S/1994/674 (continued)
Since the spring of 1992, the warring factions to the conflicts in the former Yugoslavia operated a variety of detention facilities (camps) throughout the former Yugoslavia.
The Commission received information concerning a total of 715 camps, most of which are now closed. The Commission's information about the exact date of opening and closing of these camps and the number of prisoners is incomplete. *56
Of the 715 camps: 237 were operated by Bosnian Serbs and the former Republic of Yugoslavia; 89 were operated by the Government and army of Bosnia and Herzegovina; 77 were operated by Bosnian Croats, the Government of Croatia, the Croatian Army and the Croatian Defence Council; 4 were operated jointly by the Bosnian Government and Bosnian Croats; and 308 camps for which it is not known with certainty under whose effective control they were.
The camps range in size from small detention centres that temporarily house a few prisoners to camps that house large numbers of prisoners. The duration of their operation varies from days to months. The purposes of the camps vary as well.
Owing to the nature of the several conflicts and the military structure of the warring factions (see paras. 110 - 128 and annex III), the control of camps varies. At different points in time, the same camp may be controlled by the army, the central Government, local and political authorities, the police, various military groups and local armed civilians.
The various groups identified above converted pre-existing structures, such as municipal buildings, administrative offices, schools, sports arenas within the occupied areas and larger facilities on the outskirts of those areas (factories, warehouses, quarries and mines), into camps. Using these pre-existing facilities allows for quick and easy control and displacement of the targeted population of a controlled or conquered geographic region by one of the warring factions. There is no particular distinction between facilities holding prisoners of war and non-combatant civilians.
The camps are frequently used to detain the civilian population that has been forcibly displaced from particular regions. Detention either precedes or follows armed engagements in these regions. Wholesale detention of persons from another ethnic or religious group occurs even when there is nothing to suggest that internment of civilians is necessary for any valid legal purpose (see paras. 129 - 150 and annex III).
Camps are frequently the reported sites of mass executions, torture, rapes and other forms of sexual assault. They are the scene of the worst inhumane acts. These inhumane acts are committed by guards, police, special forces, and others who are allowed to come from the outside to perform such acts.
As the following discussion indicates, the number of camps and the number of reported violations in camps controlled by the Government of Bosnia and Herzegovina and its army are by far the lesser of the warring factions, irrespective of the ethnic or religious background of the detainees they hold. The number of reported violations by the Croatian Government, the Croatian Army and the Croatian Defence Council is larger, particularly against Serbs in Krajina and in eastern and western Slavonia and against Muslims from Bosnia and Herzegovina in Herzegovina. The period of time during which those camps were operated in each of these contexts is relatively limited. The two warring factions identified above are however reported to have a much lesser number of violations than those committed by the Serb forces and those working on their behalf, whether in Croatia or Bosnia and Herzegovina. Camps operated by Serbs in Bosnia and Herzegovina are by far the ones where the largest numbers of detainees have been held and where the cruellest and largest number of violations occurred.
The characteristics and patterns of violation in the camps differ widely depending on the controlling authority, the purpose of the camp and the camp commander.
Following is a summary description of camps divided by warring factions in control. *57
Bosnian Government camps are reported to have been the site of cases of grave breaches of the Geneva Conventions. These allegations include killing and torture of Croatian and Serbian prisoners. The number of reports and allegations are, however, limited. The Commission has not been able to detect any particular pattern or policy of wrongdoing. The Commission has, however, ascertained that the Government of Bosnia and Herzegovina has expressed its opposition to these individual violations.
The Bosnian-Croat and Croatian Defence Council camps were in Herzegovina. The Croatian Government and Croatian Army operated camps were in the Krajina area, in eastern and western Slavonia and in other parts of Croatia. Grave breaches of the Geneva Conventions have occurred in these facilities against Serbs and Bosnian Muslims, including killing, torture and rape. The Commission has not been able to detect any particular pattern or policy in operating these camps. The Commission has information concerning the location and some information about the physical layout and command structure of some of these camps. The Commission also has information concerning the killings and torture inflicted on the interned population, as well as the names of some perpetrators and victims. The largest number of violations reported are in the Krajina and eastern and western Slavonia against Serbs and in Herzegovina by Bosnian Croats and the Croatian Defence Council against Bosnian Muslims. The Government of Croatia has, since late 1993, according to information received by the Commission, condemned these violations and sought to curb their occurrences.
The Commission has information that Bosnian Serbs are operating camps where grave breaches of the Geneva Conventions and other violations of international humanitarian law, including killing, torture and rape reportedly occur on a large scale. These camps are mostly in Bosnia and Herzegovina and hold Bosnian Muslims for the most part, but also Bosnian Croats. The Bosnian Serbs use camps to facilitate territorial and political control of a geographic region and to expel and eliminate other ethnic and religious populations from that area. The Commission has detailed information concerning some of the locations and physical layouts of some of these camps, including descriptions of the various buildings where prisoners are detained, interrogated, tortured and killed. The Commission also has information about some camp commanders and military units in the areas and individual violators.
The following patterns have reportedly emerged from these camps:
The Commission concludes that grave breaches of the Geneva Conventions and other violations of international humanitarian law have been committed over a long period of time, on a large scale, and very frequently in the most brutal, inhuman and degrading manner. These violations are ordered by or known to the camp commanders, the local political leadership and police. Army units may or may not be involved. However, they do not intervene to stop these violations, thereby implying responsibility by omission.
