|Updated: 18 May 1999||Morning Briefings|
18 May 1999
By Jamie Shea and Amb. David Scheffer
Just let me say that we will have, as always, the usual operational update with General Jertz and myself at 3 o'clock in the usual way and I would like to introduce the special guest, this morning, special visitor, Ambassador David Scheffer of the United States and he is the Ambassador at Large of the US State Department for War Crimes Issues and he has just been in The Hague and he has also had a meeting here this morning with the Secretary General, Javier Solana, and in just a few moments I will turn over to him to brief you on the US perception of the situation in Kosovo, in Yugoslavia, particularly from the angle that Ambassador Scheffer covers.
For my part, I would just like to give you two updates: the first is on the Secretary General's meeting this morning with Ibrahim Rugova. Many of you, I imagine, attended the press event but I'd just like to say that from the NATO perspective it was a very cordial, very warm meeting and we were very pleased that Dr. Rugova could come and see us this morning. The Secretary General described to him the results of the Washington Summit, particularly the five key cardinal conditions that NATO is not going to back away from for resolving the crisis in Kosovo. The Secretary General further urged Dr. Rugova and all the Kosovar Albanian leaders to work together to maintain the united front that they had during the Rambouillet negotiations as the best way forward for Kosovo now once the conflict has come to an end; and thirdly, the Secretary General stressed that NATO will continue to do all it can, while waiting for the crisis to be resolved, to help the Kosovar Albanian people both in the refugee camps but also those internally displaced Kosovars that remain inside Kosovo and of course Dr. Rugova shares, as you would imagine, our concern regarding the condition of those internally displaced persons.
For his part, Dr. Rugova stressed two points: the first that he totally supports what NATO is doing and sees the NATO action as the only way to achieve a lasting peace in Kosovo and to get the refugees back; and secondly, the need for NATO to continue with its air operations until the five conditions are met and you heard him also say the same thing during his press briefing.
The second point is the usual overnight update. I can be very brief here because I think all of you by now will have had the details for some time already. Let me just stress that the weather continued to affect the air operations last night on Day 55 of Operation Allied Force but nonetheless NATO aircraft were able to fly 566 sorties of which 190 were strike sorties and 62 suppression-of-air-defence sorties and despite the bad weather conditions we were still able to successfully hit a number of ground targets in target areas - more than 20 artillery pieces, mortar positions, anti-aircraft artillery pieces, tanks, armoured vehicles and riveted - that is to say partially-hidden - military vehicles and also, as you know, yesterday in an attack against Botanica airfield we were able to destroy a MiG-29 and a MiG-21 on the ground. Other strategic targets included highway bridges in three locations and a TV/FM transmitter at Kapaonik and all aircraft, I am grateful to say once again, returned safely to their bases but General Jertz will have much more on all of that at 3 o'clock and now I am very happy again to turn the floor over to Ambassador Scheffer for his update on the war crimes issue.
Ambassador Scheffer: Thank you very much, Jamie, and it is my great pleasure to be here today. I came here to meet with Secretary General Solana, we had a good meeting this morning and I was heartened - as I have been throughout this campaign - by his commitment to the full investigation of the ethnic cleansing campaign in Kosovo, an investigation that will last long after this conflict is resolved militarily. By the way, I am also going to be at the Tribunal tomorrow holding my consultations with various Tribunal officials - I do this quite regularly as do other governments - so it was a good opportunity to come here and see Secretary General Solana and have this opportunity to meet with the European press and the international press here.
Let me tell you what I intend to do this morning so that you have a sort of game plan of how I am going to get through about 15 minutes of a statement to you and then I'd be happy to take your questions.
After a short introduction, I'm going to talk about some of the information that we have coming out of Washington that I think would be of interest to you this morning to make certain that you all are aware of some of the information that is coming out of Washington. And then I am going to focus on the issue of human shields not only as a factual matter in Kosovo but also I am going to ask your indulgence for about three or four minutes to literally talk with you about the law and how it applies to the use of human shields as I think understanding where this comes in under international law is particularly useful.
I do want to say that I learn a lot and we all gain a tremendous amount from the heroic work the journalists are doing in the Kosovo theatre; it is an enormous amount of information that comes in from what we describe as "open sources" and the media is included in that and I think the entire international media must take great pride in the focus and the hard work that it is undertaking to try to get the facts out and we certainly take notice of that in Washington.
