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Program 9930
July 27, 1999


Lord Frank Judd, Chairman, Refugee Committee of the Parliamentary Assembly of the Council of Europe

Jerry Fowler, legislative counsel, Lawyer’s Committee for Human Rights

This text has been professionally transcribed. However, for timely distribution, it has not been edited or proofread against the tape.

LORD JUDD: The test I believe which history will apply is ‘did we see through this high sense of purpose about which the rhetoric is so strong?’ It will be ‘what have we done to win the peace, not just to win the war.’ The winning the war is fairly straightforward. But are we going to win the peace?

KEITH PORTER: This week on Common Ground, the aftermath of war in Kosovo.

JERRY FOWLER: The indictment of Milosevic, while he’s still in office—in fact in real time, as the crimes were being committed—is an important step forward in establishing the international rule of law.

KRISTIN MC HUGH: Common Ground is a program on world affairs and the people who shape events. It is produced by the Stanley Foundation. I’m Kristin McHugh.

PORTER: And I’m Keith Porter. One of the enduring legacies of the Kosovo War will be the refugees. More than 1 million ethnic Albanians were driven from their homes during the war. More than half of them left the country. To learn more about what the future holds for the Kosovars I spoke with Frank Judd. He’s a member of the British House of Lords and Chairman of the Council of Europe’s Refugee Committee. Lord Judd has toured several of the refugee camps.

JUDD: I went with colleagues, colleagues from the main committee to Macedonia and Albania and incidentally, not long after that I also went to Moscow as well. The issue was to look at the predicament of the refugees, to look at the implications of the refugee problem and to look at the impact of that refugee situation on Albania and Macedonia.

PORTER: It seems that as the air campaign began over Kosovo and there was this massive outflow of refugees, it seems like the UN and other agencies were caught unprepared. Why was that?

JUDD: Well, of course there is the sophisticated which is deployed, which is that they could hardly have been preparing, because if they’d been preparing they would indirectly have been cooperating with the Milosevic ethnic cleansing program. I find that a bit unconvincing because it seems to me that the analysis should have indicated very clearly what was likely to happen. And even if that interpretation, that construction could be put on preparation we would know that that was not the case. We would have been preparing, as we should have been, for the human consequences. I do find it pretty disturbing that with all the high-powered advanced military technology and the rest that was deployed on the military operation, we had so singularly failed to meet, to be ready for the human consequences.

When I say the human consequences I’m not meaning the human consequences of the bombing. There can be an argument about whether or not the bombing accentuated the flow. My own view is that Milosevic, who is one of the most devious operators in time, took the opportunity of the bombing to speed up the process. But surely all our intelligence was telling us that he had an ethnic cleansing program and in a matter, it was a matter of when not whether he was going to expel the population.

There’s an awful lot of loose talk, frankly, about the refugees most go home. What does going home mean….

PORTER: Right.

JUDD: …in this situation? What are the criteria we’re going to use in deciding whether there really is a reasonable situation to which the refugees are returning? What is the condition of their housing? Is their housing going to be adequate for the harsh winter ahead? Very big question. Is the sewage working? What of the power situation? What are the job prospects? What are the health and education prospects? There are a lot of situations—there are a lot of issues there which we’ve got to be very clear about before we say refugees are returning home. Or we could be seen as very cynical, just shoveling people back into a nonviable situation.

PORTER: Now all of the questions you raise about sending people home, you could also raise, at least many of those questions, about the camps, though. Are the camps prepared for the winter? Are the camps prepared to continually thousands and thousands of people for months and months.

JUDD: Of course you could ask that question but then you could raise the question of ‘Look at the tremendous impact on both Albania and Macedonia of the vast numbers—vast numbers—of refugees who moved over a very short period of time into their countries.’ Now, in those countries we saw suddenly over a matter of less than a month more than a 10% increase in population. The thing I’ve often said in Britain, cause it would have been the equivalent in Britain, is ‘How would we have responded with all our relative economic advantages in Britain, if suddenly over three weeks, six million destitute refugees had arrived on the doorstep.’ How would we have responded? How would we feel? That was what was happening on that scale to those countries. Now in Albania of course there was a very strong emotional empathy, link, relationship with the ethnic Albanians from Kosovo. And wonderful spontaneous hospitality and the rest. Although I must say that there were officials who said to me while I was there, “You know, even Albania has its breaking point. There’s only so much you can do.”

But in Macedonia, Macedonia had been handling a quite delicate situation long before this happened. I mean, in terms of its own population. Because there was this balance between—in broad terms of course—there were other minorities there as well—but in broad terms, sort of 60/40 between the Macedonians and the ethnic Albanians. And there was a real possibility that that balance which they had been handling was going to be singularly disturbed by this inflow of people.

