledge of
their existence. State Department spokesman Richard Boucher went further, con-
firming having received ‘continuing reports of abuses, torture and killings’ in the
camps.87 Charles Kirudja, a UN official stationed across the border in Topusko,
wrote to his superiors based on information from refugees crossing into Croatia:

We believe the football field detainees are only a tip of the iceberg involving
the concerted action of local Serbian authorities in BH trying to establish a
 Genesis of the tribunal 15
Serbian Republic of BH, free of Muslims. In that process, the mayors, the
milicija and TDF of Bosanski Novi, acting in unison with their counterparts,
not only in the UNPA (Dvor and Kostajnica), but also with Bosanska Dubica,
Banja Luka, Prijedor, Sanski Most and Ključ. The Serbs appear to be engaged
in a determined process of forcefully disarming Muslims where they are
clearly a small encircled minority, such as in Bosanski Novi, or besieging
their city totally, such as in Bihac. Apparently the football field is the hold-
ing ground where Muslim groups are detained while their houses are being
‘searched,’ the men isolated and transported to concentration camps.88

A confidential UN memorandum, dated 3 July 1992, followed a stream of ear-

lier reports indicating attempts to establish ‘a Serbian republic free of Muslims’.
Concentration camps were reported at four localities where treatment of Mus-
lims was described as atrocious. There was clear frustration at being confined to
writing reports and standing by, as UNPROFOR had no operational responsibili-
ties across the border. The memorandum was first published in a 158-page Hel-
sinki Watch report the following month. The report, based on two trips between
19 March and 19 June 1992, called for an international tribunal charged with
investigating, pursuing, judging and punishing without distinction those responsi-
ble.89 The report alleged that the scope and brutality of abuses far exceeded those
reported, and considered that the systematic executions, forcible expulsions and
shelling attacks offered prima facie evidence of genocide in progress, and called
on the UN to ensure those engaging in genocide be held accountable.90 Milosevic,
Karadžić, Arkan and Šešelj were included in the list, with the claim that there was
sufficient evidence to warrant investigations of war crimes, as well as for crimes
by Croatian forces in Gospic in 1991. Providing a breakdown of applicable inter-
national law, the report alleged that the UN, through the Security Council, was
under an obligation to prevent genocide in Bosnia. It was the first organization to
call on the UN to set up an international tribunal to prosecute those responsible
for war crimes.
The Bosnian president, Alija Izetbegovic, also appealed to the international
community. On 28 June 1992, when French President Francois Mitterand flew
into Sarajevo, Izetbegovic handed him details of 94 places of detention, including
several alleged concentration camps. He asked Mitterand for a human rights mis-
sion to investigate but received no response at the time.91 On 9 July, Izetbegovic
provided a list of suspected Serb detention centres to a Commission on Security
and Cooperation in Europe (CSCE) meeting in Helsinki. On 19 July, he sent a
letter to the US president, George Bush, concerning 57 Serb concentration camps
and, on 29 July, the Bosnian delegation handed a list of camps to the US delega-
tion at a humanitarian meeting in Geneva.92 By this time, over two million people
had been displaced.93
US journalist Roy Gutman had already published information on the Man-
jaca camp in July, the first outside journalist to do so, and wrote a further report
on Omarska on 2 August.94 That same week, foreign TV crews gained access to
three major camps. Graphic coverage by an ITN news team, followed by massive
16 Genesis of the tribunal
international news coverage, propelled Western governments into belated action
to justify their policies. The need to demonstrate at least a modicum of inter-
national will to investigate the crimes and bring the perpetrators to justice had
become imperative.
On 7 August, the UNHCR headquarters in Geneva admitted that officials had
known about the death camps the previous month and reported them in their bul-
letin on 27 July.95 Three days later, the UN Human Rights Commission met at
the request of the Bush administration, and in an emergency session (the first
in its 45-year history), former Polish prime minister Tadeusz Mazowiecki was
appointed as special rapporteur on former Yugoslavia, with a mandate to collect
evidence of human rights abuses and war crimes, and report back in a month.96
It was the first time that a UN representative had a specific mandate to look into
war crimes. In late 1992, Mazowiecki attempted to visit Manjaca but was turned
away by Serb officials. He also sent a team to investigate mass rape charges and
authorized a lawyer to investigate mass graves.97 His appointment was one of the
few positive international measures to emerge at the time, but he was impeded
by lack of funds, denied resources for field officers, and shunned for ‘exceeding’
his mandate. In July 1995, Mazowiecki resigned, considering himself to be little
more than ‘a stenographer of horror’.98 He criticized the UN relief agencies and
peace negotiators, commenting that human rights agencies appeared to be at odds
with the tribunal and peace at odds with human rights.99

The character of my mandate allows me only to describe further crimes and

violations of human rights. But the present critical moment forces us to real-
ise the true character of those crimes, and the responsibility of Europe and
the international community for their own helplessness in addressing them.100

One of Mazowiecki’s main difficulties was the tension between his office and
negotiators Vance and Owen. Despite repeated attempts to develop closer ties
with the negotiating team, neither Mazowiecki himself nor the UN Human Rights
Commission were ever consulted about the human rights component of the Vance
Owen plan. In his sixth report, he stated that ‘peace negotiations should not have
been conducted without ensuring the cessation of massive and gross human rights
violations’.101 This was fundamentally at odds with the Vance Owen strategy of
separating human rights and negotiations. The rift between the institutions was to
undermine efforts to identify war criminals and bring them to justice.
The Vance Owen ‘peace’ conference had been set up following Lord Carrington’s
resignation in August 1992, when it was decided to unify the EC and UN mediating
efforts, under newly appointed leaders, Lord David Owen representing the Euro-
pean Community and Cyrus Vance the UN.102 All attention was now diverted to the
London Conference, held on 26 August 1992. There was a threat to criminalize the
instigators, but Europe was divided, with no common foreign or defence policy.
The German foreign minister Klaus Kinkel proposed creating a criminal tribunal,
warning that ‘it is not just a matter of denouncing these crimes; their perpetra-
tors must know that such acts will not go unpunished and that they will be prose-
cuted’.103 Strong words for public consumption, but no-one in Belgrade was fooled.
 Genesis of the tribunal 17
War crimes and peace plans
By Autumn 1992, women’s and human rights groups had joined with the media
to present a chilling picture of rapes, expulsions and detentions.104 In October, the
UN Security Council established a Commission of Experts, the first UN institu-
tion officially charged with gathering evidence of war crimes in the Balkans; its
mandate gave it the broadest international investigative authority since the UN
War Crimes Commission of World War II.
The Commission of Experts came into being largely due to US Secretary
of State Madeleine Albright as a political substitute for a meaningful military
response to the atrocities. It was to meet with similar difficulties to Mazowiecki’s
mission. Owen and Vance’s peace plan, if it was to achieve any measure of suc-
cess, had to demonstrate that all sides were morally equivalent. The investigation
of war crimes and crimes against humanity, overwhelmingly committed by Serbs
against non-Serbs, would inevitably compromise their negotiations. British for-
eign minister Douglas Hogg was aware of where the responsibility lay.

If . . . the responsibility for those crimes goes as high as . . . I expect, we must ask
ourselves what is the priority; is it to bring people to trial or is it to make peace?105

The Vance Owen Plan was to have a decisive impact on the UN handling of war
crimes. The chairmen were unwilling to link war crimes with the peace process,
confirming the widely held conviction that the pursuit of war criminals was incom-
patible with negotiations aimed at a political settlement.106 Apart from it not being
within the mandate, Owen claimed that linkage would make it impossible for them
to remain neutral and work as credible negotiators. Owen’s position became evi-
dent on the day of the first meeting of the Commission of Experts on 12 Decem-
ber 1992 in Geneva.107 In the room next door, where a meeting of the International
Conference for Former Yugoslavia was in progress, US Deputy Secretary of State
Lawrence Eagleburger was delivering his bombshell speech, calling for a second
Nuremberg tribunal and listing Karadžić, Mladić, Milosevic and other Serb leaders
as war crimes suspects.108 Eagleburger’s speech was carefully worded, however,
and already cleared by the Bush administration and lawyers.109 Since the Demo-
crats were due to take over the following month, the speech was generally viewed
as opportunistic.110 Nor did he pursue the matter with President Bush. According
to the acting Yugoslav desk officer, George Kenney, whose briefing paper had been
altered by Eagleburger’s office to imply that all sides were equal, Eagleburger had
earlier tried to deflect anything which focused blame on the Serbs.111

Reservations about the establishment and proposed agenda of the Commission

of Experts were shared amongst all major world powers, but in different degrees
and for different reasons. The difficulty in establishing a consistent international
approach to the war was to frustrate the work of the Commission, and later the
ICTY, from the outset.
18 Genesis of the tribunal
In the early stages of the war Washington, preoccupied with Iraq and the fallout
from the Soviet Union disintegration, took a back seat, while Britain and France
sought a diplomatic solution.112 When the idea for an ad hoc tribunal for Yugo-
slavia was raised, the United States faced several dilemmas. How could it be
justified to indict the Serbian leadership when they had renounced judgement of
Saddam Hussein? The United States also opposed even the principle of a perma-
nent international court in view of its unilateral military operations in Panama,
Grenada and elsewhere. And, in the Balkans, US foreign policy was guided by
senior officials with long-standing links to the Serbian leadership, to the extent
that the Bush administration favoured the Serbs even after the fall of Vukovar.113
Also, with the US presidential election looming, the Bush administration sought
to avoid involvement by dismissing stories of Serb atrocities and equating them
with Muslim and Croat violations.114 Then there was the fractious US/UN rela-
tionship. The United States owed the UN hundreds of millions of dollars in arrears
and opposed the growth of the UN budget. US leaders also did not trust the UN
sufficiently to invest it with international criminal jurisdiction. Moreover, while
insisting on a clause in the resolution obliging governments to submit information
concerning violations of human rights at regular intervals to the Commission of
Experts, the United States did not welcome the establishment of a tribunal which
could not be dismantled.
European policy in the Balkans was dominated by Britain and France, the only
two European countries with permanent membership of the UN Security Council,
and large standing armies, but it was Britain which took the lead there in opposing
all measures aimed at establishing an effectual tribunal.115 In early 1992, Robert
Badinter, former justice minister under Mitterand and president of the French
Constitutional Council, France’s supreme judicial body, was one of the first to
evoke the necessity to pursue war criminals.116 Mitterand was initially very reluc-
tant, viewing it as a complication to a negotiated settlement. Badinter mentioned
his project to Carrington and Vance but got no reaction, and finally approached
Roland Dumas, then France’s foreign minister, who saw the political advantages
of such a proposal.

I did not want to find myself in the situation of post WW2, when the world
discovers the death camps, and nothing was available for punishing those
responsible. I wanted that at least . . . they would answer to justice, since we
already did not want to intervene militarily in Bosnia. I did not want us to
appear as accomplices to crimes that were still being committed.117

The British government, the most opposed amongst Western powers to an inter-
national war crimes commission, wielded influence at various levels from the out-
set to limit its scope. In 1991, British leaders had assumed a leading international
role in introducing measures which effectively shored up Serb territorial gains in
both Croatia and Bosnia, in suggesting a mandatory arms embargo in Septem-
ber 1991, in deflecting calls by other European leaders for military intervention,
and in proposing and chairing an international peace conference which at best
achieved temporary ceasefires.118
 Genesis of the tribunal 19
It soon became clear that the United States and Britain had differing views on
the purpose of the Commission. Firstly, there was the issue of its name. The US
State Department wanted a commission which would establish a link with the
United Nations War Crimes Commission, set up in 1943 to prepare the way for
Nuremberg, since this would be more likely to lead to prosecutions. The United
States also wanted the Commission to conduct its own field investigations. Brit-
ain, wary of the impact such a commission could have on a negotiated settle-
ment, argued successfully for the words ‘war crimes’ to be omitted from the title,
hence the compromise solution – ‘Commission of Experts’.119 Britain also argued
against the Commission having a mandate to investigate in the field and, while
eventually agreeing, insisted that it should be funded from existing UN resources.
Given the pressures on the UN budget, partly due to the United States’ failure to
pay its dues, compounded by UN bureaucracy, the Commission started out with
no specific funds allocated to investigations. Apart from this, the working condi-
tions in Geneva were Spartan – there was no office to work in, no personnel, no
translators and no computers.120 The British preference was for a passive com-
mittee which would collect and analyse information received, and thus present
little challenge to the ‘peace’ process. The United States had also argued for gov-
ernments to submit material to the Commission, the first within 30 days, then at
regular intervals. In practice, America was initially the only country to hand over
information. Britain submitted documents only in late 1993, following pressure
from a BBC Panorama documentary, exposing Britain’s non-cooperation.
For similar reasons, Britain also managed to block the appointment of M. Cherif
Bassiouni as chairman of the Commission. Professor Bassiouni, a naturalized US
citizen born in Egypt, was a specialist in the law of war, but he was a man of
action and a Muslim, so his appointment was likely to be strongly opposed by
Belgrade.121 A 70-year-old retired Dutch academic, Frits Kalshoven, was eventu-
ally chosen. Bassiouni, relegated to second position, was nevertheless to carry the
Commission. Kalshoven later admitted he had no idea why he was appointed.122
In fact, he was the only one who actually banked a salary; others were paid on per
diem basis, without finance for field investigations or to create a database. In the
event, Kalshoven took medical leave in August 1993 and resigned the following
month. He singled out Britain and France as providing little support for the Com-
mission’s work, commenting that Lord Owen had warned him not to name specific
individuals in his report.123 He also informed the press that ‘authoritative persons’
at the UN Legal Advisor’s Office had instructed him not to pursue Serbian politi-
cians, such as Milosevic and Karadžić.124 He specifically noted that Britain had
refused to supply a combat engineering unit to undertake the exhumation at the site
where 200 hospital patients were believed to have been massacred and buried.125
The Commission (and later the ICTY) were denied access to adequate funding
for nearly two years, and specifically for field investigations, at Britain’s insist-
ence.126 Funding came from the UN regular budget, and later from its legal budget,
and voluntary contributions. This was well below what was required, however, so
in January 1993, Commission members requested a separate fund for voluntary
contributions but were blocked by the UN Legal Affairs Office, which ruled that
UN Resolution 780 made no provision for such a fund.
20 Genesis of the tribunal
These were not the only problems. The mandate was ambiguous since the reso-
lution did not refer to a tribunal, and the methodology was also confused. Resolu-
tion 780 called for evidence of ‘grave breaches’ of the Geneva Conventions, but
this would apply to international armed conflict only, and there was considerable
controversy as to the nature of the Bosnian war.

