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Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

61. Appellant argues that he has a right to be tried by his national courts under his national laws. […] Does it prevent Appellant from being tried […] before an international tribunal? […]

62. As a matter of fact - and of law - the principle advocated by Appellant aims at one very specific goal: to avoid the creation of special or extraordinary courts designed to try political offences in times of social unrest without guarantees of a fair trial.

This principle is not breached by the transfer of jurisdiction to an international tribunal created by the Security Council acting on behalf of the community of nations. No rights of accused are thereby infringed or threatened; quite to the contrary, they are all specifically spelt out and protected under the Statute of the International Tribunal. No accused can complain. True, he will be removed from his "natural" national forum; but he will be brought before a tribunal at least equally fair, more distanced from the facts of the case and taking a broader view of the matter. […]

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Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

59. The principle of primacy of this International Tribunal over national courts must be affirmed; the more so since it is confined within the strict limits of Articles 9 and 10 of the Statute and Rules 9 and 10 of the Rules of Procedure of the International Tribunal. […]

See also para. 58.

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Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

45. […] The important consideration in determining whether a tribunal has been "established by law" is not whether it was pre-established or established for a specific purpose or situation; what is important is that it be set up by a competent organ in keeping with the relevant legal procedures, and that it observes the requirements of procedural fairness. […]

46. An examination of the Statute of the International Tribunal, and of the Rules of Procedure and Evidence adopted pursuant to that Statute leads to the conclusion that it has been established in accordance with the rule of law. The fair trial guarantees in Article 14 of the International Covenant on Civil and Political Rights have been adopted almost verbatim in Article 21 of the Statute. Other fair trial guarantees appear in the Statute and the Rules of Procedure and Evidence. For example, Article 13, paragraph 1, of the Statute ensures the high moral character, impartiality, integrity and competence of the Judges of the International Tribunal, while various other provisions in the Rules ensure equality of arms and fair trial.

47. In conclusion, the Appeals Chamber finds that the International Tribunal has been established in accordance with the appropriate procedures under the United Nations Charter and provides all the necessary safeguards of a fair trial. It is thus "established by law."

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Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

36. […] In sum, the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41.

See also paras 31, 38.

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Other instruments UN Charter: Article 41.
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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
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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.
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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
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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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9. The ICTY Appeals Chamber has previously stated that it was “satisfied that the existing appeal and review proceedings established under the Statute provide sufficient guarantees to persons convicted before this Tribunal that they have been tried fairly and in accordance with norms of due process”.[1] [...] Šešelj limits his arguments to the impropriety of being convicted on appeal and to asserting his consequent right to appeal[...] without articulating any deficiencies in the existing procedures for review of appeal judgements provided for in the Statute and the Rules or [...] attempt[ing] to demonstrate that the Appeal Judgement contains any errors.[2]

[1] See Žigić Decision, para. 9. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (public redacted version), para. 79.

 

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IRMCT Statute Statute Article 24 IRMCT Rule Rule 146
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50. In articulating its approach to evidence presented in rebuttal to adjudicated facts, the Trial Chamber specified, in part, as follows:

The Trial Chamber analysed the evidence and considered, as an initial step, whether evidence contradicted the Adjudicated Facts. The Trial Chamber required evidence to be unambiguous in its meaning in order to be termed as ‘contradicting the Adjudicated Facts’. For example, evidence suggesting mere possibilities was deemed not to reach that threshold. In other words, merely pointing at the possibility of alternative scenarios was in itself not sufficient ground to reopen the evidentiary debate. A contradiction can exist in either presenting evidence on a specific alternative scenario, as opposed to a mere suggestion of one or more possible alternative scenarios, or in the unambiguous demonstration that the scenario as found in the Adjudicated Fact must reasonably be excluded as true. […] The Trial Chamber was mindful that evidence contradicting adjudicated facts does not automatically rebut the adjudicated fact. The presumption of accuracy of the adjudicated fact is only rebutted by ‘reliable and credible’ contradictory evidence.[1]

 […]

54.  […] The ICTR Appeals Chamber in the Karemera et al. case has clarified that “the effect [of judicially noticing an adjudicated fact] is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may then put the point into question by introducing reliable and credible evidence to the contrary”.[2]  In this respect, Mladić contends that “[t]he need for rebuttal evidence to be ‘credible and reliable’ […] must be read in light of the general standard for the admissibility of evidence”,[3] which is “relatively low”,[4] and “was never intended to be applied in conjunction with an additional requirement that the evidence be 'unambiguous’”.[5] He argues that the Trial Chamber’s error in heightening the standard resulted in his evidence being deemed “insufficient to enliven the rebuttal procedure or to rebut the accuracy of the adjudicated fact”.[6]

