Of the two charges, violation of the laws and customs of war is the older and more traditional. It attempts to reconcile human suffering with the need of an army to defeat its enemy. Although constraints on wartime behavior date back to ancient Hindu and Greek law, the first European wasn’t tried in a civilian court until the late fifteenth century, when an Austrian nobleman named Peter von Hagenbach was sentenced to death for atrocities committed under his command. A hundred and fifty years later a Dutch lawyer named Hugo Grotius wrote The Law of War and Peace, which is considered the foundation of modern humanitarian law. “Throughout the Christian world…I observed a lack of restraint in relation to war, such as even barbarous races would be ashamed of,” Grotius wrote. “[A] remedy must be found…that men may not believe either that nothing is allowable, or that everything is.”
Modern laws and customs of war are direct descendants of Grotius’s work. In essence, these laws acknowledge that death and suffering are inevitable in armed conflict, but that deliberately inflicting unnecessary suffering is a criminal act for which individuals can be held accountable. If you shell a military base and happen to kill civilians, you have not committed a war crime; if you deliberately target cities and towns, you have. Killing prisoners, civilians, or hostages is a war crime, as are enslavement of civilians, deportation, plunder, wanton destruction, and “extensive destruction not justified by military necessity.”
What is and isn’t justified by military necessity is, naturally, open to interpretation. One of the key concepts, though, is the law of proportionality. A military attack that results in civilian casualties—“collateral damage”—is acceptable as long as the military benefits outweigh the price that is paid by humanity. A similar concept is applied to weapons. No matter how many people you kill, using a machine gun in battle is not a war crime because it does not cause unnecessary suffering; it simply performs its job horrifyingly well. Exploding bullets, on the other hand, which were banned in the St. Petersburg Declaration of 1868, mutilate and maim foot soldiers without conferring any additional advantage to the other side. A wounded soldier is usually put out of commission when he is hit. There is no reason to maximize his suffering by using an exploding bullet.
Despite the graceful logic of these principles, warfare remains a chaotic business that will always resist governments’ efforts to legislate it. Still, it is all too clear that Serb forces in Kosovo violated just about every law in the book. Furthermore, the violations were carried out on such a massive scale that they also qualified as crimes against humanity—that is, they represented a widespread and systematic campaign against a particular population. Massacring noncombatants—as countless armies have done, including our own—is simply a war crime; trying to drive an entire group of people from your country is a crime against humanity. One could reasonably argue that the Turkish pogrom against the Armenians during World War I qualifies as a crime against humanity, as does the United States’ ethnic cleansing of Native Americans.
The novel thing about the 1949 humanitarian law was that it protected the citizens of an offending state as well as those of foreign states, and it applied to peacetime as well as war. Until then governments could do pretty much what they wanted with their own citizens; the most that another nation could do was express its “concern” over the situation. After 1949, in theory a government’s conduct at home would be subject to the same standards as its conduct abroad, and human rights abuses could no longer be dismissed as simply an “internal matter.” National sovereignty, in other words, would never again protect a government from the bite of the law.
The Hague’s press spokesman in Kosovo after NATO’s takeover was a young Englishman named Jim Landale. Dressed in jeans and a fleece jacket, with a backpack over his shoulder, he looked more than anything like a college student striding around the streets of Priština. After returning from Meja, I found him in the new UN headquarters, a concrete office building behind the huge, ghastly Grand Hotel at the center of town. A nearby apartment block was smoking slowly from an arson fire, and a lot of young ethnic Albanians were hanging out in front of the hotel, looking for work with the foreign journalists. Landale and I crossed the street to one of the cafés that had just opened and ordered the last two beers that it had in stock.
The tribunal’s full name is the International Criminal Tribunal for the Former Yugoslavia—or ICTY, as it’s commonly known. It was created in May 1993 to prosecute Bosnian war crimes, and it was later joined by another tribunal for Rwanda. The ICTY has successfully prosecuted several cases from the Bosnian War, mostly against Serbs, despite being hampered by evidence that was in some cases several years old. But it has never before investigated war crimes that were committed so recently, and it has never indicted a head of state during an ongoing armed conflict. Landale, between interruptions by cell phone, explained to me the ICTY strategy in Kosovo.
“This is our biggest undertaking by far,” he said. “We’re still trying to assess and prioritize all the sites. The murder of civilians is a war crime…what we’d try to assess would be: How do the various factors relate to our investigations for indictments against certain individuals?…Most villages have some sort of crime scene; every one’s got their massacre site just around the corner. To be realistic, we are not going to be able to visit every site in Kosovo.”
The criteria for prioritizing sites are unflinchingly pragmatic. One would think that Meja, where several hundred men were machine-gunned in a field, would make a better investigation site than, say, a house where just one family was wiped out. Or that the murder of twenty women and children in a basement would be easier to prosecute than the summary execution of twenty KLA soldiers after a battle. Not so; for the most part, sites are chosen simply for the quality of corroborating evidence that can be gathered. During the NATO bombing campaign, investigators in the refugee camps systematically recorded hundreds of eyewitness accounts of massacres; it was information from those interviews that led to the original indictment handed down in May. A small site with excellent eyewitness accounts, in the eyes of a war crimes prosecutor, is far more valuable than a large site with none.
Similarly, a massacre in an area where a certain military or paramilitary group—such as Arkan’s Tigers, who allegedly committed numerous massacres around Gjakovë—was known to have been working is higher priority than a massacre site where the killers are unknown. And a site that presents any sort of access problem is quickly superseded by one that can be worked on immediately. Land mines are considered an access problem, as are remote areas and sites with too many bodies. The amount of labor required to dig up even one body is considerable, so a mass grave like the one in Meja requires backhoes and bulldozers. The first crime teams flown into Kosovo didn’t think to bring any.
“One of our hopes is that the tribunal will work as a deterrent,” said Landale when I asked him—given the chance that Milošević will never be brought to trial—what the point of all this is. “And it will also help to relieve a collective sense of guilt. Not all people on one side are guilty—just certain individuals. The investigations should make that clear.”
There are more than a dozen crime teams in Kosovo, totaling some three hundred people. Scotland Yard, the Royal Canadian Mounted Police, and the FBI all have sent teams, as have police agencies from Germany, Denmark, France, Holland, and Switzerland. Their job is to photograph and diagram massacre sites named in the ICTY indictments and to gather such evidence as shell casings, bullets, bloody clothing, and anything else that might identify the killers and the method of death. Then the teams attempt to identify human remains—at least to the extent of knowing the age and sex—and conduct autopsies to determine the cause of death. The large mass graves with hundreds of bodies will be investigated months later, after the delicate surface evidence all has been gathered. Buried corpses change very slowly. Most of the evidence they contain is still there a year later.