The Commission of Experts – aims and achievements

Considering the obstacles placed in its path, both on the ground and internation-
ally, the Commission of Experts achieved remarkable results in a short space of
time. A body of material was assembled which facilitated prosecution based on
command responsibility; rape became more precisely defined as a crime of vio-
lence in international humanitarian law, and evidence was produced to indicate
the possible commission of genocide in Bosnia. Crucially, in terms of interna-
tional policy, the Commission concluded that there was no factual basis for argu-
ing a ‘moral equivalence’.127
The Commission commenced work in November 1992 and was forced to wind
up prematurely in April 1994. Personnel and time constraints, along with limited
financial resources, meant that Commission members were not in a position to
perform exhaustive investigations, nor to verify all allegations pertaining to viola-
tions of international humanitarian law.128
Following the untimely resignation of Kalshoven, M. Cherif Bassiouni took his
place and, despite Security Council opposition, managed to establish a compre-
hensive database at DePaul University, recording all reported grave breaches of
the Geneva Conventions and international humanitarian law. He also assembled
50 lawyers and students from across the United States to work for the Commission
on a pro bono basis. The Commission’s database was financed exclusively through
funds provided by DePaul University’s International Human Rights Law Institute,
amounting to over $1 million by 30 April 1994.129 On 26 March 1993, a Trust Fund
was established to assist the Commission, and governments were requested to con-
tribute financial resources or personnel.130 The total amount of contributions to the
Trust Fund amounted to $1,320,631, but became effective only in July 1993.131

The Commission’s 30-page Final Report is backed up by 300 hours of videotaped

testimony and news footage, as well as a 3,200-page, 5-volume annex supporting
its conclusions. One of the main projects of the Commission was an investiga-
tion into war crimes and crimes against humanity in the Prijedor region, which
included extensive interviews with nearly 400 victims and witnesses of events.
The investigators found that

despite the absence of a real non-Serbian threat, the main objective of the
concentration camps, especially Omarska but also Keraterm, seems to have
been to eliminate the non-Serbian leadership. Political leaders, officials from
the courts and administration, academics and other intellectuals, religious
 Genesis of the tribunal 21
leaders, key business people and artists – the backbone of the Muslim and
Croatian communities – were removed, apparently with the intention that the
removal be permanent. Similarly, law enforcement and military personnel
were targeted for destruction . . . non-Serbs were instructed to wear white arm
bands to identify themselves [and] subjected to crimes without the new Ser-
bian leaders attempting to redress the problem. Rape, for example, became a
serious problem for many women who were left alone because their husbands
had been detained.132
(i)t is unquestionable that the events in Opština Prijedor since 30 April 1992
qualify as crimes against humanity. Furthermore, it is likely to be confirmed
in court under due process of law that these events constitute genocide.133

The Commission emphasized that the pattern documented in Prijedor matched

closely similar information received in other regions, including Banja Luka,
Brčko, Zvornik and Foča. The report concluded,

Based on the many reports describing the policy and practices conducted
in the former Yugoslavia, ‘ethnic cleansing’ has been carried out by means
of murder, torture, arbitrary arrest and detention, extra-judicial executions,
rape and sexual assaults, confinement of civilian population in ghetto areas,
forcible removal, displacement and deportation of civilian population, delib-
erate military attacks or threats of attacks on civilians and civilian areas, and
wanton destruction of property. Those practices constitute crimes against
humanity and can be assimilated to specific war crimes. Furthermore, such
acts could also fall within the meaning of the Genocide Convention.134

There were, however, major concerns as to the implications of a genocide charge

within the UN Security Council. This would have carried serious policy implica-
tions: a deliberately conceived plan, aimed at eliminating the group as opposed to
random acts of warfare, placed an obligation on the international community to
punish and prevent the killing and challenged members of the Genocide Conven-
tion to bring Serbia to answer before the ICJ.135
On 20 June 1993, the Commission sent an investigative mission to Sarajevo
to undertake a study of a specific incident in the battle of Sarajevo and conduct
a legal analysis.136 The incident finally selected for in-depth investigation was
the mortar shelling of a soccer game in the Dobrinja suburb of Sarajevo on 1
June 1993. As was the case in other aspects of the Commission’s work, the survey
of the Sarajevo siege was hampered by lack of resources and time. The mission
included a group of Canadian military lawyers and police investigators led by
William Fenrick, with the objective of identifying specific violations of the law of
war, particularly where civilian casualties occurred, and to assess the feasibility of
identifying and prosecuting alleged offenders, especially military commanders.137
The study concluded that the Bosnian Serb forces were systematically targeting
the civilian population of Sarajevo, either as a measure of retaliation or to weaken
their political resolve,138 and that it should be possible to develop a prima facie
case against the commander of the Bosnian Serb forces surrounding Sarajevo
22 Genesis of the tribunal
under the principle that a commander, as a fundamental aspect of command, has a
duty to control his troops and ensure that they comply with the law.139 This focus
on command responsibility anticipated the tribunal work, especially in indicting
and convicting General Stanislav Galic, who had commanded 18,000 military
personnel in 10 brigades during most of the Sarajevo siege. It was not until over
six years later that Galic was arrested and a further seven years before his life
imprisonment sentence was confirmed.

The Commission also investigated the Croat forces’ attack on the Medak Pocket on
9 September 1993. This was a collection of small rural villages and hamlets in Serb-
controlled land jutting into Croat territory, where Croat forces killed or routed the
few Serb defenders and overran the area.140 The Commission found ‘exceptionally
strong support’ for the suggestion that prima facie cases could be developed against
named Croatian senior officers for the wanton destruction of civilian property.141

The charge of rape had not been adequately addressed in international law
enforcement. Although constituting a crime, rape, unlike most codified penal
laws in the world, was not precisely defined under international humanitarian law.
The Commission report gave the process special impetus, concluding that ‘ethnic
cleansing’, sexual assault and rape had been carried out so systematically that they
strongly appeared to be the product of a policy.142
The pattern of reported cases of rape and sexual assault correlated with the
publication of the Warburton Report, commissioned by the European Council in
December 1992. Based on two visits to Croatia and Bosnia, the report, comment-
ing on the systematic nature of the rapes, concluded that

a horrifying number of Muslim women had been raped and this was continu-
ing. . . . Women are understandably reluctant to recall details of the atrocities
done to them and many may refer to their own experiences in the third per-
son. . . . The enormity of the suffering being inflicted on the civilian popula-
tion in this conflict defies expression. Indications are that at least some of
the rapes have been committed in particularly sadistic ways, so as to inflict
maximum humiliation on the victims, on their family, and on the whole com-
munity. In many cases there seems little doubt that the intention is deliber-
ately to make women pregnant and then to detain them until pregnancy is far
enough advanced to make termination impossible, as an additional form of
humiliation and constant reminder of the abuse done to them.143

The Commission had been intending to conduct a full-scale investigation of the

Ovcara grave site, reported to contain the bodies of some 200 Croats taken from
 Genesis of the tribunal 23
the Vukovar Hospital in November 1991, where they were summarily executed
and left in a shallow mass grave. The Commission conducted several reconnais-
sance missions to the areas, discovered the existence of a large number of bodies,
collected some evidence and began exhumation in October 1993. The investiga-
tion proposed carrying out an autopsy to establish identification and the cause
and manner of death, and, in time, the collection of other evidence, including
testimonies, so that criminal responsibility for the killings could be determined.144
The Commission faced both political and logistical difficulties in preparing for
the Ovcara investigation, and were prevented from continuing their work by
representatives of the ‘local Serbian administration’.145 In an effort to obtain the
necessary political assurances, the Commission made nine visits to Vukovar,
Belgrade and Knin between March and November 1993.146 Finally, following a
meeting with the Krajina authorities on 5 September, the Commission believed
it had obtained the necessary approvals in writing to conduct the Ovcara excava-
tion, on the understanding that preliminary site and radiological surveys would
be conducted at an alleged Serb mass grave site in the Pakracka Poljana area.147
On 22 October, Commission representatives were informed that, despite earlier
approval, the ‘Serb Republic of Krajina’ parliament had decided that all activity
at Ovcara be postponed until a political solution was found to the situation in the
former Yugoslavia. After consultation with UNPROFOR, it was decided that to
continue the project would expose personnel to unacceptable risk.148
The agreed preliminary site investigation at Pakracka Poljana was, however,
permitted to take place, with ‘a particularly high level of support from UNPRO-
FOR’.149 The site was alleged to contain mass graves with up to 1,700 bodies.
Despite being examined with considerable care, the Commission found only 19
bodies (16 males and 3 females) buried in nine separate graves south of Pakracka
Poljana. Again, time and personnel resources did not permit the work required to
conduct a criminal investigation and to gather the necessary information.150 No-
one was brought before the ICTY in connection with the Pakracka Poljana deaths.
Following further efforts and a meeting on 17 November 1993 with Goran
Hadzic, the Serb Krajina president, and others, the Krajina authorities agreed to
cooperate in the excavations at Ovcara, starting in March or April the following
year, when the weather conditions improved.151 Early in 1994, the US ambas-
sador to the UN, Madeleine Albright, flew to the Ovcara site and warned the
Serb authorities that they should allow exhumation. It was never started, however,
since the Commission was unexpectedly instructed by the UN Office of Legal
Affairs to terminate its work in April 1994.

Conclusion
By June 1992, there was overwhelming evidence on the ground to indicate that
large-scale war crimes and crimes against humanity had taken place in Bosnia
Herzegovina, as earlier in Croatia. Yet, even following global media exposure of
the concentration camps, apart from the closure of some of them, there was no
effective international action to end the slaughter. The international community
not only failed to bring the war to an end but, despite full involvement on several
24 Genesis of the tribunal
levels – political, diplomatic, military and humanitarian – reinforced its failure
through obstructing the work of the Commission of Experts. The UN had created
a Commission with a crucial task, but without the means to carry it out. It was the
only initiative aimed at recording and bringing the perpetrators to justice, but from
the outset was prevented from functioning fully through lack of funding, lack of
security on the ground and reluctance to forward documentary material. This sent
a signal to the Serb(ian) leadership, as well as future potential aggressors, that
major world powers and institutions prioritized even-handed negotiations with
war criminals over accountability, even when that entailed turning a blind eye to
crimes against humanity. The interests of state trumped those of justice. The UN
image was becoming tarnished, and the Commission and tribunal were accord-
ingly weakened.

