Introduction
Since the early 1990s the fate of civilians during conflict situations has become a central issue of international concern. With the deliberate and systematic targeting of civilians continuing to be evident in conflicts being fought around the world, the United Nations (UN), international NGOs and academic scholars have increasingly focused upon the appropriate means to address and redress acts of civilian victimisation (Jones and Cater, Reference Jones, Cater and Chesterman2001).Footnote 1 International criminal justice institutions, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC), are seen as key mechanisms for the prosecution, adjudication and punishment of crimes committed against civilians in armed conflict.Footnote 2 Alongside their traditional retributive function, these institutions are now also expected to work to construct legal recognition of the civilian victims of conflict, enforce their legal protections and provide redress to them (Bassiouni, Reference Bassiouni2006). Amid the growing move to more ‘victim-friendly’ criminal justice practices, civilians are increasingly being understood as a category of persons that demand, and deserve, legal recognition of their status as the victims of hostilities.
Despite an increasing body of literature and debate analysing the relationship between international criminal justice institutions and the victims of war crimes (Dembour and Haslam, Reference Dembour and Haslam2004; Hodzic, Reference Hodzic2010), there has been little socio-legal research that explores the construction of legal recognition of the civilian victims of armed conflict during trial proceedings. Empirical research often tends to be descriptive, and rarely sufficiently considers the conceptual characteristics, ideas or contexts central to understanding civilians as a category of persons distinct from combatants,Footnote 3 nor adequately focuses on the role of legal practices in constructing or challenging civilian identities. Instead, existing research typically focuses on the mass scale of civilian victimisation in recent conflicts (Kaldor, Reference Kaldor2001), identification of the international rules that protect civilians (Gardam, Reference Gardam1993a), or civilian–military interactions and consequent humanitarian issues in particular situations of conflict (Roberts, Reference Roberts and Chesterman2001).
The aim of this article is to explore the different conceptual models of civilians employed during the trial proceedings of international criminal justice. It examines these conceptual models through a case-study of The Prosecutor v. Dragomir Milošević (D. Milošević)Footnote 4 which was heard by the ICTY. D. Milošević considered crimes committed against civilians during the siege of Sarajevo. It is a leading case as it sets out the present judicial position on the war crimes charge ‘terror against a civilian population’. The article first provides a brief overview of the increasing international recognition of civilians as persons at risk during conflict situations and the development of legal strategies, obligations and mechanisms for the enforcement of their protection. It then analyses the concept of the civilian as defined by the rules of humanitarian law, and draws upon the trial transcripts of D. Milošević and courtroom observation undertaken during its proceedings to analyse the submissions and testimonies of the victim-witnesses, Prosecution, Defence and Trial Chamber. Finally, the article argues that the current ‘negative’ definition of civilians creates significant difficulties for legally recognising civilians as a distinct category of persons, and does not adequately capture the nature of their choices, actions and experiences during a conflict.
International recognition, protection and redress of civilians in conflicts
The mass scale of civilian victimisation has been evident in conflicts ranging from Bosnia and Rwanda during the 1990s, through to Darfur, Sudan in the present day. The UN points out that civilians are increasingly the subject of intentional attacks by combatants and other armed elements.Footnote 5 It acknowledges that civilians constitute the vast majority of casualties in situations of conflict.Footnote 6 Similarly, most commentators describe that civilians not only sustain prolific injuries during hostilities, but that the deliberate and systematic targeting of civilians is central to their conduct (Kaldor, Reference Kaldor2001; Slim, Reference Slim2007).
Throughout the 1990s and into the early years of the new millennium, the UN Security Council, General Assembly and Secretary-General adopted a series of Resolutions and Reports condemning intentional attacks on civilians and highlighting the specific vulnerabilities of particular groups of civilians, namely, women, children and refugees.Footnote 7 The UN's early descriptions of the means and methods for ensuring the safety of civilians were predominantly state-centric, emphasising the responsibility of states to protect civilians and prosecute those persons responsible for serious crimes committed against them.Footnote 8 For example, it held that attacks on civilians violate the norms and laws that regulate and constrain the conduct of states during war,Footnote 9 and called upon states to ‘consider ratifying the major instruments of international humanitarian, human rights and refugee law’.Footnote 10
Traditionally, as the UN describes it, the duty to protect civilians ‘belongs first and foremost to the States’ (Caverzasio, Reference Caverzasio2001, p. 9). This framework of civilian protection follows the conventional legal relationship between a sovereign state and its people: states ‘enjoy supreme authority over all subjects and objects within a given territory’ (Held, Reference Held2002, p. 4). They are ‘independent in all matters of internal politics and should in principle be free to determine their fate within this framework’ (p. 3). In this framework, the state holds the overriding authority and obligation to regulate the conduct of its subjects (i.e. combatants) and protect its civilian population during a conflict. When there is a breach of national or international rules relating to the protection of civilians, the state prosecutes and punishes the perpetrators (Cassese, Reference Cassese2003, p. 37). However, this state-centred framework of civilian protection has been, and continues to be, frequently overlooked or violated in the practice of conflict. Either states do not adhere to their responsibility to protect civilians, are functionally unable to provide security for this group of persons, or their armies are in fact the perpetrators of the violence (Bruderlein and Leaning, Reference Bruderlein and Leaning1999, pp. 430–35).
