Vukovar – the Croatian Guernica
When, with the support of the majority of Serbs who lived in Yugoslavia, Milošević started a war for the Greater Serbia,and thus prevented a peaceful dissociation of the nations which formed Yugoslavia, the Croatian city of Vukovar found itself in the first line of attack. During the siege which lasted from 28th of July to 18th of November 1991 the city was defended by 700 to 800 members of the National Guard and by approximately 1000 volunteers against 40.000 to 60.000 well armed attackers. During the siege about 5000 projectiles fell daily on the city. After 90% of it's buildings were totally destroyed the city fell into the hands of the attackers, a medley of „chetniks“, volunteers of Šešelj and Arkan, members of the local Serbian paramilitary units and regular soldiers of the Yugoslav Army. When the attackers entered the city, they indulged in the presence of members of the international community in an orgy of mass slaughter of the civilian population, in rape, deportation and massacre of the sick and wounded found in the Vukovar hospital. The victors set up concentration camps, the most notorious being the one on the local hillock called Ovčara and the camp near the Velepromet market , in which civilians men,women and children were tortured, killed and sexually abused. After the fall of Vukovar about 22.000 Croats were expelled from that area, and about 620 of them disappeared. In 1998 938 bodies of the victims were exhumed at the cemetery of Vukovar, which is the greatest mass grave in Europe after the end of the Second World War. One of the most atrocious features of this horror were the camps in which persons were imprisoned according to racial , religious, ethnic, political and social criteria. The Academician Josip Jurčević distinguishes five categories of camps: camps for prisoners of war, camps for civian population, work camps, private camps (i.e.camps in private ownership of groups or individuals) and camps for mass rape. These last camps were set up by Serbian authorities in Bosnia and Hercegovina exclusively for female inmates of non-Serbian nationalities. When the raped women came into the stage of advanced pregnancy in which abortion was dangerous for mother's life, the victims were released from the camp. The camps for systematic mass rape were part of the plan of ethnic cleansing for the establishment of the Greater Serbia. In these camps sought and found sexual satisfaction even some leading international peacekeepers.
Two most notorious camps established by the Yugo-Serbian conquerors of Vukovar were those on the Ovčara and near the Velepromet market. Through the camp on the Ovčara passed 3.000 to 4.000 prisoners since it had been founded in October 1991. In that concentration camp, according to the available statistics, about 255 prisoners were killed and about 800 disappeared, most of them the sick and wounded from the Vukovar hospital. Most of those who were led away for interrogation have never returned. The camp on the Ovčara was closed around Christmas of 1991, and the surviving prisoners were transferred to the Serbian town of Srijemska Mitrovica, or to Serbian concentration camps at Stajićevo, Begejci and other places. On the Ovčara a mass grave was left with the remains of 200 killed. In the camp of Velepromet 20 cases of sexual abuse were recorded in the last week of November of 1991.This camp was a big collection centre for thousands of civilians arrested within a few days after the fall of Vukovar. It was operated by the Serbian Army and „chetniks“, and its inmates were Croatian civilians. The male prisoners were beaten on their sexual organ and castrated, and in one published case the Serbian soldiers cut off the testicles and penis of a Croatian male prisoner. The women in the camp were raped, but there are reports of sexual crimes committed even outside the camp. So in one case a Serbian army captain raped two 14-year-old girls in the presence of their grandmother, and after that he killed all three of them.The Velepromet camp was in operation from September of 1991 to March of 1992, and its commander was Milovan Cvjetičanin.
After this very short illustration of the Vukovar horror story let us give it its legal qualification. We ask here, whether the Yugoslav and Serbian attackers and conquerors have committed in Vukovar the crime of genocide ? However, let us first clarify the notion of genocide.
What is genocide?