55.   In the Appeals Chamber’s view, Mladić confuses the standard for the admissibility of evidence with the final evaluation thereof. A reading of the Trial Judgement shows that the Trial Chamber’s criterion of unambiguity was not related to the reliability or credibility of evidence, but rather to its contrary nature.[7] In accordance with the standard elucidated by the ICTR Appeals Chamber in the Karemera et al. case, in order for evidence presented in rebuttal of an adjudicated fact to be admissible, and thereby bringing the presumption of its accuracy into dispute, such evidence must be contrary to the adjudicated fact and bear sufficient indicia of prima facie reliability and credibility.[8] The Appeals Chamber stresses, however, that “adjudicated facts that are judicially noticed […] remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial”.[9] As such, the final evaluation of the probative value of rebuttal evidence, which includes a final assessment of its reliability and credibility, as well as the extent to which it is consistent with or contradicts adjudicated facts, “will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it”.[10]

56.   In light of the above, and considering that, once judicially noticed, an adjudicated fact is presumed to be true, the Appeals Chamber finds no dissonance in the Trial Chamber’s requirement that evidence produced in rebuttal thereof should be “unambiguous in its meaning” – namely that it must either point to “a specific alternative scenario” or “unambiguous[ly] demonstrat[e] that the scenario as found in the Adjudicated Fact must reasonably be excluded as true”[11] – in order to successfully contradict it. […]

 


[1] Trial Judgement, paras. 5273, 5274 (internal citations omitted).[2] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 (“Karemera et al. Decision of 16 June 2006”)], para. 42. See also Karadžić Appeal Judgement, para. 452; Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.17, Decision on Joseph Nzirorera’s Appeal of Decision on Admission of Evidence Rebutting Adjudicated Facts, 29 May 2009 (“Karemera et al. Decision of 29 May 2009”)], paras. 13, 14; [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-AR73.1, Decision on Interlocutory Appeals Against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catalogue of Agreed Facts, 26 June 2007 (“D. Milošević Decision of 26 June 2007”)], paras. 16, 17; Karemera et al. Decision of 16 June 2006, para. 49.[3] Mladić Appeal Brief, para. 103; T. 25 August 2020 p. 36. See also Mladić Appeal Brief, para. 98.[4] Mladić Appeal Brief, para. 103, quoting Karemera et al. Decision of 29 May 2009, para. 15 (“the threshold for admission of this type of rebuttal evidence is relatively low: what is required is not the definitive proof of reliability or credibility of the evidence, but the showing of prima facie reliability and credibility on the basis of sufficient indicia”); T. 25 August 2020 p. 36.[5] Mladić Appeal Brief, para. 104; T. 25 August 2020 pp. 37, 38.[6] Mladić Appeal Brief, para. 106; T. 25 August 2020 pp. 39, 40. See also Mladić Appeal Brief, para. 112; Mladić Reply Brief, para. 27.[7] See Trial Judgement, para. 5273 (“The Trial Chamber required evidence to be unambiguous in its meaning in order to be termed as ‘contradicting the Adjudicated Facts’.”).[8] See Karemera et al. Decision of 29 May 2009, paras. 13-15. See also D. Milošević Decision of 26 June 2007, paras. 16, 17; Karemera et al. Decision of 16 June 2006, paras. 42, 49.[9] Karemera et al. Decision of 29 May 2009, para. 21. See also Karadžić Appeal Judgement, para. 452.[10] Karemera et al. Decision of 29 May 2009, para. 15. See also Karadžić Appeal Judgement, para. 128.[11] Trial Judgement, para. 5273.

