Legal recognition, participation and trial proceedings
[T]his case is not about legitimate military actions against military targets; it’s about targeting civilians through direct, indiscriminate, and disproportionate fire.1
In Chapters 5 and 6, I examine two cases heard by the ICTY, The Prosecutor v. Stanislav Galić (Galić) and The Prosecutor v. Dragomir Milošević (D. Milošević), to understand how civilian victims become ‘recognized’ in their status as such through the processes of trial adjudication and judgement. Both these cases focus upon one of the most violent and protracted episodes of the Bosnian conflict, that is, the siege of Sarajevo. They concern charges brought against Galić and D. Milošević by the Office of the Prosecutor of the ICTY for their participation in planning and ordering the shelling and sniping of the civilian population and individual civilians in Sarajevo with the intent to spread terror among that population.2 Galić and D. Milošević, who were both Commanders of the Sarajevo Romanija Corps (SRK), were found guilty of these charges and sentenced to lengthy terms of imprisonment.
In the field of international criminal justice, the cases of Galić and D. Milošević are significant for their development of the case-law relating to the war crimes charge of ‘terror against a civilian population’ (Kravetz, 2004). They constitute the first instances of the adjudication of this charge by a mechanism of international criminal justice, and set out the legal elements of the crime. However, these cases are also important for offering an insight into the ‘adjudication’ of the civilian or combatant identities of those persons who came before the court to testify as witnesses to their victimization at the hands of the accused. The accused were charged with what can be termed as a ‘victim-specific’ crime for their perpetration of the war crime of ‘terror against a civilian population’.3 For this reason, it was necessary for the Trial Chamber to ‘find beyond reasonable doubt that the victims of individual crimes were civilians and that they were not participating directly in hostilities’.4 This ‘victim-specific’ aspect of the charges meant that the victims that came before the Trial Chambers as witnesses had to testify, and in effect prove, that they were not just victims of the actions of the accused but civilian victims of this victimization. Many of the victims of the scheduled incidents, or their relatives or friends in the event of fatalities, gave evidence as to their civilian status at the time of their injury. They came before the Chambers as witnesses to present evidence that they were subjected to unlawful acts of civilian victimization and harm due to their status as such, and not the ‘legitimate’ military conduct central to the conduct of war. From these testimonies and other evidential sources, the judges of the Trial Chamber had to pronounce upon this aspect of their status at the time of their injury.
This chapter engages with the third ‘site’ of the judicial processes that serve to construct civilians as a legal category of persons: the processes of trial adjudication. In doing so, it considers the conceptual models of civilians employed during the trial proceedings of D. Milošević.5 It focuses upon this case, and the earlier case of Galić, to provide a ‘deep reading’ of the terms of the legal practices that work to construct legal recognition of individual persons as civilians (Sarat and Kearns, 1993b: 41). The D. Milošević case was chosen for this analysis both due to its significance in international law and because I undertook a period of courtroom observation of its trial proceedings during 2007. This first-hand research provided important insights into the processes of the construction of civilian identities rather than simply the determination of such terms of personhood as set out in the judgements rendered by the Chambers.
To explore these processes, the chapter first examines the concept of the civilian as defined by the rules of international humanitarian law. It then considers the importance of the war crimes charge ‘terror against a civilian population’ and draws upon the trial transcripts of D. Milošević and courtroom observation undertaken during its proceedings to analyze how the victim-witnesses, Prosecution and Defence work to construct (or challenge) legal recognition of the civilian status of the victims of the siege. These submissions and testimonies show how each of the parties to the trial approaches the task of identifying a person as a civilian during trial proceedings. They reflect how the parties seek to distinguish between civilians and combatants, and to persuade the Trial Chamber that the victim is (or is not) a civilian victim of the alleged criminal conduct. Drawing on this analysis, the chapter argues that the current ‘negative’ definition of civilians creates significant difficulties for the construction of legal recognition of civilians as a distinct category of persons, and does not adequately capture the nature of their choices, actions and experiences during a conflict situation. It shows that, contrary to the seemingly ‘neutral’ definition of a civilian, social characteristics of group membership are often drawn upon to understand persons as civilian or combatant that may prevent the attribution of this status to all persons that have sustained the harmful effects of hostilities. Chapter 6 builds upon this analysis to explore how collectivities of civilians understand themselves as a cohesive category of victimized persons, and how the adjudication and judgement of the Chambers of the ICTY serves to reflect this state of social relations as legal relations.
Commentators point out that the ‘laws of war are premised on there being two groups of people: combatants and civilians’ (Durham and Massingham, 2012: 107). This categorization of persons is typically understood to ground the terms of the principle of distinction (Kinsella, 2005: 256). As noted in Chapter 3, this principle ‘obliges warring parties to distinguish at all times between the civilian population and combatants, and between civilian objects and military objectives and ensure that operations will only be directed against military objectives.6 It therefore conceives of persons being either civilians or combatants during situations of armed conflict. All persons are subsumed into this dichotomous framework and so hold one or other of these definitional statuses.7 As Dinstein points out, this conception of persons leaves no ‘undistributed middle between the categories of combatants (or military objectives) and civilians (or civilian objects)’ (2004: 114).
