S/1994/674 (continued)
I. MANDATE, STRUCTURE AND METHODS OF WORK
A. Mandate
On 6 October 1992 the Security Council adopted resolution 780
(1992), by
which it requested the Secretary-General to establish a Commission
of Experts to examine and analyse, inter alia, information
submitted pursuant to Security Council resolutions 771 (1992) of 13
August 1992 and 780 (1992) of 6 October 1992, with a view to
providing the Secretary-General with its conclusions on the
evidence of grave breaches of the Geneva Conventions and other
violations of international humanitarian law committed in the
territory of the former Yugoslavia.
Furthermore, in its resolution 787 (1992) of 16 November 1992,
the Security Council requested the Commission, inter alia, to
pursue actively its investigations on this matter, in particular
the practice of "ethnic cleansing".
Having considered the recommendations in the interim report of
the Commission of Experts (S/25274, annex I (hereinafter first
interim report)), the Security Council decided in its resolution
808 (1993) of 22 February 1993 that an international tribunal
should be established for the prosecution of persons responsible
for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1991. On
25 May 1993, the Council, by its resolution 827 (1993), acting
under Chapter VII of the Charter of the United Nations, adopted the
statute of the 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 contained in the report of the Secretary-
General (S/25704, annex). To this effect, the Council requested the
Commission, pending the appointment of the Prosecutor of the
International Tribunal, to continue on an urgent basis the
collection of information relating to its mandate.
The Commission took note of references made to it by different
organs and bodies of the United Nations system. Specifically, it took note of
General Assembly resolution 47/147 of 18 December 1992, in which
the Assembly reaffirmed that all persons who perpetrate or
authorize crimes against humanity or other grave breaches of
international humanitarian law are individually responsible for
those breaches and that the international community would exert
every effort to bring them to justice, and called upon
all parties to provide all pertinent information to the Commission.
B. Composition
Pursuant to paragraph 3 of resolution 780 (1992), the Secretary-
General submitted on 14 October 1992 a report to the Security
Council (S/24657), in which he set out the manner in which he
intended to implement the resolution. On 26 October 1992, the
Secretary-General announced the appointment of the Chairman and
four members of the Commission.
As of 26 October 1992, the Commission, whose members serve in
their personal capacity, consisted of Mr. Frits Kalshoven
(Netherlands) as Chairman, Mr. M. Cherif Bassiouni (Egypt), Mr.
William J. Fenrick (Canada), Mr. Keba M'baye (Senegal) and Mr.
Torkel Opsahl (Norway).
On 19 October 1993, owing to the resignation of Mr. Kalshoven
for medical reasons and the untimely death of Mr. Opsahl, the
Commission was reorganized. Subsequently, the Secretary-General
appointed Mr. Bassiouni as Chairman and Ms. Christine Cleiren
(Netherlands) and Ms. Hanne Sophie Greve (Norway) as new members.
C. Internal working methods
Internal working methods of the Commission were defined in its
rules of procedure adopted in January 1993 (S/25274, annex I,
appendix).
The Commission has held 12 sessions, at which it discussed a
number of substantive, methodological and organizational problems
related to its mandate. *1 At its final session, the Commission
unanimously adopted the present report.
Pursuant to rule 10, paragraph 1, of its rules of procedure,
the Commission appointed rapporteurs for several general and
specific questions. Thus, Mr. Bassiouni was appointed Rapporteur
for the Gathering and Analysis of Facts; Mr. Fenrick, Rapporteur
for On-site Investigations as well as Rapporteur on Issues of Law;
and Ms. Greve, Rapporteur on the Prijedor Project. Mr. M'baye and
Ms. Cleiren were assigned to study and report on the
destruction of cultural property and on legal aspects of sexual
assault, respectively.
Pursuant to rule 10, paragraph 2, of the rules of procedure,
the Commission submitted two interim reports to the Secretary-
General, which were approved by the Commission at its third and
seventh sessions respectively
(S/25274, annex I, and S/26545, annex (hereinafter second interim
report)).
D. Funding of the work of the Commission
The resources to finance the work of the Commission were
provided in
part from the regular budget of the United Nations (Office of Legal
Affairs) and the Trust Fund for the Commission of Experts
established on 26 March 1993 pursuant to Security Council
resolution 780 (1992).
While the Secretary-General had indicated that he would
endeavour to meet the expenses of the Commission as far as possible
through existing
resources, the Commission was provided with additional funding for
a period of 9 months, from 1 December 1992 to 31 August 1993. This
funding covered the compensation and travel of the members, as well
as the travel and subsistence of staff members assigned from the
Office of Legal Affairs. The additional funding also provided for
general temporary assistance and permitted the recruitment of two
secretaries.
At the end of August 1993, after the expiration of the initial
budget period, the Commission was informed that funds would be
allocated to cover its activities until 31 December 1993 from
existing resources, namely, the budget of the Office of Legal
Affairs.
At the beginning of 1994, the Commission was informed that
there would be no allocation to cover the activities of the
Commission from the regular budget and that only three Professional
posts could be provided by the Office
of Legal Affairs. All the other expenditures, including
investigative missions and remuneration, travel and subsistence of
the Secretariat staff, as well as remuneration of two secretaries
and an administrative assistant, would be provided from the Trust
Fund.
As stated above, the Secretary-General established on 26 March
1993 a Trust Fund to assist the Commission in its work. On 24 May
1993, he requested Governments to consider contributing to the
Commission in terms of financial resources or personnel. The total
amount of contributions to the Trust Fund was $1,320,631. The
contributions to the Trust Fund, however, did not become effective
before July/August 1993. Commission investigations were
funded by the Trust Fund.
