Command
Responsibility [top]
Establishing command responsibility will be key to the prosecution’s
case against Slobodan Milosevic and his four co-defendants when
and if they are brought before the International Criminal Tribunal
for the former Yugoslavia to face charges of crimes against
humanity and war crimes. Article 86 of Additional Protocol I
to the 1949 Geneva Conventions states: “the fact that a
breach of the Conventions or of this Protocol was committed
by a subordinate does not absolve his superiors from penal disciplinary
responsibility as the case may be if they knew, or had information
which would have enabled them to conclude in the circumstances
at the time that he was committing or was going to commit such
a breach and if they did not take all feasible measures within
their powers to prevent or repress the breach.”
Command responsibility extends to officers in the chain of command
who know or have reason to know that their subordinates are
committing war crimes and who fail to act to stop them. Under
the 1998 statue of the new International Criminal Court, military
commanders are liable for crimes that they “knew or should
have known” about under circumstances at the time, and
only for those crimes committed by forces under their “effective
command and control.” Military commanders are liable if
they “failed to take all necessary and reasonable measures”
to prevent and repress such crimes that subordinates “were
committing or about to commit” or if they failed to report
such crimes to proper authorities.
Crimes against Humanity [top]
Next to genocide, crimes against humanity—a term which
originated in the 1907 Hague Convention preamble—is the
most serious state crime that can be committed against a civilian
population. It is defined in eleven international texts, including
the statutes of the International Criminal Tribunal for the
former Yugoslavia (ICTY), the International Criminal Tribunal
for Rwanda (ICTR), and the International Criminal Court (ICC).
In 1945, the Allies developed the Agreement for the Prosecution
and Punishment of the Major War Criminals of the European Axis
and Charter of the International Military Tribunal, sitting
at Nuremberg, which contained the following definition of crimes
against humanity:
Crimes against humanity: murder, extermination, enslavement,
deportation, and other inhumane acts committed against civilian
populations, before or during the war; or persecutions on political,
racial or religious grounds in execution or in connection with
any crime within the jurisdiction of the Tribunal, whether or
not in violation of the domestic law of the country where perpetrated.
The ICTY and ICTR statutes added rape and torture to the list
of crimes against humanity. The ICC statute expanded it to include
the crimes of enforced disappearances of persons and apartheid.
To some extent, crimes against humanity overlap with genocide
and war crimes. But crimes against humanity are distinguishable
from genocide in that they do not require an intent to “destroy
in whole or part” but only to target a given group and
carry out a policy of “widespread or systematic” violations.
Crimes against humanity are also distinguishable from war crimes
in that they apply in time of both war and peace.
Crimes against humanity are a nonderogable rule of international
law. The implication is that they are subject to universal jurisdiction,
meaning that all states can exercise their jurisdiction in prosecuting
a perpetrator irrespective of where the crime was committed.
Ethnic Cleansing [top]
Ethnic cleansing—the use of force or intimidation to remove
people of a certain ethnic or religious group from an area—is
a blanket term; no specific crime goes by that name but in practice,
the term covers a wide variety of criminal offenses. The UN
Commission of Experts, in a January 1993 report, defined “ethnic
cleansing” as “rendering an area ethnically homogenous
by using force or intimidation to remove persons of given groups
from the area.” It said ethnic cleansing was carried out
in the former Yugoslavia by means of murder, torture, arbitrary
arrest and detention, extrajudicial executions, rape and sexual
assault, confinement of the civilian population, deliberate
military attacks or threats of attacks on civilians and civilian
areas, and wanton destruction of property. The Commission’s
final report in May 1994 added these crimes: mass murder, mistreatment
of civilian prisoners and prisoners of war, use of civilians
as human shields, destruction of cultural property, robbery
of personal property, and attacks on hospitals, medical personnel,
and locations with the Red Cross/Red Crescent emblem.
Article 49 of the Fourth Geneva Convention of 1949 forbids “individual
or mass forcible transfers, as well as deportation of protected
persons from occupied territory to the territory of the Occupying
Power or to that of any other country.” It adds that only
the security of the civilian population or “imperative
military reasons” may justify evacuation of civilians in
occupied territory.
