WORK OF THE WAR CRIMES TRIBUNAL
The International Criminal Tribunal for the former Yugoslavia was founded in May 1993 to prosecute war crimes committed on the territory of the former Yugoslavia since 1991.1 As of March 15, 2001, sixty-two individuals were under public indictment, thirty-six of whom were in custody. Twenty people had been convicted and two had been acquitted.2
The tribunal's first public reference to Kosovo was on March 10, 1998, just after the Serbian government's first large-scale attack in the Drenica region, when the tribunal's prosecutor stated that its jurisdiction "is ongoing and covers the recent violence in Kosovo."3 Three days later, the U.S. government announced that it was providing $1,075,000 to support the Tribunal's investigations in Kosovo.
On June 12, 1998, the Contact Group meeting in London urged the tribunal to undertake a "rapid and thorough investigation" of possible humanitarian law violations in Kosovo.4 On July 7, then-chief prosecutor of the tribunal Justice Louise Arbour, wrote a letter to the Contact Group in which she reaffirmed the tribunal's mandate and intentions in Kosovo:
The prosecutor believes that the nature and scale of the fighting indicate that an "armed conflict," within the meaning of international law, exists in Kosovo. As a consequence, she intends to bring charges for crimes against humanity or war crimes, if evidence of such crimes is established.5
Throughout 1998, a number of top western politicians and political bodies publicly supported the tribunal's work on Kosovo. On August 31, the U.S. ambassador-at-large for war crimes issues, David Scheffer, announced that he was not able to visit Belgrade and Kosovo because he had been denied a Yugoslav visa. He told a press conference in Zagreb, Croatia:
The United States is cooperating fully with the Tribunal as it investigates the conflict in Kosovo. We are ensuring that relevant information is provided to the Tribunal in a timely manner so that its investigations can proceed efficiently. We urge other governments to cooperate with and provide information to the War Crimes Tribunal regarding the conflict in Kosovo.6
In early July, the tribunal sent its first team of investigators to the Federal Republic of Yugoslavia and into Kosovo itself to investigate the conflict. Small teams followed up for brief periods in September.
The Yugoslav authorities refused to accept the jurisdiction of the tribunal, and frustrated the work of investigators by denying them visas or forbidding them from carrying out investigations in Kosovo. Only a few tribunal investigators were able to gain access to the province in 1998 and early 1999, and they were officially prohibited by the Yugoslav authorities from interviewing persons or gathering evidence. The Yugoslav authorities based their refusal to cooperate with the tribunal on their view that the conflict in Kosovo was an internal dispute with "terrorists," a view repeatedly rejected by the tribunal, the U.N. Security Council, and other international actors, including Human Rights Watch.7
In October 1998, a Finnish forensic team sponsored by the European Union was granted permission by Yugoslav authorities and the local Kosovo courts to exhume bodies from six sites in Kosovo: Gornje Obrinje, Orahovac, Golubovac (Golubofc), Glodjane, Klecka, and Volujak. The first three burial sites contained the bodies of victims of alleged crimes by Serbian and Yugoslav forces; the later three burial sites were expected to hold the bodies of victims of crimes by the KLA.8
The Finnish team was allowed to conduct investigations into the sites at Klecka and Volujak-both sites of alleged KLA crimes. However, while attempting to reach Gornje Obrinje on December 10, where Human Rights Watch concluded that Serbian forces killed twenty-one members of one ethnic Albanian family in September 1998,9 the Finnish team was blocked by a convoy of Serbian police. About ten armored personnel carriers manned by heavily armed police forces insisted on accompanying the forensic team to Gornje Obrinje, which was located deep within territory under the partial control of the KLA.10
The Serbian police insisted that the team be accompanied by a Serbian court official and members of a Belgrade-based forensic team, and refused to allow the team to proceed without police escort, which the leaders of the forensic team opposed, out of fear of provoking a confrontation with the KLA. During a two-hour negotiation session between the forensic team and the Serbian police, a plainclothes policeman violated the diplomatic immunity of Finnish ambassador Timothy Lahelma by opening the doors of his diplomatic vehicle, grabbing his camera, and removing the film from the camera. According to members of the forensic team interviewed by Human Rights Watch, police repeatedly attempted to shelter their armored vehicles from KLA attack by moving them behind diplomatic vehicles belonging to the E.U. contingent of the Kosovo Diplomatic Observer Mission (KDOM). Anticipating a confrontation between the KLA and the Serbian police, the forensic team decided to abandon its attempt to reach Gornje Obrinje.