With the exception of Rwanda in 1994 and Cambodia in 1975, you would be hard pressed to find a crime scene anywhere in the world since World War II where a defenceless civilian population have been assaulted with such ferocity and criminal intent and suffered so many multiple violations of international humanitarian law in such a short period of time as in Kosovo since mid-March 1999.
There are hideous crime scenes elsewhere recently - Sierra Leone, the Democratic Republic of the Congo and Sudan come to mind - but Kosovo represents a government-planned campaign to eliminate either through forced deportation or killing, most of an ethnic population from its home. The criminal character of such an enterprise, divorced in large part from any semblance of military necessity, cannot be ignored. The list of war crimes and crimes and again humanity being committed in Kosovo is diverse, covering such a wide range of criminal behaviour that it represents almost a text-book example of how not to wage warfare.
We believe that the International Criminal Tribunal for the Former Yugoslavia unquestionably has jurisdiction in Kosovo, every government has the responsibility to co-operate with the Tribunal. We recently hosted Justice Arbour in Washington for discussions with Cabinet members, including Secretary Albright, on the whole range of issues of co-operation with the Tribunal and we felt those discussions were not only constructive but quite successful.
We have been co-operating with the Yugoslav Tribunal with an accelerated and intensified information-sharing programme, many hundreds of documents pertaining to Kosovo alone, classified and otherwise, have been provided to the Tribunal since March of 1998; hundreds have been provided since mid-March of this year and many more are in the pipeline. These documents are provided pursuant to rule 70 of the Tribunal Rules.
This work is very labour-intensive, it takes time. We do need more budgeted resources for support for the War Crimes Tribunal and that is a goal we in the United States are working on with the United States Congress and I am very pleased to see that as the Kosovo Supplemental Bill moves through the Congress, there is a significant amount of money in that Bill for support for war crimes investigations with the Yugoslav Tribunal and that will make a very big difference with respect to the capabilities of the Tribunal to undertake a full range of investigations in Kosovo.
We also were pleased to announce last week that the Federal Bureau of Investigation has offered to provide a forensics team that would accompany the international security force when it goes in at the request of Justice Arbour to assist with the investigation of parts of this major crime scene.
We were pleased recently to give $500,000 to an NGO to help conduct refugee interviewing in the theatre and also to help co-ordinate and assist with the actual questionnaire that is being used with refugees.
We provide information to the ICTY, the Yugoslav Tribunal, to facilitate its investigations, including with respect to command responsibility and the legal obligation of the field commanders and the leadership in Belgrade to prevent and punish criminal conduct by their subordinates. We not only support the Tribunal's mandate to investigate wherever the evidence leads it but we also look forward to the day when a democratic Serbia with a strong independent judiciary brings other perpetrators of crimes in Kosovo to credible justice.
Last week, we released a report, the cover of which I will show you here, called Erasing History. This was released by the State Department and by Secretary Albright last Monday and I do want to call it to your attention one more time. It is on the relevant web sites of the State Department and the US IA, it also includes maps in it that I think would be extremely useful for journalists to see in terms of more than 600 damaged villages and towns etc. and a couple of examples of the overhead imagery which you have seen previously, including that shown by Jamie in a previous briefing.
Let me give you some facts and figures that are not only in the Erasing History report but have been more recently reported by the United States government and which I think I can bring to your attention today. Keep in mind that we have a web site whereby we regularly each week put an ethnic cleansing in Kosovo report and I do strongly encourage you to look at that each week, that is a good distillation of information that we are collecting.
The numbers of towns and villages where we have reports of mass executions have now risen to 75. We have new reports of mass graves in Dibrousavac - I apologise for some of my pronunciation - Drenica, Lipjon, Kanisu, Risala, Malisevo, Paklac, Pristisello and in the Pagarusa Valley.
We have reports that Serb forces have burned bodies exhumed from mass graves in an attempt to destroy forensic evidence.
The number of individuals that we have a fairly firm count on as having been killed in mass executions has now risen to 5,000. I must emphasise that is a totally minimalist figure, we are simply trying to give you the most conservative confirmed figure that we can from good refugee reporting. We can only assume the worst and that the figure is actually much higher than that.
We have reports of systematic rapes in Dukovica and at not only the Karguch Hotel in Pec but also the Metohia Hotel in Pec.