Notes
1 Elie Wiesel, Letter to Antonio Cassese, 28 June 1996, in The Path to The Hague, ICTY,
doc.18.
2 Before the war began, journalist Mirko Klarin proposed the establishment of a new
tribunal as a preventive measure. ‘Nuremberg Now’, Borba, 16 May 1991. At the time,
the article hardly made a ripple internationally. In Spring 1992, Robert Badinter, a
former justice minister under French President Mitterand and president of the French
Constitutional Council, France’s supreme judicial body, was among the first to press
for pursuing war criminals in the region.
3 War Crimes in Bosnia-Hercegovina, Helsinki Watch Report, August 1992, p. 15.
4 Warren Zimmermann, Origins of a Catastrophe, Warren Random House, 1996, p. 136.
5 Meeting Between President Izetbegovic and US Ambassador Warren Zimmermann,
ibid., p. 173. In the event of Slovenian and Croatian secession, Bosnia and Herzego-
vina and Macedonia would have been in a minority within the Yugoslav Presidium,
given that four of the remaining six republics were Serbian governed or controlled.
6 Prosecutor v. Momcilo Krajisnik, ICTY Judgement, 27 September 2006, para. 707.
According to the testimony of Milan Babic, the JNA was by then under the control of
Serbian President Slobodan Milosevic. Prosecutor v Slobodan Milosevic, 2 Decem-
ber 2002, T.13744.
7 UN Security Council Resolution 713 (1991), 25 September 1991.
8 See Marko Attila Hoare, How Bosnia Armed, Saqi, 2004, p. 23.
9 Robert J. Donia, Bosnia and Hercegovina: A Tradition Betrayed, Columbia University
Press, 1995, p. 228, and Noel Malcolm, Bosnia. A Short History, Macmillan, 1994,
p. 217.
10 Ministarstvo Unutrasnjih Poslova [Ministry of Internal Affairs].
11 Prosecutor v. Milan Martic, Judgement, 12 June 2007, para. 443.
12 Ibid., p. 428.
13 UN Commission of Experts, Part IV, J.
14 Two former JNA officers were convicted by the ICTY in 2007 for ‘a widespread and
systematic attack by the JNA and other Serb forces against the Croat and other non-
Serb civilian population in the wider Vukovar area’, and for their role in the Ovcara
massacre where the remains of 200 bodies were later exhumed from a mass grave.
See Prosecutor v Mile Mrksic, Miroslav Radic & Veselin Sljivancanin, Judgement, 27
September 2007. UN Under-Secretary General Marrack Goulding prevented the media
from entering Vukovar during the route. As a consequence, the events on the ground
were under-reported in the international media at the time. See Marrack Goulding,
Peacemonger, John Hopkins University Press, 2003, p. 303.
 Genesis of the tribunal 25
15 Susan L. Woodward, Balkan Tragedy: Chaos and Dissolution After the Cold War,
Brookings, 1995, p. 193.
16 Malcolm, op. cit., p. 230.
17 Krajisnik, p. 201.
18 Donia, op. cit., pp. 238–239.
19 Krajisnik, op. cit., p. 285.
20 See Hansard, 2 June 1992, for British Foreign Secretary Douglas Hurd’s comment
on maintaining the arms embargo, and Hansard, September 1992, c.123, for Hurd
eschewing military intervention in Bosnia.
21 Prosecutor v Milomir Stakic, Judgement, 31 July 2003, para. 544.
22 UN Commission of Experts, Final Report, para. 151. Ethnic composition of Bosnia-
Herzegovina population, by municipalities and settlements, 1991. census, Zavod za
statistiku Bosne i Hercegovine – Bilten no.234, Sarajevo 1991.
23 By the end of March 1992, Serb police chief Simo Drljaca had a force of 1,175 secu-
rity officials deployed in 13 police stations. Guest, On Trial, The United Nations, war
crimes and the former Yugoslavia, Refugee Policy Group, 1995, p. 28, Commission of
Experts Final Report, para. 155.
24 Krajisnik, p. 470. Prosecutor v Radoslav Brdjanin, Judgement, 1 September 2004,
pp. 161–166.
25 Nidzara Ahmetasevic, ‘Bosnia’s Unending War’, The New Yorker, 4 November 2015.
26 Stakic, pp. 51–52.
27 The following March, Serb paramilitaries took over the TV transmitter for the area and
broke off reception from Sarajevo and Zagreb to broadcast disinformation about non-
Serb aggression against Serbs. Commission of Experts Final Report, para. 55.
28 Stakic, p. 53.
29 Ibid., p. 56.
30 Ibid., pp. 59–60.
31 Ibid., pp. 65–66, 74, 82.
32 Ibid., p. 85.
33 Ibid., p. 146, Brdjanin, p. 161.
34 Krajisnik, op. cit., p. 376.
35 Margaret Tutwiler, Regular State Department Briefing, 8 June 1992, reported by
Reuters.
36 Human Rights Watch Report, 1 June 1994.
37 Krajisnik, op. cit., p. 393.
38 Ibid., p. 501.
39 Ibid., pp. 438, 444.
40 Ibid., p. 458.
41 Ibid., pp. 509–510.
42 Ibid., p. 535.
43 Ibid., pp. 404–405.
44 See Ed Vulliamy, The War Is Dead: Long Live the War, Bodley Head, 2011, Chapter 4.
45 Krajisnik, pp. 297, 299–301.
46 Ibid., p. 298. See also War Crimes in Bosnia-Hercegovina, Human Rights Watch,
August 1992, pp. 62–74.
47 Ibid., p. 310, and Prosecutor v Miroslav Deronjic, Judgement, 30 March 2004,
para. 72.
48 Hasan Nuhanovic, Under the UN Flag: The International Community and the Sre-
brenica Genocide, DES, 2007, p. 28.
49 Krajisnik, pp. 323–324. Witness account of Serb troops entry into Brcko on 1 May 1992,
Medicins du Monde, L’Enfer Yougoslave: Les victimes de la guerre temoignent, Bel-
fond, 1994, pp. 185–186. See also Prosecutor v Goran Jelisic, Judgement, 14 Decem-
ber 1999, for crimes against humanity in Brcko.
50 Krajisnik, p. 328.
26 Genesis of the tribunal
51 This included the requirement to use passes to move around the municipality, and to
surrender their weapons.
52 Krajisnik, p. 347. Nuhanovic, pp. 29–30. See also Prosecutor v Dragan Nikolic, Third
Amended Indictment.
53 Donia, op. cit., p. 242, Krajisnik, p. 359. See personal account of attempts by Muslim
inhabitants to defend Zvornik, du Monde, op. cit., pp. 177–179.
54 Martin Bell, In Harm’s Way, Hamish Hamilton, 1995, pp. 19–22.
55 Hasan Nuhanovic, then a UN interpreter, describes the bombing as a daily occurrence,
engendering psychological intimidation and insecurity, and that not a single NATO
aircraft was recorded as flying over the area to ensure the no-fly zone was respected.
Nuhanovic, op. cit., p. 41.
56 See Edina Becirevic, Na Drini Genocid, Sarajevo, 2009 (Genocide on the River Drina,
Yale University Press, 2014), for a description of the Serb strategic objective to abolish
the Drina river boundary to Serbia., p. 144.
57 Prosecutor v. Milan Lukic, Sredoje Lukic, Judgement, 20 July 2009, pp. 41, 823, and
Krajisnik, op. cit., pp. 695–697.
58 Lukic, p. 43.
59 Krajisnik, p. 695, Lukic, p. 43.
60 Lukic, p. 45.
61 Ibid., p. 47, and New York Times, 15 April 1992.
62 Ibid., p. 882.
63 Ibid., p. 64.
64 Prosecutor v Mitar Vasiljevic, Judgement, 50. According to an International Red Cross
report, around 500, mainly civilian, Muslims disappeared in Visegrad in May and
June 1992. ICRC, Change in the Ethnic Composition in the Municipality of Viseg-
rad, 1991–1997, 17 August 2001, pp. 17–21, Annex B & Appendix A-B. Ibid., paras.
51–53.
65 Ibid.
66 Krajisnik, p. 608.
67 Ibid., p. 616.
68 Ibid., pp. 623, 628.
69 Ibid., p. 639. Fifteen Muslims were executed in Trnovac, near Foca, in June 1992.
https://trialinternational.org/latest-post/novislav-djajic/
70 Krajisnik, pp. 655–656, 661.
71 Ibid., p. 675.
72 Ibid., p. 687.
73 Ibid., pp. 567, 575–578.
74 Ibid., p. 542.
75 Ibid., pp. 584, 590.
76 Ibid., pp. 595, 598–599.
77 UN Commission of Experts, II. Chronology of the battle and siege of Sarajevo,
April 1992.
78 Ibid.
79 Ibid.
80 See Chapter 10.
81 RFE Interview with Jovan Divjak, Retired Bosnian Army General, RFE Radio Slo-
bodna Evropa, 2 October 2009.
82 Laura Silber and Allan Little, ‘The Death of Yugoslavia’. Gordana Knezevic, then
deputy editor of the Sarajevo daily, Oslobodjenje, witnessed the first trucks in a con-
voy of 17 military vehicles, heavily laden with weapons and soldiers, heading towards
Marshal Tito barracks. Carol Off, The Lion, the Fox and the Eagle, Vintage Canada,
2001, p. 144.
 Genesis of the tribunal 27
83 See Vulliamy, op. cit. Chapter 4, for the refusal of UNHCR and the ICRC to report on
their knowledge of the camps from late May 1992.
84 ‘Bosnia-Herzegovina: Stabilization’, confidential information memorandum from
Thomas M.T. Niles, US Deputy Secretary of State for European and Canadian Affairs,
14 April 1992, quoted in Samantha Power, A Problem from Hell: America and the Age
of Genocide, Basic Books, 2002, p. 264.
85 US President Bush had requested the CIA to analyse Serb activities as early as
May 1992, Guest, op. cit., p. 31.
86 Power, op. cit., pp. 264–268. See also Guest, op. cit. The State Department’s Annual
1992 Report on human rights wrote that abuses in Bosnia ‘dwarf anything seen since
the Nazis and borders on genocide’. But desk officers who tried to force the issue were
rebuked by the State Department. By October 1992, the Bush administration started to
interview refugees, but only inexperienced or junior officers were assigned to the task.
87 New York Times, 5 August 1992.
88 Prosecutor v Slobodan Milosevic, 3 February 2003, T.15424. Charles Kirudja
testimony.
89 Annex to Helsinki Watch Report, War Crimes in Bosnia-Herzegovina, 31 July 1992,
pp. 228–229. For fuller details of the camps see Smail Cekic, Dejtonski (mirovni) Spo-
razum, Legalizacija genocida u republici Bosni I Herzegovini, Vol.I., pp. 357–528.
90 Ibid. See also Prosecutor v Radoslav Brdjanin, 12 February 2003, for Charles Kir-
udja’s testimony. See also IWPR Tribunal Update No.300, 10–15 February 2003.
91 ‘How Europe’s Leaders Let Yugoslav Crisis Get Out of Control’, Wall Street Journal,
1 July 1992.
92 New York Times, 3 August 1992, and Guest, op. cit., p. 32.
93 UN Information Notes, 25 March 1993.
94 Roy Gutman, Death Camps, Newsday, 19 July 1992, 3 August 1992. Gutman invited
the State Department, the House intelligence committee and the White House to com-
ment, but without success. He was later awarded the Pulitzer Prize for his book Wit-
ness to Genocide.
95 Guest, op. cit., pp. 42–43.
96 UN Human Rights Commission Resolution 1992/S-1/1, 14 August 1992.
97 Annex 1 of UN document E/CN.4/1993/50, 10 February 1993.
98 Letter to UN Secretary General Boutros Boutros-Ghali, 27 July 1995, doc. S/1995/625.
99 Guest, op. cit., p. 10.
100 Tadeusz Mazowiecki, Letter to the Chairman of the Commission on Human Rights of
the United Nations, 27 July 1995, published in Bosnia Report, Issue 11.
101 ‘Situation of Human Rights in the Territory of the Former Yugoslavia’. Sixth report of
T. Mazowiecki to the UN Human Rights Commission. UN document E/CN.4/1994,
para. 345.
102 The UN and EC inflated the significance of the Sarajevo Airport relief effort and peace
talks to justify their inertia in Bosnia.
103 The Hague, doc.9.
104 Medicins du Monde, for instance, compared Milosevic to Hitler. Hazan, op. cit., p. 19.
105 Douglas Hogg, Hansard, 10 February 1993.
106 As Vernon Bogdanor later commented in relation to British government policy at the
time, ‘It was the motif of appeasement, as in the 1930s, that if you put pressure on
the weaker side, you can avoid a war or the fighting will end more quickly because
the aggressor will win more rapidly, and wars can always be avoided if the weaker
side gives way to the side making a threat. . . [John Major] was a dangerous Prime
Minister for troubled times, though fortunately Milosevic did not threaten the peace
of Europe as Hitler did’. Vernon Bogdanor, Prime Ministers in the Post-War World–
John Major, Gresham Lecture, September 2007.
28 Genesis of the tribunal
107 Owen, along with British and French officials present, was reportedly incensed, fear-
ing the collapse of the peace plan virtually at its inception. See M. Cherif Bassiouni,
Investigating War Crimes in the Former Yugoslav War 1992–1994, Intersentia, 2017,
pp. 103–107.
108 Bassiouni, ibid. And Hazan, op. cit., p. 30.
109 Michael P. Scharf, Balkan Justice, Carolina Academic Press, 1997, p. 44.
110 Eagleburger evidently sought the grand exit. He was also possibly trying to reestablish
peace with the Arab states following Operation Desert Storm.
111 Patrick Glynn, “No Evil: Clinton, Bush and the Truth about Bosnia”, The New Repub-
lic, 25 October 1993, p. 23. Kenney, who at that time favoured lifting the arms embargo
and taking military action against the Serbs, was the first US official to resign, on 25
August 1992, publicly denouncing the US administration’s counterproductive han-
dling of the war. See Power op. cit., p. 285.
112 See Carole Hodge, Britain and the Balkans, Routledge, 2006, 2010, for analysis of the
British role in the Bosnian war.
113 US Deputy Secretary of State Lawrence Eagleburger was US ambassador to Belgrade
in late 1970s and advised President Bush on Yugoslavia in 1991–2. National Security
Advisor Brent Scowcroft had served as US air attaché in Belgrade in the 1950s. Both
were members of Kissinger Associates, an international geopolitical consulting firm,
founded in 1982. Lord Carrington was also a director.
114 Glynn, op. cit.
115 See Bassiouni, op. cit., pp. xv, 100, 107–108 on Owen’s ‘moral blameworthiness real-
politik proposition’ and p. 112 for the role of Ralph Zacklin, at the UN’s Office of
Legal Affairs.
116 Badinter had presided over the arbitration committee in 1991, aimed at finding an
institutional arrangement to defuse the conflict in Croatia.
117 Interview, 27 October 1999, cited in Hazan, op. cit., p. 15.
118 Britain proposed to the Yugoslav foreign minister, Budimir Loncar, to request an arms
embargo on Yugoslavia at the UN Security Council in September 1991. Hodge, op.
cit., p. 12, citing James Gow, in A. Danchev and T. Halverson (ed.) International Per-
spectives on the Yugoslav Conflict, St. Antony’s Series, 1996.
119 Hazan, op. cit., p. 24.
120 Ralph Zacklin at the UN Office of Legal Affairs acknowledged this. ‘We found a little
bit of money that was in principle reserved for the Law of the Sea to give to the Com-
mission, but it was insufficient’. Hazan, op. cit., p. 27.
121 Britain’s ambassador to the UN, David Hannay, reportedly voted against Bassiouni at
the Security Council, as did France and Russia. See Bassiouni, op. cit., p. 110.
122 Roy Gutman, Witness to Genocide, Element, 1993, p. 58.
123 Owen denied this. See Off, The Lion, the Fox and the Eagle, p. 264.
124 Hagan, op. cit., p. 41.
125 Daily Telegraph, 4 December 1993.
126 Guest, op. cit., p. 9.
127 UN Commission of Experts Final Report 1994, 149. www.icty.org/x/file/About/OTP/
un_commission_of_experts_report1994_en.pdf
128 Ibid., p. 30.
129 Ibid. I. D. 17.
130 Ibid., p. 16.
131 The United States, the only UN Security Council P5 member to contribute, gave
$500,000. Other contributing states included Austria, Canada, the Czech Republic,
Denmark, Germany, Hungary, Iceland, Liechtenstein, Micronesia, Morocco, the Neth-
erlands, New Zealand, Norway, Sweden, Switzerland and Turkey. Ibid. Conclusions.
132 Final Report, pp. 174–176.
133 Ibid., p. 182.
 Genesis of the tribunal 29
134 Final Report, III. B. ‘Ethnic Cleansing’ 129/56.
135 The US government was anxious to avoid labelling the war as genocidal, and it was
ordered that the word ‘genocide’ be proscribed from diplomats’ vocabulary when
discussing Bosnia to avoid triggering implementation of the Genocide Convention.
Richard Johnson, Pin-stripe Approach to Genocide, unpublished paper for National
War College, Washington, DC, 1 January 1994.
136 Final Report, pp. 195–209.
137 Ibid., pp. 195, 197.
138 Ibid., p. 207, Annex VI.A.
139 Ibid., p. 209.
140 Ibid., p. 210.
141 Ibid., p. 214.
142 See Final Report, pp. 232–253, 230. The Commission’s database identified close to
800 victims by name or number. An additional 1,673 victims were referred to, but not
named. There were also some 500 reported cases which refer to an unspecified num-
ber of victims. On legal aspects of rape and other sexual assaults, see Commission of
Experts Report, Annex II, pp. 102–109.
143 Warburton Mission II Report, February 1993, pp. 14, 15. The Report estimated the
number of victims at around 20,000.
144 Commission of Experts Report, IV. Substantive Findings, 265.
145 Ibid., pp. 266, 267.
146 Ibid., p. 268.
147 Ibid., p. 269. Bassiouni, at a contentious meeting with Owen at UN HQ Geneva, was
advised by Owen that he should investigate three mass graves of 200 each (Croats,
Muslims and Serbians), a blatant example of the moral equivalency policy then pre-
vailing. See Hagan pp. 34–35, for a fuller account of the meeting.
148 Ibid., p. 272.
149 Ibid., p. 280.
150 Ibid., pp. 281–283.
151 Ibid., pp. 273, 275.
2 Teething problems