On January 18, 1999, three days after the killing of forty-five ethnic Albanians in Racak (see Background), Chief Prosecutor Arbour attempted to enter Kosovo through Macedonia in order to investigate the reported atrocities in Racak. She did not have a Yugoslav visa, having been denied one by the authorities, and was refused entry into the country. Back in The Hague, Arbour stated unequivocally that she would investigate the Racak massacre "with or without access to the territory." Regarding the fears of evidence tampering, she said:
Evidence of tampering-should such evidence become available, is, in fact, excellent circumstantial evidence of guilt. If one can trace where the order to tamper came from, it permits a pretty strong inference that it was done for the purpose of hiding the truth, which demonstrates consciences of guilt.11
Ten days after the killings, the Finnish forensic team was allowed to conduct autopsies on forty of the Racak victims along with teams from Yugoslavia and Belarus. Their report, released March 17, 1999, provided no details on post-mortem findings. The report did conclude that "there were no indications of the people being other than unarmed civilians."12
During the NATO bombing of Yugoslavia, the tribunal set up an office in Tirana, Albania, to interview refugees, and it worked closely with governmental and nongovernmental organizations collecting information on international humanitarian law violations from Albania and Macedonia.
On April 7, the U.S. State Department issued a statement that named nine commanders in the Yugoslav Army, placing them on notice that "VJ and MUP forces are committing war crimes and crimes against humanity in Kosovo"-crimes for which commanders can be indicted by the Tribunal.13 The statement added:
No commander of the VJ or MUP is immune from prosecution, now or in the future. Any commander of the VJ or MUP who plans, instigates, orders, or even aids or abets in a war crime, crimes against humanity, or genocide, is individually responsible for crimes committed in Kosovo. There is no statute of limitations for war crimes, crimes against humanity, or genocide within the jurisdiction of the International Tribunal.14
The statement identified the following individuals as commanders in Kosovo:
· Colonel Milos Mandic, Commander, 252nd Armored Brigade, deployed central Kosovo (Home Garrison: Kraljevo, Serbia);
· Major General Vladimir Lazarevic, Commander, Pristina Corps;
· Colonel Mladen Cirkovic, Commander, 15th Armored Brigade, HQ Pristina;
· Colonel Dragan Zivanovic, Commander, 125th Motorized Brigade, HQ Kosovska Mitrovica and Pec;
· Colonel Krsman Jelic, Commander, 243rd Mechanized Brigade, HQ Urosevac;
· Colonel Bozidar Delic, Commander, 549th Motorized Brigade, HQ Prizren and Djakovica;
· Colonel Radojko Stefanovic, Commander, 52nd Mixed Artillery Brigade, HQ Gnjilane;
· Colonel Milos Djosan, Commander, 52nd Light Air Defense Artillery-Rocket Regiment, HQ Djakovica;
· Major Zeljko Pekovic, Commander, 52nd Military Police Battalion, HQ, Pristina.
On May 27, 1999, the tribunal announced its highest level indictments to date: that of Yugoslav President Slobodan Milosevic and four other top officials for "murder, persecution, and deportation in Kosovo" between January 1 and late May 1999. The indictees are:
· Slobodan Milosevic, President of the FRY, Supreme Commander of the Yugoslav Army, and President of the Supreme Defense Council;
· Milan Milutinovic, President of Serbia and member of the Supreme Defense Council;
· Dragoljub Ojdanic, Chief of Staff of the Yugoslav Army;
· Nikola Sainovic, Deputy Prime Minister of the FRY;
· Vlajko Stojiljkovic, Minister of Internal Affairs of Serbia.
Slobodan Milosevic, Milan Milutinovic, Dragoljub Ojdanic, and Vlajko Stojiljkovic were charged with violating the laws or customs of war (murder and persecutions on political, racial, or religious grounds) and crimes against humanity (deportation and murder). Nikola Sainovic was charged on the basis of individual criminal responsibility for these same crimes.15 The initial indictment did not relate to crimes committed in Bosnia or Croatia, only to crimes committed in Kosovo during the first five months of 1999.
