1 2 Prior to the war, both the Cyrillic and Latinalphabets were used in Bosnia-Hercegovina. 3 Michael McCurry, spokesperson for the UnitedStates Department of State, as quoted by John Kifner, "In Northern Bosnia,a Rising Tide of Serbian Violence,"The New York Times, March 27,1994. 4 UNHCR and the International Committee of theRed Cross (ICRC) personnel and other humanitarian operations have themselvesbeen subject to Serbian threats and harassment in the Banja Luka area.The UNHCR office has been evacuated three times following threats to security.As of mid-June 1994, UNHCR does not maintain foreign staff in Banja Luka.In January 1994, a hand grenade was thrown at a local ICRC staff member,wounding him and thereby prompting his evacuation from the city. In March1994, Bosnian Serb military leaders refused to allow three UNHCR workersto leave Bosnian Serb-held territory, effectively holding them as hostagesin Banja Luka as reprisal for NATO's threat of air strikes against Serbiangun positions around Sarajevo. 5 For a discussion of the 1948 Genocide Conventionon the Prevention and Punishment of the Crime of Genocide and its relationto the abuses taking place in the former Yugoslavia, see Human Rights Watch/Helsinki,War Crimes in Bosnia-Hercegovina, Volume I (New York: Human RightsWatch, August 1992), pp.1-2. 6 For an account of abuses perpetrated withinthe Bosnian Serb-operated detention camps, see Human Rights Watch/Helsinki,War Crimes in Bosnia-Hercegovina, Volume II (New York: Human RightsWatch, April 1993), pp. 84-187. 7 "Three villages near Prijedor - two Muslimand one Gypsy - with a collective population of nearly 1,000 have approachedthe UNHCR office in Banja Luka to request evacuation. In addition, thechief Muslim relief agency there, Merhamet, has warned that the last 6,000to 7,000 Muslims living around Prijedor are on the point of making thesame request." David Ottoway, "Muslim, Gypsy Villages Seek to Quit SerbAreas,"The Washington Post, March 19, 1994. 8 This effort includes a two-volume report andsubsequent newsletters based on interviews with displaced persons, refugees,medical and relief personnel, journalists, lawyers, combatants, and civilianand military representatives of the parties to the conflict. 9 Chuck Sudetic, "In Bosnia Again, A Grim `EthnicCleansing',"The New York Times, February 17, 1994. 10 Chuck Sudetic, "Serbs Pressing Ouster ofFoes from Bosnia,"The New York Times, June 16, 1994. 11 Nenad Zafirovi?, "`Republika Srpska,'"BalkanWar Report (London), August/September 1993. This article was writtenby a journalist for Radio B-92, a Belgrade-based independent radio station,after he visited the Banja Luka region in 1993. 12Ibid. 13 The main objective of "ethnic cleansing"is the removal of an ethnic group(s) from a given area through murder andforced displacement. Forced displacement is itself a violation of internationalhumanitarian law (the laws of war). Article 49 of the Geneva ConventionRelative to the Protection of Civilian Persons in Time of War of August12, 1949, [hereinafter Fourth Geneva Convention] states: Individual or mass forcible transfers, as well as deportations of protectedpersons from occupied territory to the territory of the occupying poweror to that of any other country, occupied or not, are prohibited, regardlessof motive. There are only two exceptions to the prohibition on displacement, forwar-related reasons, of civilians: for their security or for imperativemilitary reasons. "Imperative military reasons" require "the most meticulousassessment of the circumstances" because such reasons are so capable ofabuse. One authority has stated: Clearly, the imperative military reasons cannot be justified by politicalmotives. For example, it would be prohibited to move a population in orderto exercise more effective control over a dissident group. International Committee of the Red Cross,Commentary on the AdditionalProtocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,(Geneva: Martinus Nijhoff Publishers, 1987) at 1472 [hereinafter1977ICRC Commentary]. Mass relocation or capture of civilians for the purpose of changingthe ethnic composition of territory, in order to justify later annexation,is a political, not a military, move and does not qualify as an "imperativemilitary reason." Destruction of civilian homes as a means to force thosecivilians to move is as illegal as a direct order to move. International humanitarian law distinguishes between international andnon-international (internal) armed conflict. Because of the direct involvementof forces from the Serbian and Croatian governments and the Yugoslav People'sArmy (Jugoslavenska Narodna Armija - JNA) in Bosnia-Hercegovina, HumanRights Watch/Helsinki has treated the conflict as international in character,therefore allowing for the applicability of humanitarian law governingsuch conflicts (i.e., the 1949 Geneva Conventions and the First ProtocolAdditional to the Geneva Conventions). Although JNA troops and forces belongingto the Serbian and Croatian governments have nominally withdrawn from Bosnia-Hercegovina,the direct military, economic and political aid provided by these governmentsto their surrogate forces in Bosnia-Hercegovina continues to make themparties to the conflict. 