Recent UN Resolutions and Reports, however, represent a broader non-state approach to the protection of civilians and the legal enforcement of crimes committed against them. Most strikingly, the 2005 World Summit Outcome Document describes how the:
‘international community, through the United Nations … has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VII of the Charter, to help protect populations … we are prepared to take collective action in a timely and precise manner … should peaceful means be inadequate and national authorities are manifestly failing to protect their populations.’Footnote 11
Reaffirmed in recent UN Resolutions focusing on the protection of civilians,Footnote 12 the emerging norm of a ‘responsibility to protect’ articulated in the World Summit Outcome Document is indicative of the renewed international focus on the protection of civilian populations in conflicts.Footnote 13 In particular, as Evans points out, the significance of the doctrine of a responsibility to protect is the shift from state-centric debates over the ‘right to intervene’ in situations of mass violence, to an approach which ‘look[s] at the whole issue from the perspective of the victims’ (Reference Evans2008, p. 285). By turning the issue of the right to intervene ‘upside down’, the central focus becomes the protection of all persons in situations of conflict and the responsibility of all states of the international community to regulate, maintain and enforce this protection (p. 285). In conceptual terms, the issue for the international community is no longer the right to intervene, but the necessity to protect.
Focusing specifically on issues of the legal enforcement of civilian protection, three key conceptual shifts can be seen to arise from the UN's descriptions of new forms of international address and redress to acts of civilian victimisation: first, a new recognition of civilians in conflicts; second, the framework of obligations to ensure their protection; and third, that ‘justice’ mechanisms should enforce these protections. First, there is now an explicit international recognition that civilians are ‘present’ within situations of conflict. Conventionally, the focus of the laws of war and the wider reporting of armed violence has understood the combatant to be the central participant and casualty of war's conduct (Gardam, Reference Gardam1993b; Nabulsi, Reference Nabulsi and Chesterman2001). The UN's increasing focus on the protection of civilians shifts this recognition of the participants of war from the combatant to an express acknowledgement of civilians as intentional casualties. It is explicitly recognised that ‘combatants target civilians’ and cause profound harm to this category of persons.Footnote 14 Importantly, the UN does not describe civilians as being simply ‘caught up’ in war's conduct as unfortunate but inevitable collateral damage, or the unintentional victims of the actions of combatants. Instead, there is an express recognition that civilians are subject to intentional, direct targeting and other forms of unlawful conduct that contravenes the minimum protections of humanitarian law.Footnote 15
Second, the UN's increasing concern with the redress of acts of civilian victimisation narrates new international obligations to construct and implement protection for this category of persons. While states continue to hold primary responsibility for the protection of civilians, the World Summit Outcome Document, as noted above, describes that the responsibility to protect now lies with the international community as a whole, working through the UN, to take ‘collective action’ when national authorities are manifestly failing to protect their populations.Footnote 16 Evans points out that this notion of collective action emphasises the ‘responsibility of all states to protect their own people from atrocity crimes, and to help others to do so’ (Reference Evans2008, p. 285). There is now a consensus that ‘[a]ttacks that specifically target innocent civilians and non-combatants should be condemned clearly and unequivocally by all’.Footnote 17 This new international obligation to protect marks a shift from the older state-centric framework, to a broader model of an international protection of all civilian populations (Jones and Cater, Reference Jones, Cater and Chesterman2001). For this reason, as Arbour points out, it ‘squarely embraces the victims’ point of view and interests, rather than questionable State-centred motivations’ (Reference Arbour2008, p. 448). Whether the civilian population at risk holds the same national ties of the state, or that of another state, their protection is based upon their status as a civilian, and that status alone. This international framework of protection encompasses ‘all populations, everywhere’ (p. 448).
Third, the UN considers that ‘justice mechanisms’ applying the rules of humanitarian law are a key means for addressing and redressing acts of civilian victimisation.Footnote 18 In particular, the UN has drawn attention to the importance of the ICTY, the International Criminal Tribunal for Rwanda (ICTR) and the ICC, alongside other ad hoc courts and tribunals for prosecuting individuals responsible for war crimes, crimes against humanity and genocide.Footnote 19 It emphasises the role of humanitarian law in regulating the protection of civilians and the criminal justice mechanisms, both national and international, that work to enforce these legal rules.Footnote 20
To understand the role of humanitarian law in addressing and redressing acts of civilian victimisation, this analysis will focus on the ICTY, as it has prosecuted the greatest number of accused for violations of humanitarian law. To date, the ICTY has completed proceedings against 125 accused, in contrast to the ICTR, which has completed proceedings against thirty-four accused, and the ICC, which has yet to complete a case.Footnote 21 Notably, the ICTY has included charges for crimes committed against civilians in the majority of its cases. It has also made significant advancements in developing the rules of humanitarian law that relate to the protection of civilians (Slaughter and Burke-White, Reference Slaughter and Burke-White2002, pp. 68–69). The status of the victims of the crimes under adjudication as either civilians or combatants is therefore a central issue of trial proceedings in many cases heard by the ICTY. For this reason, this analysis will focus on the ICTY and, more specifically, the leading case of D. Milošević. It will explore the conceptual models of civilians put forward in D. Milošević to provide a better understanding of the complexities of constructing legal recognition of civilian victims of armed conflict through the rules and practices of international criminal justice.