Throughout the various phases of the armed conflicts in the former Yugoslavia, there have been numerous reports of widespread and systematic rape and other forms of sexual assault. The Commission, concerned about these reported crimes, undertook several means of research and investigation to ascertain the facts.
The Commission sought particularly to examine the relationship between "ethnic cleansing" and rape and other forms of sexual assault.
Owing to the social stigma attached - even in times of peace - rape is among the least reported crimes. For this reason, it is very difficult to make any general assessment of actual numbers of rape victims. In the former Yugoslavia, there appears to have been very little, if any, difference between the ethnic groups in the reluctance to report rape. The overall reluctance to report rape is aggravated by war, especially if the perpetrators are soldiers and also where there is a general condition of chaos and a breakdown in law and order. The victims may have little confidence in finding justice. The strong fear of reprisal during wartime adds to the silencing of victims. *60 The perpetrators have a strong belief that they can get away with their crimes.
Men are also subject to sexual assault. They are forced to rape women and to perform sex acts on guards or each other. They have also been subjected to castration, circumcision or other sexual mutilation.
The reports contained in the Commission's database identify close to 800 victims by name or number. *62 An additional 1,673 victims are referred to, but not named in reports of victims who indicate that they have witnessed or know of other similar victims. Additionally, there are some 500 reported cases which refer to an unspecified number of victims. The victims' ages, as reported, range from 5 to 81 years old, with the majority of victims below 35 years old. The reported cases identify some 600 alleged perpetrators by name. In other cases, victims refer to a specific number of perpetrators, but do not identify them by name. In those cases of unidentified perpetrators, about 900 perpetrators are referred to. Of all the reports received, about 800 contain general information, identifying some perpetrators as soldiers, police, paramilitary, special forces, etc. The alleged perpetrators include military personnel, special forces, local police and civilians. About 80 per cent of the reported cases specify that they occurred in settings where the victims were held in custody.
The reported cases of rape and sexual assault contained in the database occurred between the fall of 1991 and the end of 1993. The majority of the rapes occurred from April to November 1992; fewer occurred in the following five months. In the same time period, the number of media reports increased from a few in March 1992 to a high of 535 news stories in January 1993 and 529 in February 1993. This correlation could indicate that the media attention caused the decline. In that case, it would indicate that commanders could control the alleged perpetrators if they wanted to. *63 This could lead to the conclusion that there was an overriding policy advocating the use of rape as a method of "ethnic cleansing", rather than a policy of omission, tolerating the widespread commission of rape.
From 29 June to 9 July 1993, the Commission sent an investigative mission, consisting of Canadian military personnel, to Sarajevo to undertake a pilot study on the rape issue. *64 The objective was to review available information and to develop a methodology for interviewing witnesses and victims in order to determine how relevant evidence could be obtained for use before a tribunal.
In Sarajevo, the investigative team obtained all the relevant information from the database of the War Crimes Commission of Bosnia and Herzegovina. The database lists 126 victims, 113 incidents, 252 alleged perpetrators, 73 witnesses and 100 documents. Of these, there were 105 rape cases.
It is the view of the Commission of Experts that the pilot study of the rape issue was relatively generalized. Although the pilot study assessed various information sources, it was not practicable to gather precise information leading to possible prima facie cases.
A series of interviews was carried out by the Commission in Croatia and Slovenia in March 1994. *65 Among the 146 victim- witnesses from Bosnia and Herzegovina who were interviewed, 31 were women victims of rape, and two were suspected by the interviewer to have been victims themselves but were unwilling to speak of their own experience. One of the men from Bosnia and Herzegovina interviewed was a victim of sexual assault. This occurred in a detention facility. Among the women, 18 *66 were raped in their own homes, while 13 had been raped while in detention. Among the other men and women interviewed, there were 21 witnesses to additional cases of rape or sexual assaults. *67 This involves a total number of 55 persons who were either the victims of or witnesses to rape or sexual assault.
Among the 77 victim-witnesses from Croatia who were interviewed, 11 were women victims of rape. Six of the men from Croatia who were interviewed were victims of sexual assault. In the case of the men, all but one of these violations occurred in a detention context. However, seven of the women had been raped in their own homes. These women were victims of multiple and/or gang rapes involving up to eight soldiers. Four women were raped while in detention, among them was a woman who was detained in her own home for six months and raped almost daily. Among the other men and women interviewed from Croatia, nine were witnesses to additional cases of rape or sexual assault. This involves a total number of 27 persons who were either the victims of or witnesses to rape or sexual assault.
All of the information gathered through the 223 interviews, *68 that were conducted by the Commission has been made available to the Prosecutor of the International Tribunal. There has been insufficient time between the end of the interview process (31 March 1994) and the finalization of the present report (30 April 1994) for a detailed analysis of the cases to be conducted by the Commission. *69 However, the information gathered seems to support the analysis carried out on the basis of the allegations included in the Commission's database. In the following paragraphs, the patterns of rape and sexual assault identified through the database are outlined, while illustrations are given which are drawn from among the interviews.
Five patterns *70 emerge from the reported cases, regardless of the ethnicity of the perpetrators or the victims (see also para. 229 for a description of rape practices in custodial settings).