14 Louis Gentile, former head of the UNHCR officein Banja Luka, "In Banja Luka Terror Seems Uncannily Normal," Letter tothe Editor,The New York Times, January 14, 1994. 15 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 14, 1994, in Croatia. 16 He showed X-rays of both hands, includinga smashed knuckle, to a Human Rights Watch/Helsinki representative. Thedamage to his hands was evident. 17 The witness had an asterisk-shaped scar onhis right cheek and several scars elsewhere on his face. 18 The witness showed his scars to the HumanRights Watch/Helsinki representative. 19 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 20 The average salary in the Banja Luka areais approximately US $20 per month. 21 "Balija" is a derogatory term used to describeMuslims. 22 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 23 Gentile, "In Banja Luka, Terror Seems UncannilyNormal," and Kifner, "In Northern Bosnia, a Rising Tide of Serbian Violence." 24 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 25 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 26 Although R. did not witness the massacre,he saw his friends' corpses soon after. It was widely reported throughoutBanja Luka that the man responsible for the murder was M.T. Several refugeesinterviewed by Human Rights Watch/Helsinki mentioned his name in connectionwith this same massacre. Human Rights Watch/Helsinki was not able to confirmthis information. 27 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 28 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 29 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 30 Ramadan is the ninth month of the Islamiccalendar during which the Holy Qur'an was revealed. A fast is observedby all members of the community for twenty-nine or thirty days in orderto develop and foster self control and discipline, consequently minimizingthe chances of committing sins. Eid ul'Fitr marks the end of the fast andis celebrated with a congregational prayer and a feast. 31 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 32 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 33 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 34 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 35 Rape and sexual abuse constitute violationsof international human rights standards and humanitarian law. Article 147of the Fourth Geneva Convention specifies that "torture or inhuman treatment"and "wilfully causing great suffering or serious injury to body or health"are "grave breaches" and hence actionable war crimes. The1977 ICRCCommentary explains that "'inhuman treatment' ... does not mean onlyphysical injury or injury to health. Certain measures ... which causedgrave injury to [a person's] human dignity, could conceivably be consideredas inhuman treatment." The1977 ICRC Commentaryalso notes thatthe scope of the phrase "wilfully causing great suffering" can encompass"punishment, in revenge or for some other motive, perhaps out of pure sadism... [that] can quite legitimately be held to cover moral suffering also."(1977 ICRC Commentary at 598-99.) Since in the view of the ICRC"moral suffering" is covered by "inhuman treatment," it follows that rapeis covered also. Moreover, Article 27 of the Fourth Geneva Convention callsfor the protection of women "against any attack on their honor, in particularagainst rape, enforced prostitution, or any form of indecent assault."Further, Article 76 (1) of Protocol I states that women "shall be protectedin particular against rape, forced prostitution and any other form of indecentassault." This language makes it clear that rape constitutes both a gravebreach of the Convention and a violation of several explicit prohibitions. In addition, under Article 85 (4) (c) of Protocol I, "Inhuman and degradingpractices involving outrages upon personal dignity, based on racial discrimination"- a provision that almost certainly applies in many particular instances,given the ethnic character of this conflict - are also "grave breaches"and hence judicially actionable war crimes. Article 86 (2) of Protocol Imakes commanders who had information about such crimes punishable themselves"if they did not take all feasible measures within their power to preventor suppress" a grave breach. Finally, rape -like murder, extermination, deportation and other equallyserious crimes -can be a constituent crime against humanity, as that termwas defined in the Nuremberg Trial and in Article 6 (c) of the NurembergCharter, provided that it is part of a mass pattern of such crimes andother definitional elements are met. (For the opinion of Human Rights Watchas to the definitional elements of crimes against humanitysee MiddleEast Watch/Physicians for Human Rights,The Anfal Campaign in IraqiKurdistan: The Destruction Of Koreme, (New York: Human Rights Watch,January 1993) Appendix 5.) Rape was specifically enumerated in the secondset of Nuremberg war crimes trials, conducted under the authority of ControlCouncil Law No. 10, which named with greater specificity the constituentcrimes falling within crimes against humanity. (See generally, DianeOrentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violationsof a Prior Regime," 100Yale L.J. 2537 (1991).) Rape can also be one of the crimes used as a means of carrying out genocide,although rape does not by itself constitute genocide, even when committedon a mass basis. The status of rape as a war crime in international humanitarian lawand the ability to prosecute it are accordingly not at issue. 