The Legal Regulation of Crimes against POWs: A Comparative Analysis of the

International Criminal Tribunal for the former Yugoslavia and the Bosnian War Crimes

Chamber

Claire Garbett1

Goldsmiths, University of London

Introduction

During the conflicts in the former Yugoslavia much media attention focused on the men (and

women) being held by armed groups in prison camps and detention facilities. Images of men

imprisoned behind barbed wired and living in deplorable conditions was a central aspect of this

media coverage. While the men at the centre of these images were identified as being both

civilians and military personnel at the time of their capture, the influential Bassiouni Report

confirms that military personnel were held in large numbers in prison camps.2 The Bassiouni

Report describes that there was a ‘large number of purposeful and indiscriminate killings . . .

committed against civilians and prisoners of war, both inside and outside of detention facilities’.3

Although the prevalence and patterns of the unlawful treatment of prisoners of war varied

between the camps established by the different parties to the conflict, the Bassiouni Report

determines that ‘military personnel were targeted for destruction’ as a category of persons.4

This short article examines the legal representation of POWs as the victims of unlawful

killing during the Yugoslavian conflicts. Specifically, it explores the legal regulation of crimes

1
London-Based Project Co-ordinator and Researcher, ‘Bosnian Bones, Spanish Ghosts: ‘Transitional
Justice’ and the Legal Shaping of Memory after Two Modern Conflicts’, ERC funded project with Sari
Wastell as Principle Investigator.
2
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780
(1992), UN Doc. S/1994/674 (1994) [hereinafter ‘Bassiouni Report’]. After a re-organisation of the
Commission due to the resignation of the first Chairman, Fritz Kalshoven, M. Cherif Bassiouni acted as
the Chairman of the Commission until completion of its work. The Commission was established by UN
Security Council Resolution 780 (1992) to examine and analyse information on the evidence of violations
of international humanitarian law committed on the territory of the former Yugoslavia. The Bassiouni
Report is commonly understood to be an influential account of the crimes of the Yugoslavian conflict. For
discussion see W.J. Fenrick, ‘In the Field with the UNCOE: Investigating Atrocities in the Territory of the
Former Yugoslavia,’ Military Law and Law of War Review 34 (1995): 33-72.
3
Bassiouni Report (1994), Part III (B).
4
Bassiouni Report (1994), Part IV (A) (6).

1
committed against this category of persons, and how POW victims of unlawful killing appear

within the different categories of cases heard by the International Criminal Tribunal for the former

Yugoslavia (ICTY) and the War Crimes Chamber of Bosnia and Herzegovina (BWCC).5 As I

have argued elsewhere, few cases heard by the ICTY involve the unlawful killing of POWs.6 To

date, however, there have been no similar analyses of cases involving POWs as victims heard

by the BWCC. Nor have there been any comparative analyses that consider the legal regulation

of this form of criminal conduct by these different mechanisms of criminal justice that both work

to found accountability for crimes committed during the conflict. In order to begin to address

these gaps, this paper examines the completed cases heard by these institutions that involve the

unlawful killing of POWs to consider the patterns of prosecution of each of these institutions, and

their similarities and differences. The ICTY has tried, or is in the process of trying, the highest-

level accused charged with violations of humanitarian law committed during the conflict. In

contrast, with a few exceptions, the BWCC has tried ‘less complex’ cases involving ‘suspects at

lower levels of the military, police or political hierarchy’.7 This analysis suggests that there is an

emerging problem of cases involving POWs as the victims of unlawful killing being represented

as ‘less serious’ cases than those involving other categories of victims.

