Commission on Security and Cooperation in Europe

Testimony :: Susan Blaustein
senior consultant - International Crisis Group

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Congressional Testimony before the Helsinki Commission, 28 February 2000

by Susan Blaustein, senior consultant with the International Crisis Group

Mr. Chairman and Honored Members of the Commission:

I am honored to be here today to speak about a matter of such critical importance to the future
stability of Kosovo and to the success of the international mission there as the fate of the thousands
of missing and detained.

Today, Mr. Chairman, you have asked me to address the particular set of issues regarding the
more than 1,600 Albanian prisoners who, a full eight months after the Kosovo conflict ended, remain
in Serbian prisons, penitentiaries, and military detention centers, in clear violation of international
humanitarian law.(1)

This unfinished business of the Kosovo war rankles deeply within Kosovar society. The prisoners'
continued detention, the risks taken and bribes paid simply to visit them, and the exorbitant
ransoms demanded by Serb lawyers for their release, all have put a tremendous emotional and
financial strain on one in 100 Albanian families. Moreover, the weak response thus far on the part of
the international community has fostered a profound cynicism among Kosovars regarding the
prospects for realising other Western promises such as self-governance or real peace.

Who are these prisoners and how many are there?

The Albanian prisoners in Serbia fall into several categories. The overwhelming majority of them are
men of fighting age -- that is, wage-earners who have much to contribute to the rebuilding and future
governance of Kosovo. There are a number of women, as well (including the respected pediatrician
and poet, Dr. Flora Brovina). All but 10 of the children are believed to have been among the 415
people released so far by the Serbian authorities.(2)

Hundreds of these men, women and children were arrested by Yugoslav Army personnel, Serbian
police, paramilitary forces, and civilians in the course of last year's NATO air campaign. Most of
these have yet to be formally charged with any crime. Their arrests or abductions, if explained at all,
were justified by Serbian authorities as part of legitimate "sweeps," a term understood throughout
the former Yugoslavia to connote ruthless, state-sponsored searches for weapons and/or
"terrorists."

Some 2,200 prisoners were arrested prior to the internationalisation of the conflict, again, for
alleged activities constituting terroristic or treasonous crimes against the state. Among these are an
estimated 200 who had already been convicted of these crimes in Kosovo's Serbian-run courts and
were serving sentences inside Kosovo; but most, like those picked up in the course of the NATO
intervention, have yet to be charged or tried. (3)

All prisoners detained in Kosovo under Serbian custody were hastily trucked or bused out of
Kosovo and into Serbia proper as soon as the so-called military-technical agreement was signed
last June 10 and the withdrawal of Serb forces began.

How was this allowed to happen?

It was U.S. officials in Washington who allowed the issue of the Albanian prisoners to be dropped
from the negotiating table. According to senior NATO and US government officials, a provision
demanding the prisoners' release had been included in early drafts of the agreement, but the
Yugoslav commanders negotiating the agreement objected.(4) NATO commanders consulted with
Washington, where the Clinton administration's inter-agency team,(5) eager to end the air
campaign, fearful of casualties and of the collapse of the seriously fraying Atlantic alliance, readily
acceded to Serb demands to remove this and other issues from the table and to limit negotiations
to the immediate task of replacing one military force by another: getting the Serbs out and NATO
in.(6)

Nevertheless, Mr. Chairman, it is my view, and, more to the point, it is the view of many experts in
international humanitarian law, that the pragmatic omission of the prisoner issue from the
military-technical agreement that brought the conflict to a much-desired close does not in any way
relieve the parties to that conflict of the obligation to release, immediately upon the cessation of
hostilities, all prisoners of war (POWs) and civilians detained in the course of armed conflict. This
obligation is incumbent upon all signatories to the Third and Fourth Geneva Conventions of 1949
and the accompanying Protocol II of 1978, all of which were drafted expressly with an eye toward
protecting combatant and civilian detainees in situations such as this one: where, for political or
other reasons, the armistice or peace agreement drawn up between warring parties does not
explicitly provide for the prisoners' release or general amnesty.

