THE ROLE OF THE INTERNATIONAL COMMUNITY
International Response to the Massacres
Virtually all relevant governments and international organizations responded to the Gornje Obrinje and Golubovac massacres with outrage. As with every other atrocity thus far in the Kosovo conflict, however, verbal condemnations and threats were not followed by serious measures to ensure that such atrocities would not happen again. Another massacre, in Racak on January 15, 1999, in which as many as forty-five ethnic Albanians were tortured and summarily executed by Yugoslav forces indicates that President Miloevic feels free to continue his unlawful attacks on civilians.94
The pattern is familiar. The international community expresses moral outrage about an atrocity and promises decisive action, including a possible military intervention. Miloevic responds with a temporary pull-back of his forces and some vague commitments. But no one is willing to take the necessary steps to hold Milosovic to his commitments.
The most common refrain is the serious threat of NATO action against Yugoslav government forces or installations, most likely in the form of air strikes. Western governments, especially the U.S., have devised ever more creative methodsNATO activization orders, the mobilization of troops, impressive air exercises, assertive statements, or leaks to the pressto convince the Western public and the Yugoslav government of their readiness to use force.
But so far, measures by the international community have been weakly enforced, and sometimes rescinded when Miloevic makes concessions on actions that he should not have undertaken in the first place. While the West characterizes these measures as strong steps against a dictator, the abuses continue.
The Yugoslav governments violations of international ultimatums aimed at ending the abuses in Kosovo are frequent and blatant. The attacks on Gornje Obrinje and Golubovac, for instance, took place three days after the U.N. Security Council adopted Resolution 1199 (1998), which demanded that the Yugoslav security forces immediately cease all action... affecting the civilian population and order the withdrawal of security units used for civilian repression.95 But the Security Council, itself stymied by the potential vetoes of Russia and China, did not take any serious steps in response to the Yugoslav governments intransigence.
The Holbrooke-Miloevic Agreement and the OSCE Kosovo Verification Mission (KVM)
When the Gornje Obrinje and Golubovac atrocities hit the Western press, the U.S. government sent Richard Holbrooke, White House special envoy to the Balkans, to Belgrade for negotiations with Yugoslav President Miloevic. After protracted discussions, Holbrooke announced that an agreement had been reached, although no official text was released. The agreement included four essential points: the Federal Republic of Yugoslavia agreed to abide by the conditions of U.N. Security Council Resolution 1199 and to allow NATO monitoring in Yugoslav airspace to ensure compliance, to permit the deployment in Kosovo of a 2,000-person OSCE unarmed civilian verification team, and to engage in a political dialogue with ethnic Albanian leaders over the political status of Kosovo.96
Shortly thereafter, the OSCE mission began to take shape, headed by a U.S. diplomat, William Walker, former U.S. ambassador to El Salvador. By January, the Kosovo Verification Mission (KVM) had approximately 800 people on the ground with branch offices in most of Kosovos larger towns. While the KVM has been successful in putting out small fires, such as negotiating the release of prisoners, it was not able to halt an escalation of hostilities in early 1999. A group of verifiers watched from a ridge as government forces fought with the KLA in Racak on January 15, shortly before Yugoslav forces tortured and summarily executed as many as forty-five ethnic Albanian civilians in the village.
On the positive side, KVM includes a human rights department that is actively collecting information on human rights abuses committed by all sides in the conflict, although its reporting has not been made public. Ambassador Walker openly condemned the attack on civilians in Racak, which he correctly blamed directly on Yugoslav government forces. (See Appendix A)
The Work of the International Criminal Tribunal for the Former Yugoslavia
Human rights organizations can document the abuses taking place in Kosovo, and the international community can take steps to bring these abuses to an end. But the only institution that has been entrusted by the international community to prosecute the persons responsible for violations of humanitarian law is the International Criminal Tribunal for the Former Yugoslavia (ICTY). The role of the ICTY is of crucial importance, as the prosecution of those who commit atrocities is likely to have a significant deterrent effect in addition to upholding the principles of international justice.