The siege of Sarajevo and the Dragomir Milošević case
The D. Milošević case concerns crimes committed as part of the ‘siege of Sarajevo’ during the Yugoslavian conflicts of the 1990s.Footnote 22 Over the course of the forty-four months of the siege, the inhabitants of Sarajevo were continuously subjected to a campaign of shelling and sniping by the Sarajevo Romanija Corps (SRK) of the Army of Republika Srpska positioned in the hills surrounding and overlooking the city.Footnote 23 It has been found that the SRK implemented a military strategy of shelling and sniping to kill, injure and spread terror among the civilian population of Sarajevo.Footnote 24 As described in D. Milošević, the siege of Sarajevo had a particularly profound and long-lasting effect on its civilian population. Civilians were the direct targets of shelling and sniping, as well as being caught up in the fighting between the SRK and the opposing force, the Army of Bosnia and Herzegovina.Footnote 25 As a consequence, civilians of both sexes and all ages were killed and wounded, including children and the elderly.Footnote 26 While the difficulties of distinguishing between civilians and combatants provides a significant challenge to identifying the number of casualties of each of these categories of person, recent figures have suggested that between five and six thousand civilians were killed during the siege, with many more wounded or injured.Footnote 27
Dragomir Milošević served as the Commander of the SRK from August 1994 until November 1995. For his conduct during this period of the siege, the Prosecutor of the ICTY charged Milošević with violations of the laws or customs of war as ‘terror against a civilian population’ and ‘attacks on civilians’, and murder and other inhumane acts as crimes against humanity (crimes directed against any civilian population). The accused was charged with individual criminal responsibility for planning and ordering, or alternatively, aiding and abetting these crimes through implementing and conducting a campaign of sniping and shelling of civilians in Sarajevo, the primary purpose of which was to spread terror among the civilian population. The trial against the accused began in January 2007 and involved a total of 138 witnesses testifying before the Trial Chamber. A number of these witnesses, predominantly those brought by the Prosecution, were ‘victim-witnesses’, that is, individual victims of the sniping and shelling of the city. Milošević was found guilty of the charges brought against him and ultimately sentenced to twenty-nine years’ imprisonment by the Appeals Chamber in November 2009.Footnote 28
This article analyses the case of D. Milošević to explore the construction of legal recognition of the civilian victims of these hostilities, and the conceptual models of civilians put forward by the parties to the trial. The D. Milošević case was chosen to explore these issues for two reasons. First, D. Milošević is a significant case as it establishes the present judicial position on the war crimes charge ‘terror against a civilian population’. This charge was first considered by the ICTY in The Prosecutor v. Stanislav Galić (Galić) (Kravetz, Reference Kravetz2004, p. 524),Footnote 29 with the D. Milošević case only the second that has been adjudicated by this institution. Arising from Article 51(2) of Additional Protocol I (API), the crime of terror consists of the following specific elements:
‘1. Acts or threats of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population; 2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence; 3. The above offence was committed with the primary purpose of spreading terror among the civilian population.’Footnote 30
D. Milošević affirms both the ICTY's jurisdiction over the crime of terror, and the specific elements of the crime. In Galić, the Trial Chamber did not pronounce upon the customary status of the crime of terror under international law. This omission was a factor contributing to the dissenting opinion of Judge Nieto-Navia,Footnote 31 and commentators arguing that Galić's conviction could be ‘going beyond the Tribunal's jurisdiction and infringing upon the principle of legality’ (Mettraux, Reference Mettraux2005, p. 129).Footnote 32D. Milošević is thus significant for affirming that the ICTY has subject-matter jurisdiction over this crime, with the Appeals Judgment appearing to affirm its customary status.Footnote 33 The D. Milošević Appeals Judgment also clarifies the Galić jurisprudence in terms of the elements of the crime. It determines that death or serious harm is not an element of the crime of terror per se, as the D. Milošević Trial Chamber Judgment previously held, but represents only one of the possible modes of commission of the crime (Margetts and Hayden, Reference Margetts and Hayden2010, p. 653).Footnote 34 As such, for the offence to fall under the jurisdiction of the Tribunal, the victims must have suffered grave consequences resulting from the acts or threats of violence; such grave threats include, but are not limited to, death or serious injury to body or health.Footnote 35 For both these reasons, the D. Milošević case is significant for setting out the current judicial position on this infrequently charged crime.
Second, the D. Milošević case focuses exclusively on charges of crimes committed against civilians and can therefore be thought of as a ‘victim-specific’ case. Unlike other ICTY cases that include charges for crimes committed against both civilians and combatants, or do not require identification of the status of the victims, D. Milošević only concerns acts of violence committed against civilians. It is for this reason, as the Appeals Chamber describes, that for the accused to be found guilty it was necessary to ‘find beyond reasonable doubt that the victims of individual crimes were civilians and that they were not participating directly in hostilities’.Footnote 36 As such, the victim-witnesses who gave evidence against the accused not only had to testify that they were the victim of a crime, but also had to testify to and in effect ‘prove’ their civilian status at the time of its perpetration.
The next section first identifies how the rules of humanitarian law that frame the D. Milošević case define civilians as a category of persons. It then examines this case to understand how the victims themselves, the Prosecution, Defence and Trial Chamber work to construct (or challenge) legal recognition of the civilian victims of the actions of the accused. These submissions and testimonies show how each of the parties to the trial approaches the task of identifying a person as a civilian during trial proceedings. They reflect how the parties seek to distinguish between civilians and combatants, and to persuade the Trial Chamber that the victim is (or is not) a civilian victim of a crime. By focusing on the different approaches of the parties to the trial, this analysis explores the different conceptual models of civilians put forward in D. Milošević to highlight the difficulties in recognising and understanding civilians as a category of persons during trial proceedings.