Background: The ICTY and BWCC

Established while the conflict was still ongoing in the former Yugoslavia, the mandate of the

ICTY is to ‘bring to justice those responsible for serious violations of international humanitarian

law committed in the former Yugoslavia since 1991 and thus contribute to the restoration and

5
This paper follows Kirsten Campbell’s methodological approach of analysing patterns in cases and
counts. It analyses cases where the status of the victims as POWs is clearly defined in the counts of the
final indictment brought against the accused, and the charges relate to the unlawful killing of these
persons. As such, it does not include cases that refer broadly to military personnel, or POWs, as the
victims of the conflict situation but does not specify these categories of persons or the crimes allegedly
perpetrated against them within the counts of the final indictment. Kirsten Campbell, ‘The Gender of
Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the former
Yugoslavia,’ The International Journal of Transitional Justice 1 (2007): 411-432.
6
Claire Garbett, ‘The Legal Representation of the Civilian and Military Casualties of Contemporary
Conflicts: Unlawful Victimisation, its Victims and their Visibility at the ICTY,’ The International Journal of
Human Rights, 16 (2012): 1059-1077.
7
Bogdan Ivanišević, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic
Court (New York: International Center for Transitional Justice, 2008), 10.

2
maintenance of peace in the region’.8 This ad hoc tribunal has authority to prosecute and try

individuals on four categories of offences: grave breaches of the 1949 Geneva Conventions,

violations of the laws or customs of war, genocide and crimes against humanity.9 The ICTY has

indicted 161 persons for such violations and completed proceedings for 113 persons to date.10

As part of its ‘completion strategy,’11 the ICTY has transferred 13 persons to national courts in

the region for adjudication of their alleged crimes. Through its trial adjudications, the ICTY has

proven beyond reasonable doubt that the mass killings at Srebrenica was genocide, that the

Bosnian Serb forces inflicted ‘terror’ against the civilian population of Sarajevo through a

campaign of sniping and shelling and of the perpetration of mass killings of civilians and POWs

and other methods of persecution within the notorious camps of Omarska, Keraterm and Foča,

amongst others.

In contrast to the ICTY, the BWCC figures as a permanent mechanism of criminal justice

for founding accountability of the perpetrators of violations of humanitarian law during the

conflict. Formally opened in 2005, the BWCC comprises Section I of the Court of Bosnia and

Herzegovina. It hears cases brought by the Special Department for War Crimes of the

Prosecutor’s Office of BiH (Special Department) relating to war crimes committed on the territory

of Bosnia and Herzegovina during the armed conflict from 1992 until 1995.12 Of the courts in BiH

that try war crimes cases, the BWCC has heard the greatest number of cases to date, and

received the highest number of transfer cases from the ICTY (all of which are now completed).13

In similarity to the ICTY, it holds jurisdiction over war crimes, crimes against humanity and

genocide as set out in the Criminal Code of Bosnia and Herzegovina. Over time, a ‘horizontal

8
ICTY, ‘Mandate and Jurisdiction,’ http://www.icty.org/sid/320 (accessed 1 February 2012).
9
Ibid.
10
Information correct as of 1 February 2012.
11
Since 2003, the ICTY has been urged by the UN Security Council to initiate measures to allow for its
closure. As part of these measures, the ICTY has worked to develop the capacity of regional courts in the
former Yugoslavia and to transfer lower and intermediate accused to them. See, ICTY, ‘Capacity Building,’
http://www.icty.org/sections/Outreach/CapacityBuilding (accessed 1 February 2012).
12
For the activities of the Special Department for War Crimes see
http://www.tuzilastvobih.gov.ba/?opcija=sadrzaj&kat=2&id=4&jezik=e (accessed 1 February 2012).
13
Organisation for Security and Co-operation in Europe, Delivering Justice in Bosnia and Herzegovina: An
Overview of War Crimes Processing from 2005 to 2010 (Sarajevo: OSCE Mission to Bosnia and
Herzegovina, 2011), 99. The Organisation for Security and Co-operation in Europe (OSCE) Report refers
to the completion of 50 war crimes cases by the Court of BiH from January 2005 until September 2010, 22
cases by the Republika Srpska, 48 cases by the Federation of BiH and 3 cases by the Brčko District.

