CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(c) War crimes » Art. 8(2)(c) War crimes - Common elements » 3. The conduct took place in the context of and was associated with an armed conflict not of an international character.

3.3. "Was associated with": Nexus between the crime and the armed conflict [an armed conflict playing a substantial part in the perpetrators ability to commit a crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed[5] (the fact that the perpetrator acted in furtherance of or under the guise of the armed conflict).[6]]

P.21. Evidence of the status of the perpetrator (as soldier or combatant).

P.22. Evidence of the status of the victim or victims (as non-combatant).

P.23. Evidence showing that the victim was a member of the forces of the opposing party.

P.24. Evidence showing that the crime may be said to serve the ultimate goal of a military campaign.

P.25. Evidence showing that the crime was committed as part of, or in the context of, the perpetrators official duties.

P.25.1. Evidence of the perpetrators official position in an organisation and the activities done by the organisation.

P.25.2. Evidence showing that the organisation in which the perpetrator served as president issued the ultimatum to the residents of a town that they should surrender their weapons or suffer the consequences.

P.26. Evidence of the perpetrators close association with a paramilitary group.

P.27. Evidence showing that the commission of the crime was made possible by the armed conflict.

P.28. Evidence showing that the armed conflict offered blanket impunity to the perpetrators.

P.29. Evidence of the circumstances in which the crime was committed.

P.29.1. In the case of torture inflicted during the interrogation, evidence of the nature of interrogation.

P.29.2. Evidence of the contents of the questions asked during the interrogation: questions about the victims link to the enemy and about the activities of the enemy.

P.29.3. Evidence of the perpetrators participation in expelling civilians from their homes.

P.29.4. Evidence showing that the victims were living within the relevant territory in the relevant period.

Element:

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

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

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 407:

"407. The test for determining the existence of an armed conflict was set out in the Tadić Jurisdiction Decision and has been applied consistently by the Tribunal since:

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.1589

Two criteria are to be assessed under this test: (i) the intensity of the conflict and (ii) the organisation of the parties.1590 Both are factual matters which ought to be determined in light of the particular evidence available and on a case-by-case basis.1591 Relevant for establishing the intensity of a conflict are, inter alia, the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and if so whether any resolutions on the matter have been passed.1592 While some degree of organisation by the parties will suffice to establish the existence of an armed conflict, this degree need not be the same as that required for establishing the responsibility of superiors for the acts of their subordinates within the organisation, as no determination of individual criminal responsibility is intended under this provision of the Statute.1593"

1589 Tadić Jurisdiction Decision, para 70. See also Tadić Trial Judgement, paras 561-571; Aleksovski Trial Judgement, paras 43-44; ^elebići Trial Judgement, paras 182-192; Furundžija Trial Judgement, para 59; Blaškić Trial

Judgement, paras 63-64; Kordić Judgement, para 24; Krstić Judgement, para 481; Staki} Trial Judgement, para

1590 Tadić Trial Judgement, para 562.

1591 Rutaganda Trial Judgement, para 93; Limaj Trial Judgement, para 90.

1592 Limaj Trial Judgement, para 90. See also Tadić Trial Judgement, paras 565-567; ćelebii Trial Judgement, paras 188-190; Milosević Rule 98bis Decision, paras 28-31.

1593 Limaj Trial Judgement, para 89.

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, paras. 199, 201:

"199. The Prosecution alleges, and the Accused does not contest, that Croatia and BiH were the theatre of one or more armed conflicts during the period in question. It adds that the crimes with which the Accused was charged were closely connected with the armed conflict. Thus, the four requirements set out in the Tadić Appeal Decision are met for all the crimes covered by Article 3 of the Statute.

201. It is therefore established, in the view of the Chamber that: (i) an armed conflict existed in Croatia¹⁵⁹ and in BiH¹⁶⁰ in the period covered by the Indictment; (ii) the crimes charged in the Indictment as violations of the laws or customs of war were committed by members of the Serbian forces in furtherance of the armed conflict or as a result thereof."

"159. Decision of 8 February 2010, Annex A, facts nos 29, 44-61; Reunaud Theunens, T(E) 3966-3967, 3974-3975; VS- 004, T(E) 3402-3403, 3405-3408; VS-1064, T(E) 8694; Emil Čakalić, T(E) 4910; P31, T. 43562; P244; P245; P278, para. 7; P632, pp. 31-37; P857, para. 11; P859, pp. 29806-29808; P864. The Serbian forces present in Vukovar included the JNA under whose command the TO and the volunteers were placed, see P1137, pp. 13064-13065.

160. Decision of 10 December 2007, Annex, facts nos 167, 171-172; VS-1015, T(E) 5396-5398; Asim Alić, T(E) 7022-7023; P836, para. 12; VS-1065, T(E) 6298-6300; VS-2000, T(E) 14014-14015, 14114; P31, T. 43325-43326, 43690-43691, 43695; P953, pp. 1-2; P956; P992, pp. 46-49; P1044, p. 3."

3.1.1.Evidence of an armed violence between governmental authorities and organized armed groups of between such groups within a State[7]

A. Legal source/authority and evidence:

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, para. 17:

"17. For the purposes of this Motion, the relevant portion of the Tadic test, which has been consistently applied within the Tribunal,³⁸ is "protracted armed violence between governmental authorities and organized armed groups".

38. Prosecutor v. Tadic, Case No. IT-94-1-T, "Opinion and Judgement", 7 May 1997 ("Tadic Trial Judgement"), at paras. 561, 628; Prosecutor v. Delalic, et al., Case No. IT-96-21-T, "Judgement", 16 November 1998 ("Delalic Trial Judgement"), para. 183; Prosecutor v. Kunarac, et al., Case No. IT-96-23-T and IT-96-23/1-T, "Judgement", 22 February 2001, at para. 412; Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, "Judgement", 26 February 2001, at para. 24; Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-T, "Judgement", 31 March 2003, at para. 177."

Prosecutor v. Duško 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."

3.1.2. Evidence of intensity of the conflict

A. Legal source/authority and evidence:

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 90

90. For these reasons the Chamber will apply the test enumerated in the Tadic Jurisdiction Decision to determine whether the existence of an armed conflict has been established. Consistently with decisions of other Chambers of this Tribunal and of the ICTR, the determination of the intensity of a conflict and the organisation of the parties are factual matters which need to be decided in light of the particular evidence and on a case-by-case basis.309 By way of example, in assessing the intensity of a conflict, other Chambers have considered factors such as the seriousness of attacks and whether there has been an increase in armed clashes,310 the spread of clashes over territory and over a period of time,311 any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict,312 as well as whether the conflict has attracted the attention of the United Nations Security Council, and, whether any resolutions on the matter have been passed.313:

309 "The definition of an armed conflict per se is termed in the abstract, and whether or not a situation can be described as an "armed conflict", meeting the criteria of Common Article 3, is to be decided upon on a case-by-case basis." Prosecutor v Rutaganda, Case No ICTR-96-3, Judgement, 6 December 1999, para 93.

310 Tadic Trial Judgement, para 565; Celebici Trial Judgement, para 189; Milosevic Rule 98bis Decision, para 28.

311 Tadic Trial Judgement, para 566; Milosevic Rule 98bis Decision, para 29.

312 Milosevic Rule 98bis Decision, paras 30-31. See also Celebici Trial Judgement, para 188.

313 Tadic Trial Judgement, para 567; Celebici Trial Judgement, para 190.

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 177:

"177. Various indicative factors have been taken into account by Trial Chambers to assess the "intensity" of the conflict. These include the seriousness of attacks and whether there has been an increase in armed clashes,714 the spread of clashes over territory and over a period of time,715 any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict,716 as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed.717 Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones;718 the type of weapons used,719 in particular the use of heavy weapons,720 and other military equipment, such as tanks and other heavy vehicles;721 the blocking or besieging of towns and the heavy shelling of these towns;722 the extent of destruction723 and the number of casualties caused by shelling or fighting;724 the quantity of troops and units deployed;725 existence and change of front lines between the parties;726 the occupation of territory,727 and towns and villages;728 the deployment of government forces to the crisis area;729 the closure of roads;730 cease fire orders and agreements,731 and the attempt of representatives from international organisations to broker and enforce cease fire agreements.732

714 Tadić Trial Judgement, para 565; Celebići Trial Judgement, para 189; Milošević Rule 98bis Decision, para 28; Kordić Appeals Judgement, paras 340; Haradinaj Trial Judgement, paras 91 and 99.

