Testimony

"There were men," said the witness. He was lean and dark, the color of an acorn, and seated beside his lawyer at the small table reserved for testimony, he appeared as tense as a sprinter on the starting line.

"How many men?" I said.

"Eighteen?" he asked himself. "More. Twenty? Twenty," he agreed.

The witness's name was Ferko Rincic, but in the records of the International Criminal Court, he would be identified solely as Witness 1. To protect him, a shade closed off the spectators' section in the large courtroom, and electronically distorted versions of Ferko's voice and image were being transmitted to the few onlookers, as well as over the Internet. Standing several feet away at the prosecutor's table, I had just commenced my examination with the customary preliminaries: Ferko's age—thirty-eight, he said, although he looked far older—and where he lived on April 27, 2004, which was the place they called Barupra in Bosnia.

"And about Barupra," I said. "Did anyone share your house with you?"

Ferko was still turning to the right at the sound of the translator's voice in his headphones.

"My woman. Three daughters. And my son."

"How many children in all did you have?"

"Six. But two daughters, they already had men and lived with their families."

I picked up a tiny photo, creased and forlorn with wear.

"And did you provide me with an old photograph of your family when you arrived this morning?"

Rincic agreed. I announced that the photo would be marked as Exhibit P38.

"Thirty-eight?" asked Judge Gautam, who was presiding. She was one of three judges on the bench, all watching impassively in their black robes, resplendent with cuffs and sashes of royal blue. Following the Continental custom, the same odd white linen cravat I also wore, called a 'jabot,' was tied beneath their chins.

"Now let me call your attention to the computer screen in front of you. Is that photo there, P38, a fair resemblance to how your family looked on April 27, 2004?"

"Daughter third, she was already much taller. Taller still than her mother."

"But is that generally how you all appeared back then, you and your wife and those of your children still at home?"

He peered at the monitor again, his expression shrinking in stages to some form of resignation before at last saying yes.

I began another question, but Rincic suddenly stood up behind the witness table and waved at me, remonstrating in Romany, words the translator was too surprised to bother with. It took me an instant, therefore, to realize he was concerned about his photo. Esma Czarni, the English barrister who had initially brought Ferko's complaint here to the International Criminal Court, rose beside him, drawing her torrents of dark hair close enough to briefly obscure Ferko while she sought to calm him. In the meantime, I asked the deputy registrar to return the old snapshot. When she had, Ferko studied it another second, holding it in both hands, before sliding the picture into his shirt pocket and resuming his place next to Esma.

"And in P38, is that your house directly behind you?"

He nodded, and Judge Gautam asked him to answer out loud, so the court reporter could record his response.

"And what about these other structures in the background?" I asked. "Who lived in those houses?" 'House' was generous. The dwellings shown were no better than lean-tos, each jerry-rigged from whatever the residents of Barupra had salvaged. Timbers or old iron posts had been forced into the ground and then draped most commonly with blue canvas tarpaulins or plastic sheeting. There were also chunks of building materials, especially pieces of old roofs, which had been scavenged from the wreckage of nearby houses destroyed in the Bosnian War. That war had been over for nine years in 2004, but there was still no shortage of debris, because no one knew which sites had been booby-trapped or mined.

"The People," answered Ferko, about his neighbors.

"And is the word in Romany for 'the People' 'Roma'?"

He nodded again.

"And to be clear for the record, a more vulgar word in English for the Roma is 'Gypsies'?"

"'Gypsy,'" Ferko repeated with a decisive nod. That might well have been the only word of English he knew.

"Well, we'll say 'Roma.' Was it only Roma who lived in Barupra?"

"Yes, all Roma."

"How many persons approximately?"

"Four hundred about."

"And now let me ask you to look again at the computer screen. This will be Exhibit P46, Your Honors. Is that roughly how the village of Barupra appeared during the time you lived there?"

Esma had secured a couple of photos of Barupra and the surrounding area, taken in 2000 by one of the international aid agencies. The picture I was displaying showed the camp from a distance, a collection of ragged dwellings clinging together at the edge of a forbidding drop-off.

"And how long had you and the other Roma lived there?"

Ferko seesawed his head. "Five years?"

"And where had you and your family and the other people in Barupra—where had you been before that, if you can say?"

"Kosovo. We ran from there, 1999."

"Because of the Kosovo War?"

"Because of the Albanians," he answered with another dismal wobble of his head.

"So let us return then to the late hours of 27 April, 2004. About twenty men appeared in the Roma refugee camp at Barupra in Bosnia, correct?" We waited again for the laborious process of translation to unfold a floor above the courtroom, where the interpreters were positioned behind a window. My questions were transformed first from English to French—the International Criminal Court's other official language—and then by a second translator into Romany, the Roma's own tongue. The answer came back the same way, like a wave rippling off the shore, finally reaching me in the female translator's plummy British accent. This time, though, the process was short-circuited.

"Va," answered Rincic in Romany as soon as he heard the question in his language, adding an emphatic nod. We all understood that.

"And what nature of men were they?" I asked. "Did they appear to have any profession?"

"Chetniks."

"And please describe to the Court what you mean by that word."

I leaned down to Goos, the tall red-faced investigator assigned to the case, who was seated next to me at the foremost prosecutor's desk.

"What the hell is a Chetnik?" I whispered. Up until that moment I had thought I was doing fairly well, having been on the job all of three days. There was nothing here I was familiar with—the courtroom, my colleagues, or the rigmarole of the International Criminal Court with its air of grave formality. The black robe I wore and the little doily of a tie beneath my chin made me feel as if I were in a high school play. This was also the first time in my life I had examined my own witness without the opportunity to speak to him in advance. I had first met Ferko Rincic in the corridor, only seconds before Esma escorted him into the courtroom. He had gripped the hand I offered merely by the fingertips in a mood of obvious distrust. I did not need anyone to tell me he would rather not have been here.

