Violence on Civilians and Prisoners of War in the Jurisprudence of International Criminal Tribunals

AuthorFausto Pocar
PositionProfessor of International Law, University of Milano (Italy); Judge, ICTY and ICTR Appeals Chambers; formerly, ICTY President.
Pages12-30

Page 12

1. Introduction

It is a fact of contemporary conflicts that civilians are often the focus of hostilities and that prisoners of war are often mistreated. The International Criminal Tribunals for the former Yugoslavia and for Rwanda (“ICTY” and “ICTR”) have provided, since their establishment, detailed jurisprudence on the criminal nature of these activities. These two institutions were established by the Security Council, pursuant to its authority under Chapter VII of the UN Charter,2 to prosecute violations of international law committed during the conflicts in the regions of the former Yugoslavia and Rwanda. The Appeals Chambers of these two ad hoc Tribunals are composed of the same judges; unsurprisingly, therefore, their case-laws tend to converge and, in a sense, reinforce each other. The jurisprudence of the two ad hoc Tribunals on war crimes and crimes against humanity has recently been enriched with decisions issued by the Special Court for Sierra Leone (“SCSL”).

This article discusses various forms in which civilians and prisoners of war are mistreated and, by presenting the judgments of the ICTY, ICTR and the SCSL, identifies the manner in which perpetrators may be held individually responsible under international criminal law. Specifically, it explores some of the legal and factual findings in relation to various forms of violence against civilians and detainees – deportation, forcible transfer, torture and rape – as well as the use of civilians in combat situations – trench digging, human shields and the use of child soldiers.

2. Violence and Mistreatment
A) Deportation and forcible transfer

The most pre-eminent unwilling involvement of civilians in conflict, in the experience of the ICTY, is the widespread involuntary movement of population. This is to a limited extent inevitable in any conflict, due to the humanitarian need to evacuate civilians from conflict zones.3 However, the cases before the ICTY suggest that some contemporary conflicts are marked by a specific plan on the part of the military and civilian leadership to remove substantial portions of a civilian population on the basis of ethnic, religious, national or political grounds.4

Page 13

In deciding such cases, the ICTY sought to distinguish between deportation and forcible transfer. As the two acts are often mentioned together, doubts had arisen (among scholars as well as in the jurisprudence) as to whether they should not be treated as a single crime. Interestingly, the Rome Statute does not appear to make a significant distinction between the two.5 However, the ICTY Appeals Chamber held in Stakić6 that deportation requires “the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border”.7 In contrast, a forcible transfer exists where there is a forced displacement of persons within the territory of one state.

The distinction between de jure state borders and de facto state borders is a fine one. The appeals Chamber noted that “under certain circumstances displacement across a de facto border may be sufficient to amount to deportation”.8 This falls to be determined on a case by case basis. Where the de facto border is akin to a legal border it will amount to deportation. Alternatively, the conduct will be defined as forcible transfer.

As deportation had its origins as a war crime, but was later extended to crimes against humanity so as to protect civilians of the same nationality as the perpetrator, the distinction between the two acts applies equally to both war crimes and crimes against humanity.9

B) Unlawful detention and mistreatment

Many civilians are unlawfully detained and subsequently mistreated during armed conflicts. Combatants and other persons engaged in hostilities, having lost their protection, can be detained when they are captured. This allows the belligerent to limit the captured combatants’ future participation in hostilities and assists in the retrieval of one’s own prisoners of war through agreed prisoner exchanges. There are specific protections for both prisoners of war and civilians.

1. Conventional protections

Prisoners of war “from the time they fall into the power of the enemy and until their final release and repatriation” may only be transferred by the detaining power to a power which is a party to, and willing and able to apply, the Geneva Conventions.10 Additionally, the transfer must be humane,11 and prisoners of war should neverPage 14be transferred to penitentiary establishments to undergo disciplinary punishment.12Grave breaches of the Geneva Conventions include torture and inhuman treatment, wilfully causing great suffering or serious injury to body or health and depriving a prisoner of war of the rights of a fair and regular trial.

Civilians, arguably including so called “unlawful combatants”, may not be unlaw-fully detained during armed conflicts, for which there is a specific war crime of unlaw-ful confinement.13 The occupying power is required to ensure that their fundamental rights are respected.

Common article 3 affords protection to both detained civilians and combatants. Extending to all “persons taking no active part in the hostilities”, it prohibits “cruel treatment and torture”. Those detained cannot be mistreated and tortured once in the hands of the opposing forces.

2. Čelebići case

This issue was considered in detail in the ICTY Čelebići case.14 The indictment concerned crimes committed in 1992 against Serb detainees in a detention facility in the village of Čelebići, located in the Konjic municipality in central Bosnia and Herzegovina. Military operations had resulted in the arrest of many members of the Serb population. It was necessary to create a facility where they could be housed and, accordingly, the Čelebići barracks and warehouses were chosen for their ability to hold large numbers of people. The police under the control of the ministry of the interior (MUP) and the military force of the Croatian Community of Herceg-Bosna (“Croatian Defence Council”, or “HVO”) involved in the military operations were told that this was the most appropriate solution and persons were thus transferred to Čelebići upon their capture. The majority of the prisoners were men.

A number of witnesses testified that, upon arrival at the prison-camp, they were lined up against a wall near the entrance and searched or made to hand over valuables. Several reported that they were severely beaten at that time by the soldiers and guards. The Trial Chamber found that an atmosphere of fear and intimidation prevailed at the prison-camp, inspired by the beatings meted out indiscriminately upon the prisoners’ arrest and their subsequent transfer to and arrival at the camp. Each of the former detainees who testified before the Trial Chamber described acts of violence and cruelty which they themselves suffered or witnessed and many continue today to sustain the physical and psychological consequences of these experiences.

In the detention facilities, there was a great lack of ventilation and no blankets were provided to the prisoners, who slept as they were lined up on the concrete floor. Some of the detention blocks were made entirely of metal, it became extremely hot during the daytime but the prisoners were generally not allowed to leave their places.

Page 15

With regard to Mr. Zdravko Mucić, the commander of the Čelebići prison-camp, the Trial Chamber made the following findings:

[…] [T]he Čelebići prison-camp was established to detain those Bosnian Serbs in the Konjic municipality whose loyalty to the State of Bosnia and Herzegovina was in doubt. The solution to the perceived threat from those arrested during military operations by the Bosnian government forces […], was to keep them detained in the Čelebići prison-camp under the watchful eyes of Bosnian guards who would ensure that they would no longer constitute security risks or any danger to the State. The Trial Chamber has found that the facilities improvised in the Čelebići prison-camp were not satisfactory, being far from adequate for the number of detainees. Those who were responsible for the detention of the prisoners clearly did not consider the question of suitability of the facility, which was not used as a prison in times of peace. […] The Trial Chamber has found that conditions of detention in the Čelebići prison-camp were harsh and, indeed, inhuman. The feeding conditions were at starvation level, medical health and sanitary conditions were inadequate and indeed deplorable. The guards were hostile, and severe beatings, torture and humiliation of detainees were the norm. Some guards experimented punishment methods on detainees, and the death of detainees was a common occurence and not a surprise. No one appeared to care whether the detainees survived. […]

[…] [Mr. Mucić] made no effort to prevent or punish those who mistreated the prisoners, or even to investigate specific incidents of mistreatment including the death of detainees. Instead, there is evidence that he was never in the prison-camp at night, when...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT