There is a real danger that the Kosovo interim accord being discussed this week in France will allow war criminals to go free.
The organization called for the interim agreement to include an unequivocal obligation by all parties (Kosovo Albanians, Serbians, and authorities of the Federal Republic of Yugoslavia (FRY)) to "co-operate immediately and fully" with the International Criminal Tribunal for the Former Yugoslavia, which has a United Nations mandate to investigate and prosecute war crimes in Kosovo. Specifically, the accord should oblige all parties to provide tribunal personnel visa-free access to the territory and give them unfettered rights to interview witnesses and gather evidence. It should also commit the parties to arrest all indicted war criminals present in FRY and transfer them to the tribunal in The Hague.
"It looks like the Contact Group may let justice drop off the table at Rambouillet," said Holly Cartner, executive director of Human Rights Watch's Europe and Central Asia division. "A verbal commitment to try war criminals is not enough. The agreement must include concrete, binding and enforceable obligations on the parties to assist the tribunal."
Since February 1998, the Serbian police and Yugoslav Army, under the control of Yugoslav President Slobodan Milosevic, have committed crimes against humanity and war crimes by attacking non-combatants, executing detainees and systematically destroying civilian property, Human Rights Watch said. Although on a lesser scale than government forces, the Kosovo Liberation Army also has kidnaped civilians and committed some summary executions. Human Rights Watch carries the reports of its investigations into these abuses on its website at Crisis in Kosovo.
Early drafts of the accord circulating before the negotiations began contained stronger language on the jurisdiction of the tribunal in Kosovo, but later drafts have been watered down and ask only for "co-operation" with the tribunal. The current wording is not explicit enough and would allow the parties to evade their obligations to the tribunal, as has happened in Bosnia under the Dayton peace accords. The Yugoslav government has systematically refused to implement tribunal provisions in the Dayton accords, including the obligation to arrest indicted war criminals known to reside in Yugoslavia.
Human Rights Watch is concerned that a similar pattern is emerging in the Kosovo conflict. "The October agreement for a cease-fire in Kosovo omitted an explicit written commitment to cooperate with the tribunal," Cartner explained. "As a result, the Tribunal has faced repeated obstruction to its work. And, as evidenced by the recent massacres, the parties to the conflict have been left to conclude that they can continue to commit atrocities with impunity."
Human Rights Watch recommended that the Contact Group include the following points regarding war crimes in the interim accord:
1. The parties agree to co-operate immediately and fully with the tribunal pursuant to all relevant UN Security Council resolutions.
2. The parties publicly recognize the jurisdiction of the tribunal to conduct investigations in Kosovo.
3. The parties agree to arrest and detain all persons indicted by the tribunal who reside or transit through any part of Serbia or the Federal Republic of Yugoslavia (FRY). Arrested war criminals will be transferred to the custody of the tribunal.
4. The parties agree to provide tribunal personnel with visa-free entry into FRY to conduct unrestricted investigations.
5. The parties commit to provide any and all judicial assistance requested by the tribunal, such as the taking of testimony, access to and production of evidence, and provision of documents.
6. The Organization for Security and Cooperation in Europe's Kosovo Verification Mission should have an explicit mandate to assist the tribunal in all possible ways with its work, including the identification of witnesses to war crimes, the procurement of evidence, and information on KLA and Yugoslav command structure. The Mission should also be responsible for escorting and assisting tribunal personnel, if requested.
7. If NATO troops are deployed, they should provide a secure environment in Kosovo for tribunal investigators.
8. If NATO troops are deployed, they should have an explicit mandate to arrest indicted war criminals.
9. No concessions will be granted to the Yugoslav or Serbian governments, such as the lifting of the so-called "outer wall" of sanctions, until the tribunal certifies that the above conditions have been met.
