| Photo by Jane Scherr |
Brenda Hollis Interview: Conversations with History; Institute of International Studies, UC Berkeley
| Photo by Jane Scherr |
Page 4 of 8
Let's now move to the next phase of your career. You're in the Judge Advocates Corps, you're stationed in Rhein-Main Air Force Base in Germany, and a sequence of events leads you to becoming a pivotal figure in the definition of what human rights will mean in these post-Cold War situations where countries fall apart and ethnic groups are going at each other. Tell us about how you, as a member of the Judge Advocates Corps, wound up getting involved in the prosecution of human rights violations.
Of course. First of all, it's very gracious of you to say I was a pivotal figure. I don't think that's true, but I'll accept the compliment.
Well, we'll explain that later.
A lot of what I've done was a wonderful and accidental confluence of events. I was in Rhein-Main as the staff judge advocate because I was due to meet the promotion board to full colonel. My career advisors in the Judge Advocates Corps had said, "Brenda, you have to do two things to avoid being not selected. You have to avoid the two 'C's,' Colorado and criminal law. We have to make you a staff Judge Advocate somewhere, so you can prove that you can take on the broader responsibilities, the management responsibilities of a senior officer." So Rhein-Main was the base that was selected for me.
Rhein-Main was involved in flying in the air drops and the air land supplies into Bosnia, and I became aware of the Bosnian situation in more detail through my involvement at Rhein-Main Air Base. While I was at Rhein-Main Air Base, I actually met the deputy prosecutor of the Yugoslav Tribunal, who came there to interview a person that we had brought out on one of our planes.
Shortly after that, my tour at Rhein-Main was up, I was due for reassignment, and the judge advocate general of the Air Force nominated me as one of the people to be part of a twenty-two person United States delegation or group of people that were being loaned, seconded to the Office of the Prosecutor in The Hague. He nominated me because they wanted prosecutors, and I had been involved in prosecution at one level or another for most of my judge advocate career. That nomination went up to the Department of Defense; my name was accepted there, and then the State Department accepted it. Then it was sent to the Tribunal and my name was accepted. So I went from Germany, just up the road to The Hague.
We should explain to our audience the confluence of historical events: the Cold War ends, the state of Yugoslavia falls apart, ethnic conflicts and hatreds that had existed for many years came to the fore again, and then in the ensuing military conflicts, various atrocities and human rights violations were committed, which caused the UN Security Council to call for the establishment of a tribunal which would adjudicate these matters. So you were being seconded to the prosecutorial staff of that new legal entity. Is that a fair summary?
That's correct. With the end of the Cold War between Russia and the West, the Security Council was able to act without what had been a standing veto, and was able to act under its Chapter 7 powers, which are very broad powers, to intervene, even in internal affairs of a country if those affairs, the conflict, poses a threat to international peace and security. And both the Yugoslav Tribunal and the Rwanda Tribunal were created by the Security Council using their Chapter 7 powers. And as a result of that, they give very, very broad powers, also, to those tribunals.
When I went to the tribunal in 1994, the Yugoslav Tribunal -- it had actually been created in 1993, the judges had been brought on board -- but when I arrived in the summer of 1994, there were very few people in the Office of the Prosecutor. The prosecutor had not yet arrived; the deputy prosecutor was there. We had maybe thirty or forty people in the office. And the big issue then was who got the one computer, and who got the desk, and who got the one set of books that we were looking at.
So we were just at the very beginning, and it was in an effort to provide human resources to the tribunal, to the Office of the Prosecutor, to get investigations started, that the United States offered me and twenty-one other people from the United States. Most of us were prosecutors or investigators.
Explain to us the nature of the crimes that were within your mandate to identify with regard to who should be accused.
The broad mandate that we had was to investigate and prosecute the people who had committed serious violations of international humanitarian law in Yugoslavia, and for the Rwanda Tribunal, had committed those violations in Rwanda. But when you broke down what those crimes were that constituted the serious violations of international humanitarian law, basically, we were not there to prosecute murder or aggravated assault or torture or rape, we were there to prosecute the grave breaches of the Geneva Conventions, violations of the Customs and Laws of War, genocide, and Crimes against Humanity. Now, the underlying crimes for those would be murders, torture, aggravated assaults, deportations. But in addition to proving those underlying substantive crimes, in order for us to have jurisdiction, we had to prove additional elements.
So, for example, for murder to be a grave breach, we had to prove it was committed during an international conflict and was committed against a protected person. For murder to be a crime against humanity, we had to prove that it was, according to our statute, committed during an armed conflict, and was connected to a widespread or systematic attack against a civilian population. Unlike domestic murder or torture or rape, we had these additional requirements, and if those requirements weren't present in the crime, if there was no connection, then we had no jurisdiction over that crime. So we did have limited jurisdiction in terms of the crimes that we could prosecute.
