INTERNATIONAL CONFLICT IN BOSNIA-HERZEGOVINA (1992-1995)
WAR IN BOSNIA-HERZEGOVINA WAS AN INTERNATIONAL CONFLICT BETWEEN BOSNIA, SERBIA AND CROATIA
The ICTY has played a critical role in determining responsibility for the horrific crimes that occurred in the Balkan conflicts during the 1990s, Human Rights Watch said. The tribunal suffered a setback with the death of Slobodan Milosevic and the abrupt end of his four-year trial. Just recently, however, the ICTY has begun important trials involving senior officials accused of crimes including genocide committed at Srebrenica, and war crimes and crimes against humanity committed in Kosovo.
The book applies the law to the facts of selected cases covering atrocities such as the Srebrenica massacre (where approximately 8,000 unarmed men and boys were executed by Bosnian-Serb forces), the siege of Sarajevo, and brutalities perpetrated in concentration camps such as the infamous “Omarska camp” in Bosnia-Herzegovina.
The 861-page book from Human Rights Watch organizes the tribunal’s decisions by topic, including war crimes, genocide, crimes against humanity, command responsibility, sentences, fair trial rights, and guilty pleas. You can download the book in pdf format free of charge,here. Alternatively, you can order a print copy of the book for $95, here.
Here is a short excerpt from the book with respect to the ICTY’s rullings regarding the question whether or not the international conflict took place in Bosnia-Herzegovina between 1992-95:
(8) application—international armed conflict
(a) Conflict between Bosnia and Herzegovina, and Croatia
Kordic and Cerkez, (Appeals Chamber), December 17, 2004, paras. 342, 350, 355, 360, 361, 369: “The Trial Chamber held that the armed conflict in Central Bosnia was of an international character, owing both to Croatia’s direct intervention and its overall control of the HVO [Croatian Defence Council].” “The Appeals Chamber observes that the appealed counts relate to the period between October 1992 and September 1993, and will thus focus on this period when examining the finding that the conflict was international.”
“The Appeals Chamber finds that on the basis of [the] evidence, even taking into account thatthere was no requirement for Croatian troops to be present in Central Bosnia, that no reasonable trier of fact could have found that Croatia directly intervened in the armed conflict in Central Bosnia.” “The Appeals Chamber is aware that deference is due to these findings by the Trial Chamber, which under the Statute has the primary responsibility for hearing and evaluating the evidence presented before it. However, the evidence is inadequate to an extent that a reasonable trier of fact could not have established beyond reasonable doubt that Croatian troops were indeed sent to Central Bosnia.”
“The Appeals Chamber now turns to the question of whether the HVO [Croatian Defence Council] acted on behalf of Croatia. It will examine whether the Trial Chamber erroneously held that these criteria were satisfied and thus Croatia exercised overall control over the HVO:
a) The provision of financial and training assistance, military equipment and operational support;
b) Participation in the organisation, coordination or planning of militaryo perations.”
“The Appeals Chamber finds that on the basis of the evidence set out above a reasonable trier of fact could have found beyond reasonable doubt that Croatia exercised overall control over the HVO at the relevant time.” (emphasis in original)
Kordic and Cerkez, (Trial Chamber), February 26, 2001, paras. 108-146: The Trial Chamber concluded that the relevant issues were (a) whether Croatia intervened in the armed conflict between the Bosnian Muslims and the Bosnian Croats in Bosnia and Herzegovina through its troops and, alternatively, (b) whether the HVO [CroatianDefence Council] acted on behalf of Croatia. “The Chamber concludes that the evidence in this case satisfies each of the alternative criteria set forth . . . for internationalising an internal conflict.”
