The International Criminal Tribunal for the former Yugoslavia was founded in May 1993 to prosecute war crimes committed in former Yugoslavia beginning in 1991. As of September 1998, eighty individuals had been publicly indicted in connection with crimes committed in the wars in Croatia and Bosnia, while others have been the object of sealed indictments. Twenty-eight indictees were in custody, and two had been convicted of crimes, as of this writing.

Article 1 of the Tribunal’s statute states that the Tribunal has the power to prosecute individuals who have committed violations of international humanitarian law on the “territory of the former Yugoslavia since 1991.” Article 8 further specifies that the Tribunal's temporal jurisdiction “shall extend to a period beginning on 1 January 1991.” There is no end point to this jurisdiction. Based on this mandate, violations of international humanitarian law committed in Kosovo may be investigated and prosecuted by the Tribunal.

In a March 10, 1998, press release, the prosecutor’s office at the Tribunal stated publicly that the Tribunal is empowered to “prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. This jurisdiction is ongoing and covers the recent violence in Kosovo.”204 On July 7, 1998, chief prosecutor of the Tribunal, Justice Louise Arbour, wrote a letter to the Contact Group in which she reaffirmed the Tribunal’s mandate and intentions in Kosovo:

The prosecutor believes that the nature and scale of the fighting indicate that an “armed conflict”, within the meaning of international law, exists in Kosovo. As a consequence, she intends to bring charges for crimes against humanity or war crimes, if evidence of such crimes is established.205

The Tribunal’s jurisdiction includes crimes committed by armed insurgencies. In her letter to the Contact Group, Justice Arbour stressed that “international law imposes obligations on combatants involved in an armed conflict to observe the laws of war, and any violations of such laws can be punished.”

Criminal responsibility also extends to those in leadership positions if those people had reason to know that a subordinate was about to commit criminal acts, or had done so and the superior failed to take the necessary and reasonable measure to prevent such acts or to punish the perpetrators.

In early July, the Tribunal sent its first delegation to the Federal Republic of Yugoslavia regarding the Kosovo conflict. As of September, plans were underway to begin investigations, including by sending a forensics team to conduct investigations in the region.

On March 13, 1998, the U.S. government announced that it was providing $1.075 million to support the Tribunal’s investigations in Kosovo. Since then, a number of top politicians and political bodies have publicly supported the Tribunal’s work on Kosovo. On August 31, 1998, U.S. ambassador-at-large for war crimes issues, David Scheffer, announced that he was not able to visit Belgrade and Kosovo because he had been denied a Yugoslav visa. He told a press conference in Zagreb, Croatia:

The United States is cooperating fully with the Tribunal as it investigates the conflict in Kosovo. We are ensuring that relevant information is provided to the Tribunal in a timely manner so that its investigations can proceed efficiently. We urge other governments to cooperate with and provide information to the War Crimes Tribunal regarding the conflict in Kosovo... .

We strongly support the War Crimes Tribunal’s intentions to fully investigate the actions in Kosovo. We trust that in the coming weeks Tribunal investigators, including forensic experts, will be given access to Kosovo and that the Tribunal will sustain a regular presence in Kosovo until the necessary investigations are completed. The Tribunal’s presence on the ground in Kosovo can help deter further criminal actions as well as permit thorough examination of alleged mass grave sites and other targets of investigation. Transparency also requires secure access by non-governmental organization which can assist in this process under the guidance of the War Crimes Tribunal.206