715 Tadić Trial Judgement, para 566; Celebići Trial Judgement, para 186; Milošević Rule 98bis Decision, para 29; Kordić Appeals Judgement, paras 340-341; Halilović Trial Judgement, paras 163-166, 169; Limaj Trial Judgement, paras 168, 169. See also paras 136-163; Had`ihasanović Trial Judgement, paras 20, 22; Martić Trial Judgement, para 344.

716 Milošević Rule 98bis Decision, paras 30-31. See also Celebi}i Trial Judgement, para 188.

717 Tadić Trial Judgement, para 567; Celebići Trial Judgement, para 190; Martić Trial Judgement, para 345; Haradinaj Trial Judgement, para 49.

718 Because they have been evacuated (Kordić Appeals Judgement, para 340), expelled (Tadi} Trial Judgement, para 565), threatened (Limaj Trial Judgement, para 139), or displaced (Limaj Trial Judgement, para 167, see also para 142); Haradinaj Trial Judgement, paras 49 and 97.

719 Miloševć Rule 98bis Decision, para 31; Limaj Trial Judgement, para 166; Haradinaj Trial Judgement, para 49.

720 Tadić Trial Judgement, para 565 ("artillery bombardment"), Limaj Trial Judgement, para 166; see also paras 136, 138, 156, 158, 163.

721 Tadić Trial Judgement, para 143 ("heavy shelling, followed by the advance of tanks and infantry"); Halilović Trial Judgement, para 166 ("tank, artillery and infantry attack"); Limaj Trial Judgement, paras 136, 166.

722 Tadi} Trial Judgement, para 143 (blockade of Kozarac); Halilović Trial Judgement, paras 165-167 (blockade of Mostar), 168 (siege of Sarajevo); see also Limaj Trial Judgement, para 153; Haradinaj Trial Judgement, para 96.

723 Tadić Trial Judgement, para 565; Kordić Appeals Judgement, paras 337-338; Limaj Trial Judgement, para 142; Haradinaj Trial Judgement, para 49.

724 Tadić Trial Judgement, para 565; Kordic Appeals Judgement, paras 339; Halilović Trial Judgement, paras 164; Limaj Trial Judgement, para 142; Haradinaj Trial Judgement, para 49.

725 Halilović Trial Judgement, para 168; Haradinaj Trial Judgement, para 49.

726 Halilović Trial Judgement, paras 161, 169, 172.

727 Halilović Trial Judgement, para 163; Limaj Trial Judgement, paras 146, 158.

728 Halilović Trial Judgement, paras 162, 164; Limaj Trial Judgement, paras 143, 163.

729 Limaj Trial Judgement, paras 142, 150, 164, 169.

730 Limaj Trial Judgement, para 144.

731 Hadžihasanović Trial Judgement, para 23; Martić Trial Judgement, para 345.

732 Hadžihasanović Trial Judgement, para 23.

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, paras. 16-17:

"16. The test for determining the existence of an armed conflict was set out in the Tadic Jurisdiction Appeals Decision ("Tadic test") as follows:

17. For the purposes of this Motion, the relevant portion of the Tadic test, which has been consistently applied within the Tribunal,³⁸ is "protracted armed violence between governmental authorities and organized armed groups". This calls for an examination of (1) the organisation of the parties to the conflict and (2) the intensity of the conflict.³⁹"

"37. Tadic Jurisdiction Appeal Decision, at para. 70.

39. E.g., Tadic Trial Judgement, at para. 562."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 93:

"93. It can thence be seen that the definition of an armed conflict per se is termed in the abstract, and whether or not a situation can be described as an "armed conflict", meeting the criteria of Common Article 3, is to be decided upon on a case-by-case basis. Hence, in dealing with this issue, the Akayesu Judgement suggested an "evaluation test", whereby it is necessary to evaluate the intensity and the organization of the parties to the conflict to make a finding on the existence of an armed conflict. This approach also finds favour with the Trial Chamber in this instance.

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 184:

"184. Clearly, therefore, this test applies both to conflicts which are regarded as international in nature and to those which are regarded as internal to a State. In the former situation, the existence of armed force between States is sufficient of itself to trigger the application of international humanitarian law. In the latter situation, in order to distinguish from cases of civil unrest or terrorist activities, the emphasis is on the protracted extent of the armed violence and the extent of organisation of the parties involved. At this juncture, however, the Trial Chamber does not seek to discuss whether there was an international or an internal armed conflict for the purposes of the determination of the present case, as this will be dealt with in sub-section D below."

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 562:

"562. The test applied by the Appeals Chamber to the existence of an armed conflict for the purposes of the rules contained in Common Article 3 focuses on two aspects of a conflict; the intensity of the conflict and the organization of the parties to the conflict. In an armed conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law⁴⁶. Factors relevant to this determination are addressed in the Commentary to Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Convention I, ("Commentary, Geneva Convention I")⁴⁷."

"46. Jean Pictet (gen. ed.) Commentary, Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Convention II (ICRC, Geneva, 1960), 33 ("Commentary, Geneva Convention II"); Jean Pictet (gen. ed.) Commentary, Geneva Convention Relative to the Treatment of Prisoners of War, Convention III, (ICRC, Geneva, 1960), 37 ("Commentary, Geneva Convention

III").

47. (ICRC, Geneva, 1952) 49-50.

B. Evidentiary comment:

Assessing whether the hostilities are of sufficient intensity does not depend on the subjective judgement and assessment of the parties to the conflict, but on the objective and actual level of violence involved in the confrontation between warring parties. See Akayesu Trial Judgement, para. 603.

P.7. Evidence of the protracted nature of the conflict.

A. Legal source/authority and evidence:

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, para. 820:

"820. The Chamber is, therefore, in no doubt that the armed violence occurring from mid-1998 in Kosovo and continuing through to the commencement of the NATO air campaign on 24 March 1999, involving VJ and MUP forces fighting the KLA, was of sufficient duration and intensity to amount to the "protracted armed violence" envisaged by the first prong of the test for an internal armed conflict. The fact that KLA forces carried out repeated attacks against MUP and VJ forces, that the FRY authorities adopted a plan involving the engagement of the VJ in combating the KLA, and that the VJ and MUP, including special police units, were engaged extensively in operations to combat the KLA,2145 clearly demonstrates that the level of violence reached that of an internal armed conflict, rather than "internal disturbances, characterised by isolated or sporadic acts of violence", by the middle of 1998, and the evidence thereafter is of ongoing hostilities right up to and beyond 24 March 1999."

2145 The ICRC Commentary to common article 3 of the Geneva Conventions, which relates to non-international armed conflicts, lists as a possible indicator of such a conflict "[t]hat the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of part of the national territory." Jean Pictet – Commentary: Geneva Convention III Relative to the Treatment of Prisoners of War (International Committee of the Red Cross, 1960). The Defence military expert, Radovan Radinović asserted in his expert report that up until the middle of 1998, VJ support to MUP forces involved in fighting terrorism in Kosovo was sporadic and limited, but that from mid-1998 there was a more extensive engagement of the VJ in these operations. 3D1116 (Radovan Radinović’s Expert Report), para. 8.

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 880:

"880. The Trial Chamber must determine whether (i) there was protracted armed violence, and (ii) the parties to the conflict were organised. The evidence shows that an armed conflict started in BiH in early April 1992 and continued until late 1995, when the Dayton Accords were signed. The armed conflict encompassed the municipality of Visegrad. While the Uzice Corps established Serb control over the town of Visegrad, the evidence shows that during the indictment period there was an armed conflict in and around the Vi{egrad municipality between the opposing Serb and Muslim forces. From the beginning of the indictment period until at least October 1992, both sides undertook offensive and defensive actions, a feature which, the Trial Chamber considers, demonstrates that they were engaged in military planning and tactics in order to achieve military objectives, including to establish control over portions of the territory in and around the Visegrad municipality. The Trial Chamber notes in this regard the establishment of front lines by both forces, to which armed men were deployed. A particular example of this is the area of Crni Vrh, in respect of which the armed forces engaged in regular attacks."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 341:

"341. The Appeals Chamber finds that the evidence assessed by the Trial Chamber shows the existence of an armed conflict prior to April 1993. The requirement of protracted fighting is significant in excluding mere cases of civil unrest or single acts of terrorism. Even before April 1993, the conflict in Central Bosnia could not be subsumed under these categories. At any rate, in the time following October 1992 there was serious fighting for an extended period of time. This finding of the Trial Chamber is upheld."

