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Bosnia Case Study

11. In May 1992, the ICRC’s head of delegation in Sarajevo was killed during a deliberate attack on the Red Cross convoy in which he was traveling in Sarajevo. Since it was no longer able to provide sufficient protection and assistance for the victims and failed to obtain security guarantees from the parties, the ICRC withdrew from Bosnia-Herzegovina.

a.   May the ICRC withdraw from a country affected by an armed conflict? (GC III, Arts 9 and 126; GC IV, Arts 10 and 143)

b.   May a humanitarian organization withdraw from a conflict area because one of its staff is killed? At least if no sufficient security guarantees are offered for the future? Even if the party to the conflict responsible for the attack is unknown? Could this withdrawal be considered as a collective punishment? Could it be said that the organization thus takes the victims as hostages against their authorities? Couldn’t an organization help at least some victims even without security guarantees? Does that mean that the life of an expatriate aid worker is worth more than that of a local victim?

c.   May a humanitarian organization leave a conflict area because IHL is too blatantly violated?

d.   May a humanitarian organization withdraw from a conflict area because it cannot sufficiently fulfill its mandate of protecting and assisting victims? If it is denied access to some victims? If it can no longer assist the local population because its relief convoys are not allowed free passage by the other side? If its confidential or public approaches have no impact on the behaviour of the parties? If its visits to prisons do not lead to any improvement of unacceptable conditions of detention of prisoners? What if the organization could nevertheless help some victims? Could this withdrawal be considered as a collective punishment? Could it be said that the organization thus takes the victims as hostages against their authorities? May a neutral and impartial humanitarian organization continue to act in a conflict if only one side allows it access to victims (“belonging” to the other side), while the other side denies access?

12. When the ICRC returned to Bosnia-Herzegovina in the summer of 1992 it was finally allowed to visit, in particular in the “Manjaca Camp”, large numbers of the (surviving) men rounded up by Bosnian Serb forces during ethnic cleansing operations in Eastern and Central Bosnia. Its delegates found appalling conditions of detention, seriously undernourished prisoners who could not expect to survive the Bosnian winter, and collected highly disturbing allegations of summary executions. It tried to draw the attention of the international community and public opinion on those facts, but succeeded only when TV Crews were allowed by the Bosnian Serbs to film detainees in Manjaca.

    Through considerable relief efforts and frequent visits, the ICRC managed to improve conditions of detention, but it came to the conclusion that only the release of all prisoners before the Bosnian winter could solve the humanitarian problem. Relief efforts in favor of the inmates were hampered by violent demonstrations of the local Serbian population in villages around Manjaca camp who were suffering from the consequences of international sanctions against Serbs and did not want to allow free passage to the relief convoys. On September 15, 1992, 68 injured and sick detainees were evacuated to London to receive medical attention. Thanks to the pressure of international public opinion and by constant negotiations with the parties, the ICRC got them to conclude, on October 1, an agreement under which more than 1,300 detainees were to be released before mid-November (925 by Bosnian Serbs, 357 by Bosnian Croats, and 26 by Bosnian government forces). Under the agreement, the detainees to be released could choose during individual interviews without witnesses with ICRC delegates, whether they wanted to be released on the spot, to be transferred to regions controlled by their ethnic group, or to be transferred to a refugee camp in Croatia in view of (temporary) resettlement abroad. Affected by what they had undergone and in view of the generalized atmosphere of ethnic cleansing, practically all inmates from Manjaca chose to leave the country.

a.   Why did the Bosnian Serb authorities give TV cameras access to Manjaca? Didn’t the world media, by airing the images from Manjaca, increase the fear among ethnic minority groups and thus contribute to “ethnic cleansing”?

b.   Should a humanitarian organization provide food and shelter to detainees? Under IHL , isn’t that the responsibility of the detaining authorities? Should a humanitarian organization ask detaining authorities to release prisoners if they do not treat them humanely?

c.   May a humanitarian organization distribute relief aid to the local population of villages surrounding Manjaca so that they let the relief convoys go to Manjaca? Is it an application of the Red Cross principles of neutrality and impartiality or is it a case of pure operational opportunism? Doesn’t a humanitarian organization thus give in to blackmail? How would you judge the situation if the Bosnian Serbs were asking for fuel for heating (which could however also be used for tanks) – as they later successfully asked UNPROFOR?

d.   Was the detention of men between 16 and 60 years old, militarily trained as territorial defence in the former Yugoslavia and ready to join Bosnian government forces, necessarily unlawful? (GC III,  Arts 4 and 21; GC IV, Arts 4, 42 and 78) Could the ICRC ask for their release? Doesn’t the ICRC visit detainees only out of concern for their humane treatment, without interfering into the reasons for their detention or asking for their release? Don’t massive requests for releases accredit in the minds of the parties the (wrong) idea that if they give the ICRC access to prisoners they have to release or exchange them, thus increasing the tendency to hide prisoners from the ICRC?

e.    Didn’t the releases of the Bosnian Muslim detainees, most of whom understandably chose to be transferred abroad, contribute to ”ethnic cleansing”? Should the inmates remain detained, for their protection, until they can safely return home? Does the party controlling the territory where the released prisoners are transferred to have an obligation not to enroll them (again) into military service against the party that released them? (GC III, Art. 117)

f.    How would you have reacted to the parties’ claims (prima facie not totally unreasonable) during negotiations on the releases that many of the persons detained had committed war crimes?

