Organization: University of Illinois at Chicago
Date: Monday, 23 Nov 1992 14:39:53 CST
From: <U15231@uicvm.uic.edu>
Newsgroups: soc.culture.bosna-herzgvna
Subject: Helsinki Watch

Date: Mon, 23 Nov 92 15:22:11 EST
From: BOSNET@math.lsa.umich.edu
Subject:    Helsinki.Watch:pp.1-7
Organization: BOSNET (Bosnian Electronic Network)

Contribution by: HW



First chapter, pp 1-7 (one of three files)
______________________________________________________________________________

              Helsinki Watch (a division of Human Rights Watch),
                      "War Crimes in Bosnia-Hercegovina"
                                     1992


                                 INTRODUCTION


     The full scale war that has been raging in Bosnia-Hercegovina since early
April has been marked by extreme violations of international humanitarian law,
also known as the laws of war. Indeed, violations of the rules of war are
being committed with increasing frequency and brutality throughout the
country. The extent of the violence inflicted on the civilian population by
all parties is appalling. Mistreatment in detention, the taking of hostages
and the pillaging of civilian property is widespread throughout Bosnia-
Hercegovina. The most basic safeguards intended to protect civilians and
medical establishment have been flagrantly ignored. The indiscriminate use of
force by Serbian troops has caused excessive collateral damage and loss of
civilian life. A policy of "ethnic cleansing" has resulted in the summary
execution, disappearance, arbitrary detention, deportation and forcible
displacement of hundreds of thousands of people on the basis of their religion
or nationality. In sum, the extent of the violence and the fact that
it is targeted along ethnic/religious lines raises the question of whether
genocide is taking place.
     Helsinki Watch calls on the Security Council of the United Nations to
exercise its authority under the 1951 Convention on the Prevention and
Punishment of the Crime of Genocide to intervene in Bosnia-Hercegovina to
prevent and suppress genocide. Helsinki Watch also calls upon the United
Nations Security Council to enforce the prohibition of "grave breaches" of the
Geneva Conventions by establishing an international tribunal at the highest
level to investigate, prosecute, adjudicate and punish those on all sides who
have been responsible for war crimes on the territory of the former
Yugoslavia.

                                    *  *  *

     The findings in this report, and the reports from Bosnia-Hercegovina by
independent news media, provide at the very least "prima facie" evidence that
genocide is taking place. The "ethnic cleansing" that is being practiced by
Serbian forces is directed particularly against Muslims and Croats on the
basis of their religion and ethnicity. The victims of such "ethnic cleansing"
have been expelled from their homes and villages; rounded up and held in
detention camps; deported; killed in indiscriminate attacks; and summarily
executed. The murder of 83 Muslim residents of the village of Zaklopaca on May
16, on the basis of their ethnicity/religion, is documented in this report and
demonstrates in microcosm what has been taking place throughout
Bosnia-Hercegovina.
     Under Article I of the Genocide Convention, the parties undertake "to
prevent and to punish" acts of genocide. Article II provides that genocide
consists of acts committed "with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such." It specifies that the
means by which genocide is carried out includes "killing members of the
group." Article VIII authorizes the United Nations to take appropriate action
"for the prevention and suppression of acts of genocide."
     Genocide is the most unspeakable crime in the lexicon. The authorization
that the Convention provides to the United Nations to prevent and suppress
this crime carries with it an obligation to act. The only guidance the
Convention provides as to the manner of action is that it should be
"appropriate." We interpret this as meaning it should be effective.
Accordingly, Helsinki Watch believes that the United nations, acting through
the Security Council, is under an obligation to act effectively to prevent and
suppress genocide in Bosnia-Hercegovina.
     It is beyond the competence of Helsinki Watch to determine all the steps
that may be required to prevent and suppress the crime of genocide. It may be
necessary for the United Nations to employ military force to that end. It is
not the province of Helsinki Watch to determine whether such force is
required. Helsinki Watch believes that it is the responsibility of the
Security Council to address this question.
     Whether or not the Security Council determines that military forces is
required, Helsinki Watch calls on the United Nations to take steps to ensure
that those engaged in genocide will be held accountable for their crimes, and
will become aware that they will be held accountable.
     Article 146 of the Fourth Geneva Convention of 1949 on the Protection of
Civilian Persons in Time of War requires the parties to enact legislation to
provide effective penal sanctions for those committing or ordering to commit
"grave breaches" of the Convention; and to search for such persons and to
bring them to trial. Article 147 states that grave breaches are the following
acts committed against protected persons and property:

     willful killing, torture or inhuman treatment, including biological
     experiments, willfully causing great suffering or serious injury to body
     or health, unlawful deportation or transfer or unlawful confinement of a
     protected person, compelling a protected person to sere in the forces of
     a hostile Power, or willfully depriving a protected person of the rights
     of fair and regular trial prescribed in the present Convention, taking of
     hostages and extensive destruction and appropriation of property, not
     justified by military necessity and carried out unlawfully and wantonly.

