Patterns of prosecution: unlawful victimization, its victims and their visibility at the ICTY

Patterns of prosecution

Unlawful victimization, its victims and their visibility at the ICTY

In January 2010, the Demographic Unit of the Office of the Prosecutor of the ICTY completed its estimate of the number of victims in the 1992–1995 war in Bosnia and Herzegovina. This final breakdown of BiH’s ‘wartime death toll’ identifies that 59.8 percent of its victims were military personnel, while 40.2 percent were civilians.1 It establishes that, in absolute terms, 62,626 military personnel were killed, as opposed to 42,106 civilians, the majority of which were male.2 As such, military personnel figured as the majority of the victims of the Bosnian conflict in terms of fatalities, and so constituted the population that suffered the conflict’s largest losses (Nettelfield, 2010: 217).

This account of the civilian–military distribution of the victims of the BiH conflict opens up the complex, and often contentious, problem of how to understand ‘who’ constitutes a victim of the conduct of contemporary armed conflicts. In turn, it raises the interesting question of the appropriate legal representation of civilians and military personnel as differential categories of victims by mechanisms of transitional justice. The Demographic Unit’s account of BiH’s wartime death toll provides an important new understanding of the number of fatalities of each of these categories of person. However, these figures cannot establish the exact number of civilians or military personnel subjected to acts of unlawful victimization. To establish that data, the ‘demographers would have [had] to individually assess the circumstances of each and every death, and such evidence is unavailable for all victims’.3 Despite the significance of its identification of the overall level of fatalities arising from the conflict, this breakdown of BiH’s wartime death toll cannot provide an account of the distribution of the lawful and unlawful deaths of civilians and military personnel.

In their construction of legal recognition of acts of unlawful victimization committed during the Yugoslavian conflicts then, the criminal prosecutions heard by the ICTY provide an invaluable account of their civilian and military victims. Uwe Ewald points out that ‘international criminal justice is one of the most powerful instruments for officially “identifying” LSV [large-scale victimization]’ (2006: 172). This identification of large-scale victimization can be seen in the cases heard by the ICTY. While they acknowledge that there will inevitably be ‘gaps’ in the crimes brought to trial, Prosecutors at the ICTY contend that they have identified the main ‘crime bases’ of the conflict, as noted previously.4 They suggest that the cases heard by the ICTY have covered the most prolific acts of victimization, particularly in Bosnia and Herzegovina.5 In this way, this mechanism of transitional justice can be understood to represent the broad patterns and practices of acts of victimization perpetrated during the Bosnian conflict, and the differential categories of victims of this violence. It does so through the adjudication of the cases and charges that are brought before the Trial Chambers by the OTP, in accordance with the prosecutorial policies and strategies outlined in Chapter 2.

The importance of the criminal prosecutions heard by the ICTY also lies in their production of an account of the appropriate grounds of the legal regulation of armed conflict. In particular, the regulation of the conduct of the Yugoslavian conflicts by the ICTY affirms which persons figure as ‘protected persons’ under the rules of international humanitarian law. It establishes how mechanisms of transitional justice enforce the protections of civilians and military personnel from particular acts of violence. The rules of humanitarian law determine that both civilians and military personnel figure as protected persons in particular circumstances of conflict. As noted in the previous chapter, civilians may not be the object of an intentional direct attack. Nor may military personnel, when held as prisoners of war for example, be killed while held by opposing forces. The ICTY’s criminal prosecutions are significant for their characterization of which civilian–military interactions, and which military–military interactions, become subject to legal adjudication and judgement. They provide an authoritative representation of the types of conduct and casualties of contemporary conflicts that are understood to deserve the redress of a court of law.

