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.
1. The Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) will investigate crimes committed during the armed conflict in Kosovo and she will vigorously prosecute those responsible before the Trial Chambers at The Hague. These investigations and prosecutions have to be conducted within the scope of the statutory jurisdiction of the International Tribunal; in accordance with the prosecution strategy adopted by the Office of the Prosecutor (OTP); and as a function of the resources available to the OTP. This statement is intended to make the position of the Prosecutor clear, respecting how she will carry out her mandate in Kosovo.
2. In light of the factors just mentioned, the primary focus of the OTP must be the investigation and prosecution of the five leaders of the Federal Republic of Yugoslavia and the Republic of Serbia, who have already been indicted, and who are alleged to be responsible for the crimes described in the indictment. This involves gathering additional evidence relating to what occurred on the ground in Kosovo during the time period relevant to the indictment, and collecting further evidence respecting the chain of command and responsibility linking the accused to what happened on the ground during that time period. This will be done, in order to add to the existing evidentiary foundation supporting the indictment.
3. OTP ICTY investigative resources must also necessarily be applied, in relation to other high level civilian, police, and military leaders, of whichever party to the conflict who may be held responsible for crimes committed during the armed conflict in Kosovo.
4.The OTP ICTY may investigate and prosecute other individuals, on a case by case basis, who may have committed particularly serious crimes during the course of the armed conflict. The Prosecutor may also investigate and prosecute, on a case by case basis, perpetrators of sexual violence committed in relation to the armed conflict in Kosovo.
5. Under the Statute establishing the ICTY, the International Tribunal has the power to prosecute persons for grave breaches of the Geneva Conventions of 1949, for violations of the laws and customs of war, for genocide, and for crimes against humanity. With the exception of genocide, a prerequisite to the prosecution of persons charged with committing the crimes falling within the jurisdiction of the International Tribunal is the existence of an armed conflict at the time of the commission of the crimes (and, in the case of grave breaches, the existence of an international armed conflict). In the Tadic case, the ICTY Appeals Chamber said, in part, "an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved." The Appeals Chamber also required, for a crime to fall within the jurisdictional scope of ICTY, that "a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law." It is difficult to prejudge the matter of jurisdiction, and so the Prosecutor will continue to examine the factual and legal basis that may link offences to the armed conflict in Kosovo. Nevertheless, the limits of jurisdiction cannot be ignored, and must be taken into account along with a prosecution strategy that properly focuses on leadership investigative targets, as well as perpetrators of particularly serious crimes or sexual violence in relation to the armed conflict. The Prosecutor must also make a realistic appraisal of the resources that she has available to her to carry out her mandate under the ICTY Statute.
6. In light of the above considerations, it is clear that OTP ICTY has neither the mandate, nor the resources, to function, as the primary investigative and prosecutorial agency for all criminal acts committed on the territory of Kosovo. The investigation and prosecution of offences, which may fall outside the scope of the jurisdiction described above is properly the responsibility of UNMIK, through UNCivPol and the newly formed civilian police in Kosovo, assisted by KFOR. To ensure that the OTP ICTY and the agencies just mentioned are operating within their proper spheres, it will be helpful for an effective liaison to be maintained between them and the OTP. This should enable the Prosecutor to be kept informed about the nature and status of investigations being conducted by UNMIK (UNCivPol and the civilian police force), assisted by KFOR, into matters that may potentially have a relationship to crimes within the purview of the ICTY.
7. Continuing liaison with ICTY is important, because the Security Council provided for concurrent jurisdiction in the International Tribunal and in national courts to prosecute persons for crimes within the scope of the ICTY Statute. Therefore, the judicial authorities in Kosovo have the competence to judge those accused of crimes of the sort that come within the jurisdiction of the International Tribunal. In appropriate cases, which must be determined on a case by case basis, it is open to the International Tribunal to request national courts to defer to its competence, in accordance with the Statute of the Tribunal and its Rules of Procedure and Evidence (the Rules).
8. The Prosecutor will carry out her mandate in a vigilant and responsive manner, in accordance with the criteria described above.