[Congressional Record Volume 141, Number 199 (Thursday, December 14, 1995)]
[Senate]
[Pages S18591-S18594]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




UNITED STATES DUTIES AND RESPONSIBILITIES CONCERNING WAR CRIMINALS AND 
    EVIDENCE OF WAR CRIMES IN THE UNITED STATES ZONE IN BOSNIA AND 
                              HERZEGOVINA

  Mr. D'AMATO. Mr. President, I rise today to discuss a matter that has 
not received much public attention during the course of our discussions 
of the United States role in the Balkans and specifically in Bosnia. 
While administration officials have discussed how we would respond if 
we encountered indicted war criminals in Bosnia, they have been silent 
on the equally important question of collecting and protecting evidence 
of violations of international humanitarian law.
  This is a very basic point. You can indict and arrest suspects, but 
for convictions, you need solid, admissible evidence. The International 
Criminal tribunal for the Former Yugoslavia has been doing excellent 
work, considering the resource limitations it operates under and its 
lack of direct access to many crime scenes. It now lies within the 
power of the United States to advance the tribunal's work and the cause 
of justice in the former Yugoslavia.
  The United States has supported the Tribunal's efforts to acquire 
more resources. Now, the United States and our NATO allies in the 
implementation force will have direct access to the scenes of the 
alleged crimes. The question we face is what do we do with this access? 


[[Page S18592]]

  I strongly believe that we have a moral obligation to seek out, 
collect, protect, and provide to the tribunal such evidence of 
violations of international humanitarian law as we are able to discover 
within the United States zone in Bosnia. Let me be specific.
  Last Wednesday, December 6, 1995, the Commission on Security and 
Cooperation in Europe, better known as the Helsinki Commission, of 
which I am cochairman, held a hearing entitled ``Mass Graves and Other 
Atrocities in Bosnia.'' The witnesses at this hearing were Mr. Ivan 
Lupis, of Human Rights Watch, Mr. David Rohde of the Christian Science 
Monitor, and Dr. Barbara C. Wolf, M.D., a forensic pathologist who 
participated in an AmeriCares exhumation project in Bosnia.
  Mr. Rohde and Mr. Lupis both testified to events leading up to and 
following the fall of the United Nations-declared safe area of 
Srbrenica on July 11, 1995. According to their testimony, perhaps as 
many as 8,000 Bosnian moslems were massacred by Bosnian Serbs following 
the storming of Srebrenica. Their remains were buried in an area 
between Srebrenica and Tuzla, the headquarters of the United States 
forces that will be assigned to the implementation force [IFOR].
  Possible mass grave sites identified following the fall of Srebrenica 
are at or near the following locations: Zabrde, Kravica, Burnice, Nova 
Kasaba, Kuslat, Sahanici, Rasica Gai, and Karakaj. These sites all lie 
within the U.S. zone. Mr. Rohde personally visited four sites, at Nova 
Kasaba and Sahanici, and confirmed that they were in fact mass graves.
  It is vitally important that the United States act to secure these 
sites and facilitate access to them by international investigators. 
Under the Dayton Peace Agreement, the United States has the right to do 
this. I strongly believe that we must exercise that right, and 
promptly, before evidence that is potentially vital to the prosecution 
of the killers can be destroyed.
  At last Wednesday's hearing, Mr. Rohde testified as follows in that 
regard, according to an uncorrected transcript of the hearing: ``The 
U.S. intelligence said this last month: They have aerial photos of 
backhoes being in the area digging it up, taking out some kind of 
material which could be bodies. And there's a possibility the Bosnian 
Serbs are pouring acid onto the bodies and destroying evidence.''
  Now, I want to review specifically what the Dayton Peace Agreement 
says and how its provisions apply in this situation, so that there can 
be no misunderstanding of the duties of the parties to the agreement. 
These provisions now take effect because the agreement was signed in 
Paris earlier today.
  The Dayton agreement provides as follows in article VII: 
``Recognizing that the observance of human rights and the protection of 
refugees and displaced persons are of vital importance in achieving a 
lasting peace, the Parties agree to and shall comply fully with the 
provisions concerning human rights set forth in Chapter One of the 
Agreement at Annex 6, as well as the provisions concerning refugees and 
displaced persons set forth in Chapter One of the Agreement at Annex 
7.''
  Article VII thus commits all of the parties, including the Bosnian 
Serbs, to comply fully with the following provision, among others:
  In particular, annex 6, article XIII, paragraph 4 of the Dayton 
agreement provides as follows: ``All competent authorities in Bosnia 
and Herzegovina shall cooperate with and provide unrestricted access to 
the organizations established in this Agreement; any international 
human rights monitoring mechanisms established for Bosnia and 
Herzegovina; the supervisory bodies established by any of the 
international agreements listed in the Appendix to this Annex; the 
International Tribunal for the Former Yugoslavia; and any other 
organization authorized by the U.N. Security Council with a mandate 
concerning human rights or humanitarian law.''
  In other words, the Dayton agreement singles out the International 
Tribunal for the Former Yugoslavia as one of the organizations with 
which all competent authorities in Bosnia and Herzegovina must 
cooperate. This means that the Bosnian Serbs may not prevent 
investigators from reaching these mass grave sites or exhuming the 
remains or doing any of the other tasks necessary to a full and 
complete investigation of the crimes committed there.