In turn, the Tribunal’s representation of the civilian and military victims of the BiH conflict draw attention to the conceptual problem of how to understand these categories of persons as victimized collectivities. Scholarly analyses of the conduct of contemporary conflicts typically understand civilians to constitute a victimized collectivity; they figure civilians as a distinct ‘group’ of potential or actual victims of its conduct because of their deliberate and intentional targeting as such (Kaldor, 2001). By contrast, military personnel are rarely conceived as a similarly unlawfully victimized collectivity in scholarly debates and enquiries. However, the Demographic Unit clearly distinguishes between civilians and military personnel as distinct collectivities of victims of the BiH conflict. More significantly, it determines that military personnel, and not civilians, constituted the higher proportion of its fatalities. The Demographic Unit’s account of the victims of the conflict thus raises the conceptual issue of how to understand military personnel as a collective victim and how, or whether, the criminal prosecutions of their unlawful victimization should represent their status as such. How, then, should we understand civilians and military personnel as potential or actual victimized collectivities of armed conflict? And how do the legal practices of the ICTY represent the prevalence, patterns and practices of their unlawful victimization?

The previous chapter considered the emergence of the concept of the civilian as a category of persons in international law. It argued that while gaps remain in the framework of civilian protections, civilians now constitute a distinct category of protected persons in international law. This chapter builds on that analysis to consider the legal representation of civilians and military personnel as victims of armed conflict through an analysis of patterns within the ICTY’s criminal prosecutions. It therefore focuses on the second ‘site’ of the judicial process, that is, prosecutorial patterns and strategies. The chapter first considers the visibility of civilians and military personnel as victims of the conflict through authoritative accounts of its conduct and then analyzes the ICTY’s legal representation of these victimized collectivities by exploring patterns within its cases and counts. This analysis of the ICTY’s cases suggests that its representation of the conflict constructs a legal record of acts of civilian victimization, but an ambiguous account of its military victims.

Sites of visibility and invisibility: civilian and military victims

Civilians are now clearly visible as the victims of unlawful violence committed during conflict situations. It is beyond dispute that civilians are deliberately targeted during contemporary conflicts, and are subjected to the violence of indiscriminate attacks. The unlawful nature of the killing and injury of civilians is evident in numerous conflicts, past and present. For this reason, as Nabulsi points out, ‘[l]awyers, members of humanitarian relief organizations and international agencies, policymakers, and the public broadly agree that the protection of noncombatants is the most pressing concern’ (2001: 9).

That civilians are visible as the victims of unlawful attacks during conflict situations is due, in part, to the extensive media coverage of contemporary conflicts. Unlike in times past, the civilian victims of hostilities have become increasingly apparent to the international community through new communications technologies. The advent of ‘rolling’ news channels has resulted in a ‘near-constant flow of images’ to our television screens, such that situations of conflict are no longer distant events confined to another state, but are far closer to the conscience of the general public (Allan and Zelizer, 2004: 7). The Bosnian conflict was one of the first situations where the ‘reality of battlefield slaughter [was] brought into our living rooms by the nightly television news’ (Lovell, 2012: 1). Real-time reporting underscored, for example, the violent impact of the shelling of Sarajevo on the civilian population of the city and that its people were subjected to targeted and indiscriminate attacks. It was plain for all to see that the conflict was not only being fought between military personnel but also against civilians, whether male or female, children or the elderly.

The work of the United Nations (UN) and other national and international organizations to further the protections of civilians has also highlighted the unlawful victimization of this category of persons. Most notably, the ‘protection of civilians’ became a ‘thematic’ item on the UN’s agenda in 1999.6 In its dedicated Resolutions on the issue, the UN Security Council has described that civilians ‘account for the vast majority of casualties in situations of armed conflict’, and stressed the ‘particular impact that armed conflict has on women and children, including as refugees and internally displaced persons’.7 UN Secretary-General Ban Ki-moon has asserted that the need to further the protection of civilians stems from the ‘fundamental, and equally enduring, failure of parties to conflict to comply with their legal obligations’.8 In 2009, he identified five core challenges in this regard: enhancing compliance with international law; enhancing compliance by non-State armed groups; enhancing protection through more effective and better resourced United Nations peacekeeping and other relevant missions; enhancing humanitarian access; and enhancing accountability for violations.9 To address these issues, a series of UN Resolutions and Reports have set out recommendations to improve the physical and legal protection of civilians in conflict situations.10 These recommendations range from mandating peacekeeping missions to protect civilians under imminent threat of physical violence to ensuring that states found accountability of breaches of international humanitarian law and international human rights law.11

