The Search for Justice
The year 1999 was billed as a watershed in the history of international humanitarian law. Fifty years after the signing of the Geneva Accords, a new treaty outlining a permanent International Criminal Court (ICC) was finally in place. And, following years of fruitless efforts, the international war crimes tribunal in The Hague was showing progress in its efforts to prosecute major war crimes suspects from former Yugoslavia and Rwanda. The Tribunal had growing confidence, an expanding staff and, for the first time, a relatively stable budget. It was at that expectant moment that Kosovo exploded in a series of mass killings and deportations evoking images of the Nazi era.
As hundreds of thousands of Kosovar Albanians were deported by Serbian forces and packed into squalid refugee camps outside Kosovo, war-crimes investigators were again dispatched to the Balkans. They arrived in the region perplexed by the seemingly unstoppable tide of atrocities. "When we first arrived here, we thought there's far too much work," said Niccolo Figa-Talamanca, an Italian war crimes investigator. "The number of crimes and level of violence was such that it's literally impossible for the Tribunal or anybody to do justice - criminal justice within an international jurisdiction." Talamanca left the Tribunal for non-governmental groups, hoping he could have more impact in the locales where crimes were committed, thereby helping to break the cycles of violence. He is now working with the International Crisis Group (ICG), one of several non-governmental organizations attempting to assist the Tribunal in locating the most important and most promising cases in Kosovo. The ICG's work in Kosovo includes compiling a massive data base of war-crimes evidence, including interviews with victims, details of forensic work, and maps to help Tribunal teams find important sites.
Though no official estimates have been released to the public, Western governments and NATO place the Albanian death toll in Kosovo at around 10,000 people. In addition, Human Right Watch estimates some 500 Serbs were killed in NATO air bombardments.
Yet despite months of forensic work by The Hague Tribunal, well under 3,000 bodies have been recovered in Kosovo. This has led critics to charge that the discrepancy between the death toll citied by Western governments and the actual number of bodies found so far in Kosovo suggests NATO exaggerated the level of Serbian killing to justify its air war. But investigators in the field say the question is much more complex, and they point to efforts by the Serbs to destroy evidence and hide the remains of Albanian victims.
Investigators say Serbian forces burned bodies, tossed corpses down wells and mixed animal bones in mass graves with human remains. Nicolo Figa-Talamanca, the Italian war crimes expert, said this was a deliberate strategy that Serbian commanders learned from mistakes made earlier in Bosnia and Croatia. "The pattern of war crimes here and the efforts of concealing them shows that people who plan and organize and conduct crimes against humanity know they have to cover their tracks," he said.
Several Serbian fighters also described a complex system of disposing of bodies or conducting executions at pre-selected sites. It was a rule that, for some reason, was not followed in the massacre at Cuska.
Despite their grisly task, investigators from the Tribunal and human rights groups are surprisingly optimistic about Kosovo. The reasons are clear - NATO's entry into the province has for the first time given investigators unrestricted access to relatively fresh crime scenes. The second factor was the Tribunal's decision last May to indict the Serbian leader, Slobodan Milosevic, and four lieutenants for committing crimes against humanity in Kosovo. "We have actually indicted a serving head of state," said Dennis Milner, the Tribunal's lead investigator for Kosovo. "I think that that is unique and a courageous step by the prosecutor. If we manage to get Milosevic and his cronies into court, we'll stamp the history of the Tribunal into books forever."
Milner explained the Tribunals strategy in Kosovo was a departure from Bosnia, where initial indictments lacked a particular focus and tended to target mid-level suspects.
"You have to bear in mind that the Tribunal was not set up to prosecute ground-level perpetrators," said Milner. "At the same time, there are occasions where they have been prosecuted. These guys fall in to the category of notorious offenders. Because the events in which they participated have been so bad that only the Tribunal can reflect their crimes." Though critics have warned that the Tribunal may be spending too much time solely on Milosevic, Milner defended the Tribunal's focus on getting the "big fish" as a sound strategy given limited resources and a rush to complete forensic work before winter.
"How do you define a killer here? Is it the guy who gives the order to the six or 12 guys on the ground? Is it the guy above him? We will assert that the guys at the top are the ones responsible and they by implication have pulled the trigger." But what about the hundreds of mid-level commanders and the men who acted as executioners? If they are not investigated by the Tribunal, who will do the job?
The hope is that local courts being rebuilt by the UN one day will be able to handle war-crimes cases. Milner said the Tribunal will provide evidence and other assistance for these local courts once they meet legal standards. But it remains uncertain whether local courts will be able to handle such complex and volatile cases. A lack of Serbian judges makes the courts almost purely Albanian. Already, the Serbian leadership has denounced the new courts as illegal and anti-Serbian. Nevertheless, more than a dozen Serbian suspects have been detained by NATO troops under suspicion that they participated in war crimes.
What concerns Tribunal investigators is whether they are spending all their time investigating men who may not be apprehended for many years. The chief Bosnian Serb war-rimes suspects, Radovan Karadzic and Ratko Mladic, remain at large.
"We can't prosecute these suspects in absentia," said one Tribunal investigator. "So the last thing we want to be doing in two years is continuing to appeal to Milosevic and his cronies to turn themselves in. If that's all we're doing in Kosovo by then, then it's a failure." Some independent experts suggest the Tribunal should remain open to prosecuting mid-level and even low-level suspects who may be easier to catch. If nothing else this would show to Albanians that some progress is being made to punish those responsible for the atrocities.
A major setback in the pursuit of justice in Kosovo has been the violent attacks on Serbs and other minorities in the province since the return of expelled Albanians. Despite a massive deployment of Western troops and no less than three international organizations administering the province, the security situation has continued to deteriorate. The UN says over 300 people, many of them Serbs, have been killed in Kosovo since June, 1999, apparently by Albanians. The violence has deepened the divide between Serb and Albanian and dashed hopes for gradual reconciliation between the ethnic groups.