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]

23. The well-established jurisprudence of the Tribunal has repeatedly affirmed that the body proper of the Geneva Conventions cannot be interpreted in such a way as to afford lesser protection to individuals than that which is afforded by common Article 3. (…)  

24. […] [T]he Geneva Conventions proper provide a higher, rather than lower, level of protection than that offered in common Article 3. The Appeals Chamber agrees with the Prosecution that, in this normative framework, the lex specialis argument is inevitably irrelevant, as the Third Geneva Convention must be interpreted in light of common Article 3, rather than being considered in conflict with it.

26. The Appeals Chamber reiterates the applicability of common Article 3 under customary international law to both non-international and international armed conflicts, without any exceptions or limitations.[1] The value of common Article 3 as a “minimum yardstick” of protections applicable regardless of the nature of the conflict necessarily implies that the protections enshrined therein must be applied in full and cannot be applied in part. The prohibition of hostage-taking shares the very same scope of application with the remaining rules enshrined in common Article 3.[2]

150. It is both legally and morally untenable that the rules contained in common Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character. The rules of common Article 3 are encompassed and further developed in the body of rules applicable to international conflicts. It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical. In the Appeals Chamber’s view, something which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader. The Appeals Chamber is thus not convinced by the arguments raised by the appellants and finds no cogent reasons to depart from its previous conclusions.

See also paragraphs 143-149.

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]