Influential non-governmental organizations including the International Committee of the Red Cross (ICRC), Amnesty International, Human Rights Watch, International Center for Transitional Justice and TRIAL (Track Impunity Always) have also highlighted the plight of civilians during conflict situations. For example, the ICRC takes the issue of compliance with humanitarian law as one of its central advocacy projects, and has made statements to the United Nations Security Council on the protection of civilians.12 Amnesty International and Human Rights Watch (among other organizations) have consistently documented the forms of civilian victimization undertaken in particular conflict situations across the globe, and the dynamics of the relations between civilians and military personnel. They have been instrumental in calling for greater recognition of social and economic rights, gender rights and the rights of refugees and migrants. Moreover, they have underscored the obligations of states to mete out reparations or compensation to civilian victims of war.13 These organizations, and others, make civilians clearly visible as the victims of unlawful victimization during conflict situations. They call for all parties to a conflict to abide by the rules of humanitarian law and spare civilians from their violence.

Scholarly engagement with the form of the conduct of hostilities, and their human impact, has also served to make civilians visible as the victims of conflict. As noted in Chapter 1, a growing body of scholarship engages, either explicitly or implicitly, with the impact of hostilities upon civilians. This does not mean, however, that there has been a scholarly consensus on the prevalence or patterns of acts of civilian victimization. Rather, these issues have become the subject of debate. A particular issue of contention has been the civilian–military victim ratio of contemporary conflicts. On the one hand, there has been a growing belief that civilians constitute the vast majority of the casualties of contemporary conflicts, a claim put forward in particular by the so-called ‘new wars’ scholars (Kaldor, 2001; Münkler, 2005). This body of scholarship has been influential for its assertion that there has been a reversal in military–civilian casualties, namely that the ratio of casualties has changed from 8:1 at the turn of the century to 1:8 during the wars of the 1990s (Kaldor, 2001: 8). The new wars scholars typically argue that this reversal of victim ratios is due to a ‘revolution in the social relations of warfare’ in terms of its civilian–military interactions (Kaldor, 2001: 91). In contrast to ‘older’ conflicts, which ‘theoretically affected combatants alone’ (Münkler, 2005: 39), it is held that the deliberate targeting of civilians and their forcible displacement is a primary objective of the conduct of the new wars (Kaldor, 2001: 99–100). For example, Donald Snow argues that in conflicts such as those of Bosnia and Rwanda ‘the armed forces never seemed to fight one another; instead what passed for “military action” was the more or less systematic murder and terrorizing of civilian populations’ (1996: ix). Military action in these wars did not follow the norms of humanitarian law to ‘spare’ civilians from their violence. Rather, it is held that such conflicts were grounded in ‘identity politics’, that is, they were ‘movements which mobilize[d] around ethnic, racial or religious identity for the purpose of claiming state power’ (Kaldor, 2001: 76). As will be further discussed in Chapter 6, these conflicts were not fought through ideas of persons being civilian (and so ‘protected’ persons) or combatant (and so legitimate targets), but through conceptions of persons either holding or failing to hold a particular (ethnic, racial or religious) identity. Armed groups therefore directed force against ‘opposing’ civilian collectivities to drive them from a certain geographic area, annihilate their physical existence or force them to supply and support their violent conduct (Münkler, 2005: 14). For that reason, it is held that the distinction between combatants and civilians is breaking down (Kaldor, 2001: 5).14

