The Omarska Camp trial before the Yugoslav Tribunal in The Hague established important precedent concerning the laws of armed conflict, the prosecution of gender-related crimes, the scope of persecution, and the development of the joint criminal enterprise theory of liability to hold individuals accountable for war crimes and crimes against humanity.
Omarska Detention Camp
In early August 1992, reporters Ed Vulliamy ( The Guardian) and Roy Gutman ( Newsday) gained access to Omarska prison camp in northern Bosnia, setting in motion a series of events that would ultimately lead to international war crimes trials for crimes committed in the camp. The reporters told horror stories of murder, torture, rape, and barbaric conditions in the camp, supplying haunting pictures of emaciated detainees imprisoned behind barbed-wire fences. The images evoked memories of Auschwitz and Dachau concentration camps and induced fears that a holocaust was again happening on European soil. Overnight, Omarska camp became a symbol of the horrors of the war in Bosnia and the ethnic hatred rife therein.
The outrage generated by the atrocities reported in the camp was one of the catalysts of a United Nations (UN) effort to investigate war crimes committed in the conflict. The camp was closed less than a month after its exposure caused international uproar. A Commission of Experts discovered widespread and systematic crimes committed in the Balkan conflict; consequently, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up by the United Nations in 1993 to prosecute war crimes, crimes against humanity, and genocide. Mandy Jacobson’s subsequent film Calling the Ghosts, focusing on two women who survived repeated rapes in Omarska camp, created further international fury and poignantly highlighted the need to ensure that gender crimes committed during the war, including in Omarska camp, be prosecuted.
The ICTY and its sister tribunal in Rwanda have made enormous strides in developing international law and prosecuting wartime sexual violence, and the judgment handed down in the Omarska Camp case regarding rape as a form and means of persecution represents yet another considerable step forward in redressing gender crimes. Notably, before the judgment was handed down in this case, the two tribunals had already rendered convictions recognizing rape as an instrument of genocide ( Akayesu case), a crime against humanity ( Akayesu and Kunarac cases), a war crime ( Furundzija, Celebici, and Kunarac cases), a form of torture ( Furundzija, Celebici, and Kunarac cases), and a form of enslavement ( Kunarac case).
Judge Patricia Wald, former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, was one of three distinguished UN-appointed international judges hearing the Omarska Camp case before the ICTY in The Hague, Netherlands, along with Judges Almiro Rodrigues of Portugal and Fouad Riad of Egypt. After a part-time trial lasting over a year, the ICTY Trial Chamber Judgment (formally cited as Prosecutor v. Kvocka et al.) was handed down on November 2, 2001, one day before Judge Wald retired from the tribunal and returned to the United States to eventually head the new Open Society Justice Initiative in Washington, D.C.
Prior to April 29, 1992, the five Bosnian Serb defendants on trial were ordinary citizens going about their daily lives during the war. The next day, life changed drastically for the non-Serbs residing in Prijedor, a town in northeast Bosnia. On April 30, Serb forces conducted a bloodless takeover of the town of Prijedor and immediately imposed a discriminatory regime against Bosnian Croats and Muslims: non-Serbs were dismissed from their jobs and forbidden from attending school; their movement was restricted and their religious facilities targeted for destruction.
Within a month of the takeover, Serb forces also set up detention camps in Prijedor—Omarska, Keraterm, and Trnopolje—in order to suppress a suspected armed uprising of Muslims and Croats in the area. These camps were ostensibly established to serve as collection centers to identify persons suspected of collaborating with the opposition. Crimes committed in the Omarska camp in particular were the focus of this trial held against five accused who worked in or regularly visited the camp, which held well over 3,000 male detainees and some 36 female detainees.
The indictment alleged that the accused were responsible for war crimes and crimes against humanity that were committed in Omarska camp by such acts as murder, torture, and cruel treatment. Each accused was also charged with persecution as a crime against humanity for the beatings, humiliation, psychological abuse, sexual assault, and confinement in inhumane conditions prevalent in the camp. One accused was also charged with physically committing rape and other forms of sexual violence.
Ordinary Citizens or War Criminals?
The Omarska Camp case poses particularly interesting issues regarding accountability for average citizens who get swept up in wartime events. The characters on trial consisted of both typical criminal types and unlikely candidates for the dock. In every war there are racist bullies and opportunistic rapists, and the Omarska Camp trial had two of these: Zigic, a bully who regularly entered the camp to beat and persecute persons of a different ethnic group, and Radic, a weak and pathetic man who took advantage of women’s vulnerability in the camp to use the opportunity to sexually abuse them (while his domineering wife worked nearby in the camp’s kitchen). But the accused on trial also included a distinguished and well-respected police officer, a grey-haired retired and sickly administrator, and a former waiter described as gentle and nonpolitical—three seemingly regular, law-abiding, and law-enforcing citizens assigned to work in Omarska camp. The latter three in particular—Kvocka, Prcac, and Kos respectively—appear more akin to your typical dad, grandfather, or brother than criminal types, much less war criminals or persons accused of some of the most heinous offenses imaginable: crimes against humanity.
