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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] show footnotes [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.”). Download full document
Notion(s)	Filing	Case
Aiding and abetting \| Actus reus \| Substantial contribution \| Substantial effect	- ..	()
95. The Appeals Chamber […] considers Stanišić’s contention that, at most, the deployment was a momentary exercise of authority that simply returned the men to the JNA [Yugoslav People’s Army] and had no direct causal link and could not have had a substantial effect on the crimes. […] In this context, the Appeals Chamber recalls that making resources available that ultimately facilitate the commission of crimes is sufficient to establish substantial contribution to the ensuing crimes[1] and the Trial Chamber’s findings reflect Stanišić to have done this.[1] […] show footnotes See, e.g., Blagojević and Jokić Appeal Judgement, paras. 125-135, 194-199; Krstić Appeal Judgement, paras. 61, 62, 135-144. Download full document