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, paras. 27-28,, 32:

"27. There is in fact a large body of evidence in support of the intensity of the conflict between the KLA and Serb forces prior to 24 March 1999. Much of the evidence cited by the Amici Curiae, in the Trial Chamber’s view, actually substantiates the case for the Prosecution that there was an armed conflict during the relevant times. The Trial Chamber has considered the question of intensity of the conflict and found supporting evidence, which will now be set out.

a. Length or protracted nature of the conflict and seriousness and increase in armed clashes

28. K6 gave evidence that during 1996 and 1997, the KLA conducted many operations against the police, including killing people who had been employees of the police and those who had cooperated with the police, amounting to about 20 persons in 1997.⁶⁴ Mr. Aliu gave evidence about the killings and also commented that the "entire Albanian population mobilized" from the moment that the Jashari family was massacred.⁶⁵ Mr. Abrahams gave evidence that by February/March 1998, 50 ethnic Albanians, all of whom were members of the Jashari family, lost their lives in the village of Prekaz.⁶⁶ Mr. Abrahams testified that these killings "radicalized the Albanian population. Up until that point, the KLA was still a disorganized and somewhat mysterious organization".⁶⁷ K6 testified that, after Drenica was attacked, concrete plans for the elimination of the KLA were drawn up and sent to Jovica Stanisic in Serbia.⁶⁸ Mr. Buja testified that, on 23 August 1998, there was a large scale offensive by Serbian forces against the villages of Racak, Petrova, and Mullopolc.⁶⁹ Mr. Elshani gave evidence of clashes in several areas around the town of Nagafc in Rahovec from 1998 to March 1999.⁷⁰ General Maisonneuve and Colonel Ciaglinski testified about armed clashes that took place in early January 1999, before the Racak incident.⁷¹ General Maisonneuve detailed an incident near Racak in which three policemen were killed on 8 January 1999 by the KLA during an ambush on the Stimlje pass.⁷² Colonel Ciaglinski gave evidence of an incident concerning villages near Jablanica and Decani around 10 January 1999 where Serb forces launched a massive attack, using heavy artillery, against the villages from the Decani area towards Jablanica – they continued to shell the villages for two days.⁷³

[…]

32. On the basis of this evidence, the Trial Chamber is satisfied that the conflict in Kosovo meets the second element of the Tadic test."

"64. T. 6632-6633; referenced in Amici Curiae Motion, Annex 1, at pp. 6-7.

65. T. 3924; referenced in Amici Curiae Motion, Annex 1, at p. 14.

66. T. 6062.

67. T. 6062; referenced in Amici Curiae Motion, Annex 1, at p. 11.

68. T. 6594.

69. T. 6354; referenced in Amici Curiae Motion, Annex 1, at p. 21.

70. T. 790; referenced in Amici Curiae Motion, Annex 1, at p. 16.

71. T. 5777 and T. 3159 respectively; referenced in Amici Curiae Motion, Annex 1, at pp. 30-31.

72. T. 5777.

73. T. 3159."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 184:

P.8. Evidence of the continued involvement of the United Nations Security Council in the situation.

A. Legal source/authority and evidence:

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 421:

"421. The conflict also attracted the attention of the United Nations Security Council. On 25 September 1991, the Security Council passed Resolution 713 strongly urging all parties to the conflict in Yugoslavia to abide strictly to prior cease-fire agreements. It also set forth the legal framework for a fact-finding mission that would report to the Security Council.1627 As already noted, this mission was conducted by Cyrus Vance with the assistance of Herbert Stuart Okun from October 19911628 until after the events charged in the Indictment.1629 Vukovar would be almost invariably mentioned in their preliminary meetings,1630 and, after commencing their mission, they heard so many disturbing reports about Vukovar that at the first opportunity they visited the town. This was on 19 November 1991, the day after the Croat forces surrendered.1631"

1627 Herbert Stuart Okun, T 1823-1824.

1628 Herbert Stuart Okun, T 1828-1829.

1629 Herbert Stuart Okun, T 1757-1758.

1630 Herbert Stuart Okun, T 1760.

1631 Herbert Stuart Okun, T 1765. See also supra, paras 176-179.

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, paras. 567-568:

"567. The intensity of the conflict has ensured the continuous involvement of the Security Council since the outbreak of fighting in the former Yugoslavia. As early as 25 September 1991, considering that the situation in the former Yugoslavia constituted a threat to international peace and security, the Security Council invoked Chapter VII of the Charter of the United Nations to declare a total arms embargo on the region⁵⁰. After that time, the Security Council took numerous steps to maintain international peace and security in the region, including the imposition of economic sanctions on the Federal Republic of Yugoslavia (Serbia and Montenegro) for its involvement in the conflict in Bosnia and Herzegovina⁵¹ and the establishment of this International Tribunal⁵².

568. Having regard then to the nature and scope of the conflict in the Republic of Bosnia and Herzegovina and the parties involved in that conflict, and irrespective of the relationship between the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Bosnian Serb forces, the Trial Chamber finds that, at all relevant times, an armed conflict was taking place between the parties to the conflict in the Republic of Bosnia and Herzegovina of sufficient scope and intensity for the purposes of the application of the laws or customs of war embodied in Article 3 common to the four Geneva Conventions of 12 August 1949, applicable as it is to armed conflicts in general, including armed conflicts not of an international character."

"50. See Security Council resolution 713, U.N. Doc. S/RES/713 (1991).

51. Security Council resolution 757, U.N. Doc S/RES/757 (1993).

52. See Security Council resolution 827, U.N. Doc s/res/827 (1993)."

P.9. Evidence of cease fire orders.

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 23:

"23. Furthermore, cease-fire orders issued by the general staffs of both armies and the political leaders representing the two parties to the conflict imply that there was an armed conflict between the two armies on the date of the agreements. The fact that representatives from international organisations were there attempting to broker and enforce cease-fire agreements is additional evidence making it possible to infer that there was in fact an armed conflict in the municipalities and during the period referred to in the Indictment."

P.10. Evidence of the involvement of large amounts of weaponry and troops.

A. Legal source/authority and evidence:

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 419:

"419. Turning next to the intensity of the armed clashes the Chamber refers to its findings made earlier in this Judgement, that combat operations in the Vukovar area, usually involving artillery, mortars, armoured vehicles, including tanks, weapons such as multiple rocket launchers and anti aircraft batteries, as well as infantry weapons, and at times air and naval forces, took place on a daily basis from 2 October till 18 November 1991.1624 The combat operations had built up in intensity during August and September 1991. Despite the general surrender of Croat forces on 18 November 1991, isolated combat activities continued in and around the city of Vukovar at least on 19 and 20 November 1991, although they were certainly not as intense as in the days preceding the fall of Vukovar.1625"

1624 See supra, para 52.

1625 Exhibit 735; Exhibit 421; Exhibit 419.

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, paras. 27, 30-32"

[…]

c. Increase in number of governmental forces sent to Kosovo

30. Evidence was led that on 24 September 1998, a major Serbian offensive began to destroy the KLA in the triangle of municipalities: [timlje, Suva Reka, and Uro sevac; and during several days, Serbian soldiers, policemen, and paramilitaries poured into many villages in which the KLA was not active; the offensive lasted until 4 October 1998, involving massive Serbian forces and special military and paramilitary groups.⁷⁸

d. Weapons used by both parties

31. Mr. Buja gave evidence regarding the type of weaponry with which the KLA were equipped; this included rifles, guns, and mortars.⁷⁹ Mr. Abrahams testified that, by March 1997, 700,000 arms were distributed or looted in Albania, giving the KLA a new source of weapons, contributing to its "rapid explosion".⁸⁰

32. On the basis of this evidence, the Trial Chamber is satisfied that the conflict in Kosovo meets the second element of the Tadic test."

"78. Ex. 156, tab 3; referenced in Amici Curiae Motion, Annex 2, at p. 75.

79. T. 6365.

80. T. 6059-6060; referenced in Amici Curiae Motion, Annex 1, at p. 8."

P.11. Evidence of heavy weapons being used

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 138

"138. […] Reports indicate that heavy weapons, such as the "Praga" air defence system, were moved into the area, and that two platoons of police including a jeep equipped with a heavy machine gun were seen moving west from Skenderaj/Srbica towards Laushe/Lausa. The Serbian forces also deployed in this area a BOV-3, a triple-barrelled weapon. While this weapon is designed primarily for anti-aircraft use, and not for anti personnel use, its deployment indicates that it was for anti-personnel use as the KLA had no air power. Further, there were reports that around 25 March 1998, police armoured personnel carriers ("APC"s) were used in Gjakove/Djakovica and that at least four policemen and at least five Kosovo Albanians were killed in the exchange of fire there."

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 881:

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

P.12. Evidence of the closing of roads and establishment of checkpoints

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 144-145:

"144. In about mid May 1998 the KLA closed the two main roads leading to Peje/Pec: Mitrovice/Kosovska Mitrovica-Peje/Pec road and the Peje/Pec-Prishtina/Pristina road. There is evidence that the third main road to Peje/Pec, (Prishtina/Pristina, Shtime/Stimlje, Suhareke/Suva Reka, Prizren/Prizren) was ambushed on a regular basis by the KLA481 and that the KLA could also have closed it, if that had been their intention.

145. Checkpoints were set up by both the KLA and the Serbian forces on these roads. At the end of May 1998 there was a very heavy MUP presence on the Peje/Pec-Prishtina/Pristina road. New MUP checkpoints were set up around Ferisaj/Urosevac and Gjilan/Gnjilane. The KLA also set up checkpoints on the road, sometimes in places just two km away from the MUP checkpoints. To go through a KLA checkpoint, journalists and observers were required to have a KLA travel permission. These were issued by Adem Demaqi and were valid for one day. This, of course, affords further evidence of effective KLA organisation."

P.13. Evidence of the scope of the geographical area within which hostilities are taking place.

A. Legal source/authority and evidence:

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 146:

"146. Indicative of the growing intensity of the conflict is a report dated 13 May 1998 from Major-General Nebojsa Pavkovic, the commander of the Pristina Corps, addressed to the command of the 3rd Army of the VJ. The report stated that the security situation in Kosovo was getting "more complex every day" due to increasingly frequent attacks on MUP members, citizens of Serbian nationality, and Kosovo Albanians "loyal to the system". It was reported that the MUP forces had not managed to ensure the blockade and destruction of the KLA forces in Drenica, Gjakove/Djakovica and Decane/Decani, which had led to KLA "spilling over" into Rahovec/Orahovac, Suhareke/Suva Reka and Istog/Istok municipalities and into the areas of Kacanik/Kacanik, Lipjan/Lipljan and Ferisaj/Urosevac municipalities. It was the estimate of the VJ that even by then, the KLA held about 30% of Kosovo.487 Philip Coo testified that this estimate was based on VJ’s intelligence reports and that it was confirmed by ECMM reports. In view of the situation, the report of Major-General Pavkovi} proposed a broader engagement of the Pristina Corps units."

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, paras. 27, 29, 32"

[…]

b. Spread of clashes over the territory

29. K6 testified that the KLA conducted operations in Junik, Decani, Malisevo, Orahovac, Istok, Obilic, and [alska Bajgora throughout 1998.⁷⁴ Mr. Abrahams also gave evidence that in May 1998, the KLA was definitely active in the Decani region and was bringing arms and supplies from Northern Albania and that, in his estimation, the Serbian and Yugoslav governments attempted to create a "cordon sanitaire, in other words clearing the border".⁷⁵Mr. Kadriu testified that in June/July 1998 there was a "very severe" conflict in the area of Drenica between the KLA and Serb forces and that the conflict was expanding.⁷⁶ General Drewienkiewicz, a member of the OSCE Department of Security in Sarajevo, gave evidence that there had been much violence in the summer of 1998 in Decani and Malisevo in the west of Kosovo and then in Podujevo, to the north of Pristina, and that positions previously occupied by the VJ in the summer of 1998 and then vacated as a result of the October 1998 agreement were gradually occupied by the KLA.⁷⁷

[…]

32. On the basis of this evidence, the Trial Chamber is satisfied that the conflict in Kosovo meets the second element of the Tadic test."

"74 - T. 6634; referenced in Amici Curiae Motion, Annex 1, at p. 7.

75 - T. 6063.

76 - T. 1639-1640; referenced in Amici Curiae Motion, Annex 1, at p. 19.

77 - T. 2846; referenced in Amici Curiae Motion, Annex 1, at p. 25."

P.14. Evidence of the number of individuals affected by the armed conflict

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 21:

"21. The Chamber also recalls that, pursuant to a request by the Defence for Hadžihasanović and the Defence for Kubura, it took judicial notice of certain facts established in the Aleksovski case which deal with the existence of an armed conflict between the ABiH and HVO in the Lasva Valley:

"Towards the end of January 1993, there was an outbreak of open hostilities between the HVO and BH army and Bosnian Muslim men were rounded up by the HVO in the town of Busovaca, as well as in surrounding villages, around 24 January 1993. Approximately four hundred of these men were taken to be detained at the nearby detention facility at Kaonik for about two weeks."⁴⁸

48 Final Decision on Judicial Notice of Adjudicated Facts, 20 April 2004, p. 7, referring to the Aleksovski Trial Judgement, para. 23. Witness ZP nevertheless testified that the armed conflict began in June 1992 in Bosnia and Herzegovina, T(F) p. 8784.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 167:

"167. The conflict in Kosovo in the relevant period resulted in a large number of people being displaced. The UNHCR in Podgorica reported in early May 1998 that 5 000 civilians have fled to Montenegro from Kosovo in recent weeks, 800 of whom had fled in the first days of May 1998. On 26 June 1998 the same source reported that there were then 11500 refugees from Kosovo formally registered in Montenegro and their number was then estimated to reach 15000."

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 882:

"882. Soldiers were killed as a result of the fighting. Large numbers of civilians fled the Visegrad area or went missing, and the ethnic makeup of Visegrad altered completely from being predominantly Muslim to being almost exclusively Serb."

3.1.3. Evidence of degree of organization of the parties

A. Legal source/authority and evidence:

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, paras. 199-203:

"199. Trial Chambers have taken into account a number of factors when assessing the organisation of an armed group. These fall into five broad groups. In the first group are those factors signalling the presence of a command structure, such as the establishment of a general staff or high command,796 which appoints and gives directions to commanders,797 disseminates internal regulations,798 organises the weapons supply,799 authorises military action,800 assigns tasks to conflicts in which parties did not control territory, and hence would be an excessive limitation on the ICC’s jurisdiction). individuals in the organisation,801 and issues political statements and communiqués,802 and which is informed by the operational units of all developments within the unit’s area of responsibility.803 Also included in this group are factors such as the existence of internal regulations setting out the organisation and structure of the armed group;804 the assignment of an official spokesperson;805 the communication through communiqués reporting military actions and operations undertaken by the armed group;806 the existence of headquarters;807 internal regulations establishing ranks of servicemen and defining duties of commanders and deputy commanders of a unit, company, platoon or squad, creating a chain of military hierarchy between the various levels of commanders;808 and the dissemination of internal regulations to the soldiers and operational units.809

200. Secondly, factors indicating that the group could carry out operations in an organised manner have been considered, such as the group’s ability to determine a unified military strategy and to conduct large scale military operations,810 the capacity to control territory,811 whether there is territorial division into zones of responsibility812 in which the respective commanders are responsible for the establishment of Brigades and other units and appoint commanding officers for such units;813 the capacity of operational units to coordinate their actions,814 and the effective dissemination of written and oral orders and decisions.815

201. In the third group are factors indicating a level of logistics have been taken into account, such as the ability to recruit new members;816 the providing of military training;817 the organised supply of military weapons;818 the supply and use of uniforms;819 and the existence of communications equipment for linking headquarters with units or between units.820

202. In a fourth group, factors relevant to determining whether an armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3 have been considered, such as the establishment of disciplinary rules and mechanisms;821 proper training;822 and the existence of internal regulations and whether these are effectively disseminated to members.823

203. A fifth group includes those factors indicating that the armed group was able to speak with one voice,824 such as its capacity to act on behalf of its members in political negotiations with representatives of international organisations and foreign countries;825 and its ability to negotiate and conclude agreements such as cease fire or peace accords.826"

796 Limaj Trial Judgement, para 94; Haradinaj Trial Judgement, paras 60, 65-68.

797 Limaj Trial Judgement, paras 96, 98, 99.

798 Limaj Trial Judgement, para 98.

799 Limaj Trial Judgement, para 100; Haradinaj, para 60.

800 Limaj Trial Judgement, para 46.

801 Limaj Trial Judgement, para 46.

802 Limaj Trial Judgement, paras 46, 101.

803 Limaj Trial Judgement, para 97.

804 Limaj Trial Judgement, para 98.

805 Limaj Trial Judgement, paras 99, 102.

806 Limaj Trial Judgement, para 103.

807 Milo{evi} Rule 98bis Decision, paras 23-24; Limaj Trial Judgement, para 104; Haradinaj Trial Judgement,para 65.

808 Limaj Trial Judgement, para 111.

809 Limaj Trial Judgement, para 110.

810 Limaj Trial Judgement, para 129; Mrk{i} Trial Judgement, paras 410, 417; Haradinaj Trial Judgement, para 87.

811 Limaj Trial Judgement, para 158; Haradinaj Trial Judgement, paras 70-75.

812 Milo{evi} Rule 98bis Decision, paras 23-24; Limaj Trial Judgement, para 95.

813 Limaj Trial Judgement, paras 106, 109.

814 Limaj Trial Judgement, para 108; Marti} Trial Judgement, paras 135, 344.

815 Limaj Trial Judgement, para 105.

816 Limaj Trial Judgement, para 118; Haradinaj Trial Judgement, paras 83-85.

817 Čelebici Trial Judgement, para 118; Limaj Trial Judgement, para 119; Haradinaj Trial Judgement, para 86.

