Seeking Accountability for Gross Human Rights Violations Against the Roma in Kosovo

31 January 2006

Yael Fuchs¹

The Nuremberg Tribunal is widely regarded as the birthplace of international criminal justice and the beginning of the end of blanket impunity for crimes against humanity and war crimes.² For the Roma of Europe, however, it was another venue in which the atrocities they suffered were marginalised, if not largely ignored. The Tribunal failed to comprehensively address the massive atrocities committed against Roma by the Nazis.³ The group indictment⁴ and various prosecutors' statements did note that "Gypsies" had been victims of genocide and medical experiments;⁵ however, no Romani witnesses were called, and nobody was called to testify specifically on behalf of the Romani victims. As such, the Tribunal's final judgment is silent as to the Roma,⁶ and no war crimes reparations have ever been paid to the Roma as a people.⁷

The Roma have suffered discrimination and violence for as long as they have been in Europe. Most of the violence has been met with impunity, stemming from a lack of attention to their plight, lack of resources, lack of access to domestic legal systems, as well as widespread discrimination within those legal systems.

This article discusses the legal merits and practical feasibility of advocating for a crimes against humanity prosecution at the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first international war crimes Tribunal since Nuremberg, in response to violence against Roma⁸ in Kosovo. The author argues that the ICTY Office of the Prosecutor could find sufficient evidence to indict former members of the Kosovo Liberation Army for crimes against humanity based on violence committed against Roma in 1998 and the summer of 1999. Such a prosecution would contribute to ongoing efforts to hold individuals accountable for crimes against Roma and deal with broader patterns of abuse against the Roma.

International criminal justice seeks to meld the goals of domestic criminal justice systems – deterrence and retribution – with broader transitional justice objectives. Tribunals such as the ICTY and the International Criminal Tribunal for Rwanda, along with quasi-judicial institutions such as South Africa's Truth and Reconciliation Commission, seek not just to punish, but to contribute to national reconciliation, promote the rule of law in regions that were torn apart by violence, and create an accurate historical account of past atrocities.

At the most immediate level, prosecution at the ICTY would serve to punish and hold accountable those responsible for gross violations against Roma. Given the historical lack of redress, a prosecution could also serve a deterrent purpose by signaling that violence against Roma will no longer be tolerated. Prosecution would also establish a historical record of the crimes that occurred during the war, and perhaps serve as the basis for reparations programs or other forms of restitution to the victims of violence.

On a wider scale, prosecution at an international tribunal would make crimes against Roma more widely known, fighting the ongoing problem of invisibility of the Roma in the social, political and legal spheres.

To date, the ICTY Prosecutor has indicted three individuals in connection with crimes against the Roma in Kosovo. The charges against Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, were filed on March 4, 2005.⁹ The three former Kosovo Liberation Army (KLA) officers were charged with war crimes and crimes against humanity committed against Serb, Albanian and Romani civilians who were perceived to be not supporting the KLA. When the charges were filed, Haradinaj was the Prime Minister of Kosovo. He resigned in February 2005, after the charges were officially announced.

Among other crimes, the indictment accuses the three men of abducting and torturing three Romani men in Pejë/Pec. The Romani men were beaten, cut, had salt rubbed into their wounds, and were then wrapped in barbed wire. They are all missing and presumed dead.¹⁰

This indictment is a watershed in the struggle to combat impunity for crimes against Roma. It is the first time in the tribunal history that individuals were charged specifically with crimes against Roma. Of its thirty-seven counts, eight deal with Romani victims. For the first time, the names of Romani victims are listed in a document of an international tribunal, and the crimes committed against them are described in a public record.

So there is now one indictment on record, but the ICTY's "exit strategy" may prove an obstacle to further prosecutions. The UN Security Council has instructed the ICTY to complete its work by 2008, and in an effort to comply with this deadline, the Office of the Prosecutor (OTP) announced that it will not be taking on any new investigations. Overcoming the exit strategy may entail either convincing the prosecutor to take on a new investigation, or else, assuming that an investigation is ongoing, working to ensure that the OTP follows through on this investigation and issues additional indictments.

As the OTP winds down its work, politics may prove another concern for those pushing for more indictments of Albanians for crimes against Roma. On one hand, the OTP has been sensitive to accusations that its indictments are politically motivated, that is, that the prosecutor issues indictments against Serbs or Albanians in order to achieve a balance of blame, rather than based purely on the merits. As such, additional indictments against Albanians for crimes against Roma, even if viable on the merits, may not fit into the OTP's plan. On the other hand, an overwhelming majority of the indictments to date have been against Serbs, and the OTP wants to counter perceptions that the ICTY is an anti-Serb institution, both for the sake of its legacy, and to ensure continued cooperation with the Serbian government.

The ICTY and its Response to Date

Today, organisations working on behalf of Roma, such as the European Roma Rights Centre, have started to take legal action through domestic and regional courts in the pursuit of accountability. With the ever-increasing interest in international justice mechanisms and the proliferation and codification of international law addressing crimes against humanity, it is worthwhile to explore the possibilities of additional avenues to complement their efforts. The ICTY provides one such avenue.

The UN Security Council established the ICTY in 1993 by a resolution finding the existence of widespread humanitarian law violations in the former Yugoslavia and directing the creation of the ICTY as a means to contribute to the restoration of peace in the region.¹¹ Its mandate is established in the Statute of the International Tribunal.¹²

Prior to the Haradinaj indictment, there had been no indictments at the ICTY for crimes against Roma in Kosovo. The Chief Prosecutor had announced on March 21, 2001 that her office had opened an investigation into "activities against Serbs and other minorities in Kosovo by unidentified Albanian armed groups from June 1999 until the present….."¹³ Roma were not explicitly named as victims of violence even in this statement, thus underscoring the continued invisibility of crimes against this population.

