COUR PÉNALE INTERNATIONAL
INTERNATIONAL CRIMINAL COURT
Original: English
No.: ICC-04/15
Date: 9 March 2015
PRE-TRIAL CHAMBER IV
Before: Judge Joita Gautam, Presiding Judge, Judge Nikolas Goodenough, Judge Agata Hallstrom
SITUATION IN THE REPUBLIC OF BOSNIA AND HERZEGOVINA
Public Document
Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation
PRE-TRIAL CHAMBER IV (the “Chamber”) of the International Criminal Court (the “Court”), to which the situation in the Republic of Bosnia and Herzegovina has been assigned, issues the present decision pursuant to article 15(4) of the Rome Statute (the “Statute”) on the “Request for authorisation of an investigation pursuant to Article 15” (the “Prosecutor’s Request”), submitted by the Prosecutor on 14 November 2014.
On due consideration of the Prosecutor’s Request, and the testimony of Witness 1, the Pre-Trial Chamber finds as follows:
There is a reasonable basis to proceed with an investigation of the Situation under the material temporal and territorial scope set forth in the Prosecutor’s Request.
Full opinion to follow.
This brief ruling was a departure from the Court’s usual practice, by which it wouldn’t say even hello or good-bye in fewer than fifty pages, with hundreds of footnotes. That long opinion with the intricate legal discussion would come later, but the quick turnaround acknowledged that too much time had passed in the case already and was tantamount to an instruction to the OTP, and me, to get moving.
This was hardly an unanticipated victory. No matter how much Judge Gautam disagreed with putting an American in charge, there was no doubt she would allow the investigation to proceed. Nonetheless, a win’s a win. My new colleagues in the OTP drifted by all day to offer congratulations, and I was briefly received in Badu’s office to allow him to pat my back as well.
Goos, my investigator, took it as an occasion to invite me out for a drink at the end of the day. He was a former Belgian policeman who had first come to The Hague to work for the Yugoslav Tribunal. From there, like so many others, he had recently migrated to the ICC and was assigned to my case the day after I arrived, because he had learned some Serbo-Croatian, which was bound to be of use with Bosnian documents or witnesses.
As a prosecutor, I learned quickly that I was only as good as my investigators, the cops or federal agents whose ability to uncover reliable evidence determined the success of my cases, much more than any of my courtroom performances. But Goos seemed entirely unpromising. He was about my age, tall and beer-bellied, with bloodshot cheeks and a blond thatch that stood straight up like the coat of a hedgehog. He wore a trim goatee fading to gray, which, being accustomed to FBI agents, I considered just a little unprofessional. In fact, the first time I visited his office to introduce myself, the day before Ferko’s testimony, I found him stuck to his computer, amusing himself with clips on YouTube. My years in the US Attorney’s Office had taught me that the comfortable nature of government employment often dulled ambitions, and on first impression, Goos appeared to be someone in search of an early retirement, bright and affable but thoroughly uninspired.
Around five that afternoon, we crossed Maanweg, the broad boulevard in front of the Court, and meandered to a stylish little bar in Voorburg. In a matter of two blocks, we traveled from a familiar Western metropolis of big sleek buildings and speeding cars to old Holland, with tortuous cobbled streets and chunky brick buildings with awnings protecting the storefronts.
Talking over our next steps, we agreed that we needed to go to the scene of the crime in Bosnia. Yet under the Court’s rigid rules, the ICC’s diplomatic arm, the Complementarity Section, was required to give the Bosnians thirty days to change their minds about conducting the investigation themselves. For the moment, we could only plan.
“First off, mate,” Goos said, “we’ll want a squizz at that grave Ferko dug for Boldo and his family. See if there’s forensics to be done on the remains.”
Given Goos’s name, and the bit I’d learned in advance about his background, I’d expected a Flemish accent when we met. Instead, Goos spoke Aussie English. He said he’d been raised in ‘Oz,’ where his father managed Australian operations for a Belgian coffee importer. In Sydney, he’d been known as Gus until he moved back to Belgium for university at the age of nineteen.
“What about exhuming the Cave?” I asked.
Goos visibly ricocheted off the idea.
“That’s heavy equipment, mate, and bunches of blokes to sort through the rubble. Registrar would spit the dummy if we proposed spending tens of thousands of Euros straightaway. Have to be absolutely sure of Ferko first.”
We made notes about several other investigative ideas, and I asked Goos what he knew about the incident with Kajevic in April 2004, since Goos had been visiting Bosnia regularly during that period.
“Big news at the time,” he said. “Bunch of Americans shot up. Four dead, as I recall. Everyone in NATO was cranky. But never heard a word about Roma.”
