The International Criminal Tribunal for the former Yugoslavia was founded in May 1993 to prosecute war crimes committed on the territory of the former Yugoslavia since 1991.[1] As of July 2002, seventy-seven individuals were under public indictment, and fifty-six of them were in proceedings before the Tribunal (46 were in detention and 10 were provisionally released) Twenty-one indictees remain at large.[2]

History of Tribunal Indictments Investigations Post-war Serbia and the Tribunal Milosevic Arrested Footnotes

History of Tribunal [top]

“The United States is cooperating fully with the Tribunal as it investigates the conflict in Kosovo. We are ensuring that relevant information is provided to the Tribunal in a timely manner so that its investigations can proceed efficiently. We urge other governments to cooperate with and provide information to the War Crimes Tribunal regarding the conflict in Kosovo.”6

In early July, the Tribunal sent its first team of investigators to the Federal Republic of Yugoslavia and into Kosovo itself to investigate the conflict. Small teams followed up for brief periods in September.

The Yugoslav authorities refused to accept the jurisdiction of the Tribunal, and frustrated the work of investigators by denying them visas or forbidding them from carrying out investigations in Kosovo. Only a few Tribunal investigators were able to gain access to the province in 1998 and early 1999, and they were officially prohibited by the Yugoslav authorities from interviewing persons or gathering evidence. The Yugoslav authorities based their refusal to cooperate with the Tribunal on their view that the conflict in Kosovo was an internal dispute with "terrorists," a view repeatedly rejected by the Tribunal, the U.N. Security Council, and other international actors, including Human Rights Watch.7

In October 1998, a Finnish forensic team sponsored by the European Union was granted permission by Yugoslav authorities and the local Kosovo courts to exhume bodies from six sites in Kosovo: Gornje Obrinje, Orahovac, Golubovac (Golubofc), Glodjane, Klecka, and Volujak. The first three burial sites contained the bodies of victims of alleged crimes by Serbian and Yugoslav forces; the later three burial sites were expected to hold the bodies of victims of crimes by the KLA.8

The Finnish team was allowed to conduct investigations into the sites at Klecka and Volujak-both sites of alleged KLA crimes. However, while attempting to reach Gornje Obrinje on December 10, where Human Rights Watch concluded that Serbian forces killed twenty-one members of one ethnic Albanian family in September 1998,9 the Finnish team was blocked by a convoy of Serbian police. About ten armored personnel carriers manned by heavily armed police forces insisted on accompanying the forensic team to Gornje Obrinje, which was located deep within territory under the partial control of the KLA.10

The Serbian police insisted that the team be accompanied by a Serbian court official and members of a Belgrade-based forensic team, and refused to allow the team to proceed without police escort, which the leaders of the forensic team opposed, out of fear of provoking a confrontation with the KLA. During a two-hour negotiation session between the forensic team and the Serbian police, a plainclothes policeman violated the diplomatic immunity of Finnish ambassador Timothy Lahelma by opening the doors of his diplomatic vehicle, grabbing his camera, and removing the film from the camera. According to members of the forensic team interviewed by Human Rights Watch, police repeatedly attempted to shelter their armored vehicles from KLA attack by moving them behind diplomatic vehicles belonging to the E.U. contingent of the Kosovo Diplomatic Observer Mission (KDOM). Anticipating a confrontation between the KLA and the Serbian police, the forensic team decided to abandon its attempt to reach Gornje Obrinje.

On January 18, 1999, three days after the killing of forty-five ethnic Albanians in Racak, Chief Prosecutor Arbour attempted to enter Kosovo through Macedonia in order to investigate the reported atrocities in Racak. She did not have a Yugoslav visa, having been denied one by the authorities, and was refused entry into the country. Back in The Hague, Arbour stated unequivocally that she would investigate the Racak massacre "with or without access to the territory." Regarding the fears of evidence tampering, she said:

Evidence of tampering-should such evidence become available, is, in fact, excellent circumstantial evidence of guilt. If one can trace where the order to tamper came from, it permits a pretty strong inference that it was done for the purpose of hiding the truth, which demonstrates consciences of guilt.11
Ten days after the killings, the Finnish forensic team was allowed to conduct autopsies on forty of the Racak victims along with teams from Yugoslavia and Belarus. Their report, released March 17, 1999, provided no details on post-mortem findings. The report did conclude that "there were no indications of the people being other than unarmed civilians."12

Indictments [top]

During the NATO bombing of Yugoslavia, the Tribunal set up an office in Tirana, Albania, to interview refugees, and it worked closely with governmental and nongovernmental organizations collecting information on international humanitarian law violations from Albania and Macedonia.

