3. The conduct took place in the context of and was associated with an armed conflict not of an international character.

3.1. Existence of an "armed conflict not of an international character"

3.1.1. Evidence of an armed violence between governmental authorities and organized armed groups or between such groups within a State

3.1.2. Evidence of intensity of the conflict

3.1.3. Evidence of degree of organization of the parties

3.2. In the context of: Temporal and geographical scope of the application of international humanitarian law [Temporal and geographical scope of armed conflict]

3.2.1. Evidence of temporal scope of the application of international humanitarian law [Evidence of temporal scope of armed conflict]

3.2.2. Evidence of geographical scope of the application of international humanitarian law [Evidence of geographical scope of armed conflict]

3.3. Was associated with: Nexus between the crime and the armed conflict [an armed conflict playing a substantial part in the perpetrator's ability to commit a crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed (the fact that the perpetrator acted in furtherance of or under the guise of the armed conflict)].

3. The conduct took place in the context of and was associated with an armed conflict not of an international character.

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." [159]

In the Garda case, the Pre-Trial Chamber explained that

"The Majority recalls that a crime has taken place in the context of, or in association with, an armed conflict where 'the alleged crimes were closely related to the hostilities'." "[1]

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 441:

"441. For Article 3 to apply, two preliminary requirements need to be fulfilled, namely there must be an armed conflict and the crime must be closely related to that armed conflict (“nexus requirement”). In relation to the requirement that there exist an armed conflict, the Appeals Chamber in the Tadić case articulated the test as follows: “[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized groups or between such groups within a State”. To determine the existence of an armed conflict, both the intensity of the conflict and the organisation of the parties to the conflict must be considered on a case-by-case basis.1464 It is immaterial whether the armed conflict was international in nature or not."

3.1. Existence of an "armed conflict not of an international character"

In the Katanga Trial Judgement, the Trial Chamber held that:

"Furthermore, depending on the parties involved in the hostilities, it is apparent to the Chamber that contemporaneous conflicts of a different nature may take place on a single territory and therefore that international and noninternational conflicts may coexist.

It is to be observed at the outset, as did Trial Chamber I, that some scholars, practitioners, and a particular line of authority from the ad hoc tribunals have questioned the usefulness of the distinction between international and noninternational armed conflicts, particularly in the light of their shifting nature. In the view of the Chamber, that distinction is not only an established part of the international law of armed conflict, but most importantly it is enshrined in the relevant statutory provisions of the Rome Statute framework. That distinction is especially important in that it is based on the capacity of actors, particularly non-State armed groups, to apply the relevant provisions of international humanitarian law effectively. "[157]

ICC

As noted by ICC Trial Chamber in The Prosecutor v. Jean-Pierre Bemba Gombo:

"128. Neither the Statute nor the Elements of Crimes define the concept of "armed conflict". However, the Introduction to Article 8 of the Elements of Crimes provides that "[t]he elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict." In this regard, in line with the Pre-Trial Chamber’s approach in the Confirmation Decision, the Chamber notes that the Tadić Appeals Chamber, by reference to various provisions of the Geneva Conventions and Additional Protocols I and II, defined an armed conflict as follows ("Tadić definition"): "[...] an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State. 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, 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." Like the Pre-Trial Chamber and Trial Chambers I and II, the Chamber adopts the Tadić definition.

129. The Chamber further notes that while it is possible for distinct conflicts to be taking place within one territory, the mere fact of involvement of different armed groups does not mean that they are engaged in separate armed conflicts.

130. The Chamber considers that an armed conflict not of an international character, but involving the governmental authorities of one state, may become internationalised owing to a second state’s participation on an opposing side of the conflict. In this regard, the Chamber notes that Trial Chambers I and II found that an armed conflict may be considered internationalised when it is established that armed groups are acting on behalf of a foreign government. For determining whether an armed group is acting on behalf of a state, Trial Chambers I and II endorsed the "overall control" test, as set out by the ICTY Appeals Chamber in the Tadić case, which requires the state to "ha[ve] a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group". The Chamber follows Trial Chambers I and II in endorsing this approach." [2]

In the Lubanga case, the Pre-trial Chamber said

"Article 8 (2)(f) of the Statute defines "conflicts not of an international character" for the purposes of article 8(2)(e) of the Statute, and provides that: '[...] It applied to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed group or between such groups'."[3]

The Pre-Trial Chamber in the Mbarushimana case held that

"The Defence criticised the "zigzagging performed by the Prosecution on the issue of the characterization of the armed conflict"and requested the Chamber to uphold its initial finding (purportedly made upon issuance of the warrant of arrest) which qualified Umoja Wetu as an international conflict or, in the alternative, to order the Prosecution to produce evidence to demonstrate that, in the interim period between Umoja Wetu and Kimia II (i.e., between 26 February and 1 March 2009), "there was an ongoing military engagement of sufficient intensity for it to be defined as a non-international armed conflict for the purpose of the contextual requirements of war crimes"."[4]

ICTY

According to the Tadić Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction:

"In an important subsequent development, States specified certain minimum mandatory rules applicable to internal armed conflicts in common Article 3 of the Geneva Conventions of 1949. The International Court of Justice has confirmed that these rules reflect "elementary considerations of humanity" applicable under customary international law to any armed conflict, whether it is of an internal or international character. (Nicaragua Case, at para. 218). Therefore, at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant."[5]

The Appeals Chamber in Mucić et al. ("Čelebići") confirmed this view stating:

"Something which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader"[6]

