[Congressional Record Volume 145, Number 66 (Monday, May 10, 1999)]
[Senate]
[Pages S4940-S4942]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                 KOSOVO

  Mr. DORGAN. Mr. President, if I may address one additional issue, 
this deals with Kosovo and Mr. Milosevic. There was a piece published 
in the Washington Post on Sunday, written by Mark S. Ellis, that I ask 
unanimous consent to have printed in the Record at the conclusion of my 
remarks on Kosovo.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. DORGAN. The piece by Mr. Ellis is entitled ``Non-Negotiable, War 
Criminals Belong in the Dock, Not at the Table.''
  I wanted to bring this piece to the attention of my colleagues 
because Mr. Ellis says it well. He points out that we are at a time and 
a place, dealing with Mr. Milosevic in Kosovo, when it is all of our 
responsibilities to bring Mr. Milosevic to justice.
  Some would say, well, how do you arrest someone who is not accessible 
to you? It doesn't matter, as far as I am concerned, whether it's 
possible to apprehended and arrest him. We have a responsibility in 
this case, just as I felt we did in the case of Saddam Hussein, to make 
the case against these leaders for the war crimes they have committed 
and to bring them to trial before an international tribunal, try them, 
and, hopefully, convict them as war criminals. To not do that, it seems 
to me, will be to continue to have to deal with people who have 
committed genocide and war crimes that have brought unspeakable horror 
to the people of Kosovo, and to continue to have to deal with them in 
the future.
  I know some in this country and elsewhere say the problem is, if you 
push aggressively to try Mr. Milosevic as a war criminal and ultimately 
have to negotiate with him some sort of negotiated settlement in the 
Balkans, it is very hard to negotiate with someone you have identified 
as a war criminal. That is a lot of psychobabble, as far as I am 
concerned.
  We have already decided this fellow is a war criminal by virtue of 
our actions in NATO. NATO decided that the genocide and ethnic 
cleansing that were occurring in Kosovo could not be allowed to stand.
  I think it might be useful to read through a list of some of the 
allegations. By no means is this a definitive list, it is just a small 
sliver: the village of Goden, the execution of 20 men and then the 
burning of the entire village; Malakrusa, 112 men shot and their bodies 
burned; Pastasel, 70 ethnic Albanian bodies discovered; Pec, at least 
50 ethnic Albanians killed and buried in their own yards; Podujevo, the 
execution of 200 military age men and 90 percent of the village burned 
as well; summary execution; robbery; rape; forced expulsion.
  We now have seen the march of nearly 1 million people displaced from 
their homeland, villages burned, looted, and plundered. One refugee 
said, ``16 special policemen appeared shooting their automatic weapons 
in the air. Two families had strayed from the group and the Serbs 
opened fire, killing every member of both families, except for a 2-
year-old boy who had been protected by his mother. She hid the baby in 
front of her and saved him. I saw this with my own eyes,'' this refugee 
said, ``maybe 150 feet from me.''

  In 1992, Secretary of State Eagleburger publicly identified Mr. 
Milosevic as a war criminal; 1992, 7 years ago. Mr. Eagleburger is one 
of the most respected foreign policy thinkers in our country. He said 
Mr. Milosevic was a war criminal in 1992. What does that mean, to say 
someone is a war criminal or for our country to allege someone is a war 
criminal, if we decide to do nothing about it, if an international 
tribunal exists by which someone can and should be tried but we decide, 
no, we don't really want to do that in the face of mass executions, in 
the face of ethnic cleansing? We say we really don't want to do that 
because we may need to negotiate a settlement to this conflict.
  It was a mistake not to go to an international tribunal and convict 
Saddam Hussein as a war criminal so that forever after he would be 
branded a war criminal. He is now, many years later, of course, still 
running Iraq. He does not have the stigma of having been convicted in 
absentia as a war criminal. He should have. The same, in my judgment, 
is true of Mr. Milosevic.
  To read a paragraph from Mr. Ellis's wonderful piece in the 
Washington Post, he said:

       When I watched the bus loads of new arrivals enter 
     Stenkovec camp, I saw a small girl's face pressed against the 
     window. Her hollow eyes seemed to stare at no one. History 
     was being repeated. In his opening statement at the Nuremberg 
     trials in 1945, U.S. chief prosecutor Robert H. Jackson said, 
     ``The wrongs which we seek to condemn and punish have been so 
     calculated, so malignant, and so devastating that 
     civilization cannot tolerate their being ignored because it 
     cannot survive their being repeated.'' Jackson was expressing 
     the hope that law would somehow redeem the next generation 
     that similar atrocities would never again be allowed. Today, 
     we must hold personally liable those individuals who commit 
     atrocities in the former Yugoslavia. To negotiate with the 
     perpetrators of these crimes not only demeans the suffering 
     of countless civilian victims, it sends a clear signal that 
     justice is expendable, that war crimes can go unpunished. 
     Inevitably, lasting peace will be linked to justice, and 
     justice will depend on accountability. Failing to indict 
     Milosevic in the hope that he can deliver a negotiated 
     settlement makes a mockery of the words ``Never Again.''

