Prohibition of 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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16. As a preliminary matter, the Appeals Chamber recalls that under Common Article 3, detention of a combatant during an armed conflict automatically renders him or her hors de combat, and that taking any individual hostage is among the acts which “are and shall remain prohibited at any time and in any place whatsoever”.[1] The plain text of Common Article 3 thus indicates that the prohibition on hostage-taking is both absolute and without exception. The Appeals Chamber further recalls that “any conduct of hostage-taking involving [Prisoners of War]] could not but be in violation of the Third Geneva Convention” and that “[t]]he main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of [C]]ommon Article 3, which expresses the shared principles which govern the Conventions”.[2] [1] Common Article 3 [Common Article 3(1)(b) of the Geneva Conventions of 1949]], para. 1. See also Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgement, 17 July 2008, para. 179 n. 460 (“if a victim was found to be detained by an adverse party at the time of the alleged offence against him, his status as either a civilian or combatant would no longer be relevant because a detained person cannot, by definition, directly participate in hostilities.”). [2] 2009 Hostage Decision [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]], para. 21. See also Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 […]], para. 70 (“Common Article 3 […] reflects the same spirit of the duty to protect members of armed forces who have laid down their arms and are detained as the specific protections afforded to prisoners of war in Geneva Convention III as a whole, particularly in its Article 13”). Cf. Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135, Article 13 (“Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.”). |
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| Notion(s) | Filing | Case |
| Decision on Hostage-Taking - 09.07.2009 |
KARADŽIĆ Radovan (IT-95-5/18-AR72.5) |
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Count 11 of the operative Indictment in this case charges the Appellant with hostage taking of UN personnel as a war crime under common Article 3 of the Geneva Conventions of 1949.[1] The Appellant requested that Count 11 be dismissed as defective. He claimed that the allegations in Count 11 relate to Prisoners of War (“POWs”) while the scope of application of common Article 3 to international armed conflicts is limited to the hostage-taking of civilians. In particular, the Appellant observed that the Third Geneva Convention does not include an express prohibition of hostage taking of POWs. He argued that this lacuna could not be fulfilled by considering that common Article 3 is also applicable to international armed conflicts. In the Appellant’s view, the Third Geneva Convention should be considered as lex specialis to common Article 3, thus excluding the applicability of the crime of hostage-taking to POWs. The Appeals Chamber dismissed the Appeal in light of the following considerations. 21. First, the Appeals Chamber considers that the prohibition of hostage-taking cannot be considered as extraneous to the Third Geneva Convention. As the Prosecution correctly points out, the protection of POWs is covered by an extensive net of provisions within the Third Geneva Convention which, read together, lead to the conclusion that any conduct of hostage-taking involving POWs could not but be in violation of the Third Geneva Convention. Although not per se conclusive, the analysis of the drafting of the Geneva Conventions further substantiates this consideration.[2] The main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of common Article 3, which expresses the shared principles which govern the Conventions and establishes a minimum set of mandatory rules in non-international armed conflict.[3] 22. Common Article 3 clearly states that the conduct listed in subparagraphs (a) to (d) of paragraph 1, including in subparagraph (b) the “taking of hostages”, is prohibited “with respect to the above-mentioned persons”, that is “[p]ersons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed ‘hors de combat’ [...]”. In light of the clear definition of the reach of this paragraph, which according to its plain wording applies without exception to all of the prohibitions listed in subparagraphs (a) to (d) of paragraph 1, the Appeals Chamber considers that the Appellant’s argument that the prohibition of hostage-taking in common Article 3 “is no other than the prohibition of civilian hostage-taking in the Fourth Geneva Convention”[4] is unsubstantiated. Conversely, common Article 3 clearly refers the prohibition on taking hostage of any person taking no active part in the hostilities.[5] 25. In any event, the Appeals Chamber recalls that the well-established jurisprudence of the Tribunal confirms that, under customary international law, the protections enshrined in common Article 3 apply in both international and non-international armed conflicts.