3
working relationship’ has been developed between the BWCC and the ICTY.14 In particular,

there has been the establishment of links between the courts on issues such as the access and

transfer of public and confidential materials and information, specific case files, certification

issues of evidence and organising video links with protected witnesses.15 While concerns have

been raised as to the types of cases being indicted by the Special Department,16 the BWCC has

been praised for bringing a significant number of cases to adjudication and judgement, and for

its timely processing of war crimes cases.17

The Legal Regulation of Crimes Committed against POWs

The rules of international humanitarian law prohibit the intentional and deliberate killing of both

civilians and prisoners of war (POWs). Hayashi points out that ‘international humanitarian law

calls upon individual combatants to determine the legal status of their opponents and direct their

military activities accordingly’.18 During the conduct of armed conflict, that legal status of the

potential targets of military action figures as either civilian or combatant (military personnel).19

Civilians are all persons who are not combatants. This category of persons is ‘not allowed to

participate actively in the fighting; if they do, they lose their status as civilians’.20 In turn, civilians

may not be the object of an intentional direct attack – military operations should be directed

solely against military objectives.21 In contrast, military personnel are permitted to take a direct

part in hostilities and, as such, they may be attacked. 22 However, the rules relating to the

14
Alejandro Chehtman, ‘Developing Bosnia and Herzegovina’s Capacity to Process War Crimes Cases:
Critical Notes on a “Success Story,”’ 9 Journal of International Criminal Justice 9 (2011): 570.
15
Ibid., 558.
16
Claire Garbett, ‘Transitional Justice and “National Ownership”: An Assessment of the Institutional
Development of the War Crimes Chamber of Bosnia and Herzegovina,’ Human Rights Review (2012) DOI
10.1007/s12142-011-0209-8; David Schwendiman, ‘Prosecuting Atrocity Crimes in National Courts:
Looking Back on 2009 in Bosnia and Herzegovina,’ Northwestern Journal of International Human Rights 8
(2010): 269-300.
17
Tarik Abdulhak, ‘Building Sustainable Capacities – From an International Tribunal to a Domestic War
Crimes Chamber for Bosnia and Herzegovina,’ Criminal Law Forum 9 (2009): 333-358; Chehtman, supra
n 13.
18
Nobu Hayashi, ‘The Role of Judges in Identifying the Status of Combatants,’ Acta Societatis Martensis
2 (2006): 69.
19
Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge:
Cambridge University Press, 2004).
20
Ibid., 27.
21
Ibid., 115.
22 nd
A.P.V. Rogers, Law on the Battlefield 2 ed (Manchester: Manchester University Press, 2004), 8.

4
legitimate attack of military personnel do not allow for such an attack in all situations and

circumstances during a conflict situation. The rules of humanitarian law determine that military

personnel are afforded the status of POW when they fall into the hands of the adversary during

an international armed conflict, most typically, upon their surrender to the enemy or through their

capture by opposing forces.23 As Rogers describes, the ‘general rule is that members of the

enemy armed forces, other than medical personnel and chaplains, are entitled to prisoner-of-war

status on capture’.24

Prisoners of war thus constitute a category of ‘protected persons’ under the rules of

international humanitarian law. 25 Formal provisions on POWs are primarily regulated by the

Hague Regulations of 1899 and 1907, the 1929 Geneva Conventions Relative to the Treatment

of Prisoners of War, Geneva Convention III of 1949 and Additional Protocol I, and are limited to

international armed conflicts.26 The protection and humane treatment of prisoners of war ‘is

rooted in the realization that captured combatants no longer pose any threat to the lives of the

persons that capture them nor to their army’.27 Broadly put, POWs ‘cannot be killed, used as

human shields, held hostage, or used to clear landmines’ during the course of an international

armed conflict.28 They ‘should be protected against acts of violence or intimidations and against

insults and public curiosity’.29 Measures of reprisals against prisoners of war are prohibited.30

These particular acts of violence are prohibited against this particular category of persons within

an international armed conflict. As such, these acts constitute crimes of war that may be subject

to the legal processes of accountability mechanisms of criminal justice. In the case of the conflict

in the former Yugoslavia, these mechanisms include the ICTY and the BWCC, alongside the

other regional courts of Bosnia and Herzegovina (BiH), Croatia, Serbia and Montenegro.

