Kosovo Investigation: Arbour (Finally) Goes To Kosovo

In November 1998 she was issued a visa that would allow her only to visit Belgrade to attend a conference on war crimes organised by Natasa Kandic's Humanitarian Law Centre, and which specifically barred her from Kosovo.

With Tribunal President, Judge Gabrielle Kirk McDonald, she then complained to the UN Security Council. The UN Security Council wrote back, 'deploring' Belgrade's action.

The second time, on Jan. 18 1999, Prosecutor Arbour and a team of ICTY investigators were turned back from the Macedonian-Yugoslav border. The attempt came three days after news broke of the killing of 45 Kosovo Albanians in the village of Racak.

That incident now opens the list of war crimes enumerated by the indictment of Yugoslav president Slobodan Milosevic and his 'gang of four' political, police and military leaders. But at the time a Yugoslav policeman on the border who checked that she had no Yugoslav laissez-passer in her UN passport, simply told her to "go away".

Arbour and McDonald again wrote to the UN Security Council, which repeated in response by again "deploring" Belgrade's behaviour.

It is merely speculation, but had the UN Security Council chosen to take those first two challenges from Belgrade as a defiance of its own authority, rather than that of the ICTY alone, and if it had used all its available means to make the "rogue State" - as McDonald described the FRY in her January letter to the Council - respect international law ...perhaps, and only perhaps, Arbour's present trip to Kosovo might have not been necessary.

In any case, six months and an estimated 10,000 dead later, the entrance of Arbour and her investigators to Kosovo no longer depends on the "goodwill" of the Belgrade regime - whose leadership has since been accused by Arbour of crimes against humanity.

Western governments have kept their promise that the investigators would be able to enter Kosovo "on the heels" of the NATO (KFOR) soldiers. There are currently over 100 "borrowed" forensic and other criminal experts from six countries (the US, Great Britain, Canada, the Netherlands, France and Denmark) in Kosovo, and the arrival of others from at least three more countries (Germany, Belgium and Austria) is expected in the coming days.

Their work is carried out under the supervision of the investigators of the Office of the Prosecutor (OTP). Their number, as Tribunal spokesman Paul Risley said last week in the regular briefing at the Tribunal, "varies greatly, but roughly goes from a dozen to about three dozen on any given day".

Constant revelations of new crime sites (over 200 so far) have left the OTP with much more work than it initially envisaged. But the office, Risley said, "is fairly confident that if we will maintain the number of teams which will go to different parts of Kosovo through the rest of the summer," and that "we'll be able to accomplish the bulk of the work we have set up for ourselves."

Ever since the Kosovo investigation began, the OTP has constantly stressed that it will not be able to investigate all crime sites in detail. Those locations cited in the indictment against Milosevic and other Serbian leaders, and those most likely to lead to new Kosovo indictments will have priority for now.

"As we gather a body of specific forensic evidence, it lessens the need for specific forensic evidence from other sites," said Risley. "But we have developed a procedure that, when sites are brought to our attention, even ones that we have no intention to examine thoroughly, we are at least able to visit and document their existence and what is known about a site."

While focusing on the prosecution of those most responsible for the gravest crimes, the Tribunal believes - or hopes - that with the help of the international community it can establish an independent and credible judiciary in Kosovo the rest of former Yugoslavia in line with international standards.

"In most instances where the Tribunal is able to work, including the other countries within the former Yugoslavia," Risley says, "there is a sense that ultimately there will be a working local judicial system that will be able to take on some of the burden, and some of the responsibility of bringing to trial the individuals accused of war crimes.

"That is part of our own thinking, that is why we have specifically been going to the top in these cases very early on."

Until a credible and working local judicial system is established, the OTP is considering establishing operational guidelines to apply in Kosovo and Bosnia, intended to prevent charges by the politically and personally motivated leading to unjust arrests.

In Bosnia, the OTP's 'rules of the road' allow local authorities to issue indictments and arrest warrants only after the OTP has reviewed the evidence and confirmed that a prima facie case to answer exists.