You have heard in the past our reporting to you of the number of men unaccounted for, we simply don't know their whereabouts in Kosovo or what has become of them. We have talked in the past about a figure of around 100,000; more recent reporting that we have places that figure higher now, a figure of about 225,000 in terms of men who are unaccounted for. That does not mean a kill figure, that means unaccounted for, we do not know what their fate is, a large number of them could in fact be alive but the point is we don't know their exact fate at this time and that is a figure that is part of the internally displaced figure of about 550,000 but we simply don't know the actual fate of these particular men at this time. Those are men between the ages of 14 and 59 approximately.
We also have new refugee reports describing widespread starvation and disease among internally displaced persons in Kosovo especially among those who have been in the hills for weeks.
On the issue of human shields, since late March ethnic Albanian refugees have reported on numerous Serb atrocities through the province, we all know that. In addition to the murders and rapes, refugees have claimed that Serb forces are using Kosovars to escort Serb military convoys and fuel facilities throughout the province. This clearly is an act of desperation on the part of the Serb forces and I want to describe to you three different acts, categories of desperation.
First, he is using human shields to escort military forces and under that category since late March Serb forces have reportedly used ethnic Albanians to protect military assets in the field. On March 29, Serb forces reportedly used 500 Kosovar men as human shields during fighting with KLA forces near Klina. In early April, Serb forces in Orahavic reportedly forced as many as 700 ethnic Albanian men to stand in front of tanks in the rain for two days with their hands tied behind their backs as the Serbs exchanged fire with KLA forces.
As the fighting with KLA forces diminished and the fear of NATO air strikes became more daunting, Serb forces in the field began to change their tactics. Beginning in mid-April, refugees reported that Serb forces were using ethnic Albanian men to shield military convoys from NATO air strikes. Serb forces reportedly removed young ethnic Albanian men from refugee columns and forced them to form a buffer around Serb military convoys. Numerous refugees claim to have witnessed and participated in this activity on roads between Pec, Dakovica, Jakovica, Kasovska Mitrovica, Pajahava and Pristina.
Additional refugees claim that on May 6, Serb forces dressed in Red Cross and Red Crescent uniforms moved with convoys of refugees between Djakovica and Berkovac in an attempt to prevent NATO air strikes. In order to conceal their military logo, Serb forces covered their wagons with plastic tarpaulins taken from NGOs.
The second category of human shield use is shielding key facilities and under this we have first defensive uses. Since NATO bombing started in late March, there have been reports of Serb forces gathering large numbers of ethnic Albanian civilians at sites in Pristina, Pec, Shrobica and Vutran; these included a munition factory in Seres, a cement factory in Jakovic and a possibly defunct ferro-nickel plant in Glogovac, all plausible military or industrial targets. Subsequent analysis indicated that in some cases the Serbs were using these facilities as temporary detention centres before expelling the ethnic Albanians to Macedonia and Albania.
With respect to offensive uses, unconfirmed reports claim that Serbian military forces are intentionally positioning ethnic Albanians at sites they believe are targets for NATO air strikes. However, the ethnic Albanians reportedly are not being used in an ostentatious manner to deter attacks but rather are kept concealed in NATO target areas apparently in order to generate civilian casualties that can be blamed on NATO.
We have taken note of unconfirmed press reports from early April claiming that Serbian forces are attempting to disguise their murder of ethnic Albanian civilians by placing the bodies in the ruins of locations recently bombed by NATO. In addition, refugee reports claim that Serb forces have forced ethnic Albanian men to don Serb military uniforms, probably so they cannot be distinguished by NATO aircraft.
These reports differ from the use of human shields during the Bosnian conflict. During the fighting in central Bosnia from 1992 to 1995, the combatants often positioned captured civilians at highly-visible locations in key military facilities in an attempt to deter attacks from opposing forces and NATO air strikes. In addition, units sometimes positioned captured civilians in the front lines to force their opponents to stop shelling - that was in Bosnia.
The final category of human shields would be forced labour. Serb forces reportedly forced 25 ethnic Albanian civilians to dig defensive positions on the south-east side of Iresovac on 10/12 April apparently in anticipation of a NATO ground attack through Macedonia. Whether it was the intended purpose or not, these civilians constituted a de facto shield for the nearby Serb security forces.
Similar forced labour was observed during the Bosnian conflict although those detainees were actually working in organised labour units on the front lines in the cross-fire between the warring parties.
Let me just finally in terms of the facts that what impresses someone like me who deals with war crimes investigations every day, is that this has become a shell game of civilians manipulated by Serb forces, moved around the countryside in a shell-game strategy to expose them to the risk of military conflict and that, folks, is illegal, that is a war crime.
