By Faisal Kutty — More than 1.5 million men, women and children displaced. Four thousand executed. Numerous people tortured and raped. Hundreds of residential areas torched. Dozens of mosques, churches, hospitals and schools destroyed. These are the findings of a report released in late May by the United States government with regard to the humanitarian situation in Kosovo.

Regardless of the accuracy of the figures–some human rights groups have charged that the numbers, particularly the executions, are seriously “understated”–it is clear from the report and the findings of the many humanitarian groups in the Balkans that there is strong evidence of serious violations of international humanitarian law.

The International Criminal Tribunal for the former Yugoslavia, established in 1991, has a broad mandate to prosecute such violations. Officially, it handles breaches of the 1949 Geneva Convention, violations of the laws or customs of war, breaches of the 1948 Convention on the Prevention and Punishment of Genocide, and crimes against humanity. The daily images and testimonies from Kosovar refugee camps should be evidence enough to spur the tribunal to action.

Understandably, the tribunal needs more than reports and testimonials to exact successful prosecutions. Unfortunately, given the resources at its disposal, it is not presently in a position to obtain such requisite evidence. And without the cooperation of NATO member states, the collection of this information may be next to impossible.

In fact, Louise Arbour, the tribunal’s chief prosecutor, has openly said that the strongest proof of war crimes resides with Western intelligence agencies and that this information is jealously guarded.

This is unfortunate, since the tribunal needs only to establish that a prima facie case exists in these situations. And the broad scope of the tribunal’s jurisdiction and the pattern of Serb conduct in Kosovo, of which Slobodan Milosevic is no doubt well aware, would make it possible to hand down indictments for Milosevic as well as others if only the evidence were forthcoming from NATO member states.

The tribunal has made it clear that criminal immunity does not exist for heads of state. So, despite the fact that Milosevic himself may not have given any orders to commit such crimes, he is liable for their occurrence because he has the power to prevent them, yet clearly has not done so.

The Serbian leader also has not punished those responsible. This nonfeasance and wilful blindness are sufficient grounds to pursue him under the rule of “imputed command responsibility,” as pointed out recently by Mark Ellis, executive director of the American Bar Association and president of the Coalition for International Justice, which is working with the tribunal.

Moreover, the 1948 Genocide Convention provides that a person can be indicted not only for committing genocide, but also for attempting, conspiring or inciting others to do so. Even further, complicity to the act of genocide is also grounds for indictment. Milosevic can be pigeonholed into one if not more of these categories with little legal strategy.

After three weeks of intense lobbying by tribunal officials, the French, British, German and American authorities have provided investigators with some documentation of human rights abuses. Reportedly, very little of the evidence turned over to date is usable in court because it has been distilled and analyzed. The raw data with dates, times and places is what the prosecution needs. The governments are hesitant, ostensibly for fear of jeopardizing their sources, methods and even operatives. Surely, there must be ways around this. Perhaps, as is often done to protect sources, sealed evidence could be presented to the court.

The investigators have been promised more material by the various governments. But the Bosnian experience and the new focus on a negotiated settlement in Kosovo suggest that Western governments may not be too keen on having Milosevic indicted. Imagine NATO negotiating with an indicted war criminal.

Sadly, political expediency may win out over principle and justice. As was the case with Croatian leader Franjo Tudjman, whom many human rights groups wanted indicted for war crimes against Serbs and Muslims, Milosevic may be spared in order to leave open an escape hatch for NATO. As reported by the Washington Post on May 11, Richard Goldstone, the tribunal’s former prosecutor, noted $$ Illegible Word $$ an indictment “would make it impossible to negotiate with him.”

Having gone through what they have, it’s difficult, if not impossible, to imagine refugees agreeing to return to a Kosovo run by Milosevic, however minimal his role. Even if Milosevic were agreeable to total independence, the international community should still bring Milosevic to justice.

The treatment of such criminals as Tudjman, Bosnian Serb leader Radovan Karadzic and his military head, Ratko Mladic, has sent the wrong message to other such criminals waiting in the wings. Tudjman was not even bothered by the tribunal, while Karadzic and Mladic, though indicted, continue to move around freely under the noses of international forces.

In the Washington Post article, Goldstone is very accurate in pointing out that had Karadzic and Mladic been arrested, “Kosovo might well have been prevented. It would have shown a will to act, and it would have chilled the spine of Milosevic.”

Milosevic evaded prosecution for his role in Bosnia and Croatia. The will to stop him is lacking once again. The international community must not compromise or negotiate with this monster who has brought death and destruction to the Balkans. Otherwise, the suffering in the Balkans of the Kosovars, Bosnians, Croats and Serbs will be diminished, and justice will be sold for far too cheap a price.

Faisal Kutty is a Toronto-based lawyer and freelance writer. His e-mail address is fkutty@law.com.

Note: First Published: Catholic New Times, June 6, 1999 v23 i10 p12

Tags: Bosnia

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