War crimes

Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

257. To establish the culpability of an accused for the crime of violence to life, health, and physical or mental well-being of persons (murder) as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, the Prosecution bears the onus of proving, in addition to the threshold elements of Article 4 of the Statute recalled above,[1] the following specific elements:

  1. the death of a victim taking no active part in the hostilities;
  2. that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;
  3. the intent of the accused or of the person or persons for whom he is criminally responsible
    1. to kill the victim; or
    2. to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[2]

[1] See supra, para. 246.

[2] Kvočka et al. Appeal Judgement, para. 261; Kordić and Čerkez Appeal Judgement, para. 37; Čelebići Appeal Judgement, para. 423. 

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

249. The Appeals Chamber recalls that the required nexus need not be a causal link, but that the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed, or the purpose for which it was committed.[1] The Appeals Chamber has thus held that “if it can be established […] that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.”[2] To find a nexus, it is sufficient that the alleged crimes be closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.[3]

[1] Rutaganda Appeal Judgement, para. 569, citing Kunarac Appeal Judgement, para. 58. See also Stakić Appeal Judgement, para. 342.

[2] Rutaganda Appeal Judgement, para. 569, citing Kunarac Appeal Judgement, para. 58. See also Stakić Appeal Judgement, para. 342.

[3] Tadić Appeal Decision on Jurisdiction, para. 70. 

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Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

342. For Article 3 to apply, the crime charged must be committed in a time of armed conflict and an accused’s acts must be closely related to that conflict.[1] The latter requirement is known as the “nexus” requirement. The nexus need not be a causal link, “but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit [the crime], his decision to commit it, the manner in which it was committed or the purpose for which it was committed.”[2] The Appeals Chamber has thus held that “if it can be established … that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.”[3] To find a nexus, it is sufficient that the alleged crimes be closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.[4] For example, Article 3 crimes need not be committed in the area of armed conflict, but must at least be “substantially related” to this area, which at least includes the entire territory under control of the warring parties.[5] It is essential, however, that a Trial Chamber establish the existence of a geographical and temporal linkage between the crimes ascribed to the accused and the armed conflict.

[1] Tadić Appeal Decision on Jurisdiction, paras 67, 70; Kunarac Appeal Judgement, para. 55; Rutaganda Appeal Judgement, paras 569-571.

[2] Kunarac Appeal Judgement, para. 58.

[3] Kunarac Appeal Judgement, para. 58.

[4] Tadić Appeal Decision on Jurisdiction, para. 70.

[5] Kunarac Appeal Judgement, paras 60, 64.

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Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

270. The Appeals Chamber has previously ruled that the perpetrator of the crime of attack on civilians must undertake the attack “wilfully” and that the latter incorporates “wrongful intent, or recklessness, [but] not ‘mere negligence’”.[1] In other words, the mens rea requirement is met if it has been shown that the acts of violence which constitute this crime were wilfully directed against civilians, that is, either deliberately against them or through recklessness.[2] The Appeals Chamber considers that this definition encompasses both the notions of “direct intent” and “indirect intent” mentioned by the Trial Chamber, and referred to by Strugar, as the mens rea element of an attack against civilians.

271. As specified by the Trial Chamber in the Galić case,

For the mens rea recognized by Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant.[3]

The intent to target civilians can be proved through inferences from direct or circumstantial evidence.[4] There is no requirement of the intent to attack particular civilians; rather it is prohibited to make the civilian population as such, as well as individual civilians, the object of an attack.[5] The determination of whether civilians were targeted is a case-by-case analysis, based on a variety of factors, including the means and method used in the course of the attack, the distance between the victims and the source of fire, the ongoing combat activity at the time and location of the incident, the presence of military activities or facilities in the vicinity of the incident, the status of the victims as well as their appearance, and the nature of the crimes committed in the course of the attack.[6]

275. […] The Appeals Chamber, moreover, has held on various occasions that the absolute prohibition against attacking civilians “may not be derogated from because of military necessity”.[7] Furthermore, the Appeals Chamber recalls that, depending on the circumstances of the case, the indiscriminate character of an attack can be indicative of the fact that the attack was indeed directed against the civilian population.[8]

For application of this legal standard to the facts, see paras 272-276.

[1] Galić Appeal Judgement, para. 140, citing Galić Trial Judgement, para. 54.

[2] Cf. Commentary AP I, para. 3474 which defines the term “wilfully” in the following way: “the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them ('criminal intent’ or 'malice aforethought’); this encompasses the concepts of 'wrongful intent’ or 'recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences.”

[3] Galić Trial Judgement, para. 55; see also Kordić and Čerkez Appeal Judgement, para. 48; Blaškić Appeal Judgement, para. 111.

[4] Galić Appeal Judgement, fn. 707.

[5] Ibid., fn. 709, citing Additional Protocol I, Article 52 (2).

[6] Galić Appeal Judgement, para. 132, citing Kunarac et al. Appeal Judgement, para. 91; Blaškić Appeal Judgement, para. 106; Galić Appeal Judgement, para. 133. Cf. Kordić and Čerkez Appeal Judgement, para. 438.

[7] Galić Appeal Judgement, para. 130 citing Blaškić Appeal Judgement, para. 109, and Kordić and Čerkez Appeal Judgement, para. 54. In this sense, the fighting on both sides affects the determination of what is an unlawful attack and what is acceptable collateral damage, but not the prohibition itself (Galić Appeal Judgement, fn. 704). It has also been held that even the presence of individual combatants within the population attacked does not necessarily change the legal qualification of this population as civilian in nature (Galić Appeal Judgement, para. 136).

[8] Galić Appeal Judgement, para. 132 and fn. 706. In that case, the Appeals Chamber upheld the Trial Chamber’s finding that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives were “tantamount to direct targeting of civilians” (Galić Trial Judgement, fn. 101). See also Galić Appeal Judgement, fn. 706: “Attacking anything that moves in a residential building, before determining whether the mover is a civilian or a combatant, is a paradigmatic example of not differentiating between targets.”

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ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

277. The crime of destruction or wilful damage of cultural property under Article 3(d) of the Statute is lex specialis with respect to the offence of unlawful attacks on civilian objects.[1] The mens rea requirement of this crime is therefore also met if the acts of destruction or damage were wilfully (i.e. either deliberately or through recklessness) directed against such “cultural property”.[2]

[1] Kordić and Čerkez Appeal Judgement, paras 89-91; Kordić and Čerkez Trial Judgement, para. 361.

[2] See Hadžihasanović and Kubura Trial Judgement, para. 59; Krajišnik Trial Judgement, para. 782; Naletilić and Martinović Trial Judgement, paras 603-605, citing Kordić and Čerkez Trial Judgement, para. 358 and Blaškić Trial Judgement, para. 185.

