The Prosecutor Takes on Kosovo

"If and when Kosovo is reopened and there is an international presence," the Prosecutor Louise Arbour said during a briefing last week, "we will be reasserting our entitlement to conduct on-site investigations."

Judging by the statement made last week by the British Defense Secretary George Robertson, there should be no problem with Arbour's stated intention - at least not as far as the Western allies are concerned. After visiting a refugee camp on the Albanian border with Kosovo, and warning that the "brains behind the brutality" would be ruthlessly pursued after the conflict is over, Robertson said the idea of sending in the War Crimes Tribunal investigators along with NATO troops had been discussed at the 50th anniversary summit of the western alliance in Washington.

"What we are thinking is that when we go into Kosovo, there will be people from the War Crimes Tribunal going in with them. They will go in along with the troops. That is the idea. The military forces could be tasked to make sure that evidence is collected. It is one of the lessons that we learned from Bosnia that by the time the prosecuting authorities had gone in, a lot of the evidence had gone. Judge Arbour's concern is that a lot of the evidence will be destroyed and trampled. Preventing this has got to be seen as a priority," Robertson said.

But even if Arbour has no problems in convincing the Allies of the absolute importance of her investigators going in along with the troops - "if and when Kosovo is reopened" - it is not difficult to judge now what Yugoslav President Slobodan Milosevic's reaction will be. Mere mention of the idea would probably be reason enough for Milosevic to refuse the permission - should he ever be given the choice - for Nato troops to enter Kosovo.

It seems he has no choice for the time being, as the Western allies maintain their determination to enter Kosovo one way or another.

Despite obstacles, Arbour is making preparations for an armed intervention of one kind or another. The Office of the Prosecutor (OTP), she said last week, is "developing in quite explicit terms what our operational needs will be if and when Kosovo is reopened." As well as consulting the authorities in Brussels, London, Bonn and The Hague last week, Arbour also visited Washington and New York for talks. Next week she plans to meet with the French government.

Since this is the moment when "circumstances in which justice and politic[al] interests coincide", as Arbour told Tribunal Update last week, she is now trying to seize the opportunity to increase the OTP investigative capacity. This in the first instance presupposes an increase in the office's budget which currently stands at $26.5 million for 1999. Arbour last week told Washington she was "seeking possible contributions in the range of $15-20 million, looking at what we can realistically also absorb in terms of immediate recruitment and deployment within our field of action."

Apart from the question of finance, in order to increase the OTP's "investigative capacity," the Prosecutor desperately needs access to information accumulated by governments and their intelligence services. Arbour has already noted that there has been "an accrued sense of urgency in providing (...) access to information that can be used in court. There is an appearance of willingness to give us access to sources of information that were not available in the past. People in the field collect information from witnesses. Governments can help out with the issue of command and control, both on the political and military level."

The command and control investigation, Louise Arbour told Tribunal Update last year, is a far more difficult and painstaking process than the on-site investigation of crimes and the issuance of indictments against direct perpetrators of the crimes. "The evidence [in command and control investigation] is neither as self-evident nor as easily available. A high level of sophistication in investigation of such responsibility is needed in order to gain an overview of military, paramilitary and political structure, and to understand the functioning of a chain of command. Finally, what is even more difficult, as was learned from the conflicts in both the former Yugoslavia and Rwanda, is the fact that what on paper or by law may appear to be a command structure, may not be so in reality. The investigation must cover all those issues in accordance with the standard of proof applicable in criminal cases in order to determine and understand what was the command structure both in theory and in reality. This necessitates inordinate amount of time, energy and level of sophistication in order to produce results."

The reason why this is important to determine is a little clearer when one learns the message given by Yugoslav President Slobodan in interview published on Saturday in The Washington Times.

For the first time, Milosevic has admitted "bad things happened in Kosovo,". Nevertheless, he places responsibility on the shoulders of the "paramilitary irregular forces." He further claims that his authorities "arrested those irregular self-appointed leaders" and that "some of them had already been tried and sentenced to 20 years in prison." As far as the forces which are under his formal command and control are concerned, Milosevic rejects any responsibility: "our regular forces are highly disciplined," he concluded.

Prosecutor Arbour, however, warned last week that any future peace settlement "should not include immunity for atrocities committed in Kosovo," and that the amnesty for accused war criminals should not become currency in settlement talks. This has direct bearings for Milosevic and his political allies.

It is interesting to note the answer given by the United States Secretary of State Madeleine Albright and Prosecutor Arbour at a press conference in Washington to a question whether it is realistic in political and ethical terms to negotiate peace with a person who is an indicted war criminal. "I've been asked a number of times whether we would talk to Milosevic," Albright said, "and I think that one can separate his alleged actions from the necessity at some stage that one might have to speak to him. 'Negotiate' is a different word."

Justice Arbour acknowledged that she was conscious that it might become a moral or a political dilemma for others, adding "it has nothing to do with my work.". Arbour then went on to divide the issue up into legal, political and ethnical dimensions: "I have to say that I don't know of any legal impediment to talks of any kind. There may be political considerations as to what the value would be of a settlement reached in these kind of circumstances [would be]. But if the question is one of ethics, frankly I'm not sure that the existence or nonexistence of an indictment is particularly significant. I believe that those who may have ethical reservation are probably in possession of information now that could cause them to reflect on whether they want to embark on that either before or after an indictment."

Last, but not least, Arbour last week also warned the international community that, while attention is occupied with Kosovo, they should not forget their unfinished business in Bosnia. One of the main subjects of discussion raised by Arbour in all the capitals she visited and consulted with, was the need for an immediate, and "very robust arrest initiative" in Bosnia.

Arbour believes that that would be the strongest deterrent message which would "bring an air of reality to those who are in positions of accountability in Kosovo."

What could have an immediate impact, Arbour believes, "would be the demonstration that we have the capacity to investigate, and we have partners who have the political will and the operational skills to execute arrest warrants even in hostile environments. So I think now the time is absolutely critical, to see very robust action on the outstanding warrants."