Half a year earlier, in her address to the Security Council, the Prosecutor did specifically mention crimes against Roma. She acknowledged receiving "passionate pleas to investigate allegations of continuing ethnic cleansing against the remaining Serb and Roma population."¹⁴ Asking the Council to modify the Tribunal statute to cover the alleged crimes (see section on the "armed conflict" jurisdiction requirement, below), Del Ponte expressed her office's belief in the importance of pursuing these allegations:

We must ensure that the Tribunal's unique chance to bring justice to the populations of the former Yugoslavia does not pass into history as having been flawed and biased in favour of one ethnic group against another. Besides, if we obtain this morally justified and necessary extension of our mandate, the Tribunal might become a deterrent factor against the ongoing ethnic-cleansing campaign in Kosovo.¹⁵

Historically, however, the ICTY has indicated that it did not intend to be "the main investigatory and prosecutorial agency in Kosovo," and Del Ponte had stated that "[t]he vast majority of crimes committed during the armed conflict will have to be dealt with by the local Kosovo police and judiciary, currently under the mandate of the [UNMIK]."¹⁶ This statement was made before the OTP received information and requests for investigations into the "reverse ethnic cleansing," and so does not preclude the OTP's interest in investigating and prosecuting egregious cases of violence against Roma. Still, as will later be discussed, it may be worthwhile to explore the possibility of redress within the Kosovo legal system.

Potential Case at the ICTY for Violence against Roma Minorities in Kosovo

According to Article 1 of the ICTY Statute, the ICTY has the authority "to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute."¹⁷ When instances of violence against Roma are viewed in the aggregate, rather than as isolated events, it is possible that attacks against Roma in Kosovo rise to the level of crimes against humanity.

Reported Abuses against Roma in Kosovo

During the Kosovo conflicts, both Kosovar Albanians and Serbs targetted the Roma. The worst anti-Romani violence occurred directly after the end of the NATO bombing in June 1999, following the repatriation of ethnic Albanians from refugee camps in neighboring countries.¹⁸ Many Roma fled from Kosovo for fear of violence, and many have not returned.¹⁹

In most accounts, the attacks on Roma have been explained as retribution by Albanians for alleged Romani collaboration in Serb brutalities.²⁰ The Humanitarian Law Center reported that during the conflict, many Roma were forced to assist Serbian forces: "[t]he Serbian police and local authorities forced Roma civilians, including minors, to bury the bodies of Albanian civilians and KLA members, to dig trenches for the military, and to pillage and destroy ethnic Albanian property." But the HLC report states that those Roma who did collaborate with the Serbs, either voluntarily or under compulsion, fled Kosovo at the end of the bombing; whereas those that remained "believed they had no reason to fear retaliation by returning ethnic Albanian refuses as they had not taken part in any crimes."²¹ In other words, chances are that those Roma that remained and faced the harshest retribution were those who did not collaborate. These allegations have perpetuated a long-running cycle of ostracism, violence, fear, and impunity.²²

Several organisations have documented cases against Roma in Kosovo, including the ERRC, the Organisation for Security and Cooperation in Europe (OSCE), the United Nations High Commissioner for Refugees (UNHCR), Human Rights Watch, Amnesty International, regional non-governmental organisations, and international journalists. The documented crimes include killing, expulsion, harassment, intimidation, house-burning, and abduction.²³ The situation was especially grave in the areas of Gjakovë/ Đakovica and Fushë Kosovë/Kosovo Polje, where there were larger concentrations of Roma.²⁴

Both the OSCE and Human Rights Watch have concluded that violence against Roma, especially following the end of the NATO bombing, consisted of more than just isolated instances of revenge attacks, but was part of a politically-motivated, systematic effort to "cleanse" Kosovo of non-Albanians and to bolster claims for an independent state:

Criminal gangs or vengeful individuals may have been involved in some incidents since the war. But elements of the KLA are clearly responsible for many of these crimes. The desire for revenge provides a partial explanation, but there is also a clear political goal in many of these attacks: the removal from Kosovo of non-ethnic Albanians in order to better justify an independent state.²⁵

Some of the most egregious documented instances of violence are listed below. This list is in no way comprehensive. The cases listed below are meant to provide the facts to which international humanitarian law may be applied to determine whether prosecution is appropriate.

Killings

• The HLC reported that Halil Muzija was killed on June 16, 1999, in Brestvenik village near Pejë/Pec. According to witness statements "several KLA members came to the victim's home and demanded that he turn over his rifle on pain of death. Though Halil did not possess a firearm, he was nonetheless taken away by the KLA men. 'The next day, at sunrise, about 5 a.m., Halil's wife went to look for him. She found his body some 300 meters from the house. There were chains around his neck and it looked to her that he had been tied to a car and dragged behind it. There were bloodstains on the road. He also had three stab wounds.'"²⁶

 According to HRW, Roma in Gjakovë/ Đakovica reported that Ibish Beqiri, sixty years old, was abducted by unknown assailants in the beginning of July [1999], and his body was later discovered in Gramocel. The ERRC reports that three Roma from the town of Gjakovë/ Đakovica are believed to have been killed in the town since early June [1999].²⁷

Abductions, Detention and Abuse

• The HLC reported two instances of torture of Roma by KLA members in Pejë/Pec. The first man escaped from his home, where he was confined after having been severely beaten, and was ultimately taken to the hospital by an Italian KFOR patrol.²⁸
• HRW reported testimony from Roma in the Gjakovë/ Đakovica camp that eight Roma men had been abducted by men in KLA uniforms in the end of June and July.²⁹
• On June 18, 1999, German KFOR troops raided a police station in Prizren, which had been occupied by the KLA. It was reported that a total of 15 detainees, including "several Roma" had been held there. "The German officer who led the raid said the victims had told German troops that members of the KLA had detained them for allegedly looting the homes of ethnic Albanians." German officers took the names of 25 KLA members and turned the members over to the local KLA commander.³⁰
• HRW also reported the case of a twenty-three year old Romani man, who was beaten and abducted by KLA soldiers on June 21 in the Pristina neighborhood of Vranjevci.³¹ 

Rape

• ERRC documented two cases of rape of Romani women by persons in KLA uniform in Gjakovë/ Đakovica.³²
• The HLC also reported the rape and beating of two Romani women – a mother and daughter – by a group of alleged KLA members in Vitina. The daughter reported that after she was raped, the men "said we were to go and not to come back ever."³³

Destruction of Property

• In Gnjilane/Gjilan, following the arrival of OSCE, it appeared that a systematic effort was made to force Roma out of their homes by arson attacks, looting and the destruction of property.³⁴
• HRW reported that "[a]ccording to Roma interviewed in Gjakovë/ Đakovica, about thirty Roma homes in the Brekoc neighborhood were burned within three hours on July 12. Men in KLA uniform told them to leave their homes a few days before the burning took place."³⁵

Applicable Law

This section presents the legal requirements for a crimes against humanity prosecution at the ICTY, and analyzes whether the elements of the crimes would be fulfilled in light of the facts described above. First the jurisdictional requirements are discussed, followed by the chapeau, that is, general, elements of a crime against humanity. Finally, this section explores which specific crimes might have been committed.