     Article 129 and 130 of the Third Geneva Convention Relative to the
Treatment of Prisoners or War also require penal sanctions for "grave
breaches" and identify many of the same acts as grave breaches.
     Article 85 of Protocol I supplements the provisions of the Conventions,
stating that "the following acts shall be regarded as grave breaches of this
Protocol, when committed wilful, in violation of the relevant provisions
of this Protocol, and causing death or serious injury to body or health:

     (a) making the civilian population or individual civilians the object of
     attack;
     (b) launching an indiscriminate attack affecting the civilian population
     or civilian objects in the knowledge that such attack will cause
     excessive loss of life, injury to civilians or damage to civilian objects
     as defined by Article 57, paragraph 2(a)(iii);
     ...
     (d) making non-defined localities and demilitarized zones the object of
     attack;
     (e) making a person the object of attack in the knowledge that he is
     "hors de combat....[1]

     Article 85 goes on to define additional acts as "grave breaches" when
committed willfully and in violation of the Conventions or the Protocol;

     (a) the transfer by the occupying Power of parts of its own civilian
     population into the territory it occupies, or the deportation or
     transfer of all or parts of the population of the occupied territory
     within or outside this territory, in violation of Article 49 of the
     Fourth Convention;
     ....
     (b) ....inhumane and degrading practices involving outrages upon personal
     dignity, based on racial discrimination;
     ....
     (d) making the clearly-recognized historic monuments, works of art or
     places of worship which constitute the cultural or spiritual heritage of
     peoples and to which special protection has been given by special
     arrangement, for example, within the framework of a competent
     international organization, the object of attack, causing as a result
     extensive destruction thereof, where there is no evidence of the
     violation by the adverse Party of Article 53, sub-paragraph (b), and when
     such historic monuments or works of art and places of worship are not
     located in the immediate proximity of military objectives;....[2]

     Paragraph 5 of Article 85 provides that "grave breaches" of the Protocol
and Conventions "shall be regarded as war crimes."
     Article 86 and 87 of the Protocol require the parties: to repress grave
breaches [3]; provide that superiors are not absolved from penal
responsibility for grave breaches if they did not take all feasible measures
within their power to prevent or repress the breach [4]; and to initiate
disciplinary or penal action against violations [5].
     It is now generally accepted that war crimes constitute international
crimes under customary international law. There is widespread agreement that
war crimes are subject to universal jurisdiction.
     The prevailing view of universal jurisdiction in the United States is
stated by section 404, Restatement (Third) of the Foreign Relations Law of the
United States (1987) (the "Restatement (Third)"):

     A state has jurisdiction to define and prescribe punishment for certain
     offences recognized by the community of nations as of universal concern
     such as piracy, slave trade, attacks on or hijacking of aircraft,
     genocide, war crimes....

The principle of universal jurisdiction to try war crimes was recognized in
the establishment of the Nuremberg Tribunal [6] and in such subsequent cases
as the trial of Adolf Eichmann in Isreal and Klaus Barbie in France.
     In the context of the international war in Bosnia, a tribunal established
under the auspices of an appropriate international organization such as the
United Nations and affording all those tried before it the protection of
internationally recognized standards of due process of law, could exercise
jurisdiction over war crimes. Helsinki Watch calls on the United Nations to
establish such a tribunal and to prosecute, adjudicate and punish those
responsible for war crimes starting with those with the highest level of
responsibility for the most egregious crimes.
     During two separate missions, Helsinki Watch representatives investigated
reports of war crimes alleged to have been committed by Serbian, Croatian and
Muslim forces in Bosnia-Hercegovina [7]. Although all sides have committed
serious abuses, Helsinki Watch found that the most egregious and overwhelming
number of violations of the rules of war have been committed by Serbian
forces. Indeed, Helsinki Watch is gravely concerned that the extensive
violations documented in this report reflect only a fraction of the abuses
being committed in Bosnia-Hercegovina [8].
     Helsinki Watch believes that sufficient evidence is available to warrant
the investigation of the following persons to determine whether they have
committed the war crimes described in this report:

     * Blagoj Adzic, Retired General of the JNA and former Minister of Defense
       of Yugoslavia and Chief of Staff of the JNA.
     * Dragoslav Bokan, a Serbian paramilitary leader.
     * Mirko Jovic, a Serbian paramilitary leader.
     * Radovan Karadzic, President of the Serbian Democratic Party of
       Bosnia-Hercegovina.