13. During the whole conflict, Sarajevo was (practically) surrounded by Bosnian Serb forces, but defended by Bosnian government troops. It was constantly bombed by Bosnian Serb artillery. The survival of the inhabitants of Sarajevo or, more precisely, their ability not to surrender to the Bosnian Serbs, was made possible mainly by relief flights of UNPROFOR (offering its logistics to and acting for the UNHCR), which were often interrupted following attacks by Bosnian Serb or unknown forces, or due to lack of security guarantees.

a.   Was it lawful to bomb Sarajevo? (P I, Arts 48 and 51; Agreement No.1, Art. 2(5)) Does your appreciation under IHL of those bombings change after Sarajevo had been declared a “safe area” by the UN Security Council (as described infra, point 14.)?

      [See alsoCase - ICTY, The Prosecutor v. Galic]

b.   Is the stopping by Bosnian Serbs of relief convoys to Sarajevo unlawful? (GC IV, Arts 23 and 59; P I, Art. 70; Agreement No. 1, Art. 2(6)). Do neighbouring Croatia and the UN Security Council (in case of an embargo) have similar obligations towards the Bosnian Serbs? To what conditions may the Bosnian Serb authorities subordinate the passage of relief convoys?

–    to the checking of the convoy?

–    to the distribution of relief to civilians only?

–    to the distribution of relief to both Serbs and Bosnian Muslims?

–    to the distribution of relief under outside supervision?

–    to the simultaneous agreement by Bosnian government forces to allow passage of relief convoys to Serb controlled areas?

–    to the release of prisoners by the Bosnian government?

–    to the respect of cease-fire agreements by the Bosnian Muslims?

c.   What are the advantages and disadvantages of bringing relief by airlift to Sarajevo? What may the advantages and risks be for the UNHCR given that the airlift is under the full operational responsibility of UNPROFOR?

d.   What could be the legitimate and illegitimate interests of the Bosnian Serbs to hinder relief supplies to Sarajevo?

e.    Could the Bosnian government have reasons to hinder relief supplies to Sarajevo?

14. As the ICRC was confronted with continuing practices of “ethnic cleansing” by all parties (the Bosnian Muslim population being, however, the main victims), that threatened the lives of ethnic minority populations and made large groups of population flee when front lines changed, and as no third country seemed ready to offer even temporary asylum to one hundred thousand Bosnian refugees, the ICRC suggested, in the fall of 1992, the establishment of protected zones to shelter endangered civilians. The concept and location of the zones should be based on an agreement of the parties, but UNPROFOR should provide internal and external security for such zones.

    In 1993, the UN Security Council established through Resolutions 819 and 824 (1993) safe areas in and around the towns of Sarajevo, Tuzla, Zepa, Gorazde, Bihac, and Srebenica, controlled by the Bosnian government, asking for the immediate cessation of hostile acts against those areas and the withdrawal of Bosnian Serb units from their surroundings.

[SeeCase - Bosnia and Herzegovina, Constitution of Safe Areas in 1992-1993]

    This had to be monitored by UN Military observers. The parties were asked to fully cooperate with UNPROFOR, but UNPROFOR was not given a clear mandate to defend those areas and the Resolutions only invoked Chapter VII of the UN Charter (permitting the use of force) as far as the security and freedom of movement of UNPROFOR was concerned. Security Council Resolution 836 (1993) went further authorizing UNPROFOR “acting in self-defence, to take the necessary measures, including the use of force, to reply to bombardments against the safe areas by any of the parties […].” The Security Council did not ask for a demilitarization of those areas but decided in Resolution 836 (1993) “to extend […] the mandate of UNPROFOR in order to enable it […] to promote the withdrawal of military or paramilitary units other than those of the Government of the Republic of Bosnia and Herzegovina […].”

a.   What humanitarian problems led the ICRC to suggest the establishment of protected zones and the UN Security Council to establish safe areas? How does IHL normally deal with such problems?

b.   What are the particular reasons and dangers in establishing any kind of safety zones in a situation of “ethnic cleansing” like the one in Bosnia-Herzegovina?

c.   Does the ICRC suggest establishing one of the protected zones provided by IHL? Does IHL provide for an international monitoring of such a zone? Is international protection of such a zone provided by IHL? Is it compatible with IHL? Why does the ICRC suggest international military protection? Should the Security Council give UNPROFOR the mandate to defend those areas? (GC I-IV, Art. 3; GC IV, Arts 14 and 15; P I, Arts 59 and 60)

d.   Should the ICRC suggest the demilitarization of the protected zones (from Bosnian government forces)? Is this condition implied in the spirit of IHL on protected zones? Would such a condition have been realistic? Would the creation of a zone without such demilitarization have been realistic? May Bosnian government forces stay in the safe areas established by the Security Council? Under IHL and the UN resolutions, may they launch attacks from the safe areas against Bosnian Serb forces?