The first pattern involves individuals or small groups committing sexual assault in conjunction with looting and intimidation of the target ethnic group. This is before any widespread or generalized fighting breaks out in the region. Tensions in an area grow and members of the ethnic group controlling the regional government begin to terrorize their neighbours. Two or more men break into a house, intimidate the residents, steal their property, beat them and often rape the females. Some of the reported rapes are singular and some multiple. In either case, there is often a gang atmosphere where the abuses are part of the same event and all the attackers participate, even if they do not sexually assault the victims. One of the women interviewed was gang-raped by eight soldiers in front of her six-year-old sister and her five-month-old daughter. One of the men was forced at gunpoint to rape the victim, "as she was an Ustasha". When she reported the crimes to local authorities, they said they could do nothing as "she was a Croat".
The second pattern of rape involves individuals or small groups committing sexual assaults in conjunction with fighting in an area, often including the rape of women in public. When forces attack a town or village, the population is rounded up and divided by sex and age. Some women are raped in their homes as the attacking forces secure the area. Others are selected after the roundup and raped publicly. The population of the village is then transported to camps. One victim-witness interviewed saw an elderly woman and others raped in front of a group of 100 detained villagers. The witness was herself threatened with rape and she saw a number of men from the group having their throats cut.
The third pattern of rape involves individuals or groups sexually assaulting people in detention because they have access to the people. Once the population of a town or village has been rounded up, men are either executed or sent off to camps, while women are generally sent off to separate camps. Soldiers, camp guards, paramilitaries and even civilians may be allowed to enter the camp, pick out women, take them away, rape them and then either kill them or return them to the site. Reports frequently refer to gang rape, while beatings and torture accompany most of the reported rapes. Survivors report that some women are taken out alone, and some are taken out in groups. Though this is the general pattern, there are also many allegations that women are raped in front of other internees, or that other internees are forced to sexually abuse each other. In camps where men are detained, they are also subjected to sexual abuse. During the Commission's interviewing process 15 people were interviewed whose major allegations related to the same detention camp. Some witnesses were men, and all of the women victims had been raped. The women were sometimes gang raped by, or in the presence of, the camp commander. Guards from the external ring of security around the camp (who apparently did not enter the camp in the course of their work) and soldiers who were strangers to the camp would be allowed access to the camp for rape. One of the victim-witnesses interviewed saw a woman die after being in a coma for a week as a result of about 100 sadistic rapes by guards. Sexual assaults were also practised against men: one witness saw prisoners forced to bite another prisoner's genitals. In addition, 10 of those interviewed had witnessed deaths by torture and seven of the group had survived or witnessed mass executions (there or in other camps). Another incident related in an interview involved prisoners lined up naked while Serb women from outside undressed in front of the male prisoners. If any prisoner had an erection, his penis was cut off. The witness saw a named Serb woman thus castrate a prisoner. Another ex-detainee told of suffering electric shocks to the scrotum and of seeing a father and son who shared his cell forced by guards to perform sex acts with each other.
The fourth pattern of rape involves individuals or groups committing sexual assaults against women for the purpose of terrorizing and humiliating them often as part of the policy of "ethnic cleansing". Survivors of some camps report that they believe they were detained for the purpose of rape. In those camps, all of the women are raped quite frequently, often in front of other internees, and usually accompanied by beatings and torture. Some captors also state that they are trying to impregnate the women. Pregnant women are detained until it is too late for them to obtain an abortion. One woman was detained by her neighbour (who was a soldier) near her village for six months. She was raped almost daily by three or four soldiers. She was told that she would give birth to a chetnik boy who would kill Muslims when he grew up. They repeatedly said their President had ordered them to do this. One woman's home was taken by Serbian neighbours and used as a detention centre for interrogations over several months. She was raped almost daily and beaten for several months; two other women were raped there too. She saw several killings and torture.
The fifth pattern of rape involves detention of women in hotels or similar facilities for the sole purpose of sexually entertaining soldiers, rather than causing a reaction in the women. These women are reportedly more often killed than exchanged, unlike women in other camps. One woman interviewed was detained in a private house with a number of other women for six months. The women were of mixed ethnicity. All the women were raped when soldiers returned from the front line every 15 days. The witness was told that the women had to do this because the women in another camp (which the witness named and which has been documented by other information gatherers) were exhausted.
Common threads run through the cases reported whether within or outside of a detention context:
Rape has been reported to have been committed by all sides to the conflict. However, the largest number of reported victims have been Bosnian Muslims, and the largest number of alleged perpetrators have been Bosnian Serbs. There are few reports of rape and sexual assault between members of the same ethnic group.
In Bosnia, some of the reported rape and sexual assault cases committed by Serbs, mostly against Muslims, are clearly the result of individual or small group conduct without evidence of command direction or an overall policy. However, many more seem to be a part of an overall pattern whose characteristics include: similarities among practices in non-contiguous geographic areas; simultaneous commission of other international humanitarian law violations; simultaneous military activity; simultaneous activity to displace civilian populations; common elements in the commission of rape, maximizing shame and humiliation to not only the victim, but also the victim's community; and the timing of rapes. One factor in particular that leads to this conclusion is the large number of rapes which occurred in places of detention. *71 These rapes in detention do not appear to be random, and they indicate at least a policy of encouraging rape supported by the deliberate failure of camp commanders and local authorities to exercise command and control over the personnel under their authority.