There was also the pressure on the economy. All try, on the infrastructure of the social services, the police, everything, of the countries concerned. And I would have thought that if we were planning an operation of this sophistication there should have been a very convincing plan in place for sharing the burden of refugees. What were we all going to do to take, sensibly and in a properly prepared way, a significant number of refugees out of the immediate situation?

PORTER: Yes. Which countries performed the best in that, in that regard?

JUDD: Well, of course it’s always striking that Germany always makes a powerful contribution to these affairs. I’m very impressed by that. And of course the two countries that performed the best were Albania and Macedonia.

PORTER: Of course.

JUDD: And Montenegro to some extent. But further afield, certainly Germany was—I was frankly, and I’m not ashamed to say this on, on—or I am ashamed to say this in one sense. I’m not ashamed in another sense to say it—it’s a paradox—but I was really, felt pretty exposed when I was shown analysis about the number of refugees who’d moved, the number of refugees who had been promised a place, and the quota established by leading countries. And in Britain we scored nil on all three. And I thought that was a very sad situation for a country, which is playing such a leading part in the war.

PORTER: It looks like no matter what happens, whether we have some of the refugees go back home, some of them taken by other countries, some of them are going to be left in those camps for quite some time. And you know from your work with refugees that all over the world there are refugees still left in camps long after conflict is over, for whatever reason.

JUDD: Of course. And there will be in this case.

PORTER: How will we deal with them?

JUDD: I’m really very concerned. Because hopefully the situation has improved since I was there but I can’t believe it’s improved that much. I mean, when I was up on the frontier in Albania, for example, the situation was grim. Some fortunate people were in very flimsy tents. They were flimsy tents. Some were, for example, in the back of small pickup—not large vans, small pickup vans or something, with some kind of improvised, probably leaking, tarpaulin over the van. Whole families. Some really had no shelter at all. Now that was bad enough in the spring, although it was raining incessantly and there was mud everywhere. It was really a pretty grim situation. But god knows what that will mean when next winter comes if there isn’t proper accommodation and proper support services available.

The other thing I’d say here, you know, is that I’m talking about the contrasts between the military planning and the humanitarian planning—we were up in Kukes and everybody has heard about Kukes, this town up near the, virtually on the frontier of Albania and Kosovo—a terribly poor town well before this happened. All the mines had closed, the community was impoverished. No proper social security system or anything in Albania to support those people. Very poor. Then there had been this explosion in the number of refugees. And when we were there the local population was outnumbered 7:1 by refugees. And I’ve described the condition of the refugees. Some virtually with no shelter, other, improved shelter; the rest, rain; mud everywhere. I was in the office with my colleagues, I was in the office of the Prefect of Koukesh who seemed to be with his team working valiantly to try and cope with this situation. Together with of course humanitarian agencies and some military. There were not too many military involved there at that juncture, on the humanitarian way. And while we were in this crowded, concerned atmosphere in his little office I looked down on the floor and on the floor there was a television set and on the television, it just so happened that while we were there, there was this daily NATO press briefing. Smart, immaculate spokesman, military officers, smart journalists—all the clinical, impersonal dimensions of the war being discussed in this smart atmosphere. And there we were in the midst of the human tragedy, the mire, the consequences of the whole political mess. The contrasts couldn’t have been greater. It made a very deep impression on me.

PORTER: I have a couple more questions for you. One has to do with the War Crimes Tribunal. When you were at these camps did you get the sense that the officials from, the, investigators from the Tribunal, had access to the camps, were able to talk with refugees? And did you feel that the, did the refugees feel safe and secure in telling their stories.

JUDD: One of the questions that we were putting, because we were concerned about this, I would have said at that time, frankly, that there was a severe shortage of personnel to do this job properly. The other thing of course that was, was disturbing, was that of course some people had lost all means of identification and they needed to be registered. And there just weren’t enough people doing the registration work properly. In fact there were some indications that people who were moved on from the first camps to secondary camps, where they were supposed, by which time they were supposed to have an identity, in fact some of those people still had not been registered when they got into the second camps. No, there was a desperate shortage of personnel for this work.

PORTER: Should the refugees feel safe and secure in giving their testimony? Even if there were personnel to take their testimony, did you get the sense that they would feel, that that was all right for them to do? Or were they, were they too afraid of the situation?

JUDD: I was not doing that professional work. All I can say is that I was shocked by the willingness, greater than willingness, the anxiety of many of the refugees, to talk to people like us and tell us what was happening.

PORTER: They were real, they were anxious to tell their story, to make sure it got out.

JUDD: Yeah, rather they were.


JUDD: Yes indeed.

PORTER: All right. Do you have any prediction for us on when you think people will be able to go back to something that is similar to a home. I don’t mean go back to the burnt-out shell, but someplace that will be again like home.

