S/1994/674/Add.2 (Vol. I)
28 December 1994
Final report of the United Nations Commission of Experts
established pursuant to
security council resolution 780 (1992)
The battle of Sarajevo and the law of armed conflict
William J. Fenrick
Member and Rapporteur on On-Site Investigations,
Commission of Experts Established Pursuant to
Security Council Resolution 780 (1992)
Major A.J. van Veen, Canadian Armed Forces;
Member of Canada's Contributed Personnel
to the Commission of Experts
This study was conducted by the Rapporteur for On-Site Investigations and Major A.J. van Veen. They were part of an investigative group consisting of the Rapporteur, a representative of the Secretariat, and the Canadian War Crimes Investigation Team (WCIT), which was comprised of three military lawyers and four military police investigators. The group was deployed to the territory of the former Yugoslavia for the period of 20 June to 10 July 1993 and was in Sarajevo from 24 June to 8 July 1993. The WCIT, as a whole, consisted of military personnel from the Canadian Office of the Judge Advocate General, as well as military investigators who were seconded from Canada to the Commission of Experts for specific missions. The teams were referred to within the Commission and for the purposes of its reports, as the Canadian War Crimes Investigation Team.
The writers, both of whom have a background in military operations and in the law of armed conflict, visited Sarajevo from 24 June 1993 to 6 July 1993. During that period of time they visited a number of incident sites in Sarajevo, including Dobrinja, where civilians at a soccer game were killed by mortar fire on 1 June 1993; the National Library, which had been gutted by Bosnian Serb Army (BSA) artillery fire; the Brewery, where people standing in line for water were killed by mortar fire; and the Kosevo Medical Centre and the Bakery, both of which had been hit several times. As the normal mode of transport for team members was armoured personnel carriers, and as the team was discouraged from travelling to certain areas and from moving about in open areas, it rapidly became apparent that attempting an in-depth look at property damage was not practicable.
The team met with several officials from Bosnia and Herzegovina (BiH), including City officials; General Delic, the commander of the BiH Army; General Hajrulahovic, the commander of BiH forces in Sarajevo; members of the BiH State War Crimes Commission; and Professor Smajkic of the BiH Committee for Health and Social Security. The team discussed casualty figures at some length with Dr. Smajkic and obtained a nearly complete set of The Bulletin, which is produced in Bosnian and English. The team also obtained a certain amount of background information, most of it written in Bosnian from the State Commission and from city officials. The State Commission was preparing a chronology of the battle, but it was not available at the time of the writers' departure. The team was unable to visit the BSA side during the investigation.
The team, in particular Major van Veen, met with several UN Military Observers (UNMOs) and with a wide range of officers in the UN Protection Forces (UNPROFOR), both in Sarajevo and in Kiseljak. All were most helpful and forthcoming in their comments, but it is inappropriate to mention these officers by name either here or in the text. They received a substantial amount of information from UNPROFOR, including maps, oral briefings, and a complete set of the HQ BiH Command Weekly INFOSUMS from numbers 1 to 36, and editions 3 and 5 of Bosnia- Herzegovina Warring Factions (apparently editions 1, 2, and 4 are very difficult to locate). These materials, together with a preliminary version of the Draft Study of Sarajevo Battle and Siege, prepared by the Chairman and his staff at the International Human Rights Law Institute at DePaul University (IHRLI), provided the basis for the first draft of the military history and analysis portion of this report prepared by Major van Veen. Although both team members were involved in the writing of this report, Major van Veen was primarily responsible for those sections concerned with the battle organization and tactics, while Commander Fenrick was primarily responsible for the sections concerned with legal issues. The assistance of Lieutenant Commander Phillips of the Office of the Judge Advocate General in analysing the casualty statistics is gratefully acknowledged.
This study is a non-exhaustive survey of armed conflict issues arising during the siege of Sarajevo. As the investigators did not have an opportunity to visit BSA forces during the investigation, they were not exposed to allegations of BiH misconduct during the siege unless the allegations came from UN sources. The study focuses on combat-related offences, unlawful targeting, and the use of unlawful means and methods of warfare.
The objective of the study was to prepare an analytical survey of the entire battle of Sarajevo, focusing on the major violations of the law of war which have occurred and attempting to impute command responsibility.
A consolidated chronology of the battle has been prepared, including a chronology of civilian casualties and a chronology for military units and commanders. These chronologies rely heavily on work which has been done by other entities.
It is understood that the Chairman's staff at IHRLI has completed an analysis of the battle relying on documentation in the database. However, this analysis was not available for use during the study.
An analytical study of the battle as a whole, conducted in the same period of time as a study of a selected incident, is bound to be more impressionistic and superficial than the latter study. It is much less likely to result in the development of specific prosecutable cases. The survey approach may, however, result in the development of numerous insights and suggestions worth following up at a later time by teams which are focusing on the development of specific cases.
Sarajevo is the capital city and the economic, political and cultural centre of BiH. The 1991 census indicated that the municipality of Sarajevo, which included the city and some surrounding areas, had a population of 525,980 and occupied 2,049 sqare kilometres The population was 49.3 per cent Muslim, 29.9 per cent Serb, 6.6 per cent Croat, 10.7 per cent Yugoslav, and 3.5 per cent «others». Presumably, many members of the group referred to as «Yugoslav» would also have been entitled to classify themselves as «Muslim», «Serb» or «Croat», if they so wished. The population of Sarajevo constituted 11 per cent of the population of BiH.
Sarajevo occupies a long, narrow valley on the banks of the Miljacka river. It is in a valley dominated by the steep mountain slopes and ridges of Trebevic, Jahorina, Igman, and Bjelasnica, all of which abut directly on the city. The city consists of a dense core, surrounded by a number of quarters which reach up the various slopes and several municipalities located in open ground at its western end. The existence of Sarajevo was first recorded after the Roman conquest of the area in the first century A.D.. The Slavs later colonized the area and erected a castle which can still be seen in the south-east of the city. In 1428 the Turks captured the castle and named the area Seraglio, from which the city takes its name (Sarajevo means «Palace in the fields»). In reality, the native Slavs who had been converted to Islam ruled the city. Sarajevo became renowned for being a prosperous and luxurious city during the Ottoman period. In 1878, the city was assigned to Austria by the Treaty of Berlin. Hatred of the Austrians increased, fed by South Slav (Yugoslav) nationalist fervour. In 1991, a Bosnian Serb student assassinated the Archduke Franz Ferdinand in Sarajevo, setting in motion World War I. The old part of the city dates from the Turkish and Ottoman Empires. The new part of the city was planned in the Grbavica area, which developed a main electronics and metal industry to supply parts to other areas of the former Yugoslavia.
In November and December 1990, multi-party parliamentary elections were held in BiH, which was then one of the constituent republics of the Socialist Federal Republic of Yugoslavia (SFRY). The Muslim-based Party for Democratic Action (Stranka Democratske Akcije or SDA) won the majority of seats with 86 seats in Parliament, followed by the Serbian Democratic Party (Srpska Demokratska Stranka or SDS) with 72, and the Croatian Democratic Party (Hrvatska Demokratska Zajednica), which received 44. The remaining parties received 33 seats. The seven-member Presidency, elected by the parliament, included representatives of all three major parties. Alija Izetbegovic, the SDA leader, became President of the BiH Presidency. Problems in achieving consensus between national groups in BiH intensified, as the first declarations of independence were made by Croatia and Slovenia in June 1991. Soon after, in October, Muslims and Croats discussed the eventual secession of BiH from the SFRY, which Serb politicians totally opposed.
In December 1991, the Muslims and Croats applied for diplomatic recognition by the European Community (EC). On 9 January 1992, Bosnian Serbs declared that they would form their own state, the «Serbian Republic of Bosnia and Herzegovina» (SRBiH), if BiH was recognized as independent. They claimed territory in six regions of BiH where they were the dominant ethnic group. A referendum on independence was held throughout BiH on 1 March 1992, in order to satisfy a condition imposed by the EC for recognition. The results indicated that 63 per cent of eligible voters participated in the vote and 96 per cent of the voters opted for independence. However, local SDS administrations refused to cooperate, a number of polling stations were not opened, and many Serbs boycotted the poll and declared it invalid. After the results of the referendum were announced, President Izetbegovic declared the republic independent and called for international recognition.
Ethnic tensions gradually increased soon after the declaration of independence by Croatia and Slovenia in June 1991. Many factors contributed to the escalation of violence, among them, the Yugoslav People's Army (JNA) and Serbian irregular forces stationed in BiH that launched attacks on Croatia, and the arrival of JNA troops withdrawing from Croatia, adding to the presence of Serbian paramilitary groups already in BiH. Clashes involving armed civilians, police, and paramilitaries of all nationalities occurred throughout 1991 and early 1992. Armed conflicts intensified and became widespread during and after the March referendum on independence. Consequently, the President of BiH, on 6 April 1992, declared a state of emergency and mobilized territorial defence units. Violence eventually escalated to a full-scale war in early April, almost immediately after the international community recognized the independence of BiH. On 6 April 1992, the EC voted to recognize the independence of BiH. The United States and Croatia followed suit on 7 April, Canada on 8 April, and so did members of the international community, including the Arab World, all in early April.
On 7 April 1992 in Banja Luka, Bosnian Serbs declared the independence of the SRBiH and claimed two thirds of the new state's territory. Serbian irregular forces from BiH, and JNA units stationed in BiH, paramilitary groups from Serbia and Serbian-controlled territory in Croatia launched, or participated in, attacks throughout BiH, in the hope of preventing all or part of the republic from seceding. Muslim forces of the BiH Government, Bosnian Croats, and Croatian Army units sent from neighbouring Croatia responded to these atacks. By mid-April, the self-proclaimed SRBiH controlled approximately 70 per cent of BiH territory.
A detailed history of the Battle of Sarajevo remains to be written. The battle began in April 1992, at a time when the JNA still had troops stationed in barracks in Sarajevo. On 27 April 1992, the Serbian and Montenegrin members of the SFRY parliament voted to adopt a new constitution for the Republic of Yugoslavia (FRY) consisting of Serbia and Montenegro. FRY promptly declared it had no territorial claims on neighbouring republics. On 4 May 1992, the FRY Presidency announced that all members of the JNA who were nationals of the newly proclaimed FRY were to leave BiH within fifteen days. The fighting in Sarajevo for the first significant period of time involved both JNA forces, more or less penned up in their barracks, and Serb forces surrounding the city. JNA forces do not appear to have completed their withdrawal from Sarajevo until 6 June 1992, when JNA troops and their dependents confined in the Marsal Tito Barracks were permitted to evacuate in an 80-vehicle convoy. Since the completion of the withdrawal of JNA troops from the city, the battle had been a siege, with BSA forces occupying the hills surrounding the city and some of the suburbs and BiH forces in the city with the bulk of civilian population. Attachment VI.A.1 is an anecdotal account based on weekly reports prepared by the UN following the establishment of the BiH Command (BiH Comd) by UNPROFOR on 23 October 1992. It gives an impressionistic picture of the battle from one perspective and is no substitute for a comprehensive history.
The SFRY relied on a strategic doctrine titled «peoples defence». This doctrine accepted that either a forward defence, or border perimeter defence, of Yugoslavia was strategically futile. Accordingly, based on its World War II experience, and consistent with the extremely rugged terrain, Yugoslav defence was oriented to a concept of operations based on partisan warfare. During World War II, Marsal Tito, by mounting remarkably effective guerilla warfare on a nationwide scale, kept some twenty divisions tied down. This guerilla campaign centred on territorial local forces whose intimate knowledge of the local terrain, coupled with a basic self-sufficiency in most weaponry, amplified their effectiveness to a degree which made the occupation of Yugoslavia prohibitively expensive in military terms. In the modern doctrine of «peoples defence», this success was built upon.
Apart from the regular JNA, local territorial forces were equipped and organized to function on a stand alone basis in their own localities. In accordance with doctrine, stores of weapons, munitions, and materiel were dispersed throughout the country, a factor that played directly into the hands of the regional interests that arose as Yugoslavia dissolved. These territorial forces were doctrinally, tactically, operationally, and emotionally wedded to operating in their local areas. This factor has been illustrated fully in that the factions in BiH have been unable to mass sufficient troops to achieve a concentration of forces.
At the beginning of the siege, BiH forces in the Sarajevo area composed 1st Corps Sarajevo. From the beginning of the siege to the date of writing, the commander of this corps has been Mustafa Hajrulahovic, with his headquarters located in Sarajevo. With the exception of his Deputy Chief of Staff, Ismet Alija, who was replaced by Esad Pelko in the spring of 1993, Hajrulahovic's senior staff has remained unchanged, with Vahid Karavelic as Deputy Commander and Asim Dzambasovic as Chief of Staff.
BiH I (Sarajevo Corps) was originally organized as three Operational Groups: Visoko, Sarajevo City, and Mount Igman. This 40,000 strong force was further divided into one mechanized infantry brigade, three motorized infantry brigades, seven mountain brigades, an artillery brigade, an air defence regiment, one territorial defence force brigade, and a special forces unit of undetermined composition. BiH I (Sarajevo Corps) has been recently reorganized and the Visoko Operational Group has been placed under command of BiH 3 Corps. The purpose of the reorganization has been to enhance command and control, increase political and military reliability, and streamline the command structure. In furtherance of this goal, a large number of inexperienced or untrained personnel at command level were replaced at brigade and battalion level with ex-JNA. Currently, BiH I (Sarajevo Corps) is divided into 10 infantry brigades plus a logistic brigade, air defence regiment, military police battalion, an artillery brigade, an anti-sabotage unit, and a special forces group under direct command of the Minister of Internal Affairs Bakir Alispahic. The HVO brigade, formerly commanded by the civilian head of HVO in Sarajevo, Slavko Zelic, is now commanded by Ivan Vulic with Franjo Taljanic, who has been Chief of Staff since the beginning of the siege. There is a second HVO special action unit of indeterminate size which reports directly to the HVO members of Sarajevo city council. The reorganization has reduced BiH I (Sarajevo Corps) to a more manageable strength of approximately 25,000 to 30,000. Of these, some 8,000 to 9,000 are normally on the front line.
A number of sources indicate that the BiH forces in Sarajevo are facing a severe shortage of munitions, particularly for their heavy weapons. BiH has indicated that it has a significant manufacture capability in the city, but this seems to be limited to the provision of small arms and light mortar ammunition. Nevertheless, sources estimate BiH I (Sarajevo) Corps' heavy inventory as follows:
Control of BiH forces seems to be difficult at best. BiH forces in the city are relying on telephone and easily monitored «Motorola» hand-held transmitters. Further, there appears to be friction between the Army and the Presidency and the opposition regarding the line of authority. On a series of occasions, outside sources have observed the erection of checkpoints and the repositioning of heavy weapons in support of what appears to be domestic brinkmanship.
A final potential difficulty in the BiH command and control relationship in the city is the position of HVO troops. These troops, reporting directly to HVO political authority, constitute a wild card in the BiH hand. As open war breaks out between BiH and HVO forces in the rest of BiH, the loyalty and effectiveness of these troops in support of BiH operations and objectives is an open issue.
The July 1993 BiH order of battle at Sarajevo appears to be as follows:
A final factor having a potential bearing on the BiH command and control structure is the ethnic mix of BiH 1 (Sarajevo Corps). Currently the Corps is thought to have the following ethnic mix: 15 to 20 per cent Serb; 5 to 10 per cent Croat; 10 to 15 per cent Yugoslav; and 55 to 70 per cent Muslim.
The BSA forces around Sarajevo from the onset of the siege in April 1992 are troops of the Sarajevo Romanija Corps commanded by Major General Tomislav Sipcic and are now commanded by Major General Stanislav Galic, both ex-JNA regular officers. This Corps consists of eight brigades. The troops, consistent with the former Yugoslavia «peoples defence» doctrine, are mainly from either the local area or from Sarajevo itself. A number of factors have made it possible for the BSA to develop a more sophisticated command and control structure than BiH:
Galic's Corps Headquarters is located at Lukavica on the high ground, with an excellent view of the entire western half of the city. Based on the pattern of heavy artillery fires, it appears that Galic has excellent control of his artillery assets. On a series of occasions, this fire has been simultaneously directed from a number of directions with coordinated time on target (TOT). Further, Galic's logisticians have shown themselves to be adept at replenishing the vast amount of munitions fired quickly across the tortuous highland road and trail system. Galic is thought to have approximately 600 pieces of artillery at his disposal and has demonstrated a high skill at its tactical use.
The besiegers, numbering some 13,000 troops, are formed into nine brigades based on their original territorial units. Of these, eight brigades actually occupy the siege line. These brigades each have an area of operations with which they both: a) have a territorial affinity, and b) have occupied on a semi permanent basis.
These brigades are as follows:
In addition to the brigade commanders, Colonel Zdravko Zgonjanin, as Chief of Police for Boundaries, with his deputy Goran Zubac have been responsible for the interdiction of Bosnian personnel and refugees across the international zone at Sarajevo Airport.
Like the BiH forces, the BSA use essentially ex-JNA equipment:
As of early July 1993, the strategic situation at the siege of Sarajevo is one where the Serb forces continue to dominate much of the perimeter of the city more for the political significance it holds than for any intention of gaining possession of the city at this time. BiH forces do not appear to be able to amass adequate fighting power to effectively break the state of siege. From a tactical perspective, it is essential to note that, at this stage of the conflict, the siege, while of tremendous political and military significance, is not the main focus of BiH, BSA, or HVO activity. The BiH forces are conducting a major offensive in central BiH, and fighting at various levels of intensity is occurring in the periphery. As a consequence, the operations at Sarajevo have developed into a classic siege, with neither side being in possession of either the will or the military ability to force a conclusion. Nevertheless, both sides have maintained a high tempo of violence.
Tactics in Sarajevo and its environs are influenced by a correlation of several factors:
Serb forces have a preponderance of heavy weapons and large stocks of munitions of all calibres. It is apparent that the BSA was able to obtain large stocks of ex-JNA inventory. However, the Serbs suffer from a distinct manpower shortage, with estimates at about 13,000 persons. As the BSA has been hard pressed at Gorazde, central and northern BiH, the Bihac area, and the Posavina corridor, there has been no influx of new troops and no rotation of besieging units. Specialist gunners for the heaviest ordinance are moved around the perimeter, as there are more gun positions and 155 millimetre weapons than crews to man them. However, local commanders have the full freedom to use their unit's heavy weapons. As such, the individual unit determines the scale and target of both harassing and interdiction fire.
The BiH, as an infantry force, has limited capabilities at best. The areas of vital concern are the high ground, along the steep ridges surrounding the city, and the open ground at the west end between the airport and the Butmir/Igman mountain positions. BiH activity has focused on four basic objectives:
The BiH army has dispersed its forces throughout the city, as any concentration of forces or permanent deployment of assets would bring down an unsustainable weight of fire from the commanding hills. To that end, those defenders not actually manning the perimeters or engaged on duty are quartered at their homes. The weapons shortage is so acute that, on shift change, reports have been received that the new replacements are «handed off» the small arms of the previous shift. None the less, the BiH has conducted an aggressive mobile defence. Heavy weapons are not dug-in in fixed emplacements. Rather, they are hidden throughout the built-up areas and shifted to preclude counter- battery fire. As use of these weapons always provokes a disproportionate Serb response, the BiH army has given its weapons, most notably its mortars, significant mobility by mounting them on the backs of trucks.
The BiH army also employs the classic infantry tactics but is limited to smaller unit actions by three factors: lack of supporting firepower, a lack of logistics sustainability, and the Serb ability to detect and target the staging of any forces of above-company strength. Consequently, BiH has primarily employed small-unit tactics. The BiH army, like the Serbs, has employed a high level of sniping. This tactic has stimulated direct reprisal by BSA artillery fire, as specifically indicated by them during the week of 14-20 March 1993. Included in this sniping is the use of AAA in the direct fire anti-personnel mode, particularly in support of the snipers. The BiH forces have also indulged in sporadic indirect and small-arms fire, most notably with their mobile 82 millimetre and 120 millimetre mortars.
The majority of BiH attacks are of platoon-plus size, with a minimum of preparatory artillery fire, although supporting fire has been received from main-body positions on and around Igman mountain. With the advantage of interior lines of communication and the ability to achieve local tactical initiative, BiH forces have conducted a series of deliberate pre-dawn attacks aimed at high features, Serbian strong points, and vulnerable supply routes. BSA counter-attacks have usually involved severe artillery fire. The common scenario appears to be an initial BiH success followed by an inability to consolidate due to a lack of sustainability of logistics and supporting fire under the weight of Serbian counter-fire from heavy weapons. BiH casualties are high due to the following factors:
None the less, BiH tenacity has been such that the perimeter integrity has, by and large, been maintained.
BiH has also mounted large numbers of platoon-size trench raids. These raids have limited tactical objectives, such as the reduction of a particularly bothersome strong point, the elimination or capture of Serb heavy weapons, the capture of BSA personnel, or the diversion of attention from surreptitious crossings at Sarajevo airport or other movements. These operations are of limited size and duration and conclude with a withdrawal to the main perimeter. Due to the factors listed above, coupled with an apparent deficiency in coordination, BiH is unable to exploit tactical opportunities created by these raids. This problem with coordination inhibits larger scale operations. One example of this was an abortive three brigade attack south of Sarajevo from Mount Igman towards the Butmir area on 25 January 1993. Coordination collapsed as regards timing, fire support, and manoeuvre, to the point where the operation rapidly degenerated to a confused series of local platoon attacks and counter-attacks. More successful has been the BiH tactic of long range infiltration into BSA lines. This infiltration has the objective of sabotaging or capturing BSA equipment. This equipment most notably includes tanks, gun emplacements and logistics stores. While BiH has exaggerated the success of these raids to include the accidental destruction of a large BSA ammunition dump, the raids have had sufficient effect to divert BSA overtaxed reserves of manpower for enhanced «rear area» security.
In the static defence mode, BiH tactics have followed the conventional techniques for the defence in Fight in Built-Up Areas (FIBUA) operations. The use of mutually supporting strong points, communication trenches and tunnels, jury rigged barricades to block fire, movement and observation are all common. Due to the constant sniper fire, key crossroads, particularly on the north/south streets, have been shielded to facilitate pedestrian and vehicular movement. There are unsubstantiated reports that the BiH has expanded the sewer system and built underground factories, command posts, and hospitals. What has been substantiated was the existence of a steel reinforced tunnel approximately 1.4 metres under the airport from Muslim held Butmir to the Dobrinja quarter in the southwest of the city. That tunnel was detected and flooded.
BSA objectives in the siege are much less complex than those of BiH. The Serb concept of operations appears to be the extension of the siege as a focus of political negotiations, activity, and propaganda intended for political leverage rather than military advantage. Notwithstanding, the tempo of BSA operations can be intensive for protracted periods. Their overriding tactical concern is their shortage of manpower. The current manpower situation is such that a definitive BSA military solution is unattainable until forces can be shifted from other areas of operation. The eight BSA brigades are inordinately well equipped with dedicated artillery and mortar assets. Estimates range from between 600 and 1,100 artillery and mortar weapons and do not include the large inventory of heavy calibre AAA weapons and tanks. Based on its concept of operations, BSA tactics are primarily defensive and reactive in nature.
From their entrenched and rivetted positions on the high ground around the city, BSA gunners can strike at any part of the city with relative impunity. The following factors reinforce the predominance of the BSA reliance on artillery:
The BSA has employed its artillery in two ways. The first is for traditional purposes, such as close support for assaults, counter-attacks by fire, defensive fires against BiH forays, the harassment and interdiction of BiH supply lines and staging areas, area denial, the reduction of BiH strong points and entrenchments, and counter-battery fire. The second is for the express purpose of terrorizing the besieged populace. In the conventional role, the BSA use of artillery has been highly effective. On 8 December 1992, for example, when BiH forces attacked various access routes in the northern boundary of the perimeter, the BSA responded with heavy shelling and a quick counter-attack on the high feature at Zuc. The position was isolated on three sides by a curtain of shells, the position was taken, and the BiH counter-penetration attack was broken up by a massive barrage employing the full range of fuses including air burst, delay, and point detonating.
It is the second tactic, that of using heavy artillery as a weapon of terror by the BSA, that is most controversial. Some of the shelling into the populated quarters of the city may well have a bona fide military objective, such as counter-battery fire on the elusive BiH tubes. However, the sheer weight of fire precludes any discussion of proportionality. The BSA has indicated, both by its conduct and by direct comment, that shelling of the built-up areas is conducted for the express purpose of reprisal for BiH sniper fire, raids, barrages, and attacks along the perimeter. Further, this shelling has followed a pattern consistent with life under siege. Shelling routinely occurs at dawn and at dusk and is random in both source and target. There are allegations that civilians are being targeted at schools, parks, sports fields, water and food distribution points, hospitals, and cemeteries. As a variation on this theme, BSA gunners have used AAA in the form of 20 millimetre and 14.7 millimetre auto cannon in the direct fire, anti-personnel mode, directly targeting individual civilians as they move through the city. There are numerous recorded instances where this fire has been directed at UN and relief personnel and activities. As regards the destruction of cultural properties, there has been some evidence to suggest that BiH forces have stationed or positioned weapons either directly in, or in close proximity to, these structures. However, as stated earlier this alone would not account for the sheer volume of fire directed at them. Further, UN sources indicate evidence that city utilities are being directly targeted with predictable effects on the populace.
The entire city is under constant BSA small-arms fire. Some of this fire is sporadic or originates from the area of the confrontation line. It should be noted, though, that the majority of this fire is from specifically dedicated snipers, with medium and heavy machine-guns. This fire is directly targeted at any person or vehicle in the perimeter and is completely random. One observed technique is to bring down a victim, wait, and then engage rescuers, including marked ambulances and UN vehicles. Persons on the BSA side have observed numbers of snipers equipped with specialized weapons for their operations. The overwhelming number of casualties from this continuous sniping and sporadic shelling are civilians. The sniping and shelling incidents escalate directly in relation to the lack of tangible results in negotiations. It should be noted that: a) local commanders have the full freedom to use their heavy weapons; and, b) the collapse of negotiations reduces the control over local leaders. It should be stressed, however, with shelling that varies from 20 to 2,400 impacts per day, with an average of 200 impacts recorded per day, the required logistics impute constructive knowledge of this targeting to the higher echelon commanders.
As regards offensive tactics, the BSA is not keen to participate in FIBUA operations for a number of reasons:
In the open areas to the west of the city, the BSA has fared better in combined arms operations. The BSA employs armour in company strength plus (10-20 tanks) supported by APC's and artillery. The combination of the rugged hill features and urban terrain, together with the BiH's effective use of its anti-armour weapons and obstacle plan, have relegated the armour to two secondary roles: mobile artillery and rapid reaction for counter- attack or counter-penetration.
The BSA is capable of terrorizing Sarajevo in its geographic entirety with its heavy weapons but cannot force the fall of the city from a strictly military view. In contrast, the BiH can, at the present time, deny the urban terrain to the BSA but cannot break the siege. The key elements, as both realize, are the civilian population and, through them, international pressure.
It is extremely difficult to determine precise civilian casualty figures during an armed conflict. The Committee for Health and Social Security of Citizens of the Ministry of Health of BiH, headed by Professor Dr. Arif Smajkic, has been publishing a weekly publication, The Bulletin, which has attempted to capture total casualty figures for Sarajevo alone and for BiH as a whole. A meeting with Dr. Smajkic convinced the writers of this report that he is making a good faith effort, under enormous difficulties, to compile accurate figures. Unfortunately, for whatever reasons, although all practicable efforts have been made to compile total casualty figures resulting from military activity, relatively little effort has been devoted to distinguishing between civilian and military casualties.
In compiling the tables which follow, all copies of The Bulletin from 3 June 1992 (Number 8) to 28 June 1993 (Number 63) have been reviewed. The totals in the 28 June 1993 issue might be noted. By that time, it was estimated that 8,934 persons had been killed in Sarajevo due to military activity (including 1,418 children) and 52,518 persons had been heavily wounded (including 13,738 children). The vast majority of these casualties were non- combatants and not legitimate objects of attack. If there are eventually to be prosecutions for attacks on the civilian population in the Sarajevo area, it will be necessary to review the casualty figures held by the Committee to precisely identify combatants and non-combatants, because the combatants are, of course, lawful targets. It must also be noted that the casualty figures in The Bulletin, because of the inevitable problems of gathering such statistics in wartime, have certain gaps and discontinuities. Two inexplicable discontinuities are the enormous increase in the estimate of the cumulative number of persons killed, from 2,349 to 7,468 between 27 September 1992, and 9 November 1992, and the simultaneous decline in the estimate of the cumulative number of persons seriously wounded, from 13,605 to 12,000.