Extrajudicial Execution [top]
Both international humanitarian law and human rights law state
that it is illegal to execute an accused person without first
giving him or her a fair trial. Under international humanitarian
law, extrajudicial execution is usually termed “willful
killing without judicial process.” If the victims are enemy
prisoners of war (including accredited journalists and civilian
suppliers and contractors attached to enemy armed forces), or
medical or religious personnel attached to the armed services,
such executions are grave breaches under the Third Geneva Convention.
If they are enemy civilians, their execution is a grave breach
of the Fourth Geneva Convention.
FRY (Federal Republic of Yugoslavia) [top]
FRY was officially established in April 1992 after the break-up
of the former Yugoslavia, which was known as the Socialist Federal
Republic of Yugoslavia (SFRY). FRY is comprised of two constituent
republics, Serbia and Montenegro, with its capitol in Belgrade.
Kosovo was an autonomous province of Serbia until 1989 when
the Serbian government revoked that status. As of September
2001, Kosovo remained a part of Serbia, although under the administration
of the United Nations pursuant to UN Resolution 1244.
Genocide [top]
Article II of the Convention on the Prevention and Punishment
of the Crime of Genocide, adopted by the UN General Assembly
on December 9, 1948, defines genocide as meaning:
[A]ny of the following acts committed with intent to destroy,
in whole or in part, a national, ethnic, racial, or religious
group as such: (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 part; (d) Imposing
measures intending to prevent births within the group; (e) Forcibly
transferring children of the group to another group.
Article II of the Convention states: “The following acts
shall be punishable: (a) Genocide; (b) Conspiracy to commit
genocide; (c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide; (e) Complicity in genocide.
Article IV specifies that “Persons committing genocide
or any of the other acts enumerated in Article III shall be
punished, whether they are constitutionally responsible rulers,
public officials or private individuals.”
Hague Conventions [top]
Many of the laws dealing explicitly with conduct in the course
of armed conflict were initially codified at conferences in
The Hague, Netherlands at the beginning of the twentieth century.
Among the laws, rules, and duties codified by the Hague Conventions
of 1899 and 1907—often referred to as “Hague Law”--are
policies about war on land, cessation of hostilities, occupation
of territory, qualifications of belligerents, prisoners of war,
the status of merchant ships during war, the laying of automatic
submarine contact mines, bombardment by naval forces, and the
rights and duties of neutral powers. Further conventions deal
with the rules of aerial warfare (1923); protection of cultural
property (1954); and suppression of unlawful seizure of aircraft
(1970).
Indiscriminate Attack [top]
An indiscriminate attack is one in which the attacker does not
take measures to avoid hitting nonmilitary objectives, that
is, civilians and civilian objects. It also includes using means
and methods that cannot be directed at specific military objectives
or whose effects cannot be limited. The 1977 Additional Protocol
I to the Geneva Conventions of 1949 specifies: “Parties
to the conflict shall at all times distinguish between the civilian
population and combatants and between civilian objects and military
objectives and accordingly shall direct their operations against
military objectives.”
Protocol I defines military objectives as limited to “those
objects which by their nature, location, purpose or use make
an effective contribution to military action and whose total
or partial destruction, capture or neutralization, in the circumstances
ruling at the time, offers a definite military advantage.”
If the harm to civilians is proportionate to the military advantage
expected, the attack, other things being equal, is a legal act
of war. If the harm is “exclusive in relation to the concrete
and direct military advantage anticipated,” the attack
is prohibited, whether or not indiscriminate.
Internally
Displaced Persons [top]
Internally displaced persons, or IDPs, have been forced to flee
their homes, or places of habitual residence, as a result of
armed conflict, situations of generalized violence, violations
of human rights, or natural or human-made disasters, and have
not crossed an internationally recognized border. If such persons
were to be sent across an international border, they would be
considered refugees.
Article 49 of the Fourth Geneva Convention provides that “individual
or mass forcible transfers. . . are prohibited, regardless of
their motive.” Additional Protocol II of 1977, which applies
in internal conflicts, provides that forced civilian displacement
may be undertaken legally only when civilians’ very safety
or “imperative military reasons” require it. The International
Committee of the Red Cross Commentary to the Additional Protocols
states that the intent here is to minimize civilian displacement
that is politically motivated.