The Commission's database was financed exclusively through
funds provided by DePaul University's International Human Rights
Law Institute. That financing amounted to over $1 million as at 30
April 1994. *2
E. Coordination and cooperation with other bodies and organizations
F. Investigation methods employed by the Commission
The Commission employed three methods of investigation:
- Collection and analysis of information sent to or requested
by the Commission;
- Undertaking of investigative missions in the territory of
the former Yugoslavia or in other countries in order to obtain
additional information, take testimony and, as far as possible,
verify facts;
- Information gathering on behalf of the Commission by
certain Governments in different countries.
1. Collection and analysis of information
Pursuant to the requests contained in Security Council
resolutions 771 (1992) and 780 (1992) and through other sources,
the Commission received over 65,000 pages of documentation, as well
as printed and video information, containing allegations of grave
breaches of the Geneva Conventions and other violations of
international humanitarian law committed in the territory of
the former Yugoslavia (see annex I.A). In addition, the Commission
has solicited documentation and supplemental information from
various sources relating to the situation in the territory of the
former Yugoslavia. The
analysis of this large volume of allegations tends to confirm the
reported large-scale victimization, although the Commission has not
always been able to verify all the information contained in these
reports.
From December 1992, the Commission set up a database designed
to provide a comprehensive, consistent and manageable record of all
reported alleged
grave breaches of the Geneva Conventions and other violations of
international humanitarian law being committed in the territory of
the former Yugoslavia. The inputting of information into the
database was effected in the International Human Rights Law
Institute of DePaul University (Chicago, United States of America)
under the supervision of the Rapporteur for the Gathering and
Analysis of Facts, who was also the President of the Institute
and the Chairman of the Commission. The information was received
from several Governments, which made official submissions, as well
as from intergovernmental and non-governmental bodies. In
addition, it included information received from United Nations
bodies. The database also contained information from open sources
and media reports.
The database has been transferred to the Office of the
Prosecutor of the 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.
2. Investigative missions
3. Information gathering on behalf of the Commission
by certain Governments
4. Confidentiality of information
G. Plan of work of the Commission
The Commission, in its first interim report (S/25274, annex I,
paras. 65 and 66), adopted a plan of work, which included:
- Updating of its database;
- Conducting selective in-depth investigations in the following areas:
- Mass killing and destruction of property;
- Treatment of prisoners and detainees;
- Systematic sexual assaults;
- "Ethnic cleansing".
This plan of work was endorsed by the Secretary-General in his
letter dated 9 February 1993 addressed to the President of the
Security Council (ibid.).
Subsequently, the Commission added to its specific projects a
special case study on Prijedor.
Owing to personnel and time constraints, as well as limited
financial resources, the Commission was compelled to adopt a
selective approach in its
work. It was not practicable to investigate exhaustively or
otherwise attempt to verify every allegation of a violation of
international humanitarian law committed in the territory of the
former Yugoslavia. In its choice and method of conducting research
projects or investigations, the Commission endeavoured, at all
times, to be both impartial and balanced.
H. Conclusion of the work of the Commission
I. Acknowledgements
The Commission wishes to acknowledge with gratitude the
support it received from the following Governments: Austria,
Bosnia and Herzegovina, Canada, Croatia, Czech Republic, Denmark,
Finland, France, Germany, Hungary, Iceland, Liechtenstein,
Micronesia (Federated States of), Morocco, Netherlands, New
Zealand, Norway, Slovenia, Sweden, Switzerland, Turkey, United
Kingdom of Great Britain and Northern Ireland, United States of
America and Yugoslavia.
This support was in the nature of financial contributions to
the Trust Fund, *4 contributed personnel, officially submitted
reports, assistance in taking testimony and general support of the
Commission's investigations, particularly by the Governments of
Croatia, Bosnia and Herzegovina, Slovenia and the Federal Republic
of Yugoslavia.
The Commission also wishes to acknowledge the logistical and
administrative support of the United Nations Protection Force
(UNPROFOR).
Lastly, the Commission gratefully acknowledges the
contributions of many
non-governmental organizations, not all of which can be
specifically referred to in this report (see annex I.C for a
complete list), but two deserve particular mention: Physicians for
Human Rights and Human Rights Watch Helsinki.
J. Nature of the report
II. APPLICABLE LAW
A. International/non-international character of the conflict
Classification of the various conflicts in the former
Yugoslavia as international or non-international depends on
important factual and legal issues. If a conflict is classified as
international, then the grave breaches of the Geneva Conventions,
*6 including Additional Protocol I, *7
apply as well as violations of the laws and customs of war. The
treaty and customary law applicable to international armed
conflicts is well-established. The treaty law designed for
internal armed conflicts is in common article 3 of the Geneva
Conventions, Additional Protocol II of 1977, *8 and article 19 of
the 1954 Hague Convention for the Protection of Cultural Property
in the Event of Armed Conflict. *9 These legal sources do
not use the terms "grave breaches" or "war crimes". Further, the
content of customary law applicable to internal armed conflict is
debatable. As a result, in general, unless the parties to an
internal armed conflict agree otherwise, the only offences
committed in internal armed conflict for which universal
jurisdiction exists are "crimes against humanity" and genocide,
which apply irrespective of the conflicts' classification.
To date, the major conflicts in the territory of the former
Yugoslavia have occurred in Croatia and in Bosnia and Herzegovina.
Determining when these conflicts are internal and when they are
international is a difficult task because the legally relevant
facts are not yet generally agreed upon. This task is one which
must be performed by the International Tribunal.
However, as indicated in paragraph 45 of its first interim
report, the Commission is of the opinion that the character and
complexity of the armed conflicts concerned, combined with the web
of agreements on humanitarian law that the parties have concluded
among themselves, justifies the Commission's approach in applying
the law applicable in international armed conflicts to
the entirety of the armed conflicts in the territory of the former
Yugoslavia.