On April 7, the U.S. State Department issued a statement that named nine commanders in the Yugoslav Army, placing them on notice that "VJ and MUP forces are committing war crimes and crimes against humanity in Kosovo"-crimes for which commanders can be indicted by the Tribunal.13 The statement added:

"No commander of the VJ or MUP is immune from prosecution, now or in the future. Any commander of the VJ or MUP who plans, instigates, orders, or even aids or abets in a war crime, crimes against humanity, or genocide, is individually responsible for crimes committed in Kosovo. There is no statute of limitations for war crimes, crimes against humanity, or genocide within the jurisdiction of the International Tribunal."14

The statement identified the following individuals as commanders in Kosovo:
· Colonel Milos Mandic, Commander, 252nd Armored Brigade, deployed central Kosovo (Home Garrison: Kraljevo, Serbia);
· Major General Vladimir Lazarevic, Commander, Pristina Corps;
· Colonel Mladen Cirkovic, Commander, 15th Armored Brigade, HQ Pristina;
· Colonel Dragan Zivanovic, Commander, 125th Motorized Brigade, HQ Kosovska Mitrovica and Pec;
· Colonel Krsman Jelic, Commander, 243rd Mechanized Brigade, HQ Urosevac;
· Colonel Bozidar Delic, Commander, 549th Motorized Brigade, HQ Prizren and Djakovica;
· Colonel Radojko Stefanovic, Commander, 52nd Mixed Artillery Brigade, HQ Gnjilane;
· Colonel Milos Djosan, Commander, 52nd Light Air Defense Artillery-Rocket Regiment, HQ Djakovica;
· Major Zeljko Pekovic, Commander, 52nd Military Police Battalion, HQ, Pristina.

On May 27, 1999, the Tribunal announced its highest level indictments to date: that of Yugoslav President Slobodan Milosevic and four other top officials for "murder, persecution, and deportation in Kosovo" between January 1 and late May 1999. The indictees are:
· Slobodan Milosevic, President of the FRY, Supreme Commander of the Yugoslav Army, and President of the Supreme Defense Council;
· Milan Milutinovic, President of Serbia and member of the Supreme Defense Council;
· Dragoljub Ojdanic, Chief of Staff of the Yugoslav Army;
· Nikola Sainovic, Deputy Prime Minister of the FRY;
· Vlajko Stojiljkovic, Minister of Internal Affairs of Serbia.

Slobodan Milosevic, Milan Milutinovic, Dragoljub Ojdanic, and Vlajko Stojiljkovic were charged with violating the laws or customs of war (murder and persecutions on political, racial, or religious grounds) and crimes against humanity (deportation and murder). Nikola Sainovic was charged on the basis of individual criminal responsibility for these same crimes.15 The initial indictment did not relate to crimes committed in Bosnia or Croatia, only to crimes committed in Kosovo during the first five months of 1999.

Investigations [top]

The Tribunal established an office in Pristina shortly after NATO's entry into Kosovo in June 1999 to better deal with the formidable task of investigations. The first exhumation season lasted from June to October 1, 1999. Six weeks later, the newly appointed Chief Prosecutor, Carla Del Ponte, presented her preliminary findings to the U.N. Security Council in New York. As of November 10, 1999, she reported, the Tribunal had completed work at 195 of 529 reported grave sites in Kosovo, exhuming 2,108 bodies. Del Ponte pointed out, however, that this did not represent the total number of bodies.

Exhumations were ongoing, and the Tribunal had also "discovered evidence of tampering."16 The next exhumation round lasted from April to October 2000. According to Del Ponte's November 2000 address to the Security Council, Tribunal teams examined an additional 325 sites, exhuming 1,577 bodies and the partial remains of 258 others. Del Ponte stated that the provisional total of exhumed bodies over two years is "almost 4,000 bodies or parts of bodies." She added that an accurate figure will never be possible "because of deliberate attempts to burn the bodies or to conceal them in other ways."17

On September 29, 1999, Del Ponte made the Tribunal's work in Kosovo a top priority.18 The main focus, she announced, was the investigation and prosecution of Milosevic and the other leaders indicted in May. Thereafter, indictments of other individuals in positions of political and military authority may follow. In addition, the Tribunal is investigating perpetrators of particularly egregious crimes-so-called "notorious offenders." This would include those who committed rape or sexual violence during the conflict.