36 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 37 John Pomfret, "Misery for Muslims and Croatsin Bosnia,"The Washington Post, March 27, 1994, and David Ottoway,"Muslim, Gypsy Villages Seek to Quit Serb Areas." 38 According to Article 147 of the Fourth GenevaConvention, "Extensive destruction and appropriation of property, not justifiedby military necessity and carried out unlawfully and wantonly" is considereda "grave breach" of the Geneva Conventions of 1949. 39 See following section regarding evictionsfrom homes and seizure of property. 40 The Ferhad Pa_a mosque, a UNESCO-designatedcultural sight of symbolic and cultural significance, was one of the sixteenth-centurymosques destroyed in Banja Luka. 41 This information is taken from a reportfiled by international field personnel in the Banja Luka area in December1993. 42 Gentile, "In Banja Luka, Terror Seems UncannilyNormal." 43 Chuck Sudetic, "U.N. Says `Ethnic Cleansing'by Serbs Intensifies,"The New York Times, January 30, 1994. 44 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994 in Croatia. 45 During World War II, Serbs loyal to theSerbian king fought against the Croatian fascists known as Usta_as, Tito'scommunist Partisans, and at times with and against the Nazis. These forces,led by Draa Mihajlovi?, were known as ?etniks and had a reputation forbrutality. The also led a massive campaign of massacring Muslims in partsof Bosnia-Hercegovina. Serbian military and paramilitary forces fightingin Bosnia-Hercegovina and Croatia today are commonly referred to as ?etniksby Muslims and Croats. Although some Serbs reject the term, finding itderogatory, others openly refer to themselves as ?etniks. 46 Members of Banja Luka's city council whohad been expelled at the onset of the war in Bosnia-Hercegovina and Bosniangovernment sources claim that on August 27, 1992 at 8:30 p.m., Banja LukaTelevision aired an interview with local leaders of the Serbian DemocraticParty (Srpska Demokratska Stranka - SDS) who they claim are responsiblefor much of the "ethnic cleansing" in Banja Luka. According to this information,Radoslav Brdjanin, a General Suboti? and a Dr. Milanovi? proceeded to setforth new rules and conditions which were directed at all non-Serbs livingin the Banja Luka region. The following points reportedly were made duringthe television program: · Muslims and Croats must not only leave their jobs and companiesbut Banja Luka itself as soon as possible. At most, only 1,000 to 2,000Muslims loyal to the Serbian government may remain in Banja Luka. · All private businesses owned by Muslims and Croats will beseized and placed at the disposal of Serbs returning from the front. · Croats and Muslims who fail to respond to calls for mobilizationwill be forced to carry out menial jobs such as cleaning streets and sewers,digging graves, and other similar chores. Thus, county-run businesses [suchas the sanitation department] will be shut down. · The movement of Croats and Muslims around the city will berestricted, and the police will strictly check documents and papers ofanyone whom they stop. · Members of the predominantly Muslim Party of Democratic Action(Stranka Demokratske Akcije - SDA) and the Croatian Democratic Union (HrvatskaDemokratska Zajednica - HDZ) are not allowed to cause harm to the Serbianpeople through their actions. · Bosnian Serb authorities in Bosanska Krajina do not recognizethe [UN-EC brokered] London accord [which among other points called forthe placement of all heavy weapons under international supervision] andwill not surrender their artillery into the hands of the Muslims whileRadovan Karadi?, the leader of the Bosnian Serbs, may not agree to anythingin the name of the Banja Luka Serbs. Some refugees interviewed by Human Rights Watch/Helsinki representativesclaimed to have watched this television program and generally confirmedthat the above-mentioned statements were made. 47 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 48 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 49 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 50 Roger Thurow, "Forced From Home, MuslimsMust Turn To Serbs For Passage,"The Wall Street Journal, November22, 1993. 51 Chuck Sudetic, "Bosnia, Once Again, GrimReports of 'Ethnic Cleansing,'"The New York Times, February 17,1994. 52Ibid. 53 Thurow, "Forced From Home, Muslims MustTurn To Serbs For Passage." 