B. Grave breaches of the Geneva Conventions of 1949 and Protocols I and II
"Grave breaches" are specified major violations of
international humanitarian law which may be punished by any State
on the basis of universal jurisdiction. Grave breaches are listed
in article 50 of the First Geneva Convention (wounded and sick),
article 51 of the Second Geneva Convention
(maritime), article 130 of the Third Geneva Convention (prisoners
of war), and article 147 of the Fourth Geneva Convention
(civilians) of 1949. Grave breaches are also listed in articles
11, paragraph 4, and 85 of Additional Protocol I of 1977. The
"grave breaches" provisions of the Geneva Conventions and Protocol
I are only relevant during an international armed conflict. Common
article 3 of the four Geneva Conventions and Additional
Protocol II of 1977 are both applicable during internal armed
conflicts, but neither of these documents makes any reference to
grave breaches.
Under all four Conventions, grave breaches prohibit, inter
alia, wilful killing, torture, rape or inhuman treatment of
protected persons, including biological experiments, wilfully
causing great suffering or serious injury to body or health, and
extensive destruction and appropriation of property, not justified
by military necessity and carried out unlawfully and wantonly.
In the case of prisoners of war, it is also a grave breach to
compel a prisoner of war to serve in the forces of the hostile
power or to deprive him of his rights to a fair and regular trial.
In the case of civilians in the hands of the adverse party, it is
also a grave breach to:
- Unlawfully deport or transfer a protected person;
- Unlawfully confine a protected person;
- Compel a protected person to serve in the forces of a hostile power;
- Wilfully deprive a protected person of the rights of fair
and regular trial prescribed;
- Take hostages.
Article 11 of Additional Protocol I makes a number of medical
practices grave breaches of the Protocol.
Under article 85, paragraph 3, of Additional Protocol I, the
following acts constitute grave breaches if committed wilfully, in
violation of the relevant provisions of the Protocol, and causing
death or serious injury to body or health:
"(a) Making the civilian population or individual
civilians the object of attack;
"(b) Launching an indiscriminate attack affecting the
civilian population or civilian objects in the knowledge that
such attack will
cause excessive loss of life, injury to civilians or damage to
civilian objects ...;
"(c) Launching an attack against works or installations
containing dangerous forces in the knowledge that such attack
will cause excessive loss of life, injury to civilians or
damage to civilian objects ...;
"(d) Making non-defended localities and demilitarized zones
the object of attack;
"(e) Making a person the object of attack in the knowledge
that he is hors de combat;
"(f) The perfidious use ... of the distinctive emblem of
the red cross, red crescent or red lion and sun or of other
protective signs recognized by the Conventions or this
Protocol."
Additional Protocol I also provides, in article 85, paragraph
4 that certain acts are grave breaches when committed wilfully and
in violation of the Conventions or Protocol, namely:
"(a) The transfer by an Occupying Power of parts of its own
civilian population into occupied territory it occupies or the
deportation or transfer of all or parts of the population of
that territory within or out of this territory ...;
"(b) Unjustifiable delay in the repatriation of prisoners
of war or civilians;
"(c) Practices of apartheid and other inhuman and degrading
practices involving outrages upon personal dignity, based on
racial discrimination;
"(d) Making the clearly-recognized historic monuments,
works of art or places of worship which constitute the cultural
or spiritual heritage of peoples and to which special
protection has been given by special arrangement, ... the
object of attack, causing as a result extensive destruction
thereof, where there is no evidence of (prior use of such
objects in support of the adverse party's military effort), and
when such (places) are not located in the immediate proximity of military
objectives;
"(e) Depriving any person protected by the Conventions (or
the Protocol) of fair and regular trial."
It must be noted that the statute of the International Tribunal
refers to grave breaches of the Geneva Conventions of 1949 in
article 2 and to violations of the laws or customs of war in
article 3. It does not refer explicitly to grave breaches of
Additional Protocol I. Many of the grave breaches of Additional
Protocol I also constitute violations of the laws and customs of
war.
C. Customary international law of armed conflict
D. Command responsibility
The Commission addressed the matter of command responsibility
in paragraphs 51 through 53 of its first interim report as follows:
"51. A person who gives the order to commit a war crime or
crime against humanity is equally guilty of the offence with
the person actually committing it. This principle, expressed
already in the Geneva Conventions of 1949, applies to both the
military superiors, whether of regular or irregular armed
forces, and to civilian authorities.
"52. Superiors are moreover individually responsible for a war
crime or crime against humanity committed by a subordinate if
they knew, or had information which should have enabled them to
conclude, in the circumstances at the time, that the
subordinate was committing or was going to commit such an act
and they did not take all feasible measures within their power
to prevent or repress the act.
"53. Military commanders are under a special obligation, with
respect to members of the armed forces under their command or
other persons under their control, to prevent and, where
necessary, to suppress such acts and to report them to
competent authorities."
The Commission notes with satisfaction that article 7 of the
statute of the International Tribunal uses an essentially similar
formulation.
The doctrine of command responsibility is directed primarily at
military commanders because such persons have a personal obligation
to ensure the maintenance of discipline among troops under their
command. Most legal cases
in which the doctrine of command responsibility has been considered
have involved military or paramilitary accused. Political leaders
and public officials have also been held liable under this doctrine
in certain circumstances.
It is the view of the Commission that the mental element
necessary when
the commander has not given the offending order is (a) actual
knowledge, (b) such serious personal dereliction on the part of the
commander as to constitute wilful and wanton disregard of the
possible consequences, or (c) an imputation of constructive
knowledge, that is, despite pleas to the contrary, the commander,
under the facts and circumstances of the particular case, must have
known of the offences charged and acquiesced therein. To
determine whether or not a commander must have known about the acts
of his subordinates, one might consider a number of indices,
including:
- The number of illegal acts;
- The type of illegal acts;
- The scope of illegal acts;
- The time during which the illegal acts occurred;
- The number and type of troops involved;
- The logistics involved, if any;
- The geographical location of the acts;
- The widespread occurrence of the acts;
- The tactical tempo of operations;
- The modus operandi of similar illegal acts;
- The officers and staff involved;
- The location of the commander at the time.
