Element:

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

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

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 Chambers 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 states 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." [1]

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

1.1.2. Evidence of intensity of the conflict

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 ICTYs 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 Defences 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 Defences 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." [2]

1.1.3. Evidence of degree of organization of the parties

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 Chambers 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 groups internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or groups 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." [3]

In the Mbarushimana Decision on the Confirmation of Charges, the Pre-Trial Chamber 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". 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 organized 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."[5]

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."[4]

In Lukic and Lukic, the ICTY Trial Chamber found:

"With regard to the level of organisation of the Serb and Muslim forces, evidence presented to the Trial Chamber described establishment of a local armed force by the Užice Corps in April 1992. Men were recruited into the force, including through the mobilisation of the Višegrad 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 Užice Corps. By June 1992, as demonstrated by the Rogatica Brigade Command operations reports, requests for equipment and weapons were being made to the Command of the Sarajevo Romanija Corps. Similarly, there appears to be a concern toensure that the Serb forces in Višegrad were operating under the same rules as other units; the Rogatica Brigade Command report dated 14 June 1992 states: "In order for the command and subordinate units to be successful you need to provide us with rules [and] instructions (rules on companies, platoons, battalions, mines, regulations for preparing meals, and other rules)."2825 Both of these requests, as well as the established reporting procedures that are illustrated by the Rogatica Brigade Command reports and the division of the members of the Rogatica Brigade by rank, indicate both that the Rogatica Brigade had a chain of command itself and that it was part of a clearly-established and understood chain of command that stretched beyond Višegrad, as were the other units, such as the unit of which Milan Lukić was a member."[5]

"The evidence shows that Muslims began to organise themselves locally into armed units before the Užice Corps arrived in Višegrad and continued to do so after the Corps departed."[6]

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

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

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

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 perpetrators 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 perpetrators 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." [7]

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 Courts 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." [4]