Furthermore, in its resolution 787 (1992) of 16 November 1992, the Security Council requested the Commission, inter alia, to pursue actively its investigations on this matter, in particular the practice of "ethnic cleansing".
Having considered the recommendations in the interim report of the Commission of Experts (S/25274, annex I (hereinafter first interim report)), the Security Council decided in its resolution 808 (1993) of 22 February 1993 that an international tribunal should be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. On 25 May 1993, the Council, by its resolution 827 (1993), acting under Chapter VII of the Charter of the United Nations, adopted the statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 contained in the report of the Secretary- General (S/25704, annex). To this effect, the Council requested the Commission, pending the appointment of the Prosecutor of the International Tribunal, to continue on an urgent basis the collection of information relating to its mandate.
The Commission took note of references made to it by different
organs and bodies of the United Nations system. Specifically, it took note of
General Assembly resolution 47/147 of 18 December 1992, in which
the Assembly reaffirmed that all persons who perpetrate or
authorize crimes against humanity or other grave breaches of
international humanitarian law are individually responsible for
those breaches and that the international community would exert
every effort to bring them to justice, and called upon
all parties to provide all pertinent information to the Commission.
As of 26 October 1992, the Commission, whose members serve in
their personal capacity, consisted of Mr. Frits Kalshoven
(Netherlands) as Chairman, Mr. M. Cherif Bassiouni (Egypt), Mr.
William J. Fenrick (Canada), Mr. Keba M'baye (Senegal) and Mr.
Torkel Opsahl (Norway).
The Commission has held 12 sessions, at which it discussed a number of substantive, methodological and organizational problems related to its mandate. *1 At its final session, the Commission unanimously adopted the present report.
Pursuant to rule 10, paragraph 1, of its rules of procedure,
the Commission appointed rapporteurs for several general and
specific questions. Thus, Mr. Bassiouni was appointed Rapporteur
for the Gathering and Analysis of Facts; Mr. Fenrick, Rapporteur
for On-site Investigations as well as Rapporteur on Issues of Law;
and Ms. Greve, Rapporteur on the Prijedor Project. Mr. M'baye and
Ms. Cleiren were assigned to study and report on the
destruction of cultural property and on legal aspects of sexual
While the Secretary-General had indicated that he would
endeavour to meet the expenses of the Commission as far as possible
resources, the Commission was provided with additional funding for
a period of 9 months, from 1 December 1992 to 31 August 1993. This
funding covered the compensation and travel of the members, as well
as the travel and subsistence of staff members assigned from the
Office of Legal Affairs. The additional funding also provided for
general temporary assistance and permitted the recruitment of two
From December 1992, the Commission set up a database designed
to provide a comprehensive, consistent and manageable record of all
grave breaches of the Geneva Conventions and other violations of
international humanitarian law being committed in the territory of
the former Yugoslavia. The inputting of information into the
database was effected in the International Human Rights Law
Institute of DePaul University (Chicago, United States of America)
under the supervision of the Rapporteur for the Gathering and
Analysis of Facts, who was also the President of the Institute
and the Chairman of the Commission. The information was received
from several Governments, which made official submissions, as well
as from intergovernmental and non-governmental bodies. In
addition, it included information received from United Nations
bodies. The database also contained information from open sources
and media reports.
The Commission has undertaken 32 missions with the aim of either preparing for investigations or conducting them (see annex I.B). In all cases, missions were used to obtain additional information pertaining to the Commission's mandate.
Subsequently, the Commission added to its specific projects a special case study on Prijedor.
Owing to personnel and time constraints, as well as limited financial resources, the Commission was compelled to adopt a selective approach in its work. It was not practicable to investigate exhaustively or otherwise attempt to verify every allegation of a violation of international humanitarian law committed in the territory of the former Yugoslavia. In its choice and method of conducting research projects or investigations, the Commission endeavoured, at all times, to be both impartial and balanced.
On 14 December 1993, the Commission was informed that in the
light of the establishment of the International Tribunal and the
appointment of its Prosecutor, the Commission should finalize its
report and complete the
transfer of its files, documents and database to the Tribunal by 30
This support was in the nature of financial contributions to the Trust Fund, *4 contributed personnel, officially submitted reports, assistance in taking testimony and general support of the Commission's investigations, particularly by the Governments of Croatia, Bosnia and Herzegovina, Slovenia and the Federal Republic of Yugoslavia.
The Commission also wishes to acknowledge the logistical and
administrative support of the United Nations Protection Force
The present report reflects only part of the extensive work and analysis done by the Commission under difficult and restrictive circumstances. The more complete record of its work and findings is contained in the annexes, which the Commission considers to be an integral part of the report.