It follows, Mr. Chairman, that the government of the Federal Republic of Yugoslavia continues to hold
those prisoners detained in the course of the international armed conflict in flagrant violation of
well-established tenets of international humanitarian law. This finding does not apply to those
apprehended prior to the internationalisation of the conflict,(7) or to those already charged and tried,
whom, as the Geneva Conventions make clear, states are well within their authority to hold until their
sentences have been discharged. But it does apply, Mr. Chairman, to the conditions of detention
and the conditions under which the prisoners' trials are conducted, both of which, in the Serbian
case, are also believed to violate explicit provisions of international humanitarian law.

The consequences:

It is not surprising, Mr. Chairman, that a government which would forcibly expel close to a million of
its own citizens by systematically burning their villages and massacring thousands of civilians would
show as little regard for individual human rights in the manner in which it has apprehended,
detained, maltreated, tried, and sentenced hundreds more. The conditions of detention are
reprehensible. The released prisoners and prisoners' families I have interviewed all reported that
they or their family member had been repeatedly tortured, beaten, starved, and kept in unheated
cells without winter clothing. Summary trials are being held as we speak, resulting in speedy
convictions won often on the basis of fabricated evidence or forced confessions obtained through
intimidation and torture. Defendants are regularly assigned counsel who, in case after case, have
not met with their clients or even reviewed their files prior to trial, have been observed holding ex
parte hearings with judges, and, upon conviction, have quickly waived their clients' rights to
appeal.(8)

However, the alacrity with which, since October, the Serbian authorities appear to have begun
ratcheting up the wheels of Serbian-style justice by finally charging, trying, and sentencing prisoners
suggests the state's sensitivity, at least, to the argument that its prolonged detention of people who
have yet to be charged is a violation of Serbia's own criminal code, which permits authorities to
detain someone for up to six months without charging them with any crime.(9) The recently
accelerated sentencing rate also suggests that the Serbian justice ministry is well aware that the
Geneva Conventions permit states to retain custody over convicted prisoners for the duration of
their sentences. By imposing sentences of as long as 10 and 12 years, the regime in Belgrade can
hope to destabilise Kosovo for some time to come.

The international community's response to date:

This issue, Mr. Chairman, as the UN's Special Representative to the Secretary-General, Dr.
Bernard Kouchner recently put it, has become "an open wound" for Kosovo, a wound with enormous
repercussions for the success or failure of the international mission there. In recent months
Albanians have grown increasingly frustrated by the absence of productive advocacy on or
involvement in this issue by international actors:

· The International Committee for the Red Cross (ICRC) has consistently refused to advocate for the
prisoners' release because its legal advisors maintain that for such advocacy to fall within the
organisation's mandate, the issue ought to have been included in the peace agreement;

· UNMIK head Bernard Kouchner says he has repeatedly called for the detainees' release
"immediately and without conditions" and that he raises the missing persons issue with every
foreign government he visits. But his initial response last July to the question of the detainees and
the missing was merely to appoint a sub-commission of concerned Albanians, Serbs, and Roma,
and chaired by the UN High Commissioner for Human Rights Special Envoy to the Balkans,
Barbara Davis. But with no resources, no professional staff, no legal team, and no forensic experts,
the UNMIK sub-commission's well-intentioned but highly inadequate efforts have finally led
Kosovars to conclude that the international community has little interest in resolving this issue and
that they should take matters into their own hands.

In recent months prisoners' families and their advocates have staged a series of hunger strikes and
peaceful demonstrations calling upon the international community to mount a systematic campaign
to achieve the prisoners' release. So far, these protests have yielded only promises.

What the U.S. Congress can do:

Mr. Chairman, this situation is not news. It has been going on for some eight months now, with the
international community admittedly able to do very little about it, given its lack of leverage or
influence over Belgrade.(10) However, there are a few things that Western nations should not do,
and that the West, and the United States Congress in particular, can do to redress this egregious,
outstanding humanitarian crisis left over from the Kosovo war.