The military commander is not absolutely responsible for all
offences committed by his subordinates. Isolated offences may be
committed of which he has no knowledge or control whatsoever. As
a fundamental aspect of command, however, a commander does have a
duty to control his troops and to take all practicable measures to
ensure that they comply with the law. The
arguments that a commander has a weak personality or that the
troops assigned to him are uncontrollable are invalid. In
particular, a military commander who is assigned command and
control over armed combatant groups who have engaged in war crimes
in the past should refrain from employing such groups in combat,
until they clearly demonstrate their intention and capability to
comply with the law in the future. Thus, a commander has a duty to
do everything reasonable and practicable to prevent violations of the
law. Failure to carry out such a duty carries with it
responsibility.
Lastly, a military commander has the duty to punish or
discipline those under his command whom he knows or has reasonable
grounds to know committed a violation.
E. Superior orders
F. Reprisals
A reprisal must be distinguished from a simple act of
retaliation or vengeance. An unlawful act committed under the
guise of retaliation or
vengeance remains unlawful, and the claim of retaliation or
vengeance is no defence.
A reprisal is an otherwise illegal act resorted to after the
adverse party has himself indulged in illegal acts and refused to
desist therefrom after being called upon to do so. The purpose of
a reprisal is to compel the
adverse party to terminate its illegal activity. It must be
proportionate to the original wrongdoing and must be terminated as
soon as the original wrongdoer ceases his illegal actions. The
proportionality is not strict, for if the reprisal is to be
effective, it will often be greater than the original wrongdoing.
Nevertheless, there must be a reasonable relationship between the
original wrong and the reprisal measure.
However, reprisals against the following categories of persons
and objects are specifically prohibited:
- The wounded, sick, personnel, buildings or equipment
protected by the First Geneva Convention (art. 46);
- The wounded, sick and shipwrecked persons, the personnel,
the vessels and equipment protected by the Second Geneva Convention
(art. 47);
- Prisoners of war (Third Geneva Convention, art. 13 and
Additional Protocol I, art. 44);
- Civilians in the hands of a party to the conflict of which
they are not nationals, including inhabitants of occupied territory
(Fourth Geneva Convention, art. 33 and Additional Protocol I, art.73);
- Civilians (Additional Protocol I, art. 51, para. 6);
- Civilian objects (Additional Protocol I, art. 52, para. 1);
- Cultural objects and places of worship (Additional Protocol
I, art. 53 (c));
- Objects indispensable to the survival of the civilian
population (Additional Protocol I, art. 54, para. 4);
- The natural environment (Additional Protocol I, art. 55, para. 2);
- Works and installations containing dangerous forces
(Additional Protocol I, art. 56, para. 4).
There is no ban on reprisals contained in common article 3 and
Additional Protocol II applicable to internal armed conflict. In
international armed conflicts to which the four Geneva Conventions
and Additional Protocol I
apply, lawful reprisals as defined above must be directed
exclusively against combatants or other military objectives subject
to the limitations contained in the Geneva Conventions, Protocol I
and customary international law of armed conflicts. In
international armed conflicts where Additional Protocol
I does not apply, reprisals may be directed against a much wider
category of persons and objects, but subject to the limitations of
customary international law of armed conflicts.
G. Interference with humanitarian aid convoys
Interference with humanitarian aid convoys is a practice which
has been all too prevalent in the various conflicts in the former
Yugoslavia.
The Commission is of the view that, when and where the law
relating to
international armed conflicts applies, the provisions of article 54
of Additional Protocol I are also applicable. This article states
in part:
"1. Starvation of civilians as a method of warfare is
prohibited.
"2. It is prohibited to attack, destroy, remove or render
useless objects
indispensable to the survival of the civilian population, such
as foodstuffs, agricultural areas for the production of
foodstuffs, crops, livestock, drinking water installations and
supplies and irrigation works, for the specific purpose of
denying them for their sustenance value to the civilian
population or to the adverse Party, whatever the motive,
whether in order to starve out civilians, to cause them to move
away or for any other motive."
The use of starvation as a method of war, regardless of the
modalities used, is also contrary to the customary law applicable
in international armed conflicts.
The Commission also considers article 70, paragraphs 2 to 4, of
Additional Protocol I to apply:
"2. The parties to the conflict and each High Contracting Party
shall allow and facilitate rapid and unimpeded passage of all
relief consignments, equipment and personnel provided in
accordance with this
Section, even if such assistance is destined for the civilian
population of the adverse party.
"3. The parties to the conflict and each High Contracting Party
which allow the passage of relief consignments, equipment and
personnel in accordance with paragraph 2:
"(a) Shall have the right to prescribe the technical
arrangements, including search, under which such passage is
permitted;
"(b) May make such permission conditional on the
distribution of this assistance being made under the local supervision of a
Protecting Power;
"(c) Shall, in no way whatsoever, divert relief
consignments from the purpose for which they are intended nor
delay their forwarding, except in cases of urgent necessity in
the interest of the civilian population concerned.
"4. The parties to the conflict shall protect relief
consignments and facilitate their rapid distribution."
The Commission deplores any acts taken to interfere with
humanitarian aid convoys, as the safe and expeditious passage of
these convoys is essential to the well-being of the civilian
population.
H. Crimes against humanity
Article 5 of the statute of the International Tribunal affirms
the competence of the International Tribunal to prosecute persons
committing "crimes against humanity", which are defined as
specified acts "committed in armed conflict, whether international
or internal in character, and directed
against any civilian population," such as national, political,
ethnic, racial or religious groups.