A landmark of a particularly dubious kind was reached in February 1993 when

the Security Council decided to create an international criminal tribunal for the
Former Yugoslavia.
– Ralph Zacklin1

Introduction
On 22 February 1993, the UN Security Council asked the secretary general to
produce options for the creation of an international tribunal.2 The resultant draft
statute was presented to the Security Council on 3 May, and three weeks later, for-
mal agreement was reached to establish the tribunal.3 It took a further two years,
amid continuing bloodshed, rape and torture, before any of the perpetrators were
indicted.
The tribunal was compromised from the outset by its association with a weak
and discredited international response to the Bosnian war. The main issue in dis-
pute was the nature of the organ to be established. There was resistance to an
effective tribunal from both influential quarters within the UN and the major world
powers. The UN Office for Legal Affairs, along with Britain and France, sought
control over the personnel being recruited, and to treat the tribunal as a subsidiary
of the UN, rather than as an independent entity where defendants would be put on
trial.4 Even US Secretary of State Madeleine Albright, who had fought hard for
the tribunal, doubted that anyone would ever be arrested.5 The evidence depended
largely on victim testimonials which were increasingly hard to secure with the
passing of time. The difficulties and delays in setting up the tribunal arose mostly
from political factors, buying time for the main perpetrators, the Serbs, while also
working in favour of the policies of those states which argued for a political solu-
tion, based on an agreement between perpetrators and victims.

International peace process, early 1993

The various international measures introduced in a lame attempt to end the war,
including numerous UN Security Council resolutions, the despatch of thousands
of UN troops to Bosnia in a non-combat role,6 the introduction of an unenforced
 Teething problems 31
no-fly zone and economic sanctions against Serbia, had all proved largely inef-
fective. The sanctions hit mostly poorer Serbs and arguably led to a hardening of
attitudes, fuelled by propaganda from the government-controlled media.
It was into this environment that the Vance Owen peace plan (VOPP), backed
by Britain, France and Russia, was presented to the parties in January 1993.7 The
plan, in which the Serbian president, Slobodan Milosevic, was invited to par-
ticipate, involved the division of Bosnia into ten semi-autonomous multi-ethnic
cantons.8 It was rejected by the Bosnian Serb leadership on 6 May but, for want
of a plausible alternative, was not officially declared dead by Lord Owen till 18
June. Even had it been fully accepted by all sides, the plan would have been
unworkable, since it would have required massive numbers of international troops
to enforce and police the multiple boundaries, provoked further population shifts
and still left Karadžić’s regime dominant.9
Vying with the VOPP was the US administration’s tentative ‘lift-and-strike’
proposition. The newly elected US president, Bill Clinton, had been vocal in oppo-
sition, proposing more bullish methods to bring the Serbs to heel.10 On his arrival
at the White House, Clinton initially attempted to persuade his NATO allies to
agree to remove the arms embargo against the Bosnian government, accompanied
by strategic air strikes on Bosnian Serb artillery positions.11 The main drawback
to this policy was the presence of neutral, lightly armed UN troops on the ground,
most of them from NATO member states, including Britain, France and Canada
(but not the United States), who would be rendered virtual hostages in a combat
situation.
US Secretary of State Warren Christopher’s tour of the European capitals, which
began in London on 1 May 1993, scuppered any notion of the lift-and-strike
option.12 As the ‘new kid’ on the block, Christopher was left in no doubt that
America’s NATO allies would not look kindly on a policy which endangered their
troops. He returned to the United States empty-handed, and soon thereafter began
to redefine the war, ordering his office to begin seeking out ‘Muslim’ atrocities in
Bosnia.13 The British and French ‘even-handed’ policy had prevailed.
Now, though, with the surrender of the US initiative, and the demise of Owen
and Vance’s plan, there was a vacuum in the international Balkans policy. Mean-
while, things were heating up on the ground in Bosnia, the Commission of Experts
was gradually being wound down, and the tribunal still existed in name only.

Bosnia, early 1993

By the end of 1992, the situation in Bosnia had become critical. In the Banja
Luka region, 53,000 out of the 56,000 non-Serbs living there had been expelled
or had fled.14 Hundreds of thousands found temporary refuge abroad, with the rest
mostly corralled into central Bosnia. Those that remained in Serb-held territory
were discriminated against at all levels and exposed daily to dangerous tasks, such
as digging at the front lines.
In late January 1993, the Bosnian Serbs began a major offensive in the Drina
Valley, aimed at eradicating non-Serbs from the area, and taking over the enclaves
32 Teething problems
of Konjevic Polje and Cerska. In Srebrenica conditions were ‘abysmal and dete-
riorated by the day’.15

Several tens of thousands of refugees arrived in and lived crammed inside

the town of Srebrenica and its surrounding area. . . . There was a constant
and acute shortage of food bordering on starvation and hygienic conditions
were appalling. In the winter, people were living on the streets in freezing
temperatures.16

On 12 April 1993, an artillery barrage killed 36 people outright, mostly women

and children, and wounded a further 102, resulting in a massive increase in dis-
placed civilians and those needing urgent support.17 According to Sadako Ogata,
UN Commissioner for Refugees,

the desperate humanitarian situation in many parts of the former Yugosla-

via continues, and in many instances has worsened. Bosnian Serb authori-
ties have consistently delayed and often denied passage to UNHCR convoys
bound for Bosnian government-held enclaves in Eastern Bosnia.18

The enclaves along the Drina Valley relied almost entirely on UN convoys from
Belgrade via Zvornik,19 which were consistently blocked by VRS forces, leaving
many people in the Drina valley hungry, and without medical aid.

In many locations there is virtually no capacity to deal with the problems

growing out of the war – in particular the treatment of victims of rape, torture
and conflict.20

On 16 April, the UN passed a resolution demanding an immediate end to hostili-

ties and the establishment of a ‘safe area’ in Srebrenica.21 Two days later, an agree-
ment was signed between the Bosnian government and Bosnian Serb military
leaders to demilitarize the town, and a company of Canadian UN soldiers moved
into Srebrenica, where there was an estimated 30,000 people without adequate
shelter.22 The social situation was deteriorating, with tension between the majority
refugee population and the minority locals.23 VRS troops turned back UNHCR
trucks carrying tents to Srebrenica, confiscating 98.24 Relief supplies were only
restored to the eastern enclaves following an agreement between UNHCR and the
Pale authorities on 19 May.25 The water supply had been cut off since 5 April. The
source of Srebrenica’s water in Zeleni Jadar was now in Serb-controlled territory,
and there was no sanitation.26
Coinciding with the Srebrenica crisis was the outbreak of heavy fighting
between Bosnian government and Croat (HVO) forces in Central Bosnia and
Western Herzegovina. The HVO attacks began in Prozor in October 1992, but
increased in mid-April 1993, as Bosnian Croat forces sought to establish mili-
tary and political power in the cantons designated as ‘Croat’ under the Vance
Owen plan. Multiple towns and villages came under prolonged military assault,
 Teething problems 33
including East Mostar, Capljina, Stolac, Gornji Vakuf, Jablanica and elsewhere,
where men in many cases were separated from women, children and the elderly,
resulting in numerous civilian deaths, and affecting the UN aid flow. On 16 April,
over 100 Bosniaks were massacred in the village of Ahmići. In Mostar the follow-
ing month, shelling by HVO forces began in earnest, with East Mostar remaining
under siege till the following April. Thousands were deported to the infamous
Dretelj concentration camp, and other detention centres.27
Apart from the sharp upsurge in casualties, the new hostilities between Croats
and Bosniaks fudged the situation on the ground, as Serbs were now no longer
seen as the sole aggressors. There were atrocities on all sides, as Douglas Hurd,
Britain’s foreign secretary who had a leading role in the international appease-
ment policy, was prompt to announce.28 This was not simply a civil war, however,
nor should a moral equivalence have been drawn. The reasons for this new front
in Bosnia were complex, and in no small part exacerbated by the Vance Owen
plan which politically and territorially favoured the Croats, prompting extremist
elements, supported by the Croatian government, to claim power over territory
allocated to ‘Croat’ designated areas.29
The impact of international sanctions policies on Serbia had seriously affected
services and the prices of basic commodities, augmenting the number requiring
aid, and therefore impeding the implementation of relief assistance to the trauma-
tized victims of conflict.30 Much of this was channeled, with UNPROFOR assis-
tance, to the Serb-controlled areas of Bosnia, and to Serbia. Banja Luka, under
the control of the authorities in Pale, had not undergone any shelling, and had no
front line and few refugees to contend with, yet was being supplied with a steady
flow of aid from the UN depot in Zagreb.31 At the same time, the Bosnian Serb
terror campaign against the non-Serb minority in the Banja Luka region continued
unabated, with many killed, harassed or evicted by force, and UNHCR staff there
had their movements restricted.32
The international community was forced to take stock of the situation and seek
a fresh approach. Meanwhile, the newly established tribunal at The Hague was
faring little better.

What kind of tribunal?

The creation of the ICTY in late May 1993 was announced with much aplomb.33
The UN secretary general declared that ‘for the first time since the Nuremberg
Tribunal, war criminals will thus know the sanction of international law’ but a
European diplomat who preferred to remain anonymous had a less sanguine view:
‘When we don’t have the desire to make war, we find substitutes, which doesn’t
necessarily mean that we give these substitutes the means to really exist’.34 The
UN by now had a tarnished image and, as a result, the tribunal, like its predeces-
sor, was severely compromised from the outset.35
Differences between the United States and other Permanent Five (P5) mem-
bers of the Security Council soon began to emerge, compounded by divisions
within the United States itself.36 Some in the Clinton administration wanted to see
34 Teething problems
justice done, but for many in the US the tribunal represented moral legitimacy and
political authority, while avoiding putting troops on the ground.37 In France, it was
hoped that the tribunal would allay public rancour.38 The British government, on
the other hand, had difficulty in accepting the idea of a war crimes tribunal at all,
viewing it as conflicting with achieving a negotiated solution between perpetra-
tors and victims.
A more ominous complication was the bid by Russia, then president of the
Security Council, to take over UN policy in Bosnia. Russia had demonstrated
its support for the Bosnian Serbs and had the potential to paralyze the Security
Council.39 In early April 1993, Russia proposed that the tribunal be administered
by a sub-group, including the CSCE and parties to the conflict, providing an open-
ing for endless delay.40 On 18 May Russia’s foreign minister, Andrei Kozyrev,
produced a plan which included the establishment of the war crimes tribunal and
the creation of safe havens in Eastern Bosnia. This formed the basis of a 13-point
plan adopted by the United States on 22 May, representing significant concessions
to the Serbs.
Following Security Council resolution 808 of 22 February 1993, the Office of
Legal Affairs under Ralph Zacklin, deputy UN Legal Counsel, was tasked with
presenting options for the establishment of the tribunal. There were basically two
options – either to draft a convention, or to create a tribunal under the peace
enforcement provisions of Chapter VII of the Security Council. The second option
might have less global appeal but would be binding on all governments and could
be voted more quickly through the Security Council. On the other hand, it risked
losing support from some of the non-aligned and Islamic states, consisting of over
three-quarters of the General Assembly members.
Then there was the thorny question of funding. The United States, the UN’s
largest contributor, was committed to addressing the war crimes, but with consid-
erable arrears of payments to the UN when Clinton took office in 1993, was not
best placed to argue the tribunal’s case. The Clinton administration’s determina-
tion to cut costs at the UN also conflicted with its support for pursuing war crimi-
nals. The anomalous position of the United States in the process of establishing
the tribunal entailed a number of concessions and trade-offs.41 Another poten-
tial obstacle was the UN Advisory Committee on Administrative and Budgetary
Questions (ACABQ), a General Assembly body which had earlier cut into the
Commission of Experts’ budget and would need to agree the proposed budget for
the tribunal.42
British officials proved particularly obstructive. Having curbed the power of
the Commission of Experts, the British delegation, although superficially endors-
ing the tribunal, began to undermine it behind the scenes from the outset. In
March 1993, Britain submitted a confidential ‘non-paper’ to the UN Secretariat,
questioning the Security Council’s authority to set up the tribunal. It also argued
that the cardinal principles of international law were not always clear and should
be omitted from the tribunal statute.43 The first principle denied immunity from
prosecution to heads of state. The UK was alone in its concern that the tribu-
nal would lead to the indictment of the Serbian president, Slobodan Milosevic,
 Teething problems 35
which would compromise British policy.44 On the basis of ambiguity, Britain also
attacked the second principle, which does not allow individuals to escape respon-
sibility by claiming that they acted under the orders of a superior.45 The British
‘non-paper’ also argued that it was preferable for war criminals to be prosecuted
at national level, but without taking into account the suitability of the national
courts to try their own defendants. The ‘non-paper’ had the potential not only to
bog judges down in endless debating of legal finesses but also implicitly ques-
tioned how well certain crucial legal principles were grounded in customary law.
The objective was clearly to marginalize the tribunal and ensure it was tied up in
debating accepted principles of international law, and then rendered superfluous
once national trials began. Britain was later accused by Human Rights Watch
(HRW) of ‘delaying and obstructing’ the tribunal’s ability to function.46
The international paralysis was evidently noted by Ratko Mladić and his forces.
According to the ICTY president, Antonio Cassese, UNPROFOR reports in the
first weeks of the tribunal’s establishment noted Serb officers’ anxiety over the
creation of the tribunal. This was soon to recede.47

