Testimony Read online

“Was it any dialect of Serbo-Croatian? Croatian, Bosnian, Serbian? Do you understand those dialects?”

  “Enough.”

  “And were the words you heard in any of those tongues?”

  “No, no, I don’t think so. To me, I thought it was foreign. Something foreign. I didn’t recognize. But it was very few words.”

  “And the man with the horn. What did he say first in Bosnian?”

  “He said, ‘Come out of your houses. Dress quick and assemble here. You are returning to Kosovo. Gather the valuables you can carry. Do not worry about other personal possessions. We will collect them all and transport them to Kosovo with you.’ He repeated that many times.”

  “Now, you say screaming started. Tell us about that, please.”

  “The soldier continued yelling into the horn, but the other Chetniks went from house to house with their rifles and electric torches, waking everyone. They were very well organized. Two would enter, while other Chetniks made a circle outside with their rifles pointed.”

  Judge Gautam interrupted. She was about fifty, with a pleasant settled affect and long black hair in a contemporary flip. I had been warned, however, that she was not nearly as mild as she appeared.

  “Excuse me, Mr. Ten Boom,” she said to me.

  “Your Honor?”

  “The witness has just testified that the soldiers were speaking a foreign language and that it was not Croatian, Bosnian, or Serbian. That surely does not sound like Chetniks, does it?”

  “I wouldn’t know, Your Honor. I never heard the word before today.”

  Again the sounds of hilarity cascaded through the courtroom, most heartily behind me from the prosecutors. Both of the other judges laughed. Gautam herself managed a bare smile.

  “May I ask the witness a question or two to clarify?” she said.

  I swept a hand out grandly. There was not a courtroom in the world where a lawyer could tell a judge to keep her thoughts to herself.

  “You testified, Mr. Witness, that the soldiers were in fatigues. Was that camouflage garb?”

  “Va.”

  “The same for each soldier or different?”

  Ferko looked up to reflect. “The same, probably.”

  “And over the years in Kosovo and Bosnia, had you seen many soldiers in camouflage fatigues?”

  “Many.”

  “And had you noticed that different armies and different military branches each had their own fatigues, with distinctive camouflage patterns and coloring?”

  Ferko nodded.

  “And on that night in 2004, when you saw these soldiers in fatigues, could you recognize the army or military branch they belonged to?”

  Ferko again lifted his palms haplessly. “Yugoslav maybe?”

  “But over the years had you noticed the fatigues of different countries sometimes resembled each other? Had you seen, for example, the similarity in the camouflage outfits of the Yugoslav National Army and the United States Air Force?”

  Ferko gazed at the ceiling for a second, then waved his hands around vaguely.

  “But in the dark, could you say whether these soldiers wore the Yugoslav uniforms or the American uniforms?”

  Once the question reached him, Ferko shook his head and made a face.

  “No,” he said simply.

  Judge Gautam nodded sagely. “Now Mr. Ten Boom,” she said to me, “would you care to follow up in any way on my questions?”

  On my notepad, Goos, who’d worked throughout the Balkans a decade ago, had written, ‘NO USAF in Bosnia then.’ Olivier Cayat, the law school friend who’d recruited me for the ICC, had briefed me on Judge Gautam. A former UN official in Palestine who had never actually practiced law, she was known to be part of the clique within the ICC disturbed that an American prosecutor had been assigned this case. But her insinuation that I might have been covering up for my countrymen was insulting—and unwarranted. She had just heard me go to considerable lengths to make sure Ferko mentioned that the gunmen were speaking a language he didn’t know.

  Having resumed my seat during the judge’s questions, I took a second to adjust my robe as I again stood, preparing to ask Ferko if he’d seen even one member of the US Air Force on the ground in Bosnia at that time. From behind, Olivier discreetly pushed a folded note in front of me, which I opened below the level of the desk. ‘IGNORE her,’ it read. ‘A trap.’