The Hadžihasanović and Kubura Trial Chamber reasonned

"[T]he Chamber found that the armed conflict in the case before it was, by default, of an internal nature.[...] [T]he Chamber considered that since the Indictment does not explicitly indicate the existence of an international armed conflict in Central Bosnia in 1993, evidence about the possible international nature of that conflict has no direct relationship with any specific charges in the Indictment. In that regard, the Chamber noted in its decision that the Prosecution did not present evidence during its case-in-chief which would establish that the armed conflict in Central Bosnia in 1993 was international in nature. Ruling on the evidence produced by the Prosecution in cross-examination and finding that it would be admissible only insofar as it provides further details about the general context of this case and that it cannot serve to establish the international nature of the conflict in respect of the applicable law, the Chamber recognises that it is in fact dealing with an internal armed conflict."[7]

According to the Trial Chamber in Mrkšić et al,

"[t]wo criteria are to be assessed under this test: (i) the intensity of the conflict and (ii) the organisation of the parties. Both are factual matters which ought to be determined in light of the particular evidence available and on a case-by-case basis."[8]

In the Milutinović et al. case, the Trial Chamber held that

"[...]Tribunal has used the test as articulated by the Tadić Appeals Chamber in 1995, according to which "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. The existence of an armed conflict does not depend upon the views of the parties to the conflict."[9]

"Trial Chambers assessing internal armed conflicts must consider both the intensity of the conflict and the organisation of the parties to the conflict in order to exclude banditry, civil unrest, and unorganised and short-lived insurrections, all of which are not subject to international humanitarian law. An internal armed conflict need not be "generalised" in the sense that the entire territory is involved in the conflict; the requirement of protracted armed violence may be satisfied by evidence of localised areas in which 'serious fighting for an extended period of time'occurred."[10]

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 953:

"953. Armed Conflict. The test for determining the existence of an armed conflict was set out by the Appeals Chamber in the Tadić Jurisdiction Decision: [A]n 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."

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 521:

"521. The Appeals Chamber notes that while the Trial Chamber concluded that an armed conflict existed between the KLA and Serbian forces in Kosovo, it did not explicitly establish the nature of the armed conflict.¹⁷⁰⁷ By contrast, it explicitly defined the conflict between the FRY and NATO as international in nature.¹⁷⁰⁸ The Trial Chamber, however, applied the law relevant to internal armed conflicts¹⁷⁰⁹ and separately found that “the KLA possessed sufficient characteristics of an organised armed force to be able to engage in an internal armed conflict”.¹⁷¹⁰ The Appeals Chamber recalls in this respect that an internal armed conflict may exist alongside an international armed conflict,¹⁷¹¹ and is satisfied that the Trial Chamber therefore considered the conflict between the KLA and Serbian forces to be an internal armed conflict.¹⁷¹²"

ICTR

According to the Trial Chamber in Semanza

"Common Article 3 prescribes: 'In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, ... [certain] provisions....' Therefore, Common Article 3 is applicable to any non-international armed conflict within the territory of a state party. In general, non-international armed conflicts referred to in Common Article 3 are conflicts with armed forces on either side engaged in hostilities that are, according to the International Committee of the Red Cross ('ICRC'), 'in many respects similar to an international war, but take place within the confines of a single country.'" "[11]

According to the Appeals Chamber in Setako,

"In considering whether the 25 April Killings amounted to a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, the Trial Chamber correctly recalled the threshold elements of Article 4 of the Statute, namely: (i) the existence of a non-international armed conflict [...]."[12]

3.1.1. Evidence of an armed violence between governmental authorities and organized armed groups or between such groups within a State

ICC

The Pre-Trial Chamber in the Mbarushimana case held that

"Furthermore, the designation "conflicts of a non-international character" applies to armed conflicts that take place in the territory of a state, when there is a protracted armed conflict between government authorities and organised armed groups or between such groups. Consistent with the case law of the Chamber, for the purpose of Article 8(2)(f) of the Statute, an organised armed group must have "the ability to plan and carry out military operations for a prolonged period of time."[13]

The Trial Chamber in the Lubanga case explained that

"Armed conflicts not of an international character are conflicts that take place in the territory of a State when there is a protracted conflict between the government and organised armed groups, or between armed groups. It is suggested by the defence that Additional Protocol II to the Geneva Conventions of 8 June 1977 operates to restrict this definition by stipulating that armed conflicts in this category "take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol.""[14]

ICTY

In the Lukić and Lukić case, the Trial Chamber held that

"[T]he evidence shows that during the indictment period there was an armed conflict [...] both sides undertook offensive and defensive actions, a feature which, the Trial Chamber considers, demonstrates that they were engaged in military planning and tactics in order to achieve military objectives, including to establish control over portions of the territory [...].The Trial Chamber notes in this regard the establishment of front lines by both forces, to which armed men were deployed."[15]

"While there is evidence that the Muslim forces were not well-equipped or well-armed, the Rogatica Brigade Command operations reports indicate that both sides laid landmines. There is also evidence of the use of heavy weapons, and large quantities of ammunition, by the Serb forces, which, the Trial Chamber considers is indicative of the intense fighting that was taking place on, at the very least, the dates to which the reports pertained."[16]

3.1.2. Evidence of intensity of the conflict

ICC

As noted by ICC Trial Chamber in The Prosecutor v. Jean-Pierre Bemba Gombo:

"137. The first sentence common to Article 8(2)(d) and 8(2)(f) requires the conflict to reach a level of intensity which exceeds "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature". In order to assess the intensity of a conflict, Trial Chambers I and II endorsed the ICTY’s finding that relevant factors include "the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations (UN) Security Council, and, if so, whether any resolutions on the matter have been passed". The Chamber follows the approach of Trial Chambers I and II in this respect.

138. Article 8(2)(f), which is stated to apply to Article 8(2)(e), contains a second sentence additionally requiring that there be a "protracted armed conflict". This is in contrast to Article 8(2)(d), stated to apply to Article 8(2)(c), which does not include such a requirement. The Pre-Trial Chamber, while noting that this difference "may be seen to require a higher or additional threshold of intensity to be met", did "not deem it necessary to address this argument, as the period in question covers approximately five months and is therefore to be regarded as protracted in any event". Given that crimes under both Articles 8(2)(c) and 8(2)(e) have been charged in this case, the Chamber notes that the potential distinction would only have significance if the Chamber were to reach a conclusion that the conflict in question was not "protracted", and therefore finds it unnecessary to address the difference further at this point.