  I am not an expert in this region. I have been to Yugoslavia, when it 
was Yugoslavia. I sat at an outdoor restaurant on a beautiful evening 
and watched wonderful people, just like my neighbors in Regent, ND, 
just like North Dakotans or Kansans or other folks, and it occurred to 
me that it was a wonderful country with a lot of wonderful people. Of 
course, we now know that what has happened as a spark occurs in an 
area, and Mr. Milosevic follows up the spark with ethnic cleansing, 
producing a calamity. We see the horrors inflicted on people, in some 
cases by their previous neighbors, that you would have thought 
unthinkable. Something is dreadfully wrong when the rest of the world 
allows a dictator like Mr. Milosevic to inflict ethnic cleansing and 
the kind of horror he has inflicted on the people of Kosovo.
  That is why NATO and the United States have engaged in airstrikes. It 
is why all of us hope this conflict ends soon and that Kosovars are 
returned to their homes. Also, Mr. Milosevic, at least from my 
standpoint, should be brought before an international tribunal and 
tried even in absentia, if necessary, as a war criminal and convicted 
as a war criminal to send a signal to the world that this new world 
order will not allow this to go unpunished.
  Mr. President, I yield the floor.

                               Exhibit 1

                [From the Washington Post, May 9, 1999]

   Non-Negotiable, War Criminals Belong in the Dock, Not at the Table

                           (By Mark S. Ellis)

       Just a few weeks ago, I stood among a sea of 20,000 
     desperate people on a dirt airfield outside Skopje, 
     Macedonia, listening to one harrowing story after another. I 
     had come to the Stenkovec refugee camp to record those 
     stories and to help set up a system for documenting 
     atrocities in Kosovo.
       As I collected their accounts of rape, torture and 
     executions at the hands of Serbian troops, I was struck by 
     the refugees' common yearning for justice. They wanted those

[[Page S4941]]

