The International Criminal Tribunal
for the Former Yugoslavia
158. An important development in international
law was the establishment of the International Criminal Tribunal
for the Former Yugoslavia (ICTFY) in 1993.
Under its statute, the ICTFY has jurisdiction over persons accused
of grave breaches of the Geneva Conventions, of violations of
the laws and customs of war, of genocide, or of crimes against
humanity, committed within the territory of the former Yugoslavia
after 1 January 1991.
The tribunal has had some success in recent years in securing
the arrest and conviction of persons accused of these crimes in
Croatia and Bosniasome of the arrests having been effected
by British troops.
159. In the case of Kosovo, NATO in late March
1999 warned Milosevic that he and his military commanders would
be held responsible for war crimes committed in Kosovo, and a
senior FCO official was appointed as War Crimes Co-ordinator on
16 April 1999. According to Dr James Gow, this last move gave
"clear definition" and "a point of focus"
to the support to ICTFY offered by the United Kingdom.
On 27 May 1999, the ICTFY announced the indictment of Milosevic
and of four other senior members of his coterie for crimes against
humanity and violations of the laws and customs of war for their
actions in Kosovo.
(It is noteworthy that Milosevic has been indicted only in respect
of Kosovo and not in respect of crimes which may have been committed
elsewhere in the former Yugoslavia). The FCO told us that, rather
than hardening Milosevic into a "bunker" mentality,
the indictment "appears to have added to the psychological
pressure on him to strike a deal" and thus to concede.
However, they went on to say that "there was and is no prospect
of him being given any sort of amnesty." The indictment of
Milosevic has created some difficulties for other political leaders
in dealing with him.
The Foreign Secretary told us that dealings on matters like missing
persons would be acceptable, though Serbia could not become a
partner in the stabilisation process while the President was an
We endorse the Government's view that there should be no amnesty
for Milosevic or any other leaders indicted of war crimes, and
that dealings with Serbia must remain limited so long as any indicted
war criminal remains within its government.
|160. Near Glogovac, in the village of Staro Cikatova, we stood outside a house where a group of Albanian men and boys had been shot by masked gunmen. The bullet holes were still visible on the ruins as the village headman told us what had happened. His brother had been one of those murdered. After the assassination, the bodies had been buried by relatives, but had been dug up and removed. To assist with the recovery and removal of the bodies, a house was destroyed, by the Serbs, with the use of a bulldozer. No-one knew where the bodies now were. Earlier we had passed a house where 47 people, including infants, had been shot before the house was burned. Glogovac contains 16 mass graves, with numbers in each varying from 149 to five. Most of the bodies were unidentified, and we saw the plastic bags of belongings by each grave side to aid eventual identification. These are the sorts of crimes for which the direct perpetratorsand those behind themmust be brought to justice.
161. The United Kingdom has given considerable
assistance to the ICTFY in Kosovo, both in practical and financial
terms. A British Scenes of Crime Team was the first to arrive
in Kosovo in June 1999, and has been engaged in the ghastly work
of exhuming bodies and establishing the causes of death. The team
has returned again to Kosovo this year. At the beginning of March
2000, 2108 human remains had been found at 195 of the 529 mass
grave sites identified by the ICTFY.
Other important British assistance has included the provision
of information and intelligence to the TribunalDr
James Gow suggested that such intelligence was not provided about
previous crimes committed in other parts of the former Yugoslavia.
The decision to give full intelligence support to the ICTFY is
welcome. We regard the support of the ICTFY as an important demonstration
that the international community will ensure that those accused
of serious war crimes are brought to justice. We recommend
that the Government continue, and if possible enhance, its present
level of assistance, both material and financial, to the International
Criminal Tribunal for the Former Yugoslavia.
162. The indictment of Serbian leaders by the
ICTFY should not divert attention from the need to pursue war
criminals who acted on a smaller scale at the local level, as
at Glogovac. The failure to deal with these "second tier"
war criminals was identified to us as a particular problem by
KFOR commanders. The Foreign Secretary told us that the Tribunal
had "a very clear policy of focussing on those responsible
for the oversight, masterminding and initiation of war crimes,"
and he suggested that local, lower level war criminals should
be pursued by the Kosovo authorities once a functioning judicial
system is in place.
Many of those who have been brought to The Hague so far have been
local leaders in Croatia and Bosnia. We anticipate that the painstaking
work of the Scenes of Crime Teams in Kosovo, combined with other
detective skills, will build up evidence against any who committed
war crimes at any level. A clear message must be given that no-one
who has a case to answer will be able to sleep soundly in his
or her bed. We make recommendations later
which should help secure fair trials in Kosovo for those dealt
with for war crimes there.
163. It is important to note that the ICTFY has
jurisdiction over individual personnel in NATO states in respect
of charges relating to the conduct of the military campaign, though,
as Professor Greenwood stressed, the Tribunal has no jurisdiction
to decide whether the intervention was itself lawful.
Professor Lowe pointed out that the Prosecutor had said that her
staff were examining allegations made against NATO, though there
was no formal inquiry into NATO actions. He told us that he believed
it was desirable for all within the territorial jurisdiction of
the ICTFY to be equally subject to its jurisdiction: "if
it were otherwise, the impartiality and credibility of the Tribunal
would be severely compromised."
We agree. Though we have no doubt by whom war crimes in Kosovo
were overwhelmingly perpetrated, any allegations against the KLA,
other Kosovan groups or indeed NATO must be properly investigated
by the ICTFY. We recommend that the Government co-operate with
any investigation which the International Criminal Tribunal for
the Former Yugoslavia may mount, irrespective of the identity
of the individual investigated.
164. The ICTFY is an example of the internationalisation
of justice in the areas of war crimes and crimes against humanity.
