Kosovo: Preliminary Statistics On The Death Toll.

Tribunal Update 151: Last Week in The Hague (November 8-13, 1999)

The new Chief Prosecutor, Carla Del Ponte, gave her first address to the United Nations Security Council last week and outgoing President Gabrielle Kirk McDonald delivered her last address to the UN General Assembly.

Both addresses insisted on the necessity of the international community, and especially the UN Security Council, to take more resolute action to force states to arrest indicted suspects, recognise the Tribunal's jurisdiction and to co-operate with investigations.

For the first time, Carla Del Ponte, publicly announced the preliminary statistics relating to the death toll in Kosovo.

"We now have in our possession", the Prosecutor said, "invaluable documentation of what happened to many people in many places in Kosovo."

"The Office of the Prosecutor (OTP)", Del Ponte said to the Security Council, "has received reports of 529 grave sites including sites where bodies were found exposed. By the end of October, approximately one third of the 529 grave sites have been examined. Work has been completed at 195 sites. In total 4,266 bodies had been reported to be buried in those sites. To date 2,108 bodies have been exhumed."

"This figure" - Del Ponte pointed out- "does not necessarily reflect the total number of actual victims, because we have discovered evidence of tampering with graves. There are also a significant number of sites where the precise number of bodies cannot be counted.

"In these places, steps were taken to hide the evidence. Many bodies have been burned, but at those sites the forensic evidence is nevertheless consistent with the accounts given by witnesses of the crimes. The figures themselves may therefore not tell the whole story, and we would not expect the forensic evidence in isolation to produce a definitive total."

In the spring, assisted by forensic teams from a number of countries (this year the teams from 14 countries have worked in Kosovo), the OTP will exhume the remaining registered grave sites. However, Del Ponte emphasised the Tribunal cannot be expected "to compile and complete a census of the dead," i.e. to exhume and identify all 11,334 killed - which is the total figure reported to the Prosecution.

The task of the Prosecution, Del Ponte underlined, is not to establish a complete list of victims, but to find evidence that will confirm the indictment against Serbian President Slobodan Milosevic and other Serbian leaders, as well as enable the issuing of new indictments.

On the basis of the investigation thus far, Del Ponte said, "we are already building up the overall pattern of the killing. That pattern is of a large number of relatively small sites. We do not, typically, find hundreds of people buried together.

"A few sites did contain the remains of approximately 100 people, but often the number is much smaller, and sometimes the reports of victims buried are not borne out at all... Many of the bodies, including those of women and children, were positively identified, and often the names of individual victims were well known.

"Our work therefore helps in the sad process of confirming identification, although, again, that is not the primary objective of my Office."

In summary, Carla Del Ponte concluded: "There is no substitute for this kind of accurate information because it is evidence that eventually will stand up in a court of law."

Del Ponte reminded the Security Council that SFOR has detained 14 accused in Bosnia-Herzegovina since July 1997. But she pointed out that Serbia is becoming a safe haven for indicted war criminals accused of serious crimes in Croatia, Bosnia-Herzegovina and Kosovo.

Del Ponte did, however, express the hope that "that the figures (of arrested) will continue to rise" and announced she "will continue to press for increasingly strong action against all those accused persons who have not yet been arrested, including those at the highest level."

Del Ponte singled out those "accused who are beyond the reach of SFOR" as a particular problem. She urged the Council "to put its full weight behind our efforts when we ask for your assistance, and to be creative in finding ways to bring to bear the sort of pressure that will produce results."

With regard to the so-called "Croatia case" - Croatia refuses to recognise the validity of the Tribunals - Del Ponte pressed for a quick response from the Council. Nearly three months have passed since President McDonald presented her report on the issue.

"We cannot allow" - Del Ponte said - "the Republic of Croatia to withhold its co-operation because unilaterally it decides that the Tribunal has no jurisdiction to investigate the actions of its armed forces in Operation Storm.

"It is essential for the success of the Tribunal that states are not permitted to dictate to its independent Prosecutor what events shall and shall not be investigated. The power to initiate investigations bestowed upon the Prosecutor by this Council is fundamental: it must be preserved; and the judicial process has to be protected from the tyranny of political or ethnic manipulation."

Speaking before the UN General Assembly on similar issues the departing President of the Tribunal, Gabrielle Kirk McDonald, was much more critical of the Security Council and its failure to compel "recalcitrant states" to fulfil their international legal obligations.

Despite her numerous reports to the Council - relating to FRY, Croatia and Republika Srpska's refusal to co-operate - McDonald stated that regretfully "there has not been a forceful response".

McDonald went on to present several powerful assessments and warnings:

"It is time, I submit, for this complacency to cease. Radovan Karadzic and Ratko Mladic were indicted in 1995 and Slobodan Milosevic was indicted earlier this year. Yet, these individuals remain at large.

"Their liberty makes a mockery of our pledge to would-be tyrants that they will be indicted, arrested and made to answer for their alleged criminal acts and violations of human rights.

"Moreover, over 30 of the individuals publicly indicted by the Tribunal remain at large. It has been reported that the majority of these indictees are in Republika Srpska and in Serbia. On the eve of the millennium, it is simply unacceptable that territories have become safe-havens for individuals indicted for the most serious offences against humanity. It must be made absolutely clear to such States that this illegal and immoral behaviour will not be tolerated."

"Mr. President, the international community is in the initial stages of establishing the International Criminal Court. Make no mistake about it: if the international community does not ensure that the orders of the Court are enforced, it is bound to go the way of the League of Nations.

"That would be a terrible tragedy and a tremendous opportunity lost. I urge the international community to give our reports of non-compliance the attention that they deserve. No court can function effectively without meaningful methods of enforcing its Orders and Decisions. The Tribunal is no different.

"We need your support in carrying out the important mandate with which we have been entrusted."