According to article II of the 1948 Genocide Convention the crime of genocide has two component parts: the mental or moral element, i.e. the specific intent ((mens rea), and the material element, i.e. the criminal act (actus reus).The mental element is the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. The material element consists of one or more of the following acts: (a) killing members of the above mentioned group, (b) causing serious bodily or mental harm to members of the group, (c)deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, (d) imposing measures intended to prevent births within the group, and (e) forcibly transferring children of the group to another group. Let us here briefly comment on some of these conditions. Serious bodily or mental harm can be caused, among other means, by forcing the victim to take drugs or narcotics, by raping the victim, or subjecting him or her to sexual abuse, or by any other violent and inhuman act against the victim.The offender must perpetrate these acts with at least one of the specific intents enumerated above. The genocidal act of inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part does not include only intent , but goes beyond intent and premeditation and includes a plan to destroy in whole or in part that national, ethnical, religious or racial group as such. For genocide is an organized, in advance elaborated, and not a spontaneous crime. As regards measures imposed to prevent births within the group it should be pointed out, that this genocidal act does not include success in preventing births. The measures to do this are not only castration and sterilization, but also separation of males from females, preventing them from marrying or from having children, or forcing women to miscarry. It is this mental element of specific intent which distinguishes this act of genocide from an act of birth control as a social measure. Another comment is here in place. The Genocide Convention does not directly mention the motive of a genocidal act, but only its specific intent. However the motive is indirectly mentioned in article II of the Convention by the words „as such“, which means that the act must aim at destroying in whole or in part a certain group of people because of their national, ethnical, racial or religious traits. The perpetrator of a genocidal act need not be aware of this general motive when he commits the act; he can commit the act from a whole range of other motives, including that of illegal enrichment. Let us also add that genocide could be perpetrated in wartime and in peacetime, against foreign as well as domestic population. The Convention does not incriminate only the act of genocide, but also the acts which may accompany it, such as conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide
Is „ethnic cleansing“ genocide?
It seems that the expression „ethnic cleansing“ first appeared in 1981 in Yugoslav media accounts of the establishment of „ethnically clean territories“ in Kosovo. The expression entered the international vocabulary in 1992 and, according to the Security Council's Commission of Experts on violations of humanitarian law, it means rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area. The Commission considered that the techniques of ethnic cleansing include murder, torture, arbitrary arrest and detention, extra-judicial executions, sexual assault, confinement of civilian population in ghetto areas, forcible removal, displacement and deportation of civilian populations, deliberate military attacks or threats of attacks on civilians and civilian areas, and wanton destruction of property.
We may now ask whether ethnic cleansing as described above is an act of genocide? The opinions differ. The opinion that ethnic cleansing is equivalent to genocide is expressed in some resolutions of the UN General Assembly. So, for example, the special rapporteur of the Commission on Human Rights on extrajudicial, summary and arbitrary executions has said that ethnic cleansing is a euphemism for genocide. Others consider that ethic cleansing differs from genocide. What is said above for genocide could also be said for ethnic cleansing: the crime of ethnic cleansing could be perpetrated in wartime as well as in peacetime, against the offender's own population and against foreign population. Remember the mass displacement of Armenians within the
Ottoman Empire in 1915, where the exposure to starvation, thirst, heat, cold and epidemic diseases resulted in the death of hundreds of thousands of them, or let us remind ourselves of the expulsion of ethnic Germans (the „Volksdeutscher“) in Tito's afterwar Yugoslavia, although they were Yugoslav citizens. In our opinion ethnic cleansing differs from genocide. Although both may share the same goal, namely to eliminate the persecuted group from a given area, they have two different specific intents . Ethnic cleansing is intended to displace a population, while the intent of genocide is to destroy it. So we may say that ethnic cleansing is a crime against humanity and sometimes war crime. But having said that we must add, that ethnic cleansing could also be a warning sign of genocide to come, because genocide is the last resort of the frustrated ethnic cleanser. After this somewhat theoretical disquisition let us now return to the atrocities committed in Vukovar.
Are the crimes committed in Vukovar acts of genocide?
Although history has recorded cases of institutionalised violence against certain population groups (e.g. religious or political dissidents, American or Australian aborigines) , or of mass deportation and destruction of populations (e.g. trade with African slaves by their colonial masters), yet genocide, as an intentional and systematic destruction of a national, religious, ethnical or racial group, is a relatively recent phenomenon enabled by the progress of scientific power over nature and human beings, and by the development of technical rationality as the dominant mode of reasoning. Hence the capacity of the modern world to destroy systematically an entire population or its preponderant part, in other words to commit genocide in the legal meaning of the term. On the other hand, the bureaucratization and slowness of the so-called international community, sometimes not only do not restrain, but even encourage perpetrators of genocide by allowing them sufficient time to commit the crime. Let us remember the genocide in Rwanda, in Srebrenica in Bosnia and Hercegovina, in western Sudan, and in Vukovar, which is the subject of this address.
