Table of contents:
Element:
3. The conduct took place in the context of and was associated with an international armed conflict.
In the Mbarushimana Decision on the Confirmation of Charges, the Pre-Trial Chamber held that:
"Furthermore, article 8(1) of the Statute states that the Court "shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes". The article therefore does not articulate a strict requirement for the exercise of the Court’s jurisdiction over war crimes only in these circumstances, but only gives "a particular guideline for the Court". Accordingly, a single act could also amount to a war crime within the jurisdiction of the Court if it was committed in the context of and was associated with an armed conflict." [28]
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 109:
"109. International humanitarian law is applicable throughout the territory controlled by a party or on the territory of the belligerent States regardless of whether or not actual combat is ongoing. Thus, as concerns the nexus between the armed conflict and the alleged crimes, it is not necessary to prove that combat took place at the sites where the crimes were allegedly committed. It is sufficient to establish that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. Moreover, the principle of individual responsibility requires that the Prosecution prove that each one of the Accused was aware of the factual circumstances demonstrating the international character of the armed conflict. The Chamber will address this point in the part devoted to the criminal responsibility of the Accused."
3.1. Existence of an "international armed conflict"
In Bemba the Pre-Trial Chamber stated that:
"[..] there is no general definition of "international armed conflict" in the Court's legal texts or international humanitarian law."[1]
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 84-85, 92-96:
"84. In the jurisprudence of the Tribunal, an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between government authorities and organised armed groups or between such groups within a State."
"85. Whether the grave breaches regime in the Geneva Conventions applies is contingent upon the international character of the conflict. It is indisputable that a conflict is possessed of an international character when it pits two or more States against one another. Moreover, an armed conflict that is internal at first glance may become international or exhibit an international character when “another State intervenes in that conflict through its troops”. The Chamber finds that, to determine whether the conflict is international in character, the conflict must be examined in its entirety. For instance, it is not necessary to prove that troops from another State were present in each of the places were the crimes were committed. The presence of troops belonging to a foreign army in the region ravaged by conflict or in the regions that border the territory in which the conflict is unfolding and which are of strategic importance to the conflict, may constitute an indicator sufficient to support a finding that a foreign State was intervening directly in the conflict, establishing its international character."
"92. Concerning the legal definition of an occupation, in its Final Trial Brief, the Prosecution submits that the existence of pockets of resistance in certain zones of the territory considered to have been occupied does not void their status as occupied areas, provided that the occupying power still wields control over these areas. In its closing arguments, the Praljak Defence nevertheless states that the Prosecution committed an error of law in its analysis of whether a state of occupation existed in Herceg-Bosna at the time of the events, and considers that the existence of an international armed conflict and an occupation constitute distinct issues. Referring to the Naletilić Judgement and Additional Protocol I, in its closing arguments, the Petković Defence submits that these are mutually exclusive situations. In its Reply, the Prosecution refutes the Petković Defence argument by giving examples inter alia of cases taken from the Second World War. The Chamber notes that the Petković Defence maintained its original stance in its Rejoinder yet appears to contend that a state of occupation in connection with international armed conflicts is possible when the conflicts are limited in scope."
"93. The Prosecution specifically argues that the areas behind battle lines also constitute an occupied area."
"94. The Chamber is of the opinion that nothing in case-law or customary law excludes the possibility that fighting with the character of an international armed conflict might take place in the occupied territory without that territory losing its status as an occupied territory, provided that the occupying power maintains its control over the territory at issue, in keeping with the criteria defined above."
"95. The Chamber then notes that the Prosecution, the Praljak Defence and the Petković Defence do not contest the criteria established by the Naletilić Chamber and set forth above, for determining whether there was a state of occupation. The Chamber observes nevertheless that the Praljak Defence appears to argue, on the basis of the ICJ‟s judgment in the case of the Democratic Republic of the Congo v. Uganda, that for a territory in BiH to be considered occupied by the HVO, the Prosecution should have demonstrated beyond a reasonable doubt that the degree of control exercised by the Government of Croatia over the HVO was identical to the control it exercised over the HV."
