Sitting behind the glass and facing the past

RATKO MLADIĆ’S TRIAL IS FINALLY OVER, BUT BOSNIA AND HERZEGOVINA STILL HAS OPEN WOUNDS.

Almost 26 years after being indicted for the first time by the International Criminal Tribunal for former Yugoslavia (ICTY) in The Hague, Ratko Mladić has had his life sentence confirmed. 

On Tuesday (June 8), the Appeals Chamber of the International Residual Mechanism for Criminal Tribunal upheld the decision of the ICTY’s Trial Chamber, which had previously found Mladić guilty of genocide in Srebrenica, Bosnia and Herzegovina (BiH), as well as war crimes and crimes against humanity.

The 78-year-old former commander of the main staff of the Bosnian Serb Army will now be transferred to prison where he will stay until the end of his life. 

Trial monitoring

As a part of the research on the project the Gender of Justice, I followed the trial of Ratko Mladić from September 2013 until the end of 2014. My trial monitoring started rather late in the trial, but I still had the opportunity to follow the testimonies of both prosecution and the defense witnesses.

Given the focus of the project on the prosecution of conflict-related sexual violence, the main focus of my monitoring was the testimonies of survivors of sexual violence and witnesses to such crimes, as well as the gender dynamics within the courtroom. 

As a feminist engaged in participatory action research, my observations were never to be neutral. In addition, as someone who lived through and survived the Siege of Sarajevo, I was not, and could not be, an emotionally distant viewer: I am one of the many people who survived the war; who were subjected to non-stop campaigns of terror and were targeted on a daily basis by sniper fire and arbitrary shelling of the city; who were subjected to cruel and inhuman living conditions, forced to live without water, electricity, heating, food, with restricted or almost non-existent freedom of movement; who had extremely militarized lives imposed upon us as we were forced to live in war. 

NONE OF THE DIRECT PERPETRATORS HAVE BEEN TRIED IN CONNECTION WITH KEEPING PEOPLE LIVING IN SARAJEVO UNDER SIEGE AND TERRORIZING THEM ON A DAILY BASIS.

In the context of the war crimes prosecutions and the Siege of Sarajevo, we — people who lived in Sarajevo throughout the siege — are conscious that there are very few direct perpetrators who will ever be “brought to justice.” To us, the majority of them were faceless persons who terrorized and shot at us from a distance. 

It is largely only by accident that those suspected of the war crimes are given a face, as in the recent case in Sarajevo where snipers were identified from documentary footage. But, none of the direct perpetrators have been tried in connection with keeping people living in Sarajevo under siege and terrorizing them on a daily basis.

For the majority of us who lived under the siege, the faces of terror and war crimes were those we saw on TV sets who had power (whether political or military) to order or to stop the attacks on us. In that context, the Mladić trial has been important to me on a personal level. 

The distance of The Hague 

My arrival to monitor the trials at the ICTY in September 2013 was also my first time in The Hague. Everything there was new and foreign to me, no matter that The Hague in the minds of Bosnians like myself had established itself as the symbolic place of war crimes prosecutions. 

In fact, in ordinary communication, the first association for Bosnians hearing that someone is in The Hague (and in particular in the Scheveningen district) would be that the person is in the detention facility of the ICTY, despite the area’s beautiful beaches and tourist attractions.

By contrast, when I was walking toward the ICTY for my first day of trial monitoring, I found myself wondering how many people who live in The Hague even knew that the war crime prosecutions were actually held in the city in which they lived. (Later on I would find out that, unless a resident is connected to the large international community bubble in The Hague, it was unlikely they would really care about the war crimes prosecutions happening in the city.) 

THE INDICTMENT

The initial indictment against Ratko Mladić was issued on July 24, 1995 and was subsequently amended four times.

Mladić was ultimately charged and tried with 11 counts of crimes in his capacity as commander of the main staff of the Army of Republika Srpska, Bosnia and Herzegovina. The charges included:
– two counts of genocide;
– five counts of crimes against humanity; and
– four counts of violations of the laws or customs of war.