     responsible for their suffering to be held accountable. Their 
     anger was not only directed at the people they had watched 
     committing such savagery, but at the Political leaders--and 
     Yugoslav President Slobodan Milosevic in particular--who had 
     orchestrated the misery and continue to act with impunity.
       The means exist to hold Milosevic and his underlings 
     accountable. In recent weeks, there have been calls from 
     members of Congress for his indictment by the International 
     Criminal Tribunal for the Former Yugoslavia, and 
     Undersecretary of State Thomas Pickering has said that the 
     United States is gathering evidence that could lead to his 
     indictment. And there is plenty of evidence. In the Kosovo 
     town of Djakovica, for example, residents carefully 
     documented the Serbian barbarity for investigators, recording 
     the details of each murder, each rape, each act of violence, 
     before they fled the city. The time has come to act on the 
     testimony of these and other witnesses.
       To do so, of course, flies in the face of last week's much-
     ballyhooed optimism about reaching a negotiated settlement 
     with Milosevic. However eager the Clinton administration 
     might be to reach a political and diplomatic solution, we 
     should remember that those who have recently suffered under 
     Serbian attacks reject outright the notion that justice must 
     sometimes be forfeited for the sake of diplomatic expediency. 
     During the Bosnian conflict, accountability was sacrificed on 
     the dubious premise that negotiating with someone who is 
     widely regarded as a war criminal is a legitimate exercise in 
     peace-making. We shouldn't make that mistake a second time 
     around. Milosevic's broken promises still echo among the 
     charred ruins and forsaken mass grave sites that defile the 
     landscape of Bonsia.
       If Milosevic had been indicted for the mass killings and 
     summary executions that the Bosnian Serbs--with backing from 
     Serbia--are accused of carrying out, would he have acted so 
     brazenly to ``cleanse'' Kosovo of its ethnic Albanians? 
     Nobody knows. At the very least an  indictment would probably 
     have deterred him; an apprehension and a trial would have 
     stopped him. But there should be no uncertainty about what 
     occurs when Milosevic is allowed to act unencumbered. The 
     time has come for the international war crimes tribunal to 
     help put an end to that.
       Inaugurated by the United Nations on May 25, 1993, and 
     based in The Hague, the Yugoslav war crimes tribunal has, to 
     date, tried just 16 defendants. With a staff of more than 750 
     and an annual budget of more than $94 million, it has the 
     resources--and the authority--to indict Milosevic. Indeed, 
     failure to indict would reveal the tribunal's impotence in 
     the face of political controversy, and prove that this 
     institution of international law and justice is merely an 
     expensive and irrelevant relic.
       How difficult would it be to indict Milosevic? Not 
     difficult at all. Under the tribunal's statute, the office of 
     the prosecutor need only determine ``that a prima facie case 
     exists.'' That's to say that the prosecutor must gather 
     evidence sufficient to prove reasonable grounds that 
     Milosevic committed a single crime under the tribunal's 
     extensive jurisdiction.
       With this in mind, the chances of Milosevic being held 
     accountable increase with the arrival of each new group of 
     refugees driven from their homes in Kosovo. Their remarkably 
     consistent testimony is providing crucial information--now 
     being gathered by representatives of the tribunal as well as 
     by human rights organizations--about what has actually taken 
     place in Kosovo. These firsthand accounts are indispensable 
     in building a case against Milosevic--and the refugees I 
     interviewed during the days I was there are willing to 
     testify about what they saw.
       But with refugees flooding out of Kosovo and some being 
     relocated in distant countries, the prosecutor's office must 
     ensure that testimony is taken swiftly, legally and 
     professionally. The lack of access to Kosovo by independent 
     journalists and human rights monitors and the extreme 
     instability of refugee life heighten the importance of 
     collecting these accounts while they are still fresh in 
     people's minds. Yet the prosecutor's office was slow to act. 
     A full five weeks went by before the tribunal sent a corps of 
     investigators to the region.
       What crimes should the Yugloslav president be indicted for? 
     The tribunal's statute provides jurisdiction over ``serious 
     violations of international humanitarian law'' including both 
     ``crimes against humanity'' and ``genocide,'' the most 
     abhorrent of all. Milosevic should be indicted for both.
       Crimes against humanity are defined as ``systematic and 
     widespread'' and directed at any civilian population; they 
     include murder, extermination, imprisonment, rape and 
     deportation. They are distinguished from other acts of 
     communal violence because civilians are victimized according 
     to a systematic plan that usually emanates from the highest 
     levels of government.
       In Kosovo, the forced deportation of ethnic Albanians by 
     the Yugoslav army and the Serbian Interior Ministry police 
     force is an obvious manifestation of such crimes. The 
     refugees with whom I spoke described being robbed, beaten, 
     herded together and forced to flee their villages with 
     nothing but the clothes they were wearing. By confiscating 
     all evidence of the ethnic Albanians' identity--passports, 
     birth certificates, employment records, driver's licenses, 
     marriage licenses--the Serbian forces also severed the 
     refugees' links with their communities and land in Kosovo. 
     This attempt to make each ethnic Albanian a non-person is 
     itself a crime against humanity. Emerging evidence of mass 
     killings, summary executions and gang rape lends further 
     credence to the widespread and systematic nature of these 
     crimes.
       As to the crime of genocide, the tribunal's statute rests 
     on the 1948 Convention on the Prevention and Punishment of 