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ICTY Statute Article 3(d)
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

178. On the basis of the foregoing, the Appeals Chamber holds that in order to establish the existence of a violation of Common Article 3 under Article 3 of the Statute, a Trial Chamber must be satisfied beyond a reasonable doubt that the victim of the alleged offence was not participating in acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces. Such an enquiry must be undertaken on a case-by-case basis, having regard to the individual circumstances of the victim at the time of the alleged offence.[1] As the temporal scope of an individual’s participation in hostilities can be intermittent and discontinuous, whether a victim was actively participating in the hostilities at the time of the offence depends on the nexus between the victim’s activities at the time of the offence and any acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the adverse party.[2] If a reasonable doubt subsists as to the existence of such a nexus, then a Trial Chamber cannot convict an accused for an offence committed against such a victim under Article 3 of the Statute.[3]

179. When dealing with crimes pursuant to Common Article 3, it may be necessary for a Trial Chamber to be satisfied beyond a reasonable doubt that the alleged offence committed against the victim was not otherwise lawful under international humanitarian law.[4] The need for such an additional enquiry will depend on the applicability of other rules of international humanitarian law, which is assessed on the basis of the scope of application of these rules[5] as well as the circumstances of the case.[6] Indeed, if the victim of an offence was a combatant[7] or if the injury or death of such a victim was the incidental result of an attack which was proportionate in relation to the anticipated concrete and direct military advantage,[8] his injury or death would not amount to a violation of international humanitarian law even if he was not actively participating in hostilities at the time of the alleged offence.

See paras 172 – 177 for a detailed overview of underlying legal sources, as well as a non-exhaustive list of examples of direct and indirect forms of participation in hostilities.

For the application of this legal standard to the facts of the case, see paras 180-188.

[1] Tadić Trial Judgement, para. 616; Halilović Trial Judgement, para. 34. See, e.g., in relation to the direct participation in the hostilities of a member of the armed forces, Commentary GC III, p. 39: “The discussions at the Conference brought out clearly that it is not necessary for an armed force as a whole to have laid down its arms for its members to be entitled to protection under [Article 3]. The Convention refers to individuals and not to units of troops, and a man who has surrendered individually is entitled to the same humane treatment as he would receive if the whole army to which he belongs had capitulated. The important thing is that the man in question will be taking no further part in the fighting.”

[2] Cf. United States of America v. Salim Ahmed Hamdan, U.S. Military Commission, 19 December 2007, p. 6: “The Commission also finds that the accused directly participated in those hostilities by driving a vehicle containing two surface-to-air missiles in both temporal and spatial proximity to both ongoing combat operations. [...] Although Kandahar was a short distance away, the accused’s past history of delivering munitions to Taliban and al-Qaeda fighters, his possession of a vehicle containing surface to air missiles, and his capture while driving in the direction of a battle already underway, satisfies the requirement of 'direct participation’.”

[3] The Appeals Chamber notes that for the purposes of establishing an accused’s criminal responsibility, the burden of proof of whether a victim was not taking active part in the hostilities rests with the Prosecution. Cf. Blaškić Appeal Judgement, para. 111.

[4] The Appeals Chamber observes that this is in line with the jurisprudence of the ad hoc Tribunals in relation to Common Article 3 crimes. In the Čelebići Appeal Judgement, the Appeals Chamber merely set out a non-exhaustive list of the elements of the crime “cruel treatment” under Article 3 of the Statute for the purpose of comparing it with the crime of torture under Article 2 of the Statute in application of the test on cumulative convictions (Čelebići Appeal Judgement, para. 424). The Appeals Chamber moreover observes that Trial Chambers have made a finding on the civilian status of victims of Common Article 3 crimes or found that this was not necessary given the facts of the respective case. In the Tadić Trial Judgement, the Trial Chamber found that all of the victims were detained by the accused and as such the issue of whether they were combatants or civilians did not arise because even if they were combatants, they had been placed hors de combat by detention (Tadić Trial Judgement, para. 616). In the Stakić Trial Judgement, the Trial Chamber found that the victims were hors de combat or civilians (Stakić Trial Judgement, para. 589). In the Naletilić and Martinović Trial Judgement, the Trial Chamber found that the victims were all civilians or prisoners of war (Naletilić and Martinović Trial Judgement, para. 229). In the Akayesu Trial Judgement, the Trial Chamber found that the victims were civilians (Akayesu Trial Judgement, para. 175).

[5] The scope of application of international humanitarian law primarily depends on the nature of the armed conflict, the customary or conventional status of a given rule or set of rules and the status of the victim. In conflicts where Common Article 3 is the only applicable provision, the more elaborate rules regarding civilian and combatant status outlined in the Geneva Conventions and Additional Protocol I would not be applicable. See Čelebići Appeal Judgement, para. 420; Tadić Jurisdiction Decision, para. 91; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment, ICJ Reports (1986), para. 218.

[6] For instance, if a victim was found to be detained by an adverse party at the time of the alleged offence against him, his status as either a civilian or combatant would no longer be relevant because a detained person cannot, by definition, directly participate in hostilities. Therefore, an attack against such person would automatically be unlawful.

[7] Combatants constitute lawful military objectives unless they are hors de combat. On the definition of combatant, see: Additional Protocol I, Articles 43, 44, 50(1); Geneva Convention III, Article 4; Kordić and Čerkez Appeal Judgement, paras 50-51. On the definition of military objectives, see: Additional Protocol I, Article 52; Kordić and Čerkez Appeal Judgement, para. 53. On the definition of hors de combat, see: Additional Protocol I, Article 41(2). See also Blaškić Appeal Judgement, para. 114: “As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.”

[8] Additional Protocol I, Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b). See Galić Trial Judgement, para. 58 (and sources cited therein) and Galić Appeal Judgement, paras 191-192. 

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ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

93. […] [T]he Appeals Chamber recalls the Čelebići Trial Judgement, which held that:

The basis of the inclusion of cruel treatment within Article 3 of the Statute is its prohibition by common article 3(1) of the Geneva Conventions, which proscribes, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”. In addition to its prohibition in common article 3, cruel treatment or cruelty is proscribed by article 87 of the Third Geneva Convention, which deals with penalties for prisoners of war, and article 4 of Additional Protocol II, which provides that the following behaviour is prohibited:

violence to life, health and physical and or mental well being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.

As with the offence of inhuman treatment, no international instrument defines this offence, although it is specifically prohibited by article 5 of the Universal Declaration of Human Rights, article 7 of the ICCPR, article 5, paragraph 2, of the Inter-American Convention of Human Rights and article 5 of the African Charter of Human and Peoples’ Rights. In each of these instruments, it is mentioned in the same category of offence as inhuman treatment.[1]

94. As is the case with the international law instruments mentioned above, the jurisprudence of the Tribunal does not provide a comprehensive definition of the offence of cruel treatment, but the Appeals Chamber has defined the elements of cruel treatment as a violation of the laws or customs of war as follows:

a. an intentional act or omission […] which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity,

b. committed against a person taking no active part in the hostilities.[2]

[1] Čelebići Trial Judgement, paras 548-549.

[2] Blaškić Appeal Judgement, para. 595 (citing Čelebići Appeal Judgement, paras 424, 426 (internal citations omitted)).

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ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

290. The jurisprudence of the Tribunal defines torture as follows:

(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.

(ii) The act or omission must be intentional.

(iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.[1]

[1] Kunarac et al. Appeal Judgement, para. 142 (quoting the definition of torture adopted by the Trial Chamber in the Kunarac et al. Trial Judgement, para. 497).

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Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

569. The Appeals Chamber of the ICTR has not previously endorsed a particular definition of the nexus requirement.[1] The Appeals Chamber of the ICTY has done so twice. The first time, in the Tadic Jurisdiction Decision, the Appeals Chamber stated that the offences had to be “closely related” to the armed conflict, but it did not spell out the nature of the required relation.[2] In the Kunarac Appeal Judgement, it endorsed the same standard. It then provided the following details, which appear relevant to the Prosecution appeal in this case:

58. What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. The Trial Chamber’s finding on that point is unimpeachable.

59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties .[3]

570. This Chamber agrees with the criteria highlighted and with the explanation of the nexus requirement given by the ICTY Appeals Chamber in the Kunarac Appeal Judgement.  It is only necessary to explain two matters.  First, the expression “under the guise of the armed conflict” does not mean simply “at the same time as an armed conflict” and/or “in any circumstances created in part by the armed conflict”.  For example, if a non-combatant takes advantage of the lessened effectiveness of the police in conditions of disorder created by an armed conflict to murder a neighbour he has hated for years, that would not, without more, constitute a war crime under Article 4 of the Statute.  By contrast, the accused in Kunarac, for example, were combatants who took advantage of their positions of military authority to rape individuals whose displacement was an express goal of the military campaign in which they took part.  Second, as paragraph 59 of the Kunarac Appeal Judgement indicates, the determination of a close relationship between particular offences and an armed conflict will usually require consideration of several factors, not just one.  Particular care is needed when the accused is a non-combatant.

[1]   In the Akayesu case, the ICTR Appeals Chamber observed that “common Article 3 requires a close nexus between violations and the armed conflict.” (Akayesu Appeal Judgement, para. 444.)  It then stated:  “This nexus between violations and the armed conflict implies that, in most cases, the perpetrator will probably have a special relationship with one party to the conflict.  However, such a special relationship is not a condition precedent to the application of common Article 3 and hence of Article 4 of the Statute.” (Idem).  The Appeals Chamber expressly noted that the definition of the nexus requirement had not been raised on appeal.  (Idem, Footnote 807)  Trial Chambers of this Tribunal have four times considered charges under Article 4 of the Statute in their judgements.  The definitions of the nexus requirement used in the four cases were similar but not identical to each other.  In the Akayesu case, the Trial Judgement stated that the nexus requirement means that the acts of the accused have to be committed “in conjunction with the armed conflict.” (Akayesu Trial Judgement, para. 643)  In Kayishema-Ruzindana, the Trial Chamber used four different formulations to characterize the nexus requirement, apparently considering them synonymous.  It sometimes stated that there must be “a direct link” or “a direct connection” between the offences and the armed conflict.  (Kayishema-Ruzindana Trial Judgement, paras. 185, 602, 603, 623 [“direct link”]; 188, 623 [“direct connection”].  It also stated that the offences have to be committed “in direct conjunction with” the armed conflict. (Idem, para. 623).  Finally, it stated that the offences had to be committed “as a result of” the armed conflict”.  (Idem).  In the Musema case, the Trial Chamber took the view that the offences must be “closely related” to the armed conflict. (Musema Trial Judgement, para. 260).  In the Ntakirutimana Case (currently on appeal), the Trial Chamber acquitted one of the accused of the count under Article 4(a) of the Statue based, inter alia, on the Prosecution’s failure to establish a nexus between the offence and the armed conflict, but it offered no definition of the nexus requirement. (Elizaphan and Gérard Ntakirutimana Trial Judgement, para. 861).

[2] Tadić Appeal Judgement, 2 October 1995, para. 70.

[3] Kunarac Appeal Judgement, paras. 58 to 59. Before and after these paragraphs, the ICTY Appeals Chamber stated the following:

 

57.       There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved. A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place. As indicated by the Trial Chamber, the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting. It would be sufficient, for instance, for the purpose of this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.

60.       The Appellants’ proposition that the laws of war only prohibit those acts which are specific to an actual wartime situation is not right. The laws of war may frequently encompass acts which, though they are not committed in the theatre of conflict, are substantially related to it. The laws of war can apply to both types of acts . The Appeals Chamber understands the Appellants’ argument to be that if an act can be prosecuted in peacetime, it cannot be prosecuted in wartime. This betrays a misconception about the relationship between the laws of war and the laws regulating a peacetime situation. The laws of war do not necessarily displace the laws regulating a peacetime situation; the former may add elements requisite to the protection which needs to be afforded to victims in a wartime situation.

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Notion(s) Filing Case
Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

82. The validity of cumulative convictions in relation to the same conduct, charged as a violation of the laws or customs of war under Article 3 and as a crime against humanity under Article 5 of the Statute, is based on the notion that each crime has a special ingredient not possessed by the other.  Following the reasoning of the Appeals Chamber in the Delalić appeal judgement,[1] the Appeals Chamber notes that, Article 3 requires a close link between the acts of the accused and the armed conflict; this element is not required by Article 5.  On the other hand, Article 5 requires proof that the act occurred as part of a widespread or systematic attack against a civilian population; that element is not required by Article 3.  Thus each Article has an element requiring proof of a fact not required by the other.  As a result, cumulative convictions under both Articles 3 and 5 are permissible.  In such a situation, it is not possible to hold, as is submitted by the cross-appellant, that either offence is a “lesser included offence” of the other.

[1] Also applied in Prosecutor v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001, para. 556, pp. 198-199.

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ICTR Statute Article 3 ICTY Statute Article 3;
Article 5
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

99. […] When attempting to ascertain State practice with a view to establishing the existence of a customary rule or a general principle, it is difficult, if not impossible, to pinpoint the actual behaviour of the troops in the field for the purpose of establishing whether they in fact comply with, or disregard, certain standards of behaviour. This examination is rendered extremely difficult by the fact that not only is access to the theatre of military operations normally refused to independent observers (often even to the ICRC) but information on the actual conduct of hostilities is withheld by the parties to the conflict; what is worse, often recourse is had to misinformation with a view to misleading the enemy as well as public opinion and foreign Governments. In appraising the formation of customary rules or general principles one should therefore be aware that, on account of the inherent nature of this subject-matter, reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions.

[…]

126. The emergence of the aforementioned general rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts. […]

127. Notwithstanding these limitations, it cannot be denied that customary rules have developed to govern internal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities.

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ICTY Statute Article 3
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

134. […] [C]ustomary international law imposes criminal liability for serious violations of common Article 3 [of the Geneva Conventions of 1949], as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.