139. The Chamber notes that the concept of "protracted conflict" has not been explicitly defined in the jurisprudence of this Court, but has generally been addressed within the framework of assessing the intensity of the conflict. When assessing whether an armed conflict not of an international character was protracted, however, different chambers of this Court emphasised the duration of the violence as a relevant factor. This corresponds to the approach taken by chambers of the ICTY. The Chamber follows this jurisprudence.

140. The Chamber notes the Defence’s submission that "if the conflict devolves to the level of riots, internal disturbances or tensions, or isolated or sporadic acts of violence, or if the conflict ceases to be between organized armed groups", the threshold for the existence of a "protracted armed conflict" would cease to be met. The Chamber considers that the intensity and "protracted armed conflict" criteria do not require the violence to be continuous and uninterrupted. Rather, as set out in the first sentence common to Article 8(2)(d) and 8(2)(f), the essential criterion is that it go beyond "isolated or sporadic acts of violence". In the view of the Chamber, this conclusion is further supported by the drafting history of Article 8(2)(f).

141. The Chamber additionally recalls that following the initiation of an armed conflict, international humanitarian law continues to apply to the whole territory under the control of a party, until a "peaceful settlement" is achieved. The Chamber finds that, contrary to the Defence’s allegation, the meaning of a "peaceful settlement" does not reflect only the mere existence of an agreement to withdraw or a declaration of an intention to cease fire." [17]

The Pre-Trial Chamber in the Mbarushimana case held that

"As to whether the conflict can be qualified as non-international in character, article 8(2)(d) and (f) of the Statute requires such conflict reach a certain level of intensity which exceeds that of "internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of similar nature"."[18]

The Trial Chamber in the Lubanga case explained that

"The approach of the Pre-Trial Chamber is referred to by the defence in this regard:

"Thus, in addition to the requirement that the violence must be sustained and have reached a certain degree of intensity, Article I.I of Protocol Additional II provides that armed groups must: i) be under responsible command implying some degree of organisation of the armed groups, capable of planning and carrying out sustained and concerted military operations and imposing discipline in the name of a de facto authority, including the implementation of the Protocol; and ii) exercise such control over territory as to enable them to carry out sustained and concerted military operations."[19]

ICTY

In regard to the intensity test, the Trial Chamber in Boškoski and Tarčulovski, underlined that

"Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements."[20]

"At a more systemic level, an indicative factor of internal armed conflict is the way that organs of the State, such as the police and military, use force against armed groups. In such cases, it may be instructive to analyse the use of force by governmental authorities, in particular, how certain human rights are interpreted, such as the right to life and the right to be free from arbitrary detention, in order to appreciate if the situation is one of armed conflict. As is known, in situations falling short of armed conflict, the State has the right to use force to uphold law and order, including lethal force, but, where applicable, human rights law restricts such usage to what is no more than absolutely necessary and which is strictly proportionate to certain objectives. The European Court of Human Rights has held in a number of cases that to use lethal force against a person whom it is possible to arrest would be "more than absolutely necessary". However, when a situation reaches the level of armed conflict, the question what constitutes an arbitrary deprivation of life is interpreted according to the standards of international humanitarian law, where a different proportionality test applies."[21]

Moreover, Trial Chamber in Boškoski and Tarčulovski stated,

"[i]n applying this test, what matters is whether the acts are perpetrated in isolation or as part of a protracted campaign that entails the engagement of both parties in hostilities. It is immaterial whether the acts of violence perpetrated may or may not be characterised as terrorist in nature."[22]

"while isolated acts of terrorism may not reach the threshold of armed conflict, when there is protracted violence of this type, especially where they require the engagement of the armed forces in hostilities, such acts are relevant to assessing the level of intensity with regard to the existence of an armed conflict."[23]

The Trial Chamber in the Đorđ;ević case stated that

"Various factors have been taken into account by Trial Chambers to assess the "intensity" of the conflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones, the type of weapons used, in particular the use of heavy weapons and other military equipment, such as tanks and other heavy vehicles, the blockading or besieging of towns and the heavy shelling of towns, the extent of destruction and the number of casualties caused by shelling or fighting, the quantity of troops and units deployed; existence and change of front lines between the parties, the occupation of territory, and towns and villages, the deployment of government forces to the crisis area, the closure of roads, cease fire orders and agreements, the attempt of representatives from international organisations to broker and enforce cease fire agreements, the intensity, including the protracted nature, of violence which has required the engagement of the armed forces and the high number of casualties and extent of material destruction."[24]

The Trial Chamber in Haradinaj et al. held that

"[t]he criterion of protracted armed violence has therefore been interpreted in practice, including by the Tadić Trial Chamber itself, as referring more to the intensity of the armed violence than to its duration. Trial Chambers have relied on indicative factors relevant for assessing the "intensity" criterion, none of which are, in themselves, essential to establish that the criterion is satisfied. These indicative factors include the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict."[25]

The Trial Chamber in the Haradinaj and al. retrial also held that

"The factors taken into account to assess the intensity of the conflict include the seriousness of attacks and whether there has been an increase in armed clashes; the spread of clashes over territory and over a period of time; any increase in number of government forces and mobilisation and the distribution of weapons among both parties to the conflict; involvement of the UN Security Council; number of civilians forced to flee from the combat zones; types of weapons used, particularly heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blockading or besieging of towns and heavy shelling of towns; the extent of destruction and number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, towns and villages; the deployment of government forces to the crisis area; closure of roads; cease fire orders and agreements; the attempt of representatives from international organisations to broker and enforce cease fire agreements; and the intensity, including the protracted nature, of violence which has required the engagement of the armed forces and the high number of casualties and extent of material destruction."[26]

3.1.3. Evidence of degree of organization of the parties

ICC

As noted by ICC Trial Chamber in The Prosecutor v. Jean-Pierre Bemba Gombo:

"132. Concerning the requirement of the presence of "organized armed groups", the Pre-Trial Chamber found that: [...] even though mention of opposing parties to the conflict is made expressis verbis in article 8(2)(f) of the Statute but not in article 8(2)(d) of the Statute, [...] this characteristic element in the context of a [non international armed conflict] is a well established principle in the law of armed conflict underlying the 1949 Geneva Conventions [and] also applies to article 8(2)(c) of the Statute.