The Commission expects that the Secretary-General will publish the annexes so that the present report will be complete. *5
To date, the major conflicts in the territory of the former
Yugoslavia have occurred in Croatia and in Bosnia and Herzegovina.
Determining when these conflicts are internal and when they are
international is a difficult task because the legally relevant
facts are not yet generally agreed upon. This task is one which
must be performed by the International Tribunal.
Under all four Conventions, grave breaches prohibit, inter alia, wilful killing, torture, rape or inhuman treatment of protected persons, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
In the case of prisoners of war, it is also a grave breach to compel a prisoner of war to serve in the forces of the hostile power or to deprive him of his rights to a fair and regular trial. In the case of civilians in the hands of the adverse party, it is also a grave breach to:
Under article 85, paragraph 3, of Additional Protocol I, the following acts constitute grave breaches if committed wilfully, in violation of the relevant provisions of the Protocol, and causing death or serious injury to body or health:
"(b) Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects ...;
"(c) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects ...;
"(d) Making non-defended localities and demilitarized zones the object of attack;
"(e) Making a person the object of attack in the knowledge that he is hors de combat;
"(f) The perfidious use ... of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol."
"(b) Unjustifiable delay in the repatriation of prisoners of war or civilians;
"(c) Practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination;
"(d) Making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, ... the object of attack, causing as a result extensive destruction thereof, where there is no evidence of (prior use of such objects in support of the adverse party's military effort), and when such (places) are not located in the immediate proximity of military objectives;
"(e) Depriving any person protected by the Conventions (or the Protocol) of fair and regular trial."
The body of customary international law applicable to international armed conflicts includes the concept of war crimes, and a wide range of provisions also stated in Hague Convention IV of 1907, the Geneva Conventions of 1949 and, to some extent, the provisions of Additional Protocol I.
It must be observed that the violations of the laws or customs of war referred to in article 3 of the statute of the International Tribunal are offences when committed in international, but not in internal armed conflicts.
"52. Superiors are moreover individually responsible for a war crime or crime against humanity committed by a subordinate if they knew, or had information which should have enabled them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit such an act and they did not take all feasible measures within their power to prevent or repress the act.
"53. Military commanders are under a special obligation, with respect to members of the armed forces under their command or other persons under their control, to prevent and, where necessary, to suppress such acts and to report them to competent authorities."
The doctrine of command responsibility is directed primarily at military commanders because such persons have a personal obligation to ensure the maintenance of discipline among troops under their command. Most legal cases in which the doctrine of command responsibility has been considered have involved military or paramilitary accused. Political leaders and public officials have also been held liable under this doctrine in certain circumstances.
It is the view of the Commission that 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. To determine whether or not a commander must have known about the acts of his subordinates, one might consider a number of indices, including:
Lastly, a military commander has the duty to punish or discipline those under his command whom he knows or has reasonable grounds to know committed a violation.
A reprisal is an otherwise illegal act resorted to after the adverse party has himself indulged in illegal acts and refused to desist therefrom after being called upon to do so. The purpose of a reprisal is to compel the adverse party to terminate its illegal activity. It must be proportionate to the original wrongdoing and must be terminated as soon as the original wrongdoer ceases his illegal actions. The proportionality is not strict, for if the reprisal is to be effective, it will often be greater than the original wrongdoing. Nevertheless, there must be a reasonable relationship between the original wrong and the reprisal measure.
However, reprisals against the following categories of persons and objects are specifically prohibited:
The Commission is of the view that, when and where the law relating to international armed conflicts applies, the provisions of article 54 of Additional Protocol I are also applicable. This article states in part:
"2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, 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."
The Commission also considers article 70, paragraphs 2 to 4, of Additional Protocol I to apply:
"3. The parties to the conflict and each High Contracting Party which allow the passage of relief consignments, equipment and personnel in accordance with paragraph 2:
"(b) May make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power;
"(c) Shall, in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned.
The definition of "crimes against humanity" in article 5 of the statute codifies accepted principles of international law applicable erga omnes. As ascertained by the International Military Tribunal at Nuremberg, there are "elementary dictates of humanity" to be recognized under all circumstances. The General Assembly in its resolution 95 (I) of 11 December 1946 affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgement of the Tribunal. *10
The Nuremberg application of "crimes against humanity" was a response to the shortcoming in international law that many crimes committed during the Second World War could not technically be regarded as war crimes stricto sensu on account of one or several elements, which were of a different nature. It was, therefore, conceived to redress crimes of an equally serious character and on a vast scale, organized and systematic, and most ruthlessly carried out.
Articles 2 and 3 of the statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 address grave breaches of the Geneva Conventions of 1949 and violations of the laws and customs of war. Article 5, which concerns crimes against humanity, contains minimum provisions which must be respected, a fortiori, whether or not articles 2 or 3 are applicable to a specific conflict.