Returning now to the atrocities committed by the attackers in Vukovar we can say, that these crimes bear all the marks of genocide. In the detailed plan for the creation of Greater Serbia, which had been drawn up long before the republics of the former Yugoslavia demanded a peaceful separation, deportation of the non-Serbian population by force or otherwise was foreseen. Already at the end of the sixties and the beginning of the seventies of the past century , the Serbian ethnocentric expansionism wanted to „cleanse Slavonia with the tank and Dalmatia with the needle“ ( meaning a mass import of drugs).
Regardless of the motives of individual perpetrators of these crimes, those who planned, ordered and ideologically defended the crimes had a clear, calculated and in advance formed intent of exterminating the non-Serbian population in the border areas between Croatia and Serbia as a step towards the creation of Greater Serbia. Therefore they showed the essential element of genocide, the mens rea. As regards the other component of genocide, the actus reus, its presence is amply proved by the mass slaughters, deportations, rapes and tortures which took place. There is plenty of incontestable evidence for this. The intent of the offenders was to „cleanse“ or „flush out“ the Croats from those areas. In addition to genocide the Yugoslav-Serbian units committed also the crime of ethnic cleansing as a separate crime against humanity and war crime, although these two crimes, genocide and ethnic cleansing, were frequently committed by the same incriminating act.
We can now raise the question of complicity in the acts of genocide
committed in Vukovar.The 1948 Genocide Convention in article III states that complicity in genocide is also punishable. The accomplice in a crime is the person, who aids, abets, counsels, procures or otherwise participates in a criminal offence, even if he or she is not the principal offender.The participation and contribution of the accomplice is sometimes essential in facilitating the commission of the offence, so that it could be said that the accomplice is often the real villain, and the principal offender a small cog in the machine.The accomplice very frequently is the person who plans, organizes, directs, incites or encourages genocide, leaving it to the inferiors to dip their hands in blood. According to the Genocide Convention complicity is not punishable as an inchoate (begun but not accomplished) act, but only if the principal crime of genocide is accomplished , or at least attempted. Just as presence at the scene of the crime is not essential for complicity, it is also clear that mere presence at the scene of the crime, in the absence of a material act or omission, is not an act of complicity (for instance, an ignorant or unwilling presence). It is also not necessary that the principal offender be apprehended or tried in order that the accomplice be held accountable. The principal offender could be , for instance, out of the reach of justice , submerged in the global criminal underground, unidentified, not accountable e.g.because of the intervening mental disease, dead, or his personal guilt could not be proved. But the participant of the criminal offence must have the criminal intent (mens rea) to destroy, in whole or in part, a national, ethnical,racial or religious group as such. But when a person has a legal duty to intervene, mere presence at the scene of the crime may consititute a form of complicity. That person's failure to intervene is a form of encouragement or abetting. This applies also to the presence of a person who is held in respect by the perpetrators of the crime. In the case of Prosecutor v. Furundzija the International Criminal Tribunal for the Former Yugoslavia said that the mere presence of such a person could be interpreted by the offenders as an encouragement of their conduct, and that such a spectator could be found guilty as an accomplice to the crime. In the case of Vukovar some very high representatives of the international community were present in the city when it fell into the hands of the Serbian units. These representatives saw the columns of anguished and emaciated civilians and hospital patients being pushed along the streets of Vukovar towards an unknown destination by the raging Serbian soldiers who sang to Milošević „Hey Slobodan send us salad, we shall have enough meat when we slaughter the Croats“. The international officials, however, remained silent. The guilty ignorance or disinterestedness of these representatives of the international community cannot absolve them from a serious accusation of complicity in genocide in the same way, as the fact that during the administration by the international community peacekeepers of the UN protected areas (so-called UNPA zones) in Croatia, during the war od Yugo-Serbian aggression on Croatia, the Serbs killed about 700 Croatian civilians in those zones.
That those who failed to protect Vukovar from genocide committed by the Yugoslav and Serbian soldiers now sit in judgement over the Croatian defenders, that those who in the occupied Vukovar perpetrated genocide, war crimes and crimes against humanity are given incredibly lenient sentences by the International Court while the Croatian generals who fought against the aggressors are being sentenced to long term imprisonment, that is the irony of history. The English politician Horace Walpole once said that life is a tragedy to those who feel, and a comedy to those who think. I don't know whether this is true, but history proves that very frequently comedy is life's end of those who mock, while the nobler role of tragedy is life's end of those who patiently bear that mocking. The supreme example of this is the passion and death of the God-man at Golgotha. Therefore Vukovar, that Croatian Guernica, remains a permanent symbol of moral victory in physical defeat, a symbol of resistance by little people with a great heart to the crime of genocide.