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Kosovo Investigation: Why Belgrade Could Never Cooperate With The ICTY

Tribunal Update 126: Last Week in The Hague (17-22 May, 1999)
By IWPR

Just how wrong he is!


The Belgrade authorities had always been taking the International War Crimes Tribunal very seriously. Which is why they refused any hitherto co-operation with the Tribunal, even at the price of maintaining the so-called "outer wall of sanctions", the continuation of which is partly due to the non-compliance with the Tribunal's orders.


Simply put, the Belgrade regime can not afford full co-operation with the Tribunal because it entails arrests and the transfer of all indicted persons, and the Kosovo investigation.


That would thoroughly undermine the most fundamental premises of this regime, which is based on a ten-year conspiracy of immunity and impunity of the creators and executors of the politics of ethnic cleansing - first in Croatia, then Bosnia and now in Kosovo. (see more on the subject in Tribunal Update No. 100).


The part that Belgrade authorities did not take seriously so far is the readiness of the so-called 'international community' to force FRY to respect an international law of highest order - the Statute of the Tribunal - adopted by the Security Council on the basis of Chapter VII of the UN Charter. There was insufficient political will for that.


On at least a dozen occasions in the last four years, Tribunal approached the Security Council with detailed and documented reports on the refusals of Belgrade to fulfill Tribunal's warrants and orders, or with pleas to ensure access for the Prosecutor to conduct war crimes investigations in the territory of the FRY.


Instead of reacting to Belgrade's refusals of co-operation with sanctions authorised under Chapter VII of the UN Charter, the Security Council usually replied to such reports with mildly-worded Presidential Statements, which had only increased the intransigence of Belgrade.


It is quite possible that the present Kosovo investigation would not have been necessary had the Security Council imposed an appropriately high price on Belgrade for their earlier ignoring the orders of the Tribunal. This would also have forced Belgrade's hand to effect arrests and transfer of the indicted, as well as to allow the investigation in the territory of FRY.


If, as Jamie Shea thinks, Belgrade authorities are now beginning to take anyone seriously, then it's NATO. But - again - it's not the NATO's high-tech air campaign they worry about.


The Belgrade regime can afford more than just a few NATO bombs - as we have seen in the recent months possibly even more than NATO can afford to drop on the FRY.


What the Belgrade regime can not afford, however - and is now taking seriously - are the NATO threats to take the 'notorious' Prosecutor Louise Arbour with them into Kosovo when they finally get there. This would enable her and her investigators to freely search for and investigate the sites of alleged Kosovo crimes.


The present attempts to remove traces of crimes - if the intelligence reports are correct - show that the threat is taken seriously.


Another confirmation that Belgrade fears this more than anything else is the agreement of last October on the cessation of the military and police campaign and the withdrawal of the Serb forces from Kosovo that Milosevic accepted only after the U.S. envoy Richard Holbrooke agreed to erase any mention of the 'notorious' Arbour and her Kosovo investigation in the agreement.


It is now, however, clear that Milosevic is afraid that he will no longer be given the choice to decide whether Arbour and her investigators enter Kosovo together with the international forces or not, which is why the evidence of crimes is now being removed.


The problem for Milosevic, however, lies in the fact that the evidence of the removal of traces of crimes can in itself represent part of a convincing case that the crimes had been committed. NATO claims that they hold evidence of the removal of criminal evidence.


"In two cases that we have been monitoring," Jamie Shea said last week, "they have tried to hide evidence of mass graves. On 14 May Serb forces exhumed 50 ethnic Albanian bodies from a mass grave near the ferro-nickel processing plant in the town of Glogovac.


Another mass grave containing ethnic Albanian civilians killed on 18 April near Lipljan has also been exhumed and the villagers of the locality were obliged to rebury the bodies as individual graves.


We also have reports of efforts to rebury bodies from mass graves at sites where NATO bombing has occurred, and also to rebury bodies in areas that were formerly controlled by the Kosovo Liberation Army."


That Belgrade authorities this time have reason to take NATO threats seriously was also confirmed at a last week's briefing at the U.S. State Department. In a process not entirely unlike a court presentation of evidence, the briefing took its participants frame-by-frame through a series of video recordings of the burial of the victims of massacre in the Kosovo village of Izbica, and parallel to that, the aerial recording of the entire area.


The first was filmed by a Kosovar journalist, Liri Losci, and shows bodies of 127 elderly men allegedly killed by the Serb forces. Upon the withdrawal of those forces the local inhabitants had allegedly returned to the village and discovered the bodies, identified them and buried into three rows of individual graves.


The aerial recording, showing clearly visible graves, was made two weeks later and shown at the April 17 briefings at NATO and the Pentagon. Official Serbian sources categorically denied claims of massacres and graves, and the Serbian Television reporters who visited the village of Izbica reported that no graves were to be seen and that the entire affair was yet "another example of the manipulation of the Western media by Kosovo Albanians."


By matching videotape recording with aerial imagery, and comparing the position of trees, fields, buildings and fresh graves, U.S. government analysts claim that both recordings point to the same location. Copies of the entire material have already been forwarded to the Tribunal's Office of the Prosecutor. Spokesperson James Rubin thus explained reasons for the publication of this material:


"The fact of the matter is, we decided to release this combination of video imagery with overhead imagery so that it won't matter if the Serbs destroy the evidence. This is the kind of evidence that makes it not necessarily relevant that the investigator goes to that location.


"Because if you have refugee accounts, you have a videotape, you have overhead imagery and you have a whole other set of information, you don't necessarily need the kind of direct evidence that would be normally needed. The reason why we put this information -- feel comfortable putting it out -- is because we have what we need and what we think can provide a compelling case.


"Given that the video was released, it's very possible the Serbs may choose to destroy this evidence. But with the combination of the video and the overhead imagery, they can't destroy that."


Another news, however, worries friends of the Tribunal even more than the alleged removal of evidence of Kosovo crimes. It is the increasing tide of rumors that Louise Arbour may leave Tribunal to take up a seat on the bench of the Canadian Supreme Court.


The rumours provoked a journalist's question at the last week's briefing of the OTP's spokesperson, Paul Risley, whether, by offering her such a position, somebody is in fact trying to 'remove' Arbour, who is the greatest obstacle to any new "deal" with Milosevic.


In his reply, Risley only referred to Arbour's statement of the previous day (Thursday 18 May) that the Canadian Supreme Court job has not been offered to her, but that she would consider taking it if it were. If Arbour were to ever make up her mind on such an offer, Risley added, "it will be the most difficult decision in her life."


The four-year mandate of Louise Arbour expires at the end of September next year. Taking into account the present 'Cold War' climate at the Security Council, should Arbour leave it will be difficult to imagine the West on the one side and Russia and China on the other ever agreeing on the choice of any new Chief Prosecutor, let alone a tough-minded one.


In the case of Russia, which is one of the 'founders' of the Tribunal, it not only has a disagreement with the West over the NATO aerial campaign against Yugoslavia, but also now has second thoughts regarding its functioning. In this respect, Russia has accepted part of the 'arguments' against ICTY presented by Belgrade.


The Russian Foreign Minister, Igor Ivanov, for instance last December at a meeting of the Peace Implementation Council in Madrid, sharply and aggressively criticized the policy of the so called "sealed indictments", forcing Arbour to give him a lesson in international law before the ministerial audience. Russia had also blocked tougher measures against Belgrade at the Security Council for their refusal to grant visas to Prosecutor Arbour and her team of Kosovo investigators.


Taking all this into account it is obvious that in any future selection process at the Security Council, Russian Federation would make sure it does not unwittingly approve someone as independent-minded as Arbour.


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