Geneva Conventions

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Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN

69. The Appeals Chamber notes that the Trial Chamber did not make a finding as to whether the armed conflict in the municipality of Vukovar at the material time was of an international or non-international nature.[1] However, even in the context of an internal armed conflict, Geneva Convention III applies where the parties to the conflict have agreed that the Convention shall apply.[2] In this respect, the Appeals Chamber recalls the ECMM instructions to its monitors on the implementation of the Zagreb Agreement which indicated that the Geneva Conventions were to be applied to the prisoners of war.[3] In an order issued on 18 November 1991, Lt. General Života Panić directed that JNA units in the Vukovar area, including OG South, were to observe all aspects of Geneva Convention III.[4] Furthermore, Colonel Nebojša Pavković advised the ECMM monitors of instructions from General Rašeta that Croat forces would not be evacuated with the rest of the humanitarian convoy but remain as prisoners of war and the Geneva Conventions would apply.[5] The Appeals Chamber considers that, while the Zagreb Agreement makes no mention of the application of Geneva Convention III to the Croat forces at the Vukovar hospital,[6] these documents provide sufficient evidence to conclude that the JNA had agreed that the Croat forces were to be considered prisoners of war and that Geneva Convention III was to apply.[7]

[1] Trial Judgement, paras 422, 457.

[2] Geneva Convention III, Article 2: “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof”. See also Article 3: “The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention”.

[3] Trial Judgement, para. 144, citing Exhibit P315, “ECMM fax to tasking cell regarding Zagreb Agreement, 19 November 1991”.

[4] Trial Judgement, para. 581, citing Exhibit P415, “Order from 1 MD, 18 November 1991”.

[5] Trial Judgement, para. 582, citing Exhibit D333, “ECMM Report of Evacuation of Vukovar, 19 November 1991”.

[6] Exhibit P40, “Zagreb Agreement, 18 November 1991”.

[7] See also Trial Judgement, paras 139, 189.

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Other instruments Geneva Convention III: Article 2
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Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.

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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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)

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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