On the other hand, it has been asserted that civilian–military victim ratios are not consistent across contemporary conflicts. The new wars scholarship has increasingly been the subject of critique for its claim that 80 to 90 percent of the casualties of contemporary conflicts are civilians, and for its seemingly homogenized view of the conduct of such conflicts.15 Edward Newman, for example, argues that ‘all of the factors that characterize new wars have been present, to varying degrees, throughout the last 100 years’ (2004: 179). For Newman, the difference today is that academics, policy analysts and politicians are focusing on the actors, objectives, spatial context, human impact, political economy and social structure of conflict more than before (2004: 179). In regards to the civilian–military victim ratio in particular, Newman argues that there has been a non-linear fluctuation of such casualties dependent upon specific circumstances (2004: 181). For that reason, it is not possible to assert that there has been a distinct quantitative shift in the civilian to combatant casualty ratio between ‘new’ and ‘old’ wars. Rather, as Newman asserts, ‘[p]atterns of victimization are more correctly seen as a reflection of contextual and not temporal variables’ (2004: 181).

Similarly, Adam Roberts (2009) puts forward evidence of the conduct of particular conflict situations to question the new wars claim of a particular ratio of civilian and military victims. As Roberts points out, the Bosnian conflict is often put forward as the ‘archetypal’ new war (2009: 28).16 Yet the data given by the Demographic Unit of the ICTY (as set out above) suggests that approximately 60 percent of its victims were military personnel, and 40 percent civilians (Roberts, 2009: 28). In regards to other conflict situations, Roberts points out that the civil war in Sri Lanka between 1983 and 2009 involved the deaths of more combatants than civilians, and that the long-running war in Colombia involved lower monthly averages for civilians as compared to military deaths for five different time periods between 1988 and 2003 (2009: 30). While these analyses are important for drawing attention to the civilian victims of armed conflict, it appears reasonable to suggest that this category of persons does not constitute the vast majority of victims in all situations. Rather, as Newman points out, civilian–military victim ratios vary across particular instances of conflict.

Although scholarly analyses have engaged with the civilian victims of the conflict situations, military victims remain largely invisible as the subjects of unlawful victimization. While there has been some media coverage of the plight of prisoners of war, their harms and injuries are not as readily apparent as those of civilians within scholarly analyses or policy initiatives. For example, the prevalence of unlawful military deaths in contemporary conflicts has yet to be the object of sustained enquiry in the field of transitional justice or through other disciplinary approaches. The form that transitional justice initiatives should take for this category of persons is also under-explored. The few studies that do engage with military personnel as the victims, and not just the perpetrators, of armed conflict typically focus on the adjudication of their identities in a specific legal case (Pinzauti, 2010), the views of military personnel on legal mechanisms of transitional justice (Nettelfield, 2010), or the complexities of understanding the civilian or military status of child soldiers (Kuper, 2008). While important for moving beyond a conception of military personnel as ‘merely thugs or perpetrators of violence’ (Nettelfield, 2010: 212), these studies do not adequately consider the representation of military personnel as the victims of unlawful victimization by mechanisms of transitional justice.

There are four possible reasons for the distinct lack of attention paid to the military victims of unlawful acts of victimization. First, there is often an implicit conflation of ‘victims’ with ‘civilians’ in scholarly analyses (Kinsella, 2005: 255). Acts of unlawful victimization are either assumed to concern civilian victims, or the status of the targets of violence is not adequately identified along the civilian–combatant divide. Second, there is the broad problem of establishing accurate data on the distribution of civilian and military casualties in a conflict situation where the status of a person as such is often subject to debate (Slim, 2007). In particular, the status of certain groups of persons such as civilian contractors, private military contractors and child soldiers remains contentious (Roberts, 2010).

Third, it is often unclear which forms of victimization are included in either theoretical or statistical analyses of civilian and military casualties. The concept of a ‘victim’ or a ‘casualty’ of conflict may be limited to fatalities from a direct attack, or include deaths and injuries from more indirect acts of victimization in this context such as disease, poverty or displacement (Eckhardt, 1989; Human Security Center, 2005). It appears reasonable to suggest that analyses that focus upon fatalities alone are likely to show proportionately higher numbers of military victims as compared to those that include victims of displacement or environmental factors. Fourth, while the new wars thesis engages with the civilian victims of unlawful conduct, there is a distinct absence of any sustained or detailed engagement with the military victims of contemporary conflicts, or the prevalence or patterns of their unlawful victimization. This body of scholarship largely neglects the possibility that military personnel can be the unlawful victims of armed conflict, whether during military operations or if held as prisoners of war by enemy forces. Instead, members of the military are represented primarily as perpetrators of violence, either as ‘lawful’ fighters or, more often, as non-state actors with dubious legal standing who contravene the laws of war to enact violence against civilians and plunder their resources (Münkler, 2005: 16–22). The military victims of acts of unlawful victimization have yet to be the subject of sustained analysis by this, or other, scholarly engagements with the conduct of war.

