Kosovo War Crime Investigation Will Have to Include NATO

Analysis By Milo Branic

Immediately after the NATO-led forces (KFOR) entered Kosovo a month ago, Canadian lawyer Louise Arbour, Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), sent in dozens of forensic experts from several countries to collect evidence of the alleged war crimes.

Canada, Great Britain, France, Switzerland, Denmark and Sweden have signed cooperation agreements with the ICTY and it is very likely that more Western states will join the group.

"Everything is going according to our plan," Arbour announced on July 13 during her first visit to Kosovo. She had attempted to enter the region in January after being refused a visa, but was stopped at the border in a highly-publicized move.

Yugoslavia does not recognize the tribunal's jurisdiction in its territory and had long -- until the NATO attacks started -- considered the Kosovo conflict an internal affair between the Serbian police and ethnic Albanian "terrorists."

The Tribunal's experts in Kosovo are focusing their research mainly on sites listed as containing mass graves in the Tribunal's May 27 indictment against five top Yugoslav officials led by Pres. Slobodan Milosevic.

The sites include the villages of Racak (45 dead), Bela Crkva (65 dead), Velika Krusa (105 dead) and Izbica (130 dead).

The investigators' first priority is to record evidence on the surface, to be followed by exhumations only when required. Investigators say they will do everything to secure sites from intrusion or tampering, with the help of KFOR troops.

Physical evidence obtained under KFOR protection will be then collated with testimonies from refugees, aerial surveillance and other intelligence from NATO countries.

"This horror confirms that my decision to indict Slobodan Milosevic was right," Arbour told journalists after visiting the sites. "Milosevic was right in keeping me out of Kosovo, but now it will be him who will not be able to avoid the Hague tribunal."

The Cambridge-based Movement for the Advancement of International Criminal Law (MAICL) has been collecting eyewitness accounts of NATO bombings and extensive details from individuals with special knowledge on sites targeted by NATO officers.

Some 1,000 individual testimonies had been collected, MAICL reported. The group argues that NATO's deliberate attacks on civilian targets and infrastructure amount to serious violations of international humanitarian law.

MAICL has compiled this information in three dossiers presented to the ICTY. On June 9, a representative of MAICL met Louise Arbour and three of her senior legal staff for three hours to discuss the information and to press for the indictment of NATO leaders.

According to article 16 of the Tribunal's Statute, the prosecutor should act independently and should "not seek or receive instructions from any Government or from any other source."

The prosecutor is authorized to interrogate suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. Upon determining that a prima facie case exists, the prosecutor must prepare an indictment containing a concise statement of the facts and crimes of which the accused is charged.

Article 18 of the Statute states that the prosecutor is entitled to initiate investigations on the basis of information "obtained from any source, particularly from governments, United Nations organs, intergovernmental and non-governmental organizations."

"NATO is naturally anxious to uncover evidence of Serbs' atrocities in Kosovo. If there were none or only few, then the whole explanation on which the air war against Serbia was based would have collapsed," said Jan Oberg, a Swedish peace researcher with long experience in the Balkans.

He recalls that some 2,500 journalists have entered Kosovo along with KFOR. "In their scramble to get more stories about alleged massacres, almost any prudent skepticism has been lost," he observed.

Less then a month after arriving in Kosovo, Western forensic experts have already examined most of the locations mentioned in Milosevic's indictment.

The prosecutor office's newsletter "Tribunal's Update," claims that preliminary investigations show that in each case (Djakovica, Velika Krusa, Bela Crkva and Izbica) sufficient evidence has been found to corroborate statements given by eyewitnesses and evidence from intelligence sources.

According to Paul Risley, from the Office of the Prosecutor, the scale of destruction of certain parts of Kosovo also demonstrates that the crimes had been carefully planned.

However, he admits that the investigation has so far failed to produce material evidence and documentation that could help in establishing the chain of command by which orders to commit war crimes were issued and executed.

The prosecutor's investigations of specific cases are confidential. Their findings could be challenged only before the Court when defense lawyers representing suspects present their own evidence.

Still, the overall activity of the prosecutor's office might be assessed in an analysis of the indictments that have resulted from their investigations so far.

According to independent observers and human rights groups, an ethnic cleansing operation conducted in 1995 by Croatia's army and police in Krajina resulted in the expulsion of some 200,000 ethnic Serbs, which has been investigated by a team of Tribunal's experts.

Yet four years after the massive exodus took place, the prosecutor's office has failed to any indictment against any Croatian military or political leader involved in the Krajina action.

In all their contacts with the Tribunal, Serbian officials had constantly complained that evidence about war crimes committed by Croatian forces against the Serbian population, especially in the area of Medak, has not been taken seriously by the Court's prosecutors.

These reports have lately raised questions regarding the Tribunal's independence.

"Let's keep in mind that Tribunal is not funded by disinterested parties, but by those who had waged or supported the attacks on Yugoslavia. These include the leading NATO governments," observed John Laughland in a recent column published by the London Times.

Indeed, when asked whether NATO leaders could ever be indicted by the International Court for the former Yugoslavia, NATO spokesman Jamie Shea was rather bold.

"Without NATO there would be no Tribunal because NATO countries are in the forefront of those who have established the Tribunal, who fund this Tribunal and who support its activities on the daily basis," he said.

Exactly one year ago, in Rome, a UN international conference to establish an independent International Criminal Court with universal jurisdiction found stiff resistance from the United States -- the ICTW's main supporter -- which in the end voted against the Court along with another six countries, among them China, India, Libya and Israel.