Themis-Athena's Garden of Books

Vukovar and Eastern Slavonia: a notorious bone of contention between Croats and Serbs, and a necessary reminder that:

1)  The Serbs weren't the only ones to commit war crimes, drive out their neighbours or profit from ethnic cleansing.  All sides to the conflict had blood on their hands.  All sides profited from the misfortune of their former neighbours.  And it wasn't only the militia, the para(militarie)s and other forms of organized thugs.  Almost everybody did, to one extent or another -- and those who didn't, more often than not fell into the "there but for the grace of God" category. -- Several centuries went by until the inhabitants of Rome started using bricks and stones from the ruins left behind by the Ancient Romans to build new houses (some of them, right inside the Colisseum).  But only days, weeks, at most months went by until one Croat lady concluded her ethnically cleansed Serb neighbours weren't going to come back, and decided to start dismantling their home and use it as a brickyard supplying the necessary building material to repair her own war-damaged house.  Nothing says "these people are over and done with" quite like dismantling their buildings and using the bricks to build something else.

2)  Opposition to fact-finding such as done by forensic anthropologists and (ultimately) court proceedings is not only fueled by loyalty to the perpetrators and their elevation to "national hero" status.  Removing doubt as to a missing person's fate also removes the hope that his loved ones have been clinging to with all their might, that he might still be alive -- the very hope that had allowed them to go on living; living, that is, for the day when the missing will at last be returned to them alive.  This is made even worse in the face of propaganda and lies denying that the massacre after which they had disappeared never took place at all, and claiming that stories about that massacre were all just lies by "the other side", whoever that may be at any given time.  (If you thought "fake news" claims were a recent thing, think again.)  To the friends and relatives of a missing person, nothing can possibly be crueler than proof that their missing loved one is, in fact, dead -- and died a barbaric death, to boot.  And yet, it is important for that proof to come out: not only because it pulls out the rug from under the propaganda denying the massacre in the first place, but also because it allows those left behind to begin the process of grieving and, eventually, healing (after a fashion) -- and possibly also demanding justice, though many will simply want to walk away from it all.  Which is totally fine and must be respected in all events.

As an aside, I'm happy to find that Koff and I share a personal heroine, though unlike me, Koff has actually been fortunate enough to meet her in person: Louise Arbour, from 1996 to 1999 ICTY's Chief Prosecutor (succeeding Richard Goldstone, who right now, incidentally, is on the Board of Directors of Physicians for Human Rights), and later, U.N. High Commissioner for Human Rights.

Notwithstanding my first cautionary note above, though, it was again Serbs who were behind the massacre at Ovčara, where the patients from Vukovar hospital had been taken and killed.

The accused who stood trial for these events were:

* Slobodan Milošević,

* Mile Mrkšić, Veselin Šljivančanin and Miroslav Radić, and

* Slavko Dokmanović.

Slobodan Milošević

According to the ICTY case information sheet, with regard to the war in Croatia Milošević stood accused of:

• The extermination or murder of hundreds of Croat and other non-Serb civilians, including women and elderly persons, in Dalj, Erdut, Klisa, Lovas, Vukovar, Voćin, Baćin, Saborsko and neighbouring villages, Škabrnja, Nadin, Bruska, and Dubrovnik and its environs.

• The prolonged and routine imprisonment and confinement of thousands of Croat and other non-Serb civilians in detention facilities within and outside of Croatia, including prison camps located in Montenegro, Serbia, and Bosnia and Herzegovina.

• The establishment and perpetuation of inhumane living conditions for Croat and other non-Serb civilian detainees within the above-mentioned detention facilities.

• The deportation or forcible transfer of at least 170,000 Croat and other non-Serb civilians from theterritories specified above, including the deportation to Serbia of at least 5,000 inhabitants from Ilok and 20,000 inhabitants from Vukovar; and the forcible transfer to locations within Croatia of at least 2,500 inhabitants from Erdut.

• The deliberate destruction of homes, other public and private property, cultural institutions, historic monuments and sacred sites of the Croat and other non-Serb population in Dubrovnik and its environs, Vukovar, Erdut, Lovas, Šarengrad, Bapska, Tovarnik, Voćin, Saborsko, Škabrnja, Nadin, and Bruška.

• The repeated torture, beatings and killings of Croat and other non-Serb civilian detainees in the above-mentioned detention facilities.

• Unlawful attacks on Dubrovnik and undefended Croat villages throughout the territories specified above.

There may not have been an official final determination as to whether or not he committed suicide, but personally I am convinced that yes, he did.  Rather than face the prospect of spending the rest of his life in solitary confinement in a high security prison cell (saddled with a heart condition), which -- short solitary walks in the prison yard excepted -- he knew he would only ever leave again feet first, I believe that when he started to realize there was no chance that he would not end up being convicted, he decided to take the coward's way out and short-cut to "feet first" immediately.  Either way, however, the world is well rid of him.

