ICTY's Kosovo Investigation: Suspicions of Manipulation

Discontented voices within the legal profession are becoming concerned that the Tribunal is being "used for war propaganda".

Recently the Canadian daily, "The Globe and Mail," took up the thread and asked "is war crime prosecutor Louise Arbour becoming a pawn of NATO"

The Chief Prosecutor, Louise Arbour, however, sees no reason to worry about this, and does not believe the Tribunal's work has been compromised by accepting offers of co-operation. "There are circumstances in which justice and politics interests coincide," she said last week. Arbour further denied the suggestions that she was given the green light by the Western governments to indict Yugoslav President Slobodan Milosevic. The question is not whether we are free [to indict Milosevic] but whether we will now be better equipped by those who may hold information in moving forward in this investigation."

The critical matter for the Office of the Prosecutor (OTP), concluded Arbour, "is not to be given a political mandate [which already exists in the form of Security Council Resolution 827 and Statute of the Tribunal]but to be provided with the information that would allow us to move."

The "coinciding interests" have, therefore, brought us to the point of what Tribunal Deputy Prosecutor Graham Blewitt last week described as "unprecedented levels of cooperation." Firstly, the German Defence Minister Rudolf Scharping in Bonn on April 19, handed Arbour a series of aerial photographs taken by drone reconnaissance aircraft, which show both the destruction of villages in Kosovo and refugees being stripped of identity papers and belongings by Yugoslav troops.

The following day in London, Arbour received promises from the British Foreign Minister, Robin Cook, that she would soon be given a huge dossier of intelligence material on more than 50 separate incidents over the past month. "We have authorised the handover of British intelligence material to the War Crimes Tribunal. It is a rare step to release intelligence material [but] we will go on collating intelligence on further incidents as the horror unfolds and we will pass it to the Tribunal in what will be one of the largest releases of intelligence material ever authorised by the British," Cook said during a briefing in the British Ministry of Defence.

It was Arbour's presence at that war-briefing that started the manipulation rumours. Arbour used the occasion to state that since the Tribunal's resources were limited, international co-operation was essential: "We have no access to judicially authorised electronic surveillance methods. We have no Tribunal-based wire tapping capacity. We have extremely limited opportunities to invite suspects to be questioned."

On the following Thursday (April 22), Arbour spoke on the same matter with the Dutch Defence Minister. That same day, the French government promised its full co-operation. This included the gathering of eyewitnesses, providing security for investigators, protecting refugees, transmitting information of military nature, including that gathered on the chains of command.

The French Foreign Ministry said in a statement that it was distributing questionnaires sent by Arbour's office to French authorities dealing with refugees coming in from Kosovo. It said France was also helping to finance efforts by non-governmental organisations to collect accounts and eyewitness testimony from ethnic Albanians in refugee camps in regions bordering the southern Yugoslav province.

Arbour called recent developments "extremely encouraging", and at a press conference at the Tribunal added: "We have been steadily building our co-operation with a number of countries, and their decisions to increase our access to sensitive information takes us another important step forward. It should also send a signal to leaders and commanders on the ground who are implicated in the commission of war crimes that they will be brought to justice".

'The world has also heard many of the stories told by refugees and the full picture is only beginning to emerge,' Arbour said on that occasion. "The Tribunal's investigators are now assembling a body of direct witness testimonies. Refugee accounts are critical, but they are not enough on their own. The victims didn't see the command structures or the people giving the orders at the highest levels. We therefore need the sophisticated kind of assistance that only states can provide."

"Sophisticated kind of assistance" undoubtedly refers to intelligence-based information that has been out of reach of the Prosecutor for a long time. Two years ago, Arbour told Tribunal Update that she doubted that such information would ever be made available to the Tribunal. She then said: "There is no doubt that there might be extremely valuable information contained in the intelligence archives of many countries. But it would be extremely surprising if that information surfaced in international trial, when so little ever surfaces in domestic trials in any country. The difficulty of access to this kind of information, first of all is obtaining an acknowledgement that it exists."

The war crimes committed in Kosovo before the eyes of the world have obviously created an environment in which the interests of justice and politics coincide. As Arbour said last week, her job now is to "ensure that we have appropriate safeguards in place for handling sensitive information and to agree on the best way of turning the information into evidence that can be used in a criminal court, particularly so that we can determine the command structures of military and police forces, and prove the responsibility of military and political leaders for any war crimes that are being committed."

Asked when would she issue her first Kosovo indictment, Arbour replied: "I can't put it in days or weeks or months, but I'm certainly not thinking in terms of years."

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