  The attention of the courtroom was already focused on me, and I stood in silence before I understood. If I asked that question, Judge Gautam, who was guaranteed to have the last word, would add some public comment branding me as an apologist for the US. I ticked my chin down slightly to let Olivier know I’d gotten the point. The formal air of the ICC felt genteel as velvet, but the currents below were treacherous.

  “No follow-up,” I said.

  “Well,” the judge said, “given the witness’s answers, and without objection from my colleagues, we will ask him to refrain from describing these men as ‘Chetniks’ and to refer to them simply as ‘soldiers.’ And would you do the same, please, Mr. Ten Boom?”

  She attempted to smile pleasantly, but there was a lethal glimmer from her black eyes.

  In the meantime, Esma slid her chair from the end of the desk and leaned close to Ferko again to explain the judge’s direction. I had first met Esma last night, when we’d conferred about what I could expect Ferko to say. At one point, I had asked her to limit her conferences with Rincic in front of the court. His testimony would count for little if it looked like he was merely the mouthpiece for an experienced barrister. She had reassured me with a tart little smirk, amused that I thought I needed to school her about the dynamics of the courtroom. She’d proven her savvy by leaving behind the designer attire she’d worn yesterday, coming to court in a simple blue jumper and only a bit of makeup and jewelry.

  I turned again to Ferko.

  “Now you said, sir, there was screaming?”

  “The women were yelling and carrying on to have strange men see them when they were not dressed. The children began crying. The men were angry. They rushed from the houses, sometimes wearing only shoes and underwear, cursing at the soldiers.”

  “And do you remember anything the people in Barupra said to these soldiers?”

  “Sometimes the women cried out, ‘Dear God, where would we be moving? We have no other home. This is our home now. We cannot move.’ And some of the soldiers yelled, ‘Poslusaj!’”

  With Goos’s help, I had Ferko explain that the term meant ‘Do as we say.’

  “In each house,” Ferko said then, “the soldiers gave the People only a minute to leave. Then two or three soldiers would go in with their assault rifles pointed to check that the place was empty. Often they just tore the house down as they swung the light of their torches this way and that.”

  I asked, “Now, had you ever heard before about any plans to move the residents of Barupra back to Kosovo?”

  “When we came first, yes. But then, no more. Not for years.”

  “Did you yourself—did you want to go back to Kosovo?”

  “No.”

  “Why?”

  “Because the Albanians would kill the People. They had tried already. That was why we had come all the way to Bosnia. To be near the US base. We thought that close to the Americans we would be safe.” He stopped for a second to reflect on that expectation.

  “And by that you mean Eagle Base, established near Tuzla by the US Army, as part of NATO’s peacekeeping efforts?”

  A bridge too far. When the translation reached him, Ferko again stared comically and once more raised his palms, short of words.

  “American soldiers. NATO. I know only that.”

  “Now, as the soldiers cleared the houses and the residents gathered in various collection points, what happened?” I asked.

  “There were trucks that drove up from below.”

  “How many trucks?”

  “Fifteen?”

  “What kind of trucks?”

  “For cargo.
With metal sides. And the canvas over.”

  “Did you recognize the make?”

  “Yugoslav, I thought. From the shape of the cab. But I didn’t see for sure. They were military trucks.”

  “Now, as the vehicles arrived, did anything else unusual occur?”

  “You mean the shooting?”

  “Was there a shooting, Mr.—” I stopped. I had been about to use his name. “Please tell these judges of this Pre-Trial Chamber about the shooting.”

  With that, I turned to face the bench, the first time I had nakedly surveyed the court. Judge watching is usually a furtive exercise, since jurists, at least in the US, resent being studied for signs of their impressions. The three judges, all intent, occupied a bench raised only a couple of steps, a longer version of the Bauhausy yellow closed-panel desks in the well of the court. Beside Judge Gautam on her right sat Judge Agata Hallstrom, a lean sixtyish blonde who had been a civil court judge in Sweden, and on the left, Judge Nikolus Goodenough from Trinidad, the former chief justice of their Supreme Court. He never stopped scribbling notes.