International Criminal Tribunal for the former Yugoslavia (ICTY)
[top]
ICTY was established by the UN Security Council on May 25,1993,
to prosecute and try persons allegedly responsible for serious
violations of international humanitarian law committed in the
territory of the former Yugoslavia since 1991. Based in The
Hague, Netherlands, ICTY has the power to prosecute persons
committing or ordering to be committed genocide, crimes against
humanity, grave breaches of the 1949 Geneva Conventions, or
the laws or customs of war.
International Humanitarian Law [top]
The genesis of international humanitarian law, often referred
to as “Geneva Law,” dates back to the establishment
of the International Committee of the Red Cross (ICRC) in Geneva
in 1864 by Henry Dunant, a Geneva banker who had witnessed the
massive horrors of the Battle of Solferino in northern Italy
in 1859. The ICRC, which concerns itself with reinforcing and
extending humanitarian aspects of the laws of war and, in particular,
securing the protection of prisoners of war and other noncombatants,
has convened many of its conferences in Geneva where it maintains
its headquarters. Since 1977, the ICRC has sought to merge “Geneva
Law” and “Hague Law” into a single comprehensive
body of what it would like to be known as “humanitarian
law” (see Hague Conventions).
Kosovo Liberation Army (KLA) [top]
Known in Albanian as the Ushtria Clirimtare e Kosoves (UCK),
the KLA began to take form in the mid-1990s as a disorganized
group of rebels who advocated violent means to achieve independence
for Kosovo. The group swelled in size in fall 1998, after Serbian
security forces killed dozens of ethnic Albanian civilians in
an attack on a KLA stronghold. The group continued to wage a
guerrilla war against Serbian and Yugoslav forces throughout
1998 and 1999. It was also responsible for violations of international
humanitarian law, such as executions of civilians, abductions,
and sexual assault. Kosovo Serbs as well as Albanians considered
collaborators with the Serbian government were threatened, attacked,
and killed. For more information, see two Human Rights Watch
reports: Abuses Against Serbs and Roma in the New Kosovo (August
1999) and Humanitarian Law Violations in Kosovo (October 1998).
MUP (Ministarstvo Unutrasnjih Poslova) —Serbian Ministry
of Internal Affairs [top]
The MUP is the main security force of the Republic of Serbia,
one of the two republics in the Federal Republic of Yugoslavia
(FRY). The MUP is primarily comprised of a public security service
(police, special police, anti-terrorist forces) and a state
security service (secret police and a special operations unit).
Together with the Yugoslav Army, the MUP was active in Kosovo
during 1998 and 1999. The Minister of Internal Affairs at the
time was Vlajko Stojiljkovic, although ultimate authority rested
with then Yugoslav president Slobodan Milosevic.
North Atlantic Treaty Organization (NATO) [top]
Established
in 1949, NATO is a trans-Atlantic security alliance that primarily
links the United States to the countries of Western Europe.
Initially intended as a military alliance during the Cold War,
NATO has become increasingly involved in internal conflicts,
such as in the former Yugoslavia. In March 1999, NATO began
a 78-day bombing campaign over Yugoslavia that resulted in the
withdrawal of Serbian and Yugoslav forces from the province.
During the bombing, NATO was responsible for some violations
of international humanitarian law: specifically, failing to
adequately minimize civilian casualties and using cluster bombs
near populated areas. For more information, see two Human Rights
Watch reports: Civilian Deaths in the NATO Air Campaign (February
2000) and Ticking Time Bombs: NATO’s Use of Cluster Munitions
in Yugoslavia (June 1999).
Organization for Security and Cooperation in Europe (OSCE)
[top]
The OSCE is a regional security organization with 55 participating
states from Europe, Central Asia, and North America. The OSCE
is primarily an instrument for early warning, conflict prevention,
crisis management, and post-conflict rehabilitation. It addresses
a wide range of security-related issues including arms control,
preventive diplomacy, confidence- and security-building measures,
human rights, election monitoring, and economic and environmental
security. Its decisions are politically but not legally binding.