[6] The Appeals Chamber considers that the Appellant fails to provide any sensible argument suggesting an exception to, or limitation on, the prohibition on hostage-taking for a particular category of persons in a particular type of conflict. Specifically, the Appeals Chamber considers the Applicant’s attempt to read the Tadić Decision on Jurisdiction as only justifying the extension of protections from the framework of international armed conflicts to the context of non-international armed conflict, and not vice versa, as without merit.[7] The Applicant only focuses on one part of the reasoning in the Tadić Decision on Jurisdiction, unduly disregarding its ultimate conclusion. In particular, of the entire Appeals Chamber’s discussion on the existence of customary rules of international law governing armed conflicts, the Appellant fixates on the Appeals Chamber’s observation of a tendency towards the blurring of the distinction between international and non-international armed conflicts in a certain historical moment. However, the Appellant fails to appreciate the full meaning of the Appeals Chamber’s conclusive finding that “at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant”,[8] which unequivocally refers to all of the rules contained in common Article 3, including the prohibition of hostage-taking. [1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s Third Amended Indictment, 27 February 2009 (“Indictment”), paras 25-29, 83-87. [2] See [Final Record of the Diplomatic Conference of Geneva of 1949, Volume II, Section A, (Federal Political Department Berne, W.S. Hein & Co., Reprint, 2004)], pp. 399-400: “The Coordination Committee drew attention to the fact that Article 31 of the Civilians Convention: ‘The taking of hostages is prohibited’, had no counterpart in the Prisoners of War Convention. Mr. GARDNER (United Kingdom) said that the treatment of prisoners of war was so completely covered in the Prisoners of War Convention, that it was impossible to imagine circumstances in which hostages could be taken without infringing one or more of the existing Articles. The suggested addition would therefore have no practical justification. The Committee decided to take no action on the observation of the Coordination Committee”. [3] ICRC Commentary [Jean de Preux et al., III Geneva Convention Relative to the Treatment of Prisoners of War: Commentary, 3 Commentary on the Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red Cross, 1960)], pp. 34-35. [4] Reply [Reply Brief: Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 for Lack of Jurisdiction, 29 May 2009], para. 11. [5] See ICRC Commentary, p. 40. [6] See, e.g., Prosecutor v. Mile Mrkšić and Veselin [ljivančanin , Case No. IT-95-13/1-A, Judgement, 5 May 2009, (“Mrkšić Appeal Judgement”), para. 70; Prosecutor v. Dragoljub Kunarac et al, Case No. IT-96-23&IT-96-23/1-A, Judgement, 12 June 2002, (“Kunarac Appeal Judgement”), para. 68; [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”)], paras 143, 147, 150; Tadić Decision on Jurisdiction [Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras 89, 98, 102. See also International Court of Justice, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), 27 June 1986, para. 219. [7] See Appeal [Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 for Lack of Jurisdiction], paras 22-25. [8] Tadić Decision on Jurisdiction, para. 102. |
ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3 | |
| 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 - 19.03.2019 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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659. The Appeals Chamber recalls the 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. In this respect, the ICTY Appeals Chamber had previously dismissed Karadžić’s submission that the UN Personnel were not entitled to protection under Common Article 3.[2] In the Decision of 11 December 2012, the ICTY Appeals Chamber explained that “[t]he 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.”[3] Therefore, whether the detention of the UN Personnel was lawful or not would have no bearing on the applicability of the prohibition on hostage-taking under Common Article 3. Consequently, the Appeals Chamber dismisses Karadžić’s argument that the Trial Chamber erred in not considering unlawful detention to be an element of hostage-taking. In light of these considerations, the Appeals Chamber finds it unnecessary to address Karadžić’s remaining contentions. [1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.9, Decision on Appeal from Denial of Judgement of Acquittal for Hostage-Taking, 11 December 2012 (“Decision of 11 December 2012”), paras. 16, 21; [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], para. 22. [2] See Decision of 11 December 2012, paras. 9, 10, 16, 20, 21. Common Article 3 provides, in relevant parts: (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; […] [3] Decision of 11 December 2012, para. 20. |
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