Customary law

Notion(s) Filing Case
Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.
(IT-01-47-AR72)

13.     […] Article 3 common to the Geneva Conventions of 1949, which has long been accepted as having customary status.[1] […]

[1] See Corfu Channel, Merits, I.C.J. Reports 1949, p.22, and Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1986, pp. 112 and 114.

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Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

113. In light of the object and purpose of the Geneva Conventions, which is to guarantee the protection of certain fundamental values common to mankind in times of armed conflict, and of the customary nature of their provisions,[1] the Appeals Chamber is in no doubt that State succession has no impact on obligations arising out from these fundamental humanitarian conventions.  In this regard, reference should be made to the Secretary-General’s Report submitted at the time of the establishment of the Tribunal, which specifically lists the Geneva Conventions among the international humanitarian instruments which are “beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise”.[2]  The Appeals Chamber finds further support for this position in the Tadić Jurisdiction Decision.[3]

[1]    Article 158, para 4, of Geneva Convention IV provides that the denunciation of the Convention “shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience”.  Further, Article 43 of the 1969 Vienna Convention on the Law of Treaties entitled “Obligations imposed by international law independently of a treaty” provides: “The invalidity, termination, or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation […] shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty”.

[2]    Secretary-General’s Report, para 34.

[3]    [Prosecutor v Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995], paras 79-85.

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Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

283.   The Appeals Chamber recalls that the ICTY Trial Chamber in the Galić case determined, by majority, that the ICTY had subject-matter jurisdiction over the crime of terror under Article 3 of the ICTY Statute.[1] The ICTY Appeals Chamber in the same case confirmed, by majority, the ICTY’s jurisdiction over the crime of terror, clarifying that customary international law imposed individual criminal responsibility for violations of the prohibition of terror against the civilian population at the time of the commission of the crimes for which Galić was convicted.[2] The ICTY Appeals Chamber in the D. Milošević case, by majority, subsequently reaffirmed the ICTY’s jurisdiction over the crime of terror.[3] In light of this jurisprudence, the Appeals Chamber considers that the matter of the ICTY’s jurisdiction over the crime of terror was settled by the ICTY Appeals Chamber and was therefore binding on the Trial Chamber in the present case.[4] As it was not open to the Trial Chamber to depart from the existing jurisprudence in this respect, the Appeals Chamber rejects Mladić’s contention that the Trial Chamber erred in failing to give sufficient weight to his submissions that there exist cogent reasons to do so.

284.   As to whether there exist cogent reasons for the Appeals Chamber to depart from the jurisprudence in this regard, the standards of appellate review require Mladić to demonstrate that the decision to exercise jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[5] […] 

285.  A review of the Galić Appeal Judgement reveals that the judges of the majority applied the same legal principles as Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case in reaching their conclusions, namely that: (i) the ICTY has jurisdiction to prosecute a violation of a rule of international humanitarian law under Article 3 of the ICTY Statute when four conditions are fulfilled, including when “the violation of the rule must entail, under customary international law, the individual criminal responsibility of the person breaching the rule” (“Fourth Condition”);[6] and (ii) the fulfilment of the Fourth Condition may be inferred from, inter alia, state practice indicating an intention to criminalize the violation.[7] 

286. In concluding that the Fourth Condition was fulfilled, the judges of the majority in the Galić case considered, inter alia, that: (i) references to terror as a war crime could be found in national and multinational documents as early as 1919 and 1945;[8] (ii) numerous states, including the former Yugoslavia, had criminalized terrorizing civilians as a method of warfare or in a time of war;[9] and (iii) a court in Croatia had entered a conviction under, inter alia, Article 51 of Additional Protocol I and Article 13 of Additional Protocol II for acts of terror against civilians which occurred between March 1991 and January 1993.[10] Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case, by contrast, expressed doubt as to whether the evidence referred to by the majority in the Galić case was sufficiently extensive and uniform to establish customary international law.[11]

287. In the Appeals Chamber’s view, Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case applied the same legal principles as the majority in the Galić case in determining the sufficiency of the evidence of state practice before them and merely disagreed on the result.[12] Bearing in mind that “two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence, both of which are reasonable”,[13] the Appeals Chamber finds that Mladić fails to demonstrate that the finding by the ICTY Appeals Chamber that the ICTY had jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was wrongly decided. In the absence of cogent reasons to depart from the controlling jurisprudence, the Appeals Chamber finds no error in the Trial Chamber’s determination that the ICTY had jurisdiction over the crime of terror in the present case. 