54 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 55 Prior to the outbreak of war in April 1992,a municipality (op_tina) of ?elinac did not exist. However, someareas and streets controlled by the various parties to the conflict havebeen re-named in the past two years. Although ?elinac was part of the BanjaLuka municipality prior to the war, the Bosnian Serb authorities presumablyhave granted ?elinac status as a separate municipality. 56 Human Rights Watch/Helsinki retains a copyof the original Serbian-language document in its files. 57 The term "Usta_a army" is used here by theBosnian Serb authorities to denote Croatian and, to a lesser extent, Muslimforces. With the backing of the Nazi and Italian fascist governments, Croatianfascists (known as Usta_e) established the puppet state of the IndependentState of Croatia (Nezavisna Drava Hrvatska - NDH). Under the Usta_a regime,thousands of Serbs, Jews, Romas and others were killed between 1941 and1945. Some Muslims were members of the NDH government and some Muslim forcesfought on the side of the Usta_a regime during World War II. Serbian militaryand paramilitary forces commonly refer to Croat and, to a lesser extent,the predominantly Muslim forces of the Bosnian government as "Usta_e."Both Croat and Muslims reject the label and vehemently deny that they areUsta_a sympathizers or fascists. Some Serbs also refer to Muslims as "Turci"("Turks"), a derogatory term associating Muslim Slavs with the Ottomanrulers who reigned over most of Serbia from 1371 to 1878. The "Green Berets" were a predominantly Muslim paramilitary force whichfought against Serbian troops during the early weeks of the war, priorto the formation of the Bosnian Army. 58 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 59 Although the witness stated that no morethan two men were allowed to meet in one group, the aforementioned decreeforbids the gathering of more than three, not two, non-Serbian men. 60 For a description of forced labor duty fornon-Serbs, see relevant section below. 61 Chuck Sudetic, "In Bosnia Again, a Grim`Ethnic Cleansing'." 62 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 63 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. The witness chose not to giveher name. 64 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 65 Pomfret, "Misery for Muslims and Croatsin Bosnia." 66 Sudetic, "In Bosnia Again, a Grim `EthnicCleansing'." 67 This information is taken from a reportfiled by international field personnel in the Banja Luka area on January15, 1994. 68 Although international law permits the useof prisoners of war as labor, the non-Serbian civilians remaining in BanjaLuka are not prisoners of war as defined under international law, and cannotbe compelled to perform tasks in the arena of fighting. According to theGeneva Convention Relative to the Treatment of Prisoners of War of August12, 1949 (hereinafter Third Geneva Convention), prisoners of war are definedas members of armed forces belonging to one party to the conflict, or "personswho accompany the armed forces without actually being members thereof,"who otherwise have fallen into the power of an enemy or opposing party.(For the full and detailed definition of "prisoners of war," see Article4 of the Third Geneva Convention. Articles 23, 49, 50 (b) and (c), and57 of the Third Geneva Convention regulate the treatment of prisoners ofwar and the conditions under which they can be used as labor. See also1977 ICRC Commentary at 267.) 69 Sudetic, "In Bosnia Again, a Grim `EthnicCleansing'." 70 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 71 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 72 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 73 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 74 Zafirovi?, "'Republika Srpska'." 75 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 76 Human Rights Watch/Helsinki retains a copyof the dismissal notice. 77 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 78 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 79 There is no authority in international lawwhereby a self-styled and unofficial government has the right to carryout forced mobilizations of civilians residing in a region it controls. 80 All non-Serbs in the Banja Luka region mustcarry valid documentation at all times, and movement within the area isrestricted to persons holding a "document for movement" which can be checkedby anyone from the Serbian military, paramilitary or police forces. 81 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 82 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 83 Ora_je is a town in northeastern Bosniacontrolled primarily by Bosnian Croat forces. Areas around Ora_je are controlledby Bosnian Serb forces. The witness's brother presumably was being mobilizedto fight against the Bosnian Croat forces in Ora_je. 84 Interviewed by Human Rights Watch/Helsinkirepresentatives on February 27 and 28, 1994, in Croatia. 85 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia. 86 Interviewed by Human Rights Watch/Helsinkirepresentatives on May 13, 1994, in Croatia.
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