The Tribunal also recognized that it "has neither the mandate nor the resources" to be the main investigatory and prosecutorial agency in Kosovo.19 The vast majority of crimes committed during the armed conflict will have to be dealt with by the local Kosovo police and judiciary, currently under the mandate of the United Nations Mission in Kosovo (UNMIK).

In her November 2000 address to the Security Council, Del Ponte also stressed the need to arrest Slobodon Milosevic, who lost his reelection bid in September and was then forcibly removed from office on October 5, 2000. Del Ponte urged the U.N. to pressure the new Yugoslav authorities to cooperate in Milosevic's arrest and extradition to The Hague, stating that "it would be inconceivable to allow Milosevic to walk away from the consequences of his actions."20 She also called on the Security Council to modify the Tribunal's statute so that it might deal with post-war abuses against Serbs and other minorities in Kosovo. According to the current statute, with the exception of genocide, the Tribunal only has jurisdiction over crimes committed in armed conflict.

Post-war Serbia and the Tribunal [top]

After coming to power in October 2000, new Yugoslav President Vojislav Kostunica stated that cooperating with the Tribunal was "not a priority." In November, however, he agreed that the Tribunal could reopen its office in Belgrade. Newly-appointed Foreign Minister Goran Svilanovic said, "We cannot and should not avoid facing the consequences of war and responsibility of crimes."21 Although several Serbian government representatives have spoken out in favor of cooperation with the Tribunal, Kostunica himself repeatedly denigrated the international body as an anti-Serb institution. His negative position on the Tribunal changed somewhat after strong pressure from the U.S. government.

In October 2000, the U.S. Congress laid down strict guidelines in the 2001 Foreign Operations Assistance Act, prohibiting the U.S. government from continuing aid to Belgrade unless Yugoslavia cooperates with the Tribunal, including "the surrender and transfer of indictees or assistance in their apprehension." According to the legislation, the Bush administration had to decide by March 31, 2001, whether to halt U.S. aid, effectively blocking approximately $50 million allocated for Yugoslavia.

In late January 2001, del Ponte visited Belgrade to meet with the new Yugoslav government. In a press conference after her return to The Hague, the prosecutor said she was disappointed with the level of cooperation she had received, although she remained "cautiously hopeful." Her meeting with President Kostunica, she said, "did not lead to any meaningful dialogue."22

The Yugoslav government's cooperation with the Tribunal improved slightly before the March 31 deadline imposed by the U.S. government. The Yugoslav government began debate on a new law to allow for full cooperation with the Tribunal and the surrender of indictees, and the Tribunal was granted permission to conduct investigations inside Yugoslavia, including the hearing of witnesses and access to documents and archives.23 In addition, two Bosnian Serb indictees ended up in the custody of the Tribunal. The first such person, Blagoje Simic, former mayor of Samac, turned himself over to the Tribunal on March 12, 2001. Ten days later, Milomir Stakic, former mayor of Prijedor, was arrested by the Serbian police and handed over to the Tribunal.24

Milosevic Arrested [top]

On April 1, Serbian police and special police arrested former President Milosevic on charges of corruption. The government made no commitment to transfer him to the Tribunal. At least publicly, as of late April, none of the investigations involved his role in war crimes or crimes against humanity committed during the wars of Yugoslav succession.

On April 2, the U.S. government certified that conditions had been met for continued economic assistance to Yugoslavia. Full U.S. support for a future international donors' conference, however, was withheld, pending continued cooperation with the Tribunal. State Department spokesman Richard Boucher said that the U.S. government "would expect" Yugoslavia to deliver Milosevic to the Tribunal but that support for continued aid would not be "based on a single step alone."25 As of April 2001, at least eight persons indicted by the Tribunal were believed to be living in Serbia, including the four former Serbian and Yugoslav officials indicted along with Milosevic and three Yugoslav Army officials indicted on charges relating to the capture of Vukovar, Croatia, in November 1991.

On June 28, under strong international pressure, the Serbian government transferred Milosevic to the Tribunal in The Hague. He appeared before the court for his arraignment on July 2, refused defense counsel, and denounced the proceedings as a political trial. The Kosovo section of the trial is scheduled to conclude in September 2002, to be followed by the case against him in Bosnia and Croatia.