These patterns strongly suggest that a systematic rape policy existed in certain areas, but it remains to be proven whether such an overall policy existed which was to apply to all non-Serbs. It is clear that some level of organization and group activity was required to carry out many of the alleged rapes. Furthermore, rape and sexual assault should be examined in the context of the practice of "ethnic cleansing", which is discussed in paragraphs 129 to 150 and the practices in detention camps discussed in paragraph 230. When viewed in these contexts, it is clear that grave breaches of the Geneva Conventions occurred, as did other violations of international humanitarian law. *72
Owing to the large scale of victimization that has taken place over a substantial portion of the territories of Croatia and Bosnia and Herzegovina since 1991, there is a significant number of persons who have been buried in many individual and mass graves.
The Commission addressed the question of mass graves in its second interim report of 6 October 1993 (S/26545, annex) and outlined its plans for the continuation of the database study and the exhumation at Ovcara (Sector East Croatia) (see paras. 265 - 276) and Packra ka Poljana (Sector West Croatia) (see paras. 277 - 284).
As of 31 March 1994, the Commission received information leading to the identification of 187 mass grave sites throughout the territory of the former Yugoslavia. *74 Of the reported sites, 143 are located in Bosnia and Herzegovina and 44 are in Croatia.
The number of bodies in reported mass graves ranges from 3 persons to 5,000 persons. Of the mass grave sites, 65 are believed to contain at least some Muslims; 32 are believed to contain at least some Croats; and 19 are believed to contain at least some Serbs. Regarding the remainder of the grave sites, reports on approximately 81 do not contain information regarding ethnicity. Some grave sites are reported to contain bodies from more than one warring faction. *75 However, these numbers do not reflect whether the grave sites contain bodies of civilians and other non-combatants or the bodies of soldiers killed in combat.
The number of bodies said to be contained in the reported grave sites are as follows: 25 grave sites contain less than 10 bodies; 16 grave sites contain at least 10 to 20 bodies; 29 grave sites contain at least 20 to 50 victims; 22 grave sites contain at least 50 to 100 bodies; 20 grave sites contain at least 100 to 500 bodies; and 13 grave sites contain 500 bodies or more. Sixty-two of the sites did not have a specific number of bodies.
Persons buried in 81 of the reported grave sites are alleged to have been killed by Serbs; 16 of the sites contain individuals reportedly killed by Croats; and 5 contain bodies reportedly killed by Muslims. The remainder of the reports on 87 mass graves do not identify the ethnicity of the perpetrator. Again, it should be noted that the individual or faction that was responsible for the killing may not have been responsible for the creation of the mass grave. *76
Many alleged mass graves are situated at or near the sites of identified detention facilities. In the Prijedor region alone, there are approximately 62 grave sites, some of which are said to contain the remains of prisoners killed at Omarska Camp, Keraterm Camp, and other camps located in the area. The Brcko area, where the Luka Camp was located, may contain between 5 and 10 mass grave sites. Grave sites are also clustered in Foca, Mostar, Kotor Varos, Pakracka Poljana (see paras. 277 - 284) and Marino Selo.
At least 99 of the alleged mass grave sites appear to contain victims of mass killings. In these instances, the source of information clearly detailed the circumstances of the killing or provided witness testimony. *77 Thus, as more information becomes available, this number may change. In addition, the number of graves which allegedly contain at least 20 bodies, along with much of the source information regarding how many of the grave sites were created, suggests that this number will increase. This is particularly true at those sites which were at or near detention facilities. The data, including witness statements, indicate that many of those buried in mass graves were former prisoners in the various detention facilities throughout the territory.
It should be noted that, as indicated above, the existence of mass graves does not necessarily mean that persons were unlawfully killed. However, there are several provisions of the Geneva Conventions which outline the treatment and burial of those killed during wartime. In some instances, these provisions may have been violated by those burying the dead in collective graves without proper identification. *78 Thus, a mass grave may be important not only as a potential repository of evidence of a mass killing, but the method and manner by which the grave is created may itself be a war crime.
The Commission believes that it is particularly significant to investigate mass graves in order to help resolve the problem of missing persons. *79 This is of vital importance to their families. Investigations of mass graves will also help to discover evidence of criminality.
If the existence of the numerous mass graves situated at or near identified detention facilities were to be confirmed, such confirmation would be relevant to the inquiry into "ethnic cleansing" (see paras. 129 - 150).
As indicated in its first and second interim reports, the Commission had been intending for some time to conduct an investigation of the Ovcara grave site in Sector East, which was reported to contain the bodies of about 200 persons who were in the Vukovar Hospital in November 1991 when the city fell to Serb forces. The investigation would involve the exhumation of the bodies contained in the mass grave site, the collection of physical evidence at the grave site, the transport of the bodies to a morgue facility, the autopsy examination of the bodies to establish identification and the cause/manner of death and, in time, the collection of other types of evidence, including testimonial evidence, so that criminal responsibility for the killings related to the bodies in the grave could be determined.
The Commission faced some logistical difficulties in preparing for the Ovcara investigation. However, all of these difficulties were eventually overcome and the Commission obtained the assistance of an international team of investigators.