  Annex 1-A, ``Agreement on the Military Aspects of the Peace 
Settlement,'' article II, ``Cessation of Hostilities,'' paragraph 4 
further provides as follows: ``The Parties shall cooperate fully with 
any international personnel including investigators, advisors, 
monitors, observers, or other personnel in Bosnia and Herzegovina 
pursuant to the General Framework Agreement, including facilitating 
free and unimpeded access and movement and by providing such status as 
is necessary for the effective conduct of their tasks.''
  This provision is even more specific. It requires that the parties 
facilitate ``free and unimpeded access and movement.'' This means that 
road blocks, security zones, military areas, or any of the other 
excuses, ruses, or tricks that were formerly the Serb's stock in trade 
to prevent international observation or investigation of their actions 
are no longer permitted.
  Now, let us look more closely at the rules covering United States 
forces as part of IFOR in Bosnia. Annex 1-A, article VI, ``Deployment 
of the Implementation Force,'' paragraph 3 provides as follows: ``The 
Parties understand and agree that the IFOR shall have the right to 
fulfill its supporting tasks, within the limits of its assigned 
principal tasks and available resources, and on request, which include 
the following: * * * (b) to assist the movement of organizations in the 
accomplishment of humanitarian missions; (c) to assist the UNHCR and 
other international organizations in their humanitarian missions; (d) 
to observe and prevent interference with the movement of civilian 
populations, refugees, and displaced persons, and to respond 
appropriately to deliberate violence to life and person * * *''
  Paragraph 5 provides as follows: ``The Parties understand and agree 
that the IFOR Commander shall have the authority, without interference 
or permission of any Party, to do all that the Commander judges 
necessary and proper, including the use of military force, to protect 
the IFOR and to carry out the responsibilities listed above in 
paragraphs 2, 3 and 4, and they shall comply in all respects with the 
IFOR requirements.''
  This is a key provision, when read with paragraph 3. In essence, it 
means that the United States does not have to ask the Bosnian Serbs for 
permission to assist the movement of tribunal investigators or to help 
them with exhumations or other heavy work. In addition, it means that 
any resistance can be met with military force.
  Paragraph 9 provides as follows: ``Air and surface movements in 
Bosnia and Herzegovina shall be governed by the following provisions: 
(a) The IFOR shall have complete and unimpeded freedom of movement by 
ground, air, and water throughout Bosnia and Herzegovina. It shall have 
the right to bivouac, maneuver, billet, and utilize any areas or 
facilities to carry out its responsibilities as required for its 
support, training, and operations, with such advance notice as may be 
practicable. The IFOR and its personnel shall not be liable for any 
damages to civilian or government property caused by combat or combat 
related activities. Roadblocks, checkpoints or other impediments to 
IFOR freedom of movement shall constitute a breach of this Annex and 
the violating Party shall be subject to military action by the IFOR, 
including the use of necessary force to ensure compliance with this 
Annex.''
  This is another key provision. It puts teeth into the requirement of 
annex 1-A, article II, paragraph 4, quoted in full above, that ``[t]he 
Parties shall cooperate fully with any international personnel 
including investigators * * * including facilitating free and unimpeded 
access and movement. * * *'' It permits the use of military force to 
overcome roadblocks, checkpoints, or other impediments to IFOR freedom 
of movement, even when escorting, for example, tribunal investigators.
  I have just described the legal foundation for United States action 
in support of investigations of violations of international 
humanitarian law in Bosnia and Herzegovina. That legal foundation comes 
into force now that the Dayton Peace Agreement has been 

