With the immense challenges facing the international community in its effort to secure and rebuild Kosovo, one critical outstanding matter that has received very little attention is the ongoing detention in Serbian prisons of several thousand Kosovar Albanians. Arrested by Serbian forces in the course of the Kosovo conflict, these prisoners were hastily transferred to Serbian jails and penitentiaries in the wake of the Kumanovo military-technical agreement, which ended the NATO air campaign and established a timetable for the withdrawal from Kosovo of all Serb forces.
The Kumanovo agreement did not, however, address the issue of the prisoners' release, and this omission would seem to have deprived the international community of any real leverage on the matter.1 Belgrade appears to have little interest in releasing these prisoners, who have effectively become hostages in Yugoslav President Slobodan Milosevic's efforts to keep Kosovo destabilised, jeopardise the success of the international mission there and demonstrate that Kosovo remains under his rule.
While the international community does not itself have the capacity to free these prisoners, it must find ways to exert maximum pressure on Milosevic to order their release. Thousands of Albanian lives are at stake: reports from recently released prisoners and from family members make clear that the prisoners' conditions in the Serbian facilities are appalling, their health has been severely compromised, they are routinely subjected to mistreatment and torture, and their trials are travesties. In addition, many prisoners' families have been effectively ransomed by Serbian lawyers, who have promised to secure the release of prisoners for sums ranging from 10,000 to 50,000 DM. The emotional and material strain on prisoners' families contributes to Kosovo's continuing unrest and to the immense frustration Kosovars feel toward the international agencies which, in part out of a dearth of options to pursue, have not made a top priority of locating the prisoners or advocating on their behalf.2
In this paper ICG attempts to clarify the somewhat complex situation with regard to the Albanian prisoners, to make available first-hand information about Serbian prison conditions gathered in interviews with ex-prisoners and prisoners' family members, to elucidate the pertinent legal issues, and to propose a series of measures that governments and non-government organisations might take toward identifying the prisoners and securing their release.
These measures include co-ordinated and persistent advocacy in Belgrade; a United Nations Security Council resolution calling for the prisoners' release in accordance with international law; military-to-military contact to gain access to those prisoners who, as combatants, must be treated as prisoners of war whose immediate release is called for under the Third Geneva Conventiona; possible investigation leading to new indictments by the International Criminal Tribunal for the former Yugoslavia of those responsible, in the context of the prisoners, for continuing violations of the law of the customs of war and international humanitarian law; efforts to monitor all trials of Albanian prisoners in Serbian courts; secure transportation in and out of Serbia; and legal assistance to prisoners' families.
On 18 June 1999, eight days after Yugoslav and NATO military officials signed the Kumanovo agreement ending the Kosovo conflict, the Serbian Ministry of Justice announced that it had moved prison inmates from Kosovo to Serbia "for their own safety" and promised to inform prisoners' families of their relatives' whereabouts.3 Seven months later, most of those prisoners are still in Serbian custody (although many have yet to be charged), the Serbian justice ministry has failed to release the names and locations of at least several hundred prisoners, and the Serbian justice ministry has sped up the rate at which prisoners are being tried and sentenced on charges of terrorism.4
Belgrade has consistently maintained that because the Kosovo conflict was an internal armed struggle between the state and a secessionist guerrilla movement, Serbian forces were appropriately upholding their constitutional mandate when, in their attempt to quash the rebellion, they arrested, detained, or interrogated suspected "terrorists." Moreover, the regime has repeatedly justified its arrests on the grounds that its own troops have been abducted and detained by so-called terrorists belonging to the Kosovo Liberation Army (KLA). 5
Certainly it has been to Milosevic's advantage to remain intransigent both on Belgrade's version of events and on this divisive issue, which can only have a corrosive effect on both international and local peace-building efforts in Kosovo.6 The international community, having left the issue off the table when negotiating an end to the Kosovo war, has been at a loss as to how to secure the release of these thousands of mostly male breadwinners, whose absence from Kosovo at this critical moment is inhibiting progress toward stability, reconstruction, and Kosovars' coming to terms with all that has been done.
On 16 July the United Nations Mission in Kosovo (UNMIK) Special Representative to the Secretary-General (SRSG) Bernard Kouchner announced the formation of an UNMIK commission on prisoners and missing persons. But that commission, like all the individual international agencies that participate in it, has made scant progress so far, but has served instead to raise expectations among Kosovars that are unlikely to be fulfilled. The Serbian government has continued to release a trickle of prisoners in what appears to be an unfathomable pattern - one here, 166 there - but the convictions and long sentences continue apace, as, once again, Kosovo's stability is threatened by the Belgrade regime.
The avenues for international advocacy and influence on this issue are admittedly few. Nevertheless, the failure of the international community to mount a concerted effort on these prisoners' behalf has prolonged their agony and that of their families, thereby damaging Western credibility in the eyes of many Kosovar Albanians and harming the prospects for a successful peace implementation.
In fact, international humanitarian law anticipated just such intractable circumstances with the protections offered prisoners in post-conflict settings under the Geneva Conventions of 1949 and their Protocols, and the international community is well within its legal authority to press in every way possible for the prisoners' immediate release. In this paper ICG attempts to point the way forward toward resolving this urgent and difficult matter.
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