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ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3.
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

143. […] It should be emphasised again that the only reason behind the stated purpose of the drafters that the International Tribunal should apply customary international law was to avoid violating the principle of nullum crimen sine lege in the event that a party to the conflict did not adhere to a specific treaty. (Report of the Secretary-General, at para. 34.) It follows that the International Tribunal is authorised to apply, in addition to customary international law, any treaty which: (i) was unquestionably binding on the parties at the time of the alleged offence; and (ii) was not in conflict with or derogating from peremptory norms of international law, as are most customary rules of international humanitarian law. […]

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ICTY Statute Article 3
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

94. […] The following requirements must be met for an offence to be subject to prosecution before the International Tribunal under Article 3 [of the ICTY Statute]:

(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met (see below, para. 143);

(iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a "serious violation of international humanitarian law" although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby "private property must be respected" by any army occupying an enemy territory;

(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

It follows that it does not matter whether the "serious violation" has occurred within the context of an international or an internal armed conflict, as long as the requirements set out above are met.

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ICTY Statute Article 3
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

89. […] Article 3 [of the ICTY Statute] is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5, more specifically: (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as "grave breaches" by those Conventions; (iii) violations of common Article 3 and other customary rules on internal conflicts; (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e., agreements which have not turned into customary international law (on this point see below, para. 143).

90. […] It is therefore appropriate to take the expression "violations of the laws or customs of war" to cover serious violations of international humanitarian law.

91. Article 3 thus confers on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5. Article 3 is a fundamental provision laying down that any "serious violation of international humanitarian law" must be prosecuted by the International Tribunal. In other words, Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. Article 3 aims to make such jurisdiction watertight and inescapable.

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ICTY Statute Article 3
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Judgement on Sentencing Appeal - 26.01.2000 TADIĆ Duško
(IT-94-1-A and IT-94-1-Abis)

69. The Appeals Chamber has taken account of the arguments of the parties and the authorities to which they refer, inclusive of previous judgments of the Trial Chambers and the Appeals Chamber of the International Tribunal.  After full consideration, the Appeals Chamber takes the view that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime.  The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.  […]  

See also at pp. 35-56 the Separate Opinions of Judge Shahabuddeen and Judge Cassese

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Decision on Denial of Judgement of Acquittal - 11.12.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR73.9)

16. As a preliminary matter, the Appeals Chamber recalls that under Common Article 3, detention of a combatant during an armed conflict automatically renders him or her hors de combat, and that taking any individual hostage is among the acts which “are and shall remain prohibited at any time and in any place whatsoever”.[1] The plain text of Common Article 3 thus indicates that the prohibition on hostage-taking is both absolute and without exception. The Appeals Chamber further recalls that “any conduct of hostage-taking involving [Prisoners of War]] could not but be in violation of the Third Geneva Convention” and that “[t]]he main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of [C]]ommon Article 3, which expresses the shared principles which govern the Conventions”.[2]

[1] Common Article 3 [Common Article 3(1)(b) of the Geneva Conventions of 1949]], para. 1. See also Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgement, 17 July 2008, para. 179 n. 460 (“if a victim was found to be detained by an adverse party at the time of the alleged offence against him, his status as either a civilian or combatant would no longer be relevant because a detained person cannot, by definition, directly participate in hostilities.”).

[2] 2009 Hostage Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.5, Decision on Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 of the Indictment, 9 July 2009]], para. 21. See also Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 […]], para. 70 (“Common Article 3 […] reflects the same spirit of the duty to protect members of armed forces who have laid down their arms and are detained as the specific protections afforded to prisoners of war in Geneva Convention III as a whole, particularly in its Article 13”). Cf. Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135, Article 13 (“Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.”).

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Decision on Denial of Judgement of Acquittal - 11.12.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR73.9)

17. Karadžić suggests that the pre-announced intention to take enemy combatants hostage if certain conditions are not met allows a military force to assume control over these individuals in a way that completes the crime of hostage-taking without triggering the protections of Common Article 3.[1] However, Karadžić does not identify any aspect of the text or history of Common Article 3 or any jurisprudence supporting his contention that in particular circumstances, detention of combatants falls outside the scope of Common Article 3 protections. Karadžić cites the Sesay Judgement, rendered by the Appeals Chamber of the Special Court for Sierra Leone,[2] which does not contradict the Appeals Chamber’s analysis here, because, even if the act of hostage-taking was completed upon the detention of the UN Personnel, as Karadžić asserts,[3] their detention by Bosnian Serb forces still triggered the protections of Common Article 3. 

18. Insofar as Karadžić asserts that the prohibition on hostage-taking is less broad than other prohibitions in Common Article 3, that contention contravenes the Appeals Chamber’s holding that “[t]]he prohibition of hostage-taking shares the very same scope of application with the remaining rules enshrined in [C]]ommon Article 3.”[4] Furthermore, Karadžić’s interpretation of Common Article 3 would allow for situations where detainees could not be assured of basic protections. This risks undermining a fundamental purpose of Common Article 3: providing minimum and absolute protections to detained individuals, whether combatants or not.[5]

19. Karadžić is unconvincing in suggesting that the Impugned Decision is erroneous because it renders the Chapeau Requirement of Common Article 3 superfluous.[6] The Appeals Chamber recalls that the Impugned Decision addresses only one aspect of Common Article 3’s protections: the taking of hostages.[7] However, Common Article 3’s protections extend beyond hostage-taking and are also triggered in circumstances other than when an individual is detained and thus placed hors de combat. The Chapeau Requirement is indisputably meaningful and relevant to the other crimes prohibited under Common Article 3. For example, a sick soldier who has laid down his arms or is unable to fight because of sickness is a “[p]erson[] taking no active part in the hostilities” under Common Article 3 and may not be murdered or subjected to humiliating treatment; the Impugned Decision does not purport to apply to, nor does it affect, such situations.

20. Karadžić also fails to explain his assertion that considering all detained combatants to be hors de combat would render all detentions of combatants unlawful.[8] The fact that detainees are considered hors de combat does not render their detention unlawful in itself. Rather, their hors de combat status triggers Common Article 3’s protections, including the prohibition on their use as hostages. Likewise unconvincing is Karadžić’s argument that the similarity of his actions to those allegedly taken by UN troops at the same time as Bosnian Serb forces detained the UN Personnel somehow proves the lawfulness of Karadžić’s actions.[9] Karadžić’s speculative allegations on actions supposedly taken by UN troops are not relevant to Karadžić’s individual criminal responsibility, nor do they demonstrate any error in the Trial Chamber’s analysis about the UN Personnel’s hors de combat status after their detention.

21. Accordingly, the Appeals Chamber holds that Common Article 3’s prohibition on hostage‑taking applies to all detained individuals, irrespective of whether their detention is explicitly sought in order to use them as hostages and irrespective of their prior status as combatants. Karadžić has not demonstrated that the Trial Chamber erred in finding that “even if the UN [P]]ersonnel were combatants immediately before their detention, they were rendered ‘hors de combat’ by virtue of their detention and thus were entitled to the minimum protections guaranteed by Common Article 3.”[10]

[1] See Appeal [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.9, Appeal from Denial of Judgement of Acquittal for Hostage Taking, 25 July 2012]], paras 36-40; Reply [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.9, Reply Brief: Appeal from Denial of Judgement of Acquittal for Hostage Taking, 10 August 2012]], para. 4.