The crimes included in the indictment were committed between May 12, 1992 and November 30, 1995 in places including Sarajevo, Srebrenica and 15 other municipalities in Bosnia and Herzegovina.

One usually reads in transitional justice literature how important it is for public hearings to reach as wide an audience as possible, as well as how important it is for the society to deal with the past based on established facts. But, in order to go to The Hague, until December 2010, citizens of BiH, and much of the region needed a visa — for citizens of Kosovo, the requirement remains. 

It meant that during many years of the trials — the first 15 and a half years after the first trial began on April 16, 1995 — it was not possible for Bosnians to just spontaneously walk into the trials that were open to the public. Even after the visa requirement was removed, it was an expensive endeavor to go to The Hague. The majority of Bosnians simply cannot afford such a “whim.” 

True, the ICTY is primarily tasked with establishing criminal responsibility and reconciliation was merely an after-thought, but one has to wonder if the opportunity was missed to have a widely accessible public hearing that could have a real effect on dealing with the past in Bosnian society, generating public dialogue, creating recognition and preventing denial. 

The judgments, transcripts, media reporting and broadcasting of trials on the ICTY’s website (if you have access to the internet and speak English), and even the establishment of an outreach department, were all deployed to bring the proceedings closer to people living in the region. But at the end of the day, the distance established with the displacement of the court could not be fixed with the subsequent transfer of many prosecutions to local courts within Bosnia. 

DURING MUCH OF THE YEAR AND A HALF I SPENT MONITORING THE TRIAL, I WAS SITTING ON MY OWN IN THE PUBLIC GALLERY.

Nevertheless, I ultimately came to view this distance as more of a class distance, with ICTY employees being part of an upper class international community furthering their careers, while the victims were exploited laborers whose labor (i.e. their testimonies) were exploited for better “international” good and then left alone to fend for themselves in a poverty stricken post-war country.

During much of the year and a half I spent monitoring the trial, I was sitting on my own in the public gallery. When other people were present, they were mainly law or international law students from around the world. They would come in organized groups but also on their own. Several researchers also attended some of the hearings, as well as journalists. On several occasions, various delegations (not necessarily lawyers or international human rights activists) came for half an hour and left.

Sometimes, due to the interactions with the accused and his lawyers, I could conclude that people sitting in the part of the court designated for the audience were actually either relatives or friends of the accused or the defense lawyers. On occasion, I noticed ICTY employees following the trial from the viewing gallery. 

However, I never noticed anyone from the survivors’ population — people affected by the war in Bosnia and Herzegovina — present in the courtroom. The majority of the hearings I watched were the testimonies of the expert witnesses, so perhaps during eye witness and survivor testimonies there was greater interest from the people who were affected by the war. But it did make me question who these public hearings were for.

This is not to criticize the work of the ICTY. Much was established and achieved: Many of those most responsible for war crimes, crimes against humanity and genocide were brought to justice; many facts about crimes committed during the war were established; many victims saw some form of retributive justice; international criminal justice was advanced; rape was made a prosecutable crime; and there were other big positives. 

However, we in Bosnia still struggle with genocide and war crime denials, and it leaves a bitter taste that the established facts about war crimes that were rendered at the ICTY have never properly reached Bosnian society.     

The passing of time

Another issue, that was reflected in the Mladić case, also contributed to the way in which the ICTY’s findings were received in BiH. 

The majority of those most responsible for war crimes were out of the reach of the ICTY for numerous years. The Mladić case actually started in the later stages of the ICTY’s existence, when talks about its closure were already in full swing. 

When I came to The Hague in September 2013, there was only one other case in addition to that of Mladić in which the prosecution was still presenting its case — that of Goran Hadžić. The only other two remaining cases at the trial stage were those of Radovan Karadžić, who was scheduled to resume presentation of his defense the following month, and Vojislav Šešelj, who was awaiting the court’s decision. Seven further cases were at the appeal stage.