"96. The Chamber would recall that the Tribunal‟s case-law is clear concerning the criteria applicable to any determination of the international nature of a conflict. The Appeals Chamber has established that an armed conflict is international in nature when, for example, a foreign State exercises overall control over one of the parties to the conflict. Accordingly, the Chamber finds that if the Prosecution proves that the party to the armed conflict under the overall control of a foreign State fulfils the criteria for control of a territory as identified above, a state of occupation of that part of the territory is proven."
3.1.1. Evidence of an "armed conflict" falling into art. 8(2)(a)
ICC
The Bemba Pre-Trial Chamber concluded that:
"[...] an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State."[2]
ICTY
According to the ICTY, the test for determining the existence of such a conflict is that:
"[...] an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State."[3]
Citing the Commentary on the Geneva Convention IV, the Trial Chamber in Mucic et al. ("Čelebići") stated that:
"In its adjudication of the nature of the armed conflict with which it is concerned, the Trial Chamber is guided by the Commentary to the Fourth Geneva Convention, which considers that "[a]ny difference arising between two States and leading to the intervention of members of the armed forces" is an international armed conflict and "[i]t makes no difference how long the conflict lasts, or how much slaughter takes place."[4]
The Tadić Appeals Chamber held that:
"It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State."[5]
It further found that:
"It should be added that international law does not provide only for a test of overall control applying to armed groups and that of specific instructions (or subsequent public approval), applying to single individuals or militarily unorganised groups. The Appeals Chamber holds the view that international law also embraces a third test . This test is the assimilation of individuals to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions)."[6]
In terms of what should be understood by the test of 'overall control', the Appeals Chamber held:
"The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, co-ordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts."[7]
In Aleksovski, the Appeals Chamber further stated, with reference to the "overall control" test, that:
"To the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure 'protection of civilians to the maximum extent possible'"[8]
In Mucic et al. ("Čelebići"), the Appeals Chamber once again rejected the "effective control" test enunciated by the ICJ in the Nicaragua case, and stated that:
"This may be indicative of a trend simply to rely on the international law on the use of force, jus ad bellum, when characterising the conflict. The situation in which a State, the FRY, resorted to the indirect use of force against another State, Bosnia and Herzegovina, by supporting one of the parties involved in the conflict, the Bosnian Serb forces, may indeed be also characterised as a proxy war of an international character. In this context, the "overall control" test is utilised to ascertain the foreign intervention, and subsequently, to conclude that a conflict which was prima facie internal is internationalised."[9]
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 86:
"86. The international character of an internal conflict may also be the result of certain participants in the internal armed conflict acting on behalf of another State. In the latter case, it is important to determine the degree of authority or control by a foreign State over the armed forces fighting on its behalf. In the Tadić Case, the Appeals Chamber, after considering that international law did not always require the same degree of control over the members of armed groups as over individuals not holding the status of state agents under internal legislation in order for the latter to be deemed de facto organs of the State, found that three distinct criteria could be applied, depending on the nature of the entity in question, to establish that participants in an internal conflict had acted on behalf of another State, thereby lending an international character to the conflict. These are the criteria of: (a) overall control (for armed groups acting on behalf of another State); (b) specific instructions or public approval a posteriori (for individuals acting alone or militarily unorganised groups); and (c) assimilation of individuals to State organs on account of their actual behaviour within the structure of the said State.
(a) To the extent that the issue of overall control is of special importance in this case, the Chamber considers it appropriate to review in detail the applicable law, as identified by the Appeals Chamber in the Tadić Case. Thus, to impute responsibility for acts committed by military or paramilitary groups to a State, the Appeals Chamber found that it was necessary to establish that the latter wielded overall control over the group, not merely by equipping and financing the group, but also by coordinating or providing its assistance in the overall planning of its military activities. Only then will the international responsibility of the State be attached due to the misconduct of the group. However, there is no need to require also that the State have issued, either to the head of the group or to its members, instructions or directives for the commission of various specific acts contrary to international law.
(b) Concerning isolated individuals or groups not organised in a military structure, the criterion of overall control was deemed inadequate. Such a group or such an individual will be considered to have acted as a de facto organ of State only if that State gave such persons specific instructions or directives to commit a specific act or, otherwise publicly approved such act a posteriori.
