Crisis in Kosovo
Immediate Access for Tribunal InvestigatorsHuman Rights First strongly condemns the refusal of the Yugoslav authorities to grant the UN War Crimes Tribunal (ICTY) access to Kosovo, where serious violations of international humanitarian law are being committed. It calls on the Yugoslav government to fully implement its obligation to cooperate with the ICTY and urges the Security Council to take immediate steps to ensure that Tribunal investigators are allowed to perform their mandate.
By denying Chief Prosecutor Louise Arbour entry into the Federal Republic of Yugoslavia (FRY) on January 18, 1999, the Yugoslav government grossly violated Security Council resolution 827 of 1993 which obliges states to cooperate with the ICTY and to comply with Tribunal requests for assistance and orders. Those obligations were reiterated in subsequent Security Council resolutions, the most recent of which explicitly calls for prompt and complete investigation of all atrocities committed against civilians and full cooperation with the International Tribunal for the former Yugoslavia.
The Yugoslav authorities’ refusal to grant the Prosecutor access to Kosovo is based on the untenable assertion that the ICTY has no jurisdiction over Kosovo and that the fighting in the province does not amount to an armed conflict. Human Rights First rejects both claims. The Tribunal’s Statute in article 8 clearly provides that the ICTY’s mandate is open-ended and that it covers the whole territory of the former Yugoslavia. The level of fighting in recent months – as confirmed by the Tribunal on July 7 1998 - also disproves the argument that there is no armed conflict in Kosovo. Moreover, crimes against humanity, as recognized by the Tribunal’s Appeals Chamber do not require a nexus to armed conflict at all.
Human Rights First condemns the Yugoslav government’s attempts to tamper with evidence related to crimes committed in Kosovo. The Committee is deeply disturbed that the authorities transferred the bodies of the Racka massacre victims to the provincial capital Pristina and started autopsies without the presence of independent international experts. The Committee calls attention to the fact that the FRY’s recent actions in Kosovo are just the latest demonstration of a consistent pattern of failure to cooperate with the International Criminal Tribunal.
In December 1998, the Yugoslav authorities refused to defer their alleged investigation into crimes committed in Vukovar to the International Tribunal, even though three Yugoslav army officers were indicted by the ICTY for those crimes. As is well known, they have repeatedly refused to apprehend and surrender other indictees when found on their territory, such as former Bosnian Serb President Radovan Karadzic and former Bosnian Serb Army Chief, General Ratko Mladic.
Through its passivity, the international community has encouraged the Yugoslav government in its belief that there is no price to be paid for flaunting international obligations. Several reports on FRY non-compliance submitted to the Security Council by ICTY President Gabrielle Kirk McDonald produced only non-binding presidential statements "deploring" the behavior of the Yugoslav authorities. Most egregiously, the October 13, 1998 agreement establishing the OSCE Kosovo Verification Mission failed to include any mention of a role for the International Tribunal in Kosovo. It is obvious that the Yugoslav government interpreted this omission as a tacit rescinding of the Tribunal’s mandate with respect to events in that province.
Human Rights First urges the UN Security Council to take immediate action under Chapter VII of the UN Charter to ensure ICTY investigators access to Kosovo and to guarantee the fulfillment of their mandate. The Yugoslav government’s duty to cooperate with the ICTY must be enforced as the cornerstone of any resolution of the Kosovo crisis. The FRY’s duty to comply with Tribunal requests and orders must also be a key element of any future agreement aimed at a political settlement of the Kosovo situation and be enunciated as a precondition for Yugoslavia’s full recognition by the community of nations. The Security Council’s failure to act now will not only jeopardize the need to bring justice to Kosovo, but will weaken the credibility of the ICTY, which is widely perceived as a precursor of the permanent International Criminal Court.
Human Rights First urges the ICTY to continue its investigations into crimes perpetrated by any party to the conflict in Kosovo. In particular, the Tribunal should direct its investigations towards individuals in the highest ranks of civilian and military authority who bear responsibility for the commission of crimes or the failure to suppress and punish them.
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