Certain issues of The Bulletin contain varying estimates of the percentage of total casualties which are non-combatant casualties:
The following Table presents some basic statistics from the 1992 and 1993 Sarajevo casualty figures, which are presented in toto in Tables #2 and #3 which follow on the next pages:
Table #1 Year Statistic Deaths Wounded 1992 Average/wk 79.7 506.2 1992 Maximum/wk 172 1,324 1992 Minimum/wk 17 113 1993 Average/wk 33.6 219.0 1993 Maximum/wk 77 421 1993 Minimum/wk 9 58One can quickly see that the figures for 1993 are approximately 44 per cent of 1992 figures.
Table #2 1992 Weekly Sarajevo Casualties 1992 Bulletin Deaths Wounded Date Bulletin Reported Reported/ Calculated/ Reported Reported/ Calculated/ Heavily # Total Week Week Total Week Week Wounded 8 6/3/92 9 6/10/92 10 6/18/92 11 6/26/92 1,320 6,448 12 7/3/92 1,359 39 6,716 268 13 7/11/92 1,420 61 8,040 1,324 14 7/19/92 1,467 47 8,355 315 15 7/26/92 1,511 44 8,662 307 16 8/2/92 1,569 58 9,333 671 17 8/10/92 1,682 113 9,446 113 18 8/16/92 1,713 31 9,677 231 19 8/23/92 1,829 1991 116 10,887 540 1,210 20 8/30/92 1,954 125 11,649 762 21 9/6/92 2,037 83 12,293 644 22 9/13/92 2,123 86 12,789 496 23 9/20/92 2,252 129 129 13,059 796 270 24 9/27/92 2,349 111 97 13,605 617 546 25 10/5/92 26 10/11/92 27 10/18/92 28 10/25/92 29 11/2/92 30 11/9/92 7,468 61 12,000 314 31 11/15/92 7,509 24 41 12,142 171 142 32 11/23/92 17 161 33 11/30/92 7,579 12,283 34 12/7/92 7,694 115 13,086 803 35 12/14/92 36 12/21/92 7,845 37 12/28/92 8,017 172 13,886
Table #3 1993 Weekly Sarajevo Casualties 1993 Bulletin Deaths Wounded Date Bulletin Reported Reported/ Calculated/ Reported Reported/ Calculated/ Heavily # Total Week Week Total Week Week Wounded 38 1/4/93 27 184 39 1/11/93 14 135 40 1/18/93 8,155 43 47,573 272 14,285 41 1/25/93 15 139 42 2/1/93 77 48,105 393 14,592 43 2/8/93 8,281 34 48,315 210 210 14,748 44 2/15/93 8,327 46 46 48,557 242 242 14,894 45 2/22/93 8,373 46 46 48,930 373 373 15,080 46 3/1/93 8,414 31 41 49,068 138 138 15,149 47 3/8/93 8,454 40 40 49,260 192 192 15,290 48 3/15/93 8,484 30 30 49,489 229 229 15,443 49 3/22/93 8,535 51 51 49,860 371 371 15,591 50 3/29/93 8,565 30 30 50,106 246 246 15,759 51 4/5/93 14 72 52 4/12/93 25 53 4/19/93 8,617 50,458 15,965 54 4/26/93 8,657 40 40 50,663 205 205 16,075 55 5/3/93 31 203 56 5/10/93 8,713 25 51,002 136 57 5/17/93 8,722 9 9 51,060 58 58 16,301 58 5/24/93 8,748 26 26 67,616 190 59 5/31/93 8,789 41 41 51,471 221 16,466 60 6/7/93 8,840 51 51 51,892 421 421 16,608 61 6/14/93 8,871 31 31 52,086 194 194 16,660 62 6/21/93 8,913 42 42 52,307 221 221 16,786 63 6/28/93 8,934 21 21 52,518 211 211
For the purposes of this report, it is presumed that the law applicable in international armed conflicts applies to the battle of Sarajevo for the reasons indicated in paragraph 45 of the Commission's first interim report (S/25274 of 10 February 1993):
«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.»
It is presumed that the law applicable in international armed conflicts includes the provisions of Additional Protocol I of 1977 and of the Hague Cultural Property Convention of 1954, as well as the Geneva Conventions of 1949 and the rules of customary law.
It is noted that the Statute of the International Criminal Tribunal refers to grave breaches of the Geneva Conventions of 1949 (article 2), violations of the laws of customs of war (article 3), genocide (article 4), and crimes against humanity (article 5). The Statute, for whatever reason, does not refer explicitly to Additional Protocol I of 1977. The standards set forth in Additional Protocol I will be referred to repeatedly in the discussion and analysis that follows because the various parties to the conflict have agreed to apply Protocol I, and because it is assumed that many of the provisions in Protocol I can be considered statements of customary law. It is noted that article 85 (5) of Protocol I refers to grave breaches as war crimes. It is hoped that article 3 of the Statute of the International Criminal Tribunal can be interpreted in such a way as to include grave breaches of Protocol I.
A commander giving an order to commit a war crime is equally guilty of the offence as the person actually committing it. He is also liable to punishment if he knew or had information which should have enabled him to conclude, in the circumstances at the time, that a subordinate was committing or going to commit a breach of the law, and failed to take all feasible steps to prevent or repress that breach. The mental element necessary when the commander has not given the offending order is a) actual knowledge; b) such serious personal dereliction on the part of the commander as to constitute wilful and wanton disregard of the possible consequences; or c) an imputation of constructive knowledge. That is, despite pleas to the contrary, the commander, under the facts and circumstances of the particular case, must have known of the offences charged and acquiesced therein. (W. Hays Parks, «Command Responsibility for War Crimes», 62 Military Law Review 1, 101-104).
Articles 86 (2) and 87 of Additional Protocol I essentially codify the customary law concerning command responsibility. These state:
2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.
3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Convention or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Convention or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.»
The military commander is not absolutely responsible for all offences committed by his subordinates. Isolated offences may be committed of which he has no knowledge whatsoever. A commander does, however, as a fundamental aspect of command, have a duty to control his troops and to take all practicable measures to ensure that they comply with the law. The arguments that a commander has a weak personality or that the troops assigned to him are uncontrollable are simply unacceptable. One writer, (W.D. Burnett, «Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Program at Shatila and Sabra», 107 Military Law Review 71, 189 (1985)) concluded his study of the massacres in the Palestinian refugee camps as follows:
«Finally, to avoid the misfeasance of past commanders, including Eitan, Drori, and Yaron, any military commander, Israeli or otherwise, assigned command and control over armed combatant groups similar to the Phalangists which has engaged in widespread war crimes in the past should refrain from employing that group in combat situations until they have demonstrated clearly and unequivocally their commitment to the fundamental humanitarian protection of the law of war.»If, for whatever reasons, the argument is made that military forces fighting in the Sarajevo area are not capable of complying with the law, that is no defence to a war crimes charge against a commander.