It seems obvious that article 5 applies first and foremost to civilians, meaning people who are not combatants. This, however, should not lead to any quick conclusions concerning people who at one particular point in time did bear arms. One practical example: in the former Yugoslavia, large-scale arbitrary killings were one of the hallmarks of attacks by a given group. Information about such arbitrary killings was then used by the same group to instill fear and demand total subjugation of the other group in other areas as well. Many of the most barbarous onslaughts on villages started with heavy artillery bombardments followed by the villages being stormed by infantry in tandem, while paramilitary groups sought the inhabitants in each and every house. A head of family who under such circumstances tries to protect his family gun-in-hand does not thereby lose his status as a civilian. Maybe the same is the case for the sole policeman or local defence guard doing the same, even if they joined hands to try to prevent the cataclysm. Information of the overall circumstances is relevant for the interpretation of the provision in a spirit consistent with its purpose. Under such circumstances, the distinction between improvised self-defence and actual military defence may be subtle, but none the less important. This is no less so when the legitimate authorities in the area - as part and parcel of an overall plan of destruction - had previously been given an ultimatum to arm all the local defence guards.
The International Military Tribunal at Nuremberg stated the following concerning crimes against humanity and the importance of the overall circumstances:
It is significant to note that Protocol II to the Geneva Conventions of 1949 Relating to the Protection of Victims of Non- International Armed Conflicts addresses "fundamental guarantees" in article 4 and includes in the protected group "all persons who do not take a direct part or who have ceased to take part in hostilities".
In the context of crimes against humanity, it is relevant to observe that the same kind of prohibited acts listed in common article 3 (relevant to conflicts not of an international character) in the four Geneva Conventions of 1949, and in Protocol II to the Geneva Conventions are mere codification of elementary dictates of humanity. Article 3 prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituent court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples". Article 4 bans "violence to the life, health and physical or mental well-being of persons, in particular murder, as well as cruel treatment such as torture, mutilation or any form of corporal punishment; collective punishment; taking of hostages; acts of terrorism; outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assaults; slavery and the slave trade in all their forms; pillage; and threats to commit any of the foregoing acts". The former Yugoslavia signed Protocol II on 11 June 1979 and ratified it that same day, without reservations, declarations or objections.
Crimes against humanity are not confined to situations where there exists an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, which are preconditions for genocide. Crimes against humanity are, however, serious international violations directed against the protected persons, in contradistinction to a fate befalling them merely as a side-effect, for example, of a military operation dictated by military necessity.
It should be noted that the ensuing upsurge in crimes that follows a general breakdown of law and order does not qualify as crimes against humanity. However, a general breakdown in law and order may be a premeditated instrument, a situation carefully orchestrated to hide the true nature of the intended harm. Thus, it should not be accepted at face value that the perpetrators are merely uncontrolled elements, especially not if these elements target almost exclusively groups also otherwise discriminated against and persecuted. Unwillingness to manage, prosecute and punish uncontrolled elements may be another indication that these elements are, in reality, but a useful tool for the implementation of a policy of crime against humanity.
Crimes against humanity may also amount to extermination of national, ethnical, racial, religious or other groups, whether or not the intent that makes such crimes punishable as genocide can be proven. They may also, through inhumane acts, amount to large- scale human degradation. The scale and nature of such crimes become of special significance and of concern to the international community because of the abhorrent character of the overall policy, the means employed to carry out the policy and the number of victims it produces.
The Convention was manifestly adopted for humanitarian and
civilizing purposes. Its objectives are to safeguard the very
existence of certain human groups and to affirm and emphasize the
most elementary principles of humanity and morality. In view of
the rights involved, the legal obligations
to refrain from genocide are recognized as erga omnes.
The Convention must be interpreted in good faith, in accordance with the ordinary meaning of its terms, in their context, and in the light of its object and purpose. Moreover, the text of the Convention should be interpreted in such a way that a reason and a meaning can be attributed to every word. No word or provision may be disregarded or treated as superfluous, unless this is absolutely necessary to give effect to the terms read as a whole. *14
Genocide is a crime under international law regardless of
"whether committed in time of peace or in time of war" (art. I).
of the context in which it occurs (for example, peace time,
internal strife, international armed conflict or whatever the
general overall situation) genocide is a punishable international
If essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others - the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose. Similarly, the extermination of a group's law enforcement and military personnel may be a significant section of a group in that it renders the group at large defenceless against other abuses of a similar or other nature, particularly if the leadership is being eliminated as well. Thus, the intent to destroy the fabric of a society through the extermination of its leadership, when accompanied by other acts of elimination of a segment of society, can also be deemed genocide.