[2] Appeal, para. 39, quoting Prosecutor v. Issa Hassan Sesay et al., Case No. SCSL-04-15-A, Judgment, 26 October 2009 […]], para. 597.

[3] See Appeal, paras 36-40.

[4] 2009 Hostage Decision, para. 26.

[5] See 2009 Hostage Decision, paras 21, 23, 25-26.

[6] Appeal, para. 38; Reply, para. 13.

[7] SeeT. 28 June 2012 pp. 28735-28738.

[8] Reply, para. 12.

[9] See Reply, paras 14-16.

[10]T. 28 June 2012 p. 28735 (emphasis added).

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Decision on Denial of Judgement of Acquittal - 11.12.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR73.9)

22. Finally, turning to Karadžić’s contentions with respect to mens rea,[1] the Appeals Chamber recalls that “the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.”[2] Insofar as Karadžić contends that the Impugned Decision should be reversed because it did not respect this principle, the Appeals Chamber is not persuaded by his contentions. Even if Karadžić had believed that the UN Personnel were taking active part in the hostilities prior to their detention and thus were not entitled to protection under Common Article 3, his erroneous belief about the legal significance of the UN Personnel’s status would not shield him from criminal liability for using them as hostages after their detention. As explained above, Common Article 3 would apply to the detained UN Personnel irrespective of their status prior to detention,[3] and any misunderstanding by Karadžić with respect to this issue is not a valid defence.[4]

[1] Appeal, paras 53-60; Reply, paras 19-30.

[2] Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Judgement, 19 May 2010, para. 66.

[3] See supra [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.9, Decision of Appeal from Denial of Judgement of Aquittal for Hostage-Taking, 11 December 2012]], paras 16-17.

[4] Cf. In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, 19 July 2011, para. 147, citing Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 27 (rejecting the mistake of law defence in contempt cases).

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Decision on Hostage-Taking - 09.07.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.5)

Count 11 of the operative Indictment in this case charges the Appellant with hostage taking of UN personnel as a war crime under common Article 3 of the Geneva Conventions of 1949.[1] The Appellant requested that Count 11 be dismissed as defective. He claimed that the allegations in Count 11 relate to Prisoners of War (“POWs”) while the scope of application of common Article 3 to international armed conflicts is limited to the hostage-taking of civilians. In particular, the Appellant observed that the Third Geneva Convention does not include an express prohibition of hostage taking of POWs. He argued that this lacuna could not be fulfilled by considering that common Article 3 is also applicable to international armed conflicts. In the Appellant’s view, the Third Geneva Convention should be considered as lex specialis to common Article 3, thus excluding the applicability of the crime of hostage-taking to POWs. The Appeals Chamber dismissed the Appeal in light of the following considerations.

21. First, the Appeals Chamber considers that the prohibition of hostage-taking cannot be considered as extraneous to the Third Geneva Convention. As the Prosecution correctly points out, the protection of POWs is covered by an extensive net of provisions within the Third Geneva Convention which, read together, lead to the conclusion that any conduct of hostage-taking involving POWs could not but be in violation of the Third Geneva Convention. Although not per se conclusive, the analysis of the drafting of the Geneva Conventions further substantiates this consideration.[2] The main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of common Article 3, which expresses the shared principles which govern the Conventions and establishes a minimum set of mandatory rules in non-international armed conflict.[3]

22. Common Article 3 clearly states that the conduct listed in subparagraphs (a) to (d) of paragraph 1, including in subparagraph (b) the “taking of hostages”, is prohibited “with respect to the above-mentioned persons”, that is “[p]ersons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed ‘hors de combat’ [...]”. In light of the clear definition of the reach of this paragraph, which according to its plain wording applies without exception to all of the prohibitions listed in subparagraphs (a) to (d) of paragraph 1, the Appeals Chamber considers that the Appellant’s argument that the prohibition of hostage-taking in common Article 3 “is no other than the prohibition of civilian hostage-taking in the Fourth Geneva Convention”[4] is unsubstantiated. Conversely, common Article 3 clearly refers the prohibition on taking hostage of any person taking no active part in the hostilities.[5]  

25. In any event, the Appeals Chamber recalls that the well-established jurisprudence of the Tribunal confirms that, under customary international law, the protections enshrined in common Article 3 apply in both international and non-international armed conflicts.[6] The Appeals Chamber considers that the Appellant fails to provide any sensible argument suggesting an exception to, or limitation on, the prohibition on hostage-taking for a particular category of persons in a particular type of conflict. Specifically, the Appeals Chamber considers the Applicant’s attempt to read the Tadić Decision on Jurisdiction as only justifying the extension of protections from the framework of international armed conflicts to the context of non-international armed conflict, and not vice versa, as without merit.[7] The Applicant only focuses on one part of the reasoning in the Tadić Decision on Jurisdiction, unduly disregarding its ultimate conclusion. In particular, of the entire Appeals Chamber’s discussion on the existence of customary rules of international law governing armed conflicts, the Appellant fixates on the Appeals Chamber’s observation of a tendency towards the blurring of the distinction between international and non-international armed conflicts in a certain historical moment. However, the Appellant fails to appreciate the full meaning of the Appeals Chamber’s conclusive finding that “at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant”,[8] which unequivocally refers to all of the rules contained in common Article 3, including the prohibition of hostage-taking. 

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s Third Amended Indictment, 27 February 2009 (“Indictment”), paras 25-29, 83-87.

[2] See [Final Record of the Diplomatic Conference of Geneva of 1949, Volume II, Section A, (Federal Political Department Berne, W.S. Hein & Co., Reprint, 2004)], pp. 399-400:

“The Coordination Committee drew attention to the fact that Article 31 of the Civilians Convention: ‘The taking of hostages is prohibited’, had no counterpart in the Prisoners of War Convention.

Mr. GARDNER (United Kingdom) said that the treatment of prisoners of war was so completely covered in the Prisoners of War Convention, that it was impossible to imagine circumstances in which hostages could be taken without infringing one or more of the existing Articles. The suggested addition would therefore have no practical justification.

The Committee decided to take no action on the observation of the Coordination Committee”.

[3] ICRC Commentary [Jean de Preux et al., III Geneva Convention Relative to the Treatment of Prisoners of War: Commentary, 3 Commentary on the Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red Cross, 1960)], pp. 34-35.

[4] Reply [Reply Brief: Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 for Lack of Jurisdiction, 29 May 2009], para. 11.

[5] See ICRC Commentary, p. 40.

[6] See, e.g., Prosecutor v. Mile Mrkšić and Veselin [ljivančanin , Case No. IT-95-13/1-A, Judgement, 5 May 2009, (“Mrkšić Appeal Judgement”), para. 70; Prosecutor v. Dragoljub Kunarac et al, Case No. IT-96-23&IT-96-23/1-A, Judgement, 12 June 2002, (“Kunarac Appeal Judgement”), para. 68; [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”)], paras 143, 147, 150; Tadić Decision on Jurisdiction [Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras 89, 98, 102.  See also International Court of Justice, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), 27 June 1986, para. 219.