133. The Chamber agrees with the Pre-Trial Chamber’s approach, and addresses the requirement of "organized armed groups" in the present case, irrespective of whether the specific crimes fall under Article 8(2)(c) or (e).

134. In the absence of a definition of the concept of "organized armed groups" in the Statute or the Elements of Crimes, other Chambers of this Court found that these groups must have a sufficient degree of organization in order to enable them to carry out protracted armed violence. While mindful that Article 1(1) of Additional Protocol II requires the armed groups to exercise control over the territory and to be under responsible command, Trial Chambers I and II considered that the Statute does not include such requirements. Instead, Trial Chambers I and II held that: "[w]hen deciding if a body was an organised armed group (for the purpose of determining whether an armed conflict was not of an international character), the following non-exhaustive list of factors is potentially relevant: the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement. None of these factors are individually determinative. The test, along with these criteria, should be applied flexibly when the Chamber is deciding whether a body was an organised armed group, given the limited requirement in Article 8(2)(f) of the Statute that the armed group was "organized"."

135. The Pre-Trial Chamber considered that "[t]aking into consideration the principles and rules of international armed conflict reflected in [a number of] international instruments [...] those "organized armed groups" must be under responsible command". In this regard, the Pre-Trial Chamber found that "responsible command entails some degree of organization of those armed groups, including the possibility to impose discipline and the ability to plan and carry out military operations".

136. Regarding the issue of "responsible command", the Chamber notes that the definition of responsible command proposed by the Pre-Trial Chamber overlaps to a significant extent with the list of factors set forth by Trial Chambers I and II and only includes the additional indicator of the possibility to impose discipline. Noting further that the list set forth by Trial Chambers I and II is not exhaustive and that Trial Chambers I and II suggested applying this test with some flexibility, the Chamber finds no substantial contradiction between the two approaches. Accordingly, in determining whether the relevant groups qualify as "organized armed groups" for the purpose of Article 8(2)(f), the Chamber considers the full spectrum of factors set forth by Trial Chambers I and II, as well as the Pre-Trial Chamber." [27]

In the Lubanga case, the Pre-trial Chamber said

"The Chamber finds that there are substantial grounds to believe that these three armed groups were in fact organised armed groups [...]. Thus, it seems that the FNI war capable of carrying out large-scale military operations for a prolonged period of time."[28]

In the Garda case, the Pre-Trial Chamber explained that

"As this Chamber has already held in the Lubanga case, "the involvement of armed groups with some degree of organisation and the ability to plan and carry out sustained military operations would allow for the conflict to be characterised as an armed conflict not of an international character." In addition, "the armed groups in "question [need] to have the ability to plan and carry out military

"operations for a prolonged period of time.""[29]

The Pre-Trial Chamber in the Mbarushimana case held that

" [...] the FDLR was a well-organised combatant force with a political wing, whose top leaders were based mainly in Europe, and a military wing stationed in the eastern DRC. These two branches of the organisation were coordinated by a Steering Committee, which was comprised of equal numbers of civilian and military leaders. [...] The evidence further shows that the FDLR was characterised by a hierarchical structure and a high level of internal organisation. Its constitutive instruments included a statute, a "r?¨?¨glement d'ordre int?¨¦rieur" and a disciplinary code which provided the organisation's internal disciplinary system."[30]

" [...] the Chamber is satisfied that there are substantial grounds to believe that the FDLR as an armed group possessed the degree of organisation required under Article 8(2)(f) of the Statute."[31]

The Trial Chamber in the Lubanga case held that

"The defence argues the prosecution has failed to demonstrate that the FNI, the FRPI, PUSIC, and the FAPC were "organized armed groups" under international humanitarian law. It is submitted it has not been proven that these organisations were under responsible command or exercised sufficient control over a part of the relevant territory, thereby enabling them to carry out sustained and concerted military operations and to implement the provisions of international humanitarian law."[32]

ICTY

In the Dorđević Appeals Judgement, the Appeals Chamber held that:

"The Appeals Chamber notes that while the Trial Chamber concluded that an armed conflict existed between the KLA and Serbian forces in Kosovo, it did not explicitly establish the nature of the armed conflict. By contrast, it explicitly defined the conflict between the FRY and NATO as international in nature.The Trial Chamber, however, applied the law relevant to internal armed conflicts and separately found that "the KLA possessed sufficient characteristics of an organised armed force to be able to engage in an internal armed conflict. The Appeals Chamber recalls in this respect that an internal armed conflict may exist alongside an international armed conflict, and is satisfied that the Trial Chamber therefore considered the conflict between the KLA and Serbian forces to be an internal armed conflict."[33]

The Trial Chamber in Orić stated that:

"[w]hile the jurisprudence of the Tribunal requires an armed group to have 'some degree of organisation', the warring parties do not necessarily need to be as organised as the armed forces of a State."[34]

The Trial Chamber in Haradinaj et al. held that

"an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means. State governmental authorities have been presumed to dispose of armed forces that satisfy this criterion."[35]

To evaluate the degree of organization of the KLA, the Trial Chamber in Haradinaj et al. identified the following indicative factors

