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Tribunal Goes To Kosovo

Tribunal Update 80: Last Week in The Hague (8-13 June 1998)
By IWPR ICTY

Explaining the decision to "Tribunal Update," Deputy Prosecutor Graham Blewitt said that the Office of the Prosecutor had to first solve certain "fundamental jurisdiction questions" before embarking on such a task.

"We are now [convinced] that there is an armed conflict taking place in Kosovo," Blewitt said. "The prosecutor has commenced an investigation and we will be sending to Belgrade, in the very near future, an official request to send a prosecutor's team into the Kosovo region to commence investigations.

"As you know, the Tribunal has territorial jurisdiction [over] the former Yugoslavia, but crimes which can be investigated are somewhat limited if it is an internal armed conflict. At the beginning, the explanation was that it was an anti-terrorist action, but in recent time, the activities that are taking place there lead one to the conclusion that it can be nothing but an armed conflict."

When asked what articles of the Tribunal's statute can be applied to such an armed conflict, Blewitt pointed to Article 4 (genocide) and Article 5 (crimes against humanity). "Crimes against humanity can be committed both in internal and international conflicts, [and] our statute specifically provides that the Tribunal will have the power to prosecute persons for crimes against humanity when committed in an armed conflict.

"Therefore, our jurisdiction [has been] triggered [by the events in Kosovo] and we will send our teams into the area. And, in addition, we now have resources as well. In its recent resolution, the UN Security Council urged the prosecutor to commence investigations into Kosovo.

"As a result of that, the UN General Assembly has given the prosecutor additional resources and regular posts outside the normal budget process. Some member states have given staff for the new investigating team, so now we have the resources to undertake more activities in Kosovo.

"Recently, we did receive the delegation from the Pristina bar [association]. Certain materials were presented to us and they will be considered along other information that we have. Requests have gone out to a number of states for information relating to the incidents that have been happening in Kosovo. We have been receiving information from some countries," Blewitt concluded.

According to the 1995 Appeals Chamber decision on jurisdiction passed in the Tadic case, "an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or in case of internal conflicts, peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there."

The same document also links the above definition of the armed conflict with Article 3 of the Tribunal's statute (Violations of the laws or customs of war), which is "a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 and 5, more specifically...", among others "...violations of Common Article 3 (of the Geneva Conventions of 1949) and other customary rules on internal conflict."

The Appeals Chamber decision also maintains that the rules set forth in common Article 3 reflect "elementary consideration of humanity" applicable to all armed conflicts, whether international or internal in character," so it is not ruled out that Article 3 of the Tribunal's Statute might also apply to the Kosovo case, even though Blewitt did not mention it explicitly.

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