The legal (non)-definition of a civilian
International humanitarian law, the body of law that constitutes the subject-matter jurisdiction of the ICTY, comprises the principles that define civilians as a category of persons distinct from combatants in a situation of armed conflict. A foundational precept of modern humanitarian law is the principle of distinction describing that the parties to a conflict must at all times distinguish between civilians and combatants (Sassoli and Bouvier, Reference Sassoli and Bouvier2006, pp. 143–44). This principle determines that ‘war is to be waged against an enemy's armed forces, not against its civilian population’ (Rogers, Reference Rogers2004, p. 7). The rules of humanitarian law therefore conceptualise persons as being either civilians or combatants. All persons are subsumed into this dichotomous framework and so hold one or other of these definitional statuses.Footnote 37 As Dinstein points out, this conception of persons leaves no ‘undistributed middle between the categories of combatants (or military objectives) and civilians (or civilian objects)’ (2004, p. 114).
However, the rules of humanitarian law do not set out a ‘positive’ definition of a civilian. Rather, they provide a ‘positive’ definition of a combatant and determine that civilians are all persons who are not combatants. Combatants are persons ‘taking a direct part in hostilities’ with the exception of medical and religious personnel (Henckaerts and Doswald-Beck, Reference Henckaerts and Doswald-Beck2005, pp. 12–13).Footnote 38 This category of persons holds the ‘privilege’ of the right to fight and, as such, are ‘liable to attack’ from other combatants (Nabulsi, Reference Nabulsi and Chesterman2001, p. 13). In contrast, as D. Milošević describes, the ‘term “civilian” is defined negatively, to include any person who is not a member of the armed forces or an organised military group belonging to a party to the conflict’.Footnote 39 Civilians are persons who do not ‘engage in acts of war which, by their nature or purpose, are likely to cause actual harm to the personnel or materiel of the enemy armed forces’.Footnote 40 The designation of civilian status is therefore dependent upon the co-existence of an opposing status, the combatant. In this dichotomous framing, civilians can be seen as legally ‘excluded’ from hostilities. This category of persons cannot act as participants in a conflict as perpetrators of violence, nor can they figure as the legitimate targets of the actions of others.Footnote 41
The distinction between civilians and combatants can also be seen in the modes of physically identifying these categories of persons. Rogers points out that combatants are ‘obliged to distinguish themselves from the civilian population’ (2004, p. 9). In D. Milošević, the ICTY describes that the ‘generally accepted practice is that combatants distinguish themselves by wearing uniforms, or, at the least, a distinctive sign, and by carrying their weapons openly’.Footnote 42 In this way, combatants must visibly distinguish themselves as holding that status during a conflict through particular aspects of their appearance. There are specific ‘markers’ of combatant identity that are distinct from those of civilians. Such markers of combatant status enable both civilians and combatants to recognise this group of persons during hostilities. It distinguishes their mode of participation in a conflict from that of civilians. These visible markers of combatant status will also guide the legal adjudication of their status if an allegation of a breach of the protective rules of humanitarian law comes before the courts.Footnote 43
However, the negative definition of civilians means that the rules of humanitarian law ‘do not tell us who or what the protected persons and objects are’ (Dinstein, Reference Dinstein2004, p. 114). The negative definition does not conceptualise ‘who’ a civilian may be, nor specify any typical ‘markers’ or features that could identify such persons. There are no equivalent physical or visible ‘markers’ of civilian status as there are for combatants. The difficulty of the negative definition becomes most apparent during the legal adjudication of a person's status as either civilian or combatant. With no key markers or attributes that can be used as evidence to identify a civilian or prove such status during the legal enforcement of crimes, the central question becomes whether a person is or is not a combatant, rather than whether they are or are not a civilian.Footnote 44 The designation of civilian status thus rests upon an interpretation of forms of actions or appearance that are understood not to characterise combatant status. As will be shown, the particular difficulty of current legal rules is that there are certain categories of civilians whose status in conflict will be under greater scrutiny due to the nature of their social characteristics, a situation that will impact upon the legal recognition of their status as such and the harms perpetrated against them.
Civilian victims on trial: the adjudication of identity, status and protection
The identification of the victims of acts of violence under adjudication as either civilian or combatant was a central aspect of the D. Milošević case. Ewald argues that an underlying rationale of international criminal justice is the process of ‘constructing “victims”’ (Reference Ewald, Ewald and Turkovic2006, pp. 173, 187). As Ewald suggests, this process of constructing victims works through criminal prosecutions and adjudications during trial proceedings (Reference Ewald, Ewald and Turkovic2006). The charges brought against an accused constitute legal recognition that his or her alleged actions were an act of violence against an individual or collective of persons. They determine that the acts require adjudication by a court of law. How, then, do the legal practices of a trial construct persons as civilian victims of a crime if there is no ‘positive’ definition of a civilian? How are civilian victims recognised as such during trial proceedings?
The victim-witnesses
Developing the legal (non)-definition of civilians, Slaughter and Burke-White argue that civilians should be characterised as ‘individuals who do not choose to engage in armed conflict, who seek only to go about their lives and participate in their communities’ (2002, p. 67). This designation of ‘civilian’ status does not simply relate to individuals who avoid the violence of conflict. Rather, this definitional term identifies those individuals who make an express choice not to engage in hostilities, and instead seek to retain some semblance of ‘normality’ to their lives despite the ever-present threat of violence and victimisation.
By employing Slaughter and Burke-White's definition of ‘civilians’, we can see that many victim-witnesses in the D. Milošević trial understand themselves in this way. During the trial proceedings a number of the victim-witnesses identified themselves as civilians, explicitly stating that they were ‘speaking as a civilian’ during their testimonies.Footnote 45 In this way, these victim-witnesses drew on the legal category of ‘civilian’, as opposed to combatant, and stated that they held this definitional status.