A fundamental aspect of the law of armed conflict is the principle of distinction: military commanders are required to direct their operations against military objectives exclusively and, to the extent practicable, to avoid causing casualties or damage to civilian persons or objects. Military objectives include enemy combatants and certain objects. The definition of military objective in Additional Protocol I is now generally accepted. It states:
«2. Attacks shall be limited strictly to military objectives. Insofar as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.»One of the leading commentaries on the Protocols discusses the definition in the following terms:
«Military objectives are those objects which by their nature, location, purpose or use:(M. Bothe, K. Partsch and W. Solf, New Rules for Victims of Armed Conflict 323-324 (1982)).
a. make an effective contribution to military action, and
b. whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage . . . .
2.4.2 The objects classified as military objectives under this definition include much more than strictly military objects such as military vehicles, weapons, munitions, stores of fuel and fortifications. Provided the object meet the two-pronged test, under the circumstances ruling at the time (not at some hypothetical future time), military objectives include activities providing administrative and logistical support to military operations such as transportation and communications systems, railroads, airfields and port facilities and industries of fundamental importance for the conduct of the armed conflict....
2.4.3 Military objectives must make an `effective contribution to military action'. This does not require a direct connection with combat option. . . . Thus a civilian object may become a military objective and thereby lose its immunity from deliberate attack through use which is only indirectly related to combat action, but which nevertheless provides an effective contribution to the military phase of a Party's overall war effort . . . .»
In the municipality of Sarajevo, BiH and HVO forces, their equipment and facilities, including barracks and factories producing weapons or other equipment for the forces, would be legitimate military objectives. The civilian population, civilian housing, medical facilities, schools, religious facilities, and facilities producing food or other objects primarily for the use of the civilian population would not be legitimate military objectives. BiH and HVO forces are not, however, entitled to conceal themselves among the civilian population or in civilian objects and claim immunity from attack. As indicated in article 51(7) of Protocol I, the party being attacked is not to use its own civilian population to shield military objectives from attack. Compliance with the law of armed conflict is particularly difficult during a siege as in Sarajevo because of the almost inevitable intermingling of military forces and the civilian population. The besieged forces continue to have an obligation, to the extent practicable, to distinguish themselves from the civilian population. The besieging forces continue to have an obligation to comply with the rule of proportionality and to avoid causing excessive collateral losses to the civilian population. It is inevitable, however, that there will be a proliferation of dual-use facilities such as communications systems, power networks, transportation systems and supply facilities, which are used by both the civilian population and military forces. Generally speaking, these dual-use facilities would become legitimate military objectives.
Siege is a traditional method of warfare whereby one party to a conflict attempts to compel another party to surrender an area occupied by the other party's forces. It is accomplished by surrounding the area, cutting off all access to the outside, and bombarding or starving the area into submission. Under the law, as set forth in the Hague Regulations of 1907 and the Geneva Conventions of 1949, belligerents were forbidden to attack or bombard undefended cities (Sarajevo is defended by BiH and HVO forces), and must notify the authorities in the city of a bombardment, except in the case of an assault. In addition, belligerents must take all necessary steps to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.
In the words of Sir Hersh Lauterpacht, (Oppenheim's International Law, volume II, at 419 (7th ed. 1952)):
«With regard to the mode of carrying out siege without bombardment, no special rules of International Law exist, and here too only the general rules respecting offence and defence apply. Therefore, an armed force besieging a town may, for instance, cut off the river which supplies drinking water to the besieged, but must not poison the river. Moreover, no rule of law exists which obliges a besieging force to allow all non-combatants, or even women, children, the aged, the sick and wounded, or subjects of neutral Powers, to leave the besieged locality unmolested. Further, should the commander of a besieged place expel the non- combatants, in order to lessen the number of those who consume his store of provisions, the besieging force need not allow them to pass through its lines, but may drive them back.»
Subject to article 17 of the Geneva Civilians Convention, which encourages the conclusion of local agreements for removal of some persons from besieged areas, and article 23 of the Civilians Convention, which provides for the free passage of medical and religious supplies for all persons and of essential food for children under fifteen, expectant mothers, and maternity cases, the commander of the investing force has the right to forbid all communications and access between the besieged place and the outside.
Simply put, under the law as it existed prior to Protocol I, the investing force was, generally speaking, entitled to starve, freeze, or dehydrate the inhabitants of a besieged area into submission.
Assuming that Additional Protocol I is also applicable to the siege of Sarajevo, the legal situation becomes somewhat different:
Any recent visitor to Sarajevo quickly becomes aware of the fact that many violations of the law of armed conflict are being committed during the battle. The focus of this particular investigation is on offences committed during the fighting, in particular, the use of impermissible methods or means of warfare, and attacks on illegitimate targets. Although the question of whether certain acts were lawful reprisals might be raised in defence at a trial, the reprisals issue will be ignored in this study.
In the words of the editors of the Law Reports of Trials of War Criminals (volume 15, at 109), «Those rules of international law which relate to the actual conduct of hostilities have only infrequently been made the basis of war crime trial proceedings». The editors, writing in the aftermath of World War II, go on to indicate that the then applicable law for the conduct of hostilities on land consisted essentially of articles 22-28 of the 1907 Hague Regulations. They point out (at 110) that «no records of trials in which allegations were made of the illegal conduct of air warfare have been brought to the notice of the United Nations War Crimes Commission». The types of offences which they discuss in their analysis include: wearing enemy uniforms while engaging in combat, inciting troops to deny quarter, continuing to fire on a vessel after it has surrendered, killing the survivors of sunken ships, and participating in hostilities as an unlawful combatant.
Article 6(b) of the Statute of the International Military Tribunal at Nuremberg listed «wanton destruction of cities, towns or villages, or devastation not justified by military necessity» as war crimes. It appears, however, that to date no one has been tried on a charge related to wanton destruction and that those persons tried on charges related to devastation, such as General Rendulic, who was acquitted on a charge of this type in the «Hostage Trial» (8 Law Reports if Trials of War Criminals 34, 67- 69), have been tried for offences alleged to have been committed in occupied territory.
Article 3 of the Statute of the International Criminal Tribunal states:
«The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
a. employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
b. wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
c. attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
d. seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; and
e. plunder of public or private property.»
With reference to the Battle of Sarajevo, it must be noted that Sarajevo is not «undefended». The British Manual of Military Law Part III § 290 (1958) contains a concise statement of the applicable law:
«An undefended or `open' town is a town which is so completely undefended from within or without that the enemy may enter and take possession of it without fighting or incurring casualties. It follows that no town behind the immediate front line can be open or undefended for the attacker must fight his way to it. Any town behind the enemy front line is thus a defended town and is open to ground or other bombardment, subject to the limitations imposed on all bombardments, namely, that as far as possible, the latter must be limited to military objectives. This means that hospitals, convalescent homes, churches and monuments duly marked by signs notified beforehand must not be deliberately attacked if they are not used for military purposes. Thus, the question of whether a town is or is not an open town is distinct from whether it does not contain military objectives. A town in the front line with no means of defence, not defended from outside and into which the enemy may enter and of which he may take possession at any time without fighting or incurring casualties, e.g., from crossing unmarked minefields, is undefended even if it contains munitions factories. On the other hand, all defended towns whether situated in the front line or not may be subjected to bombardment provided that it is not directed solely against non-military objectives duly marked as mentioned above.»