International peace efforts, May 1993–July 1994

Following the collapse of the Vance Owen Plan, the international negotiators
made several abortive attempts to reach agreement on the way forward. In early
May 1993, in a knee-jerk reaction to the VRS encroachment on the enclaves,
Gorazde, Tuzla and Žepa were also declared ‘safe areas’ by the Security Council,
as well as Sarajevo and Bihac, which continued to be shelled.48
David Owen and a former Norwegian foreign minister, Thorvald Stoltenberg,
Cyrus Vance’s successor as UN representative on the International Conference on
the Former Yugoslavia (ICFY), began to promote a new plan to divide Bosnia into
a confederation of three ethnic regions. Despite the first plan having been rejected
by the Serbs, the co-chairmen conveyed the impression that the Bosnian govern-
ment was the more intransigent, a cynical appeasement tactic, pressurizing the
weaker side to accept an agreement which favoured the aggressors.49
To this end, Owen and Stoltenberg brought into negotiations Fikret Abdic, a
Muslim who controlled the northern part of the Bihac enclave, and traded with
the Karadžić regime in violation of UN sanctions. Later that year, Abdic was to
sign an agreement with Karadžić in Belgrade, in Milosevic’s presence, citing the
authority of the London Conference, to declare that all war criminals would be
prosecuted locally, that is to say, either in Republika Srpska or the Autonomous
Province of Western Bosnia.50 As well as weakening the Bosnian government
and forcing Izetbegovic into signing the latest plan, the co-chairmen’s support of
Abdic undermined the tribunal.51
Despite voicing support for the tribunal in late 1992, Owen acted in other
ways to impede its development, marginalizing both UN rapporteur Tadeusz
Mazowiecki and the Commission of Experts, and refusing to press UNPROFOR
for field support for the investigations. According to the UN special rapporteur for
minorities, Asbjorn Eide, the whole tenor of the peace process, in its neutrality,
36 Teething problems
had accelerated ethnic ‘purity’, elevating the role of the Bosnian Serbs and Croats,
while undermining the Bosnian government.52

Election of judges
The election of tribunal judges took place on 17 September 1993, before the cre-
ation of a prosecution team, thereby reversing the Nuremberg process. This was
potentially problematic since without prosecutions the judges were superfluous, as
well as costly. Some of them lacked courtroom experience, and there was no Mus-
lim, although four judges came from Muslim-majority states (Malaysia, Nigeria,
Egypt and Pakistan).53 It was informally agreed that no candidates from countries
perceived as ‘partial’ in the Bosnian war, or individuals involved in the peace pro-
cess, should be accepted. Britain did not put forward a candidate, ostensibly because
it had already proposed a prosecutor (John Duncan Lowe) but possibly also because
it feared rejection due its controversial role in the war. But former governor-general
of Australia, Sir Ninian Stephen, was elected, although Australia’s candidate was
British born, a member of the Privy Council and held several British knighthoods.54
On 17 November 1993, at the first plenary session of the ICTY, Antonio Cas-
sese was elected president of the tribunal. A professor, internationalist and activ-
ist, with a career in public service, Cassese unlike most of the judges viewed
the tribunal as a precursor to an international criminal court and was prepared
to confront the politicians. Co-architect of the European Convention on Torture
(1987), Cassese viewed the law as a tool for social transformation and justice.
Initially, he believed in the political will of international leaders. Later he was to
call himself naïve.55
With no funding or resources, the judges were prepared to go home and wait
till the tribunal was more fully established. As one judge commented, they had no
offices, no statutes, no prison, no accused, no logistics, not even a prosecutor.56
The tribunal’s budget had not yet been approved by the UN, so the judges were
paid per diem. Also, the fact that the tribunal was unable to engage anyone for
more than three months seriously affected the ability to secure high calibre legal
staff. The staff, meanwhile, worked in a meeting room and offices at the Palace of
Peace in The Hague, which they were able to rent for just two weeks.57
At a conference at the University of Connecticut before US diplomats, Cassese
made his position clear:

If in one or two years there are still no accused in the dock, it would be better
that the judges pack their bags and go home. Our duty will be to tell the UN,
and the Security Council in particular, that our mission ended in failure and
that we do not intend to be the alibi for the political impotence of the inter-
national community.58

Rules of procedure
In November 1993, the judges began work on drafting the rules. The challenge
was to present a coherent set of procedures, incorporating the different world legal
 Teething problems 37
systems, while demonstrating a clear commitment to due process, thus distin-
guishing the tribunal from its predecessors in Nuremberg and Tokyo, which have
often been criticized as ‘victors’ courts, providing few guarantees for defendants.59
In essence, this meant achieving a fusion of two very different legal systems –
the common law adversarial system and the civil law inquisitorial system, which
would reflect not only the composition of the judiciary but also demonstrate the
international nature of the tribunal.60 Also, there was very little precedent for guid-
ance, with the Nuremberg and Tokyo rules having been short on substance.61
Under the Anglo-Saxon common law system, the prosecutor and defence argue
the case before a jury, with many guarantees provided to defendants who are
assumed innocent until proven guilty, and given access to the evidence of the
prosecution. In the civil law system generally prevailing in Europe, the judge
leads the investigation and decides what evidence to include, and whether it
will be made public. Witnesses may never need to appear in court, if the judge
so decides. Many Europeans consider that, under the common law system, the
accused are provided with so many guarantees that a conviction is often virtually
impossible to achieve. On the other hand, common law lawyers often argue that
due process and the rights of the accused are paramount, even if this involves a
protracted trial. This position is also supported by fundamental human rights law
as laid down, for instance, in the International Covenant on the Protection of Civil
Rights. Overshadowing this, however, is the pervasive problem of obtaining state
cooperation.62
In practice, it was the adversarial approach which the judges mainly adopted,
possibly reflecting the dominant influence of the United States at that stage,
although trial by jury had been dispensed with.
One of the issues seen as a test case for the tribunal was the handling of rape
cases. Here, context was imperative. The definition of rape in many legal systems
as the absence of consent, backed by a witness statement and corroboration, was
inappropriate in the circumstances prevailing in the former Yugoslavia, where
coercion and violence were the norm. Rape was accordingly omitted from the
first draft of the rules but, in response to claims that this would fail to safeguard
defendants’ rights sufficiently, the judges later amended the rules to allow for a
limited admission of consent.63 It was also important to confirm the legal principle
of command responsibility.
Plea bargaining was initially not included but, after much debate, with the
United States opposing Cassese, a compromise was reached, and the tribunal
agreed that cooperation should be taken into account in deciding sentence.64 This
was critical in the case of Drazen Erdemovic who received a reduced sentence in
return for testimony against Mladić and Karadžić in Srebrenica.
The contumacy debate also raged, with a clamour for the provision of in absen-
tia trials, in light of the unlikely prospect of arresting suspects in an ongoing
conflict and extraditing them to The Hague.65 In some civil law systems, trials in
absentia are permitted. The continental judges saw this as an essential element in
stigmatizing war criminals, especially in view of the difficulty in issuing indict-
ments and arresting high political and military officials. The contumacy doctrine
would allow them to try and convict criminals in their absence, which would be
38 Teething problems
effective politically in discrediting an indictee’s status as a respectable negotiator
in the peace process. The common law judges feared a trial without a defendant
would conflict with the notion of due process and turn the court into a legal circus.
In the event, it was the presence of some of the major indictees in court which did
just that. Judges on both sides feared the court being discredited, but for different
reasons.
In 1999, a Committee of Experts, engaged by the UN to assess the record of the
tribunal, concluded that the civil law system may have been more appropriate in
the Balkans context.66

The Statutes are largely, although not entirely, reflective of the common law
adversarial system, and the future evolution of the Tribunals’ procedural
jurisprudence, while necessarily complying with their Statues, is apt to adopt
aspects of the civil law model . . . some civil law models can doubtless deal
with criminal law cases more expeditiously than the common law adversarial
system. Since all the accused before the Tribunals are from civil law back-
grounds, it could hardly be objectionable to them.67

