Kosovo Investigation: A New Approach?

This may--or may not--mean that Washington, London, Paris and other western capitals have switched from simply making propagandist threats against Yugoslav President, Slobodan Milosevic, to a more discreet but potentially more effective approach which may involve opening their intelligence services' archives to the Tribunal's Office of the Prosecutor (OTP).

In addition to intelligence information and witness testimonies collected in refugee camps in Albania and Macedonia to OTP investigators and representatives of other governmental and non-governmental organisations, two other elements are necessary to ensure the success of the Kosovo investigation. the first is a guarantee that OTP investigators will be able to enter Kosovo at the same time as any international force, in order to secure scenes where crimes may have been committed, and to conduct on-site investigations.

The second is a guarantee outlined last week by the Tribunal's President Gabrielle Kirk McDonald in her speech at the Council of Foreign Relations in New York, that: "Any peace agreement [on Kosovo should] include specific reference to the Tribunal [and] explicitly empower any implementation force to assist the Prosecutor in her investigations and to detain persons indicted by the Tribunal."

President McDonald also reminded her public that "insufficient emphasis on this aspect of the Dayton Agreement seriously impeded Bosnia and Herzegovina's recovery." And she concluded with a warning: "If there is to be peace in the region, it is essential that those mistakes are not repeated in Kosovo."

Chief Prosecutor Louise Arbour, on the other hand, appears unperturbed by speculations that Milosevic might seek immunity from prosecution in exchange for consenting to the deployment of international forces in Kosovo. This theory was published last week by the usually well-informed Paris daily, Le Monde, in an article suggesting that the message was conveyed to NATO by Russian envoys, an accusation which Moscow denies.

When asked whether a political deal between the West and Milosevic might exclude the Yugoslav President from prosecution, Justice Arbour said: "Our Tribunal is not impeded by any form of pre-existing immunity for heads of state, even while in office, so there is absolutely no impediment to our bringing the case up the command and control structure to wherever the evidence will show responsibility lies." On the contrary, she added: "The expectations are that we will point our efforts up the chain of command to try to ascertain where the highest level of responsibility is."

At the same press conference, held last week in Macedonia's capital, Skopje, Arbour stressed the investigation was still in its early stages and declined to give details about what evidence she had on events in Kosovo. Paul Risley, the new OTP press officer, gave a similar message at the Tribunal's Friday press briefing. The investigators have a huge task to do sifting through the enormous quantity of information they are receiving, particularly since the investigation is being carried out during the conflict, he said."It is thus still too early to speak of any results of the investigation."

It does not appear too early for those groups who believe that NATO has committed war crimes in Yugoslavia. In the previous Tribunal Update we outlined the initiative by the "European Committee for the Protection of Yugoslavia and Serbian National Interests" to persuade the Tribunal to open a "Clinton & Others" case. On 3 May their delegation submitted a request for an indictment of the leaders of the United States and NATO, for genocide, crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war, in their "illegal and criminal aggression" against Yugoslavia.

Last week the Tribunal received two more such requests, one collective and one individual. A group of lawyers from several countries, led by professors from Osgoode Hall Law School of York University in Toronto (where Justice Arbour was a professor before becoming a judge) have charged Bill Clinton, Madeleine Albright, Javier Solana, Jamie Shea, Jean Chretien, Art Eggleton, Lloyd Axworthy and 60 other heads of state and government, foreign and defence ministers and NATO officials, with war crimes committed in NATO's bombing campaign against Yugoslavia.

The list of crimes includes "willful killing, willfully causing great suffering or serious injury to body or health, extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly, employment of poisonous weapons or other weapons to cause unnecessary suffering, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity."

The complainants urge Justice Arbour "immediately to investigate and indict for serious crimes against international humanitarian law" the 67 named leaders and whoever else shall be determined by the Prosecutor's investigations to have committed crimes in the NATO attack on Yugoslavia. Copies of the charges have been sent to the "accused".

The individual complaint against "NATO's political and military leaders and all responsible NATO personnel" was prepared by the Greek lawyer, Alexander Lykourezos, once believed to represent indicted Bosnian Serb military leader, General Ratko Mladic. Apart from the fact that the names of the 'accused' have been omitted in his document, his complaint was presented in the form of a real indictment.