818 Čelebici Trial Judgement, para 118; Milo{evi} Rule 98bis Decision, paras 23-24; Limaj Trial Judgement, paras 121-122; Haradinaj Trial Judgement, paras 76-82.

819 Limaj Trial Judgement, para 123.

820 Limaj Trial Judgement, para 124.

821 Limaj Trial Judgement, paras 113-117; Haradinaj Trial Judgement, para 69.

822 Limaj Trial Judgement, para 119.

823 Limaj Trial Judgement, para 110.

824 Haradinaj Trial Judgement, para 88.

825 Limaj Trial Judgement, paras 125-129.

826 Halilovi} Trial Judgement, para 164; Had‘ihasanovi} Trial Judgement, paras 20, 23; Haradinaj Trial Judgment, para 88.

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, paras. 16-17:

"16. The test for determining the existence of an armed conflict was set out in the Tadic Jurisdiction Appeals Decision ("Tadic test") as follows:

"37. Tadic Jurisdiction Appeal Decision, at para. 70.

38. Prosecutor v. Tadic, Case No. IT-94-1-T, "Opinion and Judgement", 7 May 1997 ("Tadic Trial Judgement"), at paras. 561, 628; Prosecutor v. Delalic, et al., Case No. IT-96-21-T, "Judgement", 16 November 1998 ("Delalic Trial Judgement"), para. 183; Prosecutor v. Kunarac, et al., Case No. IT-96-23-T and IT-96-23/1-T, "Judgement", 22 February 2001, at para. 412; Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, "Judgement", 26 February 2001, at para. 24; Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-T, "Judgement", 31 March 2003, at para. 177.

39. E.g., Tadic Trial Judgement, at para. 562."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 93:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 184:

Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 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. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 562:

III").

47. (ICRC, Geneva, 1952) 49-50."

P.15. Evidence of the extent of organisation of the forces involved.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 90

"90. […] With respect to the organisation of the parties to the conflict Chambers of the Tribunal have taken into account factors including the existence of headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms.314"

314 Milosevic Rule 98bis Decision, paras 23-24.

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, para. 822-823:

P.15.1. Evidence of structure and strength

"822. The KLA developed in organisation and capacity from early 1998, such that John Crosland described it as "a fairly well-organised and supplied organisation" by the autumn of that year. The Chamber has heard conflicting testimony regarding the precise physical strength of the KLA, although several witnesses stated that it grew in size through 1998 and 1999. According to Crosland, there were about 400 hardcore KLA fighters in early 1998. This number increased in the early part of 1999, when it became "clear" that a NATO intervention was going to take place. Karol Drewienkiewicz also testified that in December 1998 and January 1999 there were several hundred KLA fighters. He further stated that there were also many more people who would defend their villages, but would not actively fight elsewhere."

P.15.2. Evidence of an ability to plan and carry out concerted military operations.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 108 – 109 and para. 172:

"108. Relevant for establishing the level of organisation of the KLA is the capacity of the KLA units to coordinate their actions. At the end of July 1998 the commander of L95’s unit, comprising 30 soldiers, ordered that the soldiers of this unit go to the Berishe/Berisa Mountains to assist the KLA forces there as they were likely to be attacked by Serbian forces.368 Accordingly, L95 and the other soldiers from his unit went to the village of Novoselle/Novo Selo.

109. Commanders of some units had the power to approve the appointment of commanders of smaller units within their operational zone. Ramiz Qeriqi, aka "Luan," who in the beginning of June 1998 was responsible for 70 to 100 persons in different fighting points: Carraleve/Crnoljevo, Zborc/Zborce, Fushtice/Fustica, Blinaje/Lipovica and Pjetershtice/Petrastica, agreed that Ramadan Behluli should assume charge of Pjetershtice/Petrastica. Ramadan Behluli was under Luan’s command and Luan gave him orders. These orders usually concerned the defence of the existing positions and were conveyed to him in person. In relation to some matters, such as the opening of new positions and trench digging, Ramadan Behluli acted from day to day on his own initiative but he did so with the approval of Luan. Sometime in May or June 1998 Shukri Buja assumed command of Kroimire/Krajmirovce and, as Pjetershtice/Petrastica and Carraleve/Crnoljevo had come in the zone of responsibility of Kroimire/Krajmirovce, Luan became his deputy. Luan knew that above him and Shukri Buja there was a higher command, and that the "organisational line" went from Likofc/Likovac (where the commander was Rexhep Selimi) to Klecke/Klecka (where the commander was Fatmir Limaj) to Kroimire/Krajmirovce and that the general commander was Azem Syla."

"172. Further, by the end of May 1998 KLA units were constantly engaged in armed clashes with substantial Serbian forces in areas from the Kosovo-Albanian border in the west, to near Prishtina/Pristina in the east, to Prizren/Prizren and the Kosovo-Macedonian border in the south and the municipality of Mitrovice/Kosovka Mitrovica in the north.574 The ability of the KLA to engage in such varied operations is a further indicator of its level of organisation."

P.15.3. Evidence of an ability to impose discipline in the name of a de facto authority.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 113 – 116

113. Indicative of the extent of the KLA’s developing formal organisation is the establishment of a military police, which, generally, were responsible for the discipline of the soldiers and for controlling the movements of KLA servicemen.387 The evidence concerning the date of the establishment of the military police ("PU" in Albanian) reflects the inconsistency evident about all aspects of the development of the KLA’s organisational structure. Some witnesses testified that military police were not established until August 1998 or later. For example, the Accused Fatmir Limaj said that the military police started to operate independently in each zone in August 1998 and that the uniforms of the military police first appeared in mid December 1998.388 However, Ramadan Behluli saw military police in Kroimire/Krajmirovce a little before the offensive in Zborc/Zborce, which took place on 25 and 26 July 1998. They wore black uniforms with the PU insignia on their badges. Ramiz Qeriqi accepted the proposition put forward to him by the Defence that military police as an organisation within the KLA did not exist until sometime after the brigades and the battalions were formed. In contrast to this, Sylejman Selimi testified that as the commander of the Drenica zone he started to establish military police approximately two months after his appointment as a zone commander in May 1998, in other words in July 1998, and about the time when he recalled brigades being formed.392 In the course of his evidence, however, Sylejman Selimi also accepted that he may have issued an order in respect of military police in May 1998, which the Chamber finds, as noted in the next paragraph, did occur. Similarly, he also accepted that it was possible that by mid May 1998 there had been an order or an instruction from the General Staff for there to be a military police unit.

114. The written record, scarce as it was and is, demonstrates that the recollections of the witnesses, so far as their recollections are disclosed in their oral evidence, on this issue of timing, are too conservative, and that in fact the movement to introduce military police in the KLA commenced earlier in time than many now indicate. A "Programme for Military Police" issued on behalf of Sylejman Selimi and signed by Shaban Shala was issued on 13 May 1998. The Programme obliged the commanders in the Drenica zone to inform their soldiers of the programme of the military police. It was stated in the Programme that soldiers who leave the front line without the permission of the commander will be imprisoned by the military police. The Programme regulates the occasions when bearing of arms is not allowed, and authorised the military police to use physical force against a soldier disobeying orders. The Programme provided that it would come into force on 20 May 1998.

115. This Programme is consistent with the KLA Regulations, Chapter Eight of which deals with the military police. It is stipulated that the military police are organised in operational zones and sub-zones, and that their duties include, inter alia, keeping order and discipline in the military units and bases, controlling the movement of soldiers and their travel permits, controlling the movement of suspicious persons, securing the transportation of military materiel, and seizing the documents and the weapons of servicemen and soldiers who break the regulations.