Another problem was that judges knew little or nothing of the Balkans when they
arrived at The Hague and, in focusing on the fairness of the rules, tended to lose
sight of the context, namely, an ongoing war with mounting atrocities, resulting
in a focus on procedure, almost impenetrable to the uninitiated, and therefore dif-
ficult to communicate. ‘The ICTY is being crushed under a slab of narrow legal-
ism’, according to one judge.68 Another judge from a common law background
opined that, in the unique circumstances of the ICTY, the civil law model might
have been better suited to its work.
The judges were also under the misapprehension that UNPROFOR would be
policing the arrests. ‘Naively we thought that if the Security Council had created
a tribunal it would provide us the means to work’.69 Since the tribunal was created
under Chapter VII of the UN Charter, which authorizes the use of force in the
interests of international security, this was an understandable assumption. Five
years later, when judges were interviewed by a UN panel of experts, they agreed
that the single most important obstacle to effective functioning of the tribunal was
the lack of cooperation by Republika Srpska and Serbia. With few exceptions,
indictees in custody were relatively low-level miscreants whose alleged crimes,
although serious, might have been better tried in national courts. Lack of state
cooperation (unlike at the Rwanda tribunal) impeded the availability of evidence
and witnesses, affecting the length of investigations and trials. Unavoidable early
political pressures on the Office of the Prosecutor (OTP) to act against perpetra-
tors of war crimes led to the first trials being against relatively minor figures,
comparing unfavourably with the Rwanda court where senior figures were more
promptly arrested and brought to trial.70 Trials of low-level figures failed to dem-
onstrate the resolve of the international community and did not draw world atten-
tion sufficiently to the command structure governing the crimes.
 Teething problems 39
Eleven judges in search of a prosecutor
The two most burning issues in getting the tribunal working, however, were the
election of a chief prosecutor and the budget.
UN Secretary General Boutros Boutros-Ghali had initially nominated the
Commission of Experts chairman, M. Cherif Bassiouni, as ICTY prosecutor in
August 1993. But the UK led a strenuous opposition, arguing that Bassiouni
lacked prosecutorial experience and administrative skills, and was too victim-
oriented and biased, as he was a Muslim.71 The British also reportedly blocked
Bassiouni because they feared he would ‘quickly bring charges against the Serbs’
and so complicate Owen’s efforts to negotiate a peace agreement.72 An informal
Security Council vote was divided 7–7, with one abstention. The United States
then tried to broker a deal for Bassiouni to be appointed deputy prosecutor, but
the other permanent members of the Security Council opposed him.73 The United
States, which had voted in Bassiouni’s favour in the first round, deferred to the
UK. The British had, in the meantime, succeeded in persuading council members
that the choice of prosecutor should be by consensus rather than election. This
decision was primarily responsible for the subsequent delays in appointing the
prosecutor.74
Eventually, in Autumn 1993, Ramon Escovar-Salom, the attorney general of
Venezuela, was chosen as the tribunal’s first chief prosecutor. In late January 1994,
however, Escovar-Salom announced that he would not be taking up the post after
all. His timing was unfortunate, coming as it did just a month after the decision
to wind up the Commission of Experts. It was to take a further five months for
the Security Council to agree on Escovar-Salom’s replacement. Meanwhile, just
days after his withdrawal, on 5 February 1994, one of the worst atrocities of the
Bosnian war occurred when a mortar shell killed 68 people at the Markale market
in Sarajevo.
By June 1994, there was still no chief prosecutor, and the acting deputy pros-
ecutor, Graham Blewitt, had little job security and faced bureaucratic obstruction
in his attempts to create a prosecution team. He recalled the period as ‘one of the
worst experiences of my life’.75
The world by now was becoming distracted by events in Rwanda.
It was perhaps at this point that the United States realized the potential politi-
cal mileage of the tribunal, both in marginalizing ultra-national politicians in the
peace process through indictments and in being involved without having to put
in troops. It decided, therefore, to despatch 22 high-level functionaries, Penta-
gon military analysts, CIA intelligence specialists and lawyers, to the tribunal
for two years, from 13 June 1994, forming the core of the OTP, the effectiveness
of which, in the common-law adversarial system, was essential to the tribunal.
While this move was welcomed by the interim prosecutor, Graham Blewitt, the
UN headquarters in New York regarded their arrival with dismay and insultingly
forced them to sign a document respecting ICTY confidentiality. The move was
not appreciated in European capitals either. The United States also offered $3 mil-
lion computer equipment. This equalled the voluntary contributions so far, 90% of
Other documents randomly have
different content
quartermaster's and see if you find your papers; if not I will give you
some that will carry you through. I ran across the street, asking the
quartermaster if I did not leave my furlough on his desk that
morning. He opened a drawer and handed me my paper. I thanked
him and reported my find to Capt. Beebee, who said, I know you are
alright, you can go. We shook hands and I went my way to the fair
ground hospital for the night to make a new start in the morning. Dr.
Crawford seeing me said, I thought you had gone to Macon. I
answered that I had gone a part of the way and was brought back
under guards. How was that? So I recounted to him all the
circumstances and illustrated with a musket the picture of the guard
getting out of my reach. Dr. Crawford laughed till he cried. Well you
had a time of it, said he. I sure did, and half of my permit is out. He
said, Well go and stay as long as you like it, but not too long. He
wrote me another permit and I again made for the train leading to
Macon. This time the guard did not come aboard inspecting papers,
but the train on arriving at Griffin was entered by the guards and
papers were shown. I was sitting by the window of my coach when I
heard some one say "Sergt. there is the fellow, the same fellow,"
pointing at me. I had not noticed the Sergt. at first as I was looking
above and beyond him, and I saw him standing right close beside
the train, in front of the window. I put out my head to speak to him;
he had a bandage around his forehead and both of his eyes were
inflamed and discolored. I said to him, Sergt. are you hurt? He did
not reply, so I said, I am sorry for you, the next time you want to
have some fun in the bucking, gagging line you try some one else
who likes that kind of sport better than I do. The train departed and
nobody even looked at my papers that day. I arrived at Macon a day
after the feast, but had a pleasant day anyhow.
 CHAPTER XXII.
Before the battle of Resaca Dr. Crawford was ordered to move his
hospital further into the interior, so he located at Vineville, a suburb
of Macon. He pitched his buildings in front of Mr. Burrell Jordan's
premises and sent me again on a foraging expedition. I came again
home to Washington County, expecting to make headquarters at the
home of Mr. Benjamin G. Smith, where I was always welcome. Mr.
Smith however, at that time seemed to be very much disturbed and
not in his usual pleasant and cheerful mood. I asked him the cause
of his troubles; he handed me a slip of paper just received from
Lieut. Stone, recruiting agent at Sandersville, to be sure and report
without fail at Sandersville on the following Thursday to be mustered
into service. Mr. Smith was a widower; his wife had died a couple of
years previous, leaving him an only daughter about four years old.
Mr. Smith was the owner of about one hundred slaves and a very
large plantation. He remarked to me, Hermann, I do not mind going
to the front, but what is to become of my dear little Jenny among all
those negroes; this is more than I can stand. Mr. Smith was a great
benefactor to the indigent widows and orphans, and soldiers'
families. He contributed unstintedly to the wants of those at home
whose male persons were at the front fighting the battles of their
country; in fact he ran his whole plantation in their interest, making
thousands of provisions which he distributed among them as they
stood in need and without remuneration. This was the period of the
war when everybody able to bear arms was called to the front, and
the saying was, "The Government is robbing the cradle and the
grave." Sherman was advancing; Johnston was falling back; the
people were clamorous for a test fight, General Johnston could not
see the advantage of the same and still kept retreating. The battle of
Kennesaw mountain was hotly contested, with severe punishment to
the enemy but Johnston withdrew and thus fell back to the gates of
Atlanta. Referring again to Mr. Smith, I told him I thought I had a
solution to his troubles. I said, Carry your little girl to Mrs. Francis,
your sister; she will take care of her. This is only Tuesday, we will run
up to Macon tonight, and I will plead your cause before Governor
Brown, who had established his headquarters there. I think it worth
a trial anyway, you can't lose anything by it anyhow. This was about
3 o'clock p. m. He at once gave orders to his cook to boil a ham and
make biscuits and that night about midnight we took the train to
Macon, Ga. We took breakfast at my cousin's and repaired to the
Governor's headquarters. I saw the Governor in front of a table,
examining some papers. I said, This is Governor Brown? He said
Yes, what will you have? I introduced myself, stating that I was a
member of Howell's Battery, and that on account of disabilities was
relieved from duty and assigned by Dr. Crawford as foraging agent. I
related the condition of Mr. Smith and his surroundings, saying, That
man is worth as much at home as a regiment at the front. The
Governor at once wrote on a sheet of paper, handing it to Mr. Smith,
said, Hand this to the enrolling officer. It was an exemption from
military duty. We took our leave, thanking the Governor. Mr. Smith
was so overcome with the fact that I had never seen such emotion
displayed by a man; tears ran down his cheeks; his thoughts
concentrated on his "Sis" as he called his little daughter Jenny.
Mr. Smith lived to a ripe old age. He was of a very benevolent
disposition. He was a religious man but not a fanatic, quick
answering and very charitable. Many now prosperous and
substantial citizens owe their start in life to his munificence. He was
as gentle as a woman but as firm as a rock in his convictions. In his
death Washington County has sustained an irreparable loss and the
State a true and loyal citizen.
 CHAPTER XXIII.
General Joseph E. Johnston was removed from command and
General John B. Hood was appointed in his stead. Dr. Crawford was
ordered to remove to Montgomery, Ala. In reference to the battle of
Resaca I omitted to state that I received a letter from my friend B. S.
Jordan, whom I had appointed as local agent to forward supplies for
the general hospital, that his brother, Jas. P., a Capt. in the 57th Ga.
Regt., and a dear friend of mine, was dangerously wounded. I at
once set out in quest of him and found him lying on a pallet on the
platform of the depot. He was suffering, but when he saw me he
brightened up. I said, poor fellow, are you wounded badly? He said,
Yes, and indicated the place. Now I have to refer to a little incident
that transpired at the time when Capt. Jordan had organized a
Company and was about to leave for the front: This was in 1862.
When I had already experienced one year's service in the 1st Ga.
Regiment. I said, Well, James, don't you let me hear of you being
shot in the back. He was indignant. Never, replied he, emphatically.
But when he indicated his wound, I remarked at once: Shot in the
back, as I expected. Suffering as he was, he laughed heartily and
said I want to explain; I said, No explanation is necessary, the
evidence is before me. He remarked, Yes, but I want to explain how
it was done. I said evidently by a musket ball in the hands of a
Yankee, and so I teased him until he nearly forgot all about his
wound, which was in the fleshy part of his hip. Captain James P.
Jordan was of a noble and chivalrous disposition and his Company
had seen much hard service. He explained that they were ordered
forward on a double quick to charge the enemy in their immediate
front, when owing to some obstructions his Company got out of line,
turning towards them to align them a ball had struck him and he
was carried to the rear. I carried him to the Vineville hospital. Dr.
Crawford extracted the ball, and when his Uncle Burrell heard of his
being there he had him removed to his home and well taken care of.
It must be remembered matters were getting very squally; every
available man and boy was called to the front. The battle of Atlanta
was fought and lost at a great sacrifice to both sides, on July 21st,
1864, Gen. W. H. T. Walker on our side, General McPherson on the
Federal side, were both killed. The City was sacked and laid into
ruins as a result of the most uncivilized warfare. General Hood
changed his tactics, and after the engagement at Jonesboro he
swung to Sherman's rear, expecting by that move to cut off
Sherman's supplies and reinforcements, and Sherman having now
no army in front to oppose him marched through the length of
Georgia by rapid strides to the sea, Savannah being his objective
point.
 CHAPTER XXIV.
The prisoners at Andersonville, amounting to many thousand, owing
to their Government refusing to exchange them, preferring to let
them die in their congested condition rather than to release those of
ours, caused untold hardships on those unfortunate fellows. Their
own Government even refused to furnish them with the requisite
medical relief and medicine which became unobtainable on account
of the close cordon of blockaders guarding our ports of entry. It
must be remembered that while we on the Confederate side had
only seven hundred thousand available men, in round numbers, in
every branch of the service, our adversary had, according to
statistics, two million, seven hundred thousand men in the field, and
while we had exhausted all our resources they still had the whole
world to draw from. Neither were they particular then, as now, as to
what kind of emigrants landed in Castle Garden or Ellis Island, but
they accepted the scum of the world, paying fifteen hundred dollars
bounty as an incentive to enlist in their army. Such were the
conditions in the latter part of 1864. General Wheeler's Cavalry was
the only force that swung close to Sherman's flanks, thus keeping
his columns more compact and preventing them from doing more
depredations than they did. Even as it was, they lived on the fat of
the land, and as stated, wantonly destroyed what they could not
carry along, to the detriment of the defenceless women and
children.
Dr. Crawford was ordered to remove his hospital to Montgomery,
Alabama. I was out foraging; I was at Davisboro, Station No. 12,
Central R. R. when a train load of the Andersonville prisoners
stopped at the station. The train consisted of a long string of box
cars. Davisboro was not then the prosperous little city it is now; it
consisted of only one dwelling and outhouses usually attached to a
prosperous plantation, and a store house; it was owned by Mrs.
Hardwick, the great grandmother of our now Congressman, T. W.
Hardwick, an elderly widow lady, who for the accommodation of the
railroad kept an eating house where the train hands would get their
meals as the trains passed on schedule time. Curiosity led me to
approach the train, which was heavily guarded by sentinels stationed
in the open doors and on top of the cars, with loaded muskets, to
prevent escapes, when I heard the grand hailing words of distress
from an inmate of the car. Being a Mason, I demanded what was
wanted, when some one appealed to me, "For God's sake give me
something to eat, I am starving to death; somebody stole my rations
and I have not eaten anything for three days." Being meal time I at
once run in the dining room of the Hardwick House, picked up a
plate with ham and one with biscuits, and ran to the train, called on
the man in Masonic terms, and handed him the provisions that I had
wrapped up in a home made napkin, bordered with indigo blue. It
was seven o'clock p. m. and one could not distinguish the features of
an individual; it was a starless, foggy night. After the train left I
entered the house and excused myself for the rudeness of taking the
provisions as I did. Mrs. Hardwick not having been in the dining
room at the time I explained to her that my obligations were such
that I had to render assistance to any distressed Brother Mason; he
applying to me as such; "I am now ready to pay you for all the
damages I did," and this was her reply: "I don't charge you anything
honey, I am glad you did it." But not so with her housekeeper, Miss
Eliza Jackson, who berated me for everything she could think of,
saying, "They had no right to come here and fight us; you are
nothing but a Yankee yourself," etc., etc. Miss Jackson was a long
ways beyond her teens, so I said, "Miss Liza, you are mad, because
owing to the war your chances for marriage have greatly diminished,
especially with the disposition you have." Those present enjoyed her
discomfiture.
Usually when troops were about to be ordered in transit, they were
issued three days rations, all of which were often walloped out of
sight at one square meal on account of its meagerness; undoubtedly
that is what happened to my Masonic Brother; he received his
rations and someone stole them. I myself often ate at one meal
what was intended to last me three days and trusted for the future.
I never felt any remorse of conscience to get something to eat, if I
could; I felt that the people for whom I devoted my services in those
days owed me a living, and when the authorities failed to supply it, I
took it where I could find it.
 CHAPTER XXV.
I rejoined Dr. Crawford and he sent me out again. I took the train to
Greenville, Alabama, and walked about eight miles to Col. Bowens',
who was an uncle of Mrs. John George. Mrs. George was a niece of
Mrs. Braswell, where I boarded. She came to spend many days with
her Aunt while I was with the family; her home was only about three
miles distant. She married Mr. George and moved to Butler County,
Alabama. Mr. Bowen, her uncle, furnished me with a horse and I
rode out to see them. Butler county is a sort of an out of the way
place, and that country had not been overrun with soldiers, and
provisions were plentiful. When I hollowed at the gate she
recognized me at once and was overjoyed; she took me around the
neck and kissed me. George ran out saying, "Mollie! Mollie! What are
you doing." She said, "Never mind that is home folks." Poor woman,
she was so overcome to see someone from home that she actually
cried for joy. They were a happy family. I gave them all the news
about their people, as I had just come from there. I stated my
business and both of them set in the following day to assist me in
my duty. Butler county, where they lived was a very hilly country, but
tolerably thickly settled, and provisions came in by the quantities. I,
with the assistance of my host and hostess, filled a single box of
eggs six by three feet long and three feet high. We stood every one
on its end with alternate layers of bran and sawdust and carried
them over a very rough road to Greenville, together with a great
many chickens and shipped them to the hospital, and we only lost
three dozen eggs by breakage. One morning we heard the report
that the enemy, in great force, was approaching. People were