"the existence of KLA headquarters and command structure; the existence of KLA disciplinary rules and mechanisms; territorial control exerted by the KLA; the ability of the KLA to gain access to weapons and other military equipment; to recruit members; to provide them with military training; to carry out military operations and use tactics and strategy; and to speak with one voice"."[36]

Regarding armed groups, the Trial Chamber in Boškoski and Tarčulovski delineated the indicative factors

"Trial Chambers have taken into account a number of factors when assessing the organisation of an armed group. These fall into five broad groups. In the first group are those factors signalling the presence of a command structure, such as the establishment of a general staff or high command, which appoints and gives directions to commanders, disseminates internal regulations, organises the weapons supply, authorises military action, assigns tasks to individuals in the organisation, and issues political statements and communiqu?¨¦s, and which is informed by the operational units of all developments within the unit's area of responsibility. Also included in this group are factors such as the existence of internal regulations setting out the organisation and structure of the armed group; the assignment of an official spokesperson; the communication through communiqu?¨¦s reporting military actions and operations undertaken by the armed group; the existence of headquarters; internal regulations establishing ranks of servicemen and defining duties of commanders and deputy commanders of a unit, company, platoon or squad, creating a chain of military hierarchy between the various levels of commanders; and the dissemination of internal regulations to the soldiers and operational units."[37]

"[s]econdly, factors indicating that the group could carry out operations in an organised manner have been considered, such as the group's ability to determine a unified military strategy and to conduct large scale military operations, the capacity to control territory, whether there is territorial division into zones of responsibility in which the respective commanders are responsible for the establishment of Brigades and other units and appoint commanding officers for such units; the capacity of operational units to coordinate their actions, and the effective dissemination of written and oral orders and decisions."[38]

"[i]n the third group are factors indicating a level of logistics have been taken into account, such as the ability to recruit new members; the providing of military training; the organised supply of military weapons; the supply and use of uniforms; and the existence of communications equipment for linking headquarters with units or between units."[39]

"[i]n a fourth group, factors relevant to determining whether an armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3 have been considered, such as the establishment of disciplinary rules and mechanisms; proper training; and the existence of internal regulations and whether these are effectively disseminated to members."[40]

"[a] fifth group includes those factors indicating that the armed group was able to speak with one voice, such as its capacity to act on behalf of its members in political negotiations with representatives of international organisations and foreign countries; and its ability to negotiate and conclude agreements such as cease fire or peace accords."[41]

Additionally, the Trial Chamber in Boškoski and Tarčulovski held that

"so long as the armed group possesses the organisational ability to comply with the obligations of international humanitarian law, even a pattern of such type of violations would not necessarily suggest that the party did not possess the level of organisation required to be a party to an armed conflict. The Chamber cannot merely infer a lack of organisation of the armed group by reason of the fact that international humanitarian law was frequently violated by its members. In assessing this factor the Chamber needs to examine how the attacks were planned and carried out ?¨C that is, for example, whether they were primarily the result of a military strategy ordered by those leading the group or whether they were perpetrated by members deciding to commit attacks of their own accord."[42]

The Trial Chamber in the Đorđ;ević case stated that

"Trial Chambers have taken into account a number of factors when assessing the organisation of an armed group. These fall into five broad groups. First, are the factors signalling the presence of a command structure. Secondly, are factors indicating that an armed group could carry out operations in an organised manner. Thirdly, are factors indicating a level of logistics have been taken into account. Fourthly, are factors relevant to determining whether an armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3.A fifth group includes factors indicating that the armed group was able to speak with one voice."[43]

In the Lukić and Lukić case, the Trial Chamber explained that

"With regard to the level of organisation of the Serb and Muslim forces [...] Men were recruited into the force, including through the mobilisation of the Visegrad reserve police and the creation of units that were considered part of the Serb forces. Training, weapons, and other equipment were initially provided by the Uzice Corps. [R]equests for equipment and weapons were being made [...], the Serb forces in Visegrad were operating under the same rules as other units [...]."[44]

"The evidence shows that Muslims began to organise themselves locally into armed units [...]. [T]he TO structure, which had existed before the war, formed the basis of the structure of the new Muslim forces. There was a chain of command. The Muslim forces established frontlines and [...] the Muslim forces regularly undertook offensive and defensive military actions. The evidence indicates that these forces controlled territory in and around the Visegrad municipality.[...] The Trial Chamber considers that the ability of the Muslim forces to carry out effective military operations, including the necessary troop movements and logistics, clearly indicates that the forces had a significant level of organisation."[45]

The Trial Chamber in the Haradinaj and al. retrial held that

"While an armed group must have "some degree of organisation", the warring parties do not necessarily need to be as organised as the armed forces of a State. The leadership of the group must, as a minimum, have the ability to exercise some control over its members so that the basic obligations of Common Article 3 of the Geneva Conventions may be implemented. These are factual elements which need to be determined on a case-by-case basis."[46]

The Trial Chamber also held that

"The factors taken into account to assess the organisation of an armed group can be seen to fall into five broad groups. They are factors signalling the presence of a command structure; factors indicating that the armed group could carry out operations in an organised manner; factors indicating a level of logistic; factors relevant to the armed group's level of discipline and its ability to implement the basic obligations of Common Article 3; and factors indicating that the armed group was able to speak with one voice."[47]

3.2.I n the context of: Temporal and geographical scope of the application of international humanitarian law [Temporal and geographical scope of armed conflict]

In Orić, the Trial Chamber held that

"The temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities. 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, a peaceful settlement is achieved. Thus, the norms of international humanitarian law apply regardless of whether actual combat activities are taking place in a particular location."[48]

In the Lukić and Lukić case, the Trial Chamber explained that

"Where crimes were allegedly committed at a time and a place where fighting was not taking place, "it would be sufficient [...] that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict." [...] Importantly, a geographical and temporal link must be established between the crimes with which the accused is charged and the armed conflict."[49]

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 955: 

"955. The armed conflict extends to 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. The armed conflict ends when there is a general conclusion of peace (for international armed conflicts) or when a peaceful settlement is achieved (for armed conflicts not of an international character)."