[7] See Appeal [Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 for Lack of Jurisdiction], paras 22-25.

[8] Tadić Decision on Jurisdiction, para. 102.

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ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3
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Decision on Hostage-Taking - 09.07.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.5)

23. The well-established jurisprudence of the Tribunal has repeatedly affirmed that the body proper of the Geneva Conventions cannot be interpreted in such a way as to afford lesser protection to individuals than that which is afforded by common Article 3. (…)  

24. […] [T]he Geneva Conventions proper provide a higher, rather than lower, level of protection than that offered in common Article 3. The Appeals Chamber agrees with the Prosecution that, in this normative framework, the lex specialis argument is inevitably irrelevant, as the Third Geneva Convention must be interpreted in light of common Article 3, rather than being considered in conflict with it.

26. The Appeals Chamber reiterates the applicability of common Article 3 under customary international law to both non-international and international armed conflicts, without any exceptions or limitations.[1] The value of common Article 3 as a “minimum yardstick” of protections applicable regardless of the nature of the conflict necessarily implies that the protections enshrined therein must be applied in full and cannot be applied in part. The prohibition of hostage-taking shares the very same scope of application with the remaining rules enshrined in common Article 3.[2]

[1] See, e.g., Mrkšić Appeal Judgement, para. 70; Kunarac Appeal Judgement, para. 68; Čelebići Appeal Judgement, paras 143, 147, 150; Tadić Decision on Jurisdiction, paras  89, 98, 102.

[2] See Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law, Volume 1: Rules, (Cambridge: International Committee of the Red Cross & CambridgeUniversity Press, 2005), pp. 334, 336. 

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ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3
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Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

369. […] Simultaneous convictions are permissible for war crimes, crimes against humanity and complicity to commit genocide as each has a materially distinct element. The Appellant’s conviction for complicity to commit genocide was based on his aiding and abetting principal perpetrators who killed Tutsi because of their ethnicity.[1] As noted earlier, the mens rea for complicity in genocide, for those forms of complicity amounting to aiding and abetting, is knowledge of the specific intent of the perpetrator(s).[2] The Appellant’s convictions for crimes against humanity necessitated proof of a widespread or systematic attack against a civilian population, whereas convictions for war crimes require that the offences charged be closely related to the armed conflict. In the Trial Chamber’s opinion, this nexus was clearly established.[3]

See also para. 368.

[1] Trial Judgement [The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003], paras 435-436.

[2] See supra para. 316.

[3] Trial Judgement, paras 516-522.

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Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

443.    The Appeals Chamber is of the view that the minimum protection provided for victims under common Article 3 [of the Geneva Conventions of 1949] implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category.

444.    In paragraph 630 of the Judgment, the Trial Chamber found that the four Conventions “were adopted primarily to protect the victims as well as potential victims of armed conflicts”.  It went on to hold that “[t]he category of persons to be held accountable in this respect then, would in most cases be limited to commanders, combatants and other members of the armed forces”. Such a finding is prima facie not without reason. In actuality authors of violations of common Article 3 will likely fall into one of these categories. This stems from the fact that common Article 3 requires a close nexus between violations and the armed conflict.  This nexus between violations and the armed conflict implies that, in most cases, the perpetrator of the crime will probably have a special relationship with one party to the conflict.  However, such a special relationship is not a condition precedent to the application of common Article 3 and, hence of Article 4 of the Statute. In the opinion of the Appeals Chamber, the Trial Chamber erred in requiring that a special relationship should be a separate condition for triggering criminal responsibility for a violation of Article 4 of the Statute.

See also paras 435-442.

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ICTR Statute Article 4 Other instruments Geneva Conventions: common Article 3
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

44. At the outset, the Appeals Chamber recalls the fundamental distinction in international law between the rules governing a State’s right to resort to armed force (jus ad bellum) and the rules applicable in armed conflict (jus in bello). The Appeals Chamber has previously held that the application of the latter rules is not affected by the legitimacy of the use of force by a party to the armed conflict.[1]

45. The Trial Chamber found that the predominant objective of the operation in Ljuboten on 12 August 2001 was to indiscriminately attack ethnic Albanians and their property in retaliation for the actions of the NLA.[2] The Appeals Chamber further notes that an operation whose objective was a legitimate and defensive action against “terrorists” would not render Common Article 3 inapplicable. The issue is whether the conduct of the individual was in violation of international humanitarian law. Accordingly, the Trial Chamber did not err in applying Common Article 3 in the present case.

46. With respect to Tarčulovski’s submissions on the allegedly proportionate use of force during the operation, the Appeals Chamber recalls that the targeting of civilians is absolutely prohibited in customary international law, and that civilian casualties are only legitimate if their deaths are incidental to the conduct of military operations.[3] The Trial Chamber’s finding that the predominant objective of the operation was to indiscriminately attack ethnic Albanians establishes that the Trial Chamber was satisfied that the casualties were not incidental to the conduct of the operation in Ljuboten. Tarčulovski’s submissions are therefore rejected.

51. The Appeals Chamber finds that even if a lawful governmental order had existed to conduct the operation in Ljuboten, Tarčulovski would still incur criminal responsibility for statutory crimes committed in the course of this operation.[4] The fact that a State is acting in lawful self-defence (jus ad bellum) is irrelevant for a determination as to whether a representative of this State has committed a serious violation of international humanitarian law during the exercise of the State’s right to self-defence which constituted part of an armed conflict (jus in bello). Consequently, the Trial Chamber did not err in attributing criminal liability to Tarčulovski without making a finding on whether an order was lawfully given by the President of the FYROM to carry out a self-defence operation against domestic “terrorists”.[5] Tarčulovski’s submissions in this respect are rejected.

[1] Kordić and Čerkez Appeal Judgement, para. 812; Martić Appeal Judgement, para. 268. Kordić and Čerkez Trial Judgement, para. 452: “The Trial Chamber, however, would emphasise that military operations in self-defence do not provide a justification for serious violations of international humanitarian law.” ICRC Commentary on Additional Protocols, para. 1927: “[T]he right to self-defence does not include the use of measures which would be contrary to international humanitarian law, even in a case where aggression has been established and recognized as such by the Security Council.”

[2] Trial Judgement, paras 571-573.

[3] Galić Appeal Judgement, para. 190.

[4] Cf. Article 7(4) of the Statute.

[5] Cf. Trial Judgement, paras 541 and 594.