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50. In articulating its approach to evidence presented in rebuttal to adjudicated facts, the Trial Chamber specified, in part, as follows:

The Trial Chamber analysed the evidence and considered, as an initial step, whether evidence contradicted the Adjudicated Facts. The Trial Chamber required evidence to be unambiguous in its meaning in order to be termed as ‘contradicting the Adjudicated Facts’. For example, evidence suggesting mere possibilities was deemed not to reach that threshold. In other words, merely pointing at the possibility of alternative scenarios was in itself not sufficient ground to reopen the evidentiary debate. A contradiction can exist in either presenting evidence on a specific alternative scenario, as opposed to a mere suggestion of one or more possible alternative scenarios, or in the unambiguous demonstration that the scenario as found in the Adjudicated Fact must reasonably be excluded as true. […] The Trial Chamber was mindful that evidence contradicting adjudicated facts does not automatically rebut the adjudicated fact. The presumption of accuracy of the adjudicated fact is only rebutted by ‘reliable and credible’ contradictory evidence.[1]

[…] 

54. […] The ICTR Appeals Chamber in the Karemera et al. case has clarified that “the effect [of judicially noticing an adjudicated fact] is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may then put the point into question by introducing reliable and credible evidence to the contrary”.[2]  In this respect, Mladić contends that “[t]he need for rebuttal evidence to be ‘credible and reliable’ […] must be read in light of the general standard for the admissibility of evidence”,[3] which is “relatively low”,[4] and “was never intended to be applied in conjunction with an additional requirement that the evidence be 'unambiguous’”.[5] He argues that the Trial Chamber’s error in heightening the standard resulted in his evidence being deemed “insufficient to enliven the rebuttal procedure or to rebut the accuracy of the adjudicated fact”.[6]

55.   In the Appeals Chamber’s view, Mladić confuses the standard for the admissibility of evidence with the final evaluation thereof. A reading of the Trial Judgement shows that the Trial Chamber’s criterion of unambiguity was not related to the reliability or credibility of evidence, but rather to its contrary nature.[7] In accordance with the standard elucidated by the ICTR Appeals Chamber in the Karemera et al. case, in order for evidence presented in rebuttal of an adjudicated fact to be admissible, and thereby bringing the presumption of its accuracy into dispute, such evidence must be contrary to the adjudicated fact and bear sufficient indicia of prima facie reliability and credibility.[2] The Appeals Chamber stresses, however, that “adjudicated facts that are judicially noticed […] remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial”.[3] As such, the final evaluation of the probative value of rebuttal evidence, which includes a final assessment of its reliability and credibility, as well as the extent to which it is consistent with or contradicts adjudicated facts, “will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it”.[4]

56.   In light of the above, and considering that, once judicially noticed, an adjudicated fact is presumed to be true, the Appeals Chamber finds no dissonance in the Trial Chamber’s requirement that evidence produced in rebuttal thereof should be “unambiguous in its meaning” – namely that it must either point to “a specific alternative scenario” or “unambiguous[ly] demonstrat[e] that the scenario as found in the Adjudicated Fact must reasonably be excluded as true”[5] – in order to successfully contradict it. ₣…ğ

[7] See Trial Judgement, para. 5273 (“The Trial Chamber required evidence to be unambiguous in its meaning in order to be termed as ‘contradicting the Adjudicated Facts’.”).

[2] See Karemera et al. Decision of 29 May 2009, paras. 13-15. See also D. Milošević Decision of 26 June 2007, paras. 16, 17; Karemera et al. Decision of 16 June 2006, paras. 42, 49.

[3] Karemera et al. Decision of 29 May 2009, para. 21. See also Karadžić Appeal Judgement, para. 452.

[4] Karemera et al. Decision of 29 May 2009, para. 15. See also Karadžić Appeal Judgement, para. 128.

[5] Trial Judgement, para. 5273.

 

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488.  […] The Appeals Chamber recalls ICTY Appeals Chamber jurisprudence holding that Article 3 of the ICTY Statute is a general and residual clause which refers to a broad category of offences, namely all “violations of the laws or customs of war”, not limited to the list of violations enumerated therein.[1] The ICTY Appeals Chamber has consistently held that Article 3 of the ICTY Statute may cover all violations of international humanitarian law not falling under Articles 2, 4, or 5 of the ICTY Statute, including violations of Common Article 3,[2] which contains a prohibition of hostage-taking.[3] The Appeals Chamber further recalls that the ICTY Appeals Chamber in the Tadić case examined, inter alia, findings of the International Military Tribunal at Nuremberg, domestic prosecutions, military manuals and legislation – including the law of the former Yugoslavia – and Security Council resolutions, and confirmed the formation of opinio juris to the effect that customary international law imposes criminal liability for those who commit serious violations of Common Article 3.[4] Furthermore, the ICTY Appeals Chamber has previously rejected arguments that there are cogent reasons to depart from the Tadić jurisprudence on the questions of whether Common Article 3 is included in the scope of Article 3 of the ICTY Statute[5] and whether breaches of its provisions give rise to individual criminal responsibility.[6] The ICTY Appeals Chamber has stated that the acts enumerated in Common Article 3 were intended to be criminalized within the international legal order as early as 1949.[7]