e.   Were the zones open to occupation by the adverse party? Under IHL, is such a requirement inherent to protected zones? Would such a requirement have been realistic?

f.    Does the ICRC proposal come under jus ad bellum or under jus in bello? Does it respect the Red Cross principles of neutrality and impartiality? Doesn’t it suggest the use of force against one side of the conflict? What is the legal basis of the ICRC proposal?

g.   On what essential points do the safe areas established by the Security Council differ from the protected zones suggested by the ICRC?

h.   Do the safe areas established by the Security Council come under jus ad bellum or under jus in bello? Is it appropriate to charge peacekeeping forces with the mandate they got under the Resolutions?

i.    Which elements of the “safe areas” established by Resolutions 819 and 824 recall or implement jus in bello? Jus ad bellum?

15. In the beginning of 1992, the Co-presidents of the International Conference on the Former Yugoslavia, C. Vance and Lord Owen, presented a peace plan for Bosnia-Herzegovina (the Vance-Owen Plan), which included the division of Bosnia into 10 nationally defined cantons. Bosnian Croats were delighted by the plan which increased their territory, while Bosnian Serbs rejected it coldly. The Bosnian (Muslim) president was undecided. The Bosnian Croats tried to implement it forcefully in central Bosnia. They demanded that the Bosnian government forces withdraw within the borders of their assigned cantons and that the joint command of the forces of Croat Defence Council (HVO) and the BH Army be established. If not, HVO threatened to implement the Vance-Owen Plan itself. After the deadline expired, on April 16, 1993, HVO forces carried out a coordinated attack on a dozen villages in the Lasva Valley (belonging to the Croatian canton of the Vance-Owen Plan). Troops from Croatia were present on HVO-controlled territory but did not fight in the Lasva Valley. Croatia financed, organized, supplied, and equipped HVO.

a.   Was there an international armed conflict between Bosnia-Herzegovina and Croatia? If so, did IHL of international armed conflicts also apply to the fighting in the Lasva Valley between HVO and Bosnian government forces? Were the parts of the Lasva Valley, falling under HVO control during the fighting, occupied territories under IHL? Were its Bosnian Muslim inhabitants protected persons? Were the Bosnian Croats living in parts of the Lasva Valley which remained under government control protected persons too? (GC IV,
Arts 2 and 4)

b.   Was Agreement No.1 applicable to the fighting in the Lasva Valley?

      [SeeCase - Former Yugoslavia, Special Agreements Between the Parties to the Conflicts [Part B.]]

16. In the Bihac area, in the Western-most part of Bosnia-Herzegovina, inhabited almost exclusively by Bosnian Muslims, Mr. Fikret Abdic, a Muslim businessman and politician, and his followers (mainly the employees of his “Agrokommerc” industry near Velika Kladusa) were not ready to follow the politics of the Bosnian government; they claimed autonomy and aligned themselves with the Bosnian Serbs and the neighbouring Croatian Serbs. An armed conflict between Bosnian government forces in the Bihac enclave surrounded by Bosnian and Croatian Serb forces and by those of Mr. Abdic followed. In 1995, the two-and-a-half-year siege of the Bihac enclave was ended by an offensive of Croatian forces against the Croatian Serb forces. When Bosnian government forces subsequently took Velika Kladusa, the followers of Mr. Abdic fled into neighbouring Croatia where they were halted in Kupljensko by the Croatian authorities.

a.   Under IHL, how do you qualify this conflict? What instruments of IHL apply (taking into account that Bosnia-Herzegovina is a party to all instruments of IHL)? (GC I-IV, Art. 3; P II, Art. 1)

b.   Was Agreement No. 1 applicable to that conflict?

c.   Could the Bosnian authorities punish followers of Mr. Abdic for the mere fact that they took part in the rebellion, even if they respected IHL?

d.   Had the Croatian authorities an obligation to let followers of Mr. Abdic into Croatia?

e.   Could the Croatian authorities forcibly drive those persons back from Kupljensko to Bosnia-Herzegovina?

f.    Could the Croatian authorities deny the entering of relief into Kupljensko camp in order to drive its inhabitants back to Bosnia-Herzegovina?

17. Following widely publicized and credible reports by the media, by different human rights organizations, and by representatives of the international community about widespread atrocities committed as part of practices of “ethnic cleansing”, including rapes allegedly committed in particular by Bosnian Serb forces on a systematic basis and as a policy, the international public opinion and the international community insisted on the punishment of those responsible for such serious violations of IHL and of human rights. Particularly outraged about rapes, a specific instrument against such practices was desired and it was said that contemporary IHL does not sufficiently prohibit rape. First, the UN Security Council established in Resolution 780 (1992) a Commission of Experts enquiring into alleged violations which later published a very extensive report, but on May 25, 1993, it went further establishing by Resolution 827 (1993), acting under Chapter VII of the UN Charter, an “International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991” (ICTY) in The Hague. The ICTY is competent to prosecute grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity. It has concurrent jurisdiction with national courts, but primacy over them when it so decides. All States have to cooperate with the ICTY.