JUDD: I’d like to finish this conversation by a challenge, really. It seems to me that we’re patting ourselves on the back and saying, ‘We’ve won a technological military victory’ and that the Serbs are having to leave Kosovo and we’re congratulating ourselves on our achievement. My challenge is that I believe how history will judge us is our demonstrable commitment to the people, the men, women, children, who were the refugees, who were the displaced. The money for the air operation, the bombing, all the rest, perhaps the whole military operation, seems to have been made fairly easily available. There is now a massive job of reconstruction, rehabilitation, to be undertaken. And indeed, of compensation and reconstruction and rehabilitation for the dislocated economies of Albania and Macedonia. The test I believe which history will apply is ‘did we see through this high sense of purpose about which the rhetoric is so strong?’ It will be ‘what have we done to win the peace, not just to win the war.’ The winning the war is fairly straightforward. But are we going to win the peace?

And indeed it isn’t only in Macedonia and Albania and indeed Montenegro, it isn’t just there. Are we going to win the peace in Serbia? Because obviously one of the outcomes we must all yearn for is a decent, accountable, civilized, democratically-elected government in Serbia. And then we want to see the innocent people of Serbia, because not all the Serbs, by a very long chalk, are implicated in this operation, being able to have a secure future which will assist stability in the region.

So the real test I believe is, lies ahead. And I’m, just hope we won’t hear treasuries and ministries of finance all beginning to say, ‘Well, we can’t afford it.’ If we could afford the war we’ve got to afford the peace.

PORTER: That is Lord Frank Judd. He’s Chairman of the Refugee Committee of the Parliamentary Assembly of the Council of Europe.

MC HUGH: In a moment, a discussion on the war crimes indictment against Yugoslav President Slobodan Milosevic.

FOWLER: He’s been branded a criminal, an international criminal and I think that profoundly affects his ability to operate in the future.

PORTER: Printed transcripts and audio cassettes of this program are available. Listen at the end of the broadcast for details. Common Ground is a service of the Stanley Foundation, a nonprofit, nonpartisan organization that conducts a wide a range of programs designed to provoke thought and encourage dialogue on world affairs.

MC HUGH: As the Kosovo refugees began picking up the pieces of their war-torn lives the International War Crimes Tribunal is continuing the task of documenting alleged human rights atrocities in the region. Weeks before NATO’s bombing campaign ended, the International Criminal Tribunal for the former Yugoslavia made legal history when it indicted President Slobodan Milosevic and four other top Yugoslav and Serbian officials for crimes against humanity and war crimes committed in the Kosovo conflict. Jerry Fowler is the legislative counsel for the Lawyer’s Committee for Human Rights. He says the indictment sends a strong message that war crimes will not be tolerated.

FOWLER: Well, I think it sets a very important precedent to indict a sitting head of state. In international law it’s been established for quite some time, since the end of World War II, at least, that being a government official did not provide immunity from committing crimes, the most egregious crimes. And I think a necessary corollary of that is that you’re not immune when you’re still in office. And so the indictment of Milosevic, while he’s still in office—in fact in real time, as the crimes were being committed—is an important step forward in establishing the international rule of law.

MC HUGH: What’s the process from here on out as far as this indictment goes?

FOWLER: The process from here on out, I think, will be continuing to gather evidence. The, as you know, the indictment was issued at the end of May. And Justice Arbour announced, when she made the indictment public after it was approved by the Court, that this did not preclude adding other charges. And I think now that KFOR is on the ground in Yugoslavia, in Kosovo, now that the war is over and NATO may feel more free to share a lot of that intelligence information that I was discussing, with the Court, it will be the time to solidify the evidence on the charges that have been brought and determine whether additional charges should be brought. Either against Milosevic or against other people who were responsible for atrocities that were committed in Kosovo.

MC HUGH: The evidence against Milosevic and his top aides is mounting. But even if enough evidence is gathered do you think that they’ll ever stand trial?

FOWLER: Well, there are obviously a lot of practical impediments to Milosevic ever standing trial. As long as he is, stays within the borders of the former Republic—or Federal Republic of Yugoslavia—what’s left of it—practically speaking he’s not going to be apprehended. I wouldn’t say never. I think that, that many things could happen where he could end up in the custody of the Tribunal. But I think that the importance of the indictment is not diminished just because he’s not ultimately brought to trial. He’s been branded a criminal, an international criminal and I think that profoundly affects his ability to operate in the future. And I think that it will send a message to other people who might be in similar situations in the future.

MC HUGH: In addition to obviously getting Milosevic into custody what will it take to convict him?

FOWLER: Well, as—I think what it will take to convict him if he is ever apprehended and actually brought to trial will be several things. First, establishing the facts on the ground in Kosovo. And we all read the paper, we all saw CNN, but journalistic accounts are not necessarily the type of evidence that you need in order to carry out a criminal trial. And my understanding is that investigators are on the ground now interviewing witnesses, gathering that type of information. It will be important that there be witnesses available who can come forward and establish the facts on the ground. Supported by other evidence such as forensic evidence, which is being gathered now.