Blaskic, (Trial Chamber), March 3, 2000, paras. 83-123: The Trial Chambers concluded that “[b]ased on Croatia’s direct intervention in BH [Republic of Bosnia and Herzegovina]” there was “ample proof to characterise the conflict as international,” and that Croatia’s “indirect control over the HVO [Croatian Defence Council] and HZHB [Croatian Community of Herceg-Bosna]” and “indirect intervention” would “permit the conclusion that the conflict was international.” The Trial Chamber found that “Croatia, and more specifically former President Tudjman, was hoping to partition Bosnia and exercised such a degree of control over the Bosnian Croats and especially the HVO that it is justified to speak of overall control. [T]he close ties between Croatia and the Bosnian Croats did not cease with the establishment of the HVO.”
Prosecutor v. Rajic, Case No. IT-95-12 (Trial Chamber), Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 2 September 13, 1996, paras. 13, 26, 32: “[F]or purposes of the application of the grave breaches provisions of Geneva Convention IV, the significant and continuous military action by the armed forces of Croatia in support of the Bosnian Croats against the forces of the Bosnian Government on the territory of the latter was sufficient to convert the domestic conflict between the Bosnian Croats and the Bosnian Government into an international one.”“[B]etween 5000 to 7000 members of the Croatian Army, as well as some members ofthe Croatian Armed Forces (‘HOS’), were present in the territory of Bosnia and were involved, both directly and through their relations with Croatian Community of Herceg-Bosna (‘HB’) and the Croatian Defence Council (‘HVO’), in clashes with Bosnian Government forces in central and southern Bosnia. [T]he Bosnian Croats can, for the purposes of these proceedings, be regarded as agents of Croatia in respect of discrete acts which are alleged to be violations of the grave breaches provisions of the Geneva Conventions. It appears that Croatia, in addition to assisting the Bosnian Croats… inserted its own armed forces into the conflict on the territory of Bosnia and exercised a high degree of control over both the military and political institutions of the Bosnian Croats.”
(b) Conflict between Bosnia and Herzegovina, and the Federal Republic of Yugoslavia (Serbia and Montenegro)
Delalic et al., (Appeals Chamber), February 20, 2001, paras. 33, 48, 50: “The Trial Chamber’s finding as to the nature of the conflict prior to 19 May 1992 is based on a finding of a direct participation of one State on the territory of another State. This constitutes a plain application of the holding of the Appeals Chamber in Tadic that it ‘is indisputable that an armed conflict is international if it takes place between two or more States,’ which reflects the traditional position of international law….” “Although the Trial Chamber did not formally apply the ‘overall control’ test set forth by the Tadic Appeal Judgement, … the Trial Chamber’s legal reasoning is entirely consistent with the previous jurisprudence of the Tribunal.” “The Trial Chamber came to the conclusion, as in the Tadic case, that the armed conflict taking place in Bosnia and Herzegovina after 19 May 1992 could be regarded as international because the FRY [the Federal Republic of Yugoslavia (Serbia and Montenegro)] remained the controlling force behind the Bosnian Serbs armed forces after 19 May 1992. . . . [T]his Appeals Chamber is satisfied that the facts as found by the Trial Chamber fulfil the legal conditions as set forth in theTadic case.”
Tadic, (Appeals Chamber), July 15, 1999, paras. 156, 162: “It is sufficient to show that [the Yugoslav Army] exercised overall control over the Bosnian Serb Forces. Such control manifested itself not only in financial, logistical and other assistance and support, but also, and more importantly, in terms of participation in the general direction, coordination and supervision of the activities and operations of the VRS [the Army ofthe Serbian Republic of Bosnia and Herzegovina/Republika Srpska]. This sort of control is sufficient for the purposes of the legal criteria required by international law.” “[F]or the period material to this case (1992), the armed forces of the Republika Srpska were to be regarded as acting under the overall control of and on behalf of the FRY [the Federal Republic of Yugoslavia (Serbia and Montenegro)]. Hence, even after 19 May 1992 the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authorities of Bosnia and Herzegovina must be classified as an international armed conflict.” See also Tadic, (Appeals Chamber), July 15, 1999, para. 87.
For application of the “overall control” test, the issue of “participation,” and the finding that the armed conflict in the Autonomous Region of Krajina from April 1, 1992 through December 31, 1992 was international, see Brdjanin, (Trial Chamber), September 1, 2004, paras. 144-154.