[[Page S18593]]
signed in Paris earlier today. Now, the issue for the United States is 
what we are actually going to do, given that we now appear to have, and 
I would argue that we clearly do have, the legal right to support, 
assist, and facilitate these investigations.
  Mr. President, the distinguished chairman of the Commission on 
Security and Cooperation in Europe, Representative Christopher H. Smith 
of New Jersey, and I, sent a joint letter to Secretary of Defense 
William J. Perry last Friday, asking just that question. In fact, it is 
a long letter and it asks detailed questions about the entire United 
States approach to the issue of violations of international 
humanitarian law in Bosnia and the United States response to those 
violations. While it is much too soon to expect a response, I urge the 
Secretary to put his staff to work on the questions contained in the 
letter so that we can have answers before we make serious mistakes.
  Mr. President, I ask unanimous consent that our joint letter to 
Secretary Perry be printed in the Record.
  I plan to speak again on this topic as more information is received 
and the situation develops.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                  December 8, 1995
     Hon. William J. Perry, 
     Secretary of Defense, Department of Defense, the Pentagon, 
         Washington, DC.

       Dear Mr. Secretary: We write today to pose some important 
     questions with regard to the U.S. forces assigned to the NATO 
     Implementation Force in Bosnia. What are the United States' 
     legal obligations concerning the International Criminal 
     Tribunal for the Former Yugoslavia, what are the United 
     States' moral obligations to support the Tribunal's work, and 
     what instructions have you given U.S. forces concerning those 
     legal and moral obligations?
       Security Council Resolution 827 (25 May 1993) established 
     the International Criminal Tribunal for the Former 
     Yugoslavia. Paragraph 4 of that Resolution provided that ``. 
     . . all States shall cooperate fully with the International 
     Tribunal and its organs in accordance with the present 
     resolution and the Statute of the International Tribunal and 
     that consequently all States shall take any measures 
     necessary under their domestic law to implement the 
     provisions of the present resolution and the Statute, 
     including the obligation of States to comply with requests 
     for assistance or orders issued by a Trial Chamber under 
     Article 29 of the Statute.''
       Under this United Nations Security Council resolution, the 
     Statute establishing the Tribunal, and other applicable 
     international law, what is the legal obligation of the United 
     States Government should indicted war criminals come within 
     our potential control in the former Yugoslavia? Are we 
     legally obligated to arrest them and deliver them up to the 
     Tribunal for trial?
       A summary of the Dayton Peace Agreement provided by the 
     State Department contained a paragraph that states that 
     ``[t]he agreement gives IFOR, the peace implementation force, 
     the authority and discretion to use military force to prevent 
     interference with the free movement of civilians, refugees, 
     and displaced persons, and to respond appropriately to 
     violence against civilians. IFOR has the authority to arrest 
     any indicted war criminals it encounters or who interfere 
     with its mission, but it will not try to track them down.'' 
     [Italic added.]
       A review of the text of the Dayton Peace Agreement, its 
     annexes and appendices, and accompanying side letters, failed 
     to locate anywhere in these texts a provision or provisions 
     conferring upon IFOR ``the authority to arrest any indicted 
     war criminals it encounters,'' or, for that matter, to arrest 
     anyone at all. Moreover, paragraph 3 of Appendix B to Annex 
     1-A provides that ``[a]ll personnel enjoying privileges and 
     immunities under this Agreement shall respect the laws of the 
     Republic of Bosnia and Herzegovina insofar as it is 
     compatible with the entrusted tasks/mandate and shall refrain 
     from activities not compatible with the nature of the 
     Operation.'' This provision could be wrongfully construed to 
     prohibit U.S. forces from arresting indicted war criminals.
       What direction has the United States given its forces 
     concerning encounters with indicted war criminals within the 
     territory of the former Yugoslavia? What is the legal basis 
     for such direction? Will U.S. forces be issued pocket cards 
     containing this direction, and a specific reporting channel 
     should they make an arrest? Will they be provided with wanted 
     posters or other detailed identifying information on all 
     persons indicted for violations of international humanitarian 
     law during the conflict in the former Yugoslavia?
       If U.S. forces do encounter and arrest an indicted war 
     criminal, will the United States remove the suspect from the 
     territory of the former Yugoslavia and deliver the suspect to 
     the International Criminal Tribunal for trial? Will the 
     United States seek permission from any entity within the 
     territory of the former Yugoslavia to remove the suspect, or 
     is the United States prepared to act unilaterally?
       What direction will be given to U.S. forces to be deployed 
     to the former Yugoslavia concerning the collection of 
     evidence of crimes against humanity or war crimes? Will U.S. 
     forces make an active effort to collect testimony and 
     physical evidence, and protect from destruction physical 
