149 SHELLING, SNIPING AND STARVATION: THE LAW OF ARMED CONFLICT AND THE LESSONS OF THE SIEGE OF SARAJEVO KJ Riordan * This article looks at the siege of Sarajevo conducted from April 1992 to February 1996, which resulted in the loss of thousands of lives and great suffering to the civilian population of the city. It also resulted in criminal convictions for Bosnian Serb commanders Stanislav Galić and Dragomir Milosević. Given the fact that sieges have been a common form of warfare from antiquity to the present day, and are likely to remain so, these convictions and the heavy sentences that accompanied them must provide a cautionary tale for commanders who may in future be required to undertake such an operation. This article examines the traditional methods of warfare associated with the successful prosecution of a siege and contrasts them with the detailed and onerous provisions of the law of armed conflict. It ponders the question of what a modern commander must do to conduct a siege which is both lawful and successful. I INTRODUCTION In November 1992, Major General Stanislav Galić was appointed as the commander of the Sarajevo Romanija Corps and immediately assumed de facto command of all Bosnian Serb Army (BSA) military personnel present at Sarajevo. 1 This was an important step in his military career and * Brigadier Kevin Riordan, ONZM is Director General of Defence Legal Services for the New Zealand Defence Force (NZDF). The views expressed in this article are personal and do not necessarily represent the position of the NZDF. The author is greatly indebted to the considerable help provided by Lieutenant Colonel Jim Cutler, RNZIR (retired) who served in Sarajevo from November 1992 to March 1993 with the United Nations Protection Force (UNPROFOR) as the Senior Military Observer (UNSMO) and as the Senior New Zealand National Officer. Lieutenant Colonel Cutler gave evidence at the trial of Major General Stanislav Galić. He has provided the author with much valuable detail relating to the conduct of the Siege of Sarajevo upon which this article is largely based. Any errors of fact are those of the author, not his. 1 The besieging forces of the Sarajevo Romanija Corps under Galić's command were a corps of the Bosnian Serb Army (BSA) – or in its Serbo­Croat anagram "VRS". Entire units of the Yugoslav National Army (JNA) had, when ordered to withdraw from Bosnia and Herzegovina (Bosnia­Herzegovina), simply 150 (2010) 41 VUWLR one that was to have far­reaching effects on his life as well as the lives of thousands of inhabitants of the city. In that role, which he held for a period of nearly two years, General Galić was effectively responsible for the conduct of a significant part of the operation that came to be known as the "Siege of Sarajevo". 2 The siege of Sarajevo and its criminal consequences3 present a valuable case study in the modern law of armed conflict (LOAC) as it applies to fighting in towns and cities. As the world's population continues to grow, it seems less and less likely that warfare can be confined to sparsely populated places. Almost all military engagements of the 21st century have seen fighting in urban environments. This article asks what we can learn from the Sarajevo experience and whether the developments in the LOAC have now made it very difficult for a commander to conduct a siege that is both successful and lawful.4 II MODERN PRECONDITIONS FOR A MEDIEVAL SIEGE This article will not set out a detailed history of the battle and siege of Sarajevo, 5 a military engagement which lasted from April 1992 until February 1996 and resulted in the loss of as many as 19,000 combatant and civilian lives.6 However, in order to understand how the complex strands of transformed themselves into BSA units. Most of the BSA soldiers and officers had, therefore, come from a generally well­trained professional army which, before the war, had run an advanced law of armed conflict (LOAC) training programme. The Corps was believed to number some 18,000 soldiers. 2 Major General Galić was replaced as commander by Major General Dragomir Milosević on 10 August 1994. The pattern of warfare started by Galić was continued by Milosević, who was himself sentenced to 33 years' imprisonment by the International Tribunal for the former Yugoslavia (ICTY) for his part in the siege. On 10 November 2009, this sentence was reduced on appeal to 29 years' imprisonment: see Prosecutor v Dragomir Milosević (Judgment) (12 November 2009) IT­98­29/1­A (Appeals Chamber, ICTY). 3 This article does not examine in depth the various important procedural and evidentiary features of Galić's trial, or equally interesting questions such as the basis for Galić's command responsibility. Nor will the findings of fact be critiqued. This article concentrates only on the lessons for future conduct of siege warfare that are to be learned from its judgment. 