BY THE TIME HE WAS BROUGHT TO THE COURTROOM, MUCH OF THE HOPE INVESTED BY BOSNIAN PEOPLE IN RETRIBUTIVE JUSTICE HAD BEEN REPLACED WITH DISAPPOINTMENT.

Mladić was arrested and brought before the ICTY on May 26, 2011, almost 16 years after the initial indictment was issued, and almost 15 years after an international warrant was issued for his arrest. For numerous years he had been under protection from official Belgrade, and throughout his time in hiding he was celebrated as a hero by many people who identify as Serbs. This continued throughout his trial and to the current day. 

By the time he was brought to the courtroom, much of the hope invested by Bosnian people in retributive justice had been replaced with disappointment, not only with the inability of the ICTY to secure the arrests of Mladić and others, but also with the greater focus on the perpetrators and their rights rather than the victims. 

Mladić’s trial was also tried under the rules of completion strategy, which meant intentionally reducing the length of the trial and focusing only on the key charges against the accused. Because of this, many victim witnesses who may have wanted to testify live and to see Mladić in the courtroom never got this opportunity. 

Militarized theater

There was a further element of the ICTY that alienated the war crime trials from the people and society they were supposed to serve. The impression that kept coming back to me during my time monitoring trials in the ICTY was one of militarized theater.

The building that housed the ICTY had been repurposed after having previously been used by an insurance company. From the outside, the building does not particularly look like a theater. 

However, the lobby with its portraits of prominent protagonists (the judges), the stairs that lead to the public gallery, the rope that prevents you from entering the public gallery before the trial starts, the space for informational material (such as info about the ICTY itself and its achievements, and case information sheets), the billboards and posters (as if announcing the performances but in fact celebrating the ICTY and the success of international criminal law), the ICTY gift shop products, the entrance to press and radio rooms, vending machines, and the TV monitors broadcasting live from the courtrooms, are all reminiscent of contemporary auditoriums.

However, unlike the majority of theaters, to access the public gallery, one had to go through two security scans — one at the entrance to the building and the other at the entrance to gallery itself. 

IT WAS REMINISCENT OF THE OLD TICKETS FOR THE CINEMA OR THEATER, AND REQUIRED BY EVERYONE WANTING TO ENTER THE PUBLIC VIEWING AREA.

At the first scan you had to leave your phone, as no recording devices were allowed in the courtroom, and even your bag. (Such security procedures may have become normalized in other aspects of our lives, but we should not accept them uncritically — they limit our freedoms and could be used as a deterrent from attending certain events, such as following a trial.)

In between those two security scans, those wishing to enter the building were required to register at reception. The security guard there would scan your ID, stamp the date and hand you a small pink ticket. It was reminiscent of the old tickets for the cinema or theater, and required by everyone — including the ICTY employees — wanting to enter the public viewing area. 

The courtroom stage was divided from the audience with a curtain, which would rise when the usher announced the entrance of the judges and ordered everyone to be upstanding. And this repeated every time the judges entered and exited the courtroom with the mimicry of a well-rehearsed performance, all overseen by the ticket-checking security guard who would enter the public gallery during these set-pieces to ensure that everyone was following the convention.

Once the judges entered the courtroom, the performance got underway with procedural issues and witness testimonies.

There was not much action in the courtroom, as the majority of focus was on the dialogue, on what was being said. The stillness was most often disturbed in the periphery. Each half an hour the guards watching over the accused — always armed — would change: The two entering would bow to and then change positions with those on duty, who in turn would bow before exiting. 

Occasionally the defense counsel would try to talk to the accused, an usher would shuffle off to get mail or some files, or the registrar would get up to read the assigned number for the latest evidence. But the only real dynamic was created through the dialogue. 

In the midst of it all, the words were a stark reminder that the trials were not performances, but proceedings establishing facts and responsibility for crimes that I and many others from Bosnia and Herzegovina survived.

