Table of contents:
1. The conduct took place in the context of and was associated with an international armed conflict.
1.1. Existence of an "international armed conflict"
1.1.1. Evidence of an "armed conflict" falling into art. 8(2)(b)[1]
P.1. Inter-State armed conflict: Evidence of a resort to armed forces between States.
P.3.2. Evidence showing that the enemys forces have surrendered, been defeated or withdrawn;
P.3.4. Evidence showing that a temporary administration has been established over the territory;
P.4. Evidence of an armed conflict between two or more States.
- Evi dence of strategic importance: An area being the only operational route.
- Evi dence of the presence of logistical units of the controlling State in the relevant area;
- Evi dence of an IGO/NGOs assessment that the controlling State is providing logistical support;
- Evi dence of a chart detailing shipment of military equipment from the controlling State;
- Evi dence of a receipt for military hardware provided by the controlling State;
- Evi dence of a military order for the training of a military group in the controlling State;
- Evi dence of a States territorial ambitions in another State as demonstrated by:
(ii ) widespread use of the controlling States currency in another States;
P.7. Evidence of the timing of the initiation of hostilities.
P.8. Evidence of the timing of the cessation of hostilities.
P.13. Evidence of the status of the perpetrator (as soldier or combatant).
P.14. Evidence of the status of the victim or victims (as non-combatant).
P.15. Evidence showing that the victim was a member of the forces of the opposing party.
P.16. Evidence showing that the crime may be said to serve the ultimate goal of a military campaign.
P.18. Evidence of the perpetrators close association with a paramilitary group.
P.19. Evidence showing that the commission of the crime was made possible by the armed conflict.
P.20. Evidence showing that the armed conflict offered blanket impunity to the perpetrators.
P.21. Evidence of the circumstances in which the crime was committed.
P.21.3. Evidence of the perpetrators participation in expelling civilians from their homes.
Element:
1. The conduct took place in the context of and was associated with an international armed conflict.
1.1. Existence of an "international armed conflict"
1.1.1.Evidence of an "armed conflict" falling into art. 8(2)(b)[7]
P.1. Inter-State armed conflict: Evidence of a resort to armed forces between States.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 56:
"56. An "armed conflict" is said to exist "whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State."17
"17. Tadic Jurisdiction Decision, para. 67 and 70."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 27:
"27. In this regard, the Trial Chamber observes that, in order for norms of international humanitarian law to apply in relation to a particular location, there need not be actual combat activities in that location. All that is required is a showing that a state of armed conflict existed in the larger territory of which a given location forms a part.10"
"10. Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement, 16 November 1998 ("Celebici Trial Judgement"), para. 185."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 63-64:
"63. According to the Tadic Appeal Decision:
64. This criterion applies to all conflicts whether international or internal. It is not necessary to establish the existence of an armed conflict within each municipality concerned. It suffices to establish the existence of the conflict within the whole region of which the municipalities are a part. Like the Appeals Chamber, the Trial Chamber asserts that:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 182, 185:
"182. In order to apply the body of law termed "international humanitarian law" to a particular situation it must first be determined that there was, in fact, an "armed conflict", whether of an internal or international nature. Without a finding that there was such an armed conflict it is not possible for the Trial Chamber to progress further to its discussion of the nature of this conflict and how this impacts upon the applicability of Articles 2 and 3."
"185. In addition, whether 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."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (AC), 2 October 1995, para. 70:
"70. On the basis of the foregoing, we find 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. 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."
ICRC, Commentary to IV Geneva Convention relative to the Protection of Civilian Persons in Time of War (1958), pp. 20-21:
"It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression "armed conflict" makes such arguments less easy. Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims."
See Means of Proof Master Document on art. 8(2)(c) and 8(2)(e) for more details with regard to the requirements of (i) Intensity of the conflict, and (ii) Degree of organisation of the parties.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 31:
"31. Based upon the foregoing, the Chamber finds that, while it was not until April 1993 that a generalised state of armed conflict in the form of protracted violence broke out in the territory of Central Bosnia between the HVO and the ABiH, prior to that period there were localised areas of conflict, within which a state of armed conflict could be said to exist."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 145:
"145. In the light of the above discussion, the following conclusion may be safely reached. In the case at issue, given that the Bosnian Serb armed forces constituted a "military organization", the control of the FRY authorities over these armed forces required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. By contrast, international rules do not require that such control should extend to the issuance of specific orders or instructions relating to single military actions, whether or not such actions were contrary to international humanitarian law."
Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 569-571:
"(b) Use of force between States
569. Applying what the Appeals Chamber has said, it is clear from the evidence before the Trial Chamber that, from the beginning of 1992 until 19 May 1992, a state of international armed conflict existed in at least part of the territory of Bosnia and Herzegovina. This was an armed conflict between the forces of the Republic of Bosnia and Herzegovina on the one hand and those of the Federal Republic of Yugoslavia (Serbia and Montenegro), being the JNA (later the VJ), working with sundry paramilitary and Bosnian Serb forces, on the other. While the forces of the VJ continued to be involved in the armed conflict after that date, the character of the relationship between the VJ and the Bosnian Serb forces from that date, and hence the nature of the conflict in the areas with which this case is concerned, is discussed in the consideration of Article 2 of the Statute. It suffices for the moment to say that the level of intensity of the conflict, including the involvement of the JNA or the VJ in the conflict, was sufficient to meet the requirements for the existence of an international armed conflict for the purposes of the Statute."
570. For evidence of this it is enough to refer generally to the evidence presented as to the bombardment of Sarajevo, the seat of government of the Republic of Bosnia and Herzegovina, in April 1992 by Serb forces, their attack on towns along Bosnia and Herzegovina's border with Serbia on the Drina River and their invasion of south-eastern Herzegovina from Serbia and Montenegro. That the hostilities involved in this armed conflict extended into opstina Prijedor is also clear and is evidenced by the military occupation and armed seizure of power in the town of Prijedor itself on 30 April 1992 by JNA forces, aided by Bosnian Serb members of the police and administration and, following an unsuccessful revolt, their subsequent expulsion by force of arms of the majority of the non-Serb inhabitants from, and the bombardment and substantial destruction of, Stari Grad, the old, predominantly Muslim, section of Prijedor. These attacks were part of an armed conflict to which international humanitarian law applied up until the general cessation of hostilities.
571. However, the extent of the application of international humanitarian law from one place to another in the Republic of Bosnia and Herzegovina depends upon the particular character of the conflict with which the Indictment is concerned. This depends in turn on the degree of involvement of the VJ and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) after the withdrawal of the JNA on 19 May 1992. That issue will be dealt with in Section VI. B of this Opinion and Judgment.
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (AC), 2 October 1995, para. 70:
"70. [ ] Applying the foregoing concept of armed conflicts to this case, we hold that the alleged crimes were committed in the context of an armed conflict. Fighting among the various entities within the former Yugoslavia began in 1991, continued through the summer of 1992 when the alleged crimes are said to have been committed, and persists to this day. Notwithstanding various temporary cease-fire agreements, no general conclusion of peace has brought military operations in the region to a close. These hostilities exceed the intensity requirements applicable to both international and internal armed conflicts. There has been protracted, large-scale violence between the armed forces of different States and between governmental forces and organized insurgent groups. Even if substantial clashes were not occurring in the Prijedor region at the time and place the crimes allegedly were committed - a factual issue on which the Appeals Chamber does not pronounce - international humanitarian law applies. [ ]"
Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflicts (1995), p. 42:
"When a US pilot was shot down and capture by Syrian forces over Lebanon in the 1980s the United States maintained that this incident amounted to an armed conflict and that the pilot was thus entitled to be treated as a prisoner of war under the Third Convention.17 It is not clear, however, that countries always take such a broad view of what constitutes an armed conflict; many isolated incidents, such as border clashes and naval incidents, are not treated as armed conflicts. It may well be, therefore, that only when fighting reaches a level of intensity which exceeds that of such isolated clashes will it be treated as an armed conflict to which the rules of international humanitarian law apply. In any event, only the use of force by the organs of a state, rather than by private persons, will constitute an armed conflict."
"20. Proceedings of the American Society of International Law 82 (1988), 602-3 and 609-11.
Footnote 34 to the Elements of Crimes:
"The term "international armed conflict" includes military occupation. This footnote also applies to the corresponding element in each crime under article 8(2)(a)."