The only obstacle which the Commission could not overcome was political - obtaining viable assurances and permissions from the political authorities controlling the areas.
In an effort to obtain the necessary political assurances, the Commission made visits to Vukovar in March, July, October and November; to Belgrade in March and April; and to Knin in May, September and October. In addition, the Commission exchanged numerous pieces of correspondence with various authorities in these locations. The approach taken by the Commission was that, as a matter of balance, the Commission would attempt to excavate a second mass grave site in Sector West that was believed to contain Serb victims at essentially the same time as it conducted the Ovcara excavation. The Commission and the local authorities at various times also discussed issues, including the location for post mortem examinations, the presence of observers during the investigation, and the concerns of "Serb Republic of Krajina" officials about the use of Sector West by Croatian authorities as a site for radioactive waste disposal.
Following a meeting at Knin with the administration of the "Serb Republic of Krajina" on 5 September 1993, it was the view of the Commission that it had obtained the necessary approvals in writing to conduct the Ovcara excavation. As a matter of balance, while the bodies at Ovcara were being exhumed and an autopsy examination was being conducted to establish identification and the cause/manner of death, a preliminary site survey would be conducted at a presumed mass gravesite in the Pakracka Poljana/Marino Selo area in Sector West and a preliminary radiological survey would also be conducted in Sector West. On the basis of this understanding, the Commission decided to send an investigative mission to Zagreb in early October and to Sectors West and East during the week of 17 October.
On 14 and 15 October, the Commission met with the administration of the "Serb Republic of Krajina" at Knin to obtain additional written authorization to proceed with the Ovcara excavation and to address newly raised concerns of the "Serb Republic of Krajina" about the location of the morgue facility. The authorities of the "Serb Republic of Krajina" insisted that post-mortem examinations could not be conducted in Croatia. Although the Commission had intended to have the post-mortem examinations conducted at Zagreb, the Commission agreed to endeavour to locate a place for these examinations which would be acceptable to the administration of the "Serb Republic of Krajina". The Commission also agreed to the presence of observers of the "Serb Republic of Krajina" at the sites during the investigations. On receipt of this assurance, the administration of the "Serb Republic of Krajina" issued several documents providing cooperation and authorizing the Commission to proceed with the investigation.
The teams were deployed from Zagreb to Sector East on 19 October. On arrival in Sector East on the evening of 19 October, the on-site rapporteur was informed by UNPROFOR that a meeting with Sector East administration of the "Serb Republic of Krajina", in particular Colonel Milanovic, was a condition precedent to commencement of the excavation. In the interim, and with the acquiescence of the UNPROFOR Sector Commander, the various teams went to the Ovcara site on 20 and 21 October to conduct a second site survey, which would not involve any excavation. The site had been secured by UNPROFOR since it was originally identified in December 1992. During the site survey, the site was checked for unexploded ordinance by UNPROFOR; brush was cleared; the area was surveyed in detail with a range of equipment; and a certain amount of physical evidence, including spent cartridge cases and some cloth, was recovered.
On 22 October, the representatives of the Commission met with Colonel Milanovic in Erdut and was informed that, notwithstanding the various approvals received at Knin on 14 and 15 October, the Parliament of the "Serb Republic of Krajina" had taken a decision on 21 October requiring the Commission to postpone all activity at Ovcara until a political solution was found to the situation in the former Yugoslavia. Following the meeting, all personnel were withdrawn from the Ovcara site to their accommodations at Klissa and Erdut. After consultation with UNPROFOR, it was decided that any attempt to continue the project after this decision by the "local administration" would expose the project personnel and UNPROFOR personnel to an excessive degree of risk.
Although efforts were made to rehabilitate the Ovcara project in the ensuing weeks, including a Commission meeting with Mr. Bjegovic, Prime Minister of the "Serb Republic of Krajina" at Knin on 30 October, none of these efforts were successful. No one affiliated with the Commission has returned to the site, which remains under UNPROFOR protection, since 22 October.
In order to make the most effective use of project personnel, once it became apparent by midday on 24 October that there would be no rapid change of position on the part of the local administration, project personnel were shifted over a period of time from Sector East to Sector West and elsewhere. The last person and the last piece of equipment was out of Sector East by 30 October. Sufficient material and personnel resources were, however, retained in Croatia until about 10 November so that the Ovcara excavation could be conducted if adequate political approval was obtained. After 10 November, the onset of cold weather made the project impracticable before the spring of 1994. Appropriate political approval was not obtained before 10 November.
On 17 November 1993, the representatives of the Commission met with Mr. Hadzic, President of the "Serb Republic of Krajina", at his initiative at Erdut. Also at the meeting were Mr. Niksic, "Vice-Chairman of the Regional Council", and Colonel Milanovic, Deputy Minister of Defence of the "Serb Republic of Krajina". Note no. 1-234-93, dated 16 November, was presented to the on-site rapporteur, under the signature of Mr. Hadzic, stating that the following decisions had been reached:
Owing to weather conditions, the Commission had to postpone resumption of the investigation until the spring of 1994. In so far as the Commission's work was terminated as of 30 April, all relevant documents for this investigation have now been passed on to the Office of the Prosecutor for the International Tribunal. The site remains under UNPROFOR protection, but no criminal investigation related to this mass grave excavation has been conducted to date.