The reason I used the word "pivotal" is that over time you were given the assignment to participate in and help organize the prosecutorial efforts to build the cases so that there could be a prosecution.
Now, explain to us what is involved. What are the intricacies? You've given us an idea what the crimes were. What were the complications in an international setting like this, that create an even more Herculean task than one would have with, say, a local murder in a local jurisdiction in the United States?
There were quite a few challenges just in the operating environment of an international tribunal. But one of the first would have to be, what are the exact definitions of the elements of these crimes? We couldn't create new crimes, they had to be crimes that were already in existence. But these were crimes that for the most part had not been prosecuted internationally, and maybe had not been prosecuted much at all. So how do you define the different components or elements of those crimes? The tribunals had been given a set of draft elements to work with, and then we had to refine those. We had to determine what we meant by genocide, saying that it was "certain acts committed with the intent to destroy a particular group in whole or in part." What do we mean by "intent?" What do we mean by "in whole," or "in part?"
So that was our first intellectual task, as prosecutors, as international lawyers, to define what the Office of the Prosecutor determined to be the elements of the offenses.
And, in part, you built on the tradition in international law. You would refer back, for example, to the Nuremberg Trials, and so on?
We, in part, did that. We also looked at the preparatory works for the Genocide Convention. How did the people who created this convention and gave this definition of genocide see these various parts as being defined? We also analogized from that, in terms of how it could be developed. So that was a big task that we took on, and did early on. I was fortunate to be able to be involved in that.
We also had to look at issues about our jurisdiction, and what was our position in that. At the very beginning, of course, unlike Rwanda, where most of the victims and witnesses had come back to the country, in Yugoslavia, the victims and witnesses had been forced out, and many of them forced out of the country altogether, hundreds of thousands, over a million, forced out of the country altogether. They were sent to countries all over the world. So we had to, first of all, go through what information we could to determine what investigations we would start with. And then when we did that, then try to determine what people we actually wanted to talk to, and then we had to find where they were. Once we found where they were, we had to work with the countries where they were now residing to work out the conditions under which we could go into that country and interview them. We had to work out the protocol for the interviews. How would we do that? How would we set it up? So we basically had to start our system and create our internal system for investigating, and our procedures that we would follow to ensure that we were acting in conformity.
Then, of course, we had to be sure that we could get the money from the tribunal to go out to these places and talk to these people, to see if they would talk to us. We also had to develop the composition of our teams that would go out. We worked from the very beginning with multidisciplinary teams, so that an investigative team would be comprised of investigators, of analysts, of attorneys, and of translators and interpreters. Everything we did in the field, and even in the courtroom, was through interpreters. Then we worked out our missions, and then we had to prioritize what we would do. So there was a lot of stuff we had to do that in other countries you don't have to do, because you have a hundred, two hundred, several hundred years of tradition and procedure that tells you what to do.
As an international body, then, I would assume it was a hostile environment that you had to work in. I mean, in some sense, the international community had agreed on the need for what you were doing, but not necessarily the local combatants or the factions at work in the particular country, either Yugoslavia or Rwanda.
That's true. The Security Council, as I said, working under Chapter 7, gave us very broad powers. They gave the prosecutor the right to conduct on-site investigations, the right to collect evidence, the right to question suspects and witnesses. They demanded of each state, they put upon them an absolute obligation to comply with orders of the tribunals, to comply with requests for assistance from the prosecutor. But they gave us no effective way of enforcing that. And the international tribunals, of course, have no territory over which they have direct control. They have no police force over which they have direct control. They have no military, no governmental agencies over which they have direct control to bring about what they need. They have no territory in which the witnesses and the accused reside. So the real key to our success was our ability to get the international community to actually enforce the powers that were given to us under the statute.
In Yugoslavia, we were eventually able to do that because IFOR eventually became more supportive of us.
IFOR, explain, is the ...
Was the implementation force that was agreed upon in the date and agreement.
Right. So, the multinational force to implement the peace accord.
The agreement, yes. And then that transformed itself into the stabilization force, which is called SFOR. They began to give us a great deal more assistance. I was on the team that went into the Republic of Srpska for the first time to investigate, and went into Prijedor, into the camps there, and into the towns that had been destroyed. And we were able to go in and do our job with less risk, not with no risk, but with less risk, because we had escorts from IFOR with us all the time. At one point, when we had been directly threatened, we had an armed vehicle come out from IFOR to protect us as we went about our activities. So they were able to ensure that we got the access that the statute guaranteed us. But without that support, it would have been very difficult, if not impossible, for us to do that. We had no similar support in Serbia. And, of course, for a period of time, Serbia would not allow us to go into that country, even to talk to Serb victims of crimes committed against them by members of other ethnic groups.
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