WASHINGTON -- War crimes prosecutors are using some of NATO's most secret intelligence to build cases against Yugoslavia's top political and military leaders. But there are concerns that the alliance's diplomatic deal-making will allow Serbian leader Slobodan Milosevic to escape justice.
While leaders in the United States, Russia and other countries work feverishly on a diplomatic plan to end the 8-week-old conflict, prosecutors with the International Criminal Tribunal for the Former Yugoslavia at The Hague, Netherlands, are collecting information on the roles of Milosevic and his top commanders in atrocities in Kosovo.
At some point, the two tracks are bound to converge, because they both involve Milosevic's hold on power.
Nina Bang-Jensen of the Coalition for International Justice, a Washington-based human rights organization, says "our greatest fear" is that as part of a diplomatic solution to the conflict over Kosovo, the West will offer Milosevic "de facto immunity," under which he would avoid arrest or, if toppled from power, be allowed exile in a country that would refuse an arrest order from the Hague tribunal.
That's the worry at The Hague, even though the United States and other allies are providing prosecutors with crucial evidence from highly classified intelligence information, including the results of eavesdropping on conversations. In addition to the evidence, the tribunal relies on the allies to apprehend war criminals.
"There is very serious concern that member states of the United Nations may fail to live up to their obligations," said Paul Risley, a spokesman for the tribunal, noting that some countries might seek "political solutions to what for us is a straight question of legality."
During a recent visit to Washington, Louise Arbour, the tribunal's chief prosecutor, pointed to the West's failure to capture Radovan Karadzic and Ratko Mladic, the two chief Bosnian Serb war-crimes suspects, whom Milosevic has been protecting since they were indicted.
Their arrests might have deterred atrocities in Kosovo, she said.
Karadzic lives in a French-controlled zone of Bosnia. But a former U.S. official says neither France nor the United States has been willing to risk the casualties that might result from apprehending him or Mladic.
A top Pentagon official said U.S. Special Forces troops are available in Bosnia to arrest the suspects but added, "I haven't seen a push" from top military and civilian officials.
Some close to the war-crimes effort see a reluctance by some Clinton administration officials to press hard for Milosevic's indictment. They also note that no top administration official has publicly called him a "war criminal," a label given him in 1992 by Secretary of State Lawrence S. Eagleburger after the atrocities in Bosnia.
Three years later, Milosevic was a key figure in Serbian acquiescence to the Dayton peace accords that ended the fighting in Bosnia.
"There's a political element here. Milosevic is seen as instrumental to any deal," said Michael P. Scharf, a former State Department lawyer who worked on the Bosnian war-crimes trials.
It was U.S. policy in Bosnia not to deal with indicted war criminals, but the Clinton administration has said it could negotiate with Milosevic even if he was under indictment for war crimes. But officials try to avoid getting pinned down on specifics.
'Accept responsibility'
Asked twice in a television interview Sunday whether Milosevic will be denied immunity, Undersecretary of State Thomas R. Pickering said, "Mr. Milosevic, we have said many times, is an individual who will have to accept responsibility for the actions he's committed. The man has to stand and be responsible for what he has done. The international community has a process. We will contribute to that process."
David Scheffer, the administration's top official dealing with war crimes, was asked in an interview whether administration officials thought indicting Milosevic now would be "inconvenient."
"I see nothing of that on the inside," he said. "There's no discussion that I'm aware of of somehow seeking to derail or retard the investigation of anyone."
Graham Blewitt, Arbour's deputy on the international tribunal, said a NATO grant of immunity to Milosevic would have no legal standing with the independent court. "It may complicate the politics," he said. "It wouldn't stop us in anything we were planning to do."
Still, the practical impact of an immunity deal could be a drying up of intelligence information needed to indict Milosevic. There could also be a reluctance or refusal to apprehend Milosevic in Belgrade.
