311. The nullum crimen sine lege principle does not require that an accused knew the specific legal definition of each element of a crime he committed. It suffices that he was aware of the factual circumstances, e.g. that a foreign state was involved in the armed conflict. It is thus not required that Kordić could make a correct legal evaluation as to the international character of the armed conflict. Consequently, it is irrelevant whether Kordić believed that the effective control test constituted international customary law.

230. The Appeals Chamber recalls that an armed conflict is not limited to the specific geographical municipalities where acts of violence and actual fighting occur, or to the specific periods of actual combat. Rather, the question of whether a situation constitutes an “armed conflict” requires a holistic evaluation of the parameters of the conflict. As the Appeals Chamber held in the Tadić case, “the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities”.[1] In the Kordić and Čerkez case, the Appeals Chamber upheld the Trial Chamber's conclusion that in determining the international character of a conflict “all that is required is a showing that a state of armed conflict existed in the larger territory of which a given location forms a part”.[2] Concerning the temporal scope, the Appeals Chamber has emphasised that:

International humanitarian law applies from the initiation of [an armed conflict] and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, [it] continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.[3]

231. The Appeals Chamber recalls that the Trial Chamber held, in accordance with the Appeals Chamber’s jurisprudence, that it was not necessary, for the purpose of classifying an armed conflict as international or non-international, to prove that troops were present in each of the places where crimes were committed.[4] Similarly, it noted that to prove the nexus between the crimes and the armed conflict or occupation, it was not necessary to show that fighting took place in the same municipalities where alleged crimes were committed, but only that the crimes were directly connected with the hostilities taking place in other parts of the territory.[5]

232. The Appeals Chamber considers that while stating the law correctly, the Trial Chamber erred when applying it and in finding that crimes committed where no active combat occurred were not committed in an international armed conflict situation.[6] The Appeals Chamber is satisfied that the Trial Chamber’s finding that the HVO [Croatian Defence Council] and ABiH [Army of Bosnia and Herzegovina] were engaged in hostilities amounting to an international armed conflict in specific parts of BiH [Bosnia and Herzegovina] territory and during specific time periods relevant to the Indictment,[7] was sufficient for the Trial Chamber to apply the “grave breaches” regime of the Geneva Conventions to all crimes committed anywhere on the entire BiH territory and at any time until the end of the armed conflict and in close connection with that conflict. Article 2 of the Statute thus applies irrespective of whether such crimes were perpetrated in zones of active combat. In light of the above principles, the Trial Chamber’s rigid differentiation between crimes committed in places where and while active fighting was taking place, and crimes committed in places where no active combat was taking place at the time of the commission of the crimes but which were occupied by the HVO (and during that occupation)[8] was only necessary vis-à-vis crimes allegedly committed against persons or property in the context of occupied territory, as will be discussed below.[9]