Crimesof War

The column of prisoners blinked into the sunlight as they emerged from within a dark, capacious hangar and were drilled in a straight line across a yard into a canteen under the watchful eye of a beefy machine gunner, aloft at his post.

In the minute that was permitted, the men devoured their watery bean stew. Their skin was folded over their bones like parchment. They clutched their spoons, their spindly fingers shaking. Their huge, hollow eyes fixed upon us. “I do not want to tell any lies,” said one emaciated figure, “but I cannot tell the truth.”

This was lunchtime at Omarska, the Serb-run camp for Muslim and Croatian prisoners. Crews from ITN television and I witnessed the scene on August 5, 1992, before we were ignominiously bundled out.

The truth—which emerged only with time—was that Omarska was a hellish concentration camp in our lifetime, just down the road from Venice. It was a place where killing, cruelty, and ritual humiliation had become a form of twisted recreation. The guards were often drunk and singing as they tortured, beat, mutilated, and slaughtered prisoners, and there was a particular taste for forced fellatio, forced sex with animals, and sexual mutilation. The UN Commission of Experts called Omarska a “de facto death camp.”

One prisoner was forced to bite off the testicles of another who, as he died, had a live pigeon stuffed into his mouth to stifle his screams. An eyewitness, testifying later at the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague described the behavior of the guards during this barbarism as being “like a crowd at a sports match.”

At the end of these orgies of violence—usually on the tarmac yard or in two outbuildings, the White House and Red House—the cadavers of the dead would be loaded onto trucks by their friends or with bulldozers. There was a macabre intimacy to this carnage: people knew their torturers; they had been neighbors. Omarska had already been emptied of most of its prisoners before we arrived and was rapidly closed the day after our visit. It was a bitter kernel at the core not just of Bosnia’s war, but of our time.

Omarska also provides a textbook case of unlawful confinement, a war crime. The legacy of Omarska was dramatically recalled at the first war crimes trial since Nuremberg, at The Hague in 1996. A part-time guard at the camp, Dusko Tadic, was charged with war crimes and crimes against humanity.

The laws of war on unlawful confinement vary according to whether a conflict is internal or international; they are intricately detailed for international conflicts but impose minimal standards for internal conflicts.

In an international conflict, unlawful confinement is a grave breach of the Fourth Geneva Convention of 1949. The statute of the ICTY states that (unlawful) imprisonment directed against the civilian population is a crime against humanity. Imprisonment as a form of persecution on political, racial, or religious grounds is also a crime against humanity.

Based on his role in the “seizure, collection, segregation, and forced transfer of civilians to camps,” the tribunal found Tadic guilty of persecution on political, racial, or religious grounds, a crime against humanity. (In a 2–1 split, the judges ruled that the facts of this case did not prove that Bosnia was an international conflict and therefore ruled out all grave breaches.)

Not all confinement of civilians is unlawful. Article 42 of the Fourth Convention allows for a “detaining power” to intern those who pose a security threat, “only if the security of the detaining power makes it absolutely necessary.” The descriptions for this are “internment” or “assigned residence.” A civilian may also be lawfully interned if he or she commits certain minor offenses against an occupying power or poses a genuine threat.

The International Committee of the Red Cross (ICRC) Commentary on the Conventions calls internment a way of “getting people out of the way, and where supervision is more easily exercised.” A civilian in a foreign country at war may be interned “if the security of the detaining power makes it absolutely necessary.” A civilian in occupied territory may be interned if it is “necessary, for imperative reasons of security, to take safety measures concerning protected persons.” There must have been some clear action threatening the security of the detaining power, such as espionage or sabotage or belonging to “organizations whose object is to cause disturbances” or threaten (the belligerent’s) security by other means. Merely being an enemy national is not enough. Civilians may be held or imprisoned as suspects or criminals, so long as they enjoy the rights relating to fair trials.

It is lawful to remove civilians for their own security in an emergency, such as an impending battle, into temporary shelters. Even so, they must be well cared for and returned home as soon as it is safe to do so. Enemy combatants, of course, may be interned as prisoners of war.

Neither the Geneva Conventions nor Additional Protocol II of 1977, which all parties to the Bosnia conflict agreed to follow, codifies the rules as to when civilians may be interned in an internal armed conflict. But the rules stipulate that if the internment is a sentence for a crime, the defendant must be allowed all the rights of a fair trial.

At a briefing inside Omarska the local police chief, Simo Drljaca (later shot dead by British troops in summer 1997 while resisting arrest), insisted that a security threat existed—the Serbs even staged a pathetic mock gun battle to try to convince us. The authorities, he said, were screening inmates in order to find Muslim insurrectionists.

This proved to be a grotesque lie; the overwhelming majority of Drljaca’s captives were unarmed civilians. Even if they had been armed or hostile, the law still requires certain standards, beginning with Article 37 of the Fourth Geneva Convention, which stipulates that: “protected persons who are confined pending proceedings or subject to a sentence involving loss of liberty shall, during their confinement, be humanely treated.” This stipulation includes prisoners being protected from attack, fed, clothed and otherwise cared for. Similar requirements for humane treatment apply to internal conflicts. Additional Protocol II also requires that they be properly fed, clothed, and sheltered, and “be afforded safeguards as regards health and hygiene.”

If the detainees of Omarska had been prisoners of war, they would have been entitled to “not be held in close confinement except where necessary to to safeguard their health”—i.e., the stinking human chicken coop in which they were held was clearly illegal.

Detainees must have sufficient sleeping space and be allowed to hold services in their adopted religion. The detaining power is obliged to provide medical care and an “adequate infirmary”—all provisions for which Omarska was the direct antithesis.

In contrast to the watery bean stew, daily food rations must be of a proper “quantity, quality and variety” to maintain health. The “investigations” which Mr. Drljaca claimed he was carrying out “shall be conducted as rapidly as circumstances permit” and brought to a trial as rapidly as possible. It was unlawful for men to be left festering, whatever the camp conditions.

Internees in an international armed conflict must be able to “retain articles of personal use,” and “articles which have above all a personal or sentimental value may not be taken away”—in contrast to the wholesale pillaging of valuables in the Serbian camps. The arbitrary and systematic or widespread imprisonment of large numbers of civilians during conflicts—internal or international—is a crime against humanity.

If the prisoners are noncombatants—as the vast majority of Omarska’s victims were—then they are automatically covered by Article 3 common to the four Geneva Conventions. This provision, applying explicitly to noninternational conflicts, states that “persons taking no active part in the hostilities… shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.”

It prohibits “violence to life… in particular murder of all kinds, mutilation, cruel treatment and torture” and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.”

Additional Protocol II of 1977 provides a further list of fundamental guarantees and rights for nonmilitary internees in noninternational conflicts: the wounded and sick must be respected and properly treated; internees are to be provided with food and drinking water to the same extent that local civilians have them, and they are to be properly sheltered.

Under the Geneva Conventions, the detaining power is obliged to admit bodies such as the ICRC into its camps in an international armed conflict. But in Bosnia such organizations were kept out for three long, bloody months. They would have been another awkward group that knew the rules, and would recognize how thoroughly they were being torn to shreds.