ICTYs jurisdiction over war crimes committed in Kosovo under its mandate as set out in U.N. Security Council resolution 827 is undisputable and has been repeatedly reaffirmed by the U.N. Security Council in its resolutions on Kosovo,97 as well as by the tribunal itself.98
The Yugoslav authorities have refused to accept the jurisdiction of the ICTY, and have frustrated the work of ICTY investigators in Kosovo by refusing to grant them visas and barring them from carrying out investigations. Only a few ICTY investigators have been able to gain access to Kosovo, and even they have been formally prohibited by the Yugoslav authorities from interviewing persons or gathering evidence. The Yugoslav authorities base their refusal to cooperate with the ICTY on their view that the conflict in Kosovo is an internal dispute with terrorists, a view repeatedly rejected by the ICTY, the U.N. Security Council, and other international actors.99
In early October, immediately following the initial reports of the atrocities documented in this report, Yugoslav authorities first denied visas to ICTY investigators. According to a statement by the ICTYs Office of the Prosecutor:
Up until the last few weeks, the Prosecutor has been undertaking investigations in relation to the events in Kosovo without any obstruction from the Belgrade authorities. A team has just returnedfrom Kosovo and it was the Prosecutors intention to supplement this team with other investigators. That has not been possible because for the first time the Belgrade authorities had not issued visas in time for these other investigators to travel to Yugoslavia. ... [T]he representatives of the Foreign Ministry indicated that the official position of the Federal Republic of Yugoslavia (FRY) regarding the Tribunal and Kosovo is that the Tribunal has no jurisdiction to conduct investigations in Kosovo and the Tribunal will not be allowed to do so.100
The October 12 agreement between Yugoslav President Slobodan Miloevic and U.S. envoy Richard Holbrooke did not contain a recognition of the ICTYs jurisdiction, although Milosovic did agree to abide by Security Council Resolution 1199 (which in turn refers to ICTY jurisdiction) and to increase access for ICTY investigators to Kosovoa promise soon broken.101 Zoran Knezevic, the Yugoslav Minister of Justice, later reiterated the governments position that the October 12 agreement does not require Belgrade to recognize the jurisdiction of the ICTY, and stated that the ICTY has no jurisdiction over Kosovo, not according to any international document.102
On November 5, 1998, Louise Arbour, chief prosecutor for the ICTY, and Judge Gabrielle Kirk McDonald, president of the ICTY, were forced to cancel a proposed mission to Kosovo after the Yugoslav government granted the team restricted visas that were only valid for seven days and did not permit travel to Kosovo. The decision to refuse the visa requests was based on the refusal of the FRY government to recognize the jurisdiction of the ICTY over Kosovo, as explained in a letter from the FRY Ambassador to Chief Prosecutor Arbour:
As you have already been informed, the Federal Republic of Yugoslavia does not accept any investigations of ICTY in Kosovo and Metohija generally, nor during your stay in the FR of Yugoslavia.103
Judge Kirk McDonald characterized the refusal to grant the proper visas as the actions of a rogue state that holds the international rule of law in contempt, and later wrote to the U.N. Security Council to ask for measures which are sufficiently compelling to bring the Federal Republic of Yugoslavia into the fold of law-abiding nations.104
The U.N. Security Council passed Resolution 1207 on November 17, 1998, dealing specifically with the noncompliance of the Federal Republic of Yugoslavia with the ICTY. However, the language of the resolution relating to Kosovo was relatively weak, possibly in order to avert a veto from Russia or China. China abstained from the vote on the basis that the ICTY does not have the right to interfere in the internal affairs of Yugoslavia.105
It is not difficult to ascertain why Belgrade refuses to recognize the jurisdiction of the ICTY. Serious violations of the laws of war have been committed in Kosovo, and the officials responsible for these abuses are liable to indictment and prosecution by the tribunal. The actions of the Yugoslav authorities have indeed been successful in limiting the work of the ICTY in Kosovo, and crucial evidence of war crimes may have been lost or tampered withas the ICTY attempts to negotiate access. Government obstacles, for example, preventing ICTY personnel from visiting the Gornje Obrinje and Golubovac sites prior to the burial of the bodies made it much more difficult to secure important forensic evidence and eyewitness testimonies. For its part, the ICTY Prosecutor has correctly asserted that the question of the tribunals jurisdiction over crimes committed in Kosovo should be resolved in court by tribunal judges, not asserted by Yugoslav authorities as a ban to an investigation.106 Leaving the question of jurisdiction to later resolution in court, the Prosecutor has undertaken that [t]he granting of access to Kosovo to [her] Office for investigative purposes will not constitute an admission by the FRY that the ICTY has any jurisdiction in this matter.107
Many of the witnesses interviewed by Human Rights Watch for this report expressed a desire to cooperate with the ICTY, and were often living in great fear because no steps had been taken by the international community to ensure their safety.108 Only through concerted international action, based on clear benchmarks for compliance, and decisive steps in the face of noncompliance, will the ICTY be able effectively to carry out its vitally important mandate. Such political commitment by the international community to the work of the ICTY has been sorely lacking.
The Work of Forensic Teams in Kosovo
In addition to the investigations into humanitarian law violations in Kosovo being carried out by the ICTY and human rights organizations, there is a need for specialized forensic investigations. As the experience in other parts of the Balkans has demonstrated, professional forensic investigations can assist in determining the time, circumstances, and causes of death. Many of the testimonies gathered by Human Rights Watch describe the execution-style murders of captives, such as the killing with an axe of two persons at the Hysenaj compound of Gornje Obrinje, witnessed directly by an elderly woman. Forensic evidence helps to support such witness testimony, and can have additional probative value: for example, a person killed through multiple blows from an axe is more likely to have been the victim of an execution-style killing than someone killed by a long-distance bullet.
The Yugoslav authorities have effectively prevented forensic scientists from carrying out credible and useful investigations into allegations of atrocities committed by Yugoslav forces. Physicians for Human Rights (PHR), a professional association of forensic scientists applied for twelve visas on March 13, 1998, to conduct forensic investigations into the deaths of eighty persons killed in Drenica during the February 1998 police actions in Kosovo. The Yugoslav authorities responded six weeks later, stating that they would be willing to grant three visas to U.S. members of PHR, contingent on their participation with other investigators designated by the Yugoslav government. These conditions were considered unacceptable to PHR, which characterized them as attempts to stymie any serious investigation into the Kosovo killings.109
Instead of allowing independent investigations, the Yugoslav authorities proceeded to conduct their own investigation into several atrocities that the government claimed had been carried out by the KLA. However, the manner of the exhumations and investigations carried out at Klecka, Glodjane, and Volujak raises serious concerns about the preservation of evidence.110 A Human Rights Watch researcher was present at the Volujak exhumations of four bodies, and clearly observed the lack of scientific procedures followed by the untrained persons at the scene. For example, body parts were removed from the scene before entire corpses were exhumed and photographed. Noforensic experts were present at the exhumation; such exhumations are more likely to destroy crucial evidence than produce anything substantial. While the KLA has been directly implicated in some serious abuses, especially summary executions near Glodjane, serious questions have also been raised about the validity of the information presented by the Yugoslav authorities, especially about the Klecka site. This underlines the importance of an independent and credible forensic investigation into all allegations of atrocities in Kosovo.
Following the Holbrooke-Miloevic agreement, an independent forensic team from Helsinki, Finland, was invited by Belgrade to support the work of Yugoslav authorities investigating KLA atrocities. The Finnish team, sponsored by the European Union, accepted the invitation but insisted on a mandate also to conduct investigations into allegations of atrocities by Yugoslav forces, particularly Gornje Obrinje, Golubovac, and Orahovac. After lengthy negotiations between the Finnish government and the Belgrade authorities, the Finnish team was able to get a promise from Belgrade that it would be allowed to investigate six sites, including three sites of suspected KLA atrocities (Klecka, Glodjane, and Volujak) and three sites of suspected atrocities by Yugoslav forces (Gornje Obrinje, Golubovac, and Orahovac).
The Finnish team conducted investigations at the Klecka and Volujak sites without interference from the Yugoslav government or the KLA. When the Finnish forensic team attempted to reach the Gornje Obrinje site, however, for a planned exhumation on December 10, 1998, a series of incidents with the Yugoslav authorities prevented them from reaching the site. A Serb court official, Pritina investigative judge Danica Marinkovic, and two members of a Belgrade-based forensic team insisted they had the right to accompany the Finnish team, and that the Finnish team could not work on exhumations without their presence.111 In addition, a heavily armed contingent of Serb police in armored personnel carriers (APCs) insisted on accompanying the forensic team to Gornje Obrinje, which was then located in an area under KLA control. During the two-hour negotiation aimed at resolving the incident, the police repeatedly attempted to shelter themselves from possible KLA attack by moving their APC vehicles behind the diplomatic vehicles of the European KDOM contingent in which the Finnish scientists were traveling. In addition, a plainclothes policeman at the scene violated the diplomatic immunity of Finnish Ambassador for Human Rights Timothy Lahelma, by opening the door of his diplomatic car, grabbing Ambassador Lahelmas camera, and removing the film. The KLA made it clear that it would not allow the Serbian police accompanying the Finnish team to travel through the territory under KLA control. The Finnish forensic team, after consultation with European diplomats, decided to abandon its attempt to reach Gornje Obrinje rather than risk an armed confrontation between their police escorts and the KLA.112 Yugoslav authorities continue to insist that the Finnish team can only carry out investigations in cooperation with their Belgrade-based counterparts and a local court official, and that a police escort is essential to ensure the safety of the Yugoslav authorities.
94 See Appendix A, Yugoslav Government War Crimes in Racak, Human Rights Watch, January 1999.
95 U.N. Security Council Resolution 1199 (1998).
96 The only announcement from the Yugoslav government came through the Serbian President Milan Milutinovic in his report to the Serbian government on October 13. The report presents the OSCE mission and stresses the governments intention to resolve the Kosovo conflict peacefully and through dialogue as long as Kosovo remains within the framework of Serbia. Point 10 of statement also said:
Not one person will be criminally prosecuted before government courts for criminal acts in connection with the conflict in Kosovo, except for those crimes against humanity and international law as foreseen in Chapter 16 of the Federal Criminal Law. With a goal of ensuring complete openness, the government will allow complete and unhindered access by foreign experts (including pathologists) who will cooperate with government investigators.
Neither of these promises, to halt criminal prosecutions in Kosovo or to allow unhindered access by foreign experts, has been kept by the Serbian government.
97 U.N. Security Council Resolution 827 established the ICTY for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace... Kosovo is located inside the territory of the former Yugoslavia, and the Security Council has not yet determined a date on which the jurisdiction of the ICTY will expire.
In Resolution 1160, adopted on March 31, 1998, the U.N. Security Council [u]rges the Office of the Prosecutor of the International Tribunal established pursuant to Resolution 827 (1993) of 25 May 1993 to begin gathering information related to the violence in Kosovo that may fall within its jurisdiction, and notes that the authorities of the Federal Republic of Yugoslavia have an obligation to co-operate with the Tribunal....
In Resolution 1199, adopted on September 23, 1998, the U.N. Security Council noted the communication by the Prosecutor [of the ICTY] to the Contact Group on 7 July 1998, expressing the view that the situation in Kosovo represents an armed conflict within the terms of the mandate of the Tribunal, and called upon all parties to co-operate fully with the Prosecutor [of the ICTY] in the investigation of possible violations within the jurisdiction of the Tribunal.
On October 1, 1998, following an emergency session of the U.N. Security Council to discuss the initial reports of the massacres documented in this report, the U.N. Security Council again reaffirmed the jurisdiction of the ICTY: Council Members recalled the role of the International Criminal Tribunal for Yugoslavia, which is empowered to investigate violations of international humanitarian law in Kosovo.
98 The International Criminal Tribunal for the Former Yugoslavia press statement, The Prosecutors Statement Regarding the Tribunals Jurisdiction Over Kosovo, The Hague, March 10, 1998; The International Criminal Tribunal for the Former Yugoslavia press statement, Communication from the Prosecutor to the Contact Group Members, The Hague, July 7, 1998.
99 The Kosovo conflict has reached the level of an internal armed conflict, so that, at the very least, Common Article 3 of the Geneva Conventions applies. For a full discussion of the relevant international law, see the Human Rights Watch report Humanitarian Law Violations in Kosovo, October 1998.
100 Statement by the Office of the Prosecutor, The Prosecutor does not accept the refusal by the FRY to allow Kosovo investigations, October 7, 1998.
101 Jane Perlez, Milosevic Accepts Kosovo Monitors, Averting Attack, New York Times, October 14, 1998.
102 "Yugoslav justice minister denies Hague Tribunal jurisdiction in Kosovo, Associated Press, October 30, 1998. Minister Knezevic made a similar statement on October 15, stating that the Belgrade government does not recognize the jurisdiction of the ICTY but would allow ICTY investigators access to Kosovo. Belgrade does not recognize ICTY jurisdiction in Kosovo: Minister, Agence France Presse, October 15, 1998. Such access was never provided.
103 "Statement by Justice Louise Arbour, Prosecutor of the ICTY, November 5, 1998.
104 Letter of Gabrielle Kirk McDonald, Judge President of the ICTY, to the U.N. Security Council; War Crimes Court cancels mission to Yugoslavia, Agence France Presse, November 5, 1998; Elena Becatoros, U.S. Envoy sees progress in Kosovo peace efforts, Associated Press, November 5, 1998.
105 "UN Security Council Demands Belgrade Cooperation on Kosovo, Agence France Presse, November 17, 1998.
106 ICTY Press Release, Kosovo: Statement by Justice Louise Arbour, Prosecutor of the ICTY, January 16, 1999.
107 ICTY Press Release, Press Statement from the Prosecutor regarding Kosovo Investigation, January 20, 1999.
108 The international community did, however, play an important role in evacuating Selmon Morina, the sole survivor of the summary executions carried out in Golubovac.
109 PHR Press Release, On the Eve of Contact Group Meeting, Medical Group Accuses Yugoslav Government of Stymying Investigation into Kosovo Killing, dated April 28, 1998.
110 For information on KLA abuses in Glodjane and Klecka, see the Human Rights Watch report, Humanitarian Law Violations in Kosovo, pp. 77-78.
111 The choice of judge Danica Marinkovic to accompany the Finnish team was interpreted as a provocation by many ethnic Albanians, as this particular judge has been tied to a number of cases of torture of ethnic Albanians in custody, sometimes leading to deaths in detention. See Human Rights Watch, Persecution Persists: Human Rights Violations in Kosovo (December 1996) and Human Rights Watch, Detentions and Abuse in Kosovo, December 1998. Marinkovic also served as an investigative judge in the Klecka case, interrogating two ethnic Albanian suspects in front of television cameras. The allegations of KLA atrocities at Klecka continue to be a matter of dispute.
112 Human Rights Watch telephone interview with Ambassador Timothy Lahelma, December 11, 1998.