Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia - Current Survey 1 Subject Matter Jurisdiction A Article 1 - Existence of Armed Conflict and Nexus with Acts of the Accused B Article 2 - Grave Breaches C Article 3 - Laws and Customs of War D Article 5 - Crimes against Humanity E Summary 1 Subject Matter Jurisdiction Issues relating to its subject matter jurisdiction have haunted the Tribunal from its early days. Article 1 of the Tribunal's Statute confers upon it the power to prosecute persons responsible for serious violations of international humanitarian law in the territory of the former Yugoslavia since 1991. 3 The Tribunal has jurisdiction over four particular categories of crimes: grave breaches of the 1949 Geneva Conventions (Article 2 of its Statute); violations of the laws or customs of war (Article 3 of its Statute); genocide (Article 4 of its Statute); and crimes against humanity (Article 5 of its Statute). The scope of Articles 1, 2, 3 and 5 was addressed at length in the decision of the Tribunal's Appeals Chamber in Prosecutor v. Tadiæ 4 ( Tadiæ Jurisdiction Decision ). These issues were further developed in the final judgment of Trial Chamber II in that case5 ( Tadiæ Judgment). A Article 1 - Existence of Armed Conflict and Nexus with Acts of the Accused Under the Tadiæ Jurisdiction Decision , for the Tribunal to assert jurisdiction at all it is necessary that two conditions be met: "first that an armed conflict existed at all relevant times in the territory ... and, secondly, that the acts of the accused were committed within the context of that armed conflict".6 An "armed conflict" exists when there is "resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State".7 In the Tadiæ Judgment the Trial Chamber found that the conflict in Bosnia (including the inter-state conflict between Bosnia and Yugoslavia and the fighting between the Bosnian government and the insurgent Bosnian Serb forces) was of sufficient scope and intensity to constitute an armed conflict.8 For the exercise of the Tribunal's competence, it is necessary also to establish that each of the acts alleged in the indictment was "closely related" to the hostilities. The Tadiæ Trial Chamber explained this requirement as follows: It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties. It is not, however, necessary to show that armed conflict was occurring at the exact time and place of the proscribed acts alleged to have occurred, ... nor is it necessary that the crime alleged takes place during combat, that it be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict; the obligations of individuals under international humanitarian law are independent and apply without prejudice to any questions of the responsibility of States under international law.9 In Tadiæ, the defendant was accused of acts performed in the course of the take-over of certain areas of Bosnia by the Bosnian Serb forces and actions taken in the camps run by them. Both sets of acts were related to the nature of the conflict as an ethnic war and the strategic aim of creating an exclusively Serbian state. They were therefore found to be directly connected with the conflict.10 B Article 2 - Grave Breaches One of the most controversial aspects of the Tadiæ Judgment is its treatment of the requirements for the application of the grave breaches regime embodied in Article 2 of the Tribunal's Statute.11 In the Tadiæ Jurisdiction Decision , the Appeals Chamber held that, in order for the Tribunal to have jurisdiction under Article 2, the alleged offences must have been committed within the context of an international armed conflict and against persons or property protected by the relevant Geneva Convention. The Appeals Chamber implicitly refused to characterize the conflict in the former Yugoslavia as a whole, noting that it had both internal and international aspects. It thus left it to the trial chambers to decide, in each case, the character of the conflict.12 The Tadiæ Trial Chamber did not, however, directly consider the issue of whether the conflict in the former Yugoslavia was international. It began its consideration of the applicability of Article 2 by examining whether the defendant's alleged crimes were committed against "protected persons" under Geneva Convention IV - i.e., whether the alleged victims were civilians who were "in the hands of a Party to a conflict or Occupying Power of which they are not nationals".13 In the context of the Tadiæ case, this requirement meant that the Prosecutor would have to demonstrate that the victims, who were nationals of Bosnia, were in the hands of Yugoslavia. The problem was that Yugoslavia had formally withdrawn its army (the JNA) from the territory of Bosnia prior to the commission of the defendant's activities. From that time on, the fighting in Bosnia was carried on by the armed forces of the Bosnian Serbs who - although they claimed to be acting for the newly proclaimed state of Republika Srpska - were Bosnian nationals. Thus, the critical question considered by the Trial Chamber was whether the acts of the forces of the Republika Srpska could be imputed to Yugoslavia so that the latter could be considered "a Party to [the] conflict or Occupying Power". The Chamber found that, under customary international law (supported by Article 29 of Geneva Convention IV and the Commentary thereto), the acts of one actor could be imputed to another.14 The Trial Chamber utilized the test for imputability set out in the judgment of the International Court of Justice (ICJ) in the Case Concerning Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. US ) (Merits).15 The essence of this test, according to the majority of the Chamber, was two faceted: the Bosnian Serb forces had to be dependent on Yugoslavia and the latter had to exercise effective control over the forces. The second aspect was particularly emphasized by the majority, which held that it was not sufficient to show merely that the Bosnian Serbs were dependent on the Yugoslav army. "It must also be shown that [Yugoslavia] exercised the potential for control inherent in that relationship of dependency or that the [Bosnian Serb force] had otherwise placed itself under the control of the Government of [Yugoslavia]."16 The majority of the Chamber found that such a relationship had not been demonstrated. [W]hile it can be said that [Yugoslavia], through the dependence of the [Bosnian Serb forces] on the supply of matériel by the [Yugoslav army], had the capability to exercise great influence and perhaps even control over the [Bosnian Serb forces], there is no evidence on which this Trial Chamber can conclude that [Yugoslavia] and the [Yugoslav army] ever directed or, for that matter, ever felt the need to attempt to direct, the actual military operations of the [Bosnian Serb forces], or to influence those operations beyond that which would have flowed naturally from the coordination of military objectives at the highest levels.17 In sum, the Chamber held that for Article 2 to apply to the case, the Prosecutor was required to show that the victims of the defendant's alleged crimes were protected persons - i.e., were in the hands of a country of which they were not nationals. Since the Bosnian victims were imprisoned in camps run by the Bosnian Serb army (who were also Bosnian nationals), the Prosecutor had to show that the latter were effectively controlled by an external power, in this case, Yugoslavia. The Prosecutor failed to do so. Accordingly, the majority held that the grave breaches regime embodied in Article 2 of the Tribunal's Statute did not apply to the case. The Trial Chamber's presiding judge disagreed vehemently with this conclusion. In her separate and dissenting opinion Judge McDonald argued that the Prosecutor had met the extraordinarily high "effective control" standard set by the majority and that, in any event, a showing of effective control was not necessary to meet the Nicaragua test of dependency and control. In the alternative she argued that, if effective control was required by the Nicaragua case, that requirement was inappropriate for the case before the Chamber. With respect to the issue whether the Yugoslav army exercised control over the Bosnian Serb forces, Judge McDonald concluded that the latter were simply the Yugoslav army with a new name. Since the change in the armies involved in the fighting was "in name only", in her view the Yugoslav army could clearly be regarded as effectively controlling the putative Bosnian Serb forces.18 Judge McDonald also believed that the effective control test established by the majority was based on a misreading of the ICJ's judgment in the Nicaragua case. She read Nicaragua as establishing two separate potential bases of liability: general agency and specific instructions to carry out violations of international humanitarian law. In Judge McDonald's view, it was only for the latter basis of liability that the ICJ required effective control. She concluded that the majority's incorporation of the standard of effective control into the first potential basis for liability (general agency) was incorrect.19 The third alternative argument made by Judge McDonald was that if the standard of proof required by Nicaragua for a determination of general agency was effective control, that standard should be limited to the facts of Nicaragua and that such degree of proof was not required in the case before the Tribunal. In support of this argument, Judge McDonald relied on the differences between the Nicaragua and Tadiæ cases. In the former, the ICJ was faced with an allegation of state responsibility for the acts of individuals. This type of responsibility would logically "hinge" on effective control.20 The Tadiæ case, on the other hand, required a showing of imputability " solely for the purpose of identifying the occupying power".21 Judge McDonald also relied heavily on the differences between the relationship of Yugoslavia and the Bosnian Serb forces at issue in Tadiæ and the relationship of the United States and the contras that was at issue in Nicaragua. In her view, Yugoslavia was responsible for "the very establishment and continued existence" of the Bosnian Serb forces. In such circumstances, Judge McDonald concluded, "[t]he inapplicability of the Nicaragua standard of effective control is patent; it was neither designed for these factual circumstances nor is it an appropriate consideration".22 C Article 3 - Laws and Customs of War Article 3 of the Tribunal's Statute covers the laws and customs of war, "being that body of customary international humanitarian law not covered by Articles 2, 4 or 5 of the Statute".23 In order for the Chamber to determine that a particular law or custom of war is covered by Article 3, four conditions must be met: (1) the violation must constitute an infringement of a rule of international humanitarian law; (2) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (3) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim ...; and (4) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. 