Miroslav Kvocka was the highest level accused on trial (other higher level indictees had not yet been apprehended). He was a respected police officer with more than twenty years of experience who served as de facto deputy commander over the guard service in the camp, and who worked in Omarska camp for approximately seventeen days of its nearly three months of operation. Milojica Kos had worked for ten years as a waiter prior to being called to serve as a reserve police officer, whereupon he was assigned to be a guard shift leader in Omarska camp, where he worked nearly three months. Dragoljub Prcac, a senior citizen called out of retirement to serve as an administrative aide to the commander of the camp, worked in the camp approximately twenty-two days. Mlado Radic, a police officer who served as guard shift leader in Omarska, worked in the camp during the entirety of its operation, and guards on his shift committed some of the most horrific crimes. Zoran Zigic, a taxi driver, entered Omarska and the other two camps seemingly at will to abuse detainees.
Thus, four of the five accused on trial were essentially relatively low-level workers in the camp who had little or no authority to dictate camp policy, in that they had no say over such things as the quality or amount of the food served, the conditions of confinement, or who was to be officially singled out for interrogation and abuse. Yet the guard or administrative function they served did give them some level of authority and responsibility over the detainees, how they were treated, and who entered and left the camp. And guard shift leaders had some authority over other guards on their shift.
During the Nuremberg, Tokyo, and other war crimes trials held by the Allied victors after World War II, it was typically the highest level political and military leaders on trial, although others were also prosecuted: top businessmen profiting from slave labor, propagandists using the media to incite hatred and encourage violence, or doctors conducting unethical medical experiments on the hapless victims. Concentration camp guards and other camp workers were convicted during some of the trials held in Nuremberg, but most had worked in the camps for extensive periods of time and demonstrated extreme cruelty against the detainees, relishing the persecutorial tasks they’d been assigned. Thus, jurisprudence from previous war crimes trials focused primarily on high-level leaders or on low- to mid-level actors who physically committed some of the more notorious abuses.
In the Omarska Camp trial, the accused who raped, beat, or tortured the detainees were relatively straight-forward cases. The more challenging legal and moral issues concerned whether mid- to low-level persons who are assigned to work in a concentration-type camp but don’t physically commit crimes can and should be held criminally liable for crimes committed in the camp during the period they worked there.
The Joint Criminal Enterprise Theory of Responsibility
The Trial Chamber reviewed a number of cases from the subsequent trials held in Europe after World War II. Many low-level perpetrators were tried and convicted of participating in “criminal designs,” “conspiracies,” or “a common criminal purpose” if they knowingly performed such acts as driving a prisoner of war to an execution, working in a sanatorium that administered fatal injections to all patients from Poland and Russia, supplying poisonous gas to a concentration camp, or standing as lookout while others committed a crime. In fact, such persons were typically held accountable even when they performed assigned functions under orders or under duress. Indeed, the post-World War II case law usually concluded that whether aiders and abettors, accessories, or principal organizers and perpetrators, anyone who knows that a crime is about to be committed and nonetheless performs the function required and facilitates the crime’s commission, can be held liable.
The earlier Tadic case in the Yugoslav Tribunal had clarified that the joint criminal enterprise theory of responsibility was implicitly contained in the Yugoslav Statute. A joint criminal enterprise is essentially a knowing decision of two or more persons to participate in criminal activity. The Omarska Camp Trial Chamber stated that a joint criminal enterprise can exist whenever more than one person participates in a common criminal endeavor, which may range from two bank robbers to thousands participating in a mass slaughter of millions. Further, subsidiary criminal enterprises of the greater criminal enterprise may exist for more particularized purposes. For example, the Trial Chamber explained that smaller auxiliary criminal enterprises “may be established for purposes of forced labor, another for purposes of systematic rape for forced impregnation, another for purposes of extermination, etc.”