The writers did not see any evidence of the use of poisonous or other unlawful weapons during their time in Sarajevo. As indicated in the anecdotal account of the battle (16 to 22 November 1992, and 7 and 14 December 1992), there have been reports of the BSA using vehicles which were painted white with UN markings. Such acts constitute perfidious conduct, are prohibited by article 37(1) of Protocol I, and can constitute a grave breach under article 85(3)(f) if persons caused death or serious injury while using such vehicles. Also, as indicated in the anecdotal account (21 to 28 December 1992), it appears that BiH forces have, on occasion, directly attacked UN forces. In this context, UN forces are non-combatants and illegitimate targets.
The tribunal in the «High Command Trial» (12 Law Reports of Trials of War Criminals 84, 84) approved the following opinion:
«A belligerent commander may lawfully lay siege to a place controlled by the enemy and endeavour by a process of isolation to cause its surrender. The propriety of attempting to reduce it by starvation is not questioned. Hence the cutting off of every source of sustenance from without is deemed legitimate. It is said that if the commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten the surrender.»This opinion clearly supports the use of starvation as a method of warfare in the case of a siege. Article 54 of Protocol I prohibits starvation as a method of warfare in general terms. It states:
«1. Starvation of civilians as a method of warfare is prohibited.
2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, as such as foodstuff, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.
3. The prohibitions in paragraph 2 shall not apply to such of the object covered by it as are used by an adverse Party:
a. as sustenance solely for the members of its armed forces; or
b. if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.»
One might pose two fundamental questions concerning article 54. First, does it apply to the siege of Sarajevo either because Protocol I applies as a treaty obligation or because its starvation provisions are now part of customary law? Second, if article 54 does apply, does it override the traditional law concerning siege or is the traditional law a form of lex specialis? Both the ICRC Commentary on the Protocols and the Commentary by Bothe, Partsch, and Solf, hail article 54 as a substantial new principle of international law applicable in armed conflicts. It is considered that article 54 applies to the siege as a treaty obligation, not as part of customary law. It is also considered that the law for siege warfare is not a lex specialis and that, as a result, where there is an inconsistency between article 54 and the traditional law, article 54 governs.
Although Sarajevo has been under siege from the beginning of the conflict, and food, water, heat, and electricity have been extremely limited for much of that time, The Bulletin, which reports casualty figures in Sarajevo, has not indicated that anyone has died in the city from starvation, dehydration, or freezing. Repeated references are made in the anecdotal history to electricity, food, and water shortages. It is noted in the Observations Concerning the Battle History as of July 1993 subsection that both sides have used the city's logistics as an instrument of war against the populace to influence each other and affect the media.
One of the fundamental problems of legal analysis during a siege is that combatants and non-combatants are collocated, frequently using the same resources and facilities. For example, with reference to article 54, food supplies, drinking water, and electricity may be used by both the civilian population and military forces in Sarajevo. If there is a shortage in any of these supplies, the shortfall may be levied against the military forces, the civilian population, or both groups. As a practical matter, it is extremely unlikely that the shortfall would be levied against the military forces alone. One is faced with the unpalatable fact that, unless there is a neutral arbiter, the only way to starve-out a besieged military force, a legitimate act of war, is to starve the civilian population.
As no one appears to have died of starvation, cold, or dehydration in Sarajevo, it is unlikely anyone could be held liable for using starvation of civilians as a method of warfare during the siege.
Under the law as essentially codified in Protocol I:
The battle to recapture Manila from the Japanese in 1945 is a particularly painful example of an attempt to minimize civilian casualties which went wrong for reasons beyond the control of the attacking force. Once American forces were committed to recapture the Philippines, it was necessary for them to retake Manila. General Yamashita, the Japanese commander in the Philippines ordered his troops to evacuate the city on the approach of American forces because he did not have sufficient forces to defend it and did not have enough food to feed the civilian population of one million. A subordinate Japanese commander disregarded Yamashita's orders and directed his troops to fight to the death to defend the city. In the course of the battle, American forces surrounded the city and closed in towards its centre. The Japanese would not surrender. Initially, American commanders imposed severe restrictions on the use of artillery, but, as American casualties mounted, many restrictions were lifted. The American official history described the situation:
«The losses had manifestly been too heavy for the gains achieved. If the city were to be secured without the destruction of the 37th and the 1st Cavalry Divisions, no further effort could be made to save the buildings; everything holding up progress would be pounded, although artillery fire would not be directed against structures such as churches and hospitals that were known to contain civilians. Even this last restriction would not always be effective for often it could not be learned until too late that a specific building held civilians. The lifting of the restrictions on support fires would result in turning much of southern Manila into a shambles; but there was no help for that if the city were to be secured in a reasonable length of time and with reasonable losses.»(R. Smith, Triumph in the Phillipines, 264 (1963)). An estimated 16,000 Japanese soldiers died in the battle and American forces casualties were 1,000 killed and 5,000 wounded. Manila was devastated, and the bodies of 100,000 Filipino civilians were found in the rubble, most of them killed in the exchange of fire between American and Japanese forces.
Substantial civilian casualties are particularly likely to be caused during sieges, fighting in built up areas, and on other occasions when attacks are directed against cities. As Sarajevo is under siege, a certain number of civilian casualties can be expected even if the combatants made a conscientious effort to comply with the law of armed conflict. Several thousand persons have been killed or wounded in Sarajevo during the siege. The Bulletin estimate of 28 June 1993 was that 8,934 persons had been killed and 52,518 persons had been wounded as a result of military activity. The precise totals, the identity of the killed and wounded and their classification as combatants or non- combatants are not yet known. It is, however, reasonable to conclude that the vast majority of the casualties, probably over 75 per cent, are civilians and not legitimate objects of attack.
The writers did not attempt to conduct their own survey of property damage during the siege of Sarajevo. It is, however, apparent to any visitor to the city that most buildings, including many which are clearly civilian objects, such as churches and mosques, have suffered serious battle damage. The Holiday Inn, where the writers stayed during their visit, is an 11-story structure, but occupancy is now confined to the first five floors, because of damage to one side and because the other side is exposed to sniper fire. It must be conceded, however, that the Holiday Inn was initially the headquarters of the Serbian Democratic Party and some damage was caused when it was seized by Muslim militiamen on 6 April 1992. The writers visited the National Library, however, and it was apparent that this civilian structure had been deliberately destroyed by Serb artillery from the nearby hills. The interior of the library was gutted, yet several surrounding buildings were completely untouched. It will eventually be possible to make a global survey of property damage in Sarajevo, but it will probably be very difficult to establish a precise chronology and indication of causality in most cases. It will also be necessary to apply a discount factor because of the BiH tendency to move its limited artillery resources among various civilian areas. On the morning of 3 July 1993, the writers observed from their windows in the Holiday Inn a BiH mortar being fired repeatedly from an area where civilian housing was located. They also a observed a substantial amount of Serb counter-battery fire hitting the houses.
The weapons systems being used by BSA forces in the siege of Sarajevo, predominantly direct-fire weapons, and artillery at point blank, frequently direct-fire, range, are systems which can be used with a high degree of accuracy. A sniper rifle is normally aimed at a particular person in view of the sniper. Mortars and guns used at short range normally fire projectiles which land quite close to where they are aimed. These are not inherently indiscriminate weapons, particularly in the case of sniper fire. If non-combatants are being killed or wounded, this occurs because the sniper intends to kill or wound them.
