Carla Del Ponte Defines The Prosecution's 'Kosovo Priorities'

Or as the Tribunal's first Chief Prosecutor Richard Goldstone used to say, to "climb the ladder of responsibility as high as the evidence can take it". The majority of crimes in Croatia and Bosnia were committed before the Tribunal was founded and became functional. Until the Dayton Agreement and the deployment of international forces in Bosnia at the end of 1995, early 1996, OTP investigators had little chance to investigate crimes in the field. This was especially so in that part of Bosnia where most crimes were committed - an area under the control of Serbian forces under the command of accused general Ratko Mladic.

Even today, six years after the founding of the Tribunal, the OTP still faces difficulties in investigating possible crimes committed during Operations Flash and Storm, the Croatian Army's lighting attacks to recapture Serb held Croatian territory in 1995.

None of these obstacles exist in Kosovo. The OTP investigators entered the Kosovo crime scenes on the heel of international forces, supported by more than a dozen forensic teams placed at its disposal by several different countries. The traces of crimes were still fresh, and given their extent, not difficult to discover or document. In addition, more so than in Croatia and Bosnia, Western governments were more inclined to cooperate with the Kosovo investigations. The OTP were even granted unprecedented access to certain Western secret service archives.

All in all, this has allowed the OTP to see the Kosovo experience as a model for future works. As former Chief Prosecutor Louise Arbour told Tribunal Update in her last interview, the Kosovo investigation will be "a kind of a model of how the permanent International Criminal Court will be expected to act... when all of a sudden something will blow up in Asia or Africa". (See Tribunal Update No. 145)

Two weeks after taking over from Arbour as Chief Prosecutor, Carla Del Ponte, further defined her 'Kosovo strategy', and the OTP's priorities under her mandate. On September 29, in her first public statement, she reminded the Kosovo investigation and prosecution "...have to be conducted within the scope of the statutory jurisdiction of the International Tribunal; in accordance with the prosecution strategy adopted by the Office of the Prosecutor (OTP); and as a function of the resources available to the OTP".

Within that framework - or those limitations - "the primary focus of the OTP, must be the investigation and prosecution of the five leaders of the FRY and the Republic of Serbia, who have already been indicted, and who are alleged to be responsible for the crimes described in the indictment. "This involves gathering additional evidence relating to what occurred on the ground... and collecting further evidence respecting the chain of command and responsibility linking the accused to what happened on the ground during that time period. This will be done, in order to add to the existing evidentiary foundation supporting the indictment."

Obviously, Del Ponte has no doubts that at least some accused, possibly including presidents Slobodan Milosevic of Yugoslavia and Milan Milutinovic of Serbia, will one day appear before the Tribunal to answer charges. Arbour's "climb up the ladder of responsibility" took her up to the very top of the political and military leadership of the FRY and Serbia. But Del Ponte says OTP investigative resources must also be applied to "other high level civilian, police and military leaders, of whichever party to the conflict, who may be held responsible for crimes committed during the armed conflict in Kosovo." She might start with the list with the names of 13 Yugoslav and Serbian leaders, including the five top figures already accused, to whom Arbour sent a public warning at the end of March 1999. In that, she reminded them that they were obliged to respect international humanitarian law and prevent, or punish, subordinates they knew were planning, or had committed, crimes (See Tribunal Update Nos. 131, 139).

At the same time Del Ponte also warned the Kosovo Albanian political-military leadership that they may also face indictment if it turns out - as Deputy Prosecutor Graham Blewitt put it - that violence against Serbs and other minorities are not "isolated acts of revenge... but a part of a planned and systematic policy".

Beyond these quarters, Del Ponte further specified, the OTP "may investigate and prosecute other individuals, on a case by case basis, who may have committed particularly serious crimes during the course of the armed conflict...(and) perpetrators of sexual violence committed in relation to the armed conflict in Kosovo".

While investigations to date show that the extent of the crimes in Kosovo are very big, the OTP and the Tribunal's resources are very limited - and the expectations of the victims and their families, are huge. Thus the OTP and the Tribunal have come in for criticism over the last few months, from both Serb and Albanian sides, for their alleged 'failure' to investigate all the crimes or indict all the perpetrators.

In reply, Del Ponte warns them not to expect that justice will be satisfied exclusively in The Hague. "It is clear," she said, that the OTP and the Tribunal have "neither the mandate, nor the resources to function, as the primary investigative and prosecutorial agency for all criminal acts committed on the territory of Kosovo.

"The investigation and prosecution of offences, which may fall outside the scope of the ICTY jurisdiction... is properly the responsibility of UNMIK (the UN authority in Kosovo), through UNCivPol (the UN civilian police force) and the newly formed civilian police in Kosovo, assisted by (the NATO troops of) KFOR." Naturally, the Prosecutor said she did not intend to "absolve" herself of the responsibility of pursuing "lesser offences" and perpetrators. She demanded "to be kept informed about the nature and status of investigations being conducted (by other agencies) into matters that may potentially have a relationship to crimes within the purview of the ICTY".

Del Ponte said the Security Council "provided for concurrent jurisdiction in the International Tribunal and in national courts to prosecute persons for crimes within the scope of the ICTY Statute.

"Therefore, the judicial authorities in Kosovo have the competence to judge those accused of crimes of the sort that come within the jurisdiction of the International Tribunal. In appropriate cases, which must be determined on a case by case basis, it is open to the International Tribunal to request national courts to defer to its competence, in accordance with the Statute of the Tribunal and its Rules of Procedure and Evidence."

The International Tribunal has the power to prosecute persons for grave breaches of the Geneva Conventions of 1949, for violations of the laws and customs of war, for genocide, and for crimes against humanity.

But Del Ponte notes that, "with the exception of genocide, a prerequisite to the prosecution of persons charged with committing the crimes falling within the jurisdiction of the ICTY is the existence of an armed conflict at the time of the commission of the crimes and, in the case of grave breaches (of the Geneva Conventions), the existence of an international armed conflict)." The Prosecutor cites the judgment in the Appeals Chamber in the Tadic case, and its definition of an armed conflict. "An armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.

"International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved."

The Appeals Chamber ruling requires that a link between the alleged offence and a recognised armed conflict be proven before the crime can be said to fall within the ICTY's jurisdiction. Thus, according to Del Ponte, "it is difficult to prejudge the matter of jurisdiction, and so the Prosecutor will continue to examine the factual and legal basis that may link offences to the armed conflict in Kosovo.

"Nevertheless, the limits of jurisdiction cannot be ignored, and must be taken into account along with a prosecution strategy that properly focuses on leadership investigative targets, as well as perpetrators of particularly serious crimes or sexual violence in relation to the armed conflict. "The Prosecutor must also make a realistic appraisal of the resources that she has available to her to carry out her mandate under the ICTY Statute."