Let me just talk for 3 to 4 minutes about the law if I might because I think this is very important:
The practice of involuntarily holding innocent civilians in the vicinity of military targets is illegal and reprehensible. International law prohibits the practice of deliberately placing non-combatants around military objectives in an effort to "protect" them from attack. The use of human shields is an illegal tactic that was used by for example by the PLO in Lebanon in 1982 as well as the lawless Somali militia and by Saddam Hussein in occupied Kuwait. In the context of operations in Kosovo, the use of Kosovar Albanians to insulate military targets would violate norms of customary international law. The prohibition against the use of human shields is reflected in the following provisions of the law and I am just going to quickly check this off for you:
First, article 27 of the Geneva Convention relative to the protection of civilians in time of war which was signed in 1949 specifies that protected persons shall "at all times be humanely treated and shall be protected against all actions of violence or threats thereof"
Article 28 mandates that protected persons cannot be used to render areas immune from military attack. This provision it might be argued is technically inapplicable because Kosovars would not be protected persons in the hands of their own government. However, article 28 reflects the solid grounding of the concept in the framework of humanitarian law and was clearly articulated and I actually helped the draft the provision of the Rome treaty on the Permanent International Court last summer that clearly embodied this principle as a chargeable count by the Prosecutor of the Permanent International Criminal Court when a sufficient number of ratifications are achieved to bring it into force.
Second, common article 3 mandates that persons taking no part in the hostilities will "in all circumstances be treated humanely." Article 3 specifically outlaws the taking of hostages; groups of civilians who are held at gunpoint and forced to remain in the vicinity of legitimate military targets are hostages in both common sense and legal meaning of that word; they are held against their will in an environment where they are endangered.
Three, protocol 1 of 1977, article 51, sub-paragraph 7, mandates that "the presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations; the parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations."
It is important that the commentary to the protocols of 1977 points out that the formulation of article 51, sub-paragraph 7 is broader than the class of persons covered by either of the applicable Geneva Conventions of 1949. In addition, the commentary notes that the word "movements" is intended to include instances where the civilian population is moving of its own accord.
I have just another brief comment on the law:
The relevant principles of law associated with the tactic of using human shields to insulate military objectives from attack are discrimination and proportionality.
The principle of discrimination is one of the most fundamental components of the law of armed conflict. This principle was reflected as early as the 1899 Hague Convention requirement that combatants wear a fixed, distinctive emblem recognisable at a distance and carry their arms openly. Customery international law requires that combatants shall "at all times distinguish between the civilian population and combatants and shall direct their operations only against military objectives." There is absolutely no question that that is exactly what NATO is doing, it is distinguishing between civilian and military objectives and in fact I would argue just as a scholar of the laws of war that you cannot find another armed conflict in the history of modern warfare where there has been more discipline and care taken to comply with the laws of war and to make that distinction than in the targeting exercise of the NATO Alliance.
The use of human shields would represent an attempt to deter an attack against a military target by affecting the proportionality analysis of the attacking state. The principle of proportionality prohibits attacks where the loss of life and/or damage to property incident to legitimate attacks would be excessive in relation to the concrete and direct military advantage to be gained. Commanders must take all feasible means to minimise collateral damage and the effort of using human shields to hope that the proportionality analysis would deter the attack. In some, using civilians in an attempt to insulate legitimate military objectives from attack violates well-established principles of international war. NATO forces have complied with the law of armed conflict principle that attacks not be wilfully directed against the civilian population as such or deliberately disproportionate.
Thank you for your indulgence.
Jamie Shea: Ambassador Scheffer, thank you very much for that and I can see as I imagined that it has provoked many questions.
Patricia Kelly, CNN:
Ambassador, presumably if your investigations do lead to indictments, you will be dependent on KFOR to carry out any arrests but KFOR won't be there unless the Serb and Yugoslav military withdraw so how do you think you are going to get these people? From what we are hearing, the international community is also adamant that President Milosevic should be indicated. How do you expect him to agree to some kind of a negotiated peace settlement because presumably that would be part of it and he would be signing his own indictment in effect and how do you expect any of this to be successful considering SFOR and IFOR in Bosnia have been unable to arrest key figures who have been indicted such as Radovan Karadic and Ratko Mladic even when they were almost living on top of each other?