3.2.1. Evidence of temporal scope of the application of international humanitarian law [Evidence of temporal scope of armed conflict]

According to the Trial Chamber in Boškoski and Tarčulovski

"It is not required that the alleged crimes occur at a time and in a place where fighting is actually taking place. The temporal applicability of the laws and customs of war was described by the Appeals Chamber in the case of internal armed conflicts as lasting until a peaceful settlement is achieved. This finding is not to be understood as limiting the jurisdiction of the Tribunal to crimes committed until a peace agreement between the parties was achieved; rather, if armed violence continues even after such agreement is reached, an armed conflict may still exist and the laws and customs of war remain applicable"."[50]

The Trial Chamber in the Đorđ;ević case held that

" It is not required that the alleged crimes occur at a time and in a place where fighting is actually taking place. The temporal applicability of the laws and customs of war was described by the Appeals Chamber in the case of internal armed conflicts as lasting until a peaceful settlement is achieved."[51]

The Trial Chamber in the Haradinaj and al. retrial held that

"The armed conflict ends in the case of an international conflict, when there is a general conclusion of peace, and in the case of a non-international conflict, when a peaceful settlement is reached."[52]

3.2.2. Evidence of geographical scope of the application of international humanitarian law [Evidence of geographical scope of armed conflict]

The Trial Chamber in the Haradinaj and al. retrial held that

"The armed conflict is seen to extend to the entire territory of the warring states or, in case of a non-international conflict, the entire territory controlled by a party, irrespective of whether actual combat takes place there." "[53]

In the Milutinović et al. case, the Trial Chamber held that

"Although there must be a connection between the crimes alleged and the armed conflict, the Prosecution need not establish that actual combat activities took place in the area where the offences are alleged to have occurred; "[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." The Kordić Trial Chamber further noted that "in order for norms of international humanitarian law to apply in relation to a particular location ... [a]ll that is required is a showing that a state of armed conflict existed in the larger territory of which [that] location forms a part.""[54]

In the Stanišić and Simatović case, the Trial Chamber said:

"The armed conflict extends to 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. The armed conflict ends [...] when a peaceful settlement is achieved (for armed conflicts not of an international character)."[55]

3.3. Was associated with: Nexus between the crime and the armed conflict [an armed conflict playing a substantial part in the perpetrator's ability to commit a crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed (the fact that the perpetrator acted in furtherance of or under the guise of the armed conflict)].

ICC

As noted by ICC Trial Chamber in The Prosecutor v. Jean-Pierre Bemba Gombo:

"142. In order to qualify as war crimes, the alleged crimes must have been committed "in the context of and [...] associated with an armed conflict not of an international character". In this regard, the Chamber endorses the approach of Trial Chamber II, which held that: "[the conduct] must have been closely linked to the hostilities taking place in any part of the territories controlled by the parties to the conflict. The armed conflict alone need not be considered to be the root of the conduct and the conduct need not have taken place in the midst of battle. Nonetheless, the armed conflict must play a major part in the perpetrator’s decision, in his or her ability to commit the crime or the manner in which the crime was ultimately committed."

143. In determining whether the crimes are sufficiently linked to the armed conflict, the Trial Chamber may take into account factors including: the status of the perpetrator and victim; whether the act may be said to serve the ultimate goal of a military campaign; and whether the crime is committed as part of, or in the context of, the perpetrator’s official duties. It is noted in this regard that, although there is likely to be some relationship between a perpetrator and a party to the conflict, it is not necessarily the case that a perpetrator must him/herself be a member of a party to the conflict; rather, the emphasis is on the nexus between the crime and the armed conflict.

144. The Chamber additionally finds that the alleged crimes may be considered to have been committed "within the context" of an armed conflict irrespective of whether they took place contemporaneously with or proximate to intense fighting. " [56]

ICTY

According to the Hadžihasanović and Kubura Trial Chamber

" As regards the close nexus which must exist between the crimes charged and the conflict, the Chamber is of the opinion that there is sufficient evidence to find that such a nexus did exist. This finding is based in particular on evidence establishing that many people were detained either following an attack, following ABiH searches for people with weapons or radios, or for any other reason. The destruction of towns or villages and of institutions dedicated to religion, as well as the plunder or confiscation of personal or military property, were all linked to the ongoing fighting in the Lašva and Bila valleys during the period in question."[57]

Moreover, according to the Orić Trial Chamber

"[T]he alleged offences be closely related to the armed conflict, does not necessitate that the said offences be committed whilst fighting is actually taking place or at the scene of combat. As the Appeals Chamber has affirmed, the armed conflict need not have been causal to the commission of the crime. Yet, the existence of an armed conflict must at minimum have played a substantial part in the perpetrators' ability to commit it, their decision to commit it, the manner in which it was committed or the purpose for which it was committed. Therefore, this requirement would be fulfilled if the alleged offence was committed either during or in the aftermath of the hostilities, provided that it was committed in furtherance of, or at least under the guise of, the situation created by the armed conflict."[58]

This was endorsed by the Appeals Chamber in Stakić, which held that

"Article 3 crimes need not be committed in the area of armed conflict, but must at least be "substantially related" to this area, which at least includes the entire territory under control of the warring parties. It is essential, however, that a Trial Chamber establish the existence of a geographical and temporal linkage between the crimes ascribed to the accused and the armed conflict"."[59]

"The Appellant's contention that there was not a sufficient connection shown between himself and the police, who were the direct perpetrators of many of the crimes for which he was found guilty as a co-perpetrator, is also unconvincing. The relevant question is whether the Appellant's acts were connected to the armed conflict ?¨C not to a particular group. In any event, it was adequately shown that there was co-ordination between the police and the military in conducting the armed conflict in Prijedor during the time-period in the Indictment [...] These findings adequately demonstrate that the Appellant acted under the guise of armed conflict in conjunction with the police as well as the military."[60]