And then the second thing that will be very important is to establish by means of reliable evidence the lines of authority from what happened on the ground to the people who were making decisions in Belgrade. And it will be necessary, as I said, to obtain information that now is probably within the control of the United States and the other NATO countries that establish either that Milosevic and the other people named in the indictment directed and ordered the atrocities that occurred or that they knew about the atrocities or should have known about the atrocities and failed to take actions to stop them.

MC HUGH: What will happen to the spirit of international law if Milosevic and the others are convicted but not imprisoned?

FOWLER: Well, that’s an interesting hypothetical. I think, they, they won’t be convicted unless they’re apprehended. Because there won’t be a trial in absentia. I find it almost unimaginable that—I do find it unimaginable that they could be apprehended and tried and convicted and not imprisoned. I think that given the scale of these crimes, the scope of the crimes, if they are tried and convicted then they will be and must be imprisoned.

MC HUGH: Milosevic and many Serb leaders argue that the US, especially President Clinton, and other NATO officials, should be tried for committing war crimes because of the bombing.

FOWLER: The Tribunal does have jurisdiction over the NATO actions. And if there were evidence that the NATO actions violated the laws and customs of war, violated the Geneva Conventions, then the Tribunal would be empowered to investigate and should investigate. And I know that the prosecutor, Louise Arbour, has said publicly that she has received a lot of information concerning the NATO actions. But I think at this point nothing that I’ve seen would support an indictment of the NATO leaders and presumably that’s Justice Arbour’s conclusion so far as well.

MC HUGH: On the same token we’re now seeing a lot of ethnic Albanians returning to Kosovo and they themselves are being violent against the Serbs. Should that be considered a war crime?

FOWLER: There’s a technical question of whether or not violence by ethnic Albanians amounts to war crimes. There’s, would be a requirement that there be, that it be in the context of a conflict. And there was certainly conflict at the time that, before the KFOR moved into Kosovo. Now, whether there’s a conflict in Albania I think is a much more difficult question. I think that it is imperative that, that KFOR establish authority in Kosovo and limit violence of ethnic Albanians against ethnic Serbs, just as it can’t permit further violence of ethnic Serbs against ethnic Albanians. It would defeat the whole purpose of the exercise if one form of violence were replaced by another.

MC HUGH: China has reportedly offered Milosevic some asylum. And I know that the Lawyer’s Committee for Human Rights is opposed to any type of immunity deal for Milosevic. How has this come into play in terms of the rest of the world, if China does in fact follow through on its promise of asylum?

FOWLER: Well, if China or any other country gave asylum to Milosevic it would be a tremendous disappointment. China is under an obligation as a member of the United Nations to comply with the requests and orders of the Tribunal, which was, as you know, created by the Security Council under the Security Council’s authority under the United Nations Charter. And if Milosevic was on Chinese territory they would have an obligation under international law to hand him over to the Tribunal.

MC HUGH: Is the War Crimes Tribunal an effective tool against human rights atrocities?

FOWLER: I think the idea of having institutions of justice is, is important. And I think that as the Tribunal for Yugoslavia and the Tribunal for Rwanda continue their work, I think they will become important institutions in dealing with the atrocities that occurred in those areas. And I think that they establish a precedent for having a permanent International Criminal Court, which over time can become a very important institution. It will be a very, very long time before human rights atrocities of the sort that the tribunals deal with or that the international court would deal with, are a thing of the past. But an important step towards making them a thing of the past is to have institutions that can deal with them and deal with them on a basis of legitimacy and a basis of the rule of law. And so these tribunals are an important step towards doing that. And the creation of a permanent court will be another very important step in doing that.

MC HUGH: Are there other things that this indictment will mean for the future of international law?

FOWLER: The action in Kosovo and especially the independent action of the Tribunal, is another very important step in the development of international justice and accountability for mass violence. And the last couple of years have provided a remarkable series of steps. Actually I would extend it to 1993 with the creation of the Tribunal for the Former Yugoslavia; 1994 with the creation of the Tribunal for Rwanda; 1998 with the approval of a treaty to create a permanent international criminal court with jurisdiction over genocide and crimes against humanity and war crimes; the arrest of General Pinochet and the decision that he could be held liable for international crimes that were committed while he was the head of state; and now the indictment of Milosevic, reflects a growing and strengthening consensus in the international community that not only are there criminal violations of international law, but that there can be justice and accountability provided when those crimes are committed. And all of these steps together I think point in the direction of the very real possibility that in the twenty-first century we will have institutions that meaningfully can provide justice and accountability at the international level.

PORTER: Jerry Fowler is the legislative counsel for the Lawyer’s Committee for Human Rights. For Common Ground, I’m Kristin McHugh.

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