Kosovo Investigation: Gracko, New Name On The Map Of Horror

Last January, three days after the massacre of 45 Albanians in the village of Racak was discovered, Arbour was prevented from entering Kosovo at the head of the investigative team. This time she faced no obstacles: the Hague investigators and forensic experts from some dozen countries have already been present in Kosovo for a month.

Announcing the beginning of the investigation of the crime in the village of Gracko, OTP (Office of the Prosecutor) spokesman Paul Risley said the Prosecutor was "alarmed by the scale of this massacre". It suggested "that the strongest deterrent message must be sent to those who are inclined to perpetuate the cycle of violence that has shattered Kosovo in the last year," he added, speaking on Saturday evening.

The international community, Arbour believes, "will be particularly outraged if retaliation is sought at a time when unprecedented efforts are being made to bring to justice those responsible for the atrocities of the preceding months."

In order to remove any doubts over the Tribunal's jurisdiction now the armed conflict in Kosovo has halted, Arbour reminds all that her Office is authorised to investigate all serious violations of international humanitarian law committed in the territory o f former Yugoslavia, including Kosovo, since 1991.

This jurisdiction, Arbour has pointed out, "includes offences committed before and after the formal end of the NATO bombing on 20 June 1999". For some of these offences the legal condition requires that they were committed in the context of an armed conflict, whilst other offences may be prosecuted even if committed during peacetime.

In any case, the Prosecution's statement concludes: "existence of an armed conflict is a question of fact and question of law, informed by the jurisprudence of the Tribunal. At this stage, the Prosecutor is of the view that this, as well as other elements of offences within the jurisdiction of the Tribunal, deserve further inquiry."

There was little reaction at the OTP last week at news that Belgrade would not recognise the results of the Kosovo investigation. According to the official news agency Tanjug, Neven Gasovic, assistant Federal Minister of Justice, said this was because it s pathologists have not taken part in the investigation, and because it was being carried out without the cooperation with the judiciary of Yugoslavia and Serbia.

Risley said it was a "curiosity" that the statement referred to Article 9.1 of the Tribunal's Statute - "The International Tribunal and national courts shall have concurrent jurisdiction to prosecute..." - whilst forgetting the next paragraph, Article 9.2 according to which "The International Tribunal shall have primacy over national courts..."

"All member-states of the UN recognise the primacy of the International Tribunal in the investigation of war crimes in Kosovo," Risley says, "so we expect the same from Yugoslavia." Apart from full cooperation in the Kosovo investigation, he adds, this should include the reopening of the OTP office in Belgrade, which was temporarily closed along with other UN offices during the NATO air campaign.

Yugoslavia has so far been hesitant to issue visas to the representatives of The Tribunal and give guarantees of safety and full cooperation.

And as far as the acceptance or non-acceptance of the results of the investigation is concerned, this is not a matter for the OTP or the authorities in Belgrade, but for the Trial Chambers.