Testimony Read online

  “Eventually, I went to a Roma village and was informed that a single survivor of Barupra remained in the vicinity. I received Ferko’s mobile number, but he was too terrified to talk. I must have called him once a month for a year. I had all but given up and had decided to go to Kosovo, where the residents of Barupra came from. My thought was to prove the massacre circumstantially, by finding relatives who would confirm that all communications from Barupra ceased abruptly in April 2004. But I was spared the trip when Ferko at last decided to meet.”

  For the next hour, as I tapped furiously on my tablet, Esma read me line by line the notes of her many conversations with Ferko since 2008. Over the years, he had contradicted himself on some minor details—the time the trucks appeared, or how he found his son. That was normal with witnesses. If they tell you a story exactly the same way time after time, they often prove to have been coached or lying.

  Midway through this recitation, Esma kicked off her high strappy heels and plunged down onto a sofa nearby, perching her legs on the scarlet cushions. She said she was one of those people who can’t sleep on airplanes, and by now was going on roughly forty hours awake.

  Esma’s suite, like the rest of Des Indes, featured horsehair furnishings the color of fresh blood, big mirrors with mahogany frames, and windows draped with French embroidery. It was a large room but without partition, so her bed was visible across the way.

  In the meantime, I looked through the other information she had supplied the Court to corroborate Ferko’s story. Using photographs and UN refugee reports, she’d established the presence of a Roma refugee camp of four hundred persons on the outskirts of Tuzla in April 2004. Their sudden disappearance was confirmed by affidavits from local police, provincial officials, and two nearby Orthodox priests, who baptized the children and buried the dead in Barupra. Photographs showed the changes to the landscape of the coal mine below the camp in April 2004, and she’d obtained reports from two different seismographic stations that recorded a ground disturbance late on April 27. Finally, several residents of the nearest town, Vica Donja, had described, under oath, a truck convoy racing away from the mine in the wake of the explosion. Although it had taken eleven years to get to this point, the need to investigate seemed unassailable.

  While I was reading this material, Esma announced she was hungry. She called down to room service, then covered the extension long enough to ask what I’d like. I requested fish.

  “You did an impressive job with all this,” I told Esma when she returned. Just as the greatness of many scientists lay in the design of their experiments, good lawyering required considerable inventiveness in assembling proof.

  “You are kind to say so,” she replied. “Not that it helped gain much interest from anyone with the authority to investigate further.” She described a long journey of frustration. The Yugoslav Tribunal eventually concluded the case was outside the time limits on their jurisdiction. The prosecutors in Bosnia fiddled with the matter until 2013, but clearly feared antagonizing the US and worsening divisions in their fractured nation. Instead, the government of Bosnia and Herzegovina—BiH—referred the case to the ICC, empowering the Court to act with any legal authority BiH would have. Despite that, the file languished at the ICC until Esma threatened to stage demonstrations.

  “But I cannot pretend to be surprised,” she said. “The truth, Bill, is that very few persons on this continent can be bothered with the Roma. The most literate, progressive, tolerant people will comment without self-consciousness about ‘the dirty Gypsies.’ You will see.”

  I asked how she explained such deep-seated prejudice. The question energized her, and she swung upright.

  “I will not tell you, Bill, that the Roma have done nothing to inspire those attitudes. ‘Roma’ means ‘the People.’ Accordingly, you”—she pointed a polished nail at me—“are a nonperson against whom misbehavior—theft, fraud, even violence—requires no apology within the group. I daresay that attitude is inexcusable.

  “But,” she said, “we have been among you for more than a thousand years, since the Roma first migrated from India into Greece. And generation after generation, what has most infuriated Europeans about the ‘Gitanos’ or ‘Celo’ or ‘Tziganes,’ by whichever of a thousand names we are called, is our absolute stubborn insistence on living by our values, not yours. As a child, Bill, I was not taught to tell time. I never saw a Rom man wearing a watch. We go when all are ready. A small matter seemingly, but not if you wish to attend school or keep a job. Millions of us have assimilated to one degree or another, most notably in the US. But less so here in Europe.”