  “As they went from house to house,” Ferko said, “the People would argue. They would shout, ‘I’m not moving.’ The women especially. The soldiers grabbed them and forced them out, and if they resisted, the soldiers struck them with their rifles, the butts or the barrels. Twice, the soldiers fired their guns in the air in warning. Once, a soldier shot his rifle and a woman would still not move, and I then heard her scream as she rushed out: ‘He burned me with his gun. He put the muzzle on me while it was still hot. I am marked for life.’ There was much screaming and running about. But the soldiers, especially those in the outer circle, they remained—” Again a pause ensued as the translator searched for a word. “Stoic,” she came up with at last, probably a million miles from what Ferko had actually said. “They stayed in position with their weapons pointed. But near the privy, one man, Boldo, when they got to his house, he stormed out with an AK of his own.”

  “Do you know why Boldo owned an AK?”

  “Because he had the money to buy one,” Ferko said, which produced another ripple of laughter in the courtroom. Bosnia, even in 2004, was not a place where a person could be entirely sanguine about being unarmed.

  “And did Boldo say anything?”

  “Oh yes. He was shouting, ‘We are not going. You cannot make us and we are not going.’ The two soldiers who had been clearing his house fell to the ground. They yelled in Bosnian, ‘Spusti! Spusti!’”

  There was another silence as the translator came to a dead end, not knowing Bosnian. Below me, Goos muttered, “Put it down.” For all his amiability, speaking Serbo-Croatian was, so far as I could tell, the only visible talent Goos brought to the job.

  “Were they yelling ‘Put it down’ in Bosnian?”

  “Va.”

  “And did he put it down?”

  “No, no. He kept waving the AK around. The soldier in charge, who had the horn, he yelled again.”

  “In what language?”

  “Bosnian. Then he counted, one, two, three, and fired. Boom boom boom. Boldo exploded with blood and fell like he had been chopped down. Then his son came running out of the house. The soldiers yelled again, ‘Stani!’”

  “Stay back,” whispered Goos.

  “The soldiers kept telling the son to stay away from the body and the gun, but of course it was his father, and when the son went forward there was gunfire from the other side. Two or three shots. He fell, too.”

  “And how old was Boldo’s son?”

  “Fourteen? A boy.” Again, Ferko worried his head about in mournful wonder. “Finally, Boldo’s brother ran up from his house. He was screaming and cursing. ‘How could you shoot my family? What did they do?’ He was weeping and carrying on. He fell to the ground, near the bodies. And he picked up Boldo’s AK. After the two shootings, the soldier who seemed to be in charge, the one who killed Boldo, he ran up and waved and gave orders. He pushed the soldier who had shot Boldo’s son away. And he ordered other soldiers forward to grab Boldo’s brother. They wrestled with him quite a while. The brother was screaming and he would not let go of the AK. They hit him with their rifle butts a few times, but on the last occasion, the blow hit one of the other soldiers instead of Boldo’s brother and that soldier fell. At that point, the commander ordered the soldiers back and he said to Boldo’s brother, like Boldo, that if he did not drop the AK before the count of three, he would be shot. Instead, Boldo’s brother raised the AK, and the commander shot him, too. Just once. In the side. The brother fell down and held his side and made terrible sounds.”

  “Did they administer medical treatment to him?”

  “No, he was there moaning the whole time.”

  “And what became of Boldo’s brother?”

  “He died. He was still there in a large circle of blood in the dirt when I came out of the privy later.”

  “And about the words the commander yelled to his troops—did you understand them?”

  “No, no. But there was much shouting. The People were screaming to get back. And take cover.”

  “And after the gunfire stopped, what was the mood in the camp, if you can say?”

  “Quiet. Like in church. The People went to the trucks. They didn’t yell. They didn’t want to get killed. The soldiers helped them up. As the houses were cleared, the trucks drove off. The camp was empty in perhaps twenty minutes after the last shots.”

