12. The Appeals Chamber agrees that the issue on this appeal is one of statutory interpretation. As was stated by the Appeals Chamber in the Tadić Appeals Decision, the Statute of the Tribunal should be interpreted in light of its object and purpose.[1] Article 1 of the Tribunal’s Statute defines the territorial and temporal jurisdiction of the Tribunal conferring “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. The object of the Security Council’s establishment of the Tribunal, as stated in Security Council Resolution 808 (1993), is to bring to an end the reported widespread violations of international humanitarian law, bring to justice the persons responsible for those violations, and contribute to the restoration and maintenance of peace in the territory of the former Yugoslavia. In drafting Article 5 of the Tribunal’s Statute and imposing the additional jurisdictional requirement that crimes against humanity be committed in armed conflict, the Security Council intended to limit the jurisdiction of the Tribunal to those crimes which had some connection to armed conflict in the former Yugoslavia. At the meeting of the Security Council at which the Tribunal’s Statute was adopted, those members that addressed the scope of Article 5 of the Statute made clear their view that it encompassed widespread or systematic criminal acts committed against the civilian population on the territory of the former Yugoslavia during an armed conflict. [2]

13. As expressed in the jurisprudence of the Tribunal, the jurisdictional requirement of Article 5 requires the existence of an armed conflict at the time and place relevant to the indictment, but it does not mandate any material nexus between the acts of the accused and the armed conflict.[3] While this interpretation itself offers little guidance on the meaning of “time and place relevant to the indictment”, the Tribunal’s jurisprudence on the application of Article 5 of the Statute points towards a broad interpretation. For example, there is no requirement that an attack directed against a civilian population be related to the armed conflict. As the Appeals Chamber in the Tadić Appeals Decision held: “The two — ‘the attack on the civilian population’ and the ‘armed conflict’ — must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict”.[4] Likewise, the above mentioned Tadić Appeals Chambers interpretation of the application of international humanitarian law, of which Article 5 is a part, supports a broad interpretation of the jurisdictional requirement that a crime against humanity be committed in armed conflict.

14. The Appeals Chamber does not accept that the jurisdictional requirement of Article 5 requires the Prosecution to establish that an armed conflict existed within the State (or region) of the Former Yugoslavia in which the charged Article 5 crime is alleged to have been committed. There can be situations where an armed conflict is ongoing in one state and ethnic civilians of one of the warring sides, resident in another state, become victims of a widespread and systematic attack in response to that armed conflict. All that is required under Article 5 of the Statute is that the prosecution establish that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged. While, as previous jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress. Whether the Prosecution can establish this connection in this case with respect to crimes against humanity in Vojvodina is a question of fact to be determined at trial.

15. For the foregoing reasons the Prosecution’s Appeal is allowed and the Trial Chamber’s Impugned Decision is reversed.

249. The Appeals Chamber recalls that the required nexus need not be a causal link, but that the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed, or the purpose for which it was committed.[1] The Appeals Chamber has thus held that “if it can be established […] that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.”[2] To find a nexus, it is sufficient that the alleged crimes be closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.[3]

569. The Appeals Chamber of the ICTR has not previously endorsed a particular definition of the nexus requirement.[1] The Appeals Chamber of the ICTY has done so twice. The first time, in the Tadic Jurisdiction Decision, the Appeals Chamber stated that the offences had to be “closely related” to the armed conflict, but it did not spell out the nature of the required relation.[2] In the Kunarac Appeal Judgement, it endorsed the same standard. It then provided the following details, which appear relevant to the Prosecution appeal in this case:

58. What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. The Trial Chamber’s finding on that point is unimpeachable.

59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties .[3]

570. This Chamber agrees with the criteria highlighted and with the explanation of the nexus requirement given by the ICTY Appeals Chamber in the Kunarac Appeal Judgement.  It is only necessary to explain two matters.  First, the expression “under the guise of the armed conflict” does not mean simply “at the same time as an armed conflict” and/or “in any circumstances created in part by the armed conflict”.  For example, if a non-combatant takes advantage of the lessened effectiveness of the police in conditions of disorder created by an armed conflict to murder a neighbour he has hated for years, that would not, without more, constitute a war crime under Article 4 of the Statute.  By contrast, the accused in Kunarac, for example, were combatants who took advantage of their positions of military authority to rape individuals whose displacement was an express goal of the military campaign in which they took part.  Second, as paragraph 59 of the Kunarac Appeal Judgement indicates, the determination of a close relationship between particular offences and an armed conflict will usually require consideration of several factors, not just one.  Particular care is needed when the accused is a non-combatant.

141. It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 [of the ICTY Statute] more narrowly than necessary under customary international law. There is no question, however, that the definition of crimes against humanity adopted by the Security Council in Article 5 comports with the principle of nullum crimen sine lege.

142. We conclude, therefore, that Article 5 may be invoked as a basis of jurisdiction over crimes committed in either internal or international armed conflicts. […]

57. There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved.[1] A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place. As indicated by the Trial Chamber, the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting.[2]  It would be sufficient, for instance, for the purpose of this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.[3]

58. What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed.  It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.  Hence, if it can be established […] that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. […]

59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.

83. As pointed out by the Trial Chamber, this requirement is not equivalent to Article 3 of the Statute’s exigency that the acts be closely related to the armed conflict.[1]  As stated by the Trial Chamber, the requirement contained in Article 5 of the Statute is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict.[2]