From October 1998 to March 1999, the OSCE had a monitoring mission
in Kosovo called the Kosovo Verification Mission (KVM). The
organization withdrew from Kosovo during the NATO bombing of
Yugoslavia but was based in neighboring Albania and Macedonia,
where field workers interviewed Kosovar Albanian refugees. The
OSCE resumed operation in Kosovo in June 1999. In December 1999,
the OSCE released two voluminous reports on violations of human
rights in Kosovo, one dealing with events between March and
June 1999, and the other documenting human rights abuses after
the war (see Kosovo/Kosova: As Seen, As Told, Parts I and II,
available at www.osce.org/kosovo/reports/hr/part1/.
Paramilitary [top]
For much of the past century, the term “paramilitary”
applied to forces that were typically uniformed, subjected to
a formal hierarchy and disciplinary norms like that of the military,
and armed with light military weapons. The Carabineros of Chile,
the Civil Guard of Peru, and the National Guard of El Salvador
are paramilitary in this sense. In the 1960s, however, the common
usage of the term was sometimes inverted. From applying strictly
to highly regulated, uniformed, military-like forces, “paramilitary”
came to apply to forces that were irregular: often covert, operating
in plain clothes, absent the rigid norms, requirements, and
traditions of a military institution, and sharing an unconventional
military mission. This usage was a feature of the United States’
military doctrine of unconventional warfare and counterinsurgency
after 1961 and was reflected in the training and doctrine of
Latin American and other allied armies from that time. “Paramilitary”
became the term of art for armed government-sponsored organizations
which had little in common with conventional military institutions
and whose official status was sometimes left deliberately ambiguous.
The term has been used by the media, by government organs, and
in popular speech to apply to forces seen as partners of the
state’s security services in combating subversion and armed
opposition groups, even when these official bodies deny any
collaboration with them. The term “paramilitary” has
also come to apply to the methodology employed by covert units
of the regular security services of many countries. When irregular
and often illegal operations are carried out by military or
military-like units, these operations—and the units themselves—units
are characterized as “paramilitary” to distinguish
them from conventional forces and operations.
Prisoners of War [top]
Prisoners of war are combatants who have surrendered or, due
to injury, are unable to continue to fight and so come into
the control of their adversary. Since earlier conventions dealing
with prisoners of war proved inadequate, the drafters of the
Geneva Conventions of 1949 aspired to establish a detailed,
humane regime governing the treatment of combatants who have
been captured by their adversaries. The 1977 Protocol I to the
Geneva Conventions of 1949 expanded the categories of individuals
that may be considered combatants and thus entitled to the protections
of the 1949 Conventions. Protocol I includes as combatants those
individuals who do not wear uniforms to distinguish themselves
as combatants, on the condition that they carry their arms openly
during each military engagement and are visible to the adversary
while they are engaged in a military deployment.
Rape as a War Crime [top]
Rape and other forms of sexual violence, including sexual abuse,
sexual slavery, and forced prostitution, are fundamental assaults
on human health, physical and mental integrity, and dignity.
In the context of an international armed conflict, they therefore
qualify as grave breaches under the 1949 Geneva Conventions
and Additional Protocol I of 1977. The Conventions explicitly
require nations to prosecute persons who commit acts such as
“torture or inhuman treatment” and “willfully
caus[e] great suffering or serious injury to body or health”
against any person. The Fourth Geneva Convention provides that
women must be protected against “rape, enforced prostitution,
or any form of indecent assault.” Similarly, Protocol II
to the Geneva Conventions of 1949, which governs the protection
of civilians in internal armed conflicts, explicitly outlaws
“outrages upon personal dignity, in particular humiliating
and degrading treatment, rape, forced prostitution and any form
of indecent assault.”
• Both
the International Criminal Tribunal for the former Yugoslavia
(ICTY) and the International Criminal Tribunal for Rwanda
(ICTR) are empowered to prosecute rape and other forms of
sexual violence as genocide, crimes against humanity, and
war crimes.
• In September 1998, the ICTR handed down the first international
conviction of genocide and crimes against humanity based on
rape. The landmark decision went against Jean-Paul Akayesu,
who served as mayor of the Taba commune and was responsible
for maintaining law and public order. He was accused of allowing
police under his authority to rape and torture mostly Tutsi
women who had sought his protection. Akayesu was sentenced
to life imprisonment.