24] In Tadiæ the defendant was charged with violations of common Article 3 to the Geneva Conventions. The Appeals Chamber had held that this body of law was covered by Article 3 of the Tribunal's Statute. Furthermore, it had concluded that common Article 3 satisfied the first two requirements listed above, as well as the last. With respect to the third requirement, the Trial Chamber found that the prohibitions of common Article 3 (i.e., murder, taking hostages, outrages upon personal dignity, judgment and sentencing without trial by a regularly constituted court providing fair trial guarantees) were sufficiently serious to satisfy the third criterion enunciated by the Appeals Chamber. The Chamber then turned to the conditions embodied in common Article 3 for its application. The acts alleged must "(i) [be] committed within the context of an armed conflict; (ii) have a close connection to the armed conflict; and (iii) [be] committed against persons taking no active part in hostilities".25 Since the Chamber had already found the existence of the first two conditions, it focused on whether the victims in the Tadiæ case were "persons taking no active part in hostilities". The Chamber asked "whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, being those hostilities in the context of which the alleged offences are said to have been committed".26 It concluded that all of the defendant's alleged victims were either civilians or had been placed hors de combat by detention and therefore enjoyed the protection of common Article 3. D Article 5 - Crimes against Humanity The prohibition on crimes against humanity as contained in Article 5 of the Statute applies when such crimes are "committed in armed conflict" and "directed against any civilian population". The Trial Chamber explained these requirements as follows: [F]irst, "when committed in armed conflict" necessitates the existence of an armed conflict and a nexus between the act and the conflict. Secondly, "directed against any civilian population" is interpreted to include a broad definition of the term "civilian". It furthermore requires that the acts be undertaken on a widespread or systematic basis and in furtherance of a policy.... [A]ll relevant acts must be undertaken on discriminatory grounds. Finally, the perpetrator must have knowledge of the wider context in which his act occurs.27 The condition that the crime be "committed in armed conflict" was interpreted by the Chamber to mean that "the act occurred in the course or duration of an armed conflict".28 This seems at first glance to be almost identical to the general requirement for the Tribunal's exercise of jurisdiction.29 However, the Chamber added two caveats: the act had to be linked geographically to the armed conflict and it must not be unrelated to the conflict, i.e. must not be done for purely personal motives of the perpetrator. Turning to the requirement that the crime be "directed against any civilian population", the Chamber found that this condition encompassed several elements. First, the Chamber examined the meaning of the term "civilian". Reviewing a wide range of sources - from the definitions of the term contained in the Geneva Conventions to the decision of the French Cour de Cassation in the Barbie case - the Chamber settled on a wide definition of the term. It concluded that "the presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity".30 The Chamber then analysed the term "population". It found that the "population" element is intended to imply crimes of a collective nature and thus exclude single or isolated acts which, although possibly constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity.31 The emphasis on the collective nature of the crime is also reflected in the requirement that the acts must occur on a widespread or systematic basis. The Chamber clarified that these requirements were alternative rather than cumulative. It was enough that the acts were widespread, i.e., committed on a large scale, or that they were systematic, i.e., committed pursuant to a preconceived plan or policy. On the issue of whether a discriminatory intent is required for acts to constitute crimes against humanity, the Chamber found that such an intent was not required by customary international law. Nonetheless, the Chamber felt itself bound to incorporate such a requirement because it was included in the Report of the Secretary-General that accompanied the Tribunal's Statute and several members of the Security