The New York Times
Wednesday, March 31, 1999
Crimes Court Not Ready to Punish Kosovo Violence
By Raymond Bonner
Washington - Since the bombing of Yugoslavia began, American officials have threatened to prosecute perpetrators of violence in Kosovo, but for that threat to be credible, changes must be made in the war crimes tribunal that would try them, American officials and human rights advocates say.
For more than a year, since some of the first atrocities, the international tribunal has balked at urgings from the Clinton administration and human rights organizations to aggressively pursue prosecutions in Kosovo.
Only a handful of relatively inexperienced investigators have been assigned full time to Kosovo, and it was not until recently that an investigator was hired who spoke Albanian. American officials and human rights advocates argue that by failing to act decisively, the tribunal lost an opportunity to act as a deterrent force, which it was set up to be.
"If the tribunal had been aggressive in carrying out its responsibilities in Kosovo, it might have deterred the genocide that is now unfolding there," said James Hooper, a former American diplomat and director of the Balkan Action Council.
Actually making criminal cases against Serbian officials suspected of war crimes would require considerably more action than the administration and other Western governments have taken so far.
Until now Western governments have been disinclined to share their intelligence information, tribunal investigators and American officials have said. And because the tribunal lacks any enforcement power, its indictments require Western governments to arrest war criminals, which they have been reluctant to do so far.
A tribunal spokesman, Christian Chartier, has declined this week to answer any questions about any Kosovo investigation, including what resources the tribunal would need to fulfill the recent demands from the Clinton administration and NATO.
The issue of what the United States has given the tribunal has become a contentious one, with American officials bristling at the suggestion that the Clinton administration has not fully cooperated with the tribunal.
In a telephone interview Tuesday, the tribunal's first chief prosecutor, Richard Goldstone, said the United States had provided more information to the tribunal than other countries, although that information had often been slow in coming.
Noting that Britain had recently vowed to give the tribunal all its evidence that might link the Yugoslav president, Slobodan Milosevic, to possible war crimes, Goldstone added: "One must question whether the information now being offered wasn't available two, three, or four years ago."
Asked if he felt that the United States had provided everything it could, he said, "It's impossible to know without knowing everything they have."
Therein lies the crux of the problem. Tribunal investigators are not experienced intelligence gatherers, and intelligence officers are not policemen.
Investigators and lawyers at the tribunal "don't know how to ask the right questions because they don't understand the intelligence community," said William Stuebner, who served as an intelligence officer in the Army and was an investigator at the tribunal from 1994-1997. On the other hand, he said, "the intelligence community, even if they did want to cooperate, is not geared towards gathering information for a prosecution."
On Kosovo, the Clinton administration, along with several European governments and numerous human rights organizations, began urging the tribunal's chief prosecutor, Louise Arbour, to begin an investigation last March, after a number of massacres and the razing of several villages by Serbian forces.
She was urged to focus not only on the massacres but on the systematic destruction of villages, so that it would not be only low-ranking soldiers who were prosecuted, but the leaders of the campaign, all the way up to Slobodan Milosevic, a senior Clinton administration official said. They wanted her to act quickly and to issue public, not secret, indictments, so that they would have a deterrent impact.
Ms. Arbour, a Canadian lawyer whom friends and colleagues describe as a cautious and conservative prosecutor, initially argued that the tribunal did not have jurisdiction over events in Kosovo, because it was not an armed conflict as defined by the Geneva Conventions, according to several individuals, inside and outside the tribunal, who heard her arguments.
It took several months, but eventually, she concluded the tribunal did have jurisdiction. Still, the tribunal moved slowly. At a meeting with human rights groups in Washington last August, Ms. Arbour reacted to demands for a more aggressive investigation in Kosovo by saying that she did not want to do anything that looked political, according to several people who were present.
She has also been reluctant to send investigators into Kosovo without the permission of the Milosevic government. A readily available alternative was to go in through the Yugoslav province of Montenegro, which would issue visas at the airport.
"I believe she is acting in good faith, and is intent on doing a good job. She just has very conservative instincts," said Aryeh Neier, president of the Open Society Institute, a private organization in New York that works for the development of democratic institutions in former communist countries.
Some human rights advocates consider the criticism of the tribunal unfair. They point out that during negotiations with Milosevic last October, the administration's point man, Richard Holbrooke, tried but failed to get Milosevic to allow the tribunal investigators into Kosovo.
The tribunal is being called on by the West now because it fits in with the campaign against Milosevic, and especially with the desire to avoid sending in ground troops to stop the atrocities, several human rights advocates said.
"There has not been a sustained commitment to the tribunal, with resources and with the political will," said Michael Posner, director of the Lawyers Committee for Human Rights, in New York. "It's like a spigot. They want to turn it on and off as it suits their purposes. But justice doesn't work that way."
He noted, for example, that until recently the United States and other governments had not pushed on the tribunal to investigate Milosevic.
"All these governments talk a great game, but when it comes down to making their information available, they're very skittish," Posner said. "It remains to be seen whether action will match their public statements this time."