116. There is scant evidence as to the extent to which the regulations concerning the military police and the disciplinary rules were enforced in practice. Reports indicated that in the second half of June 1998 KLA police organised traffic in Malisheve/Malisevo. The evidence about the actual enforcement of disciplinary procedures is scarce. Peter Bouckaert testified that during his visit to Kosovo between September and November 1998 he and another Human Rights Watch researcher had been told by KLA members that there were disciplinary procedures in place but throughout the entire period of their research, covering the time from late February to November 1998, they did not document a single case in which the KLA disciplined or punished its own troops. Sylejman Selimi indicated that prior to the formation of the brigades there was no strict military discipline. Fatmir Limaj suggested in his evidence that in the period from May to July 1998 he could only expel a soldier who misbehaved from the unit he was responsible for and, if a soldier had been given a weapon, he could have taken it back. It was his position that it was not possible for him to prevent a soldier he expelled from his unit from going to another. While there is evidence that before the military police came into existence disciplinary sanctions could have been imposed on soldiers, the evidence does not identify any instance of soldiers being removed from their units.

117. In view of the above, the Chamber accepts and finds that in mid May 1998 the General Staff of the KLA formally moved to introduce military police within the KLA. While it is not apparent on the evidence before the Chamber that disciplinary rules were then consistently enforced in KLA units, the Chamber regards this step as affording clear evidence of the growing formality and effectiveness of the organisational structure of the KLA by mid May 1998, and of the progress of the General Staff towards ensuring that the KLA functioned as a disciplined and coordinated military force.:

Prosecutor v. Idriz Balaj et al., Case No. IT-04-84-T, Judgement (TC), 3 April 2008, para. 69 :

"69. Disciplinary rules and mechanisms. Discipline of KLA soldiers does not appear to have been a significant concern for the KLA in the early months of 1998. Jakup Krasniqi testified that from March to September 1998, the KLA had no courts, judges, or prisons. During 1998, the KLA General Staff had no system for disciplining KLA soldiers, and disciplining by zone commanders was, according to Jakup Krasniqi, difficult or impossible, due to lack of organization and regular communication. On 29 April 1998, the KLA General Staff issued a policy statement, according to which the KLA recognized and respected the international treaties of the United Nations and the conventions on war. The KLA also circulated documents containing these conventions, originating from the International Red Cross. Due to organizational problems, it was not possible to send the documents to every KLA s purpose of the policy statement was therefore to inform KLA soldiers."

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, para. 831:

"831. Zyrapi also testified that, when he was appointed Chief of General Staff in November 1998, the KLA was using prison sentences to discipline its members. They administered these sentences through a military court, which was run by a military judge who was appointed in December 1998. The seat of this court was primarily in the Berisha Mountains, but it would also sit in other places depending on the circumstances. The function of the court was to investigate serious breaches of law. Additionally, between December 1998 and March 1999 the KLA had two military hospitals in Paštrik/Pashtrik and Drenica, and each zone had an outpatient clinic."

P.15.4. Evidence of an ability to dominate a sufficient part of the territory so as to maintain sustained and concerted military operations.

Prosecutor v. Idriz Balaj et al., Case No. IT-04-84-T, Judgement (TC), 3 April 2008, para. 70-75 :

"70. Control of territory. Serbian control of certain parts of the Dukagjin area weakened already before 1998. Zoran Stijović testified that, starting in 1996, the MUP stayed out of several areas across Kosovo/Kosova, including around Jablanica/Jabllanic?, in order to avoid confrontations with the KLA. Nebojša Avramović testified that even before the conflict the police were unable to go to Jablanica/Jabllanic?, because the villagers were armed and there were attacks on the police and other state officials. In January 1998, Branko Gajić received information that an area of 90 square kilometres in Đakovica/Gjakov? municipality had not been under Serbian control for several years, and had fallen under KLA command in late 1997.

71. The KLA exerted territorial control by setting up manned checkpoints on roads in the Dukagjin area. Branko Gajić stated that, following the MUP operation on Adem Jashari’s compound on 5 March 1998, the number of KLA checkpoints increased. The Trial Chamber received specific evidence on the existence of KLA checkpoints in March 1998. Dragoslav Stojanović testified that one evening around the beginning of March 1998, at the entrance to Glođane/Gllogjan, four KLA soldiers stopped him, asked for his identity papers, and searched him and his car. John Crosland testified that between March and July 1998, he observed small groups of around 10-15 KLA soldiers, most of whom wore uniforms with KLA insignia, in the areas of Rznić/Irzniq, Prilep/Prelep, and on the outskirts of Đakovica/Gjakov?. They were armed with rifles, revolvers, some light machine-guns, and sometimes try to prevent Crosland’s passage.

72. By late April 1998, there was a considerable number of KLA checkpoints in the Dukagjin area. Shemsedin Cekaj testified that, around 20 April 1998, he travelled to Rznić/Irzniq to meet Ramush Haradinaj for the first time. He drove through the villages of Ljubenić/Lybeniq, Peć/Pej? municipality, Donji Streoc/Strellci i Ult?, Požar/Pozhare and Kodralija/Kodrali, all in Dečani/De?an municipality. There were checkpoints guarded by KLA soldiers, some of whom were uniformed, in several villages along the way. Shemsedin Cekaj did not need any papers to pass through these checkpoints as he was known to the men guarding them. At that time, one did not need a permit from local KLA staff to travel through KLA checkpoints. Shemsedin Cekaj testified that, after 22 April 1998, the KLA set up check-points on the western side of Rznić/Irzniq, towards Prilep/Prelep. Shaban Balaj testified that there was a KLA checkpoint in Rasić/Rasiq in Peć/Pej? municipality, at the end of April 1998. Nebojša Avramović testified that by 21-22 April 1998 the KLA had checkpoints, bunkers and trenches on both sides of the Đakovica/Gjakov?-Peć/Pej? road. The existence of KLA trenches in Dečani/De?an municipality by 22-24 April was corroborated by Miloica Vlahović257 and Staniša Radošević.In sections 6.4 and 6.7, below, the Trial Chamber examines further evidence of KLA checkpoints in Dečani/De?an municipality, around Dašinov Požar/Pozhare, and Rznić/Irzniq, by 22 April 1998.

73. As a result, between April 1998 and late August 1998 the Dukagjin area was, as explained by Cuf? Krasniqi, mainly under the control of the KLA. The area was, according to the witness, considered a "free zone" because it was freed from Serbian "occupation" and because the KLA could move within that area. However, due to their military superiority, the Serbian forces were still able to enter the area, and did so repeatedly. The KLA’s control of the Dukagjin area since around April 1998, though offset by Serbian incursions, found further support in the evidence of Ylber Haskaj, Shemsedin Cekaj, Zymer Hasanaj, ?arko Bajčetić, and Witness 28. The evidence examined in sections 6.5, 6.6, and 6.7, below shows that the KLA took control of Gornji Ratiš/Ratish? ? Eperm municipality, on 21-22 April 1998.

74. As KLA control of the Dukagjin area expanded, permanent Serbian positions were withdrawn. Nebojša Avramović testified that the police stations in Rznić/Irzniq and Junik were closed in April 1998, as the roads leading to these stations were blocked and policemen were constantly attacked. Overnight between 21 and 22 April 1998, the police station in Rznić/Irzniq was evacuated. Zoran Stijović testified that when the police withdrew from the police outpost in the vicinity of Glođane/Gllogjan, control of the territory off the main road was in effect ceded to the KLA.

75. The evidence indicates that in early 1998 the main roads were predominantly under Serbian control, which by April was increasingly challenged by the KLA. Dragan ?ivanović testified that the MUP, following increased KLA activity, had set up permanently manned checkpoints along the main roads in Western Kosovo/Kosova in the first half of 1998. KLA attacks on these checkpoints increased during the months up to June 1998. Nebojša Avramović testified that a section of the Đakovica/Gjakov?-Priština/Prishtin? road, between Rakovina/Rakovine in Đakovica/Gjakov? municipality and Dolac/Dollc in Klina/Klin? municipality was completely blocked by the KLA between April and September 1998. John Crosland and Cuf? Krasniqi testified that since February or March 1998, Serbs controlled the Peć/Pej?-Đakovica/Gjakov? main road, although the KLA blocked it near Prilep/Prelep for some time around April 1998. On 22 April 1998, Colonel Vladimir Lazarević ordered that movement of military vehicles on the Đakovica/Gjakov?-Dečani/De?an-Peć/Pej? road required prior authorisation and maximum security measures. Witness 28 testified that, by the end of April 1998, bus services along the Priština/Prishtin?- Đakovica/Gjakov? road were not operating due to clashes between KLA and Serbian military forces. Serbian police officers told the witness that the KLA had been attacking the Serbian police along the road and were trying to take control of it. The witness noticed an increase in checkpoints and a more tangible police precense along the road."