  “Now when the trucks drove off, in what direction were they going?”

  “They went west, down toward the mine.”

  I had a topographical map, which I doubted Ferko would understand. It depicted the valley adjacent to Barupra and the switchback gravel road that descended to where a large pit had been excavated.

  “And what kind of mine was in the valley?”

  “Coal, they said. It closed because of the war.”

  “And what variety of coal mine was it? With shafts or open pit?”

  “They dug for coal. Scraped up the earth. It was the brown coal.”

  “And how far from the village was the mining area?”

  “A kilometer perhaps, down the road.”

  “Now, once the trucks left, did you ever hear the horn again?”

  “Yes, I heard the horn again. It echoed back off the hill.”

  “What was said?”

  “‘Get out of the trucks. You will wait here in the Cave for the buses that will take you to Kosovo. We will go pick up your belongings now and they will follow you in the trucks.’”

  “And by ‘the Cave,’ what did you understand the bullhorn to be referring to?”

  “The Cave,” said Ferko.

  “What cave was that?”

  “The cave he was talking about.”

  Beside me, Goos pinched his mouth to keep from laughing.

  “Part of the mine was an area the People called the Cave?”

  “Va.”

  “Now, calling your attention again to the computer screen at your desk—this will be P76, Your Honors—does that photograph depict the Cave more or less as it was in April 2004?”

  This was another photo that Esma had turned up, in this case from the New York Times. The picture had been snapped from a distance in January 2002. It showed dozens of people scavenging coal in the harsh winter with their bare hands, many of them stout older women in headscarves, crawling along the incline below Barupra. We had enlarged and cropped the photograph to better depict the landscape. Apparently, years before, a vein of coal had been discovered in the hillside, and heavy equipment had gouged out a deep oblong opening. That was the Cave. With its huge overhang, the site did not look especially stable, and in fact there were yellow signs in Bosnian telling people to keep out: ZABRANJEN ULAZ.

  “How large was the Cave? Can you estimate its measurements?”

  “Several hundred meters across.”

  “And how deep into the hill did it go?”

  “Fifty meters. At least.”

  “Was it
large enough that everyone from Barupra could stand inside the Cave?”

  “More or less.”

  “Now, did you hear anything further from the horn?”

  “Yes. Eventually, he started repeating, ‘Step back. Crowd in. Everyone into the Cave. Everyone. No exceptions. We need to count you and take your names. We will let you out one by one to do a census. Stay put. Stay put. You will be there only a few minutes.’”

  “Now when these instructions were given, where were you?”

  “Once the trucks and the People were all gone, I came out of the privy. My son and I hid in what remained of one house where I could look down into the valley.”

  “And could you see the Cave?”

  “Not so much. I could see the headlamps of the trucks better. In that light, I saw them pushing the People back.”

  “And what happened with the vehicles?”

  “The trucks? After several minutes, they started to move again. I thought they were going to come back up to collect everyone’s belongings, as the horn had said. I picked up my son and was ready to run back to the privy, but I saw the lights going off in the other direction, further down to the valley floor, and then across it to the other road.”

  “West?” I asked.

  He simply threw his hand out to indicate the direction.

  “And did you hear the horn at all after the trucks moved?”

  “Yes, but it seemed fainter.”

  “What was the horn saying?”

  “The same. ‘Stay put. Stay put.’” This time Ferko repeated the words in Bosnian. “‘Ostanite na svojim mjestima.’”

  “And what did you observe next?”

  “Next?” He waited. For the first time, a tremble of emotion moved through Ferko’s long face. He grabbed the bridge of his nose before starting again. “Next, I saw flashes on the hill above the Cave and heard the explosions. Six or seven. And I could hear the hill tumbling down.” Without being asked, Ferko waved his hands over his head and imitated the sound, like a motorcycle’s rumble. “The earth and the rock rushing down were almost as loud as the explosions. It went in waves. The roar lasted a full minute.”

  “Did you believe that the explosions had started a landslide?”

  “Va.”