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ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3.
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

66. The Appeals Chamber recalls its holding that:

The principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.[1]

It is well-established in the Tribunal’s jurisprudence that the elements of a Common Article 3 crime encompass the requirement that the victim did not take an active part in the hostilities at the time when the crime was committed.[2] Therefore, the Appeals Chamber is satisfied that the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.[3]

67. In the present case, the Trial Chamber did not make explicit findings on the mens rea of the direct perpetrators in relation to the status of the victims of the Common Article 3 crimes of murder and cruel treatment.[4] However, when read as a whole,[5] the Trial Judgement shows that the Trial Chamber examined whether the direct perpetrators knew or should have been aware of the status of the victims in relation to each crime, as demonstrated by its findings on the factual circumstances in which the crimes were committed.[6] […]

67. […] In these circumstances, where the direct perpetrators’ knowledge of the status of the victims was part of the Trial Chamber’s factual findings, the Appeals Chamber need not consider whether such findings are necessary for a conviction for planning, instigating and ordering. Tarčulovski’s argument in this regard is dismissed. Under the third and fourth grounds of appeal, the Appeals Chamber will consider further whether the totality of the Trial Chamber’s factual findings in relation to the status of the victims are reasonable.[1]

68. With respect to Tarčulovski’s mens rea, the Appeals Chamber recalls that he was convicted of planning, instigating and ordering crimes including those under Common Article 3. Hence, Tarčulovski was required to have the direct intent or the awareness of the substantial likelihood that the crimes would be committed in the execution of his plan, instigation and order.[2] Indeed the Trial Chamber found that Tarčulovski was responsible for planning, instigating and ordering the “deliberate but indiscriminate attack against the residents of Ljuboten of Albanian ethnicity”.[3] Given the indiscriminate nature of the attack, the Appeals Chamber is satisfied that the Trial Chamber reasonably concluded that Tarčulovski possessed the requisite mens rea for these modes of liability.[4] His argument in this regard is dismissed.

[1] See infra paras 86, 95, 102 and 119.

[2] See Kordić and Čerkez Appeal Judgement, paras 29-32, and infra paras 132 and 174.

[3] Trial Judgement, para. 573. See also ibid., para. 574; infra paras 135, 153-154, 157 and 161.

[4] Trial Judgement, para. 576. See also the Appeals Chamber’s findings relevant to this matter in infra paras 132, 135, 150 and 174. Cf. Milošević Appeal Judgement, para. 273.

[1] Naletilić and Martinović Appeal Judgement, para. 114; see also ibid., para. 118. 

[2] Strugar Appeal Judgement, para. 172; Čelebići Appeal Judgement, paras 420 and 423-424.

[3] See Naletilić and Martinović Appeal Judgement, paras 118-121, analysing, in light of the principle of individual guilt, the mens rea requirement in relation to the international or internal nature of an armed conflict and arriving at the same conclusion. Concerning the mens rea of the crime of attacks against civilians, the Appeals Chamber held that it must be proven that the perpetrator was aware or should have been aware of the civilian status of the persons attacked (Strugar Appeal Judgement, para. 271, citing Galić Trial Judgement, para. 55). See Haradinaj et al. Trial Judgement, para. 62; Milutinović et al. Trial Judgement, para. 134; Delić Trial Judgement, para. 44; Martić Trial Judgement, para. 47; Krajišnik Trial Judgement, para. 847; Halilović Trial Judgement, para. 36. Cf. Elements of Crimes, Article 8(2)(c)(i)-1 and 8(2)(c)(i)-3 of the ICC Statute.

[4] Trial Judgement [Prosecutor v. Ljube Boškoski and Johan Tačulovski, Case No. IT-04-82-T, Judgement, 10 July 2008], paras 301-303. The Appeals Chamber notes that the Trial Chamber made explicit findings on all the other aspects of the mens rea of the direct perpetrators in relation to crimes of murder, wanton destruction and cruel treatment (Trial Judgement, paras 312, 320, 328, 330-332, 380, 385 and 387-388). In the Tarčulovski Reply Brief, Tarčulovski appears to contest these findings, in particular due to the lack of specific identification of the direct perpetrators (Tarčulovski Reply Brief, paras 53 (murder), 75 (wanton destruction) and 78 (cruel treatment); see also Tarčulovski Appeal Brief, para. 166). The Appeals Chamber finds that the Trial Chamber reasonably made these findings in light of the evidence taken as a whole. As regards the identification of the direct perpetrators, see infra paras 73-75 and 89.

[5] See Orić Appeal Judgement, para. 38; Naletilić and Martinović Appeal Judgement, para. 435; Stakić Appeal Judgement, para. 344.

[6] See, e.g., Trial Judgement, paras 303, 310-312, 314-320, 323-328, 344-345, 383, 385 and 387-388. 

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ICTY Statute Article 3;
Article 3(b)
Other instruments Geneva Convention: common Article 3.
Notion(s) Filing Case
Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

Regarding Brđanin’s argument that rapes for which he was found responsible were “individual domestic crimes”, the Appeals Chamber remarked

256.    […] that the Trial Chamber clearly established the existence of an international armed conflict and furthermore reasonably concluded that the rapes in Teslić, committed as they were during weapons searches, were committed in the context of the armed conflict, and were not “individual domestic crimes” as suggested by Brđanin.[1] Crimes committed by combatants and by members of forces accompanying them while searching for weapons during an armed conflict, and taking advantage of their position, clearly fall into the category of crimes committed “in the context of the armed conflict.”

[1] See also Kunarac et al. Appeal Judgement, para. 58, explaining the distinction between a purely domestic offense and a war crime under Article 3 of the Statute.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

150. It is both legally and morally untenable that the rules contained in common Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character. The rules of common Article 3 are encompassed and further developed in the body of rules applicable to international conflicts. It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical. In the Appeals Chamber’s view, something which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader. The Appeals Chamber is thus not convinced by the arguments raised by the appellants and finds no cogent reasons to depart from its previous conclusions.

See also paragraphs 143-149.

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ICTY Statute Article 3 Other instruments Geneva Conventions: common Article 3.
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

57. […] The Appeals Chamber recalls that the protection from attacks afforded to individual civilians by Article 51(2) of Additional Protocol I is suspended pursuant to Article 51(3) of Additional Protocol I when and for such time as they directly participate in hostilities. Accordingly, to establish that the crimes of terror and unlawful attacks against civilians had been committed, the Trial Chamber was required to find beyond reasonable doubt that the victims of individual crimes were civilians and that they were not participating directly in the hostilities.[1] […]

[1] Strugar Appeal Judgement, paras 172, 187; Galić Appeal Judgement, para. 100. See also Galić Trial Judgement, paras 47, 48, 132-133.

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Other instruments Additional Protocol I: Article 51(2)
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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

264. […] In any case, his argument that the attack against Hrasnica could be legitimate as it anticipated concrete and direct military advantage[1] must fail because, due to its disproportionate and indiscriminate nature, it was unlawfully directed against the civilian population in the area.[2] […]

[1] Strugar Appeal Judgement, para. 179, referring to Additional Protocol I, Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b); Galić Trial Judgement, para. 58 (and sources cited therein); Galić Appeal Judgement, paras 191-192.