The Trial Chamber concluded that Omarska camp operated as a joint criminal enterprise, a facility used to persecute and subjugate non-Serbs through various forms of mental, physical, and sexual violence. The Chamber stressed that all who regularly visited or worked in the camp would undoubtedly have known that crimes were pervasive throughout the camp. In addition to evidence showing that each accused was present during beatings and killings, even had they not witnessed abuses firsthand, knowledge of the blatant criminal activity was gained through ordinary senses:
[E]vidence of abuses could be seen by observing the bloodied, bruised, and injured bodies of detainees, by observing heaps of dead bodies lying in piles around the camp, and noticing the emaciated and poor condition of detainees, as well as by observing the cramped facilities or the bloodstained walls. Evidence of abuses could be heard from the screams of pain and cries of suffering, from the sounds of the detainees begging for food and water and beseeching their tormentors not to beat or kill them, and from the gunshots heard everywhere in the camp. Evidence of the abusive conditions in the camp could also be smelled as a result of the deteriorating corpses, the urine and feces soiling the detainee’s clothes, the broken and overflowing toilets, the dysentery afflicting the detainees, and the inability of detainees to wash or bathe for weeks or months.
(Omarska Camp Trial Chamber Judgment, ¶ 324, emphasis in original.)
But the Trial Chamber determined that knowledge alone is not sufficient to incur responsibility and stressed that simply working in a concentration-type camp does not automatically render one liable as a participant in a joint criminal enterprise. The Chamber held that for criminal liability to attach, the person must not only know that crimes are being committed but also participate at a significant level in the criminal activity. For lower level accused, this would mean things like physically inflicting abuses, making the camps’ functioning more efficient or effective, or performing acts that advance the goals of the criminal enterprise.
Persecution and Sexual Violence
Notably, the Chamber also stressed that any who knowingly participate in a significant way in a criminal enterprise are responsible not only for all crimes committed in furtherance of the enterprise but also for all crimes that were natural or foreseeable consequences of the enterprise, even if these other crimes are incidental or unplanned. Consequently, even though there was not evidence to suggest that most of the accused were aware of the rape crimes committed in Omarska camp, nonetheless these crimes were clearly foreseeable, as the Trial Chamber emphasized: “it would be unrealistic and contrary to all rational logic to expect that none of the women held in Omarska, placed in circumstances rendering them especially vulnerable, would be subjected to rape or other forms of sexual violence.”
The Trial Chamber recognized that war creates situations where average citizens get caught up in the violence or hatred, and people often commit crimes they would ordinarily never even have dreamed of committing. Nonetheless, the Chamber emphasized, the presence of war or mass violence cannot shield or excuse perpetrators from prosecution if they knowingly participate in or facilitate criminal activity.
The Trial Chamber heard evidence that each accused was present during specific instances of abuses committed in the camp, and it also heard evidence that some of the accused occasionally attempted to assist a few of the detainees. Ultimately however, the court concluded that each of the accused had participated in a significant way in the joint criminal enterprise that functioned as Omarska camp, a camp where persecution of non-Serbs through various forms of physical, mental, and sexual violence was rampant. The accused who had not physically committed crimes had showed up for work everyday despite the daily murders, tortures, beatings, and other mistreatment and performed the tasks assigned to them efficiently, effectively, and without complaint. They had facilitated the commission of the crimes and allowed them to continue with ease and without disruption. All five accused were convicted of persecution as a crime against humanity for the assortment of evils committed in Omarska camp.
As to the rape crime charges against Radic, the Trial Chamber was convinced that he was involved in “the sexual harassment, humiliation, and violation of women” in Omarska camp. Several witnesses testified to his raping, attempting or threatening to rape, or groping them. The Trial Chamber found that the sexual violence constituted both rape and torture. The women suffered severe pain and suffering constituting torture, in part because the “fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radic.” Despite this finding, because the indictment failed to indicate whether the sexual violence committed by Radic was different from the rapes charged as part of the persecution count, they were deemed subsumed by the persecution count; thus he was not convicted of rape and torture for these crimes as crimes against humanity. Radic was however convicted of torture as a war crime for the sexual violence he inflicted upon women in Omarska camp.
The Omarska Camp case can be used to demonstrate that even during armed conflict, one cannot turn a blind eye to blatant criminal activity; if you know crimes are being committed and you perform acts that facilitate the commission of the crimes, you can be held criminally responsible. It can also be used to show that women are particularly vulnerable when detained in facilities guarded by armed men of an opposing side, and that all necessary and reasonable measures must be taken to provide protections against sexual violence to such women. Any planned or foreseeable crimes, including rape crimes, committed during the course of a joint criminal endeavor cause liability to attach to participants in the enterprise.
The degree of culpability, the amount of time spent in the camp, the position of the accused, and whether the men convicted physically perpetrated crimes was taken into account in sentencing. For the roles they played in facilitating or committing the crimes, Kvocka, Prcac, and Kos were given five- to seven-year prison terms; Radic received twenty years, and Zigic was sentenced to twenty-five years’ imprisonment. This case is currently on appeal before the ICTY Appeals Chamber.