During the March 1993 reconnaissance mission, the Commission became aware of the need to conduct a second mass grave excavation at a site, which would probably contain Serb bodies, at essentially the same time as the Ovcara excavation, which would probably be found to contain Croatian bodies. At the same time, it was informed of a number of probable clandestine grave sites near Pakracka Poljana in Sector West, which were believed to contain a large number of Serb bodies. For reasons related to the security of the sites and of potential witnesses, the Commission avoided visiting the sites at that time.
In October 1993, when the Commission was in a position to conduct a mass grave excavation, it decided to have Physicians for Human Rights conduct a preliminary site survey at Pakracka Poljana to confirm the existence of a mass grave. At the time this decision was taken, it was considered that the Pakracka Poljana location was the location in the United Nations protected areas (UNPAs) most likely to be the site of a mass grave containing Serb victims.
From 20 October to 9 November 1993, the Commission deployed teams to the area. The numbers of members of each group varied over time, as persons were shifted from the Ovcara site to Pakracka Poljana.
The Commission received a particularly high level of support from UNPROFOR during this investigation.
The forensic report on this preliminary site investigation reached the following conclusions:
Although the Pakracka Poljana site was believed to be the site of mass graves containing up to 1,700 bodies, the site was examined with considerable care. Seventy-one holes were dug at the site. The very firmly based conclusion was reached that this belief was erroneous.
On 9 November 1993, the 19 exhumed bodies were placed in body bags together with preservative chemicals and reburied at a site immediately adjacent to an UNPROFOR observation post. Before this step was taken, some consideration was given to the possibility of conducting an autopsy examination of the bodies to establish identification and the cause/manner of death and to the possibility of gathering some additional ante-mortem information by interviewing selected persons in the area. These activities were not undertaken owing to previously expressed "Serb Republic of Krajina" concerns that post-mortems not be done in Croatia on account of the difficulty of obtaining a suitable morgue facility. Also, time and personnel resources would not permit the intensive effort required to conduct a criminal investigation and to gather all available ante-mortem information.
Responsibility for obtaining additional information and for continuing this investigation has now been passed to the Office of the Prosecutor of the International Tribunal.
In determining the extent of the destruction of cultural property in the former Yugoslavia, the Commission proceeded under its overall plan of work and made use more particularly of its database and reports by international organizations, including the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Parliamentary Assembly of the Council of Europe and other intergovernmental sources and non-governmental organizations.
The Commission has received extensive information on destruction of cultural property, but it was not in a position to investigate all these allegations. In particular, it could not verify allegations that all Catholic churches and mosques in Serb- occupied territories of Bosnia had been systematically destroyed or damaged. Since the Commission could not consider, let alone investigate, all allegations of damage to cultural property, *81 it has selected two examples which are typical of such breaches.
The two examples chosen by the Commission were the battle of Dubrovnik (see paras. 298 - 301) and the destruction of the Mostar Bridge.
In the autumn of 1991, the region of Dubrovnik was surrounded and besieged by the Yugoslav National Army. After a few weeks, Dubrovnik itself was cut off by land and sea by the forces of the former Yugoslavia. This situation continued up to the autumn of 1992, when the district of Dubrovnik was recognized as forming part of the Republic of Croatia. The military occupation of the district of Dubrovnik captured international attention because of the cultural and historical significance of the region and the town. Dubrovnik is now known as an old town which has suffered great damage as a result of the Serbian attacks. In 1979, the old town had been included in UNESCO's list of the world's cultural heritage.
The attacks on Dubrovnik started with the Serbian paramilitary forces, supported by Yugoslavia's regular army, in June and August On 1 October 1991 the Yugoslav Army invaded the district of Dubrovnik and laid siege to the town. It may be affirmed that there was virtually no defence of Dubrovnik and the surrounding area against the Yugoslav forces. Thus the destruction could on no account be justified as a military necessity.
The siege of Dubrovnik lasted from October until December. The first shelling began on 1 October and continued sporadically until 24 October 1991. After a short lull, the shelling started up again on 30 October and continued into December. The shelling on 6 December 1991 was especially intensive. The shelling was selective and deliberately aimed at the buildings in the old town and there is no doubt that the destruction of cultural property was intentional. However, the people doing the firing did not only hit the old town. The new town was also hit.
According to estimates, 55.9 per cent of the buildings of the old town were affected, either by fires or by damage to the structures and special elements or to the facades and roofs. Several palaces had their roofs either destroyed or burned, including the Festival Palace, whose archives were completely destroyed, and a number of monuments whose roofs caved in. Other examples are St. Blaise's Church, the Franciscan Cathedral and Convent, the Dominican Convent, St. Clair's Convent and the Fountain of Onofrio; and, of course, there was the destruction of the roofs of the old town. In this respect, the local authorities list 336 direct hits and 254 cases of partial destruction of roofs by shell fragments.
From the UNESCO experts' assessment, the total damaged roof areas can be estimated at 56,747 m2. To this visible damage, the experts of the Commission have added damage resulting from vibrations, which may appear later, as well as the damage which simply could not be detected at the time the UNESCO experts were carrying out their work.
