Hostage-taking
| Notion(s) | Filing | Case |
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| Decision on Denial of Judgement of Acquittal - 11.12.2012 |
KARADŽIĆ Radovan (IT-95-5/18-AR73.9) |
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17. Karadžić suggests that the pre-announced intention to take enemy combatants hostage if certain conditions are not met allows a military force to assume control over these individuals in a way that completes the crime of hostage-taking without triggering the protections of Common Article 3.[1] However, Karadžić does not identify any aspect of the text or history of Common Article 3 or any jurisprudence supporting his contention that in particular circumstances, detention of combatants falls outside the scope of Common Article 3 protections. Karadžić cites the Sesay Judgement, rendered by the Appeals Chamber of the Special Court for Sierra Leone,[2] which does not contradict the Appeals Chamber’s analysis here, because, even if the act of hostage-taking was completed upon the detention of the UN Personnel, as Karadžić asserts,[3] their detention by Bosnian Serb forces still triggered the protections of Common Article 3. 18. Insofar as Karadžić asserts that the prohibition on hostage-taking is less broad than other prohibitions in Common Article 3, that contention contravenes the Appeals Chamber’s holding that “[t]]he prohibition of hostage-taking shares the very same scope of application with the remaining rules enshrined in [C]]ommon Article 3.”[4] Furthermore, Karadžić’s interpretation of Common Article 3 would allow for situations where detainees could not be assured of basic protections. This risks undermining a fundamental purpose of Common Article 3: providing minimum and absolute protections to detained individuals, whether combatants or not.[5] 19. Karadžić is unconvincing in suggesting that the Impugned Decision is erroneous because it renders the Chapeau Requirement of Common Article 3 superfluous.[6] The Appeals Chamber recalls that the Impugned Decision addresses only one aspect of Common Article 3’s protections: the taking of hostages.[7] However, Common Article 3’s protections extend beyond hostage-taking and are also triggered in circumstances other than when an individual is detained and thus placed hors de combat. The Chapeau Requirement is indisputably meaningful and relevant to the other crimes prohibited under Common Article 3. For example, a sick soldier who has laid down his arms or is unable to fight because of sickness is a “[p]erson[] taking no active part in the hostilities” under Common Article 3 and may not be murdered or subjected to humiliating treatment; the Impugned Decision does not purport to apply to, nor does it affect, such situations. 20. Karadžić also fails to explain his assertion that considering all detained combatants to be hors de combat would render all detentions of combatants unlawful.[8] The fact that detainees are considered hors de combat does not render their detention unlawful in itself. Rather, their hors de combat status triggers Common Article 3’s protections, including the prohibition on their use as hostages. Likewise unconvincing is Karadžić’s argument that the similarity of his actions to those allegedly taken by UN troops at the same time as Bosnian Serb forces detained the UN Personnel somehow proves the lawfulness of Karadžić’s actions.[9] Karadžić’s speculative allegations on actions supposedly taken by UN troops are not relevant to Karadžić’s individual criminal responsibility, nor do they demonstrate any error in the Trial Chamber’s analysis about the UN Personnel’s hors de combat status after their detention. 21. Accordingly, the Appeals Chamber holds that Common Article 3’s prohibition on hostage‑taking applies to all detained individuals, irrespective of whether their detention is explicitly sought in order to use them as hostages and irrespective of their prior status as combatants. Karadžić has not demonstrated that the Trial Chamber erred in finding that “even if the UN [P]]ersonnel were combatants immediately before their detention, they were rendered ‘hors de combat’ by virtue of their detention and thus were entitled to the minimum protections guaranteed by Common Article 3.”[10] [1] See Appeal [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.9, Appeal from Denial of Judgement of Acquittal for Hostage Taking, 25 July 2012]], paras 36-40; Reply [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.9, Reply Brief: Appeal from Denial of Judgement of Acquittal for Hostage Taking, 10 August 2012]], para. 4. [2] Appeal, para. 39, quoting Prosecutor v. Issa Hassan Sesay et al., Case No. SCSL-04-15-A, Judgment, 26 October 2009 […]], para. 597. [3] See Appeal, paras 36-40. [4] 2009 Hostage Decision, para. 26. [5] See 2009 Hostage Decision, paras 21, 23, 25-26. [6] Appeal, para. 38; Reply, para. 13. [7] SeeT. 28 June 2012 pp. 28735-28738. [8] Reply, para. 12. [9] See Reply, paras 14-16. [10]T. 28 June 2012 p. 28735 (emphasis added). |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 08.06.2021 |