Mile Mrkšić, Veselin Šljivančanin and Miroslav Radić

The men chiefly held responsible for the events at Vukovar Hospital and the Ovčara massacre:

* Mile Mrkšić (Colonel in the Yugoslav People's Army (JNA) and commander of the 1st Guards Motorised Brigade and Operational Group South, the JNA unit operative in the Vukovar area), sentenced to 20 years' imprisonment in the September 27, 2007 trial judgment, confirmed by the appeals judgment of May 5, 2009.

* Veselin Šljivančanin (Major in the JNA; security officer of the 1st Guards Motorised Brigade and Operational Group South in charge of a military police battalion subordinated to the 1st Guards Motorised Brigade), sentenced to 10 years' imprisonment in the sentencing appeals judgment of December 8, 2010 (his sentence in the trial judgment had been 5 years; on the prosecution's appeal, the Appeals Chamber had initially bumped it up to 17 years but then reduced it again on the basis of new evidence that had come to light before the appeals judgment had become final).

* Miroslav Radić (Captain in the JNA; commanded an infantry company in the 1st Battalion of the 1st Guards Motorised Brigade), acquitted in the trial judgment of September 27, 2007.

This trial highlighted, once more, one of the key problems that ICTY faced:  Unlike in Rwanda, where virtually all the accused and all the crimes committed could be tied to the Hutu Power movement and its orchestrated "final solution" to exterminate the Tutsi, in the former Yugoslavia you had a plethora of major players, who very often didn't even agree with each other (let alone act in concert) when they were "nominally" on the same side.  This is particularly true for the role played by the regular military (Yugoslav People's Army, Croatian Army, etc.) vis-à-vis that of the militia, paramilitary units and other "irregular" (and highly extremist) forces.  Which obviously isn't to say that any of these people, including the regular military, were anything even remotely approaching angels or saints, but even when it was clear that a war crime had been committed, in the ICTY proceedings it was vastly more difficult than in Rwanda to pin down who exactly was responsible for the crime and in what way; especially if there were no surviving direct eye witnesses, or the witnesses were confused about the uniforms they had seen (those of the paras were very similar to "real" army uniforms, which easily led to misidentifications, especially at night), or the indictment attached greater "command responsibility" to an officer than he actually had had.  And unlike in Srebrenica, where there were so many massacres that, if you were an officer of the Drina Corps of the Bosnian Serb Army (which operated in the area at the time), some of your actions would almost be guaranteed to constitue the commission of a war crime, with regard to Vukovar Hospital, there was "only" the massacre at Ovčara: You were either going to get nailed for that, or not at all.

Here, the prosecution's case against Mrkšić (the area's commanding regular JNA army officer, who had ordered the removal of the Vukovar Hospital patients: originally they were intended to be sent to a location under JNA control, but ultimately they ended up in Ovčara) had rested substantially on the contention that he had "command responsibility" for (i.e., was in a position of command over, and therefore criminally liable for the actions of) the Serbian paramilitaries which actually carried out the massacre at Ovčara; and that he had in fact handed over the patients to the paramilitary units, intending for the subsequent massacre to happen.  However, the Trial Chamber found that while he was to be faulted for having withdrawn the protection of the regular army (JNA) from the prisoners taken at the hospital by ordering his JNA troops to withdraw from Ovčara, he neither intended nor ordered the massacre as such.  (The Trial Chamber also seems to have doubted whether the paras would ever have listened to any orders he'd have tried to give them, i.e. whether he had factual command responsibility over the paras; even though it found that de jure -- legally / in theory -- command responsibility over them was vested in him.)  As a result, he was convicted of aiding and abetting the massacre -- but not of participating in it or ordering it.  This still resulted in a 20-year prison term, but not in the much longer (up to lifetime, or de facto lifetime) sentence that would have resulted from a conviction for directly participating in or ordering the massacre.

The same, on a somewhat reduced level, was true for Mrkšić's co-defendant Šljivančanin, the former security officer of his brigade: He was instrumental in the removal of the patients from the hospital and, later, in the withdrawal of the regular JNA forces from Ovčara, which earned him -- after some back and forth -- a 10-year prison sentence, but not the sentence he might have received if he had been found guilty of a more direct involvement

The third defendant, Radić, finally, was acquitted entirely: He had been present at the hospital, but there was no evidence that he was also present at Ovčara; let alone, that he participated in the removal of the patients with any foreknowledge of what was going to happen later (or that he had any reason to believe any of his JNA subordinates were going to participate in the massacare) -- recall, the patients were initially supposed to be taken to an entirely different location, where (unlike at Ovčara) they would have remained under the control of the JNA.  This was all he was shown to have known.