After we’d finished our first beer, Goos asked my impressions of The Hague and the Court.
“So far, so good,” I said, “except my hotel room, which could double as a coffin.” Goos had stayed in the same place when we arrived and grimaced at the memory, as if it had been a dental extraction. I asked how The Hague had worn on him over a much longer period.
“Like it most of the time.” He hunkered down and lowered his voice. “Suppose I don’t need to tell you about the Dutch.”
Americans were often mystified or impressed by ‘Ten Boom.’ These days, most guessed that I was Native American. (I’d never had the guts to ask if the senator was under the same misimpression when he chose me as US Attorney.) But ‘Ten Boom,’ like many European last names, simply designated a place. It meant ‘at tree’ in Dutch, like Atwater or Stonehouse in English.
“My parents were both born here,” I told Goos, “but they were thoroughly Americanized. They never spoke Dutch, never returned. They didn’t even seem to like windmills.”
Goos laughed heartily. I was pleased he had a sense of humor.
“Dutch are nice enough,” he said. “Let everyone be. You can see that with the pot bars and the molls putting themselves on display in the shop windows. But they’re to themselves and keep very tight with their own ways.” He made a fist. “Look up at the windows as you go walking. No curtains. That’s because a person should have nothing to hide. Don’t conceal their thoughts either. If I run across some neighbor I haven’t seen in a while, I want to go the other way on sight, because the bloke’ll say something to me like, ‘Oh my, your beard is getting so gray!’ As if I might not own a mirror. Baise-moi l’ail!” said Goos. French was another of the languages of Belgium. The derelict remnants of my high school education allowed me to puzzle out the phrase: ‘Kiss my garlic bulb.’ I guffawed once I understood.
“But all told,” said Goos, “it’s come good for me here. Nice salary. Comfy little flat. And less time for the wife and me to growl at each other at home. She stayed back in Brussels.” He glanced up from his beer glass. The alcohol had summoned color to his face, accentuating the contrast with the fair hair standing straight up on his head. His expression was impenetrable, almost as if he himself didn’t know how he felt about the living situation with his wife.
I was starting to like Goos. His strengths as a drinking companion were clear, although I still hadn’t seen much focus from him as an investigator. As I would have guessed, he wasn’t ready to depart when I slid off my barstool and grabbed my briefcase. I thanked him for the drink and left by myself.
The next afternoon, I called Esma with the news of the order. She had come to mind somewhat unwillingly over the weekend, and picking up the phone yesterday I had felt an odd lurch of feeling that had actually made me delay. With very little contact, we had already arrived on a strange footing.
Despite my promise to reciprocate for dinner, we did not get together after the hearing. On the way to court that morning, I had mentioned to Akemi, the deputy prosecutor, that Esma had briefed me the prior evening at her hotel. A tiny middle-aged woman with witchy stiff black hair shot with gray, Akemi was a person of few words, but she passed me a black look, which I took as reproof. Reflecting, I understood her point. Even though my initial meeting with Esma had been planned solely for business, future defendants would feel free to question my objectivity if I made a habit of private dinners with the prime advocate for the victims. Rather than explain my reservations to Esma when she approached me in the robing room after the hearing, I had relied on the lame excuse of having forgotten other plans.
‘Another time then,’ she answered cheerfully. She gave me a fleet Continental buss on each cheek before departing.
Now I offered to send a hard copy of the order to her chambers in London, but she said an e-mail would suffice. She asked about next moves in the investigation.
“He won’t like it,” Esma answered, when I explained that we’d want Ferko to show us Boldo’s grave in Barupra. “I told him that once he gave evidence, it would be the last he’d hear of this for quite some time. Returning to Barupra will be traumatic for him.”
“His testimony isn’t worth much, Esma, if we can’t corroborate it.”
“I shall have to persuade him,” she answered. “Please stay in touch about the schedule.” She was about to hang up, when she added lightly, “And when will the winds blow you to London or New York, Bill? I have not forgotten that you owe me dinner.”
With that, she rung off, leaving me staring at the handset. Having been single for going on five years, I was no longer completely blind to the signals if a woman was available and interested. But I was still reluctant to believe it of Esma. With her exotic looks and high style, she was well outside my range, more the kind of glamorous companion customarily seen on the arm of a billionaire or a senator, men of standing who had enough self-respect to pass on thirty-year-olds. The truth was that with her imposing self-assurance, Esma somehow seemed like too much for me. Cradling the receiver, I was actually a bit sheepish, because when I recalled the professional issues that were a barrier between us, I realized I felt relief.