The tribunal established an office in Pristina shortly after NATO's entry into Kosovo in June 1999 to better deal with the formidable task of investigations. The first exhumation season lasted from June to October 1, 1999. Six weeks later, the newly appointed Chief Prosecutor, Carla Del Ponte, presented her preliminary findings to the U.N. Security Council in New York. As of November 10, 1999, she reported, the tribunal had completed work at 195 of 529 reported grave sites in Kosovo, exhuming 2,108 bodies. Del Ponte pointed out, however, that this did not represent the total number of bodies. Exhumations were ongoing, and the tribunal had also "discovered evidence of tampering."16 The next exhumation round lasted from April to October 2000. According to Del Ponte's November 2000 address to the Security Council, tribunal teams examined an additional 325 sites, exhuming 1,577 bodies and the partial remains of 258 others. Del Ponte stated that the provisional total of exhumed bodies over two years is "almost 4,000 bodies or parts of bodies." She added that an accurate figure will never be possible "because of deliberate attempts to burn the bodies or to conceal them in other ways."17
On September 29, 1999, Del Ponte made the tribunal's work in Kosovo a top priority.18 The main focus, she announced, was the investigation and prosecution of Milosevic and the other leaders indicted in May. Thereafter, indictments of other individuals in positions of political and military authority may follow. In addition, the tribunal is investigating perpetrators of particularly egregious crimes-so-called "notorious offenders." This would include those who committed rape or sexual violence during the conflict.
The tribunal also recognized that it "has neither the mandate nor the resources" to be the main investigatory and prosecutorial agency in Kosovo.19 The vast majority of crimes committed during the armed conflict will have to be dealt with by the local Kosovo police and judiciary, currently under the mandate of the United Nations Mission in Kosovo (UNMIK).
In her November 2000 address to the Security Council, Del Ponte also stressed the need to arrest Slobodon Milosevic, who lost his reelection bid in September and was then forcibly removed from office on October 5, 2000. Del Ponte urged the U.N. to pressure the new Yugoslav authorities to cooperate in Milosevic's arrest and extradition to The Hague, stating that "it would be inconceivable to allow Milosevic to walk away from the consequences of his actions."20 She also called on the Security Council to modify the tribunal's statute so that it might deal with post-war abuses against Serbs and other minorities in Kosovo. According to the current statute, with the exception of genocide, the tribunal only has jurisdiction over crimes committed in armed conflict.
After coming to power in October 2000, new Yugoslav President Vojislav Kostunica stated that cooperating with the tribunal was "not a priority." In November, however, he agreed that the tribunal could reopen its office in Belgrade. Newly-appointed Foreign Minister Goran Svilanovic said, "We cannot and should not avoid facing the consequences of war and responsibility of crimes."21 Although several Serbian government representatives have spoken out in favor of cooperation with the tribunal, Kostunica himself repeatedly denigrated the international body as an anti-Serb institution. His negative position on the tribunal changed somewhat after strong pressure from the U. S. government.
In October 2000, the U.S. Congress laid down strict guidelines in the 2001 Foreign Operations Assistance Act, prohibiting the U.S. government from continuing aid to Belgrade unless Yugoslavia cooperates with the tribunal, including "the surrender and transfer of indictees or assistance in their apprehension." According to the legislation, the Bush administration had to decide by March 31, 2001, whether to halt U.S. aid, effectively blocking approximately $50 million allocated for Yugoslavia.
In late January 2001, del Ponte visited Belgrade to meet with the new Yugoslav government. In a press conference after her return to The Hague, the prosecutor said she was disappointed with the level of cooperation she had received, although she remained "cautiously hopeful." Her meeting with President Kostunica, she said, "did not lead to any meaningful dialogue."22
The Yugoslav government's cooperation with the tribunal improved slightly before the March 31 deadline imposed by the U.S. government. The Yugoslav government began debate on a new law to allow for full cooperation with the tribunal and the surrender of indictees, and the tribunal was granted permission to conduct investigations inside Yugoslavia, including the hearing of witnesses and access to documents and archives.23 In addition, two Bosnian Serb indictees ended up in the custody of the tribunal. The first such person, Blagoje Simic, former mayor of Samac, turned himself over to the tribunal on March 12, 2001. Ten days later, Milomir Stakic, former mayor of Prijedor, was arrested by the Serbian police and handed over to the tribunal.24
On April 1, Serbian police and special police arrested former President Milosevic on charges of corruption. The government made no commitment to transfer him to the tribunal. At least publicly, as of late April, none of the investigations involved his role in war crimes or crimes against humanity committed during the wars of Yugoslav succession.