288.   As to Mladić’s contention that the definition of the crime of terror nonetheless violated the principle of nullum crimen sine lege for lack of specificity and foreseeability,[14] the Appeals Chamber notes that the Trial Chamber set out the elements of the crime in accordance with the ICTY Appeals Chamber’s definition in the Galić Appeal Judgement, as clarified in the D. Milošević Appeal Judgement.[15] In particular, the Trial Chamber stated that the crime of terror requires proof of, inter alia, acts or threats of violence committed with the primary purpose of spreading terror among the civilian population and directed against the civilian population or individual civilians not taking direct part in hostilities causing the victims to suffer grave consequences.[16]

289.   Relying on Judge Shahabuddeen’s separate opinion in the Galić Appeal Judgement stating that “there is neither the required opinio juris nor state practice to support the view that customary international law knows of a comprehensive definition [of terror]”,[17] Mladić argues that the ICTY was not in a position to define the elements of the crime.[18] He further contends that the definition adopted by the ICTY, particularly the requirement that victims suffer “grave consequences” from the acts or threats of violence, did not provide a clear gravity threshold and was improperly determined through a jurisdictional analysis which was developed after the Indictment period.[19]   

290.   The Appeals Chamber recalls that the principle of nullum crimen sine lege requires that a person may only be found guilty of a crime in respect of acts which constituted a violation of a norm which existed at the time of their commission.[20] Moreover, the criminal liability in question must have been sufficiently foreseeable and the law providing for such liability must have been sufficiently accessible at the relevant time.[21] This principle does not, however, prevent a court from interpreting and clarifying the elements of a particular crime, nor does it preclude the progressive development of the law by the court.[22]

291.   The Appeals Chamber notes that Judge Shahabuddeen specified in his separate opinion in the Galić Appeal Judgement that: (i) he agreed with the view that terror as charged is a crime known to customary international law;[23] (ii) the ICTY could recognize that customary international law does know of a core or predominant meaning of “terror” for which there was individual criminal responsibility at the material times;[24] and (iii) he was satisfied that a serious violation of the laws or customs of war within the meaning of Article 3 of the ICTY Statute, namely, by resorting to the core of terror, gives rise to such responsibility, which existed at the time of the alleged acts of the appellant.[25] In the view of the Appeals Chamber, the ICTY Appeals Chamber in the Galić and D. Milošević cases merely clarified the elements of the crime of terror, which existed in customary international law, for the purposes of Article 3 of the ICTY Statute.[26] The Appeals Chamber considers that this is consistent with the principle of nullum crimen sine lege, as recalled above. Consequently, Mladić fails to show any error in the Trial Chamber’s application of the elements of the crime of terror as clarified by the ICTY Appeals Chamber.[27]

292.   As to foreseeability, the Appeals Chamber recalls that the accused must be able to appreciate that his conduct was criminal in the sense generally understood, without reference to any specific provision.[28] Although the ICTY did not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction, it had recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the Indictment was prohibited and punishable.[29]

See also para. 293.

294. […] [I]n the Appeals Chamber’s view, the specification that, for the purposes of Article 3 of the ICTY Statute, the crime of terror also requires that victims suffered “grave consequences”,[30] in no way detracts from the conclusion that Mladić could reasonably have known that the commission of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was prohibited and punishable.[31] […]

[1] Galić Trial Judgement, para. 138. See Galić Trial Judgement, paras. 63-138. See also Galić Trial Judgement, Separate and Partially Dissenting Opinion of Judge Nieto-Navia, paras. 108-113.

[2] Galić Appeal Judgement, para. 98. See Galić Appeal Judgement, paras. 86-98. See also Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, paras. 2, 4-22, 24.

