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Published online by Cambridge University Press: 22 August 2014
Among the increasingly frequent acts of non-compliance with, and grievous violations of, international humanitarian law around the world, especially in non-international armed conflicts, attacks on objects and persons enjoying special protection, and their abuse, as well as the misuse of the distinctive emblems of the Red Cross and Red Crescent, come as no surprise. Although a repressive approach to the problem – through the prosecution and punishment of perpetrators – cannot completely prevent such occurrences, an effective and appropriate judicial stigmatisation can significantly contribute to making them as rare as possible. In this regard, the court proceedings held before the War Crimes Chamber in Belgrade and the International Criminal Tribunal for the former Yugoslavia in The Hague in connection with the events in and around the Vukovar Hospital and Ovčara farm have provided an appropriate judicial response. This is notwithstanding the fact that, at least for now, not all perpetrators have been prosecuted for their acts (or failure to act) at the time of the commission of these grave crimes.
1 Such prosecution can be undertaken by permanent or temporary, national, international or ‘hybrid’ judicial authorities, and be complemented by specific treaty provisions by which States Parties agree to punish violators via their criminal legislation systems and courts.
2 District Court in Belgrade (War Crimes Chamber), Prosecutor v. Miroljub Vujović et al., Case No. K.V.4/2006, 12 March 2009.
3 Croatia at that time was still formally part of the former Yugoslavia. The international legal recognition of Croatia as an independent state began only in January 1992. The Court also noted that the former Yugoslavia acceded to and ratified the four Geneva Conventions in 1950 and the First and Second Additional Protocols to the Geneva Conventions in 1978.
4 It was established during the proceedings that, close to the end of the fighting in Vukovar, members of the former JNA military security had operational information that a number of members of the Croatian armed forces would also seek refuge in the Vukovar Hospital and try to disguise themselves as wounded and sick patients, or hospital staff, to avoid capture or possible prosecution. After the JNA entered the hospital, this was confirmed in interviews with the hospital's physicians and upon inspection of the hospital records of its staff and the lists of the wounded and sick.
5 At the same time, the hospital staff as well as the relatives of some of those who were bussed away intervened with Major Šljivančanin from the JNA to have their co-workers/relatives released, claiming they had not taken part in any fighting, which resulted in Major Šljivančanin ordering the release of some twenty of them.
6 The term ‘dressing’ also included splints, circular plasters, slings and cervical collars.
7 As a case in point, the order issued by the command of the First Military District on 18 November 1991 shows that the JNA agreed that members of the armed forces of Croatia were to be considered prisoners of war to whom the Third Geneva Convention was to be applied. In this context, a note from the combat log of the Guards Motorized Brigade of 18 November 1991 is especially interesting and was read out at the trial: ‘The Commander of Operational Group South spoke with a HDZ representative (Trustee) in Vukovar on the terms for the surrender of the Ustasha forces in Vukovar. Unconditional surrender agreed and safety guaranteed to the Ustasha forces in accordance with the Geneva Convention.’
8 See Art. 143 of the FRY Criminal Code: ‘Whoever, in violation of the rules of international law at the time of war or armed conflict, orders murders, tortures, inhuman treatment of the wounded, sick, the [sic] shipwrecked persons or medical personnel, including therein biological experiments, causing of great sufferings or serious injury to the [sic] bodily integrity or health; or whoever orders unlawful and arbitrary destruction or large-scale appropriation of material and stocks of medical facilities or units which is not justified by military needs, or whoever commits some of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.’
9 See Art. 142 of the FRY Criminal Code: ‘Whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, orders that civilian population be subject to killings, torture, inhuman treatment, biological experiments, immense suffering or violation of bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, taking hostages, imposing collective punishment, unlawful bringing in concentration camps and other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of [the] enemy's army or in its intelligence service or administration; forcible labour, starvation of the population, property confiscation, pillaging, illegal and self-willed destruction and stealing on [a] large scale of a [sic] property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency, or who commits one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.’
10 Under IHL, the wounded and sick must be found, collected and evacuated and must also be given medical care and assistance as soon as possible. For a full analysis of the protection of the wounded and sick under IHL and international human rights law, see the article by Alexander Breitegger in Part I of this issue of the Review.
11 See in particular Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (hereinafter ICRC Customary Law Study), Rule 13: ‘Attacks by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects are prohibited.’
12 This possibility was brought up during the trial at the ICTY by the defence of the ‘Vukovar Three’ case (see following section), which alleged that members of police units attached to the Croat armed forces were in the hospital shooting at JNA aircraft from its roof, which reportedly stripped the hospital of its status as a civilian object enjoying special protection and, in this way, made it a legitimate military target.