There are legitimate military objectives in Sarajevo such as the BiH forces wherever they are located and modest weapons and ammunition manufacturing facilities. It does not appear, however, that conscientious efforts are made to ensure that attacks are directed exclusively against these military objectives. There is every indication that civilians have been deliberately targeted by snipers and by BSA artillery. As indicated in the discussion of BSA tactics, small arms and artillery have frequently been used as weapons of terror directed against the civilian population. There are cases in which BSA artillery has been directed against military objectives and, nevertheless civilian casualties have been caused. In these cases, it is appropriate to attempt to measure military advantage gained against suffering caused to the civilian population in a crude proportionality equation. Quite frequently, however, application of the rule of proportionality will be irrelevant for the simple reason that causing civilian casualties is the objective of BSA action, not an incidental effect.
This report is a non-exhaustive survey of law of armed conflict issues arising during the siege of Sarajevo. As the writers did not have an opportunity to visit BSA forces during the investigation, they were not exposed to allegations of BiH misconduct during the siege unless the allegations came from UN sources. The report focuses on combat-related offences, unlawful targeting, and the use of unlawful means and methods of warfare.
It is unlikely that weapons which are illegal per se have been used during the siege. If it can be established that named individuals in the BSA used or authorized the use of vehicles which carried UN markings, this could be viewed as perfidious conduct and, if persons were killed or wounded as a result of this action, a grave breach of Protocol I could be established. The «Hagendorf» case (13 Law Reports of Trials of War Criminals 146, 146-148), in which a German soldier was convicted for abusing the Red Cross emblem by firing at American soldiers from an ambulance, might constitute a useful precedent. In that case, however, the accused was captured at the time of the incident. Somewhat similarly, if it can be established that named individuals attacked or authorized attacks on UN forces, these persons could be charged with violating the laws or customs of war, contrary to article 3 of the International Criminal Tribunal Statute, by committing a grave breach of article 85(3)(a) of Protocol I and making the civilian population or individual civilians the object of attack. In the Sarajevo context, UN peacekeepers are non-combatants and entitled to be treated as civilians. As indicated in the discussion of starvation as a method of warfare, the tendency of both sides to control food, water, and electricity for publicity purposes, the collocation of military forces and the civilian population, and the fact that no one appears to have died during the siege from starvation, dehydration, or freezing, combine to make difficult the establishment of a solid case that starvation is being used as a method of warfare. The conduct on this matter has been deplorable but its criminality is debatable.
Most of the war crimes committed in Sarajevo have involved attacks on civilian persons and objects. As indicated in the preceding section, it will be difficult but not impossible to compile a reasonably accurate list of persons killed or seriously injured during the siege of Sarajevo, to determine if they were combatants or non-combatants and to determine when, where, and how they were killed or injured. Once this information is available, it will be possible to determine relative percentages of military and civilian casualties over time. It may also be possible to determine, in a general manner where the projectiles causing casualties came from, in such a way that X number of casualties were caused by a particular unit. Whether or not it is possible to determine which individuals or which units caused civilian casualties, it will certainly be possible to establish that a large number of casualties have been caused by the BSA forces surrounding Sarajevo during a specific period of time. It will probably also be possible to determine roughly how many of the civilian casualties have been caused by some form of sniper fire. Whether or not one might consider applying the rule of proportionality in other cases where civilian casualties are incurred, it is reasonable to presume that civilian casualties caused by sniper fire are the result of deliberate attacks on civilians, not the result of indiscriminate attacks.
The compilation of a chronological and quantitative survey of damage to civilian objects in Sarajevo will be more difficult to do and has not yet been attempted. It is possible to determine what damage has been caused to certain religious, cultural, and medical buildings and, in most cases, it would be possible to determine whether these buildings were located near legitimate fixed military objectives. It would also be possible to focus on whether certain types of objects were deliberately targeted. For example, a detailed study of the shelling of the Kosevo medical facility or of the National Library would probably indicate that these objects had been deliberately targeted. It may also be possible to establish that religious facilities were deliberately targeted. The tendency of BiH forces to conceal their resources among civilian objects would probably result in some of the damage to civilian objects caused by BSA projectiles, thereby constituting legitimate collateral damage. There is enough apparent damage to civilian objects in Sarajevo to justify an in-depth study. Such a study might well conclude that either civilian objects have been deliberately targeted or that they have been indiscriminately attacked. This study, which would require unimpeded movement for extended periods throughout Sarajevo, is not practicable at present.
There have been incidents in the past where substantial civilian casualties have been caused, but substantial military advantage has also been gained by a particular military action. The battle of Manila, referred to earlier, is an example, as are many of the bombing raids of the Second World War. In these cases, one might attempt to quantify both military advantage and civilian losses and apply the somewhat subjective rule of proportionality. As a general statement, however, the rule of proportionality is not relevant to the sniping activities of the BSA forces and it is of questionable relevance to many of the artillery bombardments. BSA forces are deliberately targeting the civilian population of Sarajevo either as a measure of retaliation or to weaken their political resolve. Attacking the civilian population is a war crime.
It will probably be very difficult to link specific individuals or units to specific incidents in which civilians or civilian objects have been deliberately attacked or subjected to indiscriminate attacks. It may be possible to localize incidents in such a way that it is clear that a certain unit under a particular commander was the cause of a number of incidents. Whether or not it is possible to develop a firm case against individual soldiers or unit commanding officers, it should be quite practicable to develop a prima facie case against the officer or officers responsible for the BSA Sarajevo Romanija Corps which has been the unit surrounding Sarajevo from the beginning of the siege. It is understood that the Sarajevo Romanija Corps is now commanded by Major General Stanislav Galic and that it was formerly commanded by Major General Tomislav Sipcic. Further research may indicate the identity of other officers responsible at the Corps level.
Command has burdens and responsibilities, as well as
privileges. The commander of the Sarajevo Romanija Corps is
responsible for the attacks on the civilian population and the
indiscriminate attacks launched by his troops if he ordered these
attacks. He is also responsible to a degree, even if he did not
give the orders if he knew or should have known that his
subordinates were committing or going to commit such attacks and
he failed to take all practicable steps to prevent or punish
them. To determine whether or not the Corps commander must have
known about the acts of his subordinates, one might consider a
number of indices, including: the number of illegal acts; the
type of illegal acts; the scope of illegal acts; the number and
type of troops involved; the logistics involved, if any; the
geographical location of the acts; the widespread occurrence of
the acts; the tactical tempo of operations; the modus operandi of
similar illegal acts; the officers and staff involved; and the
location of the commander at the time. On the basis of these
indices, a Corp commander headquartered on high ground at
Lukavica with a good view of the city, good communications, and a
reasonably low tempo of operations at almost all times, would
have some difficulty arguing that he was unaware of small arms
and artillery fire being directed against civilians and civilian
Both sides have used the city's logistics as an instrument of war against the populace to influence each other and affect the media. The Serbs control the power grid, and power lines and transformers have been damaged by deliberate or accidental destruction or by maintenance failures. UN escorted repair teams have been prevented by a variety of means, including being fired upon, from effecting repairs. The control of UNHCR and NGO- provided supplies is also used as a weapon by both sides. This tactic must be delicately executed because of the food aid's high media profile. Another serious infra-structural difficulty was the city's dry sewage system. The system has been used for communications, movement, storage and, in some cases, shelters. Although the gravity design permits limited function, UNPROFOR engineers have stated that major maintenance is required to preclude the very real chance of disease in the summer heat.