However, while many other victim-witnesses did not explicitly speak of being a civilian, their self-characterisation as such was evident through their portrayal of certain aspects of their appearance or actions. This self-characterisation of being a civilian victim figured in three main ways during the testimonies, each of which has parallels to Slaughter and Burke-White's framing. First, the victim-witnesses emphasised their civilian identity through their informed choice not to participate in military conduct:
Q: ‘Did you know at the time where the ABiH army soldiers were?’
A: ‘No, I didn't know. I wasn't a soldier; I was simply a civilian. And I didn't know where they were.’Footnote 46
Q: ‘Did you sometimes see soldiers pass through Sokolovic Kolonija and Hrasnica?’
A: ‘No. No, no one. Not those soldiers and not those others. I never saw that. I did say that, didn't I? I didn't want to know about those things. God forbid I should have seen anything like that. I never saw a single rifle. There was a war on, but I didn't see anything … I didn't see either army. Please, don't ask me about that. I wasn't interested. I didn't know about that. All I wanted to know about was my children and whether they would make it.’Footnote 47
An important narrative throughout the testimonies of many victim-witnesses was an articulation of their civilian status through an active denial of being a combatant or participating in military conduct. As the examples above illustrate, the victim-witnesses forcefully expressed that there was a distinct separation between their own status as civilians and others who were combatants or members of the military. This separation was understood through the absence of a wish to know any details of military actions or of participating in such activities. In this sense, the victim-witnesses emphasised their civilian status by focusing upon their deliberate choice not to engage in the siege as a combatant or supporting their conduct. These victim-witnesses did not simply remove themselves as far as possible from military operations, but made an informed choice not to engage or have any knowledge of their perpetration.
The second way that the victim-witnesses presented themselves as civilians was by narrating their attempts to maintain a degree of ‘normality’ through the carrying out of tasks necessary to everyday life. As one witness, similarly to many others, illustrates, her presence as a civilian in the conflict rested upon protecting herself and her children:
Q: ‘And now I'm going to be asking you some questions about the day on which you were shot. On the 18th of November, 1994, did you leave the place that you were living in Bistrik?’
A: ‘Yes. I went to my mother-in-law's to collect some firewood.’
Q: ‘Why did you need to go to your mother-in-law's residence in order to collect firewood?’
A: ‘I didn't have firewood at home to make fire for my children.’
Q: ‘Was there any reason connected to the war that you had to go and get firewood? Let me ask a different question. How would you normally cook in your residence during times of peace?’
A: ‘I was using electricity.’
Q: ‘Were you able to use electricity during the armed conflict?’
A: ‘No. It just was there occasionally and then it went off again.’
Q: ‘Did you use the wood that you were going to your mother-in-law's for to cook food with?’
A: ‘Yes.’Footnote 48
This victim-witness presented her experience of the conflict in terms of carrying out actions to facilitate everyday life, such as collecting firewood to cook, despite the obvious risks of travelling through the besieged city. As a civilian, the continuance of everyday life meant protecting her own life and that of others from the harms of the military actions that they chose not to engage in. Notably, this protection of self and others did not figure only as safety from direct harms such as sniping or shelling, but also from indirect harms prevalent during hostilities, such as hunger and an impoverished environment.
Third, as this victim-witness and many others describe, their ‘civilian’ engagement in the conflict was presented and understood as a relational experience of harm or of an ever-present potential harm. Dembour and Haslam point out that witnesses often narrate conflict in terms of other persons, in particular those that they have lost through the hostilities (2004, p. 159). The witnesses portray the experience as a situation shared (and feared) with others, most often family and friends, who lived through the same atmosphere of violence and victimisation:
THE WITNESS: ‘Thank you very much. You know what your job is. Thank you very much for allowing me to get it off my chest, what I have been suffering from, in the name of the children and all other people who suffered. Thank you, and I appreciate this Honourable Court.’Footnote 49
A large number of the testimonies of the civilian victim-witnesses in D. Milošević were not solely directed at portraying their own injuries or experiences. Rather, the relational experience of conflict can be seen through their using the opportunity to testify as a means to speak of the harms of others. The civilian victim-witnesses therefore presented themselves as ‘civilian’ through their informed choice not to participate in hostilities, but also through their lived experiences of conflict as both a structural environment of harm and a relational experience endured by both themselves and others.
The Prosecution
Somewhat surprisingly, the prosecution did not begin by asking the victim-witnesses to identify their status as a civilian during the conflict. Nor did they ask whether they were a combatant or had engaged in military operations. Instead, for each of the victim-witnesses that had been injured, the Prosecution's approach was to adduce a ‘positive’ identification of the victim as a civilian. Following the self-identifications of the victim-witnesses as civilians in line with Slaughter and Burke-White's definition, the Prosecution brought evidence of their ‘civilian’ presence in the conflict and ‘markers’ of their civilian status before the Trial Chamber:
Q: ‘Mr. Witness, how old were you when the war began?’
A: ‘Fourteen.’
Q: ‘Where were you living between August 1994 and November 1995?’
A: ‘In Sarajevo …’
Q: ‘What town were you living in at that time, between August 1994 and November 1995?’
A: ‘Novi Grad.’
Q: ‘Between those dates–again, August 1994 and November 1995–with whom were you living?’
A: ‘With my mother and sister.’
Q: ‘How did you get access to food?’
A: ‘It was difficult.’
Q: ‘Can you explain?’