The definition of "crimes against humanity" in article 5 of the
statute codifies accepted principles of international law
applicable erga omnes. As ascertained by the International
Military Tribunal at Nuremberg, there are
"elementary dictates of humanity" to be recognized under all
circumstances. The General Assembly in its resolution 95 (I) of 11
December 1946 affirmed the principles of international law
recognized by the Charter of the Nuremberg Tribunal and the
judgement of the Tribunal. *10
The Nuremberg application of "crimes against humanity" was a
response to
the shortcoming in international law that many crimes committed
during the Second World War could not technically be regarded as
war crimes stricto sensu on account of one or several elements,
which were of a different nature. It was, therefore, conceived to
redress crimes of an equally serious character and on a vast scale,
organized and systematic, and most ruthlessly carried out.
1. Armed conflict
Crimes against humanity apply to all contexts. They are not,
therefore, confined to situations of international armed conflict,
but also apply to all
armed conflicts including internal ones - civil wars and
insurrection - and whatever casus mixtus may arise in between
internal and international armed conflict. Thus, it includes all
armed conflicts, whether they are of an international or non-
international character. However, not every act committed by force
of arms is an armed conflict; a genuine armed conflict has to be
distinguished from a mere act of banditry or an unorganized and
short-lived insurrection. Crimes against humanity are also no
longer dependent on their linkage to crimes against peace or war
crimes.
Articles 2 and 3 of the statute of the 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 address grave breaches of the Geneva
Conventions of 1949 and violations of the laws and customs of war.
Article 5, which concerns crimes against humanity, contains minimum
provisions which must be respected, a fortiori, whether or not
articles 2 or 3 are applicable to a specific conflict.
2. Protected persons
Article 5 of the statute of the International Tribunal protects
"any civilian population", which undoubtedly includes the whole of
the populations of the area afflicted by the armed conflict,
without any adverse distinction based, in particular, on race,
nationality, religion or political opinion. Refugees are not
different from other civilians, and as such are protected
within the meaning of "civilian population". "Civilian population"
is used in this context in contradistinction to combatants or
members of armed forces.
It seems obvious that article 5 applies first and foremost to
civilians, meaning people who are not combatants. This, however,
should not lead to any
quick conclusions concerning people who at one particular point in
time did bear arms. One practical example: in the former
Yugoslavia, large-scale arbitrary killings were one of the
hallmarks of attacks by a given group. Information about such
arbitrary killings was then used by the same group to instill fear
and demand total subjugation of the other group in other areas as
well. Many of the most barbarous onslaughts on villages started
with heavy artillery bombardments followed by the villages being stormed
by infantry in tandem, while paramilitary groups sought the
inhabitants in each and every house. A head of family who under
such circumstances tries to protect his family gun-in-hand does not
thereby lose his status as a civilian. Maybe the same is the case
for the sole policeman or local defence guard doing the same, even
if they joined hands to try to prevent the
cataclysm. Information of the overall circumstances is relevant
for the interpretation of the provision in a spirit consistent with
its purpose. Under such circumstances, the distinction between
improvised self-defence and actual military defence may be subtle,
but none the less important. This is no less so when the
legitimate authorities in the area - as part and parcel of an
overall plan of destruction - had previously been given an
ultimatum to arm all the local defence guards.
The International Military Tribunal at Nuremberg stated the
following concerning crimes against humanity and the importance of
the overall circumstances:
"The defendant contends that stealing the personal property
of Jews and other concentration camp inmates is not a crime
against humanity. But under the circumstances which we have
here related (emphasis added), this plea is and must be
rejected. What was done was done pursuant to a government
policy, and the thefts were part of a program of extermination
and were one of its objectives. It would be a strange doctrine
indeed, if, where part of the plan and one of the objectives of murder
was to obtain the property of the victim, even to the extent of
using the hair from his head and the gold of his mouth, he who
knowingly took part in disposing of the loot must be exonerated
and held not guilty as a participant in the murder plan.
Without doubt all such acts are crimes
against humanity and he who participates or plays a consenting
part therein is guilty of a crime against humanity."
*11
It is significant to note that Protocol II to the Geneva
Conventions of 1949 Relating to the Protection of Victims of Non-
International Armed Conflicts addresses "fundamental guarantees" in
article 4 and includes in the
protected group "all persons who do not take a direct part or who
have ceased to take part in hostilities".
3. Acts constituting crimes against humanity
The different acts constituting crimes against humanity are
enumerated in article 5 of the statute of the 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.
Such acts are: "murder, extermination, enslavement, deportation,
imprisonment, torture, rape, persecutions on political, racial and
religious grounds and other inhumane acts". "Other inhumane acts"
covers serious crimes of a nature similar to the other crimes
cited. It is not equally obvious if the eiusdem generis principle
of interpretation will rule out a wider
interpretation. It is necessary to ascertain that the acts
included in the concept of "crimes against humanity" correspond to
what is already considered part of international customary law.
In the context of crimes against humanity, it is relevant to
observe that the same kind of prohibited acts listed in common
article 3 (relevant to
conflicts not of an international character) in the four Geneva
Conventions of 1949, and in Protocol II to the Geneva Conventions
are mere codification of elementary dictates of humanity. Article
3 prohibits "violence to life and person, in particular murder of
all kinds, mutilation, cruel treatment and torture; taking of
hostages; outrages upon personal dignity, in particular humiliating
and degrading treatment; and the passing of sentences
and the carrying out of executions without previous judgment
pronounced by a regularly constituent court, affording all the
judicial guarantees which are recognized as indispensable by
civilized peoples". Article 4 bans "violence to the life, health
and physical or mental well-being of persons, in particular murder,
as well as cruel treatment such as torture, mutilation or any form
of corporal punishment; collective punishment; taking of hostages;
acts of terrorism; outrages upon personal dignity, in particular
humiliating and degrading treatment, rape, enforced prostitution
and any form of indecent assaults; slavery and the slave trade in
all their forms; pillage; and threats to commit any of the
foregoing acts". The former Yugoslavia signed Protocol II on 11
June 1979 and ratified it that same day, without reservations,
declarations or objections.