"Finally, even if there were a time discrepancy between the Prijedor killings and the three events referred to in paragraph 576 of the Trial Judgement, this inconsistency would not undermine the nexus finding, as those prior events are sufficiently linked to the later crimes for which the Appellant was convicted. Both the ultimatum to the residents of Hambarine and the attack on Kozarac occurred in May 1992, during the period of armed conflict considered by the Trial Chamber."[61]

Moreover, the Trial Chamber in Mrkšić et al. added that

"to meet the jurisdictional preconditions of Article 3 of the Statute, the Prosecution must establish a sufficient link between the alleged acts of the accused and the armed conflict. The nexus requirement serves to distinguish war crimes from purely domestic crimes and also prevents purely random or isolated criminal occurrences from being characterized as war crimes. The armed conflict need not have been causal to the commission of the crime charged, but it must have played a substantial part in the perpetrator's ability to commit that crime. In determining whether such a nexus exists, reliance may be placed upon, inter alia, whether the perpetrator was a combatant, whether the victim was a non-combatant, whether the victim was a member of the opposing party, whether the act may be said to have served the ultimate goal of a military campaign, and whether the crime is committed as part of or in the context of the perpetrator's official duties"."[62]

Additionally, the Trial Chamber in Boškoski and Tarčulovski held that

"To meet the general requirements of Article 3 of the Statute, the Prosecution must establish a sufficient link between the alleged acts of the Accused and the armed conflict. The nexus requirement serves to distinguish war crimes from purely domestic crimes and also prevents purely random or isolated criminal occurrences from being characterized as war crimes. The armed conflict need not have been causal to the commission of the crime charged, but it must have played a substantial part in the perpetrator's ability to commit that crime"."[63]

"In determining whether a nexus between the acts of the accused and the armed conflict exists, reliance may be placed, inter alia, upon whether the perpetrator was a combatant, whether the victim was a non-combatant, whether the victim was a member of the opposing party, whether the act may be said to have served the ultimate goal of a military campaign, and whether the crime is committed as part of or in the context of the perpetrator's official duties"."[64]

The Trial Chamber in the Đorđ;ević case stated that

"To meet the general requirements of Article 3 of the Statute, the Prosecution must establish a sufficient link between the alleged acts of the Accused and

"the armed conflict. The nexus requirement serves to distinguish war crimes from purely domestic crimes and also prevents purely random or isolated criminal occurrences from being characterized as war crimes. The armed conflict need not have been causal to the commission of the crime charged, but it must have played a substantial part in the perpetrator's ability to commit that crime. [...] In determining whether a nexus between the acts of the accused and the armed conflict exists, reliance may be placed, inter alia, upon whether the perpetrator was a combatant, whether the victim was a noncombatant, whether the victim was a member of the opposing party, whether the act may be said to have served the ultimate goal of a military campaign, and whether the crime is committed as part of or in the context of the perpetrator's official duties."[65]

The Trial Chamber in the Haradinaj and al. retrial held that

"To meet the nexus requirement the Prosecution must establish a sufficient link between the Accused's alleged conduct and the armed conflict. It is not required that the alleged crime be committed at a time and place where actual combat took place. The nexus requirement is used to distinguish war crimes from purely domestic crimes and to avoid that random or isolated crimes are qualified as war crimes. There need not be a causal link between the armed conflict and the crime. However, the armed conflict must have played a substantial role in the perpetrator's ability to commit the crime, his or her decision to commit it, the manner in which it was committed, or the purpose for which it was committed. For the determination whether or not sufficient link between the armed conflict and the crime exists, the following criteria may be considered: whether the perpetrator was a combatant; whether the victim was a non-combatant or a member of the adverse party; whether the act can be seen to have furthered the ultimate goal of the military action; and whether the perpetrator committed the crime as part of or in the context of his or her official duties."[66]

Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 956: 

"The alleged crime need not have occurred at a time and place in which there was actual combat, so long as the acts of the perpetrator were 'closely related' to hostilities occurring in territories controlled by parties to the conflict. The existence of this close relationship between the crime and the armed conflict will be established where it can be shown that the conflict played a substantial part in the perpetrator's ability to commit the crime, his or her decision to commit it, the manner in which it was committed, or the purpose for which it was committed."[67]

ICTR

In Setako, the Appeals Chamber held that

"In considering whether the 25 April Killings amounted to a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, the Trial Chamber correctly recalled the threshold elements of Article 4 of the Statute, namely: [... ] (ii) the existence of a nexus between the alleged violation and the armed conflict [...]."[68]

"The Appeals Chamber recalls that the required nexus need not be a causal link, but that the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit the crime, his decision to commit it, the manner in which it was committed, or the purpose for which it was committed. The Appeals Chamber has thus held that "if it can be established [...] 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." To find a nexus, it is sufficient that the alleged crimes be closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict."[69]

"In finding that there was a nexus between the 25 April Killings and the armed conflict, the Trial Chamber noted the ongoing conflict between the Government Forces and the RPF, which was identified with the Tutsi ethnic minority in Rwanda. It considered that this created the situation and provided a pretext for extensive killings and other abuses of the civilian population at the time. It noted that such killings began within hours of the death of President Habyarimana on 6 April 1994, and on the same day as the resumption of active hostilities between the RPF and the Government Forces. It considered that the 25 April Killings were ordered by Setako, an army officer, in a military camp, and were executed by soldiers and militiamen. These considerations led the Trial Chamber to find that Setako and the assailants who committed the killings were acting in furtherance of the armed conflict or under its guise."[70]