Jurisdictional Elements:

The first question is whether the ICTY would have jurisdiction over the abuses committed against Roma discussed above. Article 1 of the ICTY Statute establishes the Tribunal's general jurisdiction: the ICTY "shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991…."³⁶ The other jurisdictional requirements are temporal and territorial jurisdiction, subject-matter jurisdiction, and the requirement of a nexus to armed conflict. .

• Temporal and Territorial Jurisdiction

According to Article 8 of the ICTY Statute, the territorial jurisdiction of the ICTY extends to territory of the former Socialist Federal Republic of Yugoslavia, and the temporal jurisdiction extends "to a period beginning on 1 January 1991," with no specified end date.³⁷ Thus crimes against Roma in Kosovo that occurred after 1999 would fall under the territorial and temporal jurisdiction of the ICTY. 

• Subject Matter Jurisdiction

The subject matter jurisdiction of the ICTY covers grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity. Crimes against Roma committed in Kosovo are most likely to fall under Article 5: crimes against humanity. This article states that the ICTY "shall have the power to prosecute persons responsible for crimes committed in armed conflict, whether international or internal in character, and directed against any civilian population," including, in relevant part, murder, imprisonment, torture, rape, persecutions on racial grounds, and other inhuman acts.³⁸ The chapeau elements of crimes against humanity were most recently set out by the ICTY Appeals Chamber in the case of Prosecutor v. Kunarac:
i. there must be an "attack";
ii. ii. the acts of the accused must be part of the attack;
iii. iii. the attack must be widespread and systematic; and
iv. iv. the principal offender must know of the wider context in which his acts occur and know that his acts are part of the attack.³⁹

These elements are discussed below, in Section 2 (Crimes against Humanity: Common Elements).

• Armed Conflict Requirement

It is likely that the Tribunal would find that the final jurisdictional requirement – that there must be a nexus between the crimes and an armed conflict – would be met in the case of the violence against Roma in June 1999.⁴⁰ The ICTY Appeals Chamber has held that "[t]he armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law."⁴¹ Given the flexibility with which the Tribunal has interpreted this requirement, in addition to statements by the Chief Prosecutor asserting jurisdiction, there is a good chance that the Tribunal would maintain that an armed conflict existed during the period in question because of the continuing violence in Kosovo following the end of the NATO bombing.⁴²

In Tadic, the ICTY Appeals Chamber ruled that the application of international humanitarian law applies "from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached."⁴³ The ICTY seems to consider the formal end of hostilities in Kosovo to have taken place on June 20, 1999, by which time all Serbian and Yugoslav security forces had withdrawn from Kosovo.⁴⁴ On June 10, the Security Council passed Resolution 1244, and NATO and the Governments of Serbia and the Federal Republic of Yugoslavia concluded the Military Technical Agreement. On June 12, in accordance with the agreement, NATO strikes stopped, the Yugoslav Army and Serbian police (and paramilitaries) began a phased withdrawal from Kosovo, and KFOR entered the province.⁴⁵ However, as demonstrated by the very violence at issue here, in addition to widespread violence against Serbs in Kosovo, a "general conclusion of peace" had not been achieved by that date.

Additionally, and perhaps more importantly, the Chief Prosecutor has made a series of statements asserting jurisdiction over crimes committed in Kosovo after the NATO bombing. In a press conference on March 21, 2001, the Chief Prosecutor said that "the continuing violence in each area [Kosovo, southern Serbia and Macedonia] does indeed satisfy the legal criteria for the definition of 'armed conflict' for the purposes of crimes set out in the statute of the tribunal."⁴⁶ On October 10, 2003, Del Ponte announced to the Security Council that her office was investigating crimes occurring through 2001.⁴⁷ While Del Ponte's statements do not carry the force of law, they are a good indication of the Tribunal's willingness to reject any challenge to its jurisdiction to crimes that occurred in Kosovo beginning in June 1999.

However, it must be noted that these statements indicate a marked reversal from Del Ponte's original interpretation of the "armed conflict" requirement. In her November 2000 address to the Security Council, Del Ponte requested that the Council modify the Tribunal's statute to omit the "armed conflict" requirement, stating that "as the Tribunal's Statute is presently drafted, the requirement that crimes are linked to an armed conflict effectively precludes my Office from dealing with on-going crimes in Kosovo. They lie outside the Tribunal's jurisdiction."⁴⁸

Perhaps in an attempt to avoid a legal battle over this issue, the Haradinaj indictment covers crimes committed between March and September 1998.⁴⁹ To date, no indictments have been issued covering post-June 1999 crimes, so the question remains an open one.