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 214:
"214. The Chamber notes that the jurisprudence of the Tribunal relating to the legal test applicable is inconsistent. In this context, the Chamber respectfully disagrees with the finding in the Blaskic Trial Judgement argued by the Prosecution. The overall control test, submitted in the Blaskic Trial Judgement, is not applicable to the determination of the existence of an occupation. The Chamber is of the view that there is an essential distinction between the determination of a state of occupation and that of the existence of an international armed conflict. The application of the overall control test is applicable to the latter. A further degree of control is required to establish occupation. Occupation is defined as a transitional period following invasion and preceding the agreement on the cessation of the hostilities. This distinction imposes more onerous duties on an occupying power than on a party to an international armed conflict."
P.3.2. Evidence showing that the enemys forces have surrendered, been defeated or withdrawn;
P.3.4. Evidence showing that a temporary administration has been established over the territory;
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 216-218:
"216. Article 42 of the Hague Regulations provides the following definition of occupation:
The Chamber endorses this definition.583
217. To determine whether the authority of the occupying power has been actually established, the following guidelines provide some assistance:
218. The law of occupation only applies to those areas actually controlled by the occupying power and ceases to apply where the occupying power no longer exercises an actual authority over the occupied area.589 As a result, the Chamber finds that it must determine on a case by case basis whether this degree of control was established at the relevant times and in the relevant places. There is no requirement that an entire territory be occupied, provided that the isolated areas in which the authority of the occupied power is still functioning "are effectively cut off from the rest of the occupied territory".590"
"583 - This reasoning was previously followed in the Kordic Trial Judgement, para 339. The matter has not been determined by the Appeals Chamber at this stage.
584 - Rajic Review Decision, para 41-42, quoting Adam Roberts, What is a Military Occupation?, vol. 53, British Yearbook of International Law, pp 249 and 300 (1984). See also "Manual of Military Law of War on Land", United Kingdom, Part III, 1958, para 503; "The Law of Land Warfare", Field Manual No. 27-10, US Department of the Army, 18 July 1956, chapter 6, para 355; "Interim Law of Armed Conflict Manual", New Zealand Defence Force, 26 November 1992, para 1302.4.
585 - See "Manual of Military Law of War on Land", United Kingdom, Part III, 1958, paras 502, 506 and 509; "The Law of Land Warfare", Field Manual No. 27-10, US Department of the Army, 18 July 1956, chapter 6, para 356 and 360; "Interim Law of Armed Conflict Manual", New Zealand Defence Force, 26 November 1992, at paras 1302.2 and 1302.5. See also, "Humanitarian Law in Armed Conflicts, Manual", edited by the Federal Ministry of Defence of the Federal Republic of Germany, August 1992, para 528.
586 - See "Manual of Military Law of War on Land", United Kingdom, Part III, 1958, paras 502, 506 ; "The Law of Land Warfare", Field Manual No. 27-10, US Department of the Army, 18 July 1956, chapter 6, para 356; "Interim Law of Armed Conflict Manual", New Zealand Defence Force, 26 November 1992, paras 1302.2, 1302.3 and 1302.5.
587 - See "Manual of Military Law of War on Land", United Kingdom, Part III, 1958, para 501. See also, Lauterpacht, in "Oppenheims International Law", 7th ed. Vol. II, 1952, para 167.
588 - See Article 43 of The Hague Regulations, according to which "[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country"; "Humanitarian Law in Armed Conflicts, Manual", edited by the Federal Ministry of Defence of the Federal Republic of Germany, August 1992, para 527; Dieter Fleck, "The Handbook of Humanitarian Law in Armed Conflicts", Oxford University Press, 1999, para 525.2."
589 - Article 42 of The Hague Regulations; See also, Manual of Military Law of War on Land, United Kingdom, Part III, 1958, at p 142. See also, Dieter Fleck, "The Handbook of Humanitarian Law in Armed Conflicts", Oxford University Press, 1999, paras 527-528.
590 - L.C. Green, "The Contemporary Law of Armed Conflicts", Manchester University Press, 2nd ed., 2000, Chapter 15. See also, "Manual of Military Law of War on Land? United Kingdom, Part III, 1958, para 502."
P.4. Evidence of an armed conflict between two or more States.
A. Legal source/authority and evidence:
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 84:
"84.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."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 208:
"208. 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."241"
"241. Commentary, p. 20."
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 79:
"79. In light of the conclusions of the Appeals Chamber in the Tadic case as to how an internal armed conflict becomes internationalised, the Trial Chamber will examine, firstly the question whether Croatia intervened in the armed conflict between the Bosnian Muslims and the Bosnian Croats in Bosnia and Herzegovina through its troops and, secondly whether the HVO acted on behalf of Croatia.67 The Trial Chamber notes that these criteria are alternative."
"67. In Aleksovski, the Appeals Chamber held that its decisions are binding upon Trial Chambers. See Aleksovski Appeal Judgement, para. 113."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 84:
"84. 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."
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 240:
240. There is also sufficient evidence to establish substantial grounds to believe that Uganda directly intervened in this armed conflict through the Ugandan People Armed Forces ("the UPDF"). The evidence presented establishes direct participation of significant numbers of UPDF troops in several military operations on behalf of different armed groups including the UPC takeover in Bunia in early August 2002, the FNI/FRPI takeover in Bogoro in February 2003 and of Bunia in early March 2003. There is also sufficient evidence to establish substantial grounds to believe that Uganda was one of the main supplier of weapons and ammunitions to these armed groups and that the respective recipients' ability to successfully attack other groups was aided by this Ugandan military assistance. As a result, the Chamber finds that there is sufficient evidence to establish substantial grounds to believe that the conflict that took place in Ituri District between, at least, August 2002 and May 2003, was of an international character.
§ Evidence of strategic importance: An area being the only operational route.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 314-315 and 319-320:
"314. In relation to the question of whether Croatian troops directly intervened in the armed conflict in Central Bosnia, the Trial Chamber held that "all that is required is a showing that a state of armed conflict existed in the larger territory of which a given location forms a part."474 It found that it was not barred from using evidence that pointed to the presence of Croatian troops in areas outside of Central Bosnia, "if the location of those areas is of strategic significance to the conflict."475
315. In its factual findings the Trial Chamber assessed the evidence accordingly :
It then found that "the conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina was internationalised by the intervention of Croatia in that conflict through its troops."477"
"474. Trial Judgement, para. 27.
475. Trial Judgement, paras 70-72.
476. Trial Judgement, para. 108.1.
477. Trial Judgement, para. 109."
"319. The Appeals Chamber recalls that the Tadic Appeal Decision on Jurisdiction explained that "the very nature of the [Geneva] Conventions particularly [Geneva] Conventions III and IV dictates their application throughout the territories of the parties to the conflict; any other construction would substantially defeat their purpose."482 It further held that in the case of an armed conflict, until a peaceful settlement is achieved, "international humanitarian law continues to apply in the whole territory of the warring States [ ], whether or not actual combat takes place there."483 It concluded 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."484 The Appeals Chamber also held that "the conflicts in the former Yugoslavia have both internal and international aspects."485
320. In the light of these findings, the Appeals Chamber holds that the Trial Chamber correctly found that:
"482. Tadic Appeal Decision on Jurisdiction, para. 68.
483. Tadic Appeal Decision on Jurisdiction, para. 70 (emphasis added).
484. Tadic Appeal Decision on Jurisdiction, para. 70.
485. Tadic Appeal Decision on Jurisdiction, para. 77.
486. Trial Judgement, para. 70."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 70-72, 108-109:
"70. The Chamber understands the passages relied upon from the Appeals Chambers Judgement in the Tadic case to mean that the determination as to whether the conflict is international or internal has to be made on a case-by-case basis , that is, each case has to be determined on its own merits, and accordingly, it would not be permissible to deduce from a decision that an internal conflict in a particular area in Bosnia was internationalised that another internal conflict in another area was also internationalised. However, it would be wrong to construe the Appeals Chambers decision as meaning that evidence as to whether a conflict in a particular locality has been internationalised must necessarily come from activities confined to the specific geographical area where the crimes were committed, and that evidence of activities outside that area is necessarily precluded in determining that question.