THE ARREST

Ratko Mladić was arrested on May 26, 2011 in Lazarevo village, near Zrenjanin in the Vojvodina area of Serbia. He was arrested in the house that belongs to his cousin.

For some time while in hiding, Mladić lived under the pseudonym Milorad Komadić.

Five days after his arrest, on May 31, he was transferred to The Hague via a Serbian government plane.

On July 4, 2011, he appeared for the first time in the courtroom, where he entered a not guilty plea was entered on his behalf by the Trial Chamber.

Even though this was far from a court martial, it was impossible to escape the feeling of the courtroom’s militarization: the armed guards, the bulletproof glass wall, the military language — and the almost all male courtroom. True, this was a trial concerning the crimes committed during the war, and Mladić was being tried in his role as military leader. But still, I kept asking myself, why the noticeable absence of women?

Some of the expert witnesses and especially defense witnesses were persons who had military ranks. But why was the composition of the bench, the defence and prosecution teams almost entirely male? 

The only officials I interacted with on a regular basis, the security guards, were also predominantly male. If present, women were mainly given auxiliary roles in the courtroom administration and prosecution or defence teams. And, it seems that once again, the good old patriarchal understanding of war and military influenced the trial so women could not be seen as experts or relevant witnesses to establish the crimes. 

The small space that was provided for women was to be seen as victims. But this was only because women could not be entirely ignored as victims. During the war in Bosnia women used the public space and openly discussed the crimes they survived. However, one could not escape the impression that the courtroom was still reserved only to listen to men, while women remained seen as less reliable witnesses to the crimes committed.

Technology as intermediary

The major feature of the interior of the building were the glass walls. 

They began at either end of the entrance lobby, passable only by accredited employees, and they also separated the audience in the public gallery from the courtroom. The walls were intended to symbolize the “transparency” of the court with their see through glass, but the bullet proof barriers had the effect of isolating those in the court world from the “ordinary” world outside and preventing those two worlds from colliding. 

And the glass wall was also soundproof. Headset devices issued by the security guards conveyed what was going on in the courtroom, but only once the microphones were switched on. 

THE TRIAL

Mladić’s trial started on May 16, 2012, and closing arguments were held on December 5 and 15, 2016.

In those four and a half years there were 530 trial days and 591 witnesses. Of these, 377 witnesses appeared in court.

When the trial judgment was pronounced on November 22, 2017, Mladić was found guilty on 10 counts, including genocide in Srebrenica. He was sentenced to life in prison.

The appeal to the Trial Chamber’s judgment was lodged by both prosecution and defense on March 22, 2018.

On June 8, 2021, the Appeals Chamber of the International Residual Mechanism for Criminal Tribunal decided to uphold the ICTY Trial Chamber’s judgement, although the presiding judge dissented on each count.

As elsewhere in the contemporary world, technology played a significant role during the hearings, not least as intermediary between courtroom and public gallery: Whoever spoke in the courtroom had to talk directly into the microphone and those wanting to hear (and understand) the speaker required headphones, with options to select direct audio from the courtroom or simultaneous translation.

The trials would have been virtually impossible without simultaneous translation. Even if we were to expect the legal practitioners and administrators to speak English fluently, this could not be expected from the witnesses, nor the accused.

Furthermore, the advanced technology allowed fast public access to those court documents labeled for public viewing and made the trial transcripts quickly available to the public — however, these were only in English and French, not the languages spoken in countries where victims were coming from, which again begs the question of who the ICTY was for. 

Parallel to the audio system, there was the video and broadcast system, with cameras set both in the courtroom and the public gallery. Even though it was possible to see the courtroom through the glass wall, TV monitors were set at each end of the glass wall. The video broadcast primarily focused on whoever was speaking at the time, but the public documents discussed in the courtroom were also usually shown on the screen. 

The video feed was also broadcast on TV monitors in the court’s lobby, and on the ICTY’s website — both with a 30 minute delay. For the vast majority of people in the affected countries, it was only through this technology that they had access to following the trials.

