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Analysis: KLA Arrests May Help Hague Win Over Serbs
The Hague tribunal last week made history with the first war crimes charges against members of the Kosovo Liberation Army, KLA - but the impact of the decision was spoiled when the key suspect got away.
Four men were charged with war crimes while running a KLA prison during the Kosovo war.
But shortly before a NATO operation to make the arrests, the key suspect, Fatimir Limaj, the former camp commander, left the province on a business trip.
Limaj, now a local politician, is accused of being commander of the KLA's Lapusnik prison camp.
He is charged, together with three former guards, Haradin Bala, Isak Musliu and Agim Murtezi, of responsibility for a string of crimes against dozens of prisoners.
All the indictees were accused of murders, torture and false imprisonment of both Serb and ethnic Albanian captives - charges that constitute crimes against humanity and violations of the customs and laws of war
The men were charged under a sealed, or secret indictment, a device used to allow security forces to make surprise arrests of unsuspecting indictees.
The Limaj arrest was supposed to be a showpiece event - proof that The Hague targets not just the Serb security forces but also the KLA.
But in between NATO's Kosovo Force, KFOR, being given the arrest warrants and despatching commandos to make the arrests, the unsuspecting Limaj flew out of the province on a business trip with nobody told to try and stop him.
KFOR did arrest the three other suspects, who were flown to The Hague. According to UN sources, Limaj had travelled to Slovenia where he later turned himself in to local police. The tribunal is now said to be seeking his extradition.
The Hague's chief prosecutor Carla Del Ponte did not hide her frustration at the news.
She told journalists that she was amazed that having told NATO that she wanted him, Limaj was allowed to slip away.
The incident highlights the dilemma for NATO commanders when dealing with sealed indictments - how many people to inform about the warrant?
Ideally, such operations are restricted to the units involved in the arrest to allow maximum security.
In Limaj's case, KFOR could have informed police and customs officials, preventing him from flying out of the protectorate.
But putting so many agencies "in the loop" would have increased the chances that Limaj would have got to hear of the coming arrest and gone into hiding.
The sealed indictment was introduced by former Hague prosecutor Louise Arbour in 1997.
It was first used in July 1997 when British SAS troops swooped on two Bosnian Serbs wanted for war crimes. One of the suspects, Simo Drlaca, was shot dead in the struggle.
Limaj's indictment alleges that shortly after the Kosovo war broke out in 1998, the KLA established a prison camp at Lapusnik, in central Kosovo, and held at least 35 people there.
Most were Serbs, but they also included some ethnic Albanian civilians - presumably suspected of being collaborators.
Conditions were grim. The indictment says the prisoners were routinely beaten and tortured, and survived on meagre supplies of food with only rudimentary medical care.
When Serb forces retook the area, prosecutors say the KLA abandoned the camp and Bala and Murtezi marched 22 detainees away to the Berisa mountains, in territory held by the KLA.
On the march, under the direction of Limaj, the prisoners were, according to prosecutors, split into two groups. Eleven prisoners in one of the groups were murdered by their guards.
The indictment against the former KLA men is an important precedent. Until now, Kosovo war crimes charges focused on the actions of Serbian security forces - the most famous being those levelled at Slobodan Milosevic.
And Limaj's trial, once he is extradited to The Hague, may go some way to convincing Serbs that Del Ponte is even-handed. This, in turn, could persuade them to assist prosecutors.
One of the complications of framing war crimes charges against former KLA men has been that Serbs, who distrust the war crimes court, have been reluctant to come forward and give evidence.
This could all change.
It also shows that prosecutors have got over the problem of how to indict members of a guerrilla army.
Rebel forces, by their nature, have a less rigid command structure than regular ones - making it much harder for prosecutors to establish clear lines of responsibility. Also, guerrilla armies leave few written records that can be used as a "paper trail" of evidence.
An added complication is that the KLA was a fast-evolving organisation, so that command structures were constantly in a state of flux.
It began in early 1998 with perhaps a few hundred soldiers and a handful of guns, but by the middle of that year it numbered tens of thousands of men.
This rapid growth also saw units spring up across the country, many of them independent of the original KLA commanders.
A successful trial of KLA operatives will put similar units across the world on notice: the International Criminal Court, ICC, which elected its judges earlier this month, already has guerrilla wars raging in three of its member countries - Afghanistan, Columbia and the Democratic Republic of Congo.
The ICC is a separate body to the UN's Hague tribunal, but it follows many of its precedents.
And rebel commanders will now know that it is not just repressive governments that can be targeted by prosecutors - but anyone who commits war crimes.
The message to guerrilla units, as to regular army formations, is the same - if you commit war crimes, the prosecutors will be after you.
Chris Stephen is IWPR's bureau chief in The Hague.
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