That Someone Guilty Be Punished - International Center for ...

meeting at UN headquarters soon after taking up the post of prosecutor, Goldstone had “been
informed ahead of time that at least one indictment had to be issued before the … meeting in
order to demonstrate that the system was working and that the tribunal was worthy of financial
support.” 59 With the Tribunal starved for cash, the prosecutor indicted Nikolić because
“he was the only person against whom we had sufficient evidence to justify an indictment”
at that time. 60
But this alone does not explain the early indictments. Why, after all, did the OTP have
sufficient evidence against someone who played a comparatively minor role in the system
of atrocities in Bosnia? A significant part of the answer stems from the fact that it is easier
for a prosecutor to prove the guilt of direct perpetrators than that of individuals who are the
chief architects of systemic atrocities but who did not carry out atrocities themselves and
are often physically removed from the scenes of the crimes. 61 At first, Goldstone pursued a
pyramid theory of prosecution: Comparatively low-level suspects would provide evidence that
establishes the responsibility of their superiors, and the ICTY prosecutors would follow the
evidentiary leads upward until they reached the top of the pyramid. 62
Some responsibility for the patterns reflected in early indictments—which do not add
up to a strategic vision—belongs to the Tribunal’s Investigation Division, which was responsible
for directing investigations until Prosecutor Carla Del Ponte put the direction of all
investigations under the senior trial attorneys, who provided much-needed guidance. The way
the OTP was initially structured brought further inefficiencies into a young institution that
had to find its footing in the midst of extraordinary challenges. ICTY prosecutors would later
acknowledge that some of their early indictments were weak, although they attributed this to
yet another source of pressure: judges who were “impatient with the pace of indictments and
deteriorating public confidence.” 63
The same sort of pressures that led the prosecutor to indict Dragan Nikolić also led
him to issue his second indictment against another low-level suspect, Dušan Tadić. With the
war in Bosnia very much underway during the ICTY’s first two and a half years, the Tribunal
was hard-pressed to obtain custody of indicted suspects. Goldstone saw an opportunity when
German authorities arrested Tadić—whom Bosnian refugees from Prijedor had identified—in
Munich, in February 1994. The ICTY immediately indicted Tadić; two months later Germany
transferred to the ICTY the first person to face trial before it.
More than another year would go by before the prosecutor indicted individuals whom
Bosnians would not consider “small fish”—Radovan Karadžić and Ratko Mladić. Their indictments
marked a significant turning point for the Tribunal, significantly enhancing its credibility
and viability. It would take another four years, however, before the ICTY prosecutor—by
then Louise Arbour—would indict Yugoslav wartime leader Slobodan Milošević.
THAT SOMEONE GUILTY BE PUNISHED 25