Crimes against Humanity: Common Elements

Again, the criteria listed in the chapeau of the crimes against humanity article are: (i) there must be an "attack"; (ii) the acts of the accused must be part of the attack; (iii) the attack must be directed against any civilian population; (iv) the attack must be widespread or systematic; and (v) the principal offender must know of the wider context in which his acts occur and know that his acts are part of the attack.⁵⁰ 

• "Attack"

"Attack" is defined as "a course of conduct involving commission of acts of violence."⁵¹ Also, "the attack in the context of a crime against humanity is not limited to the use of armed force; it encompasses any mistreatment of the civilian population."⁵² As the Tadic Trial Chamber stated, the expression "directed against any civilian population" ensures that generally, the attack will not consist of one particular act, but of a course of conduct."⁵³ The attack can consist of the aggregation of acts in multiple municipalities.⁵⁴

In Kosovo, Roma were subject to widespread discrimination and harassment prior to and during the conflict. Following the conflict, they were targets of harassment, intimidation, beatings, abductions, rapes and killings. The continuous threat to Roma is demonstrated by the fact that the UNHCR has ruled that Roma in Kosovo are in continued danger, and that repatriation of refugees to Kosovo must be on a strictly voluntary basis.⁵⁵ This element overlaps with the requirement that the attack be "systemic or widespread," and so will be elaborated upon below. 

• Nexus of acts and the attack

The alleged criminal acts of the accused must not be isolated, but rather constitute part of the attack.⁵⁶ The Kunarac Trial Chamber held that this nexus consists of: (i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with (ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part of the attack, or at least could risk being part of the attack.⁵⁷ This knowledge element, coupled with the intent to commit the underlying offense, constitutes the mens rea requirement of crimes against humanity. The knowledge requirement, however, does not entail knowledge of the details of the attack.⁵⁸ As to this subjective element, it appears that constructive knowledge, as is, that the perpetrator should have known of the attack, is not sufficient.⁵⁹ However, as the Tadic Appeals Chamber noted, the motives of the accused for taking part in the attack are irrelevant, and a crime against humanity may be committed for purely personal reasons.⁶⁰

Applying this rule to the reported rapes at Gjakovë/ Đakovica, for example, the Prosecution would have to prove both that the rapes were part of the attack on the Romani population, as well as the requisite mental element, i.e. that the perpetrators knew of the broader attack on the Romani population. In the Kunarac case, this was proven by evidence of the accused's level of authority, access to both official and anecdotal information, and the extent of his participation in the crimes in question.⁶¹

The attack does not have to be limited to one area, and so the Prosecution could argue that the rapes were objectively part of the attack on Roma that occurred throughout Kosovo. Additionally, since there were numerous acts of violence in Gjakovë/ Đakovica, it might be possible to prove that an individual rapist, especially if the perpetrator were a KLA member, knew of the other instances of violence. The Kunarac Court also noted that the accused clearly targeted victims of a particular ethnicity because of their ethnicity, and expressed through physical and verbal aggression, "his view that the rapes against the Muslim women were one of the many ways in which the Serbs could assert their superiority and victory over the Muslims."⁶² This goes to both the objective and subjective elements. The ethnic-based crime objectively constitutes part of the attack, and any ethnic slurs or other ethnically-based statements could go to show that the perpetrator intended his act to be part of a strategy of intimidation of the Romani population. 

• Victims are civilians

 The most recent explication of this element was provided by the Krnogelac court, which stated that "[t]he victims of the acts must be civilians and the attack must be directed against a 'civilian population'. …. The definition of civilian is expansive, including individuals who at one time performed acts of resistance as well as persons hors de combat when the crime is perpetrated."⁶³

In the case of the crimes in question, the Romani targets were members of a civilian population. A defense team may well contest this assertion, lodging the typical justification that Roma collaborated in Serbian atrocities, and are therefore combatants. It would have to be established that the victims in question were not in fact combatants. In the case of a crime being committed against a Romani person proven to have collaborated with Serbian forces, the question remains as to whether forced cooperation makes one a combatant, and if so, whether it would be appropriate to charge the offender with violations of the laws of war. 

• Attack must be widespread or systematic

An essential element of proving a case is establishing that the attacks on Roma in Kosovo were not just isolated incidents, but rather part of a larger pattern. ICTY jurisprudence has made repeatedly clear that the attack must be widespread or systematic, rather than widespread and systematic. Furthermore, "only the attack, not the individual acts of the accused, must be widespread or systematic."⁶⁴

As the Krnogelac Trial Chamber explained, "[t]he adjective 'widespread' connotes the largescale nature of the attack and the number of victims, while 'systematic' refers to the organized nature of the acts of violence and the improbability of their random occurrence."⁶⁵ In determining whether the attack was widespread or systematic, the court may engage in "a relative exercise, in that it depends upon the civilian population which, allegedly, was being attacked."⁶⁶ This is especially important in Kosovo, considering that a large percentage of the Romani population fled for fear of violence.

Again, the UNHCR determination of the ongoing danger facing Roma is indicative of the widespread nature of the attacks, and the number of attacks in a short period of time provides further evidence. Human Rights Watch's reports suggest that the violence against minorities in Roma was systematic, motivated by the desire to remove non-ethnic Albanians from Kosovo.⁶⁷ Human Rights Watch reported that "[i]n numerous cases, direct and systematic efforts were made to force Serbs and Roma to leave their homes. …. Roma have been driven from their homes in Pristina and elsewhere by intimidation and other harassment."⁶⁸ The OSCE also reported that "[i]n Gnjilane/Gjilan, following the arrival of OSCE, it appeared that a systematic effort was made to force Roma out of their homes by arson attacks, looting and the destruction of property."⁶⁹

In their report, Human Rights Watch emphasised that they have "no evidence, however, of a coordinated policy to this end of the political or military leadership of the former KLA;"⁷⁰ however, it is important to note that, in ICTY jurisprudence, there exists no requirement of a plan or policy.⁷¹

Elements of Potential Underlying Offenses

The ICTY lists the following crimes as crimes against humanity when they also satisfy the chapeau elements discussed above: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecution on political, racial and religious grounds; (i) other inhumane acts. Based on the abuses documented, it appears that potential charges might include murder, torture, rape, persecution, and potentially, other inhumane acts. 

• Murder

In ICTY jurisprudence, the constituent elements of murder are 1) unlawful conduct which intended to kill another person or to cause person grievous bodily harm and 2) which was in fact a substantial cause of the death of the victim.⁷² The mens rea requirement is the intent to kill or the intent to inflict serious injury in reckless disregard of human life.⁷³

In the case of the killings described above, a successful prosecution may depend largely on the evidence available to identify the perpetrator.