4 See generally T Gjelten "Siege" in Roy Gutman, David Rieff and Kenneth Anderson (eds) Crimes of War: What the Public Should Know (WW Norton & Company, New York, 1999) 336. 5 Very full details of the background to the operation are set out in Prosecutor v Stanislav Galić (Judgment) (5 December 2003) IT­98­29 (Trial Chamber, ICTY) at [192]­[205] [Galić Trial]. The details of the siege are revisited and the factual findings largely confirmed in Prosecutor v Stanislav Galić (Judgment) (30 November 2006) IT­98­29 (Appeals Chamber, ICTY) [Galić Appeal] and again in Prosecutor v Dragomir Milosević (Judgment) (12 December 2007) IT­98­29/1­T (Trial Chamber, ICTY) [Milosević Trial]. 6 Estimates of casualties, as always in war, are prone to be exaggerated or minimised by one side or the other. The oft­quoted figure of 10,000 civilians killed or missing and 56,000 wounded is derived from a United Nations Security Council report which in fact only covered the period up to 15 November 1993. It is based on figures from the Bosnia Herzegovina Institute of Public Health and the reports of UNPROFOR. See United Nations Commission of Experts Final Report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780 (1992) SC Res 674, S/Res/1994/674 (1994) [Final SHELLING, SNIPING AND STARVATION 151 both international humanitarian law and international criminal law applied to the engagement, it is necessary to consider how it was that the parties to the conflict came to be in the position that they were when Galić assumed command. On the break­up of Yugoslavia in 1990–1991, the central Yugoslav Republic known as Bosnia and Herzegovina (Bosnia­Herzegovina) declared itself to be an independent sovereign State. 7 Within its borders, however, there were two self­identifying ethnic groups with powerful neighbouring connections; namely, the Bosnian Croats and Bosnian Serbs.8 In Sarajevo, which had often been held up as a model of multi­ethnic tolerance,9 these two groups constituted respectively about seven per cent and 30 per cent of the population, with Bosnian Moslems making up about 50 per cent of the population.1 0 Many Bosnian Serbs viewed the creation of an independent Bosnia­ Herzegovina as essentially isolating a significant number of Serbs of the Orthodox Christian faith within a Moslem­dominated State. This State, they were assured by their propagandists, would soon become a fundamentalist polity in which Christians would, if not slaughtered outright, at least become second­class citizens.1 1 Nationalism, political opportunism, racism, fear of encirclement, dormant historical hatred and religious intolerance were manipulated by all parties (to a greater or lesser extent) to the point that a significant number of Serbs in Sarajevo saw their survival as a national group being guaranteed only by incorporation within a notionally independent Bosnian Report of the United Nations Commission of Experts]. Military casualties appear to be about 6,300 killed on the defending side, and 2,600 on the part of the besiegers. The majority in the Trial Chamber used a conservative estimate which put the minimum number of persons killed within the confrontation line in Sarajevo during the indictment period at 3,798, of whom 1,399 were civilians. The minimum number wounded in the same period was 12,919, including 5,093 civilians: see Galić Trial, above n 5, at [579]. The separate and dissenting judgment of Judge Rafael Nieto­Navia of Colombia uses these same figures (which actually only applied to six municipalities within Sarajevo) to hypothesise that the death rate was too low to justify allegations of a deliberate campaign against civilians: see Prosecutor v Stanislav Galić (Separate and Partially Dissenting Opinion) (5 December 2003) IT­98­29­T (Trial Chamber, ICTY) at [105] Judge Nieto­ Navia [Separate and Partially Dissenting Opinion of Judge Nieto­Navia]. 7 Bosnia­Herzegovina made a declaration of sovereignty in October 1991 which was followed by a declaration of independence from the former Yugoslavia on 3 March 1992 after a referendum that was largely boycotted by ethnic Serbs. 8 The division between Croats, Bosniaks (Bosnian Moslems) and Serbs is confessional or religious, rather than racial. All three groups are Southern Slavic. Although there are many political motives behind the war, the Balkan War is almost invariably referred to as an ethnic conflict. See generally Valère Philip Gagnon Jr "Historical Roots of the Yugoslav Conflict" in Milton Esman and Shibley Telhami (eds) International Organisations and Ethnic Conflict (Cornell University Press, Ithaca, 1995) 179. 9 See Milosević Trial, above n 5, at [11]. 10 Smaller ethnic minorities and persons who regarded themselves simply as Yugoslavs made up the rest of the population.