[SeeCase - UN, Statute of the ICTY and Case - ICTY, The Prosecutor v. Kunarac, Kovac and Vukovic]

a.   Why did the media, the public opinion, and the Security Council react so strongly against violations of IHL in the former Yugoslavia? Was it because they were more serious than those committed in Cambodia, Afghanistan, Zaire, Liberia, or Chechnya? Because they were more wide-spread and systematic? Because the media widely covered them? Because they were seen as having been mainly committed by the party seen as the aggressor? Because the international community was not ready to stop the war? Because it happened in Europe?

b.   Is rape prohibited by IHL of international armed conflicts? By IHL of non-international armed conflicts? Is it a grave breach of IHL? Is it a war crime? Even in non-international armed conflicts? Are there any grave breaches of IHL in non-international armed conflicts? If the law of international armed conflicts is applicable, is the rape of a Bosnian Muslim woman by a Bosnian Serb soldier in Bosnia-Herzegovina a grave breach? Is the rape of a Bosnian Serb woman by a Bosnian government soldier a grave breach? (GC IV, Art. 147; P I, Art. 85(5); Agreement No.1, Art. 5)

c.    Who has the obligation to prosecute persons having committed grave breaches in Bosnia-Herzegovina? (GC IV, Art. 146; Agreement No.1, Art. 5) Does IHL provide for the possibility of prosecuting war criminals before an international tribunal? Are the prosecution of war criminals before an international tribunal and its concurrent jurisdiction compatible with the obligation of States under IHL to search for and prosecute war criminals? (GC I-IV, Arts 49/50/129/146 respectively)

d.   Will the ICTY have to qualify the conflict in fulfilling its mandate?

e.   Were the different armed conflicts in the former Yugoslavia, even those of a purely internal character, a threat to peace (justifying measures under Chapter VII of the UN Charter)? Is the establishment of a tribunal to prosecute violations of IHL a proper measure to stop that threat? Can we today say whether it contributed to the restoration of peace in the former Yugoslavia? Does that (the final result) actually matter? Doesn’t the prosecution of (former) leaders make peace and reconciliation more difficult? Or are violations of IHL themselves threats to peace (justifying measures under Chapter VII of the UN Charter)? Even in non-international armed conflicts? Could the same be said of gross violations of human rights outside armed conflicts?

f.    May the UN Security Council establish a tribunal? Is such a tribunal independent? Is it a “court established by law”? Is the creation of a tribunal competent to try acts committed before it was established itself violating the prohibition (in IHL and Human Rights Law) of retroactive criminal legislation? How, apart from a resolution of the Security Council, could the ICTY have been established? What are the advantages and disadvantages of other methods?

g.   Is the establishment of an International Tribunal only for the former Yugoslavia a credible measure to increase respect for IHL? At least if the Security Council is willing to establish additional tribunals in similar future cases? Is it reasonable to expect the Security Council to establish similar tribunals in all similar cases? Can one imagine a tribunal not competent to decide when it is competent?

h.   Under IHL and the Statute of the tribunal, does the ICTY relieve States from their obligation to search for and prosecute war criminals?

i.    Is the Statute of the ICTY penal legislation or does it simply provide rules of competence of the ICTY? Even when it applies to non-international armed conflicts?

j.    Can you imagine why the Statute does not refer to grave breaches of Protocol I? Is there any possible justification for this omission, taking into account that the former Yugoslavia and all its successor States are Parties to Protocol I and that the parties to the conflicts have undertaken to respect large parts of it regardless of the qualification of the conflict? How could the ICTY nevertheless try grave breaches of Protocol I?

      [SeeCase - Former Yugoslavia, Special Agreements Between the Parties to the Conflicts]

k.   Has the ICRC a right to visit an accused detained by the ICTY? Must it be notified of sentences as a de facto substitute of the Protecting Power? (GC I and II, Art. 10(3); GC III, Arts 10(3), 107 and 126, GC IV, Arts 11(3), 30, 74 and 143; P I, Art. 5(4)). If you were the ICRC, would you try to visit war criminals?

l.    Do those detained under the authority of the ICTY (pending trial or having been sentenced) lose IHL status as protected civilians or prisoners of war if they had such status before being arrested in the former Yugoslavia? Is it lawful to deport a civilian arrested in the former Yugoslavia to the Hague to stand trial? (GC III, Art. 85; GC IV, Arts 49 and 76(1); P I, Art. 44(2))

m.  Does it weaken the credibility of IHL if the ICTY cannot gain custody over the major violators of IHL in the former Yugoslavia? Do indictments by the ICTY have an impact if arrest warrants are not enforced by States?

