Scope of protection under common Article 3 of the Geneva Conventions

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Decision on Denial of Judgement of Acquittal - 11.12.2012 KARADŽIĆ Radovan

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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Decision on Denial of Judgement of Acquittal - 11.12.2012 KARADŽIĆ Radovan

22. Finally, turning to Karadžić’s contentions with respect to mens rea,[1] the Appeals Chamber recalls that “the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.”[2] Insofar as Karadžić contends that the Impugned Decision should be reversed because it did not respect this principle, the Appeals Chamber is not persuaded by his contentions. Even if Karadžić had believed that the UN Personnel were taking active part in the hostilities prior to their detention and thus were not entitled to protection under Common Article 3, his erroneous belief about the legal significance of the UN Personnel’s status would not shield him from criminal liability for using them as hostages after their detention. As explained above, Common Article 3 would apply to the detained UN Personnel irrespective of their status prior to detention,[3] and any misunderstanding by Karadžić with respect to this issue is not a valid defence.[4]

[1] Appeal, paras 53-60; Reply, paras 19-30.

[2] Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Judgement, 19 May 2010, para. 66.

[3] See supra [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.9, Decision of Appeal from Denial of Judgement of Aquittal for Hostage-Taking, 11 December 2012]], paras 16-17.

[4] Cf. In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, 19 July 2011, para. 147, citing Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 27 (rejecting the mistake of law defence in contempt cases).

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Decision on Hostage-Taking - 09.07.2009 KARADŽIĆ Radovan

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]

[1] See, e.g., Mrkšić Appeal Judgement, para. 70; Kunarac Appeal Judgement, para. 68; Čelebići Appeal Judgement, paras 143, 147, 150; Tadić Decision on Jurisdiction, paras  89, 98, 102.

[2] See Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law, Volume 1: Rules, (Cambridge: International Committee of the Red Cross & CambridgeUniversity Press, 2005), pp. 334, 336. 

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ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3
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Appeal Judgement - 01.06.2001 AKAYESU Jean Paul

443.    The Appeals Chamber is of the view that the minimum protection provided for victims under common Article 3 [of the Geneva Conventions of 1949] implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category.

444.    In paragraph 630 of the Judgment, the Trial Chamber found that the four Conventions “were adopted primarily to protect the victims as well as potential victims of armed conflicts”.  It went on to hold that “[t]he category of persons to be held accountable in this respect then, would in most cases be limited to commanders, combatants and other members of the armed forces”. Such a finding is prima facie not without reason. In actuality authors of violations of common Article 3 will likely fall into one of these categories. This stems from the fact that common Article 3 requires a close nexus between violations and the armed conflict.  This nexus between violations and the armed conflict implies that, in most cases, the perpetrator of the crime will probably have a special relationship with one party to the conflict.  However, such a special relationship is not a condition precedent to the application of common Article 3 and, hence of Article 4 of the Statute. In the opinion of the Appeals Chamber, the Trial Chamber erred in requiring that a special relationship should be a separate condition for triggering criminal responsibility for a violation of Article 4 of the Statute.

See also paras 435-442.

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ICTR Statute Article 4 Other instruments Geneva Conventions: common Article 3
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)

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.

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ICTY Statute Article 3 Other instruments Geneva Conventions: common Article 3.
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Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

67. The determination of what constitutes a war crime is therefore dependent on the development of the laws and customs of war at the time when an act charged in an indictment was committed.  As was once noted, the laws of war “are not static, but by continual adaptation follow the needs of a changing world”.[1] There is no question that acts such as rape […], torture and outrages upon personal dignity are prohibited and regarded as criminal under the laws of war and that they were already regarded as such at the time relevant to these Indictments.

[1]   Trial of the Major War Criminals before the International Military Tribunal, Nüremberg, 14 November 1945-1 October 1946, vol 1, p 221.

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ICTY Statute Article 3