• Rape

The Kunarac Trial Chamber defined the actus reus of rape in international law as:

i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) where such sexual penetration occurs without the consent of the victim… The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.⁷⁴

The Kunarac court emphasised that there is no requirement that the victim resist.⁷⁵ The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.⁷⁶

The Prosecutor could issue an indictment for rape as a crime against humanity in both of the cases documented above.⁷⁷ Considering the multiple attacks in Đakovica/Đakova, it might be easier to prove the mens rea of crime against humanity, i.e. that the perpetrator knew of the attack. The fact that the women in Vitina were told by the alleged KLA members to "go and not to come back ever" would provide proof of the systemic nature of the attack.

• Torture

The Kunarac Appeals Chamber confirmed the Trial Chambers holding that torture, under international law, must contain the following three elements:
i) the infliction, by act or omission, of severe pain or suffering, whether physical or mental;
ii) ii) this act or omission must be intentional;
iii) iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.⁷⁸

In regards to the abuses listed above, the Prosecutor may be able to charge a member or members of the KLA in Pejë/Pec. with torture in connection to both the killing of Halil Mizija in Pejë/Pec. and the additional instances of torture reported by the HLC. In the case of Mizija, the evidence seemed to show that the victim had been dragged by a car and had been stabbed prior to his death, thus constituting torture. Depending on the circumstances, rape and other forms of sexual assault may also fall within the definition of torture.⁷⁹ The Kunarac Appeals Chamber explained that rape necessarily implies severe pain and suffering. It also stated that the only the act of rape need be intentional, i.e. there is no requirement that the accused intended to cause severe pain and suffering. Furthermore, in the instances of rape discussed above, as in Kunarac, the rapes were committed with the intent to intimidate and discriminate, thus satisfying the third element.⁸⁰ As such, the Prosecutor may also be able to indict for torture the perpetrators of the rapes discussed above.

• Persecution

The Kupreskic Trial Chamber defined persecution as having the following elements:
i) those elements required for all crimes against humanity under the Statute;
ii) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 5;
iii) discriminatory grounds.⁸¹

In elaborating on the meaning of (ii), that is, in seeking to explain which rights may form the basis of a persecution charge, the Court explained that persecution can include such acts as those included in Article 5, as well as other discriminatory acts, involving attacks on political, social, and economic rights.⁸² The Court declined to enumerate the applicable rights, but instead defined persecution "as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5."⁸³ The court also noted that the alleged acts "must not be considered in isolation but examined in their context and weighed for their cumulative effect."⁸⁴ In Kupreskic, the Court found that the comprehensive destruction of Bosnian Muslim homes and property constituted persecution.⁸⁵

In the case of the attacks against Roma in Kosovo, the systemic destruction of property could provide grounds for an indictment of persecution.⁸⁶ In Kupreskic, the Court found that "[t]he purpose of the attack was to destroy as many Muslim houses as possible, to kill all the men of military age, and thereby prompt all the others to leave the village and move elsewhere."⁸⁷ Similarly, the destruction of Romani homes throughout Kosovo was intended to intimidate and force the Roma population to leave the vicinity.

As they did in Kupreskic, a defense might argue that "a broad interpretation of persecution would be a violation of the principle of legality (nullum crimen sine lege). In that case, the defense argued that "[p]ersecution should be narrowly construed, so as to give guidance as to what acts constitute persecution and to prevent possible abuses of discretion by the Prosecution."⁸⁸ As discussed above, the Chamber rejected this argument and convicted on the persecution charge, and so it seems that a persecution charge would be feasible.

Conclusion Regarding the Legal Merits

It appears that the legal merits of a crimes against humanity charge for crimes against Roma in Kosovo following the NATO bombing would be strong. The ICTY could find that the jurisdictional and chapeau elements are satisfied. The most controversial and thus important requirement to establish is likely to be the chapeau element that the attack be widespread or systematic. Additionally, the elements of several of the constituent crimes would be satisfied in light of the crimes documented by numerous human rights groups.

Pragmatic Issues: What are the potential political issues that would affect whether the Prosecutor of the ICTY would support such a case?

There are several political factors that could affect whether the ICTY would undertake an investigation of crimes against Roma or prosecution of persons who have committed such crimes.

Evidentiary Problems

The feasibility of bringing a successful case may depend in large part on the state of the available evidence, including the files currently possessed by and obtainable by organizations such as ERRC, Amnesty International, the OSCE, Human Rights Watch, the Humanitarian Law Center, in addition to local organizations. If the OTP determines that additional investigation is required, finding uncorrupted evidence in the field might prove to be difficult.

ICTY "Exit Strategy"

United Nations Security Council Resolution 1503 called for the ICTY to establish an exit strategy. The Prosecutor was instructed to complete all remaining investigations by 2004, and set the goal of completing all trials by the end of 2008 and all appeals by the end of 2010.⁸⁹

The Chief Prosecutor decided to focus remaining investigations solely on the most senior perpetrators. As such, she announced to the Security Council on October 10, 1993, that her Office plans on completing 13 investigations involving "individuals who held the highest possible levels of responsibility, for very serious crimes committed in the former Yugoslavia, and involving most of the parties to the conflicts spanning from 1991 to 2001."⁹⁰ Due to confidentiality concerns, it is impossible to find out if any of these 13 investigations involve crimes against the Roma in Kosovo. One noteworthy point is that Del Ponte specifically said that the investigations cover crimes that occurred up until 2001. Given her assertion of jurisdiction over Kosovo following July 12, 1999, and her previous statements,⁹¹ there is some possibility that one of these ongoing investigations may cover crimes against the Roma in Kosovo. Del Ponte indicated that not all of these investigations will necessarily lead to indictments.⁹²

The OTP suspended an additional 17 investigations that were not considered to be "top priority." Those cases will most likely be referred to domestic courts for further investigation and prosecution. In her statement, Del Ponte listed the various national courts to which those investigations would be sent, and none of the cases were to be referred to Kosovo, those suggesting that none of these 17 investigations cover crimes against Roma in that territory.⁹³ Despite the formal exit strategy, it might still be possible to convince the OTP of the importance of investigating and prosecuting individuals for the crimes described herein. Additionally, if a relevant investigation is currently underway, NGOs can work to make sure that it is followed through, and that if the ICTY decides to refer it to the Kosovo courts, it is transferred in an effective and responsible way as to ensure completion.