[3] D. Milošević Appeal Judgement, para. 30. See also D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, paras. 1-13. The Appeals Chamber notes that the ICTY Appeals Chamber in the Prlić et al. case, by majority, upheld convictions for the crime of terror. See Prlić et al. Appeal Judgement, paras. 424, 562-564, 1774-1789, 2017-2026, 2400-2402, 2406, 2800-2802; Prlić et al. Trial Judgement, Volume 3, paras. 1689-1692. See also Prlić et al. Appeal Judgement, Partially Dissenting, Dissenting Opinions and Declaration of Judge Liu Daqun, paras. 8-10 (wherein Judge Liu reiterated his position that the ICTY does not have jurisdiction over the crime of terror and that such convictions should therefore have been vacated because the crime did not exist under customary international law at the relevant time). In addition, despite opposition to the ICTY’s jurisdiction over the crime of terror by Karadžić at trial, the ICTY Trial Chamber in the Karadžić case reiterated that Article 3 of the ICTY Statute covers the crime of terror, and entered a conviction for it, which was upheld on appeal. See Karadžić Appeal Judgement, para. 777; Karadžić Trial Judgement, paras. 458, 6008, 6022, 6071; Prosecutor v. Radovan Karadžić, Case No. IT-95-05/18-PT, Karadžić Pre-Trial Brief, 29 June 2009, paras. 24, 25.

[4] See Aleksovski Appeal Judgement, para. 113. See also [Prosecutor v. Ante Gotovina, Ivan Čermak, and Mladen Markač, Case No. IT-06-90-AR73.6, Decision on Ivan Čermak and Mladen Markač Interlocutory Appeals Against Trial Chamber’s Decision to Reopen the Prosecution Case, 1 July 2010], para. 24.

[5] See supra [Mladić Appeal Judgement], para. 14 and references cited therein.

[6] Galić Appeal Judgement, para. 91; Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, para. 5; D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, para. 2. See also Tadić Decision of 2 October 1995, para. 94.

[7] Galić Appeal Judgement, para. 92; Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, para. 7; D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, paras. 6, 10. See also [Prosecutor v. Duško Tadić a/k/a Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], para. 128.

[8] See Galić Appeal Judgement, para. 93 and references cited therein.

[9] See Galić Appeal Judgement, paras. 94-96 and references cited therein.

[10] See Galić Appeal Judgement, para. 97 and references cited therein.

[11] D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, paras. 6-8; Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, paras. 8-10.

[12] See D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, paras. 6-8; Galić Appeal Judgement, paras. 94, 95; Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, paras. 7-11.

[13] See Ntawukulilyayo Appeal Judgement, para. 15 and references cited therein.

[14] See Mladić Appeal Brief, paras. 350, 352-371; T. 25 August 2020 p. 64.

[15] See Trial Judgement, paras. 3186-3188.

[16] See Trial Judgement, para. 3186.

[17] Galić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 3.

[18] See Mladić Appeal Brief, paras. 354-358.

[19] See Mladić Appeal Brief, paras. 359-370, referring to, inter alia, Tadić Decision of 2 October 1995, para. 94.

[20] See Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003 (“Milutinović et al. Decision of 21 May 2003”), para. 37; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Aleksovski Contempt Appeal Judgement”), para. 38; Čelebići Appeal Judgement, para. 576; Aleksovski Appeal Judgement, para. 126. See also Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (“Hadžihasanović et al. Decision of 16 July 2003”), para. 51.

[21] Milutinović et al. Decision of 21 May 2003, paras. 37, 38. In the case of an international tribunal such as the ICTY, accessibility does not exclude reliance being placed on a law which is based on custom. Hadžihasanović et al. Decision of 16 July 2003, para. 34.

[22] Milutinović et al. Decision of 21 May 2003, para. 38; Čelebići Appeal Judgement, paras. 173, 576; Aleksovski Appeal Judgement, paras. 126, 127.

[23] Galić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 3.

[24] Galić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 4.

[25] Galić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 5.

[26] See D. Milošević Appeal Judgement, paras. 31-37; Galić Appeal Judgement, paras. 100-104.

[27] Trial Judgement, paras. 3186-3188.

[28] Hadžihasanović et al. Decision of 16 July 2003, para. 34.

[29] Milutinović et al. Decision of 21 May 2003, paras. 40, 41.

[30] See Trial Judgement, para. 3186. See also D. Milošević Appeal Judgement, paras. 32, 33.

[31] Mladić’s contention that the definition of the crime of terror adopted by the ICTY provided an unclear gravity threshold creating “two distinct sets of victims” (see Mladić Appeal Brief, paras. 365, 366) also does not demonstrate an error. The “grave consequences” requirement to which Mladić points in this respect is jurisdictional, meaning that the crime of terror victim group remains the same: “the civilian population or individual civilians not taking direct part in hostilities”, but that the ICTY could only exercise its jurisdiction over the crime where the grave consequences requirement is met. See Trial Judgement, para. 3186. See also D. Milošević Appeal Judgement, paras. 31-33.

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ICTY Statute Article 3 of the ICTY Statute