(You might wonder, incidentally, why the prosecution did not, after the outcome of the Mrkšić trial, proceed to indicting the commanders of the paramilitary units who had actually ordered the massacre.  I'm wondering about that as well -- all I can speculate is that by this time, 15+ years after the events, the trail had literally gone cold; and until then, the prosecution had obviously been banking entirely on getting Mrkšić convicted for giving the fatal order.  Which was a miscalculation that not only failed at trial but also on appeal.)

The Mrkšić trial judgment is also notable with regard to the broad space it accords to the forensic evidence regarding the massacre as such, the fact that it occurred under the supervision of the Yugoslav and Croatian governments as well as those of several international organizations,  and the process of the identification of the witnesses: Quite obviously, the Trial Chamber was aware of the importance which the forensic evidence was going have in the public perception of the events, after the Yugoslav and Serb propaganda had vigorously denied that a massacre had ever happened at all, and after the victims' relatives -- organized under the name "The Mothers of Vukovar" -- had initially opposed the exhumation, believing the propaganda and clinging to the hope that some day they would see their missed loved ones alive again:

"The exhumation of the mass grave began on 31 August 1996. Bodies were retrieved from the site and transported to Zagreb where full post mortem examinations was conducted.  The exhumation and the autopsies were conducted by international and domestic experts. Representatives of the Croatian and the Yugoslav government were present during the exhumation and the autopsies. The exhumation was conducted under the authority of this Tribunal. Other international organisations, including ECMM, OSCE, and the International Commission for Missing People also participated in the exhumation.

Once the bodies were exhumed, they were transferred to the Institute of Forensic Medicine in Zagreb. International forensic experts carried out the autopsies of the bodies under the monitoring of Dr Davor Strinović, Deputy Head of the Institute of Forensic Medicine in Croatia and a member of the Republic of Croatia Government Commission for Detainees and Missing Persons (“Commission for Missing Persons”). The primary task of the international experts was to determine the cause of death in each case. They carried out the autopsies according to applicable Croatian requirements and in accordance with international standards and described all their findings, including findings that may not have been linked directly to the cause of death but may have had relevance to the process of identification. Exhibit 458, tendered through Dr Strinović, is a table prepared by the international forensic experts providing a summary of the findings of their examinations of the bodies exhumed at the Ovčara mass grave. The chart includes findings on cause and manner of death. Exhibit 462 contains the autopsy reports.

The remains of 200 human bodies were exhumed from this mass grave at Ovčara. There were 198 males and two females. The age range of those exhumed was between 16 and 72. The cause of death was established in 195 cases. 188 individuals died of gunshot wounds or multiple gunshot wounds. For the seven other persons the cause of death was trauma. It was established during the post mortem examinations that 86 individuals had also suffered from wounds or injuries caused before death. For the remaining 114 persons the autopsy reports contained no entries indicating that these persons had visible signs of trauma or injuries caused before death. The Chamber accepts in accordance with this evidence that at least 200 persons had been buried in the mass grave, that 195 of these persons died from trauma, including 188 from gunshot wounds, and that 86 of these persons also suffered bodily injuries caused before death. The Chamber’s finds from the evidence that the 200 persons had been killed at the mass grave site on 20/21 November 1991. The death of more persons than the 200 mentioned above at Ovčara on 20/21 November 1991 is not precluded by these findings, although, apart from a few specific cases identified later in this judgement, this is not established by the evidence in this case.

The cause of death could not be established by autopsy in the case of five of the 200 bodies buried in the mass grave. The Chamber accepts Dr Strinović’s evidence that in cases where gunshots have not damaged the bones but only soft tissue of a body, such as the heart, an autopsy performed several years after the death will not reveal the cause of death as the soft tissue will have decomposed. Given the surrounding circumstances, as found by the Chamber from all the evidence, the presence of 200 bodies in the one grave, of whom it is demonstrated by autopsy findings that 195 died from trauma including 188 from gunshot wounds, the Chamber finds by inference that all 200 persons buried in the grave died on 20/21 November 1991 at Ovčara from trauma caused by physical violence, in almost all cases from one or more gunshot wounds, and further, in the case of each of the five persons whose cause of death could not be determined by autopsy examination, that the trauma causing death was most probably gunshot wound to the soft tissue of the body.