     evidence, including mass grave sites, concentration camps, 
     detention facilities, and records relating to such crimes? We 
     note that the mass grave sites from the Srebrenica massacres 
     appear, according to published maps, to lie within the U.S. 
     zone. Please describe your plans for this effort and specify 
     how the plan will be implemented.
       Have U.S. forces been trained to safeguard those aspects of 
     war crimes-relevant materials that must be protected so these 
     materials may be legally admissible before the International 
     Tribunal? Are U.S. staff judge advocate, military police, 
     criminal investigation division, counterintelligence, civil 
     affairs, and other personnel who are likely to come into 
     contact with residents, familiar with the Tribunal's rules of 
     evidence, and how they differ from U.S. rules and the Uniform 
     Code of Military Justice? Please explain how the rules differ 
     and what specific steps you have taken to ensure that U.S. 
     troops identify and properly collect, and do not destroy, 
     contaminate, or otherwise render legally unusable, evidence 
     of war crimes or crimes against humanity that they may 
     encounter on the territory of the former Yugoslavia.
       What specific arrangements have been made for reporting war 
     crimes- and crimes-against-humanity-related information up 
     the U.S. and NATO chains of command in Bosnia? How will this 
     information be passed to the International Tribunal? Is there 
     a memorandum of understanding, an exchange of letters, or any 
     other formal arrangement between NATO and the International 
     Tribunal? Between the U.S. and the Tribunal? Is there a 
     designated position/person in IFOR who is specifically 
     tasked with the responsibility of liaising with the 
     Tribunal and arranging for transfer of custody of suspects 
     and/or evidence?
       What arrangements has the Department made with the 
     Department of State concerning reporting war crimes- and 
     crimes against humanity-related information to the 
     International Tribunal? If there is not a formal arrangement 
     between NATO or IFOR and the Tribunal, is there an agreement 
     with State that State will receive and forward such 
     information to the Tribunal?
       If the International Tribunal asks U.S. forces to secure a 
     specific area within the U.S. zone until an investigative 
     team can arrive, will U.S. forces do so? Under the Status of 
     Forces Agreement, could U.S. forces secure, for example, an 
     office building holding records from a prison camp?
       What is your understanding of the moral responsibility of 
     the United States to take action against suspected war 
     criminals or persons who allegedly committed crimes against 
     humanity in the former Yugoslavia? By ``action,'' we are 
     referring to a range of initiatives from their arrest, 
     through collection and preservation of evidence of the crimes 
     and cooperation with international investigations of the 
     crimes. Have you taken any action to instruct and educate 
     U.S. forces concerning this responsibility, so that they may 
     be properly sensitized to it? (Regular instruction in the Law 
     of Land Warfare is clearly insufficient in such an extreme 
     case as the alleged violations of international humanitarian 
     law that have reportedly occurred in the former Yugoslavia.)
       Will U.S. civil affairs and/or psychological operations 
     units be tasked to inform the public in the U.S. zone that 
     the U.S. is actively seeking information concerning war 
     crimes and crimes against humanity, and provide to the public 
     points of contact in IFOR or the U.S. contingent of IFOR for 
     them to call or visit to provide such information?
       When refugees or displaced persons pass through the U.S. 
     zone and have contact with U.S. forces, will our forces be 
     instructed to ask if they have any information on war crimes 
     or crimes against humanity? Will U.S. forces be issued pocket 
     cards with such questions, and a reporting channel for 
     forwarding the information?
       What arrangements have been made to provide speakers of the 
     Bosnian languages who will serve as translators for U.S. 
     forces deployed as part of IFOR? How many translators do you 
     expect you will need? How will you obtain them? In making 
     these arrangements, has war crimes reporting been a 
     consideration in interpreter selection? Is there a plan to 
     train interpreters in U.S. military terminology? If 
     interpreters will undergo any training, will war crimes 
     reporting be included in that training?
       While we understand that it may take the Department some 
     time to answer these questions, and many of the people who 
     would know the answers to these questions are essential to 
     the actual deployment of IFOR to the former Yugoslavia, we 
     believe that these questions are sufficiently important to 
     warrant consideration before U.S. forces are present on the 
     ground in full strength. It would be a very grave matter if 
     U.S. forces were inadvertently to allow a war criminal to 
     escape, or were to destroy vital criminal evidence during the 
     deployment process. Accordingly, we ask that these questions 
     receive prompt and careful consideration by the responsible 
     officials, and we look forward to receiving your response in 
     writing in a timely manner. 
     
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       Sincerely,
     Christopher H. Smith,
       Chairman.
     Alfonse D'Amato,
       Cochairman.

                          ____________________