71. What is at issue is whether Croatian troops intervened in the conflict between the Bosnian Croats and Bosnian Muslims, and while that intervention would normally be substantiated by evidence of the presence of Croatian troops in Central Bosnia, it may also be proved by evidence of the presence of Croatian troops in areas outside Central Bosnia, if the location of those areas is of strategic significance to the conflict. Thus, areas bordering Central Bosnia, in which there is evidence of the presence of Croatian troops, cannot be excluded from the inquiry. To confine the inquiry narrowly to Central Bosnia, as though it was an isolated entity, would be artificial. The inquiry is not so much as to the presence of Croatian troops in the conflict area, which is predominantly Central Bosnia, but as to the intervention of Croatia, through its troops, in the conflict itself, which was not confined to Central Bosnia.
72. The Chamber also notes the argument advanced by the Prosecution that "when an international armed conflict exists, the Geneva Conventions, including the grave breach provisions, apply to all of the territories of the parties engaged in the conflict, that is to all of Croatia and Bosnia Herzegovina".60 In this regard, the Prosecution relies upon the Tadic Jurisdiction Decision which states that the "provisions of the Conventions apply to the entire territory of the Parties to the conflict, not just the vicinity of actual hostilities",61 as well as the Celebici Trial Judgement, which held that "should the conflict in BiH be international, the relevant norms of international humanitarian law apply throughout its territory until the general cessation of hostilities".62"
"60. Prosecution Final Brief, Annex 7, para. 11.
61. Tadic Jurisdiction Decision, para. 68.
62. Celebici Trial Judgement, para. 209."
"108. Based upon the foregoing, the Trial Chamber makes the following findings:
[ ]
109. For the above reasons, the Chamber finds that the conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina was internationalised by the intervention of Croatia in that conflict through its troops."
"115. Although Witness A did report having seen troops wearing HV patches in Busovaca in 1992 and in the early part of 1993 (T. 398)."
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 306-307, 313:
"306. The Tadic Appeal Judgement addressed in detail the circumstances under which armed forces may be regarded as acting on behalf of a foreign state, thereby rendering the armed conflict international. The Appeals Chamber in that case determined the elements of a foreign states overall control over such armed forces:
307. The Appeals Chamber confirmed this reasoning in Aleksovski and reiterated that the effective control test, as set out by the ICJ in the Nicaragua Case, is not persuasive.467 The Appeals Chamber does not see any reason to depart from this settled jurisprudence."
"466. Tadic Appeal Judgement, para. 137.
467. Aleksovski Appeal Judgement, paras 131-134. This finding was upheld by the Appeals Chamber in the Celebici Appeal Judgement, para. 26."
"313. For the reasons set out above, the Trial Chamber did not err in law when it applied the overall control test for the determination of the international character of the armed conflict in Central Bosnia."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 79, 130, 145-146:
"79. In light of the conclusions of the Appeals Chamber in the Tadic case as to how an internal armed conflict becomes internationalised, the Trial Chamber will examine, firstly the question whether Croatia intervened in the armed conflict between the Bosnian Muslims and the Bosnian Croats in Bosnia and Herzegovina through its troops and, secondly whether the HVO acted on behalf of Croatia.67 The Trial Chamber notes that these criteria are alternative."
"67. In Aleksovski, the Appeals Chamber held that its decisions are binding upon Trial Chambers. See Aleksovski Appeal Judgement, para. 113."
"130. The Cerkez Defence also contends that the Prosecution must prove "that the Defendant, as a commanding officer, acted on orders of the Army or of superior Croatian officials."147 The short answer to this argument is that one of the features of the "overall control" test, as enumerated by the Appeals Chamber in Tadic, is that the act of a member of a military group may be regarded as the act of a controlling State, regardless of any specific instructions by that State regarding the commission of such act.148"
"147. Cerkez Final Brief, p.68.
148. See previous discussion in this Judgement."
"145. Based upon the foregoing, the Chamber is satisfied that Croatia exercised overall control over the HVO through its provision to the HVO of financial and training assistance, military equipment and operational support, and by its participation in the organisation, coordination and planning of military operations of the HVO . The Chamber therefore finds that, on that basis, the conflict between the HVO and the ABiH was rendered international.
146. The Chamber concludes that the evidence in this case satisfies each of the alternative criteria set forth in the Tadic Appeal Judgement for internationalising an internal conflict, and is fortified in this conclusion by a similar finding made by the Trial Chamber in the Blaskic case, which covered essentially the same time-period and geographical area as this case.171"
"171 - Blaskic Trial Judgement, paras, 94 and 123."
Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 26:
"26. Applying the principle enunciated in the Aleksovski Appeal Judgement, this Appeals Chamber is unable to conclude that the decision in the Tadic was arrived at on the basis of the application of a wrong legal principle, or arrived at per incuriam. After careful consideration of the arguments put forward by the appellants, this Appeals Chamber is unable to find cogent reasons in the interests of justice to depart from the law as identified in the Tadic Appeal Judgement.38 The "overall control" test set forth in the Tadic Appeal Judgement is thus the applicable criteria for determining the existence of an international armed conflict."
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement (AC), 24 March 2000, paras. 130-134:
"130. The Trial Chamber in Tadic applied the "effective control" test enunciated by the ICJ Nicaragua [sic], and interpreted it as requiring evidence of specific instructions.263 The Appeals Chamber in Tadic advanced two grounds on which the "effective control" test was not persuasive and should not be followed.
131. Broadly, the first basis identified by the Appeals Chamber in Tadic for not following the effective control test in the Nicaragua case in the case of "individuals making up an organised and hierarchically structured group, such as a military unit or, in case of war or civil strife, armed bands of irregulars or rebels,"264 is that, "normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group."265
132. Consequently, in the view of the Appeals Chamber in Tadic, once it is established that the group is under the "overall control" of a State, the responsibility of the State is engaged for the groups activities, irrespective of whether specific instructions were given by the State to members of the group.
133. The second ground on which the Tadic Appeals Chamber found the Nicaragua test unpersuasive is that it was at variance with judicial and state practice. The Tadic Judgement cites a number of cases from claims tribunals, national, regional and international courts, in which acts of groups were attributed to particular countries without any inquiry being made as to whether specific instructions had been issued by that country to members of the group.266
134. Applying the principle enunciated in paragraph 107 of this Judgement, the Appeals Chamber will follow its decision in the Tadic Judgement, since, after careful analysis, it is unable to find any cogent reason to depart from it. Certainly the Appeals Chamber is unable to say that it was arrived at on the basis of the application of a wrong legal principle or arrived at per incuriam. The "overall control" test, set out in the Tadic Judgement is the applicable law."
"263. Prosecutor v. Dusko Tadic, Case No.: IT-94-1-T, Opinion and Judgment, 7 May 1997.
264. Tadic Judgement, para. 120.
265. Ibid.
266. Ibid., paras. 124131."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, paras. 84, 137, 145:
"84. 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."
"137. [C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. 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, coordinating 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."
"145. In the light of the above discussion, the following conclusion may be safely reached. In the case at issue, given that the Bosnian Serb armed forces constituted a "military organization", the control of the FRY authorities over these armed forces required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. By contrast, international rules do not require that such control should extend to the issuance of specific orders or instructions relating to single military actions, whether or not such actions were contrary to international humanitarian law."
B. General comment:
"The Chamber observes that the geographical element is less critical for the purposes of establishing "overall control" than it is in relation to the criterion for internationalising an armed conflict through a foreign States intervention through its troops." (Kordić and Čerkez Trial Judgement, para. 129).
§ Evidence of the presence of logistical units of the controlling State in the relevant area;
§ Evidence of an IGO/NGOs assessment that the controlling State is providing logistical support;
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 116:
"116. Several witnesses gave evidence of Croatias logistical support to the HVO. Lieutenant Colonel Remi Landry, testified that he himself identified Croatian logistical units in the area of Prozor,121 and that it was the ECMMs assessment that Croatia was providing substantial logistical support to the HVO.122 Ismet [ahinovic and Witness AS also gave evidence of the provision by Croatia to the HVO of training 123 and uniforms, vehicles and other supplies.124"
"121. Col. Landry, T. 15313.
122. Col. Landry, T. 15314.
123. Ismet Sahinovic, T. 1037.
124. Witness AS, T. 16349."
§ Evidence of a chart detailing shipment of military equipment from the controlling State;
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 118:
"118. Several exhibits referred to Croatias provision of military equipment to the HVO. In particular, one exhibit purports to be a chart detailing shipments of military equipment from Croatia to the HVO and the ABiH.125 There is a recommendation from the Vitez Military District Office for an individual, who had worked for the HVO in Vitez from March 1992 until 16 April 1993, to receive rank in the Croatian army; this individuals duties, while a member of the HVO, included procuring "vast quantities of military material for the defence of Central Bosnia through representatives of the Republic of Croatia authorities ".126 Another exhibit notes that the individual being recommended for rank in the Croatian army "participated in the implementation of logistics communications of the Ministry of Defence of the Republic of Croatia for purposes of HV logistical support to Kiseljak HVO units" from April 1992 until early 1993.127"
"125 - Ex. Z2497.2.
126 - Ex. Z2487.
127 - Ex. Z2490."
§ Evidence of a receipt for military hardware provided by the controlling State;
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 119-120:
"119. Of those exhibits which provide evidence of Croatias logistical support to the HVO, the Chamber finds the following particularly persuasive: a receipt for military hardware provided by the Croatian Army Logistics Corps to the municipal headquarters in Vares, dated 30 July 1992;128 a certificate from a military post in Split, dated 11 September 1992, confirming that the unit has delivered artillery to the HVO in Bugojno;129 an order from Colonel Blaskic to all commanders of municipal headquarters of the HZ H-B, dated 19 September 1992, setting forth instructions for the passage of military equipment from Croatia to Central Bosnia.130
120. A series of orders issued by the Ministry of Defence of the Republic of Croatia , between 21 October and 16 December 1992, call for the provision of military supplies to the HVO for the defence of Bugojno.131"
"128 - Ex. Z2374.1.
129 - Ex. Z2376.1.
130 - Ex. Z2377.
131 - Ex. Z2383.1, Z2388.1, Z2389, Z2391 and Z2395."
§ Evidence of a military order for the training of a military group in the controlling State;
§ Evidence of a military order for certain soldiers of a military group to attend a training course;
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 121:
"121.Several of the exhibits provide evidence of training assistance from Croatia to the HVO. These include132 an order from Colonel Blaskic, as commander of the CBOZ to the HVO Vitez unit, dated 24 July 1992, for the training of HVO reconnaissance units in the Republic of Croatia ;133 an order from the HDZ in Mostar to several HVO brigades, dated 25 June 1993, that certain soldiers be sent to Zagreb to attend a course for company commanders.134"
"132 - See also Ex. Z2386: a notice from the CBOZ to municipal HVO headquarters, dated 11 November 1992, of a training course for staff of the intelligence organs of the battalions and brigades, to be instructed by personnel from the Zagreb Intelligence Administration.
133 - Ex. Z2374.
134 - Ex. Z2429."
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 122:
"122. A number of the exhibits demonstrate cooperation between Croatia and the HVO in relation to the care of the wounded and sick.135"
"135. See e.g., Ex. Z2441.7 (Report of the Section for the Wounded, Split, dated 19 November 1993, stating that certain wounded from Central Bosnia received treatment and supplies in Zagreb); Ex. Z2481.1 (memorandum from HVO command to the commander of the Viteska Brigade, dated 24 May 1994, referring to the coordination between the Vitez Brigade and Split in terms of assisting the wounded)."
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 115:
"115. The Chamber will examine the evidence to see whether the criteria set by the Tadic Appeal Judgment are satisfied. Essentially, there are two parts to the test:
a) The provision of financial and training assistance, military equipment and operational support;
b) Participation in the organisation, coordination or planning of military operations."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 137:
"137. [ ] 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, coordinating 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."
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 124-126:
"124. The Prosecution submitted approximately 143 exhibits under the heading "Croatia Direct and Indirect Control of HVO", the majority of which, in the Chambers opinion , are of little probative value in the determination of the question of Croatias "overall control" of the HVO.138 There are, however, a number of exhibits which indicate Croatias territorial ambitions in Bosnia and Herzegovina and which also point to their leadership role in the conflict between the HVO and the ABiH in Bosnia and Herzegovina.
125. General Bobetko was placed in command of all units of the Croatian army on the southern front of Croatia, which borders Bosnia and Herzegovina, by order of President Tudjman on 10 April 1992.139 While in that post, he appointed officers to the defence command of Tomislavgrad "in order to achieve effective, operational and secure command in the units of the HVO of the Croatian Community of Herceg-Bosna".140 He also established forward command posts, first in Grude in Bosnia and Herzegovina , located on the border with Croatia, with General Petkovic as commander,141 and thereafter in Gornji Vakuf, a neighbouring municipality to the south, in Central Bosnia.142 He appointed @arko Tole as commander in Gornji Vakuf with "all the authorities of co-ordinating and commanding forces in the Central Bosnia region (Busovaca, Vitez, Novi Travnik, Travnik, Bugojno , Gornji Vakuf, Prozor, Tomislavgrad, Posusje)".143
126. The Chamber is satisfied that General Bobetkos activities are an illustration of the supervisory role exercised by Croatia over the HVO during the conflict between the Bosnian Muslims and the Bosnian Croats. Although the evidence relating to General Bobetko covers a period prior to the outbreak of the armed conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina, the Chamber is satisfied that General Bobetkos influence and leadership continued throughout that conflict. It would be artificial to draw a line of demarcation on temporal grounds for the purpose of determining the issues raised by this question. The Chamber observes that the Trial Chamber in the Blaskic case, which covers roughly the same geographical area and time-period as this case, attached significant weight to General Bobetkos role in its consideration of this question.144"
"138. The Prosecution submitted two binders of exhibits relating to the international armed conflict, of which this material forms a part.
139. Ex. Z2358.1.
140. Ex. Z2360.6.
141. Ex. Z2360.3.
142. Ex. Z2360.18.
143. Ex. Z2360.18."
144. Blaskic Trial Judgement, para. 112."
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 127:
"127. Witness CW1, a high-ranking officer in the HVO from April 1992 to April 1994 , testified that, while in his former position, part of his salary was paid by the Croatian government, and the remainder (approximately 4050 per cent) was paid by the authorities of the Bosnian Croats.145"
"145. T. 2668183."
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 124, 133, 142-44:
"124. The Prosecution submitted approximately 143 exhibits under the heading "Croatia Direct and Indirect Control of HVO", the majority of which, in the Chambers opinion , are of little probative value in the determination of the question of Croatias "overall control" of the HVO.138 There are, however, a number of exhibits which indicate Croatias territorial ambitions in Bosnia and Herzegovina and which also point to their leadership role in the conflict between the HVO and the ABiH in Bosnia and Herzegovina."
"138. The Prosecution submitted two binders of exhibits relating to the international armed conflict, of which this material forms a part."
"133. President Tudjman, who had been elected as President of Croatia in 1991 on a nationalist platform, had long harboured hopes to expand the borders of the modern State of Croatia into the Republic of Bosnia and Herzegovina to encompass those areas with a majority Bosnian Croat population. By declaring Croatia as a State for the Croatian people, he encouraged loyalty from Croats living outside the territorial boundaries of the Croatian State, including the 800,000 Croats living in neighbouring Bosnia and Herzegovina; to this end, ethnic Croats residing abroad were given the right to vote in national elections.152"
"152. Ex. Z1668, p. 67-68."
"142. The Trial Chamber finds that President Tudjman harboured territorial ambitions in respect of Bosnia and Herzegovina, and that was part of his dream of a Greater Croatia, including Western Herzegovina and Central Bosnia.
143. Against that background, the prosecution case, that Croatia intervened in the conflict to support the Bosnian Croats and provided logistical support and provided leadership in the planning, coordination and organisation of the HVO, becomes more credible. The significance of the evidence of Croatias territorial ambitions in Bosnia and Herzegovina has been explained by the Appeals Chamber in this way:
144. The "threshold" to which the Appeals Chamber is referring in the above-mentioned quotation, is the level of control that a foreign State must exercise over armed forces engaged in an internal conflict in another State in order to internationalise that conflict."
"170. Tadic Appeal Judgement, para. 140."
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 134-135:
"134. President Tudjmans formal recognition of the sovereign independence of Bosnia and Herzegovina, an act upon which the Defence places much emphasis,153 is offset by the many expressions of his territorial ambitions in Bosnia. Dr. Allcock , an expert witness called by the Prosecution, observes that in the publication Nationalism in Contemporary Europe154 Tudjman "insists that Bosnia and Herzegovina should have been made a part of the Croatian federal unit, since together they comprise an indivisible geographic and economic entity." Consequently, Dr. Allcock argues, Tudjman is convinced of the artificiality of Bosnian statehood.155 Dr. Allcock states that while these views of Tudjmans were published in 1981 "there is no indication that he has modified his ideas subsequently".156
135. Multiple references to the "natural borders" of Croatia can be found in Tudjmans speeches and, indeed, the HDZs Program insists on the "territorial entirety of the Croatian nation in its historical and natural borders".157 The significance of this phrase in Tudjmans parlance was revealed by a witness who testified in the Blaskic case that in Nationalism in Contemporary Europe, Tudjman develops the notion that the boundaries of the Croatian banovina, defined by agreement in 1939, most accurately reflected these "natural borders ". The banovina incorporated the whole of western Herzegovina and Mostar , as well as Bosnian districts where Croats had a clear majority158 in Croatia."