Witness Protection Fears

As is the case for all prosecutions at the ICTY, witness' fears of reprisal attacks may hamper successful prosecutions. There have been reports of alleged reprisal attacks in connection with testimony given against former KLA members in Kosovo courts, and the same fears that keep many from testifying in those local courts may keep witnesses away from the ICTY.⁹⁴

At the same time, the ICTY seems far better equipped to deal with witness protection issues than the Kosovo courts. The ICTY has taken on an obligation of providing protection for victims and witnesses.⁹⁵ The ICTY Rules of Evidence and Procedure create a Victims and Witnesses Unit, which is charged with: "(i) recommend[ing] protective measures for victims and witnesses in accordance with Article 22 of the Statute; and (ii) provid[ing] counseling and support for them, in particular in cases of rape and sexual assault."⁹⁶ Rule 75 of the Rules of Procedure and Evidence provides that a Judge or Chamber may "order appropriate measures for the privacy and protection of victims and witnesses," including: 

• expunging names and identifying information from the Tribunal's public records;
• non-disclosure to the public of any records identifying the victim;
• giving of testimony through image- or voice- altering devices or closed circuit television; and
• assignment of a pseudonym; [or]
• closed sessions…; [or]
• appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.⁹⁷

Either tribunal personnel or NGO representatives would have to ensure that potential witnesses are aware of and seek the available protections. Otherwise, witness protection fears may seriously impeded a successful prosecution.

Conclusion

The Office of the Prosecutor could find sufficient evidence to indict former members of the Kosovo Liberation Army for crimes against humanity based on violence committed against Roma in summer 1999. Based on press statements and reports, it appears that the OTP has already launched an investigation into crimes against Roma in Kosovo, but it is unclear as to whether this investigation is ongoing, and whether it will result in an indictment. Considering confidentiality concerns, it would be very difficult for an organisation such as the ERRC to determine whether an investigation is ongoing, or whether the OTP initiated an investigation and later dropped it. Based on the ICTY's exit strategy, it does not seem that the OTP would be willing or perhaps even able to initiate any new investigations.

Regarding future action, the ERRC may want to try to determine if an investigation is ongoing at the ICTY, and if the ERRC may have additional evidence or information that would assist the OTP. Additionally, the ERRC, through its contacts in Kosovo, might be able to encourage individuals to cooperate with investigators.

It would be useful to monitor the current state of prosecutions in Kosovo, and to push for a case to be brought before one of the special panels of international judges. The ERRC might be able to lobby for increased witness and victim protection provisions, and better implementation of existing provisions within the Kosovo judiciary.

The ERRC may also want to consider additional avenues within the international criminal justice system, including the International Criminal Court (ICC). The ICC has jurisdiction over war crimes, crimes against humanity, and genocide occurring after July 1, 2002, the date the ICC statute entered into force.⁹⁸

End note by Dianne Post, ERRC Legal Director

A further forum in which to pursue crimes committed against the Roma in Kosovo is before the International Criminal Court ("ICC"). Many of the alleged crimes took place after the U.N. took over operation of Kosovo. Although it is admittedly a legally difficult argument, U.N. officials may be brought before the ICC pursuant to Article 27 of the Rome Statute of the ICC and Article 19 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations ("Negotiated Agreement"). Article 27 of the ICC statute requires that immunities do not apply and Article 19 of the Negotiated Agreement requires that the U.N. undertake all measures necessary to cooperate with the ICC, including waiving any privileges and immunities.

An action against U.N. officials in the case of the Roma may come under the rubric of "crimes against humanity," in accordance with Article 7 of the ICC Treaty. Section 1(h) requires the ICC to adjudicate cases involving "persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender."⁹⁹ In the case of the Roma, there is evidence to indicate that, while other groups in Kosovo have been removed from areas of suspected health emergencies, the Roma have not.

For those actions that took place before the U.N. took over management of Kosovo, Kosovo's current legal limbo makes it impossible to sue either Serbia or Albania. When status is determined, actions could be requested against the respective countries.

Another possible remedy for crimes against humanity could lie in the International Court of Justice in connection with pending cases. Bosnia & Herzegovina filed an "Application of the Convention on the Prevention and Punishment of the Crime of Genocide" against Serbia and Montenegro to the International Court of Justice on 20 March 1993. Croatia filed under the same Convention against the same parties on 2 July 1999. Both cases ask for Serbia and Montenegro to be held accountable under the Convention during the Balkan wars. The hearing on the claim by Bosnia & Herzegovina is set to begin on 27 February 2006. Neither claim mentions Roma but if evidence could be provided that they were specifically targeted, they could seek, through the attorneys for the respective countries, to be included in the actions.

Footnotes:

1. Yael Fuchs is a 2005 graduate of Columbia Law School, and is currently an associate at Paul, Weiss, Rifkind, Wharton & Garrison in New York. This article reflects research she completed as a legal intern for the Budapest-based Public Interest Law Initiative in the Summer of 2003 updated in Autumn 2005.
2. The Nuremberg Charter abrogated the act of state doctrine, which had insulated government officials from criminal prosecution in foreign or international courts; it also effectively abolished the defense of superior orders, and rejected domestic law as a defense to an international crime. These ?Nuremberg principles? were adopted by the United Nations General Assembly in 1946, and are now generally considered part of considered part of customary international law. See Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1546, 82 U.N.T.S. 284. See also U.N. GAOR, 1st Sess., pt. 2, at 188, U. N. Doc A/61/Add.1 (1946).
3. The number of Roma deaths in the Holocaust has been estimated at between 220,000 and 500,000. Sinti and Roma: Victims of the Nazi Era, United States Holocaust Memorial Museum.
4. International Military Tribunal Indictment No. 1, in 1 Nazi Conspiracy and Aggression, Office of United States Chief Counsel for Prosecution of Axis Criminality, Washington, DC: Government Printing Office (1946) at 32 (charging that the defendants ?conducted deliberate and systematic genocide ? in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles and Gypsies and others.?) Available at: http://www.yale.edu/lawweb/avalon/imt/proc/count3.htm.
5. See, for example, Opening Statement for the Prosecution by Brigadier General Telford Taylor, 9 December 1946, from Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10. Nuremberg, October 1946-April 1949. Washington D.C.: U.S. G.P.O, 1949-1953, at http://www.ushmm.org/research/doctors/telford.htm. This was the opening statement in United States v. Karl Brandt et. al, "The Medical Case".
6. Nazi Conspiracy and Aggression, Opinion and Judgment, supra note 4.
7. Ian Hancock Genocide of the Roma in the Holocaust. Excerpted from Encyclopedia of Genocide (1997) by Israel W. Charny (ed.), reprinted by the Patrin Web Journal, at http://www.geocities.com/Paris/5121/genocide.htm. See also Christian Pross, Paying for the Past: The Struggle over Reparations for Surviving Victims of the Nazi Terror 52-55 (1998) (describing the political maneuverings around German reparations and the exclusion of many groups for political, social, administrative reasons).
8. This article uses the term ?Roma? to refer collectively to a number of groups in Kosovo, including Ashkali, Egyptians, Gorani and others considered ?Gypsies? by the ethnic Albanian majority in Kosovo. See Emily Shaw, Unprotected: Attacks Continue against Kosovo?s Romani Minorities, ERRC Field Report, 3 Nov 2000, at http://www.errc.org/rr_nr3_2000/field_report.shtml.
9. Case IT-04-84-I, Prosecutor v. Haradinaj, Balaj, Brahimaj (indictment) 24 February 2005, at: http://www.un.org/icty/indictment/english/har-ii050224e.htm.
10. Haradinaj Indictment, par 64.
11. UN Security Council Resolution 827, adopted 25 May 1993. See also http://www.un.org/icty/glance/index.htm.
12. Statute of the International Tribunal for the Former Yugoslavia, (adopted 25 May 1993 by Resolution 827) (as amended 13 May 1998 by Resolution 1166, 30 November 2000 by Resolution 1329, 17 May 2002 by Resolution 1411) [hereinafter ICTY Statute].
13.  Press Release, Statement by the Prosecutor, Carla Del Ponte, March 21, 2001. Available at: http://www.un.org/icty/latest/index.htm. Since that time, the OTP has issued one indictment against Kosovar Albanians for crimes against humanity and violations of the laws of war involving violence against Serb and Albanian civilians in Lapusknik/Llapushnik Prison Camp of the KLA in the municipality of Glogovac.Gllogoc. This indictment covers crimes committed during from May to July 1998, and does not mention minorities as victims. Thus it seems that this indictment is not a result of the investigation announced on March 21, 2001, and it likely that an additional investigation into crimes committed from June 1999 is ongoing. Case IT-03-66-I, Prosecutor v. Limaj, Blala, Musliu, Murtezi, (indictment) 24 January 2003, amended 7 March 2003 at: http://www.un.org/icty/indictment/english/lim-ai030307e.htm.
14.  Address to the Security Council by Carla Del Ponte, Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, to the UN Security Council, The Hague, JL/P.I.S./542-e., 24 November 2000.
15. Ibid.
16. Statement by Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, on the Investigation and Prosecution of Crimes Committed in Kosovo, September 29, 1999.
17. ICTY Statute, Article 5.
18. See Quarterly Journal of the European Roma Rights Centre. Roma in the Kosovo Conflict 2 (1999) [hereinafter ERRC, Kosovo Report], available at: http://www.errc.org/cikk.php?cikk=800.
19. The population of Roma in Kosovo was estimated at between 6,000 and 7,000 in 1999, compared to 1991 Yugoslav census figures of 30,000 to 40,000. Carlotta Gall, ?Kosovo War Over, Gypsies Are Left Amid Vengeful Neighbors?, New York Times, July 11, 1999. See also Human Rights Watch, Abuses Against Serbs and Roma in the New Kosovo 6-7 (August 1999), available at: http://www.hrw.org/reports/1999/kosov2/ [hereinafter HRW, New Kosovo]. Other sources claim that approximately 80,000 of a reported 150,000 of Kosovo Roma have fled. See Marcus Gee, ?Kosovo Gypsies Live in Fear of Albanian Revenge?, The Globe and Mail, March 23, 2000, at: http://www.ess.uwe.ac.uk/Kosovo/Kosovo-Closure16.htm.
20. HRW, New Kosovo, at 5; see also John McIntyre, ?Kosovo Gypsies Under Threat,? BBC News, 5 July 1999, at http://news.bbc.co.uk/l/hi/world/europe/386755.stm. Humanitarian Law Center, Kosovo Roma: Targets of Abuse and Violence (1 December 1999), available at: HLC, Kosovo Roma [hereinafter HLC, Kosovo Roma].
21. HLC, Kosovo Roma. The Haradinaj indictment makes repeated references to ?real or perceived forms of collaboration? between Serbs and Roma civilians.
22. See Amnesty International, Prisoners in Our Own Homes: Amnesty International?s Concerns for the Human Rights of Minorities in Kosovo/Kosova. EUR 70/010/2003 (29 April 2003) [hereinafter, Amnesty, Prisoners]. (?Their fear is reinforced by continuing impunity for both those who perpetrated violations and abuses of international human rights and humanitarian law during the period of armed conflict, and those responsible for the abuses which have continued since the end of the war.?).