18. During the whole conflict in Bosnia-Herzegovina, soldiers who fell into the power of adverse parties and civilian men of fighting age were rounded up in waves of “ethnic cleansing” or to increase the number of persons to be exchanged. Those persons were generally held together; the ICRC often had access to them and was able to register them. From the beginning of the conflict, the parties had been quick to establish “exchange commissions” which drew up lists – or used those provided by the ICRC – of all prisoners available in order to barter with the opposing forces; in many cases civilians were arrested solely for exchange purposes, sometimes for releasing them to impress international celebrities planning a visit in the region and asking for a gesture. Prisoners were sometimes traded even for fuel or alcohol. Partly because of the length of the conflict and the intermingling of civilians and combatants among the prisoners, humanitarian organizations were often present during those negotiations, facilitating the conclusion of “deals”, and trying to ensure a minimum of humane treatment during such exchanges. The ICRC was also ready to be present at exchanges if certain conditions for the detainees were respected and if the institution was allowed to interview detainees in private to ensure that their choice of destination was respected by the parties.

a.   Which of the mentioned categories of prisoners may be detained under IHL? When must they be released? Is it acceptable under IHL to exchange prisoners who have to be released? To exchange prisoners who do not have to be released? (GC III, Art. 118; GC IV, Arts  37, 41-43, 76, 78 and 132; P I, Art. 85(4)(b))

b.   From a humanitarian and moral point of view, what are the advantages and disadvantages of prisoner exchanges? If two parties exchange all (known) prisoners (of a certain category)? If they exchange one prisoner for another? How can the risk that persons are rounded up just in view of an exchange be avoided? Do hidden or unregistered prisoners have a greater or a smaller “value” on the “exchange market”?

c.   Should humanitarian organizations be present during exchange negotiations? During the actual exchanges? What are the advantages and disadvantages of their presence? What minimum conditions should be fulfilled before a humanitarian organization or representatives of the international community accept to organize, supervise, or monitor exchanges?

d.   What are the reasons for the ICRC to register the prisoners it visits? Should lists drawn up after such registration be transmitted to the detaining authorities? To the adverse side? Even if it is in view of exchange negotiations? Is that provided for in IHL? Are there exceptions? Do such lists reduce the risk that persons are rounded up just in view of exchanges? Does a transmission to the adverse party not incite the detaining party to hide prisoners it does not want to exchange from the ICRC? (GC III, Arts 122 and 123; GC IV, Arts 137 and 140)

19. In the spring of 1995, Sarajevo was again entirely cut off from vital supplies and came under heavy fire from Bosnian Serbs violating once more an agreement upon a heavy weapons exclusion zone established by the UN Security Council in February 1994. This time, however, after a UN ultimatum went unacknowledged, NATO reacted with air strikes against Bosnian Serb ammunition stocks in the Pale area. Bosnian Serb forces responded by arresting some 350 UN military observers and UNPROFOR personnel stationed on territory they controlled. Some of those persons were held on or near possible military objectives. ICRC delegates gained access to only some of them and to Bosnian Serb soldiers captured by UNPROFOR when they tried to attack one of UNPROFOR’s outposts. The UN personnel were finally released after long negotiations.

    After another shelling of the Sarajevo marketplace, a joint British/French rapid reaction force was deployed on Mount Igman to enforce access for relief convoys to Sarajevo, and NATO launched air strikes against Bosnian Serb communication posts, arms storehouses, weapons factories, and strategic bridges. A water reservoir was also struck, and a pregnant woman was wounded by glass splinters from a hospital window that blew up under the shock created by one of the aforementioned bombings. Two French NATO pilots who had to abandon their military aircraft by parachute after it had been shot down by Bosnian Serb forces were captured by Bosnian Serb forces.

a.   Is IHL applicable to NATO air strikes? Even though they only enforce UN Security Council resolutions and act in defence of the inhabitants of Sarajevo? Is IHL of international armed conflicts applicable or is it IHL of non-international armed conflicts? (GC I-IV, Art. 2 and preamble para. 5; P I, Art. 1) Did all the mentioned NATO air strikes comply with IHL? Even when a water reservoir was damaged and a pregnant mother hurt? (P I, Arts 51, 56 and 57, CIHL Rules 15 and 22) Are hospitals and pregnant mothers not specially protected by IHL? (GC I, Arts 16 and 18, CIHL Rules 28, 30, 134)

b.   Is the UN a party to the Conventions and Protocols? Can the UN conceivably be a Party to an international armed conflict in the sense of Art. 2 common to the Conventions? For the purposes of the applicability of IHL, can the UN forces be considered as armed forces of the contributing States (which are Parties to the Conventions), and can any hostile acts be considered an armed conflict between those States and the party responsible for the opposing forces?

c.   Are members of UNPROFOR detained by Bosnian Serb forces prisoners of war or hostages? (GC III, Art. 4; GC IV, Arts 4 and 34) May they be detained? May they be held in a facility considered as a military objective? (GC III, Art. 22; GC IV, Art. 28, CIHL Rule 121) Has the ICRC a right to visit them? Even if they are not prisoners of war? If they are hostages? If IHL is not applicable? If IHL of non-international armed conflicts is applicable? Must they be released? When? Why would the UN object to their personnel being qualified as prisoners of war?

d.   Are Bosnian Serb soldiers captured by UNPROFOR prisoners of war? Even if UNPROFOR captured them in an act of self-defence?

e.   Did the shooting down of the French NATO aircraft violate IHL? May the Bosnian Serb soldiers who shot them down be punished for that attack?

f.    Are the French pilots detained by Bosnian Serb forces prisoners of war, “UN experts on mission” (protected by the relevant multilateral convention), or hostages? (GC III, Art. 4; GC IV, Arts 4 and 34; CIHL Rule 96) Is France engaged in an international armed conflict against Bosnian Serbs?

g.    May the French pilots be detained? Has the ICRC a right to visit them? Must they be released? When? Why would France object to their qualification as prisoners of war? If you were the French pilots, would you prefer to be treated as a prisoner of war under Geneva Convention III or to be protected under the UN Convention on the Safety of UN and Associated Personnel which makes it a crime to attack UN personnel and establishes a duty not to detain them? What are the advantages and disadvantages of both options regarding treatment, repatriation, and the chances that your status is accepted and respected by the enemy?