13 The Belgrade District Court did not address in any specific detail, for instance, the issue of possible perfidy in relation to the fact that members of the Croatian forces disguised themselves by taking off their uniforms and putting on civilian clothes or those of the hospital staff and by ‘feigning injuries’, as the defence put it, because the Court did not deem this to be its task. Perfidy is defined in Art. 37 of Additional Protocol I to the Geneva Conventions as ‘acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence’. See also ICRC Customary Law Study, Rule 65: ‘Killing, injuring or capturing an adversary by resort to perfidy is prohibited’; this includes ‘simulation of being disabled by injuries or sickness because an enemy who is thus disabled is considered hors de combat and may not be attacked but must be collected and cared for.’
14 European Commission, Serbia and Montenegro – 2005 Progress Report, SEC (2005) 1428, Brussels, 9 November 2005, p. 23, available at: http://ec.europa.eu/enlargement/archives/pdf/key_documents/2005/package/sec_1428_final_progress_report_cs_en.pdf.
15 Ibid.
16 The reference to ‘prisoners of war’ in this context of non-international armed conflict is explained below.
17 For an explanation of the legal qualification of the acts, see below.
18 District Court in Belgrade (War Crimes Chamber), Prosecutor v. Miroljub Vujović et al., Case No. K. V. 1/2003, Judgment, 12 December 2005. Fourteen people were sentenced to prison – eight defendants to maximum prison terms of twenty years, four to prison terms of fifteen years, and three to prison sentences of twelve, nine and five years respectively. Two defendants were acquitted by the same verdict, while a defendant who was tried separately because of his illness received an eight-year prison sentence.
19 District Court in Belgrade (War Crimes Chamber), Prosecutor v. Miroljub Vujović et al., Case No. K. V. 4/2006, Judgment, 12 March 2009. Thirteen defendants were found guilty and sentenced to prison terms. Seven of them received maximum prison terms of twenty years, one defendant was sentenced to fifteen years in prison, one to thirteen, one female defendant to nine years, one defendant to six years and two defendants to five years in prison each. At the same time, five defendants were acquitted of all charges by the same verdict.
20 Appellate Court in Belgrade, Case No. KZ1 PO2-1/2010, 23, Second Instance Verdict, June 2010.
21 Particularly interesting in this respect was the following sentence from the Court's verdict: ‘These crimes, however, are never rendered obsolete, and if not now, it is expected that the future will provide the answers.’ This holds particularly true in the light of the fact that the Mrkšić et al. trial has now been completed before the ICTY in The Hague (see below section), and there is now a real possibility that the defendants in this case may be interrogated by the judicial authorities of the Republic of Serbia in some other criminal proceedings, whether directly or through international legal assistance.
22 Colonel Mrkšić was alleged to have ordered or permitted JNA soldiers under his command to ‘deliver custody of detainees taken from the Vukovar hospital to other Serb forces’, who allegedly committed the crimes mentioned in the indictment. See ICTY, Prosecutor v. Mrkšić et al., Case No. IT-95-13/1-T, Trial Judgment, 27 September 2007, para. 2.
23 Major Šljivančanin was charged with having ‘personally directed the removal and selection of about 400 non-Serbs from Vukovar Hospital on 20 November 1991, knowing or having reason to know they would be murdered’, and to have ‘ordered or permitted JNA soldiers under his command to deliver custody of these detainees to other Serb forces knowing or having reason to know that they would be murdered, and to have been present at Ovčara farm on 20 November 1991’, when the criminal acts were committed. See ICTY, Prosecutor v. Mrkšić et al., above note 17, para. 4.
24 Captain Radić was alleged to have, among other things, personally participated ‘in the removal and selection of about 400 non-Serbs from Vukovar Hospital on 20 November 1991, knowing or having reason to know they would be murdered’. See ICTY, Prosecutor v. Mrkšić et al., above note 17, para. 3.
25 ICTY, Prosecutor v. Mrkšić et al., Case No. IT-95-13/1-T, Trial Judgment, 27 September 2007.
26 For a detailed analysis and discussion on this point, see Pinzauti, Giulia, ‘Protecting Prisoners of War: The Mrkšić et al. Appeal Judgment’, in Journal of International Criminal Justice, Vol. 8, No. 1, 2010, pp. 199–219CrossRefGoogle Scholar.
27 ICTY, Prosecutor v. Mrkšić et al., Case No. IT-95-13/1-A, Appeal Judgment, 5 May 2009.
28 See Propisi o primeni pravila Medjunarodnog ratnog prava u Oružanim snagama SFRJ (Instructions on the Application of the International Law of War in the Armed Forces of the SFRJ), PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), Belgrade, 1988.
29 In the same sense, see ibid., Rules 20 ff, on individual responsibility and violations of IHL.