     Genocide, which defines genocide as ``acts committed with 
     intent to destroy, in whole or in part, a national, ethnical, 
     racial or religious group.'' Arising as it did from the 
     extermination of the Jews in Nazi Germany, the convention 
     invites comparison with the Holocaust and is intended to 
     prevent such heinous crimes from happening again. This 
     tragedy has not reached that perverse level of brutality but, 
     like the earlier efforts to eliminate an entire people--
     whether the Jews, the Armenians or the Tutsis--it should be 
     prosecuted as a crime of genocide.
       The convention addresses intent, and stipulates that acts 
     designed to eliminate a people--in whole or in part--
     constitute genocide. Among other acts covered by the 
     convention, crimes of genocide include ``(a) killing members 
     of the group; (b) causing serious bodily or mental harm to 
     members of the group; (c) deliberately inflicting on the 
     group conditions of life calculated to bring about its 
     physical destruction in whole or in part.''
       In the former Yugoslavia, acts of genocide have been 
     perpetrated through the abhorrent policy of ethnic 
     cleansing--that is, making areas ethnically homogenous by 
     expelling entire segments of the Kosovar population and 
     destroying the very fabric of a people.
       Ethnic cleansing does not require the elimination of all 
     ethnic Albanians; it may target specific elements of the 
     community that make the group--as a group--sustainable. The 
     abduction and execution of the intelligentsia, including 
     public officials, lawyers, doctors and political leaders, for 
     example, is part of a pattern of ethnic cleansing and could 
     constitute genocide, as could targeting a particular segment 
     of the population such as young men. It is clear from the 
     refugees who have been interviewed that these acts are being 
     systematically committed in Kosovo.
       An often overlooked but important element of the 1948 
     convention is that an individual can be indicted not only for 
     committing genocide, but also for conspiring to commit 
     genocide, inciting the public to commit genocide, attempting 
     to commit genocide, or for complicity in genocide. The point 
     is that criminal responsibility extends far beyond those who 
     actually perform the physical acts resulting in genocide. In 
     short, the political architects such as Milosevic are no less 
     responsible than the forces that carry out this butchery. 
     There is no immunity from genocide.
       Prosecuting Milosevic will require relying on a legal 
     strategy based on the concept of ``imputed command 
     responsibility.'' Under this theory, Milosevic can be held 
     responsible for crimes committed by his subordinates if he 
     knew or had reason to know that crimes were about to be 
     committed and he failed to take preventive measures or to 
     punish those who had already committed crimes.
       Since it is unlikely that Milosevic has allowed documentary 
     evidence to be preserved that would link him to atrocities in 
     Kosovo, the prosecutor's office will have to rely heavily on 
     circumstantial evidence to build its case. This means 
     identifying a consistent ``pattern of conduct'' that links 
     Milosevic to similar illegal acts, to the officers and staff 
     involved, or to the logistics involved in carrying out 
     atrocities. The very fact that atrocities have been so 
     widespread, flagrant, grotesque and similar in nature makes 
     it near certain that Milosevic knew of them; despite his 
     recent protestations to the contrary, it defies logic to 
     suggest that he could be unaware of what his forces are 
     doing.
       What will the consequences be if the Yugoslav president is 
     indicted? First, an indictment would send a clear message 
     that the international community will not negotiate or have 
     contact with a war criminal. It is current U.S. policy not to 
     negotiate with indicted war crimes suspects. And so it should 
     be. Milosevic would be stripped of international stature 
     except as a fugitive from justice. This might, in turn, open 
     an avenue for Serbians to once again distance themselves from 
     their leader's regime. Second, an indictment would likely 
     result in an ex parte hearing in which the prosecutor's 
     office could present its case in open court--without 
     Milosevic being there. By establishing a public record of 
     Milosevic's role in the crimes committed, such a hearing 
     would be cathartic for both victims and witnesses, and also 
     for citizens long denied access to the truth. Finally, the 
     tribunal would issue an international arrest warrant making 
     it unlikely that Milosevic would venture outside his 
     country's borders.
       When I watched the bus loads of new arrivals enter the 
     Stenkovec camp, I saw a small girl's face pressed against the 
     window. Her hollow eyes seemed to stare at no one. History 
     was being repeated. In his opening statement at the Nuremberg 
     trials in 1945, U.S. chief prosecutor Robert H. Jackson said, 
     ``The wrongs which we seek to condemn and punish have been so 
     calculated, so malignant, and so devastating that 
     civilization cannot tolerate their being ignored, because it 
     cannot survive their being repeated.'' Jackson was expressing 
     the hope that law would somehow redeem the next generation 
     and that similar atrocities would never

[[Page S4942]]

     again be allowed. Today, we must hold personally liable those 
     individuals who commit atrocities in the former Yugoslavia. 
     To negotiate with the perpetrators of these crimes not only 
     demeans the suffering of countless civilian victims, it sends 
     a clear message that justice is expendable, that war crimes 
     can go unpunished. Inevitably, lasting peace will be linked 
     to justice, and justice will depend on accountability. 
     Failing to indict Milosevic in the hope that he can deliver a 
     negotiated settlement makes a mockery of the words ``Never 
     Again.''

  Mr. THOMAS addressed the Chair.
  The PRESIDING OFFICER. The distinguished Senator from Wyoming is 
recognized.
  Mr. THOMAS. Mr. President, I ask unanimous consent to speak for 15 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________