As of July 2002, two of Milosevic's four co-accused have been taken into custody by the Tribunal. Yugoslav Army Chief of Staff Dragoljub Ojdanic was transferred to The Hague on April 25, 2002, and Yugoslav Deputy Prime Minister Nikola Sainovic arrived on May 2, 2002. Their trials have not yet begun. Serbian Deputy Minister of the Interior Vlajko Stojiljkovic shot and killed himself on April 13, 2002, on the steps of the Serbian parliament after the legislature passed a law on cooperation with the Tribunal. Serbian President Milan Milutinovic is still at large.

Footnotes [top]

1. U.N. Security Council Resolution 827, May 25, 1993 .[top]

2. Fact Sheet on ICTY Proceedings, July, 2002. An unknown number of other individuals have been the object of sealed indictments. [top]

3. The International Criminal Tribunal for the former Yugoslavia, "Prosecutor's _Statement Regarding the Tribunal's Jurisdiction Over Kosovo," The Hague, March 10, 1998.

4. Contact Group Statement on Kosovo, London, June 12, 1998.

5. Communication from the Prosecutor to the Contact Group Members, The Hague, _July 7, 1998.

6. Press conference of Ambassador David Scheffer, Zagreb, Croatia, August 31, 1998.

7. Human Rights Watch first called on the Tribunal to undertake an investigation into alleged war crimes in Kosovo on March 7. In a letter to Chief Prosecutor Arbour, Human Rights Watch argued that "The violations of humanitarian law apparently being committed in Kosovo fall under the purview of the International Criminal Tribunal for the former Yugoslavia. . . . By opening an immediate investigation into the apparent war crimes being committed in Kosovo, and signaling that the Tribunal's jurisdiction extends to these atrocities, your office can help to curtail them." See Human Rights Watch press release, "Human Rights Watch Calls on Yugoslav War Crimes Tribunal to Investigate Possible War Crimes in Kosovo," March 7, 1998.

8. For details of these incidents, except Volujak, see Human Rights Watch, Humanitarian Law Violations in Kosovo, and Human Rights Watch, A Week of Terror in Drenica.

9. See Human Rights Watch, "A Week of Terror in Drenica."

10. See Human Rights Watch press release, "Interference with Kosovo Forensic Team `Unacceptable,'" December 11, 1998.

11. "Thwarted Kosovo Mission of Louise Arbour," Tribunal Update 109, Institute for War and Peace Reporting, January 18-23, 1999. See also "Don't Tamper with Evidence, UN
Prosecutor Tells Belgrade," Agence France Press, January 21, 1999.

12. Report of the EU Forensic Expert Team on the Racak Incident, March 17, 1999.

13. Press Statement by James P. Rubin, Spokesman, April
7, 1999, "Responsibility of Individual Yugoslav Army and Ministry Of Internal Affairs Commanders for Crimes Committed By Forces Under Their Command in Kosovo."

14. Ibid.

15. The Indictment of Milosevic et al., Case IT-99-37-I, International Criminal Tribunal for the Former Yugoslavia, May 24, 1999.

16. Remarks to the Security Council by Madame Carla Del Ponte, Prosecutor, International Criminal Tribunal for the former Yugoslavia, November 10, 1999, New York.

17. Address to the Security Council by Madame Carla Del Ponte, Prosecutor, International Criminal Tribunals for the former Yugoslavia and Rwanda, November 21, 2000, New York.

18. Press Release, "Statement by Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, on the Investigation and Prosecution of
Crimes Committed in Kosovo," September 29, 1999.

19. Ibid.

20. Address to the Security Council by Madame Carla Del Ponte, Prosecutor, International Criminal Tribunals for the former Yugoslavia and Rwanda, November 21, 2000, New York.

21. "Belgrade Pledges War Crimes Purge," BBC News, November 6, 2000.

22. Statement by the Prosecutor, Carla Del Ponte, On the Occasion of Her Visit to Belgrade, The Hague, January 30, 2001.

23. Statement by the Prosecutor Carla Del Ponte, The Hague, March 21, 2001.

24. See Human Rights Watch press releases, "Simic Surrender Not "Cooperation", March 12, 2001, and "Stakic Arrest Welcomed But Milosevic Still Must Be Surrendered to The Hague," March 23, 2001. For details about Stakic's role in Prijedor, see Human Rights Watch, "The Unindicted: Reaping the Rewards of `Ethnic Cleansing,'" January 1997.

25. "Powell Certified Aid for Yugoslavia," Associated Press, April 2, 2001.