leaving the city. With the exception of a small garrison there was no
defense. Dr. Crawford had to abandon the city, removed all that
were in condition to get away, but there were about a half a dozen
men who were too sick to be removed. The enemy came into the
city soon after we left. Dr. Crawford remarked to me that evening,
"Herman, I am going to send you back to take charge of the hospital
and those poor fellows that I could not get away." I demurred,
saying that I did not care to be taken prisoner. He said, "Listen; In
all civilized warfare the medical department is exempt from
molestation." I said, "From the way this war is waged it is not
altogether civilized, but I am under your orders; I'll do what you
want me to do." He said, "I'll take it as a great favor; I can't
abandon those poor fellows, some one has to take care of them and
administer to their wants." He said he did not know where he would
locate but wherever he went I must come back to him. I was then
about nine miles from Montgomery. It was late in the evening, and I
took it afoot back. When passing through Macon on my way to
Montgomery, I passed a night with my cousin, Mrs. Wurzbourg,
whose husband was exempt from military duty on account of
physical infirmity. My jacket which I wore was threadbare, and even
(holy). He presented me with one of his blue flannel sack coats. I
had previously been able, through Dr. Crawford, to get enough cloth
for a pair of pants and vest. It was blockade goods which the
Government had purchased, and it was of a coarse textile, and of a
light blue cast, and thus I was fairly decently clothed. In those days
the Confederate grey was very much lacking, and men, as well as
women, had to wear anything, of any color they could get hold of.
So after leaving Dr. Crawford, to return to the hospital at
Montgomery, I stopped over at a cottage. The proprietor had a
watch repair and jewelry shop in Montgomery, who owned a small
plantation about six miles from the city. He had left the city for lack
of business, and now lived at his country home. He was an
Englishman, his wife was French. This book being written entirely
from memory, after a lapse of about a half a century, I can't
remember the names of those people, but they were very kind and
hospitable. After supper we repaired to their little parlor. The house
was well kept, and proved that the mistress of the same knew how
to manage a home and make it comfortable. There was a piano, and
I asked the lady, (talking French to her), if she would kindly play a
little. So she asked me if I could sing some French songs; I said a
few. She at once repaired to the instrument, and asked me what will
you have. I of course called for the Marseillaise, which she
performed to perfection. So she asked me to sing; I started the
melody of
Adieu Patrie
France Cherie
Ou Chaque jour
Coulait si pure
Mon helvretie
Douce et jolie
Pays d'Amour
O ciel d azure
Adieu, Adieu!
Having finished that stanza I noticed she had quit playing and was
crying; so I remarked, "Madam, had I known that my singing would
have had such an effect I surely would not have sung." By way of
explanation she remarked that her first husband was a composer
and that the song I sang was his first effort and he received a prize
on it. Oh those were happy days she said! Her husband talked very
kindly to her and the general conversation turned on France and of
days gone by. She had lived in Paris and knew many business
houses that I knew and I passed a most pleasant night. The
following morning I sat down to a substantial country breakfast. We
had hardly finished when the negro servant ran in, saying, "Master
the Yankees are coming. They are here." Looking up the road, sure
enough, a few hundred yards beyond where the road turned, they
were in view. I at once, on the first impulse, jumped into a closet.
Hardly was I in, closing the door, when I thought of this being the
first place they would examine. I opened the door, and not knowing
where to go I went into the back yard, between the house and the
smoke house. Hardly had I done so when a dozen or more Yankees
left their column entered the house very boisterously. Being dressed
somewhat like they were, in blue, lacking but the brass buttons, I
entered the back door, unconcernedly, mixing among them without
being detected or noticed. Some of the men had placed their guns in
the corner of the room; when of a sudden my hostess run in by the
back door, crying, "My God! They are taking all of my meat." I don't
know what impelled me but I seized a gun from the corner, ran out
of the back door, brought my weapon from a trail to a support, and
ordered the two men to throw back the hams each of them had in
their grasp, one of which acted at my command, and the other said,
What in the h——l you got to do with it. Before I could reply his
comrade said to him, "Throw it down, don't you see he is a safe
guard;" he threw down the hams. I took the cue from what the
Yankee said, although it was the first time I had heard of a safe-
guard. The door of the dwelling wide open, those in the house saw
me walk the post back and forth, made their exit and left the house,
and as long as I was guarding, no more Yankees tarried on the
premises; they came, looked about and left the premises as soon as
they saw me standing guard, until the whole column had passed. My
host came to me saying, Well, they are all gone, thank God, I said
no, the rear guard has not passed. The dwelling house was
constructed close to the ground, leaving only about a foot space in
front while the rear end was about two and a half feet from the
ground. I took my gun and crawled under the house. Presently there
came what I thought to be about a regiment, and several stragglers.
Finally I came from under the house. I gave my hostess the gun I'd
taken, telling her, If I do not call for it it shall be yours. My host took
my hands, shook them heartily, saying, "You are a hero;" I laughed,
saying, Well, I saved your bacon; Good bye; I am much obliged to
you for your kind hospitality, and if it had not been for those fellows
we would have had a good time. I started on my philanthropic
errand, not knowing if I would find the sick men dead or alive. I had
gone but a few hundred yards when I met a Federal soldier
marching hastily to catch up. He said, Are they far ahead; I said, No,
about five hundred yards or a quarter of a mile. You are going the
wrong way, said he. I answered, I am not going far, I lost
something. Further on I met two more, who like the first, took me
for a Federal. One said, Comrade you are going the wrong way. I
said, I am not going far. How far behind are we? I said, Not far, a
few hundred yards. And so within about one and a half mile I met a
dozen stragglers, walking to catch up, all comparatively asking the
same questions, and to which I replied alike. When about four
hundred yards in front of me, and about alike in the rear of the last
straggler I saw four horsemen, riding abreast, holding their carbines
by the barrel and resting the butt on their thighs. I recognized them
as Confederates. I walked up to them, asking, What troops do you
belong to? Harvey's Scouts of Forrests' Cavalry, was their reply. Are
there any others behind? Yes. How far? The rear of the enemy's
column is about two miles ahead of you, said I, and there are about
a dozen stragglers, some with guns, and some have none; they are
separated several hundred yards apart, some single and some in
pairs; if you spur up you can catch the whole gang; I'll tell those
men ahead of me to hurry up. Where is Capt. Harvey? You'll find him
in the Exchange Hotel, in town. They at once put spurs to their
horses and galloped on, and I followed my course towards the city. I
met the reinforcements some little distance ahead of me, and
reported what I had seen and told their advance scouts. They all
went at full speed, and later, I saw the whole gang of stragglers
brought in. I asked Capt. Harvey what had become of the inmates at
the hospital. He said he did not know for he had just arrived that
morning. I went to the hospital, found things in rather bad shape
and the inmates gone. After careful investigation I heard that the
Ladies Relief Association had taken care of the sick and that they
were well provided for.
 CHAPTER XXVI.
Dr. Crawford followed General Hood's army and established
headquarters at Corinth, Miss. I followed at once, as soon as I could
locate him. I bought what provisions I could along the stations. At
Columbus, Miss., some Federals who came there to tear up the track
fired in the train as we passed; several of the passengers were
wounded but General Forrest appeared at that moment on the scene
and routed the enemy, killing and wounding quite a number of them,
and thus preventing the wreckage of the railroad track. The car I
rode in was riddled with bullets, but I escaped unhurt; several of the
passengers had a close call.
While at Corinth I was deputized to carry a message to the front,
this side of Franklin, Tennessee. I arrived in time where General
Beauford's men had a brush with the enemy. A stray bullet hit me in
the thigh, and for a time I thought I was seriously hurt. I was close
to a little stream of water. I had my leg tied above the wound with
my handkerchief and put it in the running stream. A surgeon came
to probe my wound, but trembled like a man having the palsy, and I
told him he must not touch me any further; he could hardly put his
probe in the hole made by the bullet. After a while I was picked up
and sent to the rear where I was cared for by Dr. Crawford, who was
very sorry and regretted having sent me. My wound was doing so
well and there was no inflammation taking place, and by keeping
cold applications on it I was able to be about in less than two weeks.
Dr. Crawford said I did the best thing that could be done by keeping
inflammation down by putting my leg in the stream. The wound did
so well that he would not bother it to extract the ball, and so I still
carry it as a memento of the war. While at Corinth the ladies of
Washington county sent me a box. The battle of Franklin was fought
and a victory dearly bought. Two weeks later the battle of Nashville
was fought, and General Hood's magnificent army nearly annihilated.
They came through Corinth the worst conditioned men I ever laid
my eyes upon. There I met Lieut. John T. Gross of this County and
Capt. Joe Polhill of Louisville, Ga., and about twenty of their
command. They were hungry and in rags; I said, "Boys, you are in a
bad fix." Capt. Polhill said, "Ike, can you tell me where I can get
something to eat; I am starved." I said I had just heard that there
was a box in the depot for me, let us see what is in it. I took the
crowd up to the hospital and all got something to eat. The hospital
wagon went to the depot and got the box. It was a large box, and
was filled to the top with clothes and eatables. Lieut. Gross, who
was barefooted, I supplied with a pair of broken shoes. Many of the
provisions were cooked. I took out some checked shirts and knit
socks and a pair of pants and jacket and divided the rest among the
boys, who were all from Jefferson and Washington counties, and
even to this day Capt Polhill declares I saved his life. He is still one
of the Vets. and a useful and honored citizen of Louisville, Ga.
Corinth at that time when I saw it, was only a railroad station with
an improvised station house or warehouse. A few chimneys here and
there indicated where had previously stood some houses. It is not
far from the Tennessee river, about ten miles from Shiloh, where
Albert Sidney Johnson, from Texas, was killed and General
Beauregard saved the day. During my convalescence I walked over
some of the battle ground. Being tired I sat down on a log. There
were two logs touching each other lengthways. They had been large
trees, about two and a half to three feet in diameter. Playing on the
ground with my crutch I unearthed a bullet; presently I scratched up
another. I noted that the logs were riddled with bullets. I picked up
over one hundred pounds of musket balls in a space not over
twenty-five feet square. How any escaped such a shower of lead in
such a small place can't be possible. Undoubtedly those logs had
served as a protection behind which those brave fellows sent forth in
the ranks of their adversaries a similar amount of death dealing
missiles.
 CHAPTER XXVII.
This brings us towards the last part of December, 1864. When
General Hood planned his campaign to the rear of General Sherman,
instead of following General Johnston's tactics and thus leaving the
balance of the State of Georgia to the tender mercies of our
adversaries, who had no mercy or respect for age nor sex, but
wantonly destroyed by fire and sword whatever they could lay their
hands on, save the booty and relics with which they were loaded.
Howell's battery, on account of their horses being exhausted, could
not follow General Hood's army into Tennessee, and were ordered to
Macon to recruit. This Company had seen arduous service from
Chickamauga to Atlanta, including Jonesboro. After the battle of
Chickamauga, one of the hardest contests of the war, in which the
confederate forces were successful, Howell's battery had the honor
to open the battle from the extreme right, on the 18th day of
September, 1863. On the 19th, which was on Saturday, the fight was
progressing furiously, with no results, both armies holding their own,
but on Sunday morning our forces centered their attack on the
enemy's center, charged through their lines and rolled them back in
complete disorder, and the victory was ours. General Bragg rested
his forces for a few days and renewed the fight around Chattanooga,
Lookout Mountain and Missionary Ridge. He found the enemy well
fortified and ready. The battle was a sanguinary one; Howell's
battery besides losing two pieces of artillery, which were recovered
in the evening and returned to us, lost in wounded, Leonidas Hines,
Frank Bailey and Corporal Braswell, and captured James Mullen,
John S. Kelley, John Tompkins and John Braswell. That night General
Bragg withdrew as quietly as possible and went into camp at Dalton,
where we spent in winter quarters. At Macon they did provost duty
under direction of General Howell Cobb. The writer drifted back
through Alabama expecting to rejoin Dr. Crawford as soon as he
would locate, and being intercepted by Federal troops I reported to
the nearest Confederate post, which proved to be General Beaufort
from Kentucky, a cavalry officer at Union Springs, Alabama. General
Abe Beaufort was of colossal stature and an able officer, so I
reported to him for duty until I could join my proper command. He
said, Have you a horse? We are cavalry. I said, No, but I expect to
get one the first fight we get into. He laughed and said, Well, you
can hang around here. I stayed at his quarters several days. One
day he seemed to be worried more than usual; I ventured to say,
"General, You seem to be worried over something." He said, "I have
enough to worry about; there is General Forrest at Selma; I have
sent him two couriers and neither of them have reported; I don't
know what became of them, whether they have been captured,
killed or run away. I want to hear from General Forrest so that we
can act in concert of action." The Federals who held possession of
Montgomery under General Wilson's corps d'army, who later
captured President Jefferson Davis in Irwin County, Ga., during the
several days of my hanging around at General Beaufort's
Headquarters, he asked me how long I had been in the service. I
said, "I joined the first Company that left my county and the first
regiment that left my State." How long had you been in this country
before the war broke out? I answered that I came to Georgia direct
from France in the Fall of 1859, about sixteen months before I
enlisted. I found in this country an ideal and harmonious people;
they treated me as one of their own; in fact for me, it was the land
of Canaan where milk and honey flowed. In the discussion of the
political issues I felt, with those that I was in contact with, that they
were grossly imposed upon by their Northern brethren and joined
my friends in their defence, and so here I am, somewhat worsted,
but still in the ring. I said, General I have an idea; I think I can carry
a dispatch that will land. I have in my possession at home my
French passport. I can write for it and use it by going squarely
through their lines, as being an alien. I can change my clothes for
some citizens clothes. After a little reflection General Beaufort said,
"Hermann, you are an angel; it's the very idea." So we arranged to
write at once for my pass. It came in due time. The lady of the
house where the General kept his quarters furnished me with a suit
of jeans cloth, but begged the General not to send me for fear I
might meet with reverses. But the General said, He is all right, he
can work the scheme. That night I started about ten o'clock, on
horseback, with two escorts. It was a starlight night. We passed for
some distance through a dense swamp. The General cautioned me
to be careful and on the lookout, an admonition I thought entirely
unnecessary. He said the enemy's camp was about twelve miles
distant, and that they had a company of scouts out that night, and
so had we, but as we journeyed along at a walk the lightning bugs
were so thick as to blind a fellow and the swamp so dark that we
could only designate the road by the distance and open space of the
tree tops and the stars. We did not however, meet any of the scouts.
On emerging from the swamp I noticed on my right a small farm
cottage and a dim light through the cracks of the door. I
dismounted, knocked at the door. At first no one answered. I
knocked again when a lady's feeble voice answered, Who is there? A
friend, was the reply. Open the door please. The door opened and
there stood in front of me an old lady of about seventy, I judged,
nearly scared to death, trembling from head to foot. To re-assure
her I said, Madam, we are Southerners don't be frightened, we
won't do you any harm. Can you tell me how far it is from here to
the enemy's camp? She answered very excitedly that she had
nothing to do with the war, she is only a lone woman and we can't
cheat her out of many years. You all have stolen all my meat and did
not leave me a mouthful of corn or meat, and I am left here to
starve to death. I said, But we are Confederates; but I noticed the
woman did not believe me, undoubtedly owing to my brogue, as
there were thousands of foreigners in the federal army. I lit a match
and scrutinized the ground and noted the doors of the outhouse
wide open, houses empty and the ground churned into dust by the
horses hoofs. Undoubtedly we were not far from the enemy, as they
were there that day and looted the premises. I bid the lady good
night and joined my escort who waited for me in the road. As I was
about to mount my horse I perceived ahead of me through the limbs
of the trees, a bright light. The lady was still standing in the door,
and I asked her what that light was we saw ahead of us. She said
they were the negro quarters about a quarter of a mile ahead, and I
thanked her and we moved a little forward and held consultation as
to what was best to do, whether they should return to camp leading
my horse back and I to take it afoot or whether we had better go
together to the quarters, probably they might get a few potatoes
and some buttermilk, for be it understood that we belonged to the
hungry army where rations became very scarce, for as a rule the
Confederate soldier respected private property and often suffered
hunger rather than appropriate property belonging to others. They
concluded they might buy something to eat from the darkies. The
negroes in those days, as before the war, always had a surplus of
provisions. They were well fed, in fact most of them made their own
provisions with the exception of meat, their owner allowing them
patches and giving them time to cultivate the same for their own use
or to sell with their master's permission, which was generally only a
matter of form or respect.