Council had, in the course of adopting the Statute, stated their understanding that Article 5 covered acts performed on a discriminatory basis.32 The Chamber recognized that for an act to constitute a crime against humanity under its Statute it must be part of a deliberate policy to target a civilian population. The Chamber emphasized, however, that such a policy need not be formalized and can be deduced from the way in which the acts occur. Notably, if the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts, whether formalized or not. Although some doubt the necessity of such a policy the evidence in this case clearly establishes the existence of a policy.33 The final general requirement for crimes against humanity relates to the appropriate level of intent. The Trial Chamber noted that it was the context of a criminal act that transformed an ordinary war crime into a crime against humanity. Therefore, "in addition to the intent to commit the underlying offence the perpetrator must know of the broader context in which his act occurs". The second aspect of the intent requirement was aimed at addressing the "weekend Rambo" problem - the act could not be committed for purely personal reasons unrelated to the armed conflict. While personal motives could be present, they could not be the sole motivation for the act. The Chamber concluded: if the perpetrator has knowledge, either actual or constructive, that these acts were occurring on a widespread or systematic basis and does not commit his act for purely personal motives unrelated to the attack on the civilian population, that is sufficient to hold him liable for crimes against humanity. 34 In the Tadiæ case, the general requirements for the applicability of Article 5 described above were fulfilled: an armed conflict existed in the territory at the relevant time; an aspect of this conflict was a policy to commit inhumane acts against the civilian population of the territory; and inhumane acts were committed in furtherance of this policy and pursuant to a recognizable plan. Accordingly, the Chamber found that it had subject matter jurisdiction over the charges of crimes against humanity. E Summary The Trial Chamber's judgment in Tadiæ is currently under appeal. It can be expected that the Appeals Chamber - which is authorized to review the Trial Chamber's legal and factual findings - will address the Trial Chamber's application of the subject matter jurisdiction tests enunciated in the Tadiæ Jurisdiction Decision . The Tribunal's final word on the conditions for the applicability of the grave breaches regime will undoubtedly be of particular interest to international legal scholars. 3 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991 (adopted 25 May 1993), reprinted in International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991: Basic Documents , Sales No. E/F/.95.III.P.1 ("ICTY Statute"). 4 Prosecutor v. Tadiæ, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, reg. pg. nos. 6491-6413 (2 Oct. 1995) ( Tadiæ Jurisdiction Decision ). This decision is examined in detail in King and La Rosa, supra note 2, at 144-146. 5 Tadiæ, Case No. IT-94-1-T, Opinion and Judgment, reg. pg. nos. 17687-17338 (7 May 1997) (" Tadiæ Judgment "). 6 Ibid, at para. 560. 7 Tadiæ Jurisdiction Decision , at para. 70. 8 The Trial Chamber left the question of the applicability of the law of international armed conflict for its discussion of grave breaches. See infra text accompanying notes 11-22. 9 Tadiæ Jurisdiction Decision , at para. 573 (citation omitted). 10 Ibid, at para. 574. 11 See, e.g., Meron, "Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout", 92 AJIL (1998) 236. 12 Tadiæ Judgment , at para. 583. 13 Ibid, at para. 578 (quoting Geneva Convention IV). 14 Ibid, at para. 584. 15 1986 I.C.J. 14. The Nicaragua test for imputability was previously applied by the Tribunal in the context of a Rule 61 proceeding. See Prosecutor v. Rajic , Case No. IT-95-12-R61, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, reg. pg. nos. 1423-1392 (13 Sept. 1996). 16 Tadiæ Judgment , at para. 588. 17 Ibid, at para. 605. 18 Tadiæ, Case No. IT-94-1-T, Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute, reg. pg. nos. 17381-17363, at para. 5 (7 May 1997). 19 Ibid, at para. 25. 20 Ibid, at para. 32. 21 Ibid, at para. 27. 22 Ibid, at para. 32. 23 Tadiæ Judgment , at para. 609. 24 Ibid, at para. 610 (quoting Tadiæ Jurisdiction Decision ). 25 Ibid, at para. 614. 26 Ibid, at para. 615. 27 Ibid, at para. 626. 28 Ibid, at para. 633. 29 See supra text accompanying notes 6-10. 30 Tadiæ Judgment , at para. 643. 31 Ibid, at para. 644. 32 Ibid, at para. 653. 33 Ibid. The Chamber also clarified that, although at the time of World War II the "policy" underpinning crimes against humanity had to be that of a state, the law had developed so that the concept of crimes against humanity covered also those committed "on behalf of entities exercising de facto control over a particular territory but without international recognition or formal status of a de jure State, or by a terrorist group or organization". Ibid, at para. 654. 34 Ibid, at para. 659.
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