23
Horst Fischer, ‘The Protection of Prisoners of War,’ in The Handbook of Humanitarian Law in Armed
Conflicts, ed. Dieter Fleck (Oxford: Oxford University Press, 1995), 321.
24
Rogers, supra n 21 at 52.
25 nd
Marco Sassoli and Antoine Bouvier, How Does Law Protect in War? 2 ed (Geneva: International
Committee of the Red Cross, 2006).
26
Natalino Ronzitti, ‘Prisoners of War,’ in The Oxford Companion to International Criminal Justice, ed.
Antonio Cassese (Oxford: Oxford University Press, 2009).
27
Fischer, supra n 22 at 321.
28
Michael Byers, War Law (London: Atlantic Books, 2005), 127. There are no formal provisions on POWs
for non-international armed conflicts. Ronzitti, supra n 26 at 47.
29
1949 Geneva Convention III Relative to the Treatment of Prisoners of War, Article 13 [hereinafter ‘GC
III’].
30
GC III, Article 13.

5
The BWCC and the ICTY: Categories of Crimes involving POWs

The Criminal Code of Bosnia and Herzegovina (CC BiH) contains a specific category of crimes

involving prisoners of war as its victims. Article 175 of the CC BiH, ‘War Crimes against

Prisoners of War’, establishes that:

Whoever, in violation of the rules of international law, orders or perpetrates in

regard to prisoners of war any of the following acts:

a) Depriving another persons of their life (murders), intentional infliction of

severe physical or mental pain or suffering upon persons (tortures), inhuman
treatment, including therein biological, medical or other scientific experiments,
taking of tissue or organs for the purpose of transplantation;
b) Causing of great suffering or serious injury to bodily integrity or health;
c) Compulsive enlistment into the armed forces of an enemy power, or
deprivation of the right to a fair and impartial trial,

shall be punished by imprisonment for a term not less than ten years or long-
term imprisonment.

While crimes committed against POWs do not fall under the categories of ‘War Crimes against

Civilians’ (Article 173) or ‘Crimes against Humanity’ (Article 172),31 they can be charged as

evidence of the perpetration of Genocide in accordance with Article 171 of the CC BiH.

In contrast, the ICTY does not contain a similar category of crimes focusing specifically

on POWs as their victims. Rather, crimes committed against POWs can be charged through the

Statute of the ICTY as Grave Breaches of the Geneva Conventions 1949 (Article 2), Violations

of the Laws or Customs of War (Article 3), or as Genocide (Article 4).32

The question of whether the victims of the events under adjudication were POWs at the

time of their perpetration has been the subject of factual debate in relation to cases heard by the

ICTY. For example, the Prosecutor v. Mile Mrksic et al case concerns allegations that the three

accused acted together to achieve the murder and mistreatment of prisoners of war from the

Vukovar hospital in November 1991.33 Although the status of these victims was the subject of

31
It should be noted that it is a matter of ongoing jurisprudential debate as to whether crimes against
humanity can include POWs as well as civilians as the victims of the crime. Antonio Cassese, International
Criminal Law (Oxford: Oxford University Press, 2003).
32
Ibid.
33
See The Prosecutor v. Mile Mrkšić et al, IT-95-13/1. Case Information Sheet.

6
contestation, the Trial Chamber found that they were POWs at the time of their violation due to

their status as members of the Croat forces. However, as commentators point out, this finding

appears problematic as the Trial Chamber did not clarify whether the conflict at that time was of

an international character.34 As Pinzauti points out, ‘the holding that the captured Croats enjoyed

POW status appears somewhat simplistic, given the Trial Chamber’s failure to characterize the

nature of the conflict in Croatia’.35 That holding appears problematic as there is no POW status

in non-international armed conflicts.

Cases involving Crimes against POWs

The ICTY

As of 1 February 2012, the ICTY has completed proceedings in 49 cases. Of these cases, 6

include charges that involve POWs as the victims of unlawful killing.36 While these cases all

involve POWs, their indictments and judgements variously describe the victims as POWs,

‘captured soldiers’, ‘surrendered soldiers’ and ‘imprisoned soldiers’. Four of these cases involve

HVO soldiers, that is, members of the Croat Defense Council as the victims of the events under

adjudication, and two cases involve Bosniak military personnel as the victims of the accused.