A more significant step forward will be taken when the International
Criminal Court is established. We have praised the FCO's commitment
to this court in previous reports, but we have urged the Government
to hasten the introduction of the Bill which will allow the United
Kingdom to ratify the Statute of the Court.
In their most recent response, the Government has again promised
that the legislation will be published in draft this parliamentary
session, so helping to "ensure that the Bill enjoys maximum
possible consensus when it is introduced, which is as soon as
Parliamentary time is available."
The draft Bill has still not been published, and this almost certainly
means that the legislation cannot be passed in this Session. We
urge the Government to ensure that the legislation to allow ratification
of the Statute of the International Criminal Court is one of the
first Government Bills introduced in Session 2000-2001.
165. There is also an aspect of constitutional
law which is thrown into focus by the Kosovo campaign. Our inquiry
has been part of a wide ranging involvement of the House of Commons
and its Committees on Kosovo. As we mentioned earlier, the Defence
Committee is at present undertaking an inquiry into The Lessons
of Kosovo, and the International Development Committee reported
in May 1999 on Kosovo: The Humanitarian Crisis.
During the period January to June 1999, the Prime Minister made
five statements to the House on Kosovo, the Deputy Prime Minister
one, the Foreign Secretary five, the Defence Secretary four and
the International Development Secretary one. Kosovo was also raised
frequently in question time, and was the subject of backbench
adjournment debates. There were four whole day debates initiated
by the Governmenton 23 March, 19 April, 18 May and 17 June.
Kosovo was also debated and the subject of statements in the House
of Lords. Parliament thus had considerable opportunities to probe
the Government on its conduct of the conflict, both on the floor
of the House and in Committee.
166. Parliaments in other NATO states had a specific
opportunity to approve the decision of their governments to engage
in hostilities over Kosovo.
However, the British Government commits our armed forces to any
conflict by exercise of the Royal Prerogative. For that reason,
it has become normal for Governments to rely on motions for the
adjournment to debate the United Kingdom's involvement in a conflict.
These procedural motions are unamendable. This is a traditional
means of preventing an alternative proposition to that of the
Government being offered to the House.
Governments have not always shied away from substantive motions.
The Korean War and the Suez intervention were both approved by
substantive resolution of the House. The Falklands War was, however,
only debated on the adjournment, and the Gulf War was also debated
on the adjournment on four occasions before a substantive motion
was moved. All the debates on the Kosovo conflict were held on
the adjournment. We recognise, of course, the danger that even
a small minority vote might be exploited by the adversary as evidence
of division and hence weakness, but in a modern democracy it should
be possible for Members to be able to demonstrate their support,
or otherwise, with greater precision than can be afforded by an
adjournment motion. In our view, in any comparable future conflict,
an opportunity should be found at the earliest practicable moment,
for the House to express its view by voting on a precise substantive
motion to which it would be possible for Members to table amendments.
This will bring the United Kingdom in line with other states,
and give extra democratic legitimacy to military action. We
recommend that the Government should table a substantive motion
in the House of Commons at the earliest opportunity after the
commitment of troops to armed conflict allowing the House to express
its view, and allowing Members to table amendments.
387 QC342. Back
Ev. pp. 354ff. Back
Article 52.2. Back
Ev. p. 357. Back
Ev. p. 233. Back
Ev. p. 287. Back
Ev. p. 153; QC341. Back
Ev. p. 141. Back
op. cit. p. 3. Back
op. cit .p. 8. Back
Ev. p. 359. Back
Ev. p. 151. Back
That is to kill the enemy within an area, and then to prevent
subsequent entry to the area by the enemy. Back
Channel 4, Kosovo: A War in Europe Back
HL Deb 11 October 1999, col WA71. Back
HC Deb 11 April 2000, col 168. Back
HL Deb, 11 October 1999, col WA 71. Back
Report from Defence Committee, Session 1999-2000, HC 125, paras
33ff. Available on: www.publications.parliament.uk/pa/cm199900/cmselect/cmdfence/125/12502.htm.
See also HC Deb 27 January 2000 col 225w-226w. Back
Ev. p. 30. Back
Ev. p. 233. Back
op. cit. p. 26. Back
Ev. p. 356. Back
Financial Times, 10 May 1999. Back
The Guardian, 10 April 2000. Back
QQC187-91, 224. Back
The Guardian, 28 November 1999. Back
Not published. Back
HC Deb, 10 May 1999 col 21. Back
Ev. p. 173. Back
Ev. p. 171. Back
HC Deb, 10 May 1999 col 21. Back
See page 25 of NATO's Report Kosovo One Year On. Back
Q141 (Evidence taken by Defence Committee in its Kosovo inquiry:
yet to be published). Back
UN Security Council Resolution 827 established the Court. It
was inaugurated on 17 November 1993. Back
Ev. p. 174. Back
Ev. p. 367. Back
Ev. p. 45. Back
Ev. p. 12. Back
OSCE Report, p. 194. Back
Report of UN Secretary General, S/2000/177, para 66. Back
Ev. p. 49. Back
Ev. p. 368. Back
See paras 203-219. Back
Ev. p. 171. Back
Ev. p. 174. Back
(1998-99), para 102; HC 41 (1999-2000) paras 28-29.
Available on: www.parliament.uk/commons/selcom/fachome.htm. Back
Cm 4687 para 26. Available on: www.parliament.uk/commons/selcom/fachome.htm. Back
Third Report, Session 1998-99, HC 422. Available on: www.parliament.uk/commons/selcom/fachome.htm. Back
HC Deb 12 April 2000, col 180W. Back
That does not prevent the adjournment being used for effecting
momentous change, as most famously happened on 7 May 1940 when
a vote on the adjournment led to the replacement of Chamberlain
by Churchill as Prime Minister. Back