23. See e.g. ERRC, Kosovo Report, supra note 18; Organization for Security and Cooperation in Europe, ?As Seen, As Told?, 2nd part, Report by OSCE Mission in Kosovo/Mission for Democratic Institutions and Human Rights, (December 6, 1999) [hereinafter OSCE, As Seen]; United Nations High Commissioner for Refugees and the Organisation for Security and Cooperation in Europe, Preliminary Assessment of the Situation of Ethnic Minorities in Kosovo, July 1999, available at: Refugees and the OSCE; HRW, New Kosovo, supra note 19; Human Rights Watch, Under Orders: War Crimes in Kosovo (2001) [hereinafter HRW, Under Orders]; Amnesty, Prisoners.
24. OSCE/UNHCR, Preliminary Assessment, at 2.
25. HRW, Under Orders, at 14; OSCE, ?As Seen, As Told?, Part 2, at
26. HLC, Kosovo Roma, at 7.
27. HRW, New Kosovo, at 10 (internal citations omitted).
28. HLC, Kosovo Roma, at 8.
29. HRW, New Kosovo, at 13.
30. Ibid, at 11. The incident was also reported by CBC, Reuters, Daily Telegraph, and the Washington Post.
31. Ibid., at 13.
32. European Roma Rights Centre, ?Press Statement: The Current Situation of Roma in Kosovo,? July 9, 1999, 1.
33. HLC, Kosovo Roma, at 9.
34. OSCE, ?As Seen, As Told?, Part 2, at: As Seen, As Told.
35. HRW, New Kosovo, at 16.
36. Statute of the International Tribunal, Adopted 25 May 1993 by Resolution 827, as Amended 17 May 2002 by Resolution 1411, Article 1, at: http://www.un.org/icty/legaldoc/index.htm [hereinafter ICTY Statute].
37. Ibid. Article 8.
38. Ibid. Article 5.
39. Prosecutor v. Kunarac, et al. Case, IT-96-23 & IT-96-23/1-A (Judgment of the Appeals Chamber), (12 June 2002), par. 85.
40. ICTY Statute, Article 5. See also Prosecutor v. Kunarac, supra note 35, at par. 83-85 (citations omitted) (ruling that the acts need not be closely related to the armed conflict: ?the requirement contained in Article 5 of the Statute is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict.?) This requirement is unique to the ICTY. Customary international law does not impose the armed conflict requirement, and the Rome Statute of the ICC also does not require any relationship between crimes against humanity and armed conflict. In the Tadic case, the ICTY noted that ?customary international law may not require a connection between crimes against humanity and any conflict at all.? See Tadic, Case No. IT-94-1-AR72, at par. 141. Tadic, No. IT-94-1-A, P 251 (Int?l Crim. Trib. Former Yugo., App. Chamber, Jul. 15, 1999).
41. Tadic, No. IT-94-1-A, P 251 (Int?l Crim. Trib. Former Yugo., App. Chamber, Jul. 15, 1999). See also Foca Trial Judgement, where the Trial Chamber states that ?[t]he requirement that there exists an armed conflict does not necessitate any substantive relationship between the acts of the accused and the armed conflict.?
42. See Sonja Boelaert-Suominen, The International Criminal Tribunal for the former Yugoslavia and the Kosovo Conflict, International Review of the Red Cross, No. 837, 217. (March 31, 2000) (stating that ??there may be some uncertainty as to the precise date of the end of the ?armed conflict? in Kosovo. Yet?it would be impossible to prejudge the temporal limits to the Tribunal?s jurisdiction. Its mandate may include crimes committed against individuals or populations after the formal end of hostilities in Kosovo, and even after the armed conflict, as a matter of law, ceased to exist.?)
43. Tadic, No. IT-94-1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Par. 70.
44. Both the Milosovic et. al. and the Pavkovic et. al. indictments for crimes in Kosovo cover the period ?beginning on or about 1 January 1999 and continuing until 20 June 1999.? Prosecutor v. Milosovic et al., No. IT-99-37-PT (Second Amended Indictment) 29 October 2001, Prosecutor v. Pavkovic et al., No. IT-03-70 (Initial Indictment) 2 October 2003.
45. For a more detailed chronology, see HRW, Under Orders, at 453-54.
46. Press Release, Office of the Prosecutor, 21 March 2001, FH/P.I.S./578e. In a prior press release, the OTP declared that ?the ICTY has jurisdiction over all serious violations of international humanitarian law committed in the territory of the former Yugoslavia, including Kosovo, since 1991. This jurisdiction includes offences committed before and after the formal end of the NATO bombing campaign on 20 June 1999.? Press Release, Office of the Prosecutor, 24 July 1999, JL/P.I.S./422-e.
47. Press Release, Address by Ms. Carla Del Ponte, Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations Security Council. FH/P.I.S./791-e (October 10, 2003), available at: http://www.un.org/icty/latest/index.htm. [hereinafter Del Ponte 10/10/03].
48. Address to the Security Council by Carla Del Ponte, Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, to the UN Security Council, The Hague, JL/P.I.S./542-e., 24 November 2000. See also HRW, Under Orders, supra note 23, at 489, stating that the ?withdrawal of Serbian and Yugoslav forces from Kosovo and the cessation of the NATO bombing campaign on June 12, 1999, ended the state of armed conflict in Kosovo.?
49. Haradinaj, indictment at par. 14.
50. Kunarac, Appeals Judgment at par. 85.
51. Prosecutor v. Krnogelac, Case IT-97-25, Judgment 15 March 2002 at par 54, citing Kunarac Trial Judgment, par 415.
52. Kunarac, Appeals Judgment, at par 86.
53. Prosecutor v Tadic, Case IT-94-1-T, Decision on the Form of the Indictment, 14 Nov 1995, par 11.
54. Kunarac, Trial Judgment, at par. 570 (finding that ?there was an extensive attack by the Serb forces targeting the Muslim civilian population in the area ?. The attack encompassed the municipalities of Foca, Gacko and Kalinovik.?)
55. UNHCR Position on the Continued Protection Needs of Individuals in Kosovo, January 2003. See also Council of Europe, Forced returns of Roma from the former Federal Republic of Yugoslavia, including Kosovo, to Serbia and Montenegro from Council of Europe member states, 22 October 2003 (noting that the security of Roma in Kosovo cannot be guaranteed), also on file with author.
56. Krnogelac. at par 55.
57. Kunarac, Trial Chamber Judgment, at par. 418, 434 (citations omitted).