The BWCC

To date, the BWCC has completed proceedings in 81 cases through the rendering of a Final

Verdict. Of these, nine cases completed by the BWCC involve charges of ‘War Crimes against

Prisoners of War’ as either the sole basis of the indictment, or in conjunction with other charges.

Of these cases, seven involve charges relating to the unlawful killing of POWs with the other

cases involving other acts of violence committed against this category of persons in

34
Giulia Pinzauti, ‘Protecting Prisoners of War: The Mrkšić et al. Appeal Judgement,’ Journal of
International Criminal Justice 8 (2010): 199-219.
35
Ibid., 204.
36
It should be noted that other cases heard by the ICTY include charges involving other acts committed
against POWs, for example, of torture or inhumane treatment.

7
contravention of the Bosnian Criminal Code. These seven cases charge the accused with the

unlawful killing of members of the parties to the conflict, including the Army of Republic of BiH,

the Army of the Serb Republic of BiH, the Croat Defense Council and the Army of Srpska

Krajina.

A further six cases that involve charges of genocide also include acts of the unlawful

killing of POWs. These cases all involve the unlawful killing of Bosniak male persons, both

civilians and prisoners of war, during the events of Srebrenica. Several of these cases involve

multiple accused charged with these crimes. Overall then, 13 cases completed by the BWCC

include charges of the unlawful killing of POWs.

Patterns of Prosecution: The Legal Representation of the ‘Serious Offences’ and the

‘Most Serious Crimes’ of the Conflict

In its capacity as a judicial accountability mechanism of international criminal justice, the ICTY

focuses upon the most serious crimes and highest-level criminals of the conflict. In order to

obtain the necessary evidence to try these high-level accused, the Office of the Prosecutor

(‘OTP’) of the ICTY has followed a distinct ‘pyramidal’ approach to its investigations and

prosecutions. The OTP began by ‘starting at the bottom, in other words, with crime base

evidence and lower-ranking persons who actually committed or ordered the crimes’.37 As Carla

Del Ponte, former Chief Prosecutor of the ICTY points out, the early cases generally concern

‘persons holding higher levels of responsibility for physically committing exceptionally brutal or

otherwise serious offences’.38 These cases are typically characterised as ‘camp’ cases as they

involve crimes committed within prison camps or detention facilities against civilians or POWs.39

Once sufficient evidence was obtained to indict higher-level accused, the investigators then

‘began working up the pyramid to the persons who could be regarded as the most responsible

37
See ICTY, ‘Investigations’, http://www.icty.org/sid/97#investigationsstrategy (accessed 1 February
2012).
38
Carla Del Ponte, ‘Investigation and Prosecution of Large-Scale Crimes at the International Level: The
Experience of the ICTY,’ Journal of International Criminal Justice 4 (2006): 542.
39
Interview with a staff member of the Office of the Prosecutor of the ICTY, 28 June 2006. Semi-
structured interview conducted at the ICTY, The Hague, The Netherlands.

8
for the crimes’. 40 These later cases involve ‘very high-level persons suspected of being

responsible for the most serious crimes’.41 They focus on persons who are alleged to ‘have

ordered, planned, implemented or facilitated key parts of a common scheme, strategy or plan’ in

the commission of the crimes.42 These cases are typically defined as the ‘ethnic cleansing’ and

genocide cases that have been, or are in the process of being, brought to legal adjudication and

judgement.

Cases heard by the BWCC have, therefore, been characterized as ‘less complex’ cases

than those heard by the ICTY.43 The BWCC will not try the highest level accused as they have

been heard, or are in the process of being heard, by the ICTY. The prosecutorial policies of the

Special Department that guide the cases that come before the BWCC are set out in the National

War Crimes Strategy of Bosnia and Herzegovina of 2008 (‘Strategy’). The Strategy determines

that ‘the most complex and top priority cases’ should be prosecuted within 7 years (so by 2015)

and other war crimes cases within 15 years (so by 2023). 44 It describes that the Special