[2] See supra, Section VII.B, para. 142. As consistently held by the Appeals Chamber, “whether an attack was ordered as pre-emptive, defensive or offensive is from a legal point of view irrelevant […]. The issue at hand is whether the way the military action was carried out was criminal or not.” (Martić Appeal Judgement, para. 268, quoting Kordić and Čerkez Appeal Judgement, para. 812). See also supra, para. 250.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

The Appeals Chamber proceeded to analyse first whether crimes against humanity attract harsher penalties than war crimes and second whether crimes resulting in loss of life are to be punished more severely than other crimes.                                                        

241. […] the Appellant relies on, inter alia, certain decisions of this Tribunal.[1]  In particular, he draws attention to the judgement of the Appeals Chamber in the Erdemović case in which the majority of the Appeals Chamber found that crimes against humanity should attract a harsher penalty than war crimes.[2]

242. This Chamber notes that, when the Appellant’s Amended Brief was filed on 14 September 1999, the Judgement of the Appeals Chamber in the Tadić Sentencing Appeals Judgement was yet to be delivered.[3]  In this latter case, the Chamber considered the case law now relied upon by the Appellant, but reached a conclusion, by majority, contrary to that which the Appellant now advocates:

[T]here is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.[4]

243. This Chamber notes that the same arguments now advanced by the Appellant were considered and rejected by the Appeals Chamber in the Tadić Sentencing Appeals Judgement. The question arises whether this Chamber should follow the ratio decidendi on this issue set out in that Judgement.  In the recent Aleksovski Appeals Judgement the Appeals Chamber held that:

[w]here, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from  both decisions for cogent reasons in the interests of justice.[5]

The Appeals Chamber will follow its decision in the Tadić Sentencing Appeals Judgement on the question of relative gravity as between crimes against humanity and war crimes.

The Appeals Chamber also concluded:

246. […] The Appeals Chamber considers [the view that crimes resulting in loss of life are to be punished more severely than those not leading to the loss of life] to be too rigid and mechanistic.

247. Since the Tadić Sentencing Appeals Judgement, the position of the Appeals Chamber has been that there is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter.  It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes. 

[1] Notably the Tadić Sentencing Judgement and the Joint Separate Opinion of Judge McDonald and Judge Vohrah in Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997.

[2] Joint Separate Opinion of Judge McDonald and Judge Vohrah in Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, para. 20.

[3] Although the Tadić Sentencing Appeal Judgement was pronounced prior to the oral hearings in this case, counsel for the Appellant did not change this line of argument.

[4] Tadić Sentencing Appeals Judgement, para. 69 (emphasis added). Further argument in support of this view was set out in the Separate Opinion of Judge Shahabuddeen in that same judgement.  See also Prosecutor v. Duško Tadić, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 Nov. 1999, Separate Opinion of Judge Robinson, in which Judge Robinson expressed the view that there is no basis for “the conclusion that, as a matter of principle, crimes against humanity are more serious violations of international humanitarian law than war crimes” (ibid., p.10) and Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, Separate and Dissenting Opinion of Judge Li, in which Judge Li stated “that the gravity of a criminal act, and consequently the seriousness of its punishment, are determined by the intrinsic nature of the act itself and not by its classification under one category or another”.  Ibid., para. 19.

[5] Aleksovski Appeals Judgement,  para. 111.  See also Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, para. 92.

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Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

57. There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved.[1] A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place. As indicated by the Trial Chamber, the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting.[2]  It would be sufficient, for instance, for the purpose of this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.[3]

58. What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed.  It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.  Hence, if it can be established […] that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. […]

59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.

[1]   Tadić Jurisdiction Decision [Prosecutor  v Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras 67 and 70.

[2]   See Trial Judgement [Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No. IT-96-23& IT-96-23/1-A, Judgement, 12 June 2002], para 568.

3   Tadić Jurisdiction Decision, para 70.

 

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ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

67. The determination of what constitutes a war crime is therefore dependent on the development of the laws and customs of war at the time when an act charged in an indictment was committed.  As was once noted, the laws of war “are not static, but by continual adaptation follow the needs of a changing world”.[1] There is no question that acts such as rape […], torture and outrages upon personal dignity are prohibited and regarded as criminal under the laws of war and that they were already regarded as such at the time relevant to these Indictments.

[1]   Trial of the Major War Criminals before the International Military Tribunal, Nüremberg, 14 November 1945-1 October 1946, vol 1, p 221.

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ICTY Statute Article 3
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Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

At paras 81-84, the Appeals Chamber clarified its position in that respect. It concluded:

85. […] while binding conventional law that prohibits conduct and provides for individual criminal responsibility could provide the basis for the International Tribunal’s jurisdiction, in practice the International Tribunal always ascertains that the treaty provision in question is also declaratory of custom.

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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

53. The Appeals Chamber recalls that it is well established that the principle of distinction requires parties to distinguish at all times “between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives”.[1] There is an absolute prohibition against the targeting of civilians in customary international law,[2] encompassing indiscriminate attacks.[3] […]

54. There is no requirement that particular areas or zones be designated as civilian or military in nature. Rather, a distinction is to be made between the civilian population and combatants, or between civilian and military objectives. Such distinctions must be made on a case-by-case basis. Further, considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milošević’s argument regarding the proportion of civilians present in areas “replete with military objectives”[4] unpersuasive. In fact, Milošević does not even attempt to argue that the civilian victims in Sarajevo were proportional casualties of lawful military attacks launched by the SRK. A general assertion that the attacks were legitimate because they allegedly targeted “military zones” throughout the city is bound to fail.

55. The Appeals Chamber recognizes that some of the language used in paragraphs 896-904 of the Trial Judgement may appear confusing and lead to the conclusion that the Trial Chamber actually accepted Milošević’s approach of defining the status of the “areas”. However, the Appeals Chamber understands the Trial Judgement to have adopted this terminology for the sole purpose of addressing Milošević’s arguments, whereas in reality, the Trial Chamber meant to establish the civilian status of the population targeted in specific incidents.[5]

139. The Appeals Chamber has already found that despite the somewhat confusing language used by the Trial Chamber, it correctly engaged in a case-by-case analysis of the targets and modalities of the attacks, rather than that of “zones”.[6] Therefore, the Appeals Chamber will pursue its analysis on the basis of its understanding that when referring to certain neighbourhoods of Sarajevo, the Trial Chamber meant to establish the civilian status of the population targeted in the attacks that took place there during the Indictment period (and not that of the areas or zones as such).

[1] Galić Appeal Judgement, para. 190.

[2] Galić Appeal Judgement, para. 190, referring to the Blaškić Appeal Judgement, para. 109.

[3] By way of example, the Appeals Chamber recalls Article 51(5)(a) of Additional Protocol I [Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3] which, although mainly concerned with cases of carpet bombing and similar military activities (ICRC Commentary to Additional Protocols [ Claude Pillot, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva/Dordrecht: ICRC/Martinus Nijhoff Publishers, 1987) International Committee of the Red Cross of Geneva, 1987], paras 1979-1981) and not with a protracted campaign of sniping and shelling during a siege-like situation, is undoubtedly instructive of the approach belligerents are required to take in establishing and pursuing military targets.

[4] See supra, Section III.C.1.(a), para. 44.

[5] See also infra, Section VII.B, paras 139 et seq. The Appeals Chamber further notes that Section III.A.3.(a) of the Trial Judgement containing the Trial Chamber’s evaluation of the evidence is entitled “Civilian Status of the Population”.

[6] See supra, Section III.C.1.(b)(ii), para. 55.

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ICTR Statute Article 3 ICTY Statute Article 5