MLADIĆ Ratko (MICT-13-56-A) |
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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.”). |
ICTY Statute Article 3 | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 08.06.2021 |
MLADIĆ Ratko (MICT-13-56-A) |
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494. The Appeals Chamber notes that in finding that it had jurisdiction over the crime of hostage-taking, the Trial Chamber recalled the four conditions set out in the Tadić Decision of 2 October 1995 to satisfy Article 3 of the ICTY Statute’s “residual jurisdiction”, namely that: (i) the offence charged must violate a rule of international humanitarian law; (ii) the rule must bind the parties at the time of the alleged offence; (iii) the rule must protect important values and its violation must have grave consequences for the victim; and (iv) that such a violation must entail the individual criminal responsibility of the perpetrator.[1] The Trial Chamber relied, inter alia, on the ICTY Appeals Chamber jurisprudence in the Tadić, Čelebići, and Karadžić cases and concluded that hostage-taking under Article 3(1)(b) common to the Geneva Conventions met these conditions as the rules in Common Article 3 are part of customary international law in international and non-international armed conflicts, the acts prohibited by Common Article 3 breach rules protecting important values and involve grave consequences for the victims, and violations of such rules entail individual criminal responsibility.[2] In light of the established jurisprudence on this matter, the Appeals Chamber finds that the Trial Chamber correctly relied on the Tadić Decision of 2 October 1995 and other consistent ICTY Appeals Chamber jurisprudence in the exercise of its jurisdiction over the crime of hostage-taking and, contrary to Mladić’s argument, it was not required to conduct a more detailed analysis in this respect.[3] 495. With respect to Mladić’s submission that the Trial Chamber violated the principle of nullum crimen sine lege, the Appeals Chamber recalls that this principle prescribes 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.[4] In light of the well-established jurisprudence that hostage-taking was a crime under customary international law during the period covered by the Indictment, the Appeals Chamber rejects Mladić’s contention that, by relying on the Tadić Decision of 2 October 1995, the Trial Chamber breached the principle of nullum crimen sine lege. [1] Trial Judgement, para. 3009, referring to [The Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Decision of 2 October 1995”], paras. 94, 143. [2] Trial Judgement, para. 3010, referring to, inter alia, Karadžić Decision of 9 July 2009, paras. 23, 25, 26, Čelebići Appeal Judgement, paras. 138, 139, 143, 147, 167, 173, 174, Tadić Decision of 2 October 1995, paras. 89, 98, 134. [3] The Appeals Chamber finds without merit Mladić’s argument that the ICTY Appeals Chamber in the Čelebići and Kunarac et al. cases “implicitly” affirmed the need for a trial chamber to conduct a detailed analysis of its jurisdiction where jurisdiction may be in issue. See Mladić Appeal Brief, para. 699, referring to Kunarac et al. Appeal Judgement, paras. 67, 68, Čelebići Appeal Judgement, paras. 167, 168. The relevant jurisprudence to which he refers shows that the ICTY Appeals Chamber relied on the Tadić jurisprudence and reaffirmed that Article 3 of the ICTY Statute encompasses violations of Common Article 3. See Kunarac et al. Appeal Judgement, para. 68, nn. 60-62; Čelebići Appeal Judgement, paras. 168, 169. [4] See [Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić, 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; Aleksovski Contempt Appeal Judgement, para. 38; Čelebići Appeal Judgement, para. 576; Aleksovski Appeal Judgement, para. 126. […]. |
ICTY Statute Article 3 | |