Thus, in respect of the statute of the International Tribunal, the offences in Dubrovnik can be said to concern extensive destruction and appropriation of property not justified by military necessity and seizure or destruction and damage to religious institutions dedicated to charity, education, the arts and sciences as well as historic monuments and artistic and scientific works.
The concept of military objective should also be considered in this connection in order to shed light on the crimes committed. Indeed, it seems quite clear that this destruction of cultural property did not in any way contribute to the military action and could in no way be considered necessary in terms of the military objectives pursued. Nor is there any way that the perpetrators of these crimes can claim to have been utilizing the monuments for military purposes. In the Commission's view, other concepts in addition to military objectives should be applied: the concepts of undefended place or object, of proportionality and of neutrality.
At 10.16 a.m. on 9 November 1993, Mostar Bridge was destroyed. In this connection, the Institute for the Protection of the Historic and Natural Cultural Heritage of Bosnia and Herzegovina has accused the Croatian Defence Council and the Croatian Army in a letter to UNESCO dated 10 November 1993. This letter and other documents attached to the present report describe the history of the bridge, which was built between 1557 and 1566 according to the plans of the Turkish architect Aerudin. It is a monument which, unfortunately, did not appear in the UNESCO list. However, this bridge was well known to the population in the region, whether Serbian, Croatian or Muslim. Moreover, the bridge was a symbol of Bosnia and Herzegovina which connected the gap between the Muslim and Croat communities. It embodied the links which united these peoples in spite of their religious differences and the circumstances of the present war. There can be no doubt, however, that it was of greater value to the Muslims.
Admittedly, before it was destroyed, the bridge had already suffered a certain amount of damage. Indeed, damage had already been done to its northern parapets. But, all things considered, the damage had been minor. The initial objective, it would seem, had been to discourage people from using it. Thus, prior to November 1993, the primary target had been the parapet, forcing anyone who might be tempted to cross the bridge to refrain from doing so. However, the shelling on 8 November 1993 clearly aimed at destroying the bridge. This destruction was carried out by tanks belonging apparently to the Croatian forces. On 9 November, the shelling continued. It was then that the supporting arch of the southern end of the bridge was hit and collapsed. It would seem that this incident was filmed by Folio Productions (a British production company).
The same criminal characterization which applies to the battle of Dubrovnik also applies to the destruction of Mostar Bridge, which was also devoid of any military significance. It would seem that the Croats were at the origin of the destruction of Mostar Bridge. A Mostar district military tribunal reportedly interrogated three Croatian Defence Council soldiers, who allegedly acted, according to a statement by the tribunal, "on their own initiative, without orders from their superiors". *82 Clearly, these are questions of fact which have to be decided judicially to determine both individual responsibility and command responsibility.
The Commission sent an investigative team of Canadian and Norwegian military lawyers and a French art historian to Dubrovnik for the period 20 October to 4 November 1993. The objective of the investigation was to prepare a law of armed conflict study of the battle of Dubrovnik which would attempt, among other things:
On the basis of this investigation, the Commission finds that at least 82, and possibly as many as 88, civilians were killed as a result of JNA military operations in the district of Dubrovnik during the period from September 1991 until December 1992, inclusive, and that most of these persons were killed in 1991. Thirteen civilians were killed during the St. Nicholas Day bombardment of 6 December 1991. The Institute for the Restoration of Dubrovnik has completed a study of damage to housing in the district of Dubrovnik which the Commission accepts. The Institute estimates that the cost of reconstructing housing alone will be DM 69,000,000, while the cost of complete reinstallation of families will be DM 480,000,000 (prices on 31 December 1990). Detailed reports on damage to cultural property have been prepared by UNESCO, the Institute for the Protection of Cultural Monuments and the Natural Environment of Dubrovnik and the Parliamentary Assembly of the Council of Europe which the Commission has accepted as a basis for their investigation. These reports indicate in particular that a substantial amount of damage was caused to cultural property in the old town of Dubrovnik, mostly during the St. Nicholas Day bombardment.
It is the finding of the Commission that the St. Nicholas Day bombardment of 6 December 1991 was a deliberate attack on civilian persons and on civilian objects, including cultural property. It is the finding of the Commission that it is possible to determine the precise identity and status of persons killed or injured during the bombardment and to confirm the extent of civilian property damaged during the bombardment, the unit responsible for the bombardment, the identity of the unit commander and the identity and position in the chain of command of more senior officers responsible for the bombardment.
It is the view of the Commission that it is possible to develop prima facie cases directed against one or more officers responsible for the St. Nicholas Day bombardment and that it may be possible to develop cases concerning other incidents in the district of Dubrovnik.
As the administration of the "Serb Republic of Krajina" had expressed concern about the use of sites in Sector West for radioactive waste disposal, the Commission agreed to send a team of experts to conduct a preliminary radiological survey in the Sector. Information provided by the administration of the "Serb Republic of Krajina" about the radioactive waste sites was extremely sparse. Two nuclear biological chemical specialists were deployed to Sector West with one (Netherlands) United Nations support detachment.
The specialists reached the following conclusions:
The investigation was as thorough as time would permit, and a wide range of possible dump sites were visited with uniform negative results.
However, in March and April 1994, the administration of the "Serb Republic of Krajina" provided new information on the location of possible waste dump sites. As the Commission was informed that it had to terminate its work by 30 April 1994, this additional information was passed to the Office of the Prosecutor of the International Tribunal.