"The Appeals Chamber does not see any error in this approach. In addition, the Appeals Chamber notes that the perpetrators of the killings at Mukamira camp were assailants stationed at the camp. Witnesses SLA and SAT testified that, prior to the killings and during their combat training, soldiers and civil defence force recruits were told to consider Tutsis and RPF allies to be the enemy and that, on 25 April 1994, Setako pointed to Tutsis as the target for the soldiers and civil defence force recruits assembled. These elements establish that the 25 April Killings were closely related to the hostilities. It is immaterial that, as asserted by Setako, at that point in time there may have been no fighting between the RPF and the Government Forces in the area of Mukamira camp, given that hostilities were taking place in other parts of the territory controlled by the parties to the conflict."[71]

"[...] [T]he Trial Chamber found that there was a nexus between the 25 April Killings at Mukamira camp and the armed conflict in Rwanda. [...] [The Appeals Chamber] finds that the Trial Chamber's reasons for concluding that the nexus requirement was fulfilled in relation to the 25 April Killings are equally applicable to the 11 May Killings. The 11 May Killings occurred in the context of the same armed conflict, which provided a pretext for the killings. Furthermore, Setako, a military officer, ordered other soldiers and militiamen to commit the 11 May Killings at Mukamira, which was a military camp. Accordingly, the Appeals Chamber is satisfied that there was a nexus between the armed conflict and the 11 May Killings."[72]

The Trial Chamber in Nyiramasuhuko et al. held that

"A nexus exists between the alleged offence and the armed conflict when they are closely related. The existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit the offence, his or her decision to commit it, the manner in which it was committed, or the purpose for which it was committed. If it can be established that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his or her acts were closely related to the armed conflict."[73]

While citing the Kunarac et al. Appeals Judgment, the Nyiramasuhuko et al. Trial Chamber noted

"In discussing the nexus requirement, the Appeals Chamber has stated that this element "would not be negated if the crimes were temporarily and geographically remote from the actual fighting. It would be sufficient, for instance, ... that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict."[74]

The Trial Chamber also noted that

"the implication of soldiers in these events provides further corroboration of the nexus to the armed conflict.

"Although it has not been established whether soldiers played any role in the attack on Mugombwa Church, the Chamber notes that prior to the attack, Ndayambaje told those taking refuge inside that they would be killed because they were accomplices of the Inkotanyi (3.6.4.4). The Chamber considers that this statement also corroborates that the ensuing attack on Mugombwa Church was linked to the armed conflict."[75]

The Trial Chamber in Ntagerura et al. held that

"The evidence shows that, on 6 June 1994, soldiers arrested Witness MG and three other members of his family because of their suspected ties to the RPF. Moreover, when soldiers subsequently beat and otherwise mistreated Witness MG and his co-detainees at the military camp, they questioned them concerning whether they were members of the RPF and accused them of collaborating with the enemy. Similarly, on 11 April 1994, soldiers presented Witness LI and the other refugees brought to the camp with him to Imanishimwe as "Inyenzi-Inkotanyi", a reference to those associated with the RPF. The Chamber finds that the soldiers' actions were motivated by their search for enemy combatants and those associated with them or, at least, that their actions were carried out under the pretext of such a search. As such, the Chamber considers that the soldiers were acting in furtherance of the armed conflict or under its guise. Likewise, the Chamber considers that when soldiers took part in the massacre of refugees at the Gashirabwoba football field on 12 April 1994, they did so under the guise of the underlying armed conflict. This is sufficient to establish that the alleged violations of Article 4(a) had the requisite nexus to the armed conflict. The Chamber, therefore, finds that the element of nexus between the crimes and the armed conflict has been satisfied."[76]

The Karemera and Ngirumpatse Trial Chamber reasonned

"The Chamber has found that the main perpetrators of the crimes against Tutsis included soldiers and gendarmes in the Rwandan army and gendarmerie. With respect to the crimes committed at roadblocks, the Chamber has noted the frequent mixing of military and civilian personnel at them [...]. The evidence shows that a main pretext of the killings at them was to identify RPF infiltrators[...] Moreover, the evidence also reveals that the same pretext was responsible for many of the killings that resulted from the implementation of the Civil Defence Program [...]. In this regard, the Chamber is convinced that the killings of Tutsis at roadblocks in Kigali during the weekend of 8-10 April 1994, the killing of thousands of civilians in Kigali and throughout Rwanda by 12 April 1994, and the killing at a massive scale of unarmed men, women, and children throughout Rwanda by mid-July 1994 were closely related to the conflict between the Rwandan armed forces and the RPF."[77]

About other attacks, the Chamber stated

"In the view of the Chamber, therefore, the armed conflict between Rwandan government forces and the RPF not only provided a pretext for the killings of Tutsi civilians in Bisesero, but it also provided the context of hostility and lawlessness within which those crimes were committed.

"The Chamber considers that the military and civilian perpetrators of these crimes were acting in furtherance of the armed conflict or under its guise. Accordingly, the Chamber finds that the alleged violations of Article 4(a) of the Statute had the requisite nexus to the armed conflict between Rwandan government forces and the RPF."[78]

Similarly, the Nizeyimana Trial Chamber found

"Soldiers were the exclusive or primary participants in these attacks, sometimes working in coordination with civilian militia or others. There is no question that these assailants targeted their victims in furtherance or under the guise of the existing armed conflict."[79]

SCSL

The Sesay, Kallon and Gbao Trial Chamber stated

" Although the Chamber finds that Kotor was not an RUF fighter, we hold that war crimes may be committed by persons who are not members of a party to a conflict, as long as a functional relationship existed between the act and the conflict."[80]

The Chamber also stated

"We find that the 63 civilians killed had been detained prior to their execution and were not taking an active part in hostilities at the time of their death. We conclude that a nexus existed between the killings and the armed conflict, as Bockarie ordered the killings in retaliation to the Intervention and due to his anxiety that Kamajors had infiltrated the civilian population. Consequently, the Chamber finds that these killings constitute the war crime of murder," "[81]