First, the U.S. Congress should pass a resolution, as the European Parliament recently did, calling
for the release of the Albanian prisoners in conformity with international law.(11) A House resolution
to this effect has been drafted by Congressman Engel of New York that Commission members
might consider co-sponsoring, and the Commission is uniquely positioned to win passage of a joint
resolution that would draw attention to this issue and reassure the Albanian community that these
prisoners have not been completely abandoned or forgotten.

This resolution should urge that European nations which maintain ties with Belgrade, in consultation
with the UN, the ICRC, and other appropriate international agencies, use their respective diplomatic
channels to press the Belgrade authorities for the prisoners' release, and, pending release, for
access to medical treatment, family visits, defence counsel of their own choosing, and for
international monitoring of their trials. In addition, the resolution should urge NATO's Kosovo Force
(KFOR) to assist in the releasees' timely return to Kosovo by preparing facilities in which the
alleged criminals among them can be properly detained while their cases are reviewed by KFOR's
legal advisors to ascertain whether or not prosecutions are warranted.(12)

Second, this Congress might urge its ambassador to the United Nations to introduce a UN Security
Council resolution to the same effect.(13)

Lastly, there are things this Congress and other Western governments ought not to do: The
sanctions against Serbia should not be lifted until such time as the Albanian prisoners detained
during the Kosovo conflict are freed and returned home. The European Union's recent decision to
lift the flight ban, ostensibly to make it easier for ordinary Serbs to travel, had the unfortunate
side-effect of signaling to the indicted President Milosevic that if he only waits out the West, the
remaining sanctions will be lifted, as well, without his having to turn himself over to The Hague as
warranted, to leave office, or even to show the slightest inclination to abide by international law.

Finally, neither this Congress nor any other Western government should allow this issue to drop from
public view. Without the carnage and destruction we all saw on our television screens last year this
time, it is easy to understand that most Americans believe the Kosovo conflict has long since
ended. It is important that U.S. citizens remember that the reasons American troops went to fight in
Kosovo was to stop the Yugoslav government from committing gross human rights abuses there.
Tragically, that same government continues, even to this day, to commit similar gross violations
inside their own prisons, against at least 1,600 of those same Yugoslav citizens -- the Albanian
citizens of Kosovo -- that our soldiers and those of 18 other nations intervened, almost a year ago
now, to protect.

Once again, Mr. Chairman, I would like to thank you and the members of the Commission for this
opportunity to speak today and to submit my testimony and supporting materials for the
Congressional Record. I would be happy to answer any questions you may have.

1.

1 The International Committee for the Red Cross publication issued on 24 February 2000 reports that, as of 1 February
2000, of the 4,434 persons formerly listed as unaccounted, 102 have been confirmed dead, 1,345 confirmed alive, and
1,297 have been visited in prison. (This list includes not only Albanians but people of all ethnicities, under both Serbian
and NATO detention.) Of the 2,987 who still remained unaccounted for, 1,875 persons were reportedly arrested by
Yugoslav and Serbian authorities and civilians in the course of the Kosovo conflict, and 346 were reportedly abducted
by the Kosovo Liberation Army (KLA) or Kosovar civilians, which number that includes the alleged 39 Yugoslav army
soldiers reported as missing in action. There was no information at all regarding 766 persons. The Serbian authorities
have released 415 persons, for whom ICRC has provided transport to Kosovo.

I have submitted the ICRC's report of 24 February 2000 for the record. It is important to realise, when reading these
figures from the ICRC, that their list has been derived from the list made available by the Serbian Ministry of Justice.
Lists compiled by Albanian human rights monitoring groups arrive at far higher numbers of suspected prisoners,
including many reported to be detained inside Serbia at military prisons about whom no one has any information. Many
of these reports come from released prisoners and are believed to be credible; however, in the absence of confirmation
from the Serbian authorities, visits by the ICRC, or other proof of prisoners' whereabouts, these higher numbers cannot
be confirmed.

2.