Patterns of victimization: the Bassiouni Report

How, then, can we begin to understand the prevalence, patterns and practices of the unlawful collective victimization of civilians and military personnel during the Bosnian conflict? Carolyn Nordstrom points out that ‘numbers tell us little about how a war is lived, felt, and died’ (2004: 43). While the figures put forward by the Demographic Unit establish the number of civilian and military fatalities and the level of violence-perpetration against these persons, they cannot adequately narrate its experiential effect. Accordingly, they cannot elucidate the predominant patterns, practices or context of the victimization of these different categories of victims of the conflict, nor its lawful or unlawful character.

Analysis of the influential ‘Final Report of the Commission of Experts’ (‘Bassiouni Report’) goes some way to addressing the gaps in this account. The Bassiouni Report determines that both civilians and military personnel were the deliberate targets of large-scale attacks during the conflict that constituted violations of international humanitarian law. For example, as noted in Chapter 2, the Report refers to unlawful acts of civilian victimization carried out by Serbs in BiH through policies of ethnic cleansing undertaken throughout a certain geographic area represented by an arc ranging from northern Bosnia and covering areas in eastern and western Bosnia adjoining the Serb Krajina area in Croatia.17 The Bassiouni Report describes that the ‘coercive means used to remove the civilian population from these areas’ included ‘mass murder, torture, rape and other forms of sexual assault’, as well as ‘severe physical injury to civilians, mistreatment of civilians and prisoners of war, [and the] use of civilians as human shields’, among other forms of violence.18 It points out that these acts of violence were carried out ‘with extreme brutality and savagery in a manner designed to instill terror in the civilian population’.19 In its analysis of these acts of civilian victimization, the Bassiouni Report states that there is ‘sufficient evidence to conclude that the practices of “ethnic cleansing” were not coincidental, sporadic or carried out by disorganized groups’.20 Rather, ‘the patterns of conduct, the manner in which these acts were carried out, the length of time over which they took place and the areas in which they occurred combine to reveal a purpose, systematicity and some planning and coordination from higher authorities’.21

While the Bassiouni Report does not assert that the unlawful victimization of military personnel was perpetrated to the same level as that against civilians, it clearly identifies instances of the perpetration of violent acts against this category of persons, particularly within detention facilities.22 The Bassiouni Report describes that ‘armed, uniformed soldiers of the forces opposed to the Serbs were incarcerated in significant numbers’,23 while the ‘BiH government and Bosnian Croat forces were also reported to have detained thousands of soldiers and civilians in BiH’.24 Although the prevalence and patterns of military victimization varied between the different detention facilities, the Report draws attention to the Omarska and Keraterm camps in which the main objective appeared to be to eliminate the non-Serb leadership.25 In those camps, ‘law enforcement and military personnel were targeted for destruction’ alongside political leaders, academics, religious leaders and others.26 In Prijedor, for example, non-Serb military personnel were targeted as they ‘constituted a significant element of the non-Serbian group in that its depletion rendered the group at large defenceless against abuses of any kind’.27 While the Bassiouni Report often utilizes the language of ‘prisoners’ without specifically referring to the civilian or military status of persons held in camps, it determines that mass killings and executions were frequently reported in this context.28 For example, it describes a ‘large number of purposeful and indiscriminate killings, rape and sexual assaults, and other forms of torture committed against civilians and prisoners of war, both inside and outside detention facilities’.29

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