While the investigation continues, the administration is trying to find a diplomatic end to the war, using Russian envoy Viktor S. Chernomyrdin, Finnish President Martti Ahtisaari and others as intermediaries.
Tribunal officials and others said they are receiving intelligence from NATO allies, ranging from detailed interviews with ethnic Albanian refugees pouring out of Kosovo to satellite pictures of mass graves and burned villages.
Conversations between military commanders also have been intercepted. It's unknown whether Milosevic's conversations have been intercepted.
Blewitt said the tribunal is working closely with the intelligence agencies on what will be released. Much of the information from NATO provides leads but not courtroom evidence.
Last month, Britain turned over what officials termed one of the largest intelligence releases ever authorized. France, Germany and the United States are providing additional products of spying.
Among top U.S. officials, Secretary of State Madeleine K. Albright has pushed the hardest for use of secret information to aid the war-crimes investigators, according to several people who have kept close tabs on the process.
Tobi Gati, who headed the State Department's intelligence bureau during the first Clinton term, recalls Albright as "the most vociferous and vocal about the need to do this."
Albright argued that "failure to do it would encourage further atrocities."
"Without her support we wouldn't have been able to get [the CIA director] to allocate the resources to get increased intelligence."
Scheffer, the administration's top official dealing with war crimes, said the United States wants to provide Arbour "with everything we possibly can to strengthen her investigation."
The Hague tribunal is focusing on the "most difficult" part of the investigation, the command and control of operations in Kosovo, meaning which officials and officers ordered troops to take action, said Blewitt.
'Sources and methods'
Conversations intercepted by spy satellites and other intelligence-gathering apparatus would play a key role in determining the hierarchy of responsibility, Blewitt and U.S. officials said. But such information is also the most closely guarded in the intelligence world, because its release could betray "sources and methods" and lead targets to further shield their communications.
"We wouldn't go as far as to say we're seeing everything we need," said Blewitt. "There may be some forms of intelligence we'll never get."
A U.S. official said the administration's policy is summed up in legislation introduced by Jesse Helms, a North Carolina Republican who is chairman of the Senate Foreign Relations Committee.
The bill would require U.S. intelligence agencies to give the tribunal any information they have "in support of an indictment and trial of President Slobodan Milosevic for war crimes, crimes against humanity or genocide," while allowing them to protect sources and methods.
Members of Congress are pressing the Clinton administration to provide more secret information and work toward a "public indictment" of Milosevic as a war criminal.
'Make all this... available'
Rep. Benjamin L. Cardin, a Maryland Democrat, and about 50 other House members are expected to send a letter to Clinton this week calling on the administration to cooperate with the tribunal "to the fullest extent possible."
"We're challenging the administration to make all this information available in the proper form," including eavesdropping intelligence, said Cardin. "They should have all the information we have."
Another obstacle is the lack of intelligence analysts to aid the tribunal. The analysts who are assisting in its investigation are also working with the military to help pinpoint movements of Serbian troops in Kosovo, and military efforts are the first priority.
A supplemental budget moving through Congress would authorize up to $18 million for war-crimes investigations in Kosovo, which would "enable us to commit more resources," said Scheffer.
Apart from concerns about immunity and the release of intelligence information, some are sniping at the tribunal, saying it moves slowly and is overly cautious.
Human rights activists and experts on international law say the Yugoslav president could be indicted now on war-crime charges, given that he is head of the country's defense council and has been ruling by fiat since declaring martial law after the allied bombing began March 24.
"The problem is, the tribunal is afraid to indict Milosevic," said Paul R. Williams, a professor of international law at American University who helped set up the tribunal in 1993. Because the tribunal is receiving no clear political signal from the West, "indicting Milosevic would rock the boat," he said.
Blewitt, the tribunal's deputy prosecutor, dismissed such criticism and said it is important to carefully build a case that can be won in court.
"It's very easy to allege, but you've got to back it up," he said. "You've got to be able to block off any defenses as well."
Pub Date: 5/20/99