The Capture of the Federal Cavalrymen.

 CHAPTER XXVIII.
In keeping my eyes to the front watching the light, we came to an
open field on the right. On the left of the road was a dense forest. I
noted some one crossing the light and heard some one screaming
and hollering like negroes carousing. Presently the same person
recrossed and I thought there must be some Federals about there
and we stopped to consult. I concluded that I would take it afoot
and reconnoiter while my escort would enter the woods where we
stood and wait for me until I returned. I took the darker side of the
road along the woods until I arrived close to the premises, and I
circumvented the place. I noted a double pen log house with a large
chimney at one end and a rousing lightwood fire in it. A step over
fence about five rails high surrounded the yard in which stood a very
large oak tree, the limbs of which hung low, a little above a man's
head. To those limbs were hitched three splendid horses. In the
house were three Federals, enjoying their surroundings. The house
had a front and back entrance and the fire in the chimney cast its
light some distance, front and rear, around the premises. I hurried
back to my comrades and made my report as above, and I
suggested a line of action as follows: We will leave our horses on the
road side, about two hundred yards this side the house. One of us
will enter the back side as I enter the front, and one of you follow
me; Are you willing. If you do as I say we will capture those fellows
without firing a shot. The youngest of the escort was a young man
of about 19 years; the other was 21 years old. The younger said,
General Beauford told us to obey your orders, and I am ready to do
what you tell me to do. I said, Bravo, my boy. The other one was
silent, I remarked, what do you say? He tried to answer but his teeth
chattered and he was trembling so he could hardly speak. I said,
What is the matter with you, are you scared? He said, No, I am
excited. You must compose yourself. If you follow my advice and do
exactly what I say and we will capture those fellows without firing a
gun, but there must be no wobble, or they may turn the joke on us.
I told the youngest to hold his gun ready for use and to make a
detour around the house and face the back entrance, and I would
give him time to get in position, and as I enter the front door he
must enter the back door, and we must get the drop on them,
otherwise they might get it on us. I told the other fellow to follow
me and do as I do and not to fire unless I do. I carried a couple of
colts pistols. As we entered the negro women and the men were
sitting on benches before the fire, when I exclaimed, surrender! in
the meantime covering them with my pistols and the guns of my
comrades. They jumped as if lightning has struck them. "Unbuckle
your weapons or you are dead men; be quick about it." My orders
were executed with alacrity and we marched them out of the house.
In the far end of the house I spied a plow line hanging from a nail in
the wall. I appropriated the same and we unhitched the horses and
walked to where ours were. Not a word was spoken by either of us.
The horses were brought forward and the prisoners mounted. The
plow line served to pinion their legs under the animals below. All this
was done as quickly as possible. When the prisoners realized that we
were but three, one of them commenced being obtrusive and talking
loud and abusive. I cautioned him and his comrades that unless they
moved along quietly and not talk above a whisper we would be
compelled to leave them by the roadside, for some one, unknown to
us, to bury them. My admonition had a good effect, and our
cavalcade advanced in a lope, one leading the horses, the prisoners
were riding by the bridle reins, and I and the other man closing up
the rear. I was fearful of meeting some of their scouting parties, of
which General Beaufort advised me of on our departure, but it
seemed that they were in some other direction from us, for we
noted the firmament in every direction lit up by an aurora borealis
from the burning houses those miscreants set afire. When arriving
close to our pickets we halted. I sent one of my escort in advance to
announce our arrival so as not to be fired into, as it was only day
break and still too dark to be recognized. I rode at once to General
Beaufort's headquarters to report. He was still in bed; the guard
admitted me. He said, I thought you were on your way to Selma. I
said, General, I met with an accident and came back. An accident
said he! So I stated that accidentally I captured three Federals and
got me a horse at my first opportunity. He got up and dressed, had
the prisoners brought before him and commenced questioning them
but they were very reticent and evaded many of his questions.
General Beaufort was very anxious to find out the strength of his
adversary in his immediate front and their destination. I suggested
that I change my clothing for the uniform of one of the prisoners
who was my size, and ride in their line. He said, That is a very
dangerous business; if you are trapped they will hang you. I said, I
am in for the war; life as it is is not worth much, I'll take the
chances. So that night after midnight I passed again our videttes, in
company with two escorts who accompanied me for company sake
for a few miles, when they returned to camp and I went it alone.
After passing the cottage of the old lady where we sought
information, the previous night, I put my horse at full speed and
passed the negro quarters. No one was astir and I continued my
course for about three miles when I saw some obstruction in the
road on the brow of the hill. Halt, was the command. I halted, at
within about seventy-five yards. Who comes. A friend. Seeing that I
was alone I was asked to advance. As I approached I noted that
there was a rail fence across the road, behind which were two
sentinels, their muskets pointing at me. I remarked as I crossed the
fence, Didn't I have a race; those four rebels run me clean to nearly
where I am. My horse was steaming wet. I said, You see that fire
yonder; we set the gin house afire when the rebels came up and
gave me a hot chase. The sentinels were all excitement and kept
their eyes to the front. I had dismounted and placed myself in line
with them. I could have killed them both but that was not my object.
Finally, seeing no one coming, I said they must have gone back. I
mounted my steed and slowly rode up, in a walk, where I saw what
I thought was the main camp, but it was only what was known as
the grand guard of about a half a regiment of cavalry. Taking in the
surroundings at a glance I noted the horses hitched in the corners of
the fence along the road and the men some lying, some sitting on
improvised seats around their camp fire. I at once rode to an empty
corner in the fence and hitched my horse and walked to a fire where
most of the men were lying down, seemingly sleeping. There lay one
empty blanket on the ground and I laid myself down on it, facing the
fire, which felt pretty good, for I was chilled, the night being cold. As
I pretended to take a nap some fellow gave me a hunch with his
foot, saying, Hello comrade, you are lying on my blanket. I grunted a
little and turned some further when he pulled the blanket from
under me. This seemingly roused me, and I was wide awake. I
stretched out my arms as if I were yawning, addressing myself to
the men next to me, "This is a terrible life to lead. Where are we
going? To Savannah. I heard some say Savannah. That is in Georgia,
a long ways from here; I am afraid some of us will never get there; I
heard that there is an army of fifteen thousand rebels ahead of us
within fifteen miles of here." He answered, That would not amount
to much with what we have. I thought I would stretch as far as I
could reasonably do so, for General Beauford's force was only 1,500
strong. You say that would not amount to much with what we have
to oppose them? He said Wilson's Corps amounts to nearly 25,000.
O, not that much. He commenced to enumerate different regiments,
the number of cannon, etc., etc. All at once I heard the bugle blast
"Call to Horse," and everything was active. What's the matter I said,
seeing everybody catching their horses? He answered, Did you not
get three days rations? I said, Yes. Well we are going to advance. I
run to my horse and mounted. I felt that I had to advise General
Beauford of this move, and not to pass the picket post that I did
coming in I took down the railroad track which run parallel the
wagon road some distance, but to my surprise there was a vidette
post there of two sentinels. They halted me, saying, You can't pass.
I remarked that they will be relieved in a few minutes, that our
forces are advancing. There being a nice spring of water in sight,
just to the left of the road I wanted to fill my canteen full of water.
The road being very dusty I suggested that I would fill theirs if they
wished me to in the meantime. I'll be back in a few seconds. So they
handed me their canteens and I put the spurs to my horse. Further
on I turned to the left into the wagon road and post haste and at full
gallop rode into our camp, which was twelve miles ahead of me. The
cap which I had borrowed from one of our prisoners was a little too
big for my head and in my haste to reach camp blew off. I did not
stop to pick it up, but reached camp in about three quarters of an
hour. It still being a little before day a bullet passed me in close
proximity and I knew that I was close to our lines. I stopped and
held up both hands. The bad marksmanship of the sentinel saved
me from being shot. I at once rode up to the General's quarters, was
admitted by the sentinel and made my report. He was still in bed,
but he got up and ordered two companies of Col. Armistead's
Regiment to the front and deployed into a skirmish line. In less than
an hour we heard the firing. All the forces were astir, and we
withdrew towards West Point, Georgia, thus giving the enemy the
right of way. The General asked me if I held any commission. I said,
Yes, high private in the rear ranks. Well, I'll see that you will be
promoted when I make my report to the war department. I need a
hundred men just like you.
 CHAPTER XXIX.
That evening I donned my disguise as a citizen, and advanced, as
before, to go through their lines as an alien. I rode as before as far
as my judgment would permit to prevent the capture of my escort,
when I took it afoot to carry out the program first suggested. I
walked about four miles and day was breaking. As two nights
previous, the country indicated depredations by fires. When I again,
as the night before, saw obstructions in front of me, I walked within
twenty-five or thirty paces up to it when I was commanded to halt
and challenged as to who comes there, their muskets pointing at
me. I said, "Me no speaky English, je parle Francais." Where are you
going? Me no stand English. They made me a sign to sit down by
the side of the obstructive fence, after having let me cross their
barricade. About fifteen minutes later an officer with the relief guard
came up. Who's that you got there? How did he get here? They
answered I walked up. He is a foreigner and can't speak our
language. Turning to me he said, where are you going? "Je ne
comprenspas, je parle francais." So he made me signs to following
him, which I did. He conducted me to a large camp fire where I saw
several men guarding others and recognized them to be
Confederates. This was the first time I felt my danger; I was afraid
that there might be some among the prisoners that might have seen
me before and might recognize me. However my fears were without
cause as I did not know any of them. About eight o'clock a. m., the
Provost Marshall General came around and addressed himself to me.
Who are you, said he. As before, I said je parle francais. Oh, you are
a Frenchman. Well, I will get some one that can speak to you. He
ordered one of the guards to go to a Canadian Company and ask the
Captain to send him a man that could speak French and English.
Presently a young soldier presented himself. The Provost took him
aside and I pretended not to notice them. They stepped to within a
few paces of me; when I heard the Provost say to him, Pump him. I
thought, He will be welcome to all he will get out of me. He stepped
up to me and talked to me in French. I appeared to be so glad to
meet one I could talk to, that I did not give him an opportunity to
ask me a single question. I told him how I came here in the fall of
1859, pulling out my passport which he scrutinized and handed over
to the Provost, who in turn looked at the same. I told him that I
made a mistake coming here, that the people made it very
unpleasant to me because I would not enlist; that I had to leave
Georgia, and I am now on my way to New Orleans, which I heard
the port was open so as to see the French consul to assist me back
to France; that I am tired of this land where people murder each
other. During all of our conversation the Provost said, What does he
say. My interlocutor explained and then they all would laugh. Finally
I said that I was hungry, that I had had nothing to eat in 24 hours.
So the Provost said, Boys, can you fix up something for him among
you, and they all contributed some from their rations and filled my
haversack full of substantial food, and besides contributed $10.00 in
money. I thanked them and started off, after being told that I could
go, but as I was apparently green I asked my questioner how far I
was from New Orleans and if there were any more places where I
might be delayed, when the Provost intervened with his, What did
he say? Which after being explained to him, he said, I had better
give him a pass, they might take him up on the other end of the
line, and so he wrote on a slip of paper, "Pass the bearer through
the line," and signed his name in such chirography that I could not
read it. I arrived into Montgomery late that afternoon, and reported,
as per previous arrangement with Col. Paul to Judge Pollard, whose
daughter he married, and told that family how the boys were getting
along. Judge Pollard was a stately old gentleman of great
prominence in that section of the country. He received me in his
large library and we had quite a long conversation over the situation.
I told him that I was directed to him with the understanding that he
would provide me with a horse so that I might continue my journey
to Selma. He shook his head and said I'll see what can be done, but
I don't believe there is a horse to be got within ten miles of here;
the Yankees stole every horse and mule they could lay their hands
on, and sure enough he was unable to furnish me with an animal,
but thought I might, by making a long detour beyond the flanks of
the enemy's columns, be able to proceed. That morning one of the
ladies presented me with a tobacco bag, made out of a piece of pink
merino, and the initials of my name embroidered on it with yellow
silk and filled with smoking tobacco, and a shaker pipe stuck in it. It
was quite a novelty and was highly appreciated. After having
partaken of a substantial breakfast I bid my host and his family good
bye, visited my friends Faber, Lewellen, Coleman and other
acquaintances of the city, all of which had their tales of woe and
sufferings to account at the hands of the enemy. I departed for
Selma on foot. I was weary and depressed. I heard that I was again
in close proximity to the enemy who routed Forrest from that city
and came within a fraction of either killing or capturing him. He was
surrounded by four troopers who demanded his surrender, when he
threw his saber, spurred his horse and ran the gauntlet among a
shower of bullets. I heard that in the melee he received a saber cut
in the face. I felt sick at heart and physically worn out and took a
rest and wended my way to Col. Bowen, who was glad to see me
and offered me all the comforts to recruit my strength. I remained
there nearly a week. I really did not know where to report to,
General Beauford being on the retreat before Wilson's corps who
came from via Pensacola, Florida. I was surrounded on every side,
so I concluded to retrace my way back to Montgomery but when a
few miles from Greenville as I emerged from a long lane at the end
of which the road turned into a forest I noted some Federal soldiers.
I came within a very short distance of them before seeing them; my
first impulse was to run back, but I was tired, it being a warm day
and nothing to protect me from the bullets, having an open lane
where they might play at my fleeing figure. I concluded to give up
on demand, but on close approach, seeing that they were negro
troops I regretted not having taken chances, however great, of
escape, especially when I was asked to surrender my arms, which
consisted of a couple of colts 6 inch pistols, one of which I carried in
a scabbard buckled around me and the other in the belt of my pants,
which were tucked in my boot legs. In unbuckling my belt I
contracted my body allowing the one in my pants to slide down my
leg into my boot and thus only surrendered one of them. The other I
carried on as I marched. The friction of the barrel on the ankle of my
foot gave me excruciating pains but I continued on until I could feel
the blood on the inside of my boot. There were other prisoners,
among them General Pillow and his son, George. Arriving in
Montgomery we were locked up in the Lehman Brothers building
which had served as a shoe factory for the Confederate Government.
I intended to use my weapon at the first opportunity I saw to gain
my liberty. That night I asked for a doctor to dress my wounded
foot. He came and asked me how that happened. My socks adhered
to the wounds and the pains it gave me were unbearable. I told him
I had snagged myself. He dressed my wound and I felt relieved to a
great extent. The next morning I sent word to my friend Faber to
come to see me and he did so. I said to him to see if he could not
get me a parole, after he had told me that he had had some Yankee
officers quartered at his house, saying that they were all Western
men and seemed to be clever fellows. He promised to use his
influence. Presently he returned with an officer and I was turned out
on parole, but to report every morning at nine o'clock. The following
morning I reported, when the officer commanded one of the men to
take charge of me and lock me up. I thought the jig was up, that
probably I had been reported by some one and that I might fare the
worst for it. There were fifty prisoners; we were all called out to
form into line and from that into column, and marched up the hill to
the capitol, where we received some salt pork and hard tack to last
us three days. We were informed that we would be sent to Ship
Island, a country of yellow fever, close to New Orleans in retaliation
of Andersonville, there to take the chances to live or die;
undoubtedly they would have preferred the latter. About one o'clock
p. m. a courier rode up to the capitol, followed by another. Presently
we were informed that the war was over, that General Lee had
surrendered and that Lincoln was assassinated and instead of being
sent to Ship Island we were to be paroled under promise not to take
up arms again against the United States, until properly exchanged.
This brings us up to the early part of June 1865, or latter part of
May.
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