On April 2, the U.S. government certified that conditions had been met for continued economic assistance to Yugoslavia. Full U.S. support for a future international donors' conference, however, was withheld, pending continued cooperation with the tribunal. State Department spokesman Richard Boucher said that the U.S. government "would expect" Yugoslavia to deliver Milosevic to the tribunal but that support for continued aid would not be "based on a single step alone."25 As of April 2001, at least eight persons indicted by the tribunal were believed to be living in Serbia, including the four former Serbian and Yugoslav officials indicted along with Milosevic and three Yugoslav Army officials indicted on charges relating to the capture of Vukovar, Croatia, in November 1991.
On June 28, under strong international pressure, the Serbian government transferred Milosevic to the tribunal in The Hague. He appeared before the court for his arraignment on July 2, refused defense counsel, and denounced the proceedings as a political trial.
DOMESTIC WAR CRIMES TRIALS
Although the vast majority of those accused of having committed war crimes left Kosovo after the war, a few suspects remained in the province. These individuals have been investigated and prosecuted locally before domestic Kosovar courts. Approximately forty individuals accused of war crimes were in custody in Kosovo as of August 2000. The precise number of detainees was unknown since some individuals had been released and others had escaped hospitals or detention facilities, including thirteen people who escaped from the detention facility in Northern Mitrovica in September 2000 and one person who escaped from the U.S. military's Camp Bondsteel.26 At least three of the accused were Roma, and the rest were Serbs. According to police statistics reported in the press, as of December 2000, the local judiciary had indicted twenty-two people for war crimes and nine for genocide.27
In June 2000, UNMIK announced the establishment of the Kosovo War and Ethnic Crimes Court (KWECC) to deal with the prosecution of war crimes committed during the conflict. The court's mandate was to cover events from January 1999 on and to include ethnically motivated crimes committed after the NATO bombing, but the idea was scrapped.
Throughout 2000 and 2001, some war crimes trials were proceeding through the local court sometimes with the participation of international judges. One war crimes trial was completed on September 20, 2000, resulting in a twenty-year sentence for Milos Jokic for killing one man and ordering another to be killed. In June 2001, courts with international judges sentenced three Serbian men to prison terms for their roles in crimes against ethnic Albanians. Zoran Stanojevic, a former policeman, received fifteen years imprisonment for taking part in the Racak massacre, Cedomir Jovanovic, an alleged member of a paramilitary group, received twenty years imprisonment for crimes committed in Orahovac municipality, and Andjelko Kolasinac, former mayor of Orahovac town, received a five-year sentence for the same. All three verdicts were heavily criticized by human rights monitors for the lack of due process during the proceedings.
UNMIK is at odds on how to deal with the local war crimes prosecutions. On the one hand, the international administration wants the justice system to begin functioning, and there is pressure from the Albanian community to hold criminals accountable. On the other hand, the local courts are plagued by underfunding, poor organization, and political manipulation, and there is little chance of Serbian war crimes defendants receiving a fair trial in the Albanian-dominated system.28 A January 2000 OSCE report on the Kosovo judiciary concluded that, regarding war crimes trials against Serbs, there are "real concerns as to the actual bias of the courts."29
After the war, some trials for crimes committed during the armed conflict had also begun in Serbian courts. Two Kosovar Albanians, Bekim and Luan Mazreku, were charged with joining the KLA, raping Serbian women, and then executing Serbian civilians in the Kosovo village of Klecka in 1998 (see Background, Abuses by the KLA).30 On April 18, 2001, after a year-long trial, both men were found guilty of terrorism and sentenced to the maximum twenty years in prison. Citing a biased court, a limited right to defense, and the use of force to extract a confession, the Humanitarian Law Center, which monitored the trial, concluded that the court "presented no evidence to prove that the Mazrekus had committed these crimes."31
On July 19, 2000, a court in Pozarevac, Serbia, convicted two Serbian policemen of the murder of three ethnic Albanians in Kosovo in 1999.32 Boban Petkovic from Velika Hoca was sentenced to four years and nine months in prison for the May 9, 1999, murder of Ismail Durguti, Sezair Miftari, and Miftari's wife Sefkija. Djordje Simic was sentenced to one year in prison for being an accessory to the murders.