  Her mention of American Gypsies suddenly summoned a childhood memory of the tinker who pushed his cart down the streets of Kewahnee, where I was raised, singing out unintelligible syllables in an alluring melody. He carried a grinding wheel operated with a pedal, and I sometimes stood nearby and watched the sparks fly as he sharpened my mother’s knives. In a rumpled tweed coat and a county cap, he was the color of tarnished brass, like a candlestick my mother once asked him to polish. But he knew his place. He did not even approach the doorways. The women of the neighborhood brought their cutlery or pans to him—and kept one hand on their children.

  “And this commitment to remaining different has drawn from the gadje unrelenting persecution. Slavery. Floggings. Brandings. Organized arrests and executions. Towns we were forbidden to enter and settlements we were forbidden to leave. And a mythology of sins: That we are filthy, when the inside of a Rom house is spotless. That we steal children, when the hard truth is that Roma have often been forced to part with their offspring. That the women are whores, when in fact purity is prized.”

  With a knock, the waiter in a long frog-buttoned coat arrived, pushing a dining cart. I gallantly pulled out my credit card to pay, but Esma waved it aside, at which I felt some relief, since my training at the ICC had not gotten as far as expense reports.

  After extending the sides of the cart to form a table and uncovering the meal, the waiter pulled the cork on a bottle of Entre-Deux-Mers and poured each of us a glass before I had time to object. The sole Esma had ordered for me was delicious and I thanked her.

  “Oh yes. This is a lovely place.” She buttered a roll and ate with relish. There was no delicacy in the way she attacked her food or waved her wine glass at me to refill it. “So tell me, Bill. What is your story?”

  I started on my résumé, but she threw up the back of her hand.

  “No, Bill. How does a successful American lawyer uproot himself and come to The Hague? Is it acceptable if I call you ‘Bill’?”

  “‘Boom’ is better. I haven’t heard much of Bill since I was in junior high school.” The pals who’d started calling me Boom in sixth or seventh grade were practicing irony. I was a quiet kid. But Esma wrinkled her nose at my nickname.

  “I shall stay with ‘Bill,’ if you don’t mind. And how was it that you decided to come here?”

  I told her what I was only beginning to understand about myself, that I more or less started again at the age of fifty.

  “The all-knowing Internet says you are divorced,” she said.

  “Four years plus,” I answered.

  “And was that bloody or mild?”

  “Mild by the end.”

  “She more or less agreed?”

  “Not at first. But once she reconnected with her high school boyfriend, about six months after I moved out, the divorce decree couldn’t be entered soon enough.”

  “So no Other Woman?”

  There had not been. Just terminal ennui.

  “And how long were you married?” Now that we had roamed to the personal, Esma’s black eyes were penetrating.

  “Nearly twenty-five years when I left.”

  “Was the approaching anniversary the reason?”

  “Not consciously. My younger son was about to graduate college. We’d teamed up to create this family and done it pretty well, I thought, in large measure due to Ellen, but now there didn’t seem to
be much to look forward to together.”

  “And since, Bill?” she asked. She produced a slightly naughty smile. “Many romances?”

  I shrugged.

  “Do you mind that I’m asking?”

  “It seems a little one-sided.”

  “Yes, but my story is either an entire evening or a few words. No husbands, no children, a legion of lovers and none pending. Is that better?”

  I shrugged about that, too.

  “I’ve met a lot of nice people,” I said. “But no one who’s felt for very long that we could go the distance.”

  “And is that what you want? To go the distance?”

  “I seem to have had that in mind when my marriage ended: doing better with someone else. But it’s complicated. When you get to middle age, it turns out a lot of people are single for a reason. Including me, of course.”

  “And me as well,” she said. “Although I think I’m rather quick to grow bored. And now the ladies are calling you, I wager?”

  I lifted my shoulders one more time. “Being a successful middle-aged man who is suddenly single is a little like being the water boy for the football team who finds that a magic genie has turned him into prom king.”