      [SeeCase - Convention on the Safety of UN Personnel]

20. Since 1992, Srebrenica and its surroundings, with nearly 40,000 inhabitants and displaced persons, were an enclave held by Bosnian government forces, surrounded and regularly attacked by (but sometimes also attacking) Bosnian Serb forces. In 1993, Srebrenica was declared a “safe area” by the UN Security Council, but it was not demilitarized, continued to be submitted to indiscriminate attacks and insufficient relief was brought in. The only expatriate presence was some 300, mainly Dutch, UNPROFOR peace-keepers. International humanitarian organizations failed to establish a permanent expatriate presence, or abandoned it because they lacked opportunities to develop serious assistance or protection activities. In summer 1995, peace negotiations showed a tendency to divide Bosnia-Herzegovina into a Serb entity in the North and the East and a Croat-Muslim entity in the West and the Centre. Srebrenica is located in the East.

    In July 1995, military pressure on Srebrenica increased into a full-fledged offensive with tanks and indiscriminate artillery bombardment. Despite requests by Bosnian government forces (also taking the form of threats, hostage-taking, and attacks against peace-keepers), the Dutch UNPROFOR battalion refused to respond to the Bosnian Serb offensive against Srebrenica. Only on July 11, when Srebrenica had practically already fallen, US military airplanes destroyed one Bosnian Serb tank outside Srebrenica.

    12,000-15,000 men fled Srebrenica, many of them with their weapons, through the woods towards Bosnian government controlled territory. At least 5000 of those men never arrived to that territory, but were killed during Bosnian Serb attacks on the column, which also occurred after men surrendered. Some of them even committed suicide in despair.

    On July 12, Srebrenica fell. Nearly 26,000 men, women, and children tried to take refuge at the UNPROFOR base of Potocari. There, however, Bosnian Serb forces rounded up women and children and sent them by bus toward the front-line, which they often had to cross on foot while exhausted and amid fighting. More than 3000 boys and men of military age were separated from the women and children and arrested, before the eyes of Dutch UNPROFOR soldiers, by the Bosnian Serb forces allegedly to check whether they had committed war crimes. Only a few men who were wounded and later visited by the ICRC and those who managed to escape were ever seen again, and reported that all others had been summarily executed.

    The ICRC, which had not been allowed by Bosnian Serb forces to be present during the events, concentrated on the reception of the displaced on Bosnian government-controlled territory and registered all names of missing men given by their families. The ICRC assumed that at least more than 3000 men arrested at Potocari had to be in Bosnian Serb detention and undertook all possible bilateral steps with the Bosnian Serb authorities to gain access to those prisoners, to monitor their conditions of detention, to register them, and to inform their worried families. However the Bosnian Serb authorities gave evasive answers and used delaying tactics, as all parties had often done during the conflict. Towards the end of July, when the ICRC was finally given access to Bosnian Serb prisons, it found only very few detainees from Srebrenica. The ICRC, however, did not yet abandon the hope that the others were secretly detained and continued to press Bosnian Serb authorities for access. Only when the ICRC was able to see all prisoners in Bosnia-Herzegovina, after the signing of the Dayton Peace Agreement (See infra, point 21.), did it come to the conclusion that the overwhelming majority of the (as of July 1997) more than 7000 missing people from Srebrenica had been killed, mainly after arrest or capture.

a.   Should humanitarian organizations have maintained an expatriate presence in Srebrenica, even when the activities they were able to develop did not justify such a presence? At least for reasons of “passive protection” of the population and to show them that they were not forgotten? Does such “passive protection” work?

b.   How could the UN Security Council have avoided the deaths of 7000 inhabitants of Srebrenica? By not declaring Srebrenica a safe area? By demilitarizing it? By changing the mandate of UNPROFOR? By drastically increasing the number of UNPROFOR personnel to be stationed in Srebrenica? Could it have avoided the massacre without avoiding the fall of Srebrenica? How should it have reacted to the fall in order to avoid the massacre?

c.   Has IHL failed in Srebrenica? How could one have made sure that it worked? Does the case of Srebrenica show the limits of IHL? Does it show that, in certain cases where jus in bello is not respected, only jus ad bellum contains a solution?

d.   How should the Dutch peace-keepers have reacted to the separation of men from women and children and to the arrest of the former? Was that a violation of IHL?

e.    How could humanitarian organizations and human rights organizations have reacted to the news about the fall of Srebrenica in order to avoid the massacre? Particularly if their analysis of the situation led them to the conclusion that the Bosnian Serb forces would slaughter any Bosnian Muslim men they arrest?

f.    Was the reaction of the ICRC to the events of Srebrenica wrong? What could it have done if it had correctly analysed the situation and arrived at the conclusion that the Bosnian Serb forces slaughtered any Bosnian Muslim men they arrested? Should the ICRC at least have abandoned its line when the first allegations of massacres by survivors were collected? Would that have helped any victims of the conflict?