On December 20, 2000, a military court in Nis sentenced two Yugoslav Army reservists, Nenad Stamenkovic and Tomica Jovic, to four and a half years in prison for murdering two Kosovar Albanian civilians in Susica village. Army Captain Dragisa Petrovic was found guilty of incitement to murder and sentenced to four years and ten months. In a review of the case, the Humanitarian Law Center welcomed the verdict but criticized the sentence as "too mild." The defendants were found guilty of murder rather than a war crime, the organization said, as is allowed under Article 142 of the Yugoslav Criminal Code.33 The presiding judge, Col. Radenko Miladinovic, said that the sentence was lenient because the soldiers were suffering from "war psychosis" at the time of the crime.34
On April 19, 2001, the Yugoslav Army announced that military courts had begun twenty-four proceedings against soldiers suspected of having committed war crimes in Kosovo.35 On April 24, the army stated that the military prosecutor had ordered investigations against, "soldiers, noncommissioned officers and officers . . . for crimes resulting in deaths and injuries of civilians as well as deprivation of their basic human rights during combat activities in the province of Kosovo in 1998 and 1999."36
According to Radio B92, on May 24, 2001, Serbia's new head of police Sreten Lukic, who was head of the Kosovo police in 1998 and 1999, announced that sixty-six police officers were under investigation for crimes allegedly committed against ethnic Albanians during the NATO bombing. On July 14, 2001, Serbian Justice Minister Vladan Batic said war crimes trials of Serbian citizens would begin in the coming weeks.
INVESTIGATIONS OF NATO AND THE KLA
Consistent with its mandate to investigate all sides, on May 14, 2000, the tribunal formed an internal committee to assess the allegations that NATO committed humanitarian law violations during the bombing campaign against Yugoslavia, and to determine whether the tribunal should commence investigations. In a report made public on June 8, the committee recommended against a further investigation into the bombing campaign as a whole or into specific bombing incidents. "[E]ither the law is not sufficiently clear," the report concluded, "or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences."37
As of July 2001, tribunal investigations against the KLA continued. In her September 29, 1999, statement, Carla Del Ponte specified that her office would investigate the civilian and military leaders "of whichever party to the conflict" who may have committed crimes during the armed conflict.38 In a press conference in Pristina on June 21, 2000, Del Ponte stressed that, while her focus was upon the Serbian and Yugoslav leadership, the upper hierarchy of the KLA was also a target of investigation. Breaking from the practice of providing no details about ongoing investigations, she announced that "five episodes" of alleged KLA crimes were under investigation, although she refused to specify the incidents.
Del Ponte has also criticized the post-conflict abuses against Serbs and Roma in Kosovo, calling them "the seeds of future revenge and lasting instability in the region."39 In her November 2000 address to the U.N. Security Council, she asked that the tribunal's statute be amended so that her office could prosecute the ongoing crimes taking place after the armed conflict.
Four months later, with the outbreak of armed conflict
in the Presevo valley of southern Serbia and the northern regions of Macedonia,
Del Ponte announced that the tribunal's mandate did indeed cover on-going
events in the former Yugoslavia, specifically Kosovo, southern Serbia and
Macedonia. In a press conference in The Hague on March 21, 2001, the chief
prosecutor said that "the continuing violence in each area [Kosovo, southern
Serbia and Macedonia] does indeed satisfy the legal criteria for the definition
of "armed conflict" for the purposes of crimes set out in the statute of
the tribunal." She also announced that her office had opened two investigations:
the first into activities against Serbs and other minorities in Kosovo
by unidentified Albanian armed groups from June 1999 until the present;
and a second investigation into the activities of the Liberation Army of
Presevo, Medvedja and Bujanovac (UCPMB) in southern Serbia from November
1999 until the present.40
1 U.N. Security Council Resolution
827, May 25, 1993.