(c) The third criterion, regarding the assimilation of individuals to State organs, makes it possible to consider individuals acting in a private capacity as de facto State organs if they act in concert with the armed forces of or in collusion with the authorities of a State."
Adopting the test formulated by the Tadić Jurisdiction Decision, the Trial Chamber in Mucic et al. ("Čelebići") held that:
"[i]nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there."[10]
It continued that:
"[W]hether or not the conflict is deemed to be international or internal, there does not have to be actual combat activities in a particular location for the norms of international humanitarian law to be applicable. Thus, the Trial Chamber is not required to find that there existed an "armed conflict" in the Konjic municipality itself but, rather, in the larger territory of which it forms part."[11]
ICC
The Pre-Trial Chamber in Katanga and Chui added that:
"Additionally, article 8(2)(a)(i) of the Statute also applies to the wilfull killing of the protected persons by attacking force, when such killings occur after the overall attack has ended, and defeat or full control of the targeted village has been secured."[12]
The Mbarushimana Pre-Trial Chamber stated that:
"[..] a single act could also amount to a war within the jurisdiction of the Court if it was comitted in the context of and was associated with an armed conflict." "[13]
ICTY
In Tadić, the Trial Chamber held that:
"For a crime to fall within the jurisdiction of the International Tribunal a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law."[14]
In Mucic et al. ("Čelebići"), the Trial Chamber held that:
"[i]t is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.'"[15]
The Appeal Chamber in Kunarac considered that:
"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."[16]
It further stated that:
"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."[17]
SCSL
The Taylor Trial Chamber concluded that:
"The following factors have been considered in the jurisprudence to determine if an act was sufficiently related to the armed conflict: whether the perpetrator was a combatant; whether the victim was a member of the opposing party; whether the act can be said to have served the ultimate goal of a military campaign; and whether the crime was committed as part of or in the context of the perpetrator's official duties."[18]
In Taylor the Trial Chamber confirmed that:
"International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, until a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply to the entire territory of the warring States or, in the case of internal conflic ts, the entire territory under the control of a party, whether or not actual combat takes place there."[19]
Footnotes:
[1] ICC Bemba Confirmation of Charges Decision 15 June 2009, para. 220.
[2] ICC Bemba Confirmation of Charges Decision 15 June 2009, para. 223.
[3] ICTY, Tadić Trial Judgment 7 May 1997, para. 561; ICTY, Mucic et al. (Čelebići) Trial Judgment 16 November 1998, para. 209; ICTY, Furundžija Trial Judgment 10 December 1998, para. 59; ICTY, Aleksovski Trial Judgment 25 June 1999, para. 43; ICTY, Jelisić Trial Judgment 14 December 1999, para. 29; ICTY, Blaškić Trial Judgment 3 Mach 2000, para. 63.
[4] ICTY, Mucic et al. ("Čelebići") Trial Judgment 16 November 1998, para. 208.
[5] ICTY, Tadić Appeals Judgment 15 July 1999. para. 84.
[6] ICTY, Tadić Appeals Judgment 15 July 1999, para. 141.
[7] ICTY, Tadić Appeals Judgment 15 July 1999, para. 137.
[8] ICTY Aleksovski Appeals Judgment 24 March 2000, para. 147.
[9] ICTY, Mucic et al. ("Čelebići") Appeals Judgment 20 February 2001, para. 20.
[10] ICTY, Mucic et al. ("Čelebići") Trial Judgment 16 November 1998, para. 183.
[11] ICTY, Mucic et al. ("Čelebići") Trial Judgment 16 November 1998, para. 185; quoted in Kordić and Čerkez Trial Judgment, para. 27.
[14] ICTY Tadić Trial Judgement 7 May 1997, para. 572.
[15] ICTY, Mucic et al. ("Čelebići") Trial Judgment 16 November 1998, para. 193; as example see ICTY, Furundžija Trial Judgement10 December 1998, para. 65 (see also paras. 120-130).
[16] ICTY Kunarac Appeals Judgement 12 June 2002, para. 59.
[17] ICTY Kunarac Appeals Judgement 12 June 2002, para. 58.
[18] SCSL, Taylor Trial Judgment, 18 May 2012, para. 567.
[19] SCSL, Taylor Trial Judgment, 18 May 2012, para. 565.