Crimes against humanity are not confined to situations where
there exists an intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such, which are
preconditions for genocide. Crimes against humanity are, however,
serious international violations directed against the protected
persons, in contradistinction to a fate befalling them
merely as a side-effect, for example, of a military operation
dictated by military necessity.
4. Widespread and systematic nature of the acts
Isolated acts constituting offences, such as extra-judicial
executions or other common crimes punishable under municipal law,
do not qualify as crimes against humanity by themselves. The acts
must be part of a policy of persecution or discrimination. In
addition, the acts must be carried out in a systematic way or by
means of a mass action. Thus, the number of victims
and perpetrators are characteristically high. Because the
perpetrators have a common plan containing the elements described
above, they need not resort to the same means or acts against their
victims. It is the systematic process of victimization against the
protected group which is essential. For
example, a number of interviewees reported that some persons had
been crucified, but it is not necessary that all victims of the
protected group be crucified or that this particular inhumane act
be recognized in and of itself to be part of a crime against
humanity. It is the overall context of large-scale victimization
carried out as part of a common plan or design which goes
to the element of systematicity.
It should be noted that the ensuing upsurge in crimes that
follows a general breakdown of law and order does not qualify as
crimes against humanity. However, a general breakdown in law and
order may be a premeditated instrument, a situation carefully
orchestrated to hide the true
nature of the intended harm. Thus, it should not be accepted at
face value that the perpetrators are merely uncontrolled elements,
especially not if these elements target almost exclusively groups
also otherwise discriminated against and persecuted. Unwillingness
to manage, prosecute and punish uncontrolled elements may be
another indication that these elements are, in reality, but a
useful tool for the implementation of a policy of crime
against humanity.
Crimes against humanity may also amount to extermination of
national, ethnical, racial, religious or other groups, whether or
not the intent that makes such crimes punishable as genocide can be
proven. They may also, through inhumane acts, amount to large-
scale human degradation. The scale
and nature of such crimes become of special significance and of
concern to the international community because of the abhorrent
character of the overall policy, the means employed to carry out
the policy and the number of victims it produces.
I. Genocide
The 1948 Convention on the Prevention and Punishment of the
Crime of Genocide states that "genocide is a crime under
international law, contrary to the spirit and aims of the United
Nations and condemned by the civilized world", and that "at all
periods of history genocide has inflicted great
losses on humanity". *12
The Convention was manifestly adopted for humanitarian and
civilizing purposes. Its objectives are to safeguard the very
existence of certain human groups and to affirm and emphasize the
most elementary principles of humanity and morality. In view of
the rights involved, the legal obligations
to refrain from genocide are recognized as erga omnes.
When the Convention was drafted, it was already envisaged that
it would apply not only to then existing forms of genocide, but
also "to any method that might be evolved in the future with a view
to destroying the physical
existence of a group". *13 As emphasized in the preamble to the
Convention, genocide has marred all periods of history, and it is
this very tragic recognition that gives the concept its historical
evolutionary nature.
The Convention must be interpreted in good faith, in accordance
with the ordinary meaning of its terms, in their context, and in
the light of its
object and purpose. Moreover, the text of the Convention should be
interpreted in such a way that a reason and a meaning can be
attributed to every word. No word or provision may be disregarded
or treated as
superfluous, unless this is absolutely necessary to give effect to
the terms read as a whole. *14
Genocide is a crime under international law regardless of
"whether committed in time of peace or in time of war" (art. I).
Thus, irrespective
of the context in which it occurs (for example, peace time,
internal strife, international armed conflict or whatever the
general overall situation) genocide is a punishable international
crime.
The acts specified in the Convention must be "committed with
intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such" (art. II).
1. The extent of destruction of a group
Destruction of a group in whole or in part does not mean that
the group in its entirety must be exterminated. The words "in whole or in
part" were inserted in the text to make it clear that it is not
necessary to aim at killing all the members of the group. *15
If essentially the total leadership of a group is targeted, it
could also amount to genocide. Such leadership includes political
and administrative
leaders, religious leaders, academics and intellectuals, business
leaders and others - the totality per se may be a strong indication
of genocide regardless of the actual numbers killed. A
corroborating argument will be the fate of the rest of the group.
The character of the attack on the leadership must be viewed in the
context of the fate or what happened to the rest of the group. If
a group has its leadership exterminated, and at the
same time or in the wake of that, has a relatively large number of
the members of the group killed or subjected to other heinous acts,
for example deported on a large scale or forced to flee, the
cluster of violations ought to be considered in its entirety in
order to interpret the provisions of the Convention in a spirit
consistent with its purpose. Similarly, the extermination of a
group's law enforcement and military personnel may be a
significant section of a group in that it renders the group at
large defenceless against other abuses of a similar or other
nature, particularly if the leadership is being eliminated as well.
Thus, the intent to destroy the fabric of a society through the
extermination of its leadership, when accompanied by other acts of
elimination of a segment of society, can also be deemed genocide.
2. The groups protected
National, ethnical, racial or religious groups are all
protected. The
different groups relevant to the conflict in the former Yugoslavia
- the Serbs, the Croats, the Muslims, the Gypsies and others - all
have status as ethnic groups, and may, at least in part, be
characterized by religion, ethnicity and nationality. It is not a
condition that the victim group be a minority, it might as well be
a numerical majority.