• In December 1998, the ICTY found Anto Furundzija guilty
as a co-perpetrator of torture for raping and sexually assaulting
a woman while he served as the local commander of the Croatian
Defense Council military police. The Court held that under
certain circumstances, rape and other serious sexual assaults
may constitute torture under international law.
• In February 2001, the ICTY issued a verdict declaring
that rape and sexual enslavement constitute crimes against
humanity. Three Bosnian Serb men were found guilty of rape
of Bosnian Muslim women and girls—some as young as 12
and 15 years of age—in Foca, eastern Bosnia-Herzegovina.
Two of the accused were also found guilty of sexual enslavement
as a crime against humanity by holding women and girls captive
in several de facto detention centers near Foca.
Finally, the statute of the International Criminal Court includes
“rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence
of comparable gravity” in its definition of crimes against
humanity.
Refugees [top]
Refugees are persons who are outside of their country of origin
and are unable, or unwilling, to avail themselves of the protection
of their country due to a well-founded fear of persecution based
on their race, religion, nationality, membership of a particular
social group, or political opinion. The 1951 UN Convention Relating
to the Status of Refugees defines who refugees are and how they
are to be treated. This convention endeavors to assure refugees
the widest possible exercise of their fundamental rights and
freedoms. Most importantly, no country may expel or return (“refoul”)
refugees to the frontiers of territories where their life or
freedom would be threatened on account of their race, religion,
nationality, membership in a particular social group, or political
opinion.
United Nations High Commissioner for Refugees (UNHCR)
[top]
UNHCR is mandated by the United Nations to lead and coordinate
international action for the world-wide protection of refugees
and the resolution of refugee problems. UNHCR’s primary
purpose is to safeguard the rights and well-being of refugees.
During the NATO bombing of Kosovo in 1999, UNHCR helped accommodate
more than 800,000 Kosovar Albanian refugees.
VJ (Vojska Jugoslavije)—Yugoslav Army [top]
The VJ is the army of the Federal Republic of Yugoslavia, although
it is dominated by political and military leaders in Serbia.
The VJ is comprised of three armies, the third of which is responsible
for Kosovo. During 1998 and1999, the head of the Third Army
was Col. Gen. Nebojsa Pavkovic. He reported to Army Gen. Dragoljub
Ojdanic, who was Chief of the Army General Staff. Ojdanic reported
to Yugoslavia’s Supreme Defense Council, which was headed
by the country’s supreme commander, Yugoslav President
Slobodan Milosevic.
War Crimes [top]
War crimes are those violations of the laws of war—or international
humanitarian law—that incur individual criminal responsibility.
The 1949 Geneva Conventions marked the first inclusion in a
humanitarian law treaty of a set of war crimes known as the
grave breaches of the conventions. Each of the four Geneva Conventions
(on wounded and sick on land, wounded and sick at sea, prisoners
of war, and civilians) contains its own list of grave breaches.
As noted in Crimes of War: What the Public Should Know (p. 374),
the list in its totality consists of:
willful
killing; torture or inhuman treatment (including medical experiments;
willfully causing great suffering or serious injury to body
or health; extensive destruction and appropriation of property
not justified by military necessity and carried out unlawfully
and wantonly; compelling a prisoner of war or civilian to
serve in the forces of the hostile power; willfully depriving
a prisoner of war or protected civilian of the rights of a
fair and regular trial; unlawful deportation or transfer of
a protected civilian; unlawful confinement of a protected
civilian; and taking hostages.
Additional Protocol I of 1977 expanded the protections of the
Geneva Conventions for international conflicts to include grave
breaches:
Certain
medical experimentation; making civilians and nondefended
localities the object or inevitable victims of attack; the
perfidious use of the Red Cross or Red Crescent emblem; transfer
of an occupying power of parts of its population to occupied
territory; unjustifiable delays in repatriation of prisoners
of war; apartheid; attack on historic monuments; and depriving
protected persons of a fair trial.
The statute of the International Criminal Tribunal for the former
Yugoslavia includes “serious violations of Common Article
3 of the Geneva Conventions” (the one article that addresses
civil wars), as well as other rules to protect victims of armed
conflict including violence to life or health (murder, ill-treatment,
torture, mutilation, corporal punishment, rape, enforced prostitution,
indecent assault), summary executions, hostage taking, collective
punishment, and pillage. |