2 International Committee for the Red Cross report, 24 February; the 415 prisoners have been released largely as the
result of interventions made by Belgrade- and Pristina-based lawyers from the Humanitarian Law Center.

3.

3 Still another category of prisoner consists of those Albanians who allegedly committed crimes inside Serbia proper,
where they were arrested, charged, tried, and where they are serving their sentences. Some of these, presumably, are
common criminals; it is believed that others have been arrested simply because they are Albanian. My testimony
today does not address their plight, just as it refrains from considering that of all other unjustly detained persons inside
Serbia, whether they be independent journalists, student activists, draft resisters, or non-Serbs.

4. 4 According to Western officials present at the talks, the Yugoslav commanders insisted that they were authorised
to negotiate only those items spelled out in the text of the 8 June "G-8 agreement," which became the basis two days
later for the UN Security Council Resolution #1244, the authorising resolution that gave legal force to NATO's 12 June
intervention to secure Kosovo and to the temporary, international administration of Kosovo by the United Nations.

5.

5 Consisting of officials from the White House and Old Executive Office Building, the State Department, and the
Pentagon.

6.

6 Another issue dropped early on was the still unresolved question of how many uniformed Serbs would eventually be
allowed back into Kosovo.

7.

7 That is, to the time when the conflict was purely an internal one, not involving more than one state.

8.

8 Still, the Serbian government has shown an attention to legalistic detail not typical of all authoritarian regimes.
Belgrade took care to insure that not only the prisoners were transferred into Serbia in mid-June, when Yugoslav and
Serbian forces pulled out, but the Serb prison wardens, and even the judges were transferred from their jurisdictions in
Kosovo to designated spots inside Serbia proper, apparently in the interest of preserving intact jurisdictions so that
convictions could not be challenged on that ground.

9. 9 In their haste to dispose of so many un-adjudicated cases, the Serbian authorities have tried Albanian defendants
in both small and large groups that correspond to the alleged crimes, with minors sometimes being tried with adults, in
violation of the Serbian criminal code. The sentencing patterns would appear to have been somewhat capricious, as
well: in the southern town of Leskovac, sentences for convictions on charges of "terrorism" have recently been
imposed that range from 10 months to 15 years.

10.

10 As deputy head of UNMIK Jock Covey recently told a visitor, "There is no issue about which we get more knocks on
our door, and no issue about which we have so little influence."

11.

11 The European Parliament issued a strong resolution on 17 February 2000, calling upon the EU Council of Ministers
to launch "a new initiative to put strong pressure on Belgrade and to obtain the release of the ethnic Albanian
prisoners."

In addition to the resolution taken by the European Parliament, the EU has taken other actions. The Secretary-General
of the Council of the European Union, Javier Solana, has repeatedly asked the FRY to guarantee the ICRC full access
to the prisoners still in detention and for the immediate release of those prisoners held without charges. "There can be
no normalisation of relations with the European Union or eventual lifting of sanctions before there is a return to
democracy in Serbia, with all that that entails in terms of democratic freedoms and respect for the rights of minorities,"
Secretary-General Solana recently wrote, resolving to "remain engaged on this issue."

12.

12 KFOR commanders should also be urged to exploit their regular military-to-military contacts with Yugoslav
commanders to obtain information as to the identity and whereabouts of those prisoners detained in military facilities
and for access to those prisoners.

13. 13 The Security Council has taken an interest in this issue, having heard UN Assistant-Secretary-General for
peacekeeping operations Hedi Annani report to them on 17 February that there are "approximately 3,000 missing
persons from the NATO bombing period and 400 to 500 persons missing since mid-June 1999," when KFOR entered
Kosovo. Mr. Annani also told the Security Council that the UN high Commissioner for Human Rights was considering
"the appointment of a special envoy to deal with the issue of detainees and the missing." Moreover, the U.S.
ambassador, Richard C. Holbrooke, is extremely interested in this issue, according to his aides, arising as it does out
of the Kosovo conflict, which, as U.S. Special Envoy to the Balkans, he attempted for so long to resolve through
diplomatic means.