However, the rules of international humanitarian law do not set out a ‘positive’ definition of a civilian. Rather, they provide a ‘positive’ definition of a combatant and determine that civilians are all persons who are not combatants. Combatants are persons ‘taking a direct part in hostilities’ with the exception of medical and religious personnel (Henckaerts and Doswald-Beck, 2005: 12–13).8 This category of persons holds the ‘privilege to fight’ and is therefore immune from prosecution for fighting according to the law of armed conflict (but not violating those laws) (Kretzmer, 2010: 89). In contrast, as set out in the D. Milošević judgement, the ‘term “civilian” is defined negatively, to include any person who is not a member of the armed forces or an organized military group belonging to a party to the conflict’.9 In this way, the ‘negative’ definition of a civilian can also be understood to operate as a ‘neutral’ definition. The person of the civilian may be male or female, and of any age or ethnicity. There is no assumption, or requirement, of a relationship between the social characteristics of a person and their civilian or combatant status. Instead, civilians are simply all persons who are not members of a military or armed group. They do not directly participate in hostilities and so do not ‘engage in acts of war which, by their nature or purpose, are likely to cause actual harm to the personnel or materiel of the enemy armed forces’.10
The distinction between civilians and combatants can also be seen in the modes of physically identifying these categories of persons. Rogers points out that combatants are ‘obliged to distinguish themselves from the civilian population’ (2004: 9). In D. Milošević, the ICTY describes that the ‘generally accepted practice is that combatants distinguish themselves by wearing uniforms, or, at the least, a distinctive sign, and by carrying their weapons openly’.11 Combatants must therefore visibly distinguish themselves as holding that status during a conflict situation through particular aspects of their appearance. There are specific visual ‘markers’ of combatant identity that are distinct from that of civilians. Such markers of combatant status enable both civilians and combatants to recognize this group of persons during hostilities. It distinguishes their mode of participation in a conflict from that of civilians. These visible markers of combatant status will also guide the legal adjudication of their status if an allegation of a breach of the rules of humanitarian law comes before the courts.
However, the negative definition of civilians means that the rules of humanitarian law ‘do not tell us who or what the protected persons and objects are’ (Dinstein, 2004: 114). The negative definition does not conceptualize ‘who’ a civilian may be, nor specify any typical ‘markers’ or features that could identify such persons. There are no equivalent physical or visible ‘markers’ of civilian status as there are for combatants. The difficulty of the negative definition becomes most apparent during the legal adjudication of a person’s status as either civilian or combatant. With no key markers or attributes that can be used as evidence to identify a civilian or prove such status during the legal enforcement of crimes, the central question becomes whether a person is or is not a combatant, rather than whether they are or are not a civilian. The designation of civilian status thus rests upon an interpretation of forms of actions or appearance that are understood not to characterize combatant status. As will be shown in the analysis that follows, the particular difficulty of current legal rules is that there are certain categories of civilians whose status in conflict will be under greater scrutiny due to the nature of their social characteristics, a situation that will impact upon the legal recognition of their status as such and the harms perpetrated against them.
The siege of Sarajevo consumed the city and the lives of its inhabitants between April 1992 and October 1995. It is the longest episode of siege warfare in modern history and has become infamous for its impact on the civilian population and infrastructure of the city.12 As is set out in the judgements of Galić and D. Milošević, the inhabitants of Sarajevo were continuously subjected to a campaign of shelling and sniping by the SRK of the Army of Republika Srpska positioned in the hills surrounding and overlooking the city during this time.13 It has been found that shells were fired in locations throughout Sarajevo, and that they were aimed at civilian areas such as parks, cemeteries, market places and water collection points. For example, evidence shows that the shells that struck the Markale Market and the Baščaršija Flea Market were fired from territory under the control of the SRK, and fired by members of the SRK.14 In terms of the charges of sniping, the D. Milošević judgement describes how this activity was pervasive throughout the duration of the siege, particularly when the weather was fine and people came out of their houses and apartments.15 Trams and buses, and the people on them were targeted, as were people walking in the city or standing close to windows in their homes. The numerous incidents of sniping in the Holiday Inn area of the main thoroughfare led to the area being dubbed ‘Sniper Alley’ in a direct reference to the high level of sniper fire.16 Witnesses testified that they had to make lengthy detours around the city to avoid this and other sniper-prone areas to undertake daily tasks, including going to work or visiting relatives or friends. From these incidents, among many others, the Trial Chambers in Galić and D. Milošević found that the SRK had implemented a military strategy of shelling and sniping to kill, injure and spread terror among the civilian population of Sarajevo.17
This relentless experience of actual, or potential, violence had a profound and long-lasting effect on the civilian population of the city. Civilians were the direct targets of shelling and sniping or the casualties of indiscriminate firing, as well as being caught up in the fighting between the SRK and the opposing force, the ABiH.18 As a consequence, civilians of both sexes and all ages were killed and wounded, including children and the elderly.19 In its assessment of the impact of the criminal conduct under adjudication, the D. Milošević judgement describes that the ‘acts of the SRK were geared to striking persons at the very core of their being, by instilling a sense of insecurity and fear that affected every aspect of their lives’.20 It finds that the ‘terror and suffering that was caused in this case left the victims with physical and mental scars … it is very likely that these scars will never disappear’.21 While the difficulties of distinguishing between civilians and combatants provides a significant challenge to identifying the number of casualties of each of these categories of persons, recent figures have suggested that between 5,000 and 6,000 civilians were killed during the siege, with thousands more wounded or injured.22
While other cases heard by the ICTY include charges relating to the siege of Sarajevo,23 Galić and D. Milošević are the only cases that focus exclusively upon crimes committed in and against the city. The Office of the Prosecutor brought a joint indictment against Stanislav Galić and Dragomir Milošević in April 1998. An indictment solely issued against D. Milošević was filed by the Prosecution on 26 March 1999, and later amended in December 2006. The accused were tried in separate hearings before the Trial Chambers.