489.  Furthermore, the ICTY has exercised its jurisdiction under Article 3 of the ICTY Statute to try individuals for violations of Common Article 3,[8] including on the basis of hostage-taking.[9] In this respect, the ICTY Appeals Chamber in the Karadžić case upheld the ICTY Trial Chamber’s determination that the ICTY had jurisdiction over the crime of hostage-taking under Article 3 of the ICTY Statute.[10] The ICTY Appeals Chamber has held that, under Common Article 3, there is an absolute prohibition of taking hostage of any person taking no active part in hostilities as well as detained individuals irrespective of their status prior to detention.[11] It has also rejected the submission that the crime of hostage-taking is limited under customary international law to the taking of civilians hostage.[12] In light of this jurisprudence, the Appeals Chamber considers that the matter of the ICTY’s jurisdiction over the crime of hostage-taking was settled by the ICTY Appeals Chamber.

490.  In attempting to demonstrate that there are cogent reasons to depart from this well established jurisprudence, Mladić submits that during the Indictment period, with the exception of the killing of hostages or the taking of civilians hostage, the taking of “non-civilians” hostage was not prohibited and did not entail individual criminal responsibility under customary international law. Mladić’s argument that the laws and norms applicable to the International Military Tribunal at Nuremberg only apply to the killing of hostages[13] does not undermine the fact that the prohibition of hostage-taking of any person taking no active part in the hostilities was nevertheless well established in customary international law during the period covered by the Indictment and entailed individual criminal responsibility. The Appeals Chamber recalls that Article 4 of the ICTR Statute, which was adopted in 1994, expressly prohibits hostage-taking as a violation of Common Article 3 and Additional Protocol II. The ICTY Appeals Chamber has stated that the ICTR applies existing customary international law and that it was established to prosecute crimes which were already the subject of individual criminal responsibility.[14] Furthermore, an analysis of state practice confirms the formation of opinio juris that customary international law imposes individual criminal responsibility for violations of Common Article 3 and Additional Protocol II during the Indictment period. For example, legislation and military manuals of a number of states prohibited such violations,[15] and Additional Protocol II, which specifically contains the prohibition against hostage-taking of “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted”, was adopted in 1977 by consensus and had been ratified by over 120 states at the time of the events included in the Indictment.[16]