If there are several or more than one victim groups, and each
group as such is protected, it may be within the spirit and purpose
of the Convention to consider all the victim groups as a larger
entity. The case being, for example, that there is evidence that
group A wants to destroy in whole or in
part groups B, C and D, or rather everyone who does not belong to
the national, ethnic, racial or religious group A. In a sense,
group A has defined a pluralistic non-A group using national,
ethnic, racial and religious criteria for the definition. It seems
relevant to analyse the fate of the non-A group along similar lines
as if the non-A group had been
homogenous. This is important if, for example, group B and to a
lesser degree group C have provided the non-A group with all its
leaders. Group D, on the other hand, has a more marginal role in
the non-A group community because of its small numbers or other
reasons. Genocide, "an odious scourge" which the Convention
intends "to liberate mankind from" (preamble), would as a legal
concept be a weak or even useless instrument if the overall
circumstances of mixed groups were not covered. The core of this
reasoning is that in one-against-everyone-else cases the question
of a significant number or a significant section of the group must
be answered with reference to all the target groups as a larger
whole.
3. Intent
4. Acts constituting the crime of genocide
5. Punishable acts
Article III of the Convention lists the punishable acts as
being: "genocide, conspiracy to commit genocide, direct or public
incitement to
commit genocide, attempt to commit genocide and complicity in
genocide". This enumeration indicates how far the crime needs to
have advanced before it becomes punishable. For example, an
attempt will suffice. Secondly, it describes what kind of
involvement in actual genocide may result in penal
responsibility under the Convention. Thus, criminal responsibility
extends to those involved in incitement, conspiracy and attempt, as
well as individuals actually executing the specific acts prohibited
by the Convention. Political masterminds or propaganda people are
no less responsible than the individuals who perform the actual
carnage. There are,
therefore, several legal bases for criminal responsibility of
individuals who engage in or are part of the various aspects of
genocide.
6. Culpability
7. The statute of the 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
J. Legal aspects of rape and other sexual assaults
*16
Rape constitutes a crime under international humanitarian
law as well as under the criminal laws of the various republics
which constituted the former Yugoslavia. It is also part of the
substantive applicable law of the statute of the International
Tribunal where it is referred to in several articles. *17
Unlike most codified penal laws in the world, in
international humanitarian law rape is not precisely defined. But
on the basis of the contemporary criminal laws of the world's major
criminal justice systems, the
Commission considers rape to be a crime of violence of a sexual
nature against the person. This characteristic of violence of a
sexual nature also applies to other forms of sexual assault against
women, men *18 and children, *19 when these activities are
performed under coercion or threat of force and include sexual
mutilation. *20 It should be noted that irrespective of their
definition, acts of sexual assault against women, men
and children are prohibited by international humanitarian law
through normative provisions prohibiting violence against the
physical integrity and dignity of the person. Therefore, rape and
other sexual assaults are covered in pari materia.
Even though sexual assaults imply the commission of the
crime by a given perpetrator, persons who do not perform the act
but are indirectly involved in the commission of this crime, like
decision-makers and superiors, are also responsible under the
Genocide Convention (art. III) and general norms of command
responsibility (see paras. 55 - 60).
Violations of the laws and customs of war applicable to
conflicts of an international character are contained in a number
of international instruments. The Hague Convention (IV) Respecting
the Laws and Customs of War on Land deals with the question of
sexual assaults in article 46: "Family honour and rights, the
lives of persons and private property, as well
as religious convictions and practice, must be respected." The
Fourth Geneva Convention explicitly prohibits rape in article 27.
The Commission deems that article 147 of the same Convention on
"grave breaches" includes rape and other sexual assaults as
constituting "torture or inhumane treatment" and that they are also
prohibited because they are among those acts "wilfully causing
great suffering or serious injury to body or health". Furthermore,
Protocol I to the Geneva Conventions contains in article 76 an
express prohibition of rape and other sexual assaults. In
addition, such practices which are based on racial discrimination
also constitute "grave breaches" under article 85, paragraph 4 of
Protocol I, which holds that "inhuman and degrading practices
involving outrage upon personal dignity, based on racial
discrimination" are prohibited. It is also considered that article
27 of the Fourth Geneva Convention constitutes part of customary
international law, thus also establishing a basis for universal
jurisdiction. Furthermore, it should be noted with respect to
Protocol I, that the provisions of article 85, when violated on the
basis of racial discrimination, also constitute a violation of
customary international law. Under all of these provisions, a
single act of rape or sexual assault constitutes a war crime. As
a "grave breach", this type of violation falls under universal jurisdiction.
The perpetrator, however, must be a person who is linked to one of
the parties to the conflict and the victim must be linked to
another party to the conflict or be a citizen of a neutral State.
It is also held that article 76 of Protocol I is applicable to
victims who are not protected by other provisions of the four
Geneva Conventions.
With respect to provisions applicable to conflicts of a
non-international character, common article 3 to the four Geneva
Conventions applies, as does article 4, paragraph 2 of Protocol II.
Both of these provisions include a prohibition against rape and
other sexual assaults in so far as they constitute wilful injury to
the person. A single act is
enough to constitute such a violation when the perpetrator is
linked to one of the parties to the conflict and the victim is
linked to another party to the conflict or is a citizen of a
neutral State. Under Protocol II, such prohibited acts constitute
a violation when the conflict takes place "in the territory of a
High Contracting Party between its armed forces and dissident
forces or other organized groups which, under responsible command,
exercise such control over a part of its territory as to enable
them to carry out sustained and concerted military operations and
to implement this Protocol" (art. 1, para. 1).
Two other sources of international humanitarian law apply
to the prohibition of sexual assault and rape irrespective of the nature
and characterization of the conflict. They are the conventional
and customary law of "crimes against humanity" and the Genocide
Convention. With respect to crimes against humanity, sexual
assaults and rape fall within the meaning
of other inhumane acts. However, the prohibited conduct must be
part of an overall policy of persecution based on ethnic or
religious grounds against a civilian population. Under the
Genocide Convention, sexual assault and rape are included within
the meaning of article II of the Convention, provided that the
prohibited conduct is committed as part of an "intent to destroy,
in whole or in part, a national, ethnical, racial or religious group".