Bosnia and Herzegovina v Serbia and Montenegro

The seal of the ICJ

CourtInternational Court of Justice
Full case nameThe Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro)
Decided26 February 2007
Citation(s)General List No. 91
Transcript(s)Written and oral proceedings
Case opinions

The Court affirms that it has jurisdiction; Serbia has not committed genocide; Serbia has not conspired to commit genocide, nor incited the commission of genocide;

Serbia has not been complicit in genocide; Serbia has violated the obligation to prevent the Srebrenica genocide; Serbia has violated its obligations under the Genocide Convention by having failed to transfer Ratko Mladić to ICTY; Serbia has violated its obligation to comply with the provisional measures ordered by the Court
Court membership
Judge(s) sittingRosalyn Higgins (President), Awn Shawkat Al-Khasawneh (Vice-President), Raymond Ranjeva, Shi Jiuyong, Abdul G. Koroma, Hisashi Owada, Bruno Simma, Peter Tomka, Ronny Abraham, Kenneth Keith, Bernardo Sepúlveda Amor, Mohamed Bennouna, Leonid Skotnikov, Ahmed Mahiou (ad hoc judge appointed by Bosnia and Herzegovina) and Milenko Kreća (ad hoc judge appointed by Serbia and Montenegro)

Bosnia and Herzegovina v Serbia and Montenegro [2007] ICJ 2 (also called the Application of the Convention on the Prevention and Punishment of the Crime of Genocide) is a public international law case decided by the International Court of Justice.

Facts[edit]

Serbia was alleged to have attempted to exterminate the Bosniak (Bosnian Muslim) population of Bosnia and Herzegovina. The claim was filed by Dr. Francis Boyle, an adviser to Alija Izetbegović during the Bosnian War. The case was heard in the International Court of Justice (ICJ) in The Hague, Netherlands, and ended on 9 May 2006.

Following is a schedule of the trial:

  • First round of argument
    • February 27, 2006 through March 7, 2006, Bosnia and Herzegovina
    • March 8, 2006 through March 16, 2006, Serbia and Montenegro
  • Hearing of experts, witnesses and witness-experts
    • March 17, 2006 through March 21, 2006, Bosnia and Herzegovina
    • March 22, 2006 through March 28, 2006, Serbia and Montenegro
  • Second round
    • April 18, 2006 through April 24, 2006, Bosnia and Herzegovina
    • May 2, 2006 through May 9, 2006, Serbia and Montenegro

Judgment[edit]

The ICJ held that the Srebrenica massacre was a genocide. It stated the following:

The Court concludes that the acts committed at Srebrenica falling within Article II (a) and (b) of the Convention were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina as such; and accordingly that these were acts of genocide, committed by members of the VRS in and around Srebrenica from about 13 July 1995.[1]

The Court found—although not unanimously—that Serbia was neither directly responsible for the Srebrenica genocide, nor that it was complicit in it, but it did rule that Serbia had committed a breach of the Genocide Convention by failing to prevent the genocide from occurring and for not cooperating with the International Criminal Tribunal for the former Yugoslavia (ICTY) in punishing the perpetrators of the genocide, in particular General Ratko Mladić, and for violating its obligation to comply with the provisional measures ordered by the Court.[2][3] The then Vice-President of the Court, Awn Shawkat Al-Khasawneh, dissented on the grounds that "Serbia's involvement, as a principal actor or accomplice, in the genocide that took place in Srebrenica is supported by massive and compelling evidence."[4]

The Court found:

(1) by ten votes to five,

Rejects the objections contained in the final submissions made by the Respondent [Serbia] to the effect that the Court has no jurisdiction; ...

(2) by thirteen votes to two,

Finds that Serbia has not committed genocide, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

(3) by thirteen votes to two,

Finds that Serbia has not conspired to commit genocide, nor incited the commission of genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

(4) by eleven votes to four,

Finds that Serbia has not been complicit in genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

(5) by twelve votes to three,

Finds that Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995;

(6) by fourteen votes to one,

Finds that Serbia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having failed fully to co-operate with that Tribunal;

(7) by thirteen votes to two,

Finds that Serbia has violated its obligation to comply with the provisional measures ordered by the Court on April 8 and September 13, 1993 in this case, inasmuch as it failed to take all measures within its power to prevent genocide in Srebrenica in July 1995;

(8) by fourteen votes to one,

Decides that Serbia shall immediately take effective steps to ensure full compliance with its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to co-operate fully with that Tribunal;

(9) by thirteen votes to two,

Finds that, as regards the breaches by Serbia of the obligations referred to in subparagraphs (5) and (7) above, the Court's findings in those paragraphs constitute appropriate satisfaction, and that the case is not one in which an order for payment of compensation, or, in respect of the violation referred to in subparagraph (5), a direction to provide assurances and guarantees of non-repetition, would be appropriate.