"They are supposed to be soldiers," said Ferko of the Chetniks. "Mostly they are just killers."

By now, Goos had inscribed his own note concerning the Chetniks in his uneven script on the pad between us: "Serb paramilitaries."

"And how were these Chetniks dressed?" At the witness table, Rincic himself wore weathered twill trousers, a collarless white shirt, a dark vest, and a yellowish porkpie hat, which none of us had thought to tell him to remove in the courtroom. All of it—his long crooked nose that appeared to have been broken several times, his hat, and his thick black mustache, which might have been a smear of greasepaint—made Ferko resemble a lost child of the Marx brothers.

"Army uniform. Fatigues. Flak jackets," Ferko said.

"Were there any insignia or other identification on their uniforms?"

"Not so I remember."

"Were you able to see their faces?"

"No, no. They were masked. Chetniks."

"What kind of masks? Could you make out any of their features?"

"Balaclavas. Black. For skiing. You saw only the eyes."

"Were they armed?"

Again Rincic nodded. To reemphasize the need to answer aloud, Judge Gautam created a broadcast thump by tapping on the silver microphone stalk that rose in front of her, as well before Rincic and me, and at forty other seats in the rows of desks ringing the bench. Those spots were normally reserved for defense lawyers and victims' representatives, but they had no occupants for today's pre-trial proceeding, in which the prosecutor was the lone party.

The large courtroom was a pristine exercise in Dutch Modern, perhaps a hundred feet wide, with a bamboo floor, and furnishings and wainscoting in yellowish birch, the color of spicy mustard. The design impulse had favored the basic over the grand. Decorative elements were no more elaborate than wooden screens on the closed fronts of the desks and on the wall behind the judges, where the round white seal of the International Criminal Court also appeared.

Once Ferko had said yes, I asked, "Did you recognize the weapons they carried?"

"AKs," he answered. "Zastavas."

"Would that be the Zastava M70?" It was the Yugoslav Army version of the AK-47.

"And how is it that you can recognize a Zastava, sir?"

Ferko raised his hands futilely, while his face once more swam through a series of bereft expressions.

"We lived in those times," he said.

Goos called up a photo of the weapon on the computer screens, which rose around the courtroom, beside the microphones. It was a Kalashnikov-style assault rifle with a folding stock and a long wooden handguard above the curved ammunition magazine that projected with phallic menace. I had first seen Zastavas years ago in Kindle County, when I was prosecuting street gangs who were frequently better armed than the police.

"Now when the Chetniks arrived, where were you situated? Were you in your house?"

"No. I was in the privy." I already suspected the translator, with her upper-class accent, was significantly enhancing Ferko's grammar and word choice. Based on my very brief impression of him, I was fairly certain he had not said anything remotely like 'privy.'

"And why were you in the privy?"

When this question finally reached Ferko, he jolted back in surprise and slowly lifted his palms. Laughter followed throughout the courtroom—from the bench, the registry staff seated below the judges, and my new colleagues from the Office of the Prosecutor, a dozen of whom were at the desks behind me to watch this unprecedented hearing.

"Let me withdraw that silly question, Your Honors."

Goos, with his ruddy round face, was smiling up at me in good fellowship. The moment of comedy seemed to have suited everyone well.

"If I may lead, Your Honors: Had a need awakened you, Mr. Witness, and brought you to the privy in the middle of the night?"

"Va," said Rincic and patted his tummy.

"Now, if you were in the privy, sir, how were you able to see these Chetniks?"

"At the top of the door, there is a space. For air. There is a footstool in the privy. When I first heard the commotion as they came into the village, I opened the door a slice. But once I saw it was Chetniks, I locked the door and stood on the stool to watch."

"Was there any light in the area?"

"On the privy, yes, there was a small light with a battery. But there was some moon that night, too."

"And were you alone in the privy throughout the time you saw or heard the Chetniks?"

Several people around the courtroom giggled again, thinking I had once more stubbed my toe on the obvious.

"At first," Ferko said. "When the running and screaming started, I saw my son wander by. He was lost and crying, and I opened the door very quick and brought him in there with me."

"And how old was your son?"

"Three years."

"And once you had grabbed your son, what did you do?"

"I covered his mouth to keep him quiet, but once he knew he couldn't talk, I stood again on the stool."

"I want to ask you about that point in time when the screaming started. But before I do, let me turn to other things you might have heard. First of all, these Chetnik soldiers, did they speak at all?"

"Va."

"To the People or to themselves or both?"

"Both."

"All right. Now how did they speak to the People?"

"One had an electronic horn." He meant a power bullhorn.

"And what language did that soldier speak?"

"Bosnian."

"Do you speak Bosnian?"

He shrugged. "I understand. It is somewhat like they speak in Kosovo. Not the same. But I understand mostly."

"And did he sound like other Bosnians you had heard speaking?"

"Not completely. Right words. Like a schoolteacher. But still, on my ear, it was not right."

"Are you saying he had a foreign accent?"

"Va."

"And did the Chetniks speak to one another?"

"Very little. Mostly it was with the hands." Ferko raised his own slim fingers and beckoned in the air to demonstrate.

"They used hand signals?" There was a pause overhead. The term 'hand signal' apparently did not have an obvious equivalent in Romany. Eventually, though, Ferko again said yes.

"Did you hear the soldiers say anything to one another?" I asked.

"A few whispers when they were near the privy."

"And these words—what language was that?"

"I don't know."

"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?"