If there are several or more than one victim groups, and each group as such is protected, it may be within the spirit and purpose of the Convention to consider all the victim groups as a larger entity. The case being, for example, that there is evidence that group A wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national, ethnic, racial or religious group A. In a sense, group A has defined a pluralistic non-A group using national, ethnic, racial and religious criteria for the definition. It seems relevant to analyse the fate of the non-A group along similar lines as if the non-A group had been homogenous. This is important if, for example, group B and to a lesser degree group C have provided the non-A group with all its leaders. Group D, on the other hand, has a more marginal role in the non-A group community because of its small numbers or other reasons. Genocide, "an odious scourge" which the Convention intends "to liberate mankind from" (preamble), would as a legal concept be a weak or even useless instrument if the overall circumstances of mixed groups were not covered. The core of this reasoning is that in one-against-everyone-else cases the question of a significant number or a significant section of the group must be answered with reference to all the target groups as a larger whole.
Unlike most codified penal laws in the world, in international humanitarian law rape is not precisely defined. But on the basis of the contemporary criminal laws of the world's major criminal justice systems, the Commission considers rape to be a crime of violence of a sexual nature against the person. This characteristic of violence of a sexual nature also applies to other forms of sexual assault against women, men *18 and children, *19 when these activities are performed under coercion or threat of force and include sexual mutilation. *20 It should be noted that irrespective of their definition, acts of sexual assault against women, men and children are prohibited by international humanitarian law through normative provisions prohibiting violence against the physical integrity and dignity of the person. Therefore, rape and other sexual assaults are covered in pari materia.
Even though sexual assaults imply the commission of the crime by a given perpetrator, persons who do not perform the act but are indirectly involved in the commission of this crime, like decision-makers and superiors, are also responsible under the Genocide Convention (art. III) and general norms of command responsibility (see paras. 55 - 60).
Violations of the laws and customs of war applicable to
conflicts of an international character are contained in a number
of international instruments. The Hague Convention (IV) Respecting
the Laws and Customs of War on Land deals with the question of
sexual assaults in article 46: "Family honour and rights, the
lives of persons and private property, as well
as religious convictions and practice, must be respected." The
Fourth Geneva Convention explicitly prohibits rape in article 27.
The Commission deems that article 147 of the same Convention on
"grave breaches" includes rape and other sexual assaults as
constituting "torture or inhumane treatment" and that they are also
prohibited because they are among those acts "wilfully causing
great suffering or serious injury to body or health". Furthermore,
Protocol I to the Geneva Conventions contains in article 76 an
express prohibition of rape and other sexual assaults. In
addition, such practices which are based on racial discrimination
also constitute "grave breaches" under article 85, paragraph 4 of
Protocol I, which holds that "inhuman and degrading practices
involving outrage upon personal dignity, based on racial
discrimination" are prohibited. It is also considered that article
27 of the Fourth Geneva Convention constitutes part of customary
international law, thus also establishing a basis for universal
jurisdiction. Furthermore, it should be noted with respect to
Protocol I, that the provisions of article 85, when violated on the
basis of racial discrimination, also constitute a violation of
customary international law. Under all of these provisions, a
single act of rape or sexual assault constitutes a war crime. As
a "grave breach", this type of violation falls under universal jurisdiction.
The perpetrator, however, must be a person who is linked to one of
the parties to the conflict and the victim must be linked to
another party to the conflict or be a citizen of a neutral State.
It is also held that article 76 of Protocol I is applicable to
victims who are not protected by other provisions of the four
First session - 4-5 November 1992 Second session - 14-16 December 1992 Third session - 25-26 January 1993 Fourth session - 1-3 March 1993 Fifth session - 24-25 May 1993 Sixth session - 13-14 July 1993 Seventh session - 30-31 August 1993 Eighth session - 27 October 1993 Ninth session - 14-15 December 1993 Tenth session - 11-12 January 1994 Eleventh session - 15-16 February 1994 Twelfth session - 11-15 April 1994All the sessions, except the first one, which was convened in New York, have been held at Geneva.
Country Amount (US$)
Austria 20 000
Canada 237 869
Czech Republic 1 000
Denmark 15 201
Germany 16 000
Hungary 3 000
Liechtenstein 3 184
Morocco 5 000
Netherlands 260 152
New Zealand 53 492
Norway 49 978
Sweden 94 955
Switzerland 50 000
Turkey 10 000
United States of America 500 000
TOTAL 1 320 631
"'In part' would seem to imply a reasonable significant number,
relative to the total of the group as a whole, or else a
significant section of a group such as its leadership. ...
considerations of both proportionate scale and of total numbers