[1] Kunarac et al. Appeal Judgement, para. 68; Čelebići Appeal Judgement, para. 125; Tadić Decision of 2 October 1995, paras. 87, 89. See also Boškoski and Tarčulovski Appeal Judgement, para. 47. [2] Kunarac et al. Appeal Judgement, para. 68; Čelebići Appeal Judgement, paras. 125, 136; Tadić Decision of 2 October 1995, paras. 87, 89, 91. See also Boškoski and Tarčulovski Appeal Judgement, para. 47. Common Article 3 provides, in relevant part, that: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:(a)     […](b)    taking of hostages; […]  [4] See Tadić Decision of 2 October 1995, paras. 128-136. See also Čelebići Appeal Judgement, paras. 153-156, 160, 162-168, 174. [5] See Čelebići Appeal Judgement, paras. 129-136. The ICTY Appeals Chamber rejected the submissions that violations of Common Article 3 are not within the jurisdiction of the ICTY on the basis, inter alia, that: (i) the Security Council never intended to permit prosecutions under Article 3 of the ICTY Statute for violations of Common Article 3; (ii) Article 3 of the ICTY Statute is limited to the “Hague law”; and (iii) unlike the ICTR Statute, the ICTY Statute does not explicitly include Common Article 3. See Čelebići Appeal Judgement, paras. 130-133, 136, 178. [6] See Čelebići Appeal Judgement, paras. 157-174. The ICTY Appeals Chamber rejected, inter alia, the submissions that: (i) the evidence presented in the Tadić Decision of 2 October 1995 did not establish that Common Article 3 is customary international law that creates individual criminal responsibility on the basis that there is no showing of state practice and opinio juris; (ii) the exclusion of Common Article 3 from the Geneva Conventions grave breaches system demonstrates that it entails no individual criminal responsibility; (iii) Common Article 3 imposes duties on states only and is meant to be enforced by domestic legal systems; and (iv) there is evidence demonstrating that Common Article 3 is not a rule of customary law which imposes liability on individuals. See Čelebići Appeal Judgement, paras. 157, 158, 163, 167-170, 174. Similarly, the Appeals Chamber finds that Mladić’s assertion that the lack of mention of the prohibition against hostage-taking in the ICTY Statute, the 1899 and 1907 Hague Regulations, and the “grave breaches provisions” of the three 1949 Geneva Conventions and Additional Protocol I does not undermine that hostage-taking entailed individual criminal responsibility in customary international law at the time of the events in question. As discussed by the ICTY Appeals Chamber in the Čelebići case, the Geneva Conventions impose an obligation on State Parties to implement the conventions in their domestic legislation, including by taking measures necessary for the suppression of all breaches of the Geneva Conventions, including those outside the grave breaches provisions. See Article 49 of Geneva Convention I, Article 50 of Geneva Convention II, Article 129 of Geneva Convention III, Article 146 of Geneva Convention IV (“Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.”). See also ICRC, Commentary of 1958 on Article 146(3) of Geneva Convention IV, p. 594 (“[…]This shows that all breaches of the Convention should be repressed by national legislation. […] [T]he authorities of the Contracting Parties […] should institute judicial or disciplinary punishment for breaches of the Convention.”). See Čelebići Appeal Judgement, paras. 164-166. [7] Čelebići Appeal Judgement, para. 163. [8] See, e.g., Strugar Appeal Judgement, paras. 164, 171-179, p. 146; Boškoski and Tarčulovski Appeal Judgement, paras. 38, 47, 53; Kunarac et al. Appeal Judgement, paras. 51, 66-70. [9] See, e.g., Karadžić Trial Judgement, paras. 5951, 5993, 6010. See also Karadžić Appeal Judgement, paras. 654, 659-661, 775, 777. [10] See [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 (“Karadžić Decision of 9 July 2009”)], paras. 2-4, 6, 22-27, 29. See also Karadžić Appeal Judgement, para. 777; Karadžić Trial Judgement, paras. 467, 468. [11] [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR-73.9, Decision on Appeal From Final Judgement of Acquittal for Hostage-Taking, 11 December 2012 (“Karadžić Decision of 11 December 2012”)], paras. 16, 21; Karadžić Decision of 9 July 2009, para. 22. See also Karadžić Appeal Judgement, para. 659; Popović et al. Appeal Judgement, para. 794; Ɖorđević Appeal Judgement, para. 747; Strugar Appeal Judgement, n. 460. [12] Karadžić Decision of 9 July 2009, paras. 3, 6, 22, 27. See also Karadžić Appeal Judgement, para. 659; Karadžić Decision of 11 December 2012, paras. 9, 10, 16, 20, 21. [13] Mladić Appeal Brief, para. 704. [14] See Čelebići Appeal Judgement, paras. 170, 178. [15] See, e.g., Ireland, Geneva Conventions Act as amended (1962), Sections 4(1) and 4(4) (providing that, in addition to grave breaches, any “minor breaches” of the 1949 Geneva Conventions, including violations of Common Article 3, are punishable offences); Belgium, Loi du 16 juin 1993 relative à la répression des infractions graves aux Conventions internationales de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin 1977 additionnels à ces Conventions (1993), Article 1(7) (implementing the 1949 Geneva Conventions and the two Additional Protocols and providing that Belgian courts have jurisdiction to adjudicate crimes under international law such as hostage-taking); France, Décret n°75-675 du 28 juillet 1975 portant règlement de discipline générale dans les armées (1975), as amended in 1982, Article 9(1) (prohibiting hostage-taking of persons placed hors de combat and providing that they be treated humanely); Germany, Humanitarian Law in Armed Conflicts – Manual (1992), para. 1209 (qualifying as an “indictable offence” hostage-taking of persons protected by Common Article 3); The Netherlands, Military Manual (1993), pp. VIII-3, XI-1, XI-4 (restating the prohibition of hostage-taking found in Common Article 3 and Article 4 of Additional Protocol II). [16] Additional Protocol II, Articles 4(1), 4(2)(c). See also ICRC, Commentary of 1987 on Additional Protocol II, paras. 4417, 4418 (“[…] Protocol II was adopted as a whole by consensus on 8 June 1977.”).
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