A: ‘There was a war on. Sarajevo was surrounded. It was difficult to get any food aside from the humanitarian aid that kept arriving.’
Q: ‘And who was responsible for feeding your family?’
A: ‘I, for the most part.’
Q: ‘How did you get water?’
A: ‘That was difficult, too.’
Q: ‘Did you go out of your house to get food and water?’
A: ‘Yes.’
Q: ‘And how was that?’
A: ‘Water came in special water tankers and food came in shipments of humanitarian aid which would then be distributed.’
Q: ‘Was it easy to go out and get food and water?’
A: ‘No, not really.’
Q: ‘Why was that, please?’
A: ‘Shellings were quite frequent and sniping, too. It wasn't really that easy.’Footnote 50
There are no fixed characteristics or actions that can unequivocally ‘prove’ a person's civilian identity. The ‘negative’ definition of civilians established by the rules of humanitarian law as those persons who are not combatants leaves open the means to identify a civilian. However, in D. Milošević, the Prosecution directed the testimonies of the victim-witnesses towards their giving of key ‘markers’ of identity and actions that it considered would represent the victim's identity as a civilian identity. Most commonly, this ‘positive’ mode of identification was constructed through illustrating the young age of the victim, their profession, appearance (typically their clothing) and their actions or behaviour at the time of the incident:
Q: ‘Was the tram crowded?’
A: ‘Yes, it was pretty crowded.’
Q: ‘Can you tell us what you were wearing on that day?’
A: ‘I was wearing a light purple jacket, blue jeans, Adidas tennis shoes, and a green blouse and a green umbrella …’
Q: ‘Madam Witness, how old were you when this incident occurred?’
A: ‘Eighteen, almost 19.’Footnote 51
The Prosecution does not ask the victim-witness to state they were not wearing a uniform or any other typically ‘combatant’ signifier. In this way, the Prosecution does not seek to prove that the victim was not a combatant, but that the victim was in fact a civilian. The ‘positive’ characteristics of the victim are assumed to present the individual as a civilian amid the siege of Sarajevo and as such, not a legitimate target of violence.
The Defence
In contrast, it is notable that the Defence rarely questioned the civilian status of the victim-witnesses that testified at trial, perhaps because the Prosecution only brought victims whose identity was unequivocally ‘civilian’ and unlikely to be the subject of a successful challenge. However, on one of the few occasions that the Defence did raise this challenge to the victim's identity, the allegation was that the victim was not a civilian but a combatant at the time of his injury:
Q: ‘I have to put it again to you. I'm sorry that as a young person, a young man of 15 years of age, you found yourself in the situation with all the rest of the people of Bosnia-Herzegovina. But I'm putting it again to you that, as young as you were, you were a member of the army of Bosnia-Herzegovina. Can you answer this question for me?’
A: ‘You are just putting it to me. And second, I am saying again, and there is verifiable, I was not a member of the army of Bosnia-Herzegovina.’Footnote 52
Carpenter points out that there has been a conceptual construction of military-aged men in armed conflict as ‘potential combatants’ (2006, p. 164). In this instance of a construction of a victim's identity along the combatant–civilian divide, the Defence reflects an empirical example of this nexus between the status of a male civilian (as the Trial Chamber found him to be)Footnote 53 and the possibility that he is a combatant. Reflecting this notion of a ‘potential combatant’, the Defence seeks to challenge the victim's status through his gender and age, and create his personhood and presence in the conflict as ‘ambiguous’ in terms of the principle of distinction. For the Defence, a young male ‘may’ have been a combatant, that is, these gendered attributes of personhood create a greater possibility that he will have chosen to participate in military conduct. It is thus notable that the Defence did not similarly ‘adjudicate’ the identity of females and question their civilian or combatant status. In this way, the Defence reiterates the traditional framing of gender relations of conflict where it is ‘men who make war’, whilst women stay at home with the children (Cockburn, Reference Cockburn2001, pp. 19–20). This understanding of civilians and combatants does not take into account that male civilians are often the express targets of victimisation, as the Srebrenica genocide so poignantly exemplifies, nor that women are increasingly ‘choosing to enter, or being enlisted in, national armies’ (p. 20).
This conceptual construction of the witness as a potential combatant also illustrates a lack of adherence to the legal terms of identifying a civilian. The ‘generally accepted practice is that combatants distinguish themselves by wearing uniforms, or at the least, a distinctive sign, and by carrying their weapons openly’.Footnote 54 However, in their argument that this male civilian was in fact a combatant, the Defence did not allege that he was wearing a uniform, an insignia or carrying a weapon. This allegation does not appear to have any substantive basis, either from the testimony given by the witness or that of other witnesses. There is no evidence that this victim had been a combatant or had any military connections. Rather, the Defence's proposition appears to have arisen solely from the (male) gender of the victim and his (young) age. Contrary to the ‘negative’ definition of civilians held by the rules of humanitarian law, this Defence argument suggests that the lack of obvious ‘markers’ of civilian or combatant status held by this victim creates the possibility that he was a combatant. In this way, the Defence suggests that civilians must present themselves as distinct from combatants. However, as young male civilians cannot remove themselves from traditional combatant markers of identity, the Defence's contentions in D. Milošević suggest that the status of this category of persons will always be a matter of particular dispute in both the practice of conflict and the legal adjudication of its conduct.