— ICJ press release[5]

Dissenting opinion[edit]

The Vice-President of the International Court of Justice, Judge Al-Khasawneh, dissented:

Serbia's involvement, as a principal actor or accomplice, in the genocide that took place in Srebrenica is supported by massive and compelling evidence — Disagreement with the Court's methodology for appreciating the facts and drawing inferences therefrom — The Court should have required the Respondent to provide unedited copies of its Supreme Defence Council documents, failing which, the Court should have allowed a more liberal recourse to inference — The "effective control" test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose — The "overall control" test for attribution established in the Tadić case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non-State actors — The Court's refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY — The FRY's knowledge of the genocide set to unfold in Srebrenica is clearly established — The Court should have treated the Scorpions as a de jure organ of the FRY — The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility — The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly.[4]

Significance[edit]

Serbia's violations of its obligations stem not only from the Convention on the Prevention and Punishment of the Crime of Genocide but also from two "provisional protective measures" issued by the International Court of Justice in April and September 1993. The then Federal Republic of Yugoslavia was ordered explicitly "to do everything in its power to prevent the crimes of genocide and to make sure that such crimes are not committed by military or paramilitary formations operating under its control or with its support." The judges concluded that despite this explicit order, Serbia did nothing in July 1995 to prevent the Srebrenica massacre, although it "should normally have been aware of the serious danger that acts of genocide would be committed."[6]

In reaching this decision, the court referred to the standard set by Nicaragua v. United States,[7] in which the United States was found not to be legally responsible for the actions of the Contra guerillas despite their common goal and widely publicised support.

Furthermore, according to the ICJ's judgement, "it is established by overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia-Herzegovina were perpetrated during the conflict" and that "the victims were in large majority members of the protected group, the Bosniaks, which suggests that they may have been systematically targeted by the killings." Moreover, "it has been established by fully conclusive evidence that members of the protected group were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during the conflict and, in particular, in the detention camps." The Court accepted that these acts, on the part of the Serb forces, had been committed, but that there was inconclusive evidence of the specific intent to destroy the Bosniaks as a group in whole or in part. This includes the period up to 19 May 1992, when Bosnian Serb forces were under the formal control of the Federal Republic of Yugoslavia.[8]

ICJ President Dame Rosalyn Higgins noted that while there was substantial evidence of events in Bosnia and Herzegovina that may amount to war crimes or crimes against humanity, the Court had no jurisdiction to make findings in that regard, as the case dealt "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term."[6][9]

The Court further decided that, following Montenegro's declaration of independence in May 2006, Serbia, Serbia and Montenegro's successor, was the only Respondent party in the case, but that "any responsibility for past events involved at the relevant time the composite State of Serbia and Montenegro."[10]

In reviewing the case in the judgement of Jorgić v. Germany on 12 July 2007 the European Court of Human Rights quoted from the ICJ ruling on the Bosnian Genocide Case to explain that ethnic cleansing was not enough on its own to establish that a genocide had occurred:

"The term 'ethnic cleansing' has frequently been employed to refer to the events in Bosnia and Herzegovina which are the subject of this case ... General Assembly resolution 47/121 referred in its Preamble to 'the abhorrent policy of "ethnic cleansing", which is a form of genocide', as being carried on in Bosnia and Herzegovina. ... It [i.e., ethnic cleansing] can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area 'ethnically homogeneous', nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is 'to destroy, in whole or in part' a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as 'ethnic cleansing' may never constitute genocide, if they are such as to be characterized as, for example, 'deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part', contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while 'there are obvious similarities between a genocidal policy and the policy commonly known as "ethnic cleansing"' (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet '[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.' ..."

— ECHR quoting the ICJ.[11]

See also[edit]

Notes[edit]

References[edit]

ICJ documents
Journals
  • Dimitrijević, Vojin, and Marko Milanović. "The strange story of the Bosnian genocide case." Leiden Journal of International Law 21.1 (2008): 65-94.
News articles
  • IWPR staff. Serbia and Montenegro on Trial for Genocide, TU No 441, Institute for War & Peace Reporting, 24 February 2006
  • Posner, Eric (poster), Article in the Boston Globe: Bosnia v. Serbia on the blog site on the University of Chicago law school 9 March 2006.
  • Traynor, Ian. Court starts hearing Bosnia's genocide claim, The Guardian, 27 February 2006
  • Staff. Bosnia-Herzegovina will win its law suit in The Hague - interview with Srda Popovic, Bosnia Report, Bosnian Institute, 31 May 2006 — An interview with a Serbian legal expert who thought that Bosnia would win the case.
  • Hudson, Alexandra. Serbia cleared of genocide, Reuters, 27 February 2007
  • Simons, Marlise. Genocide Court Ruled for Serbia Without Seeing Full War Archive, The New York Times, April 9, 2007
  • Tosh, Caroline Genocide Acquittal Provokes Legal Debate, TU No 491, Institute for War & Peace Reporting 2 March 2007.
  • Hoare, Marko Attila. The International Court of Justice and the Decriminalisation of Genocide, Bosnia Report, 9 March 2007