In place of conclusion

On that first day I attended the trial in 2013 as I walked toward the court, I considered how I was feeling about it. I admitted to myself that I felt uncomfortable just thinking that I was going to see Mladić in the flesh. For me he was the villain from TV that had such powers to influence my real life — now, I was going to see him as a real person. 

Somehow I dreaded seeing him. Or actually, I dreaded the potential trauma that seeing him could ignite. Yes, the logic was there: He was behind bars and after the day’s hearing he would be taken back to prison, while I could walk away freely. Still, I felt strange. 

No matter how much I wanted to pretend that I was not affected by coming to watch the trial, the fact was that my life was significantly affected by the actions and military orders and decisions that Mladić made. 

Throughout the four years living under the siege, I thought of what would be the most appropriate punishment for Mladić and co. And I was in some sense amongst the “privileged,” since I did not suffer physical injury during the war and did not lose any close family members. But I lost friends and lived under constant threat of death. 

The experience of seeing Mladić in the courtroom was odd. When the curtain was raised I did not look for him — I just looked at the courtroom. Once I noticed him, I felt nothing. I kept thinking: Why should this be traumatic for me, when actually it should be traumatic for him. I again reminded myself that I could get up and leave at any point — he could not. 

And, given the glass division between the courtroom and the audience, I still did not share the same room as him. I was once again seeing him via intermediary; the glass wall reminiscent of a TV screen, while the two actual TV monitors in the public gallery sometimes showed close ups of his face. 

I WAS TAKEN ON MY OWN TRAUMATIC JOURNEY AS I WATCHED THE PERSON WHO COMMANDED THE FORCES THAT SHOT AT ME TESTIFY ABOUT THE EVENTS IN A WAY THAT DIFFERED ENTIRELY FROM WHAT I SURVIVED.

But I did wonder how hard it was for victim witnesses to come into the same room with him and testify. What trauma must that be for them with not only the accused being present but having to relive the most traumatic experiences of their lives!

After a few days of trial monitoring I got used to seeing him in the courtroom. As a trained trial monitor, who had already followed many trials at the Court of BiH, I watched the trial, made my notes and did analysis. However, watching the defense witnesses in this case was particularly challenging. 

In my previous work I had witnessed the trauma experienced by victim witnesses during the presentation of the defense and the testimonies of defense witnesses. 

But I was still simply taken by surprise and on my own traumatic journey as I now watched the person who was commander of the forces that directly shot at me testify about the events in a way that differed entirely from what I survived. And I experienced the tumultuous emotions of seeing a highschool classmate appear as a witness for the defense. Before that, I had neither known the face nor name of the commander, nor that my highschool classmate was in one of the positions above Sarajevo shooting at people who lived under the siege.

Looking back on the experience of monitoring the trial of Ratko Mladić, I still have mixed feelings. 

I am one of many people who survived the Siege of Sarajevo who will not appear at the court as a victim witness in any of the trials concerning the war. Still, through my professional engagement, I could at least follow the trial of one those most responsible for crimes that directly affected me. But I know I am one of few people who will read the judgments and even analyse the transcripts. The majority of people from Bosnia and Herzegovina will ultimately form their opinions based on the media headlines or statements by politicians.

The judgment in the Mladić case will certainly be an important legacy of the ICTY and a significant step in the development of international criminal justice. But looking at the situation in BiH, where certain people will continue to celebrate him and make a hero out of him, one has to ask whether things could have been done differently. Did the distance of the tribunal from BiH, the late arrest and the militarized court where the protocol is more important than victims’ satisfaction, leave the space for glorification of war criminals such as Mladić?

Of course, it is important that the final judgment is reached — even so late. But, lessons must be learnt — at least for future contexts — on how important it is to conduct timely war crimes trials that are able to communicate the established facts to the society recovering from war.K

Feature image: ICTY archive.

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