Unidentified "NATO leaders" are charged with two counts of grave breaches of the Geneva Conventions of 1949(willful killing of civilians and wanton destruction of property not justified by military necessity); three counts of violations of the law or customs of war (wanton destruction of cities, towns or villages; use of poisonous weapons and weapons calculated to cause unnecessary suffering; and destruction of institutions dedicated to religion, charity, education, the arts and science, historical monuments and works of art and science).

Like any 'real' indictment, Lykourezos detailed "NATO's crimes" in 38 pages of text, including long lists of names of civilian casualties and destroyed civilian and other objects. "There can be no doubt," Lykourezos concluded "that the criminal conduct of NATO's political and military leaders was wilful and wanton. The degree and level of criminal responsibility of each respective individual who contributed to the decision making and/or order and/or performance of the criminal actions (...) is an issue for the Tribunal to determine."

Consistent with usual OTP practice, Prosecutor Arbour has refused to comment on the above-mentioned documents or any other allegations of violations of international humanitarian law allegedly perpetrated by NATO countries.

Arbour had "accept[ed] the assurances given by NATO leaders that they intend to conduct their operations in Yugoslavia in full compliance with international humanitarian law," as she put it last week. She added that she had reminded many of those leaders "of their obligation to conduct fair and open-minded investigations of any possible deviance from that policy, and of the obligation of commanders to prevent and punish, if required".

In her introductory statement at the launch of the ICC Coalition's global ratification campaign--given last Thursday at The Hague Appeal for Peace Conference--Justice Arbour outlined an original and bold interpretation of the position taken by NATO member states towards the Tribunal's jurisdiction over its military actions.

She said: "The recent events in Kosovo have created in my view, an unanswerable precedent in favour of a broad-based application of international humanitarian law, enforceable before an international forum. On 24 March 1999, 19 European and North American countries have said with their deeds what some of them were reluctant to say with words.

They have voluntarily submitted themselves to the jurisdiction of a pre-existing International Tribunal, whose mandate applies to the theatre of their chosen military operations, whose reach is unqualified by nationality, whose investigations are triggered at the sole discretion of the Prosecutor and who has primacy over national courts.

"Politicians are often the first to recognise that more is conveyed by deeds than by rhetoric. I would have thought that the 19 countries of NATO should be able to ratify a Treaty under which they would have considerably less exposure to scrutiny, let alone prosecution, than they have before ICTY.

"At the time of the Rome Diplomatic Conference, issues had been raised about the risk, unacceptable to many in the military establishment, of submitting to the judgement of others the complex, and sometimes unclear boundaries between justifiable military targets and possible civilian casualties, and the even more problematic appreciation of the issue of tolerable proportionality between military advantage and foreseeable civilian cost.

"By engaging in military operations in Kosovo under the jurisdictional competence of ICTY, NATO leaders have affirmed their confidence in an international forum that, even in its short history, has demonstrated its competence, its integrity, and its transparency. It is, in my opinion, the greatest gesture of confidence in international criminal justice, and it fares well for the launch of a ratification campaign for an institution that will be considerably less intrusive than the ad hoc tribunals, but that, if well-staffed and well-run, should enjoy the same credibility."

It would be interesting to see what would happen if Arbour acted on the ever increasing number of complaints and put to test the NATO leaders' "confidence in an international forum" and their "voluntarily submission" to the jurisdiction of the Tribunal.

NATO spokesman Jamie Shea on Sunday avoided a direct answer to the question whether his organisation really accepts the jurisdiction of the Tribunal, pointing out that a distinction should be made "between the theoretical and the practical". Although he was not specific, "the theoretical" is believed to refer to what Prosecutor Arbour had said three days before. By contrast, Shea offered a detailed elaboration of the other, "practical dimension".

He said that: "NATO is a friend of the Tribunal" and "would allow Justice Arbour to go to Kosovo and investigate. NATO are the people who have been detaining indicted war criminals for the Tribunal," and "NATO countries are those that have provided the finances to set-up the Tribunal."

And he concluded that: "We and the Tribunal are all of one on this: we want to see war criminals brought to justice. And I am certain when Justice Arbour goes to Kosovo and looks at the facts ... she would be indicting people of Yugoslav nationality. And I don't anticipate any other at this stage." In other words, no chances for the Tribunal's "Clinton & Others" case.

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