Under both crimes against humanity and the Genocide Convention,
such prohibited acts are subject to universal jurisdiction. It is
also well-established that both of these sources of international
humanitarian law are considered part of jus cogens and are,
therefore, binding under customary international law.
The parties to this conflict are bound by the four Geneva
Conventions of 12 August 1949 and Additional Protocols I and II,
both under State succession and by the parties' specific accession
thereto. The parties are also bound by the Genocide Convention
under State succession in so far as that convention has been
ratified by the former Federal Republic of Yugoslavia. The parties
are bound by that Convention under jus cogens and
customary international law. The parties are also bound under jus
cogens and customary international law by the obligations arising
under crimes against humanity, as developed in conventional and
customary international law.
The Commission concludes that there is no doubt about the
prohibition of rape and sexual assault in the Geneva Conventions
and other applicable
sources of international humanitarian law. Furthermore, the
Commission finds that the relevant provisions of the statute of the
International Tribunal adequately and correctly state the
applicable law to this crime.
Previous Part | Next Part |
Footnotes
*1 Sessions were held on the following dates:
First session - 4-5 November 1992
Second session - 14-16 December 1992
Third session - 25-26 January 1993
Fourth session - 1-3 March 1993
Fifth session - 24-25 May 1993
Sixth session - 13-14 July 1993
Seventh session - 30-31 August 1993
Eighth session - 27 October 1993
Ninth session - 14-15 December 1993
Tenth session - 11-12 January 1994
Eleventh session - 15-16 February 1994
Twelfth session - 11-15 April 1994
All the sessions, except the first one, which was convened in New
York, have been held at Geneva.
*2 The funding for these contributed services was provided by
DePaul University and grants to the University from the Open
Society Fund and the John D. and Catherine T. MacArthur Foundation.
*3 On 29 August 1993, in response to the Secretary-General's
request, the Commission submitted a non-paper indicating that it
proposed to end its work on 31 July 1994. The Commission's second
interim report, submitted by the Secretary-General to the Security
Council on 5 October 1993, reflected a plan of action based on a 31
July 1994 schedule.
*4 The contributions received were as follows:
Country Amount (US$)
-------------------------------------
Austria 20 000
Canada 237 869
Czech Republic 1 000
Denmark 15 201
Germany 16 000
Hungary 3 000
Iceland 500
Liechtenstein 3 184
Micronesia 300
Morocco 5 000
Netherlands 260 152
New Zealand 53 492
Norway 49 978
Sweden 94 955
Switzerland 50 000
Turkey 10 000
United States of America 500 000
-------------------------------------
TOTAL 1 320 631
*5 Because of the positive balance in the Trust Fund at the
conclusion of the Commission's work, the Commission urges the
Secretary-General to seek the Controller's authorization to use
these funds for the publication of the annexes.
*6 See Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field (12 August
1949); Geneva Convention for the Amelioration of the Condition of
the Wounded, Sick and Shipwrecked Members of the Armed Forces at
Sea (12 August 1949); Geneva Convention Relative to the Treatment of Prisoners of War (12 August
1949); Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (12 August 1949); United Nations Treaty
Series, vol. 75, Nos. 970-973.
*7 1977 Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (Protocol I).
*8 1977 Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-
International Armed Conflicts (Protocol II).
*9 Convention for the Protection of Cultural Property in the
Event of Armed Conflict, done at The Hague on 14 May 1954, United
Nations Treaty Series, vol. 249, No. I-3511.
*10 See also Official Records of the General Assembly, Fifth
Session, Supplement No. 12 (A/1316).
*11 U.S. v. von Weizsaecker (Ministries Case), 14 Trials of War
Criminals before the Nuremberg Military Tribunals under Control
Council Law No. 10 at 611 (1949) (the Green Series). See also
International Military Tribunal sitting at Nuremberg, reported in
Trial of the Major War Criminals before the International Military
Tribunal (1949).
*12 General Assembly resolution 260 (III) of 9 December 1948,
annex, second and third preambular paragraphs.
*13 From a statement made by Mr. Morozov, representative of the
Union of Soviet Socialist Republics, on 19 April 1948 during the
debate in the Ad Hoc Committee on Genocide (E/AC.25/SR.12).
*14 See Vienna Convention on the Law of Treaties, opened for
signature on 23 May 1969, United Nations Treaty Series, vol. 1155,
No. I-18232.
*15 See Report on the question of prevention and punishment of
the crime of genocide (E/CN.4/Sub.2/1985/6), para. 29, which
states:
"'In part' would seem to imply a reasonable significant number,
relative to the total of the group as a whole, or else a
significant section of a group such as its leadership. ...
considerations of both proportionate scale and of total numbers
are relevant".
*16 See annex II.
*17 S/25704, annex, art. 2 (Grave breaches of the Geneva
Conventions; art. 3 (Violation of the law and customs of war); art.
4 (Crimes against humanity); and art. 5 (Genocide). It is to be
noted that under article 4, rape is specifically listed even though
the conventional and customary international law defining crimes
against humanity does not list it
specifically, but includes it as part of "other inhumane acts".
*18 Violent crimes of a homosexual nature are not explicitly
mentioned in international humanitarian law, but protection against
rape and other sexual assaults is also applicable to men on the
basis of equality and non-discrimination.
*19 See the Convention on the Rights of the Child adopted by
the General Assembly on 20 November 1989 (resolution 44/25), and
the World Declaration on the Survival, Protection and Development
of Children and Plan of Action for Implementing the World
Declaration (A/45/625, annex).
*20 In his commentary on article 5 of the statute, the
Secretary-General also seems to consider rape and other sexual
assaults to be connected, as he states in the relevant part: "rape
and other forms of sexual assault, including enforced prostitution"
(S/25704, para. 48).