The Trial Chamber
In the D. Milošević judgment, the Trial Chamber sets out its determination of whether the victim was a civilian or a combatant for each incident of sniping. For each victim, the Trial Chamber reiterates the Prosecution's ‘positive’ markers of civilian identity, namely their age, ‘civilian’ clothing and actions, and the Defence's challenge (if any) to this identification. In the overwhelming majority of the cases of sniping, the Trial Chamber does not raise any issues over the identification of the victim and simply declares the victim a civilian and, as such, a civilian victim of a crime alleged against the accused.
However, the Trial Chamber looks to further evidence of the victims’ appearance and actions to corroborate their civilian status. For example, it emphasises that the clothes worn by one victim ‘would have enabled the shooter to identify her as a civilian’ as ‘the colours would have been visible with optics mounted on the rifle’.Footnote 55 It is now considered customary law that in ‘case of doubt whether a person is a civilian, that person shall be considered a civilian’.Footnote 56 However, in the small number of incidents where the civilian identity of the victim was called into question, the Trial Chamber does not appear to fully adhere to this principle. In D. Milošević there is no evidence that any of the victims were wearing a uniform, an insignia or carrying weapons at the time of their injury, as the terms of API require a combatant to do. Following the ‘negative’ defining of civilians, there are no indications that any of the victims were combatants, but were civilians. By drawing attention to the victim's clothing, the Trial Chamber (similarly to the Defence) appears to place a further requirement for civilians to distinguish themselves as such through their portrayal of a ‘civilian’ appearance and actions. In this way, the onus of combatants alone to distinguish themselves during conflict is broadened to a similar need for civilians to do likewise. Such a requirement appears particularly problematical, for, as argued above, in evidential terms there are no definitive ‘markers’ of civilian identity. There are no definitive means for civilians to protect themselves from being attributed combatant status, either by the military or by a court of law.
The legal recognition of civilian victims
Using D. Milošević as a case-study, this article has explored the construction of the legal recognition of civilians through the rules and practices of international criminal justice. It examined the conceptual models of civilians utilised by the victim-witnesses themselves, and by the Prosecution, the Defence and the Trial Chamber. This case illustrates that the parties to the trial do not employ a singular or consolidated approach to the process of constructing the legal recognition of individual civilians and their status as such. Rather, they each utilise different frameworks of identity construction to ‘adjudicate’ the status of the victims that come before the court.
The different approaches employed by the parties to the D. Milošević trial are important for highlighting two key difficulties with the contemporary construction of the legal category and concept of the civilian victim. First, analysis of the D. Milošević case suggests that the ‘negative’ definition of civilians has significant substantive and conceptual implications for the legal adjudication of the civilian status of victims of conflict. Most importantly, the conceptual framing of civilians as persons who are not combatants fails to attribute a distinct identity or ‘markers’ of identity to this category of persons. There are no standard means for the parties to a trial to prove or disprove the civilian status of an individual. For this reason, the process of legally recognising and defining persons in situations of conflict rests upon an interpretation of their nexus to the military. Whether by military personnel or the adjudicatory processes of a court of law, the assessment of a person's status focuses on whether they are or are not a combatant, rather than whether they are or are not a civilian. The consequence of this process, as D. Milošević highlights, is that social characteristics such as gender and age are drawn upon and become influential during the legal practices that work to recognise persons as civilian victims of conflict. For example, there is a conceptual conflation of certain social groups of persons, such as young males, with combatant status, which leads to particular scrutiny of their identity and actions (Carpenter, Reference Carpenter2006). The implication of such nexus may be the failure for certain civilians to find legal recognition as such through the practices and procedures of the law. Without that legal recognition, the courts cannot necessarily enforce their legal protections nor redress instances of their breach.
Second, if the legal rules of humanitarian law fail to conceptually construct civilians as a category of persons with a distinct identity, they also fail to recognise the agency of such persons in terms of their choices and actions during situations of conflict. Helen Kinsella points out that since its earliest manifestations, the civilian has been seen ‘as an “innocent” and as a “protected person”’ rather than an agent (Reference Kinsella, Barnett and Duvall2006, p. 257). In legal terms, there is no conception of civilians as agentic persons who actively seek to act as civilians, and not as combatants, during a situation of conflict. While this category of persons undoubtedly requires protection and assistance, this conception of ‘innocent’ or ‘passive’ civilians does not align with the reality of the agentic qualities of their choices and actions. As the victim-witnesses referred to above describe, the very basis of their self-characterisation as civilians was their informed choice not to participate in the hostilities and the active struggle to maintain normal lives for themselves and others. It was this agency of choosing to be a civilian rather than a combatant that shaped and gave meaning to their experience of the siege. There was not a perception of being a ‘passive’ participant or ‘non-combatant’, but of actively enacting and retaining their civilian status through informed choices and actions.
Conclusion
While the international community has increasingly focused on the protection of civilians in situations of conflict, little attention has been paid to the legal practices that work to recognise civilians as victims of the crimes of war. In cases such as D. Milošević, the status of the victims as civilian is an integral aspect of the case and its adjudication at trial. Victim-witnesses came before the court not only to provide evidence in relation to the actions of the accused, but also to testify to their civilian status at the time of the commission of the crime. Without proof that the victims were civilians and not combatants, the Trial Chamber cannot find the accused guilty of the crimes alleged nor affirm that his or her conduct was the cause of such fatalities and injuries.
However, the substantive and conceptual difficulties with the construction of the legal recognition of the civilian victims of conflict indicate that it is necessary to reconsider the legal category and concept of the civilian. This analysis suggests that the current ‘negative’ legal definition of civilians does not adequately attribute a distinct identity to civilians as a category of persons present in situations of conflict. There is no conception of ‘who’ a civilian may be, nor any understanding of typical markers or features that could identify such persons. As has been shown above, this lack of identity causes particular difficulties for legally constructing recognition of civilians during trial practices.