  Esma clearly knew a lot about American culture, because she enjoyed the joke. But I was being honest about my distrust of my sudden rise on the social scale. Admittedly, in the fifties looks mattered less, because everyone had been damaged by time. I still had my lank blondish hair and remained tall and fairly fit. But I had thick features, and in high school and college knew I was not up to the pretty girls. In my senior year at Easton College, I’d been stunned that Ellen, who was clearly far above me in the mating order—smarter, cute by all measures, and a varsity runner—had been willing to go out with me, let alone stick with it. I still believe she felt a small egotistical thrill that she’d made a discovery other girls had missed; namely, that despite my occasional reserve, I could be an amusing wise guy.

  Esma finally seemed to accede to my discomfort at this turn in the conversation and went off to the bathroom for a minute. When she returned, she got no farther than her bed. She stopped and flopped down on it dramatically, her arms thrown wide.

  “I am entirely knackered,” she said.

  I apologized.

  “My own fault,” she said. “I should have held off on that third glass of wine.”

  As I was gathering my papers, I asked if she’d interviewed Ferko’s son. She had, but the young man remembered nothing of these events, which had occurred when he was only three years old.

  “And what was the local scuttlebutt,” I asked, while I was zipping my briefcase, “when you first went to Tuzla about who was responsible for this massacre?”

  “No more than idle guesses. The Serbs. The Americans.”

  “Any mention of organized crime?”

  “Once or twice. Supposedly a few Roma in Barupra were involved in a car-theft ring and the local mob resented the competition.”

  “What about jihadis?”

  Still prone across the room, she drew her hand to her forehead to think and said that had not come up.

  “And what motives,” I asked, “did the Americans or the Serb paramilitaries supposedly have for killing four hundred people?”

  She hummed tunelessly, trying to recall.

  “There was always a bit of speculation that the Roma were slaughtered in reprisal for a bungled American attempt to capture Laza Kajevic earlier in April 2004. Do you know who he is?”

  “The former leader of the Bosnian Serbs? Of course.”

  A lawyer by training, Kajevic had the same talent as Hitler, making his gargantuan self-importance a proxy for his country’s and his rantings the voice of his people’s long-suppressed rage. Connecting Kajevic to the Roma’s murders, however, sounded a little like blaming the bogeyman. I said that to Esma, who nodded vigorously.

  “Kajevic and his henchmen inflicted the only combat fatalities the US suffered in its entire time in Bosnia. But this is an old tradition in Europe: Something awful happens and the Gypsies are at fault. Certainly, Ferko has never mentioned Kajevic.”

  She had propped herself on an elbow for my final questions, but now plunged to her back again.

  “Bill, you must forgive me, but if you hear me say another word, I shall be speaking in my sleep. And we don’t quite know each other well enough for that yet.”

  Laughing, I thanked her for dinner and promised to reciprocate. We talked momentarily about having another meal after tomorrow’s hearing.

  Outside, I strolled in an oddly buoyant mood to catch the Sprinter, the train that would drop me a block from my hotel. The street, Lange Voorhout, was a broad avenue, with a center esplanade of tall old trees, and lined on either side by stately residences, many now converted to embassies and consulates, according to the big brass plates beside their large front doors. The Hague at 10 p.m. on a weeknight was quiet. A few couples huddled as they strode along in the fierce sea breeze, while isolated bikers whizzed by in their stocking caps, making only grudging allowance for pedestrians.

  Leaving Esma felt a lot like coming in out of an equatorial sun, with my skin still tingling in the shade. She was very bright and disarmingly frank, one of those women whose native attractiveness I inevitably found magnified by her smarts and unapologetic self-confidence. She was sui generis, defiantly herself, which might have been due to her heritage. I hunched up my shoulders in the cold and laughed out loud. It was the first moment that week when I had a solid conviction that I had done the right thing by coming to The Hague.

  II.

  Moving

  4.

  The Order

  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 us
e 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.