Department will analyse the gravity of the offences to determine whether cases will be heard by

the Court of BiH, or the district and cantonal courts of the Republika Srpska and the Federation

of BiH, respectively. The Court of BiH will hear cases of genocide, crimes against humanity and

war crimes that involve ‘mass killings’, ‘severe forms of rape’, ‘serious forms of torture’ as well as

persecution and other offences.45

In this sense, it can be seen that there are four ‘ranked’ levels of cases heard by the

ICTY and BWCC. If we use the analogy of the ‘pyramid’ structure employed by the OTP of the

ICTY to understand the ‘ranking’ of the seriousness of the cases of both these institutions

overall, the BWCC’s cases will figure below those of the ICTY. The first ‘rank’ of cases, those at

the top of the pyramid structure, are the genocide and ethnic cleansing cases of the ICTY that

try the highest-level accused, with the second ‘rank’ being its camp cases. As the BWCC

40
ICTY, Investigations, supra n 36.
41
Carla Del Ponte, ‘The Role of International Criminal Prosecutions in Reconstructing Divided
Communities,’ (2003) Public Lecture at the London School of Economics, 20 October 2003.
42
ICTY, Investigations, supra n 36.
43
Ivanišević, supra n 6.
44
National War Crimes Strategy, 2008.
45
Annex A, National War Crimes Strategy, 2008. It should be noted that concern has been raised as to
whether the Special Department is effectively concentrating on cases that can be characterised as the
‘most complex and top priority’ cases of BiH. For further discussion see Garbett, supra n 15;
Schwendiman, supra n 15.

9
generally hears cases involving lower-level accused than the ICTY, the third rank is its ‘most

complex and top priority’ cases and then, on the bottom level of the pyramid, the final rank is the

‘other’ war crimes cases it will hear in the years to come.46

How, then, do crimes committed against POWs figure within these ‘ranks’ of cases heard

by the ICTY and BWCC? Where do these cases fall within the overall pyramid structure of the

ICTY and BWCC’s prosecutions? The patterns in the prosecutions of the ICTY and BWCC

suggest that cases involving POWs are being represented as ‘less serious’ cases. These

patterns suggest that the BWCC will hear the majority of these cases, and not the ICTY. Firstly,

the number of cases involving the unlawful killing of POWs appears low when viewed in relation

to the total number of cases heard by these institutions. Together, the ICTY and BWCC have

heard 19 cases involving this category of victims, out of a total of 130 completed cases. As such,

only 14.6 percent of the completed cases heard by these institutions of criminal justice for the

former Yugoslavia involve the unlawful killing of POWs.

The second notable pattern in the prosecutions is that the ICTY has heard far fewer

cases involving POWs as the victims of unlawful killing than the BWCC, as seen below in

Figures 1 and 2. Six cases heard by the ICTY involve POWs as the victims of this offence, while

13 cases including these charges have been completed by the BWCC. The BWCC has,

therefore, heard more than double the number of such cases than the ICTY. When viewed in

terms of the percentage of cases at each respective institution, it can be seen that 16 percent of

the BWCC’s completed cases involve charges of the unlawful killing of POWs, as opposed to 12

percent of the ICTY’s completed cases.

46
It should be noted that other cases involving crimes committed against both civilians and prisoners of
war will be heard by the district and cantonal courts of BiH.

10
Figure 1: Victims in ICTY Cases Figure 2: Victims in BWCC Cases

The third, and perhaps most significant, pattern in the prosecutions of this offence is that the

BWCC has heard the majority of cases involving the unlawful killing of POWs. As noted above, a

total of 19 cases that involve this offence have been heard by these institutions. The ICTY has

heard 6 of these cases, while the BWCC has heard 13 cases. As seen below in Figure 3, this

translates to the ICTY hearing approximately a third of the cases involving the unlawful killing of

POWs, while the BWCC has heard two-thirds of the cases involving this offence:

Figure 3: Cases involving the Unlawful Killing of POWs

11
If we consider the context of the cases, the patterns in the prosecutions show that the cases

heard by the ICTY that involve this offence and category of victims are predominantly ‘camp’

cases. The six cases that have been completed by the ICTY involving POW as the victims of

unlawful killing were indicted in 1995 (two cases), 1998, 2001 (two cases) and 2005. Combining

qualitative analysis of the nature of the context of these cases (as set out in the indictments and

judgements) with the time of their indictment shows that three of these cases can be understood

to be ‘camp’ cases, with a further two cases involving features of a ‘camp’ case in that the

victims were held in detention facilities by the accused alongside other acts. As seen below in

Figure 4, five cases, that is 83 percent of the ICTY cases involving the unlawful killing of POWs,

can be understood to be ‘camp’ cases:

Figure 4: Status of Cases at the ICTY

As such, if we follow the narratives of Del Ponte and the ICTY more broadly, these five ‘camp’

cases involving POWs as the victims of unlawful killing can be broadly characterised as cases

involving ‘less serious crimes’. They are conceptualised as involving crimes of a less serious

nature, on the second ‘rank’ of the pyramid structure of prosecutions, in comparison to the

crimes of the ethnic cleansing and genocide cases.

These significant patterns in the prosecutions indicate that there is an emerging problem

of cases involving POWs appearing most frequently as those cases characterised as ‘less

12
complex’ cases heard by the BWCC rather than the higher-level cases heard by the ICTY. It

shows that at the ICTY, this offence falls most often within its camp cases, and not those

involving genocide or ethnic cleansing. Given the pyramid structure of prosecutions adopted by

the ICTY this is a pattern of prosecutions that will have ongoing significance for the

representation of the ‘seriousness’ of this type of case. It is probable that few further cases

involving POWs as the victims will come to completion by the ICTY, as its remaining cases are

predominantly ‘ethnic cleansing’ cases which do not typically include such charges.47 As such,

the proportion of ICTY involving such charges will not vastly increase, but may well decrease.

The unlawful killing of POWs will not, therefore, figure as a key aspect of the ICTY’s cases and

counts.

In contrast, however, the patterns in the prosecution of the BWCC’s cases suggest that it

will go on to hear a significant number of cases involving this charge. There are a number of

cases under indictment, or that have been subject to the rendering of a First-Instance Verdict,

that involve the unlawful killing of POWs. For example, the cases of Kličković and Others,48

Memić and Others49 and Selimović and Others50 all include charges of War Crimes against

Prisoners of War. If the BWCC goes on to hear cases involving the unlawful killing of POWs, as

its patterns of prosecution suggest it will, the proportions between these institutions in respect to

hearing such cases will become even more pronounced. The overall proportion of cases

involving POWs as the victims of unlawful killing will increase before the BWCC, while

decreasing before the ICTY. That pattern in the prosecutions constructs a picture of such cases

as being ‘less serious’ crimes to be heard by the BWCC rather than the ICTY. It figures cases

involving the unlawful killing of POWs as belonging to the bottom levels of the ‘pyramid’ of cases

to be heard by the BWCC and not the ICTY.

47
Garbett, supra n 5.
48
The Prosecutor v Klicković, Gojko and Others, X-KR-06/213.
49
The Prosecutor v Memić, Mensur and Others, S1 1 K 003369 09 KRI.
50
The Prosecutor v Selimović, Mehura and Others, X-KR-08/552.

13
Conclusion

Together with the overall lack of cases involving this category of victims and the higher number

of such cases heard by the BWCC then, the patterns of prosecution of the ICTY and BWCC

represent the unlawful killing of POWs as a ‘less serious’ offence of the Yugoslavian conflicts.

The legal representation of this offence does not figure the unlawful killing of this category of

persons as one of the most serious crimes to be heard by the ICTY. Rather, these acts arise

more frequently in the ‘less serious’ cases heard by the BWCC. Further analysis of the crimes

brought to judgement in completed cases by these institutions of criminal justice will either lend

further credence to this form of the legal representation of crimes against POWs or, conversely,

challenge this claim. For this reason, the patterns of prosecution in the remaining ICTY cases

and the ongoing cases of the BWCC figures as an important object of analysis to fully

understand how these institutions represent the different categories of victims and violence of

the conflict.

14