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KOSOVO INVESTIGATION
During the past weekend, advance parties of British and American forensic
teams entered Kosovo together with international security forces (KFOR) and
tasked with assessing the situation on the ground and establishing the needs
of the biggest on-site war crimes investigation since the end of World War
II. Last Friday Deputy Prosecutor Graham Blewitt announced that the vanguard
of Tribunal's investigators and officials will move into Kosovo at the
beginning of this week to coordinate the prompt securing of suspected sites,
and to begin gathering evidence.
Following the trail established by testimonies of refugees - who were
witnesses or victims of the Kosovo crimes - as well as following the
evidence established through air-reconnaissance photographs and other
prosecution evidence made available by Western governments over the past
weeks and months, the Office of the Prosecutor (OTP) identified 16 locations
they wish to investigate as soon as possible. Among those are all seven
sites of the alleged mass killings quoted in the indictment of the President
of Yugoslavia, Slobodan Milosevic and four of his close collaborators and
co-indictees. Those sites are: Racak (45 killed), Bela Crkva (77), Mala
Krusa (105), Crkolez (20), Izbica (130), Djakovica (6) and the Qerim
district of Djakovica (20).
The Pentagon last week released aerial photographs which indicated that
Serbian forces had bulldozed a mass grave site in Izbica, in an attempt to
destroy evidence. There were other reports implicating Serbian forces
destroying evidence of their crimes systematically in the wake of the
indictment of their leaders. Their alleged activities include unearthing
mass graves and cremating victims' bodies at Kosovo's Trepca mine and in
other locations in central Serbia. When asked last week whether he was
concerned about reports of systematic removal of evidence, the Canadian
Foreign Minister, Lloyd Axworthy, answered: "I think there may be too much
for them to destroy."
There may be too much, also, for the OTP to investigate, taking into
consideration not only the scope of the alleged crimes, but also the scant
human and financial resources at the disposal of the Chief Prosecutor,
Louise Arbour. The OTP spokesperson, Paul Risley, pointed that out in the
last week's regular briefing: "The number of crime scenes, the distances
within Kosovo and the scale of the actual atrocities are all so great that
we will be required to bring great numbers of investigative teams, personnel
and resources to bear on the challenge." Several countries - United States,
Britain, France, Germany, Canada, Norway, and Austria - announced their
intention to send to Kosovo their forensic and investigative teams, which
are to work together with the OTP.
Louise Arbour is of the opinion that even this much assistance will not be
sufficient for an investigation operation of such enormous scope. Last week
she officially requested several UN member states to 'loan' the Tribunal
about 300 forensic experts and criminal investigators. Her request says that
the OTP planned to establish about 12 teams to conduct investigations in
Kosovo, preferably before refugees returned to their homes and villages,
which most of the crime scenes are located.
According to Arbour's request, it would be necessary to complete
investigations at more than 16 sites - though this was only a preliminary
estimate - and her office did not have the capacity or the budget for
operations on such a scale. That is why she asked governments for a loan of
300 experts in the fields of ballistic and explosives assessment, weapons
and munitions identification, forensic pathologists, crime scene assessment,
evidence-gathering investigators as well as videotape, photographic and
mapping specialists. The UN disclosed last Friday that Secretary-General
Kofi Annan sent letters informing presidents of the General Assembly and the
Security Council that he was approving the Prosecutor's request.
ARBOUR GOES HOME
After almost two months of speculation, last week it was officially
announced that the Prosecutor Louise Arbour was appointed to the Supreme
Court of Canada. Arbour, it seems, could not resist the temptation of such a
job and accepted the appointment. In her statement of 11 June, Arbour said
that "the decision to accept this appointment has been a very difficult one
for me to make." However, Arbour added, the decision "has been made easier
by the confidence that I have that the two Tribunals (ICTY and ICTR) are now
successful mature institutions, and that they are considerably greater than
the sum of their parts."
Arbour postponed taking up her new post until 15 September so that - as she
pointed out - she had "enough time to complete some important on-going
projects in the two Tribunals," and to make her contribution "to ensure an
easy transition to a new leadership in the Prosecutor's Office."