The disintegration of a federal State, as in the case of the former Yugoslavia, is often at first a civil conflict. However, as the respective States of Slovenia, Croatia and Bosnia and Herzegovina declared their independence, received international recognition and were admitted to membership in the United Nations, the conflict with respect to each of these States became an international conflict. *85 The first interim report stated:
"45. The Commission is of the opinion, however, that the character and complexity of the armed conflicts concerned, combined with the web of agreements on humanitarian issues the parties have concluded among themselves, justify an approach whereby it applies the law applicable in international armed conflicts to the entirety of the armed conflicts in the territory of the former Yugoslavia."
However, the precise time at which the different stages of this multi-party conflict became or ceased to be a conflict of an international character must be determined by a review of legally relevant facts. This determination must be made by the International Tribunal. In the event the Tribunal concludes that the conflict is of an international character, the "grave breaches" provisions of the Geneva Conventions of 12 August 1949 shall apply, as well as Additional Protocol I of 1977, as do other norms of international humanitarian law. With respect to other periods, common article 3 of the 1949 Geneva Conventions and Protocol II apply, as do other norms of international humanitarian law.
The Commission emphasizes that the conventional and customary international law norms on crimes against humanity and genocide apply to the entirety of this conflict. This is the case irrespective of whether the conflict is determined to be of an international or non-international character.
The Commission also concurs with respect to the provisions of applicable law contained in the statute of the International Tribunal. Indeed, in its first interim report (paras. 36-46), the Commission had taken the position which the Security Council later adopted in resolution 827 (1993). The Commission recognizes, however, that Protocols I and II are also part of the applicable law.
Reports received and investigations conducted by the Commission indicate that the level of victimization in this conflict has been high. The crimes committed have been particularly brutal and ferocious in their execution. *86 The Commission has not been able to verify each report; however, the magnitude of victimization is clearly enormous. *87
The Commission finds significant evidence of and information about the commission of grave breaches of the Geneva Conventions and other violations of international humanitarian law which have been communicated to the Office of the Prosecutor of the International Tribunal.
Some of the conclusions relative to these violations are reflected in the present report, but for obvious reasons information and evidence of a prosecutorial nature are not described herein.
The practices of "ethnic cleansing" (see paras. 129 - 150), sexual assault and rape (see paras. 232 - 253 and 230) have been carried out by some of the parties so systematically that they strongly appear to be the product of a policy. The consistent failure to prevent the commission of such crimes and the consistent failure to prosecute and punish the perpetrators of these crimes, clearly evidences the existence of a policy by omission. The consequence of this conclusion is that command responsibility can be established.
Knowledge of these grave breaches and violations of international humanitarian law can reasonably be inferred from consistent and repeated practices.
The domestic criminal laws of the former Socialist Federal Republic of Yugoslavia and the criminal codes of all the republics formerly comprising it contain prohibitions against the violations that have taken place. Therefore, there should be no doubt in anyone's mind that such acts as murder, torture, rape, robbery and theft constitute crimes.
The observations set forth in paragraphs 110 to 127 on the military structure of the warring factions and the strategies and tactics they employ may reveal an initial state of confusion, reducing the effectiveness of command and control. This apparent confused state of affairs continued well beyond the initial stages of the respective conflicts. This leads to the conclusion that the existence of separate military structures and the multiplicity of units may well have been intended by some of the parties. The confusion may be intended to permit senior military and political leaders to argue lack of knowledge of what was happening and inability to control such unlawful conduct.
Notwithstanding the strong feelings of the warring factions concerning their victimization, both historical and contemporary arguments concerning reprisals (see paras. 63 - 66) and superior orders (see paras. 61 and 62) do not constitute a defence under the well-established law of international armed conflict and under the national laws of the parties to the conflict.
The type, range and duration of the violations described in the present report strongly imply command responsibility by commission and omission and also indicate that the absolute defence of obedience to superior orders is invalid and unfounded (ibid.). This is particularly evident in view of the loose command and control structure where unlawful orders could have been disobeyed without individuals risking personal harm. Indeed, some did. A moral choice usually existed. Individual cases, however, will have to be judged on their respective merits in accordance with the statute of the International Tribunal.
The Commission is shocked by the high level of victimization and the manner in which these crimes were committed, as are the populations of all the parties to the conflict. The difference is that each side sees only its own victimization, and not what their side has done to others.
It is particularly striking to note the victims' high expectations that this Commission will establish the truth and that the International Tribunal will provide justice. All sides expect this. Thus, the conclusion is inescapable that peace in the future requires justice, and that justice starts with establishing the truth. *88 The Commission would be remiss if it did not emphasize the high expectation of justice conveyed by the parties to the conflict, as well as by victims, intergovernmental organizations, non-governmental organizations, the media and world public opinion. Consequently, the International Tribunal must be given the necessary resources and support to meet these expectations and accomplish its task. Furthermore, popular expectations of a new world order based on the international rule of law require no less than effective and permanent institutions of international justice. The International Tribunal for the Prosecution of Persons Responsible for Serious Violation of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 must, therefore, be given the opportunity to produce the momentum for this future evolution.
The Commission requests the Secretary-General to publish this report and its annexes in their entirety and to give them the widest possible dissemination in order to inform Member States and the interested public.