Galić was charged on the basis of his individual and superior criminal responsibility with the war crime of ‘terror against a civilian population’ and murder and other inhumane acts as crimes against humanity in his capacity as Commander of the SRK between September 1992 and August 1994. Stanislav Galić was arrested on 20 December 1999. His trial began on 3 December 2001 and concluded on 3 May 2003.24 Galić was found guilty of these charges and sentenced to 20 years imprisonment by the Trial Chamber. Following an appeal, he was ultimately sentenced to life imprisonment on 20 November 2006. Galić was the first accused to receive this sentence by the Trial Chambers of the ICTY.25
D. Milošević succeeded Galić as Commander of the SRK on or about the 10 August 1994 and held this position until approximately 21 November 1995. He was also charged on the basis of his individual and superior criminal responsibility with the war crime of ‘terror against a civilian population’ and murder and other inhumane acts as crimes against humanity for his participation in the shelling and sniping of the civilian population of the city. The accused voluntarily surrendered to the authorities of Serbia and Montenegro and was transferred to the United Nations Detention Unit in The Hague on 3 December 2004. His trial took place between 11 January 2007 and 10 October 2007. The Trial Chamber found D. Milošević guilty of the charges brought against him and sentenced him to 33 years imprisonment in December 2007, with this decreased to 29 years by the Appeals Chamber in November 2009.
As noted above, the cases of D. Milošević and Galić are important for their adjudication of the war crimes charge ‘terror against a civilian population’. This charge was first considered by the ICTY in the Galić case, with D. Milošević setting out the present position on the legal elements of this crime. The charge of ‘terror against a civilian population’ arises from Article 51(2) of Additional Protocol I of the Geneva Conventions of 1949, which determines that ‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited’. However, the Statute of the ICTY does not set out the specific elements of the offense, nor was there any case-law for the Trial Chamber in Galić to draw upon in its adjudication of the conduct of the accused. After an extensive review of national and international treaties and conventions, the Trial Chamber in Galić held that the following specific elements had to be met for the crime of terror:
1 Acts or threats of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population;
2 The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence;
3 The above offense was committed with the primary purpose of spreading terror among the civilian population.26
Schaak and Slye point out that this offense is a ‘specific intent crime’ (2007: 567). The specific intent is ‘to spread terror among the civilian population’.27 For this reason, the Prosecution in Galić was:
required to prove not only that the Accused accepted the likelihood that terror would result from the illegal acts – or, in other words, that he was aware of the possibility that terror would result – but that that was the result that he specifically intended.28
While the Appeals Chamber in D. Milošević found that the incidents under adjudication ‘had had a profound psychological impact on the population of Sarajevo’,29 it was not necessary for it to be proven that the accused succeeded in spreading terror among the civilian population: the ‘actual terrorisation of the civilian population is not an element of the crime’.30
D. Milošević is also important for affirming the ICTY’s jurisdiction over this offense. While the convictions of Galić and D. Milošević by the Tribunal establish beyond reasonable doubt the criminal responsibility of these accused for the perpetration of the crime of ‘terror’, the customary status of this crime was a factor of contention during their adjudication. The legal basis of the charge does not arise from an enumerated crime in the Tribunal’s Statute, but from Article 3 (violations of the laws or customs of war), which ‘functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal’.31 However, in compliance with the maxim nullem crimen sine lege (no crime without law), this expansive jurisdictional determination is contingent on the violation brought before the ICTY being ‘beyond any doubt part of customary law’.32 In its exposition of the customary rules of international humanitarian law, the ICRC finds that ‘State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts’ (Henckaerts and Doswald-Beck, 2005: 8).33 However, in Galić the Trial Chamber did not pronounce upon the customary nature of the charge.34 This omission was a factor contributing to the dissenting opinion of Judge Nieto-Navia35 and commentators contending that Galić’s conviction could be ‘going beyond the Tribunal’s jurisdiction and infringing upon the principle of legality’ (Mettraux, 2005: 129).36 Despite its contentious justiciable foundation, the majority of the Trial Chamber accepted jurisdiction of the charge, citing that the warring parties had entered into agreements under the auspices of the ICRC, including ratification of the Additional Protocols.37 In response to an appeal raised by the accused, the Appeals Chamber in Galić