After the autopsies were completed, the process of identification began. In 1997, the Commission for Missing Persons took custody of the bodies exhumed at the Ovčara mass grave in order to carry out this task. Two methods of identification were used: the classical method and the DNA method. Classical identification was conducted by gathering of identifying elements through autopsy and ante mortem material, including clothing, any items found on a body including jewellery, documents, and keys, as well as the teeth and skin in appropriate cases. The skin of each body was examined for identifying elements including any scars from previous surgery, injuries, old injuries, scar tissue, and tattoos. Ante mortem information was gathered from the families of the victims and then compared with elements found in the course of the autopsy. Of the 200 bodies exhumed at Ovčara, 192 were identified, 93 by the classical method and 99 by DNA. Of those identified almost all were of Croatian ethnicity. Even where an identification had been established by these means the identification was not accepted as final unless confirmed by the family of the victim. Each body remained classified as unidentified until final confirmation was obtained.

The Annex to the Indictment lists the names of 264 individuals who are alleged to have been taken from the Vukovar hospital and murdered near Ovčara during the evening hours of 20/21 November 1991. Of these 264 named individuals, the bodies of 190 have been identified as described and were among those exhumed from the mass grave at Ovčara. Other evidence further established that another 16 of those listed in the Annex to the Indictment were found in other graves and were subsequently identified. 13 of those 16 were exhumed from the New Cemetery in Vukovar, one person from the Lovas mass grave, and the mortal remains of another two of those listed in the Annex were received from the authorities of Serbia and Montenegro (from Sremska Mitrovica in 1997 and from Belgrade in 1995, respectively). The bodies of 58 persons listed in the Annex to the Indictment have not been found and they remain reported as missing. No evidence was led during the trial concerning the cause of death of the 16 persons listed in the Annex to the Indictment but whose remains were found elsewhere than at Ovčara, so that the evidence does not establish that these persons were murdered or when they died.

Of those 190 persons listed in the Annex to the Indictment whose bodies have been identified and were exhumed from the mass grave at Ovčara, in 184 cases the cause of death was shown by autopsy to have been gunshot wound or multiple gunshot wounds. The cause of death of two more of these persons was trauma. The cause of death of the remaining four persons was not able to be determined by autopsy but, in accordance with the finding of the Chamber noted a little earlier in this Judgement, in each case the cause of death was trauma, occurring on 20/21 November 1991 at Ovčara, the trauma being most probably a gunshot wound to the soft tissue of the body."

Case No. IT-95-13/1, Prosecutor v. Mrkšić et al., Judgment of September 27, 2007, paras. 492-498.

[After this follows a five page-long section detailing how exactly the victims had been identified, and why the evidence of their identification is credible and convincing in the Trial Chamber's view.]  Then the Trial Chamber concludes:

"Thus, the Chamber is satisfied and finds that 194 of the persons named in the Annex to the Indictment were taken from Vukovar hospital in the morning of 20 November 1991 and were murdered in the evening and night hours of 20/21 November 1991 at Ovčara. The evidence supporting the Chamber’s finding with respect to each of these 194 persons is detailed in the Schedule to this Judgement. At the material time these 194 persons were prisoners of Serb armed forces, under armed guard, and, therefore, were taking no active part in the hostilities.

The evidence further demonstrates, in the finding of the Chamber, that at the time of these 194 killings, the perpetrators acted with the requisite intent for murder. The circumstances demonstrate this. The Chamber refers in particular to the very large number of victims and to the fact that almost all victims died from multiple gunshot wounds. The Chamber also refers here to its findings made elsewhere in the Judgement, that a large grave had been dug before the killings, that the grave was in an isolated location, that the bodies of at least 190 of the victims were covered and left, and that the killings occurred in the evening and at night. To establish the intent of the actual perpetrators it is further relevant that the victims were prisoners of war, that they were unarmed, the majority also being sick or wounded patients from a hospital. The Chamber would also observe here that the perpetrators were among the victors in a bitter armed conflict in which the victims had been among the Croat losers.

On the basis of the foregoing, and leaving aside for the present the question of the criminal responsibility of the three Accused, the Chamber finds that the elements of the offence of murder (Count 4) are established in relation to 194 identified persons listed in the Schedule to the Judgement."

Case No. IT-95-13/1, Prosecutor v. Mrkšić et al., Judgment of September 27, 2007, paras. 509-511.

It's almost as if the Trial Chamber were telling the prosecution in that last paragraph of the quoted excerpt, "and if you idiots hadn't focused exclusively on the regular army officers although you knew the massacre had been committed by paramilitaries after the JNA unit had withdrawn, we might actually have been able to convict someone of having committed these murders, too ..."

Finally, there was:

Slavko Dokmanović

Dokmanović was the President of the Vukovar municipality at the time of the Ovčara massacre.  He likewise stood accused of having either participated in it or at least aided and abetted in its commission.  However, the proceedings against him came to a halt after he had hanged himself in his cell in June 1998.