For this reason, it appears that it is necessary to further analyse and explore the concept and category of the civilian. In particular, it is important to begin to develop a ‘positive’ definition of civilians that better reflects their role, choices, actions and experiences of conflict. This definition requires reconceptualising civilians as a category of persons with a distinct ‘positive’ identity, without nexus to combatants or the military. As noted above, Slaughter and Burke-White describe civilians as ‘individuals who do not choose to engage in armed conflict, who seek only to go about their lives and participate in their communities’ (2002, p. 67). Civilians are therefore agentic persons; they choose not to participate in conflict as part of the military, or know of the nature of its conduct. However, although this choice not to participate in the military conduct of a conflict reflects one aspect of the actions and agency of civilians, this definition of civilians remains in the ‘negative’ and so does not overcome the definitional nexus to the military.
If one aspect of the identity of civilians is their choice not to participate in conflict, then the D. Milošević case shows us that the other main factor defining this status is their active struggle to maintain a normal life amid the violence. Similarly, an expert witness in another ICTY case, Prosecutor v. Momčilo Perišić, describes that civilians can be identified through their attempts ‘to just get on with normal life’.Footnote 57 It is this maintenance of normal life, as far as it is possible in a conflict, that was referred to by civilian victim-witnesses through their carrying out of actions such as cooking and collecting firewood. These actions display their agency in protecting themselves and others from the harms of a conflict. However, there are difficulties with numerating specific actions that can definitively ‘prove’ civilian status. For this reason, a definition or identification of civilians through their attempts to maintain their normal lives must necessarily be contextual. Whether by the military or a court of law, the interpretation of civilian status through the actions of persons must always take account of the particular features of the environment, of the presence of systematic violence such as shelling and sniping, for example, as well as the overall context of the conflict. An interpretation of ‘normal life’ has to consider the different means that a civilian may utilise to protect themselves and others from forms of both direct and indirect violence.
Therefore, if a contextual notion of the maintenance of normal life as an aspect of the presence and participation of civilians is conceptually and analytically prioritised, the definition of civilians put forward by Slaughter and Burke-White can be reformulated to ‘civilians are individuals who choose to maintain their normal lives and participate in their communities’. As such, this reformulation constructs a ‘positive’ definition which provides a means of understanding and identifying civilians as a category of persons in their own terms. This definition overcomes the reliance of conceptualising or identifying civilians only in relation to their lack of a connection with the military. It conceptually prioritises the agency of civilians in choosing to maintain their normal lives and protect themselves and others. This reworked ‘positive’ definition therefore conceptualises civilians as a distinct category of persons through the nature of their choices and actions.
This new ‘positive’ definition also enables us to reconsider how the process of legally recognising civilians could be undertaken during trial proceedings. First, this positive definition of civilians can be used to begin to develop a framework through which the parties to a trial could recognise persons as civilians. It can work to frame definitional qualities of a civilian in the same manner as wearing a uniform, an insignia and carrying arms openly, are specified as ‘markers’ of combatant identity. As noted above, the designation of persons as combatants rests on the nature of their choices and actions, namely, whether they are directly participating in the hostilities. The development of a framework through which to identify civilians can therefore begin with the identification of choices and actions that signify persons who are attempting to maintain their normal lives and participate in their communities. For example, tasks such as cooking, shopping or carrying water to homes are all ‘markers’ of civilians trying to maintain a normal life. Although as Palmer-Fernandez points out, there will always be ‘grey areas’, of persons whose actions may not be easily distinguishable as ‘civilian’ or ‘combatant’ (Reference Palmer-Fernandez and Chadwick1998, p. 515), the development of a framework of actions understood as markers of civilian identity shifts the focus of trial proceedings away from notions of what a combatant would not be or do, to a conception of who a civilian is through their choices and actions. It would work to frame an account of ‘positive’ markers of civilian identity that could be used as evidence at trial to support the ‘adjudication’ of the identity of such persons.
Second, then, this framework of civilian choices and actions can be used to develop a standard and consistent basis through which the parties to a trial can approach the process of legally recognising persons as civilians. There is no standard legal practice for approaching the task of identifying persons as civilians. Rather, the parties to a trial utilise different approaches, and often evoke notions of social characteristics such as age or gender to either substantiate or exclude persons from having a civilian status. However, by developing a positive definition of a civilian and a framework of actions that works to identify such persons, there can be a subsequent development of a standard basis through which to adjudicate the identity of persons as civilians. This standard basis of identifying persons would not start with an assumption that a person was or could be a combatant, such as through their being a young male for example, but instead would begin with ascertaining whether the person displayed choices or actions of being a civilian as outlined above. This new legal practice could therefore work to overcome the problematic use of evoking social characteristics to infer that certain groups are more likely to be combatants, or conversely more likely to not hold that status. It could provide a new legal framework that enables all civilians to be equally defined and identified as civilian victims of acts of harm during conflict.
The legal recognition of the civilian victims of armed conflict is an important issue of contemporary concern. The role of international criminal justice institutions in adjudicating the identity of this category of persons is central to this process. However, the D. Milošević case shows that there are significant difficulties with the construction of the legal recognition of civilian victims when acts of victimisation come to trial. Although the challenges of recognising civilians through a legal framework will continue, it is suggested that reformulating the category and concept of civilians can go some way towards addressing these difficulties.