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 277-279:

"277. Indicative of the level of organisation of an armed group is its ability to carry out military operations, including troop movements and logistics. As discussed earlier, the Chamber is satisfied that there was a marked increase in hostilities from May 2001, for the most part concentrated in the north-western part of the country. Most of these hostile incidents consisted of small-scale attacks on police patrols or police stations. Like other ethnic Albanian armed groups in the formative stages of an insurgency such as the KLA in Kosovo in 1998, the tactics of the NLA consisted in large part of hit and run manoeuvres as demonstrated in the number of ambushes carried out in 2001. More serious or prolonged incidents also occurred, such as the 10 day NLA "occupation" of Aračinovo in June, and heavy clashes in Tetovo and Radu{a in August.

278. The Prosecution points to the withdrawal of the 113th Brigade of the NLA from Aračinovo on 24 June, agreed upon by Ali Ahmeti with NATO and EU representatives, as evidence of a Brigade acting pursuant to General Staff orders. It cites in support an NLA communiqué announcing the withdrawal, which, as discussed elsewhere, occurred on 24 June 2001. Despite some evidence of violent incidents surrounding and consequent to this withdrawal, the Chamber accepts that the NLA did generally comply with the order from Mr Ahmeti to withdraw pursuant to his negotiations with representatives of NATO and the EU.

279. Evidence received by the Chamber indicates other instances where the NLA operated in an organised and coordinated fashion. A confidential daily report of the Security and Intelligence Sector of the Ministry of Defence dated 9 August 2001 records the information registered from radio links of terrorist groups in the Tetovo region, which includes a command from "Commander ILIR" to "all terrorist points" not to create panic but to wait for orders to be issued and an order "to act upon but not to spend a lot of ammunition". The Tarčulovski Defence expert witness partially retracted his earlier statement that each NLA Brigade operated independently,according to their own plans, after being shown parts of his Report which mention the fact that Gzim Ostreni ordered Xhavid Asani, a member of the NLA's 114th Brigade, to carry out attacks on Rastak and Ljubanci on or about 10 August so confirming that Gzim Ostreni issued orders in the field to his subordinates. This order was also mentioned in a report of the Security and Intelligence Sector of the Ministry of Defence dated 13 August 2001. The Chamber also observes that on the day of the police operation in Ljuboten on 12 August 2001, word of the operation reached the NLA quickly and NLA forces set out from positions in the mountains above the village to provide assistance to the villagers. After a mortar and artillery engagement by army forces around Ljuboten in which the NLA incurred casualties, the NLA forces had to withdraw.This response by the NLA, however, does indicate a capacity for communication and an ordered, effective military response. Further, while not universal, the NLA achieved substantial compliance with the cease fire following the signing of the Ohrid Agreement on 13 August 2001. NATO collected 3,875 weapons, which was about 500 more than they expected."

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 884:

"884. […] The evidence indicates that these forces controlled territory in and around the Visegrad municipality. Goran Deric testified that Muslim forces controlled all of the roads, except the Visegrad-Rogatica road. As noted above in relation to the Serb forces, there were continuous battles between the two sides for control of Crni Vrh, and the evidence of VG013 indicates that the Muslim forces were in control of Crni Vrh when she was there in late June 1992."

P.15.5. Evidence of ability to conduct medical evacuations

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 884:

"884. […] Furthermore, the forces were staffed with doctors and had a sufficient level of organisation and means to transport VG013 out of the conflict zone to Gorazde. […]"

P.16. Evidence of the armed forces being under responsible command.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 94 and 98:

"94. The Chamber has discussed the creation of the KLA and the establishment of its General Staff earlier in this decision.322 It has accepted that at the material time there was a General Staff of the KLA and that its members included Azem Syla, Sokol Bashota, Rexhep Selimi, Llahib Rrahimi, Xhavid Zeka, Hashim Thaci, Kadri Veseli, and Jakup Krasniqi.323 While some evidence indicates that most of the regional commanders were represented in "the high command," described as the body within the KLA that took decisions for the whole KLA,324 i.e. the General Staff, this evidence is insufficient to support a finding of the Chamber."

322 See supra, paras 44 and 45.

323 See supra, para 46.
324 Peter Bouckaert, T 5513-5514.

"98. While, not necessarily without fail, the Chamber accepts that, generally, zone commanders acted in accordance with directions from the General Staff. The "Provisional Regulations for the Organisation of the Army’s Internal Life" of the KLA ("Regulations") were distributed to the various units by the General Staff.334 Sylejman Selimi testified that he started to create the zone and the military police upon a proposal from the General Staff."

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 268:

"268. Ali Ahmeti was the leader of the NLA. Although the manner in which he assumed this position was not fully verified in evidence,1155 members of the NLA regarded him as the leader as did members of the international community, as indicated by the fact that communications to the NLA were directed to him1157 and that negotiations for cease fires, the withdrawal of troops, and disarmament were carried out with Mr Ahmeti.1158 Gzim Ostreni was NLA’s Chief of Staff; he was regarded as the deputy leader of the organisation and the military director."

P.17. Evidence of the forces being able to meet the minimum standards of humanitarian law.

A. Legal source/authority and evidence:

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, para. 830:

"830. Zyrapi further stated that, when he joined the KLA, he was notified by the director of the Department of Military Affairs, Rexhep Selimi, that Red Cross booklets had been distributed to operational zones and to commanders in smaller zones. These booklets contained all the rules of warfare. Additionally, KLA soldiers had "short trainings" on the laws of war and the Geneva Conventions. Accordingly, each zone commander received a book of KLA rules and they were responsible for making its content known to lower units."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 620, 626-627:

"620. The above reference' criteria were enunciated as a means of distinguishing genuine armed conflicts from mere acts of banditry or unorganized and short-lived insurrections¹⁶⁵. The term, armed conflict' in itself suggests the existence of hostilities between armed forces organized to a greater or lesser extent¹⁶⁶. This consequently rules out situations of internal disturbances and tensions. For a finding to be made on the existence of an internal armed conflict in the territory of Rwanda at the time of the events alleged, it will therefore be necessary to evaluate both the intensity and organization of the parties to the conflict.

[…]

626. The armed forces opposing the government must be under responsible command, which entails a degree of organization within the armed group or dissident armed forces. This degree of organization should be such so as to enable the armed group or dissident forces to plan and carry out concerted military operations, and to impose discipline in the name of a de facto authority. Further, these armed forces must be able to dominate a sufficient part of the territory so as to maintain sustained and concerted military operations and to apply Additional Protocol II. In essence, the operations must be continuous and planned. The territory in their control is usually that which has eluded the control of the government forces.

627. In the present case, evidence has been presented to the Chamber which showed there was at the least a conflict not of an international character in Rwanda at the time of the events alleged in the Indictment¹⁶⁹. The Chamber, also taking judicial notice of a number of UN official documents dealing with the conflict in Rwanda in 1994, finds, in addition to the requirements of Common Article 3 being met, that the material conditions listed above relevant to Additional Protocol II have been fulfilled. It has been shown that there was a conflict between, on the one hand, the RPF, under the command of General Kagame, and, on the other, the governmental forces, the FAR. The RPF increased its control over the Rwandan territory from that agreed in the Arusha Accords to over half of the country by mid-May 1994, and carried out continuous and sustained military operations until the cease fire on 18 July 1994 which brought the war to an end. The RPF troops were disciplined and possessed a structured leadership which was answerable to authority. The RPF had also stated to the International Committee of the Red Cross that it was bound by the rules of International Humanitarian law¹⁷⁰. The Chamber finds the said conflict to have been an internal armed conflict within the meaning of Additional Protocol II. Further, the Chamber finds that conflict took place at the time of the events alleged in the Indictment.

"164. See International Committee of the Red Cross, Commentary I Geneva Convention, Article 3, Paragraph 1 - Applicable Provisions.

165. Ibid.

166. See Commentary on Additional Protocol II, paras 4338-4341.

[…]

169. See in particular documents referred to in Factual Findings - General Allegations (paragraphs 5-11 of the Indictment).

170. Report of the United Nations High Commissioner for Human Rights on his mission to Rwanda of 11-12 May 1994 (E/CN.4/S-3/3. 19 May 1994)."

P.18. Evidence of the existence of an official joint command structure and headquarters.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 104:

104. At the time material to the Indictment, the KLA General Staff, also sometimes referred to in the evidence as general headquarters,348 did not have a consistent place of location. The KLA was forced to function as an underground organisation. Members of the KLA and its General Staff and members were at constant risk of capture. Therefore, the General Staff met irregularly, and at different places, because of the security situation. Its members communicated primarily by telephone and fax. There were, however, a number of local KLA headquarters in various places in Kosovo. The evidence indicates that major KLA headquarters were located in Malisheve/Malisevo, in Klecke/Klecka, and in the village of Divjake/Divljaka. There were also headquarters in Jabllanice/Jablanica, Carraleve/Crnoljevo, Shale/Sedlare, Vojnike/Vocjnak, Likofc/Likovac, Pjetershtice/Petrastica, and Llapushnik/Lapusnik, among other places.