Giving her own statement, the President of the Tribunal, Judge Gabrielle
Kirk McDonald, said that "Prosecutor Arbour will leave a very different
Tribunal from the one she joined three years ago... The number of indictees
in custody has more than tripled, as has our capacity to try them. Against
great odds the Tribunal and the principles on which it is founded are
beginning to prevail, ensuring that impunity will no longer be the norm.
This is due in no small part to the Prosecutor's determined pursuit of
indicted persons and those who would offer them shelter. She has discharged
her mandate bringing the full force of her considerable legal skills to bear
on the unique challenges faced by the Tribunal."
Calling her departure "unfortunate", Arbour's deputy Graham Blewitt said
Friday that "there is no doubt we are going to lose a very strong,
independent, articulate and knowledgeable Prosecutor", who has adopted
"courageous positions" in her dealings with politicians. "It is our hope
that the Security Council will look for another Prosecutor with similar
qualities," Blewitt said.
This, however, could be the biggest problem with Arbour's departure. It is
apparently ever more obvious now that China and the Russian Federation - two
permanent member states of the Security Council which were among the
Tribunal's "founding fathers" -have recently been having second thoughts in
respect of their judicial offspring. Both countries believe that certain
actions taken by the Prosecutor - such as the indictment of the President of
Yugoslavia, Slobodan Milosevic, and four of his collaborators - was
politically motivated. But the heart of their objection appears to be the
fact that the 'motivation' came from the West, rather than from them.
Even if such second thoughts are not of a recent origin (see previous
Tribunal Updates for a rundown of vehement Russian reservations about the
practice of sealed indictments, introduced by Arbour), they were clearly
expressed last week, during the discussions and adoption of the Security
Council Resolution 1244 on Kosovo. The Resolution contains two paragraphs
devoted to the Tribunal, one in the Preamble and the other in the
operational part of the Resolution. They read as follows:
"G. Recalling the jurisdiction and the mandate of the International Criminal
Tribunal for the Former Yugoslavia;
"14. [The Security Council] Demands full cooperation by all concerned,
including the international security presence, with the International
Criminal Tribunal for the former Yugoslavia;"
Both paragraphs are merely a confirmation of what was already said in
numerous Security Council Resolutions, including the ones on Kosovo that
were voted for by both Russian Federation and China. This time around,
however, the two members of Security Council have problems with those same
formulations. Russia, which had participated in the drafting stages of the
Resolution, persisted in trying to exclude any reference to the Tribunal up
until the final draft. Representatives of the seven Western industrial
powers were, for once, not ready to compromise at the expense of justice.
The only concession to Russians, given under their insistence, was the
deletion of the reference to the indictment of President Milosevic in
paragraph G of the preamble.
One of the reasons quoted by China for its abstention in the voting for the
Resolution, were references to the Tribunal and, particularly, to the
indictment of Milosevic. "We believe that indictment is politically
motivated," China's representative Shen Guofang said at the UN Security
Council.
Russia and China will soon have a new chance to air their reservations about
the Prosecution and its "politically motivated" indictments. This will come
when UN Secretary-General Kofi Annan submits the Security Council his
recommendation for the new Prosecutor. Each of the five permanent members of
the Security Council will be able to veto any of the candidates they
disapprove of. Some will certainly see this as an opportunity to rectify the
'mistake' made in May 1993 when Resolution 827 and the Statute of the
Tribunal established that the Prosecutor "shall act independently (...) and
shall not seek or receive instructions from any Government or from any other
sources." China already announced its reluctance to accept a candidate from
any of the NATO member-states. It is equally inconceivable that USA, Britain
and France would accept a Prosecutor coming from China, Russia or Belarus.
"It is difficult to foresee the Russian or Chinese behaviour in the
selection of the new Prosecutor," said Blewitt last week. He, however,
conceded that - despite reservations - specific references to the Tribunal
still remain in UNSC Resolution 1244. He concluded: "I take some comfort in
the fact that the Security Council continues to support the work of the
Tribunal."