As announced in her address to the UN Security Council on Friday 2 June, 2000, the Prosecutor, Carla Del Ponte, has decided not to open a criminal investigation into any aspect of NATO's 1999 air campaign against the Federal Republic of Yugoslavia.
Since mid-1999 various complaints, allegations and a considerable body of information, have been submitted to the Prosecutor’s Office concerning allegations that NATO, or more accurately NATO personnel and leaders, may have committed crimes falling within the jurisdiction of the Tribunal during the NATO air campaign.
The complaints, allegations and supporting material were received from a number of sources, including academic writers, lawyers acting on behalf of the Federal Republic of Yugoslavia, and a Russian Parliamentary Commission. The Federal Republic of Yugoslavia also submitted a substantial amount of material concerning particular incidents. In addition, a number of reports and commentaries on the bombing campaign have been published by human rights organisations and others, including the recent Amnesty International report.
In May 1999, the former Prosecutor, Justice Louise Arbour, established a working group within her Office to examine and assess all complaints, allegations and the accompanying material. This team comprised military lawyers, military analysts, prosecuting attorneys and other experts. The work of the group continued under Prosecutor Del Ponte. Following its creation, the team assessed all new allegations and material on its arrival in the Prosecutor’s Office. The analysis of the material has taken many months, and has involved an examination of all facts and a detailed legal analysis of all aspects involving the Tribunal’s jurisdiction.
Since the International Tribunal has jurisdiction over all potential war crimes in the former Yugoslavia, the former and current Prosecutors considered that it was their obligation and responsibility, as independent Prosecutors, to assess the complaints and allegations.
In this regard, Article 18.1 of the Tribunal's Statute provides:
The Prosecutor shall initiate investigations ex officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.
As part of the assessment, the Prosecutor's team also conducted an extensive review of all information released into the public domain by NATO concerning a broad range of attacks on targets in Kosovo and throughout Serbia. When questions arose about specific incidents which were not fully explained in available sources, NATO was given the opportunity to respond, and NATO provided some further information. The resulting body of all assembled information, some of it very detailed, was then collated, allowing each incident or allegation to be analysed in terms of international humanitarian law, particularly the requirements of the law concerning modern air warfare.
As mentioned, the Prosecutor has announced her conclusion, following a full consideration of her team’s assessment, that there is no basis for opening an investigation into any of the allegations or into other incidents related to the NATO air campaign. Although some mistakes were made by NATO, the Prosecutor is satisfied that there was no deliberate targeting of civilians or unlawful military targets by NATO during the campaign.
It is not the Prosecutor's normal policy to make public the details about investigations or allegations received but not investigated. Standard practice is to comment only about indictments that have been made public. Even then, any comment by the Prosecutor outside the courtroom must be extremely limited. The Prosecutor considers that individuals against whom allegations are made should, under normal circumstances, be entitled to the presumption of innocence. The good reputation of innocent persons would undoubtedly be damaged by public disclosure that they are being investigated for serious crimes. For this reason, in the absence of any indictment, which would provide an opportunity for such persons to defend their name, it is not proper to divulge details of who may be under investigation by the Prosecutor. The NATO air campaign, however, does not raise such considerations and there has already been much public debate about the allegations. The Prosecutor considers that in this situation, quite unforeseen when the Tribunal came into existence, she should take the unusual step of making her reasoning public.
The report upon which the Prosecutor has based her conclusion is now publicly available.
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International Criminal Tribunal for the former Yugoslavia
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