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 417:

"417. The MUP, ZNG, and the various Croat volunteer forces present in Vukovar were unified under a common command. Mile Dedaković, aka Jastreb ("the Hawk"), came to be recognized as the leader of the Vukovar defence. Whoever was armed and was involved in the defence of Vukovar came under the command of Mile Dedaković. This included ZNG, policemen, Merćep’s men, and other volunteers. The headquarters of the defence of Vukovar was in a shelter across the street from the municipal building."

Prosecutor v. Idriz Balaj et al., Case No. IT-04-84-T, Judgement (TC), 3 April 2008, paras. 65-66 :

"65. Headquarters and command structure. The first KLA headquarters in the Dukagjin area were established in Jablanica/Jabllanic?, in Đakovica/Gjakov? municipality, and Glođane/Gllogjan, in Dečani/De?an municipality. Cuf? Krasniqi testified that in February 1998 the KLA had headquarters in Jablanica/Jabllanic? and Glođane/Gllogjan. Jablanica/Jabllanic?, which the witness understood to be under the command of Lahi Brahimaj, was the oldest KLA headquarters in Western Kosovo/Kosova. After the attack on the Haradinaj family compound in Glođane/Gllogjan in March 1998, this village became the base for the most important KLA headquarters after Jablanica/Jabllanic?. KLA members went to Glođane/Gllogjan to learn how to protect their villages and obtain weapons. Zoran Stijović and Witness 69 corroborated the KLA’s presence, by early 1998, in Glođane/Gllogjan and Jablanica/Jabllanic?, as well as Lahi Brahimaj’s role as a leader in Jablanica/Jabllanic?. Pjeter Shala testified that in early spring 1998, he and twenty or thirty other armed men entered Kosovo/Kosova from Albania and went to Jablanica/Jabllanic?. The witness testified that KLA commanders would meet in Lahi Brahimaj’s house, in the centre of Jablanica/Jabllanic?. He further testified that there were barracks at the entrance to the village. Nazmi Brahimaj was the village commander and gave orders pertaining to who was to collect weapons and who was to go on a particular assignment.

66. In March and April 1998, villagers in many villages in the Dukagjin area began to organize themselves in support of the KLA. Rrustem Tetaj testified that villagers in some of the villages that surrounded Glođane/Gllogjan, such as Dubrava/Dubrav?, Babaloć/Baballoq, Gramočelj/Gramaqel, and ?aptelj/Shaptej, all in Dečani/De?an municipality, had started to set up KLA headquarters around the end of March and the beginning of April 1998. Around the same time, he saw the KLA headquarters in Ljumbarda/Lumbardh in Dečani/De?an municipality. The commander of Gramočelj/Gramaqel at the time was Ali Avdija, a.k.a. Baraba, and the commander of Ljumbarda/Lumbardh was Deli Lekaj. According to Rrustem Tetaj, villagers organized themselves on their own initiative, which resulted in an expansion of the KLA in the Dukagjin area. The organization consisted mainly of ordinary people appointing night guards and setting up checkpoints at village entrances. The Trial Chamber received further consistent evidence about KLA organization at the village level in the Dukagjin area since late March 1998 from Ismet Kadrijaj, Ahmet Ukaj, Zymer Hasanaj, Witness 29, and Shemsedin Cekaj"

P.18.1. Evidence of issuance of orders/instructions from the headquarters of an armed group.

P.19. Evidence of the designation of zones of operation.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 95:

"95. Further, as the Chamber has found earlier in this decision,325 progressively from late May to late August 1998 the territory of Kosovo was divided by the KLA into seven zones: Drenica, Dukagjin, Pastrik, Shala, Llap, Nerodime, and Karadak.326 Each zone had a commander and covered the territory of several municipalities.327 The level of organisation and development in each zone was fluid and developing and not all zones had the same level of organisation and development; this was significantly influenced by the existence and extent of the KLA’s presence in each zone before April 1998.328"

326 Initially the entire territory of Kosovo may have been referred to as Zone One and the other zones as sub-zones, Jakup Krasniqi, T 3322-3323. Jakup Krasniqi testified that the zones and the subzones were references to the same entities, T 3479-3482.

327 Jakup Krasniqi, T 3479-3482.

328 Jakup Krasniqi, T 3412-3415; T 3468-3470.

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, para. 827:

"827. Kosovo was divided into seven KLA operational zones with brigade divisions: the Drenica zone and brigades; the Paštrik/Pashtrik zone and brigades; the Dukagjin zones and brigades; the ?alja/Shala zones and brigades; the Lab/Llap zones and brigades; the Nerodimlje/Nerodime zones and brigades; the Karađak zones and brigades.2169 Each zone had a number ranging from one to seven. Within each zone the territory actually controlled by the KLA varied at different times."

P.19.1. Evidence of an appointment of a commander of a subzone/zone/region.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 96-97:

"96. The Chamber accepts from the evidence and finds that it was the General Staff of the KLA which appointed the zone commanders. As Sylejman Selimi testified, a meeting which took place at the end of May 1998 and which was attended by Rexhep Selimi, a representative of the General Staff, and individuals holding important positions in other units, nominated Sylejman Selimi to become the commander of the 1st Operational Zone. However, this proposal had to be approved by the General Staff and Sylejman Selimi was in fact appointed commander of the 1st Operational Zone by the General Staff.329 The Chamber’s finding is supported also by evidence that in mid June 1998 the General Staff began appointing zone commanders.330

97. In the Chamber’s finding, every leader of an operational unit had an obligation to inform the General Staff about all developments in their respective areas of responsibility.331 For example, the commander of the Drenica zone Sylejman Selimi, reported directly to the General Staff. There was no intermediate command level.332"

329 Sylejman Selimi, T 2070-2072; 2212. See also Rexhep Selimi, T 6691.

330 Shukri Buja, T 3797-3799.

331 See Jakup Krasniqi, T 3412-3413.

332 Sylejman Selimi, T 2072-2075; 2231-2232.

P.20. Evidence of the ability to procure, transport, and distribute arms.

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, para. 100:

"100. The General Staff was also active in organising issues of overall importance for the functioning of the KLA, such as the supply of weapons. So it was that in May 1998 Shukri Buja was ordered by the General Staff to organise the supply line of weapons from Albania to Kosovo and in particular to the municipalities of Kacanik/Kacanik, Lipjan/Lipljan, Shtime/Stimlje and Ferisaj/Urosevac.339 This order came from the General Staff and was communicated to Shukri Buja by Hashim Thaci.340"

339 Shukri Buja, T 3773-3774.

340 Shukri Buja, T 3773-3774.

Prosecutor v. Idriz Balaj et al., Case No. IT-04-84-T, Judgement (TC), 3 April 2008, para. 76-82 :

"76. Weapons and other military equipment. The KLA was, as explained by Jakup Krasniqi, financially supported by two funds. The Bukoshi Fund, set up at the end of 1991 or the beginning of 1992, donated around 4 million DEM to the KLA, during 1998 and 1999. The Homeland Calling Fund, set up in 1995, was controlled by the KLA General Staff. It was used to finance the transport of weapons and supplies from Albania into Kosovo/Kosova. Contributions came from the Albanian diaspora and were encouraged by KLA communiqués. Witness 17 corroborated this evidence. Cuf? Krasniqi and Dragan ?ivanović testified that the KLA got money to buy from donations of the Albanian diaspora and funds collected in the villages.

77. While two witnesses testified that large-scale KLA smuggling of weapons began in early 1997, the Trial Chamber received concrete evidence substantiating this claim only as of March 1998. Zoran Stijović testified that in early 1997, the Albanian Government collapsed and Albanian army barracks were looted. According to the witness, in early spring 1997, the KLA began to smuggle large quantities of weapons and other military equipment from Albania into Kosovo/Kosova. Dragan ?ivanović corroborated this evidence. Bislim Zyrapi testified that he was in Albania between the second half of March and 28 May 1998. He was frequently visited by members of the KLA’s General Staff for advice on weapons procurement and weapons supply to Kosovo/Kosova. The witness visited private premises to inspect weapons for purchase, viewing between 50 and 100 weapons at a time, many of them decades old and some no longer functiona the KLA into Kosovo/Kosova.

78. In the beginning of 1998, the number of illegal border crossings increased around the border between Kosovo/Kosova, Montenegro, and Albania. According to Branko Gajić, following