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 134-135, 138:
"134. President Tudjmans formal recognition of the sovereign independence of Bosnia and Herzegovina, an act upon which the Defence places much emphasis,153 is offset by the many expressions of his territorial ambitions in Bosnia. Dr. Allcock , an expert witness called by the Prosecution, observes that in the publication Nationalism in Contemporary Europe154 Tudjman "insists that Bosnia and Herzegovina should have been made a part of the Croatian federal unit, since together they comprise an indivisible geographic and economic entity." Consequently, Dr. Allcock argues, Tudjman is convinced of the artificiality of Bosnian statehood.155 Dr. Allcock states that while these views of Tudjmans were published in 1981 "there is no indication that he has modified his ideas subsequently".156
135. Multiple references to the "natural borders" of Croatia can be found in Tudjmans speeches and, indeed, the HDZs Program insists on the "territorial entirety of the Croatian nation in its historical and natural borders".157 The significance of this phrase in Tudjmans parlance was revealed by a witness who testified in the Blaskic case that in Nationalism in Contemporary Europe , Tudjman develops the notion that the boundaries of the Croatian banovina , defined by agreement in 1939, most accurately reflected these "natural borders ". The banovina incorporated the whole of western Herzegovina and Mostar , as well as Bosnian districts where Croats had a clear majority158 in Croatia."
"153. Kordic Final Brief, Annex E, p. E-7.
154. Franjo Tu?man, Nationalism in Contemporary Europe. Ex. Z2352.1.
155. Ex. Z1668, p.67 (referencing Franjo Tu|man, Nationalism in Contemporary Europe, p. 113).
156. Ex. Z1668, p.67.
157. Ex. Z1668, p. 67 (citing the Program of the HDZ, p.3).
158. According to Tu|man, these included the districts of Bugojno, Fojnica, Travnik, Derventa, Gradacac and Brcko."
"138. Dr. Allcock argues that President Tudjmans interest in western Herzegovina and Central Bosnia most likely extended beyond a sense of common national identity and shared history, to reflect strategic economic interests.160 He observes that Croatias topography and lack of natural resources means that it is dependent on Bosnia and Herzegovina, both for its energy supply and as a territorial link between north and south Croatia. Tudjman himself had clearly reflected upon this, as evidenced by the following statements from his publication, Nationalism in Contemporary Europe:
"160. Ex. Z1668, pp. 50-51.
161. Ex. Z2352.1, p. 113 (emphasis added)."
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 136-137:
"136. The view that President Tudjman harboured territorial ambitions in respect of Bosnia and Herzegovina, despite his official position to the contrary, is strengthened by reports of discussions held between Tudjman and Milosevic, against the backdrop of the break-up of the Yugoslav federation in 1991. The two leaders are reported to have met and considered a partition of Bosnia in which Milosevic would have gained control over eastern Herzegovina, while the western part of the country, home to the majority of the Bosnian Croat population, would have become part of Croatia.
137. President Tudjman himself acknowledged to Mr. Ashdown, a U.K. politician, in 1991 that he and Milosevic shared an understanding as to how the territory of Bosnia and Herzegovina would be divided between them, although he denied the existence of a formal agreement at that time. In the Blaskic case, Mr. Ashdown testified that, at his request, President Tudjman had drawn a map of Bosnia and Herzegovina on a dinner menu showing the proposed line of partition. A copy of this sketch, as annotated by Mr. Ashdown, has been admitted in this case. 159"
"159. Ex. Z2486."
§ Evidence of a States territorial ambitions in another State as demonstrated by:
(ii) widespread use of the controlling States currency in another States;
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 140, 142:
"140. The Chamber also notes in this context, the gradual "Croatianisation" of the HZ H-B, as evidenced by the flying of the Croatian flag over buildings of public authorities,164 widespread use of the Croatian currency,165 and Tudj mans representation of the Bosnian Croats in many international forums. Tudjmans close links to the Bosnian Croat leadership were even recognised by the Security Council, which, in its resolution dated 10 May 1993 called upon the Republic of Croatia "to exert all its influence on the Bosnian Croat leadership and paramilitary units with a view to ceasing immediately their attacks particularly in the area of Mostar, Jablanica and Dreznica".166"
"164. Witness E, T. 24767; Edib Zlotrg, T. 1599.
165. Edib Zlotrg, T. 1643; Witness D, T. 1982; Muhamed Mujezinovic, T. 2172; Ex. Z2366.
166. Ex. Z2419."
"142. The Trial Chamber finds that President Tudjman harboured territorial ambitions in respect of Bosnia and Herzegovina, and that was part of his dream of a Greater Croatia, including Western Herzegovina and Central Bosnia."
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p. 19:
"The words in the context of and was associated with are meant to draw the distinction between war crimes and ordinary criminal behaviour. The PrepCom clearly derived this formulation from the jurisprudence of the ad hoc Tribunals. The words in the context of were meant to indicate the concept, developed by the ICTY, that:
and
that at least some of the provisions of the [Geneva] Conventions apply to the entire territory of the Parties to the conflict, not just the vicinity of actual hostilities [P]articularly those relation to the protection of prisoners of war and civilians are not so limited.5"
"4. ICTY, Appeals Chamber, Decision on the defence motion for the interlocutory appeal on jurisdiction, The Prosecutor v. Dusko Tadic, IT-94-1-AR72, para. 70; 105 ILR 453 at 488.
5. Ibid., para. 68"
Roy S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 120:
"The material element uses the expression "in the context of and associated with". These concepts are borrowed from the case law of the ICTY. I the case law, however, both expressions are normally used alternatively, not cumulatively. There is, however, no consistent pattern in the use of either of these concepts.14
In the course of the negotiations, differences of views existed amongst delegations as to the need to use both concepts. According to a number of delegations at least, the concept of "associated with" was unnecessary, as it was considered to be implied in the concept of "in the context of". Other thought the using only the phrase "in the context of" would be too open-ended. A common understanding was eventually found amongst delegations, whereby both expressions are used cumulatively. The words "in the context of" should be interpreted in very general geographic and temporal terms, along the lines set out by the ICTY in Tadic, where it is stated that "international humanitarian law applies from the initiation of ( ) armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached" and "that at least some of the provisions of the Conventions apply to the entire territory of the Parties to the conflict, not just the vicinity of actual hostilities. ( ) particularly those relating to the protection of prisoners of war and civilians are not so limited."15 The words "and was associated with" are understood to relate to the necessary nexus between the armed conflict and the conduct of the perpetrator. A conduct that is not linked to an armed conflict is not regarded as amounting to a violation of the laws of armed conflict. Instead, such a violation would fall under domestic criminal legislation. One may think here of the murder of a civilian by another civilian, for example in the case of two neighbours having a conflict over the ownership of a piece of land, which just happens to be committed when an armed conflict is going on."
"14. In Tadic, for example, the Trial Chamber stated that "there must be an obvious link between the criminal act and the armed conflict it 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" Tadic, Trial Chamber Judgement, para. 572. In Delalict et al., the same Trial Chamber stated: "crimes were commited in the context of an armed conflict, even if substantial clashes were not occurring in the region at the time and place that the crimes were allegedly committed." Delalic et al., supra note 5, paras. 196-197.
15. Tadic, Interlocutory Appeals Decision on Jurisdiction, supra note 5, paras. 70 and 68, respectively."
P.7. Evidence of the timing of the initiation of hostilities.
P.8. Evidence of the timing of the cessation of hostilities.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, paras. 57, 64:
"57. There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved.46 A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place. As indicated by the Trial Chamber, the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting.47 It would be sufficient, for instance, for the purpose of this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.48"
"46. Ibid.
47. See Trial Judgement, para 568.
48. Tadic Jurisdiction Decision, para 70."
"64. Finally, the Appellants conceded that there was an armed conflict in the area of Foca at the relevant time and that they knew about that conflict and took part therein.54 Referring to that armed conflict, the Appellants later said that it existed only in the territory of the municipality of Foca.55 The Appeals Chamber notes that the municipalities of Gacko and Kalinovik are contiguous and neighbouring municipalities of Foca. Furthermore, the Appeals Chamber considers that the Prosecutor did not have to prove that there was an armed conflict in each and every square inch of the general area. The state of armed conflict is not limited to the areas of actual military combat but exists across the entire territory under the control of the warring parties. The Appeals Chamber finds that ample evidence was adduced before the Trial Chamber to demonstrate that an armed conflict was taking place in the municipalities of Gacko and Kalinovik at the relevant time.56 The Trial Chamber did not err in concluding that an armed conflict existed in all three municipalities, nor did it err in concluding that the acts of the Appellants were closely related to this armed conflict.57"
"54. Appeal Transcript, T 46-47. See also Prosecution Submission Regarding Admissions and Contested Matters, 1 February 2000 and Prosecution Submission Regarding Admissions and Contested Matters Regarding the Accused Zoran Vukovic, 8 March 2000.
55. Defence Final Trial Brief, paras L.c.1-L.c.3.
56. See, e.g., Trial Judgement, paras 22, 23, 31, 33 and 44.
57. Ibid., para 567."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 126:
"126. The Chamber is satisfied that General Bobetkos activities are an illustration of the supervisory role exercised by Croatia over the HVO during the conflict between the Bosnian Muslims and the Bosnian Croats. Although the evidence relating to General Bobetko covers a period prior to the outbreak of the armed conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina, the Chamber is satisfied that General Bobetkos influence and leadership continued throughout that conflict. It would be artificial to draw a line of demarcation on temporal grounds for the purpose of determining the issues raised by this question. The Chamber observes that the Trial Chamber in the Blaskic case, which covers roughly the same geographical area and time-period as this case, attached significant weight to General Bobetkos role in its consideration of this question.144"
"144. Blaskic Trial Judgement, para. 112."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (AC), 2 October 1995, paras. 67, 70:
"67. International humanitarian law governs the conduct of both internal and international armed conflicts. Appellant correctly points out that for there to be a violation of this body of law, there must be an armed conflict. The definition of "armed conflict" varies depending on whether the hostilities are international or internal but, contrary to Appellant's contention, the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities."
"70. On the basis of the foregoing, we find 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. 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."
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, paras. 57, 64:
"57. There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved.46 A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place. As indicated by the Trial Chamber, the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting.47 It would be sufficient, for instance, for the purpose of this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.48"
"46. Ibid.
47. See Trial Judgement, para 568.
48. Tadic Jurisdiction Decision, para 70."
"64. Finally, the Appellants conceded that there was an armed conflict in the area of Foca at the relevant time and that they knew about that conflict and took part therein.54 Referring to that armed conflict, the Appellants later said that it existed only in the territory of the municipality of Foca.55 The Appeals Chamber notes that the municipalities of Gacko and Kalinovik are contiguous and neighbouring municipalities of Foca. Furthermore, the Appeals Chamber considers that the Prosecutor did not have to prove that there was an armed conflict in each and every square inch of the general area. The state of armed conflict is not limited to the areas of actual military combat but exists across the entire territory under the control of the warring parties. The Appeals Chamber finds that ample evidence was adduced before the Trial Chamber to demonstrate that an armed conflict was taking place in the municipalities of Gacko and Kalinovik at the relevant time.56 The Trial Chamber did not err in concluding that an armed conflict existed in all three municipalities, nor did it err in concluding that the acts of the Appellants were closely related to this armed conflict.57"
"54. Appeal Transcript, T 46-47. See also Prosecution Submission Regarding Admissions and Contested Matters, 1 February 2000 and Prosecution Submission Regarding Admissions and Contested Matters Regarding the Accused Zoran Vukovic, 8 March 2000.
55. Defence Final Trial Brief, paras L.c.1-L.c.3.
56. See, e.g., Trial Judgement, paras 22, 23, 31, 33 and 44.
57. Ibid., para 567."
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (AC), 2 October 1995, paras. 67, 70:
"67. International humanitarian law governs the conduct of both internal and international armed conflicts. Appellant correctly points out that for there to be a violation of this body of law, there must be an armed conflict. The definition of "armed conflict" varies depending on whether the hostilities are international or internal but, contrary to Appellant's contention, the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities.
"70. On the basis of the foregoing, we find 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. 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."
A. Legal source/authority and evidence:
Prosecutor v. Ljube Bokoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 293:
"293. 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.1252 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 perpetrators ability to commit that crime.1253 It is not required that the alleged crimes occur at a time and in a place where fighting is actually taking place.1254 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.1255 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. 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 perpetrators official duties.1256"
1252 Tadić Trial Judgement, paras 572-573.
1253 Kunarac Appeals Judgement, para 58; Stakić Appeals Judgement, para 342.
1254 Kunarac Appeals Judgement, para 57. See also Kunarac Appeals Judgement, para 64, where the Appeals Chamber held that "the Prosecutor did not have to prove that there was an armed conflict in each and every square inch of the general area. The state of armed conflict is not limited to the areas of actual military combat but exists across the entire territory under the control of the warring parties." The Appeals Chamber in the Tadić case held that international humanitarian law applies "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". Tadić Jurisdiction Decision, para 70 (emphasis added), reaffirmed in Kordić Appeals Judgement, para 319.
1255 Tadić Jurisdiction Decision, para 70; Kunarac Appeals Judgement, para 57.
1256 Kunarac Appeals Judgement, para 59.
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 215, 217:
"A. Existence of an armed conflict and nexus between the acts of the Accused and the armed conflict
215. All the crimes contained in the Indictment are charged under Article 3 of the Statute of this Tribunal. For the applicability of Article 3 of the Statute two preliminary requirements must be satisfied. First, there must have been an armed conflict at the time the offences were allegedly committed.743 Secondly, there must be a close nexus between the armed conflict and the alleged offence, meaning that the acts of the accused must be "closely related" to the hostilities.744 The Appeals Chamber considered that 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 perpetrators ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed".745
[ ]
217. As will be apparent from what has been said already in this decision, the evidence establishes that there was an armed conflict between the JNA and the Croatian armed forces throughout the period of the Indictment.748 These were each forces of governmental authorities, whether of different States or within the one State need not be determined. The offences alleged in the Indictment all relate to the shelling of the Old Town of Dubrovnik, which was a significant part of this armed conflict. It follows that the acts with which the Accused is charged were committed during an armed conflict and were closely related to that conflict."
"743. As the Appeals Chamber ruled, "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State" (see Tadic Jurisdiction Decision, para 70).
744. See, among other authorities, Tadic Jurisdiction Decision, para 70, Naletilic Trial Judgement para 225, Krnojelac Trial Judgement, para 51.
745. Kunarac Appeals Judgement, para 58.
[ ]
748. See supra, paras 99-119 ; 121-145."
Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, paras. 735-736:
"735. The existence of the requisite nexus at the time of the alleged crime is an issue for determination on the evidence presented. It is the view of both the ICTR and the ICTY Appeals Chambers that the nexus requirement is met if the alleged offence is "closely related to the armed conflict". Indeed the Appeals Chambers have stated:
736. The determination of whether or not there existed a close relationship between a particular offence and an armed conflict will usually require consideration of several factors, including: whether the perpetrator is a commander or combatant; whether the victim is a non-combatant; whether the victim is a member of the opposing party; whether the crime is part of a military campaign; and whether the crime was committed within the context of the perpetrator's official duties. These criteria are not exhaustive of the factors indicating the existence of a close relationship between a particular offence and an armed conflict."
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 569:
"569. As regards Article 3, the Prosecution must also establish a link between the acts of the accused alleged to constitute a violation of the laws or customs of war and the armed conflict in question. As to the precise nature of this nexus, the Appeals Chamber has held that "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."1186 In other words, it is sufficient to establish that the perpetrator acted in furtherance of or under the guise of the armed conflict.1187 The Appeals Chamber has put forward the following factors, inter alia, to be taken into account when determining whether the act in question is sufficiently related to the armed conflict:1188
"1186 Kunarac Appeal Judgement, para. 57.
1187 Kunarac Appeal Judgement, para. 58.
1188 Kunarac Appeal Judgement, para. 59."
Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 517:
"517. A nexus exists between the alleged offence and the non-international armed conflict when the alleged offence is closely related to the hostilities. In determining whether the requisite close relation exists, the Chamber agrees with the following observation of the ICTY Appeals Chamber in Kunarac:
[T]he existence of armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit [the offence], 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 ... 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.711"
"711. Kunarac, Judgement, AC, para. 58."
Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 25:
"25. The requirement that the acts of the accused be closely related to the armed conflict does not require that the offence be committed whilst fighting is actually taking place, or at the scene of combat.15 The laws of war apply and continue to apply to the whole of the territory under the control of one of the parties to the conflict, whether or not actual combat takes place there, until a general conclusion of peace or a peaceful settlement is achieved.16 As stated by the Kunarac Appeals Chamber:17
That requirement would be satisfied if the crime were committed either during or in the aftermath of the fighting, provided that it is committed in furtherance of, or at least under the guise of, the situation created by the fighting.18"
"15. Kunarac Appeals Judgment, par 57; Kunarac Trial Judgment, par 568.
16. Tadic Jurisdiction Decision, par 70; Kunarac Appeals Judgment, par 57.
17. Kunarac Appeals Judgment, par 58.
18. Kunarac Appeals Judgment, par 58; Kunarac Trial Judgment, par 568."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 58:
"58. 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 perpetrators 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. The Trial Chambers finding on that point is unimpeachable."
Prosecutor v. George Rutaganda, Case No. ICTR-97-20-A, Judgement (AC), 1 June 2001, paras. 569-570:
"569. The Appeals Chamber of the ICTR has not previously endorsed a particular definition of the nexus requirement. The Appeals Chamber of the ICTY has done so twice. The first time, in the Tadic Jurisdiction Decision, the Appeals Chamber stated that the offences had to be "closely related" to the armed conflict, but it did not spell out the nature of the required relation. In the Kunarac Appeal Judgement, it endorsed the same standard. It then provided the following details, which appear relevant to the Prosecution appeal in this case:
570. This Chamber agrees with the criteria highlighted and with the explanation of the nexus requirement given by the ICTY Appeals Chamber in the Kunarac Appeal Judgement. It is only necessary to explain two matters. First, the expression "under the guise of the armed conflict" does not mean simply "at the same time as an armed conflict" and/or "in any circumstances created in part by the armed conflict". For example, if a non-combatant takes advantage of the lessened effectiveness of the police in conditions of disorder created by an armed conflict to murder a neighbour he has hated for years, that would not, without more, constitute a war crime under Article 4 of the Statute. By contrast, the accused in Kunarac, for example, were combatants who took advantage of their positions of military authority to rape individuals whose displacement was an express goal of the military campaign in which they took part. Second, as paragraph 59 of the Kunarac Appeal Judgement indicates, the determination of a close relationship between particular offences and an armed conflict will usually require consideration of several factors, not just one. Particular care is needed when the accused is a non-combatant."
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p. 19:
"The words in the context of and was associated with are meant to draw the distinction between war crimes and ordinary criminal behaviour. The PrepCom clearly derived this formulation from the jurisprudence of the ad hoc Tribunals.
[ ]
The words in association with were meant to reflect the jurisprudence of the ad hoc Tribunals, which states that a sufficient nexus must be established between the offences and the armed conflict. Acts unrelated to an armed conflict for example, a murder for purely personal reasons such as jealousy are not considered to be war crimes."
Roy S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 120:
"The material element uses the expression "in the context of and associated with". These concepts are borrowed from the case law of the ICTY. I the case law, however, both expressions are normally used alternatively, not cumulatively. There is, however, no consistent pattern in the use of either of these concepts.14
In the course of the negotiations, differences of views existed amongst delegations as to the need to use both concepts. According to a number of delegations at least, the concept of "associated with" was unnecessary, as it was considered to be implied in the concept of "in the context of". Other thought the using only the phrase "in the context of" would be too open-ended. A common understanding was eventually found amongst delegations, whereby both expressions are used cumulatively. The words "in the context of" should be interpreted in very general geographic and temporal terms, along the lines set out by the ICTY in Tadic, where it is stated that "international humanitarian law applies from the initiation of ( ) armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached" and "that at least some of the provisions of the Conventions apply to the entire territory of the Parties to the conflict, not just the vicinity of actual hostilities. ( ) particularly those relating to the protection of prisoners of war and civilians are not so limited."15 The words "and was associated with" are understood to relate to the necessary nexus between the armed conflict and the conduct of the perpetrator. A conduct that is not linked to an armed conflict is not regarded as amounting to a violation of the laws of armed conflict. Instead, such a violation would fall under domestic criminal legislation. One may think here of the murder of a civilian by another civilian, for example in the case of two neighbours having a conflict over the ownership of a piece of land, which just happens to be committed when an armed conflict is going on."
"14. In Tadic, for example, the Trial Chamber stated that "there must be an obvious link between the criminal act and the armed conflict it 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" Tadic, Trial Chamber Judgement, para. 572. In Delalict et al., the same Trial Chamber stated: "crimes were commited in the context of an armed conflict, even if substantial clashes were not occurring in the region at the time and place that the crimes were allegedly committed." Delalic et al., supra note 5, paras. 196-197.
15. Tadic, Interlocutory Appeals Decision on Jurisdiction, supra note 5, paras. 70 and 68, respectively."
B. Evidentiary comment:
The ICTR Appeals Chamber has made it clear that, when determining whether a sufficient nexus has been established, the court would generally have to consider a set of factors, rather than a single criterion (See Rutaganda Appeal Judgement, paras. 570 and 576-79). See, e.g., Stakić Trial Judgement, paras. 569-570, 575-576.
The nexus can be established through both objective and subjective elements. (See Stakić Trial Judgement, para. 575.)
P.13. Evidence of the status of the perpetrator (as soldier or combatant).
A. Legal source/authority and evidence:
Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 887:
"887. Evidence also shows that Milan Lukic was a member of a unit that formed part of the Serb forces and engaged in combat with Muslim forces, and that both Milan Lukic and Sredoje Lukic were members of the Serb reserve police. Milan Lukic and Sredoje Lukic were regularly seen around Visegrad, armed and wearing camouflage uniforms. In addition, Milan Lukic had an extensive range and type of weaponry available to him."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 180:
"180. The Chamber is satisfied that the acts with which Mladen Naletilic and Vinko Martinovic are charged were committed in the course, and as a consequence, of the armed conflict between the HVO and the ABiH. The victims of this conflict were living within the relevant territory in the relevant period. Further, both accused were members of the armed forces taking part in the hostilities. The Chamber is thus satisfied that the nexus requirement has been met in the present case.
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 59:
"59. 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 perpetrators official duties."
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998 para. 65:
"65. The Trial Chamber accepts the evidence of Witness A about the nature of her interrogation by the accused. She was a civilian in the hands of the Jokers being questioned by the accused, who was a commander of that unit. He was an active combatant and participated in expelling Moslems from their homes. He also participated in arrests such as those of Witnesses D and E. The Trial Chamber holds that these circumstances are sufficient to link the alleged offences committed by the accused to the armed conflict."
P.14. Evidence of the status of the victim or victims (as non-combatant).
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 59:
"59. 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 perpetrators official duties."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 569:
"569. The Trial Chamber also notes that the three accused, in their capacity as soldiers, took an active part in carrying out military tasks during the conflict, fighting on behalf of one of the parties to the armed conflict,1367 namely the Serb side and that they therefore knew that an armed conflict was taking place. The evidence also shows that none of their victims took any part in the hostilities."
"1367. See par 407 where the Trial Chamber referred to the possible requirement under common Article 3 that the perpetrator may have to have some relationship to one of the parties to the conflict."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, para. 65:
"65. The Trial Chamber accepts the evidence of Witness A about the nature of her interrogation by the accused. She was a civilian in the hands of the Jokers being questioned by the accused, who was a commander of that unit. He was an active combatant and participated in expelling Moslems from their homes. He also participated in arrests such as those of Witnesses D and E. The Trial Chamber holds that these circumstances are sufficient to link the alleged offences committed by the accused to the armed conflict."
P.15. Evidence showing that the victim was a member of the forces of the opposing party.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 59:
"59. 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 perpetrators official duties."
P.16. Evidence showing that the crime may be said to serve the ultimate goal of a military campaign.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 59:
"59. 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 perpetrators official duties."
A. Legal source/authority and evidence::
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 59:
"59. 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 perpetrators official duties."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 34-35:
"34. As previously discussed, all of the acts underlying the charges in the Indictment are alleged to have occurred in the territory of the HZ H-B, in which the HDZ BiH was the controlling political authority, with the HVO as its military arm. The Indictment charges Dario Kordic with crimes committed in his capacity as the Vice -President of the HZ H-B, in which capacity he is alleged to have played a central role in developing and executing the policies of the HZ H-B and the HVO. Mario Cerkez is charged in his capacity as commander of the Viteska Brigade of the HVO. The acts for which both accused persons have been indicted are alleged to have been committed either in their respective personal capacities or by other members of the HVO in the course of its armed conflict with the Bosnian Muslim forces, the ABiH.
35. Consequently, the Chamber is in no doubt that a clear nexus exists between the armed conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia and Herzegovina and the acts alleged in the Indictment to have been committed by the two accused persons."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 61, 65:
"61. The Prosecution submitted that the accused participated in the armed conflict as a local commander of the Jokers.54 It is in this capacity that he is alleged to have interrogated Witness A, a civilian, about her fighting-age sons and relations between Moslems and HVO personnel.55
[ ]
65. The Trial Chamber accepts the evidence of Witness A about the nature of her interrogation by the accused. She was a civilian in the hands of the Jokers being questioned by the accused, who was a commander of that unit. He was an active combatant and participated in expelling Moslems from their homes. He also participated in arrests such as those of Witnesses D and E. The Trial Chamber holds that these circumstances are sufficient to link the alleged offences committed by the accused to the armed conflict."
"54. Prosecution's Closing Statement, T. 646.
55. Prosecution's Closing Rebuttal Statement, T. 708."
A. Legal source/authority and evidence:
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 569, 575-576:
"569. As regards Article 3, the Prosecution must also establish a link between the acts of the accused alleged to constitute a violation of the laws or customs of war and the armed conflict in question. As to the precise nature of this nexus, the Appeals Chamber has held that "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."1186 In other words, it is sufficient to establish that the perpetrator acted in furtherance of or under the guise of the armed conflict.1187 The Appeals Chamber has put forward the following factors, inter alia, to be taken into account when determining whether the act in question is sufficiently related to the armed conflict:1188
[ ]
575. The Trial Chamber is further satisfied that there was a nexus between this armed conflict and the acts of the Accused. This can be established through both objective and subjective elements.
576. There is evidence that the Crisis Staff, of which Dr. Milomir Stakic was President, issued the ultimatum to the residents of Hambarine that they should surrender their weapons or suffer the consequences.1194 An SJB report states that it was the Crisis Staff which decided to intervene militarily in the village of Hambarine.1195 Moreover, in an interview, Dr. Milomir Stakic, speaking in his capacity as President of the Crisis Staff, stated in relation to the attack on the town of Kozarac: "Actually we made a decision that the army and the police go up there [ ]".1196 Throughout the armed conflict, there is evidence that Dr. Milomir Stakic maintained close contacts with the military.1197"
"1186. Kunarac Appeal Judgement, para. 57.
1187. Kunarac Appeal Judgement, para. 58.
1188. Kunarac Appeal Judgement, para. 59.
[ ]
1194. Exh. S389-1.
1195. Exh. S152.
1196. Exh. S187.
1197. See supra, Section II. 6."
P.18. Evidence of the perpetrators close association with a paramilitary group.
A. Legal source/authority and evidence:
Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 57:
"57. The parties agreed, and the Trial Chamber is satisfied, that, at all times relevant to the Indictment, there was an armed conflict in the municipality of Visegrad.115 The Trial Chamber is also satisfied that the acts of the Accused were closely related to the armed conflict. Although he did not take part in any fighting, the Accused was closely associated with Serb paramilitaries, his acts were all committed in furtherance of the armed conflict , and he acted under the guise of the armed conflict to commit the crimes which the Trial Chamber accepted that he committed.116"
"115 - Admissions by the Parties and Matters which are not in Dispute, Ex P 36.1, let (3)(a).
116 - See also pars 72 et seq, "The Accuseds relationship with the Paramilitary Group led by Milan Lukic"
P.19. Evidence showing that the commission of the crime was made possible by the armed conflict.
A. Legal source/authority and evidence:
Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 886:
"886. In assessing whether the crimes allegedly committed by Milan Lukic and Sredoje Lukic were connected with the armed conflict, the Trial Chamber has considered evidence demonstrating that as a result of the armed conflict in and around Visegrad, existing systems of governance broke down and the society was divided along ethnic lines. After the JNA departed Visegrad, leaving Serb-only authorities in charge, an environment prevailed in which Muslims were the targets by Serbs of killings, rapes, beatings and other forms of mistreatment, the destruction of property and theft."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 568:
"568. The Trial Chamber is also satisfied that the underlying crimes with which the Indictments were concerned were closely related to the armed conflict. Not only were the many underlying crimes made possible by the armed conflict, but they were very much a part of it. Muslim civilians were killed, raped or otherwise abused as a direct result of the armed conflict and because the armed conflict apparently offered blanket impunity to the perpetrators. It is irrelevant that the actual fighting had shifted from Foca town once it was safely in Serb hands to the surrounding areas by the time the events charged occurred, because the criterion of a nexus with the armed conflict under Article 3 of the Statute does not require that the offences be directly committed whilst fighting is actually taking place, or at the scene of combat. Humanitarian law continues to apply in the whole of the territory under the control of one of the parties, whether or not actual combat continues at the place where the events in question took place. It is therefore sufficient that the crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. The requirement that the act be closely related to the armed conflict is satisfied if, as in the present case, the crimes are committed in the aftermath of the fighting, and until the cessation of combat activities in a certain region, and are committed in furtherance or take advantage of the situation created by the fighting. These requirements are squarely met by the offences under both Indictments, insofar as the Trial Chamber finds the evidence to be sufficient to establish those offences."
P.20. Evidence showing that the armed conflict offered blanket impunity to the perpetrators.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 568:
"568. The Trial Chamber is also satisfied that the underlying crimes with which the Indictments were concerned were closely related to the armed conflict. Not only were the many underlying crimes made possible by the armed conflict, but they were very much a part of it. Muslim civilians were killed, raped or otherwise abused as a direct result of the armed conflict and because the armed conflict apparently offered blanket impunity to the perpetrators. It is irrelevant that the actual fighting had shifted from Foca town once it was safely in Serb hands to the surrounding areas by the time the events charged occurred, because the criterion of a nexus with the armed conflict under Article 3 of the Statute does not require that the offences be directly committed whilst fighting is actually taking place, or at the scene of combat. Humanitarian law continues to apply in the whole of the territory under the control of one of the parties, whether or not actual combat continues at the place where the events in question took place. It is therefore sufficient that the crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. The requirement that the act be closely related to the armed conflict is satisfied if, as in the present case, the crimes are committed in the aftermath of the fighting, and until the cessation of combat activities in a certain region, and are committed in furtherance or take advantage of the situation created by the fighting. These requirements are squarely met by the offences under both Indictments, insofar as the Trial Chamber finds the evidence to be sufficient to establish those offences."
P.21. Evidence of the circumstances in which the crime was committed.
P.21.3. Evidence of the perpetrators participation in expelling civilians from their homes.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 180:
"180. The Chamber is satisfied that the acts with which Mladen Naletilic and Vinko Martinovic are charged were committed in the course, and as a consequence, of the armed conflict between the HVO and the ABiH. The victims of this conflict were living within the relevant territory in the relevant period. Further, both accused were members of the armed forces taking part in the hostilities. The Chamber is thus satisfied that the nexus requirement has been met in the present case."
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 63, 65:
"63. Witness A testified that during her interrogation, she was accused of co-operating with HVO soldiers, in particular Witness D, with whom she was confronted by the accused. He asked her if she knew a man called Petrovic or another man from Busovaca61 and accused her of having a code-name `Brasno'.62 The accused also demanded to know whether her children were in the army and he threatened personally to kill them,63 Witness D testified that he was beaten and interrogated by members of the Jokers, including the accused, about his arrest by the ABiH and whether he had told them anything about the Jokers.64
[ ]
65. The Trial Chamber accepts the evidence of Witness A about the nature of her interrogation by the accused. She was a civilian in the hands of the Jokers being questioned by the accused, who was a commander of that unit. He was an active combatant and participated in expelling Moslems from their homes. He also participated in arrests such as those of Witnesses D and E. The Trial Chamber holds that these circumstances are sufficient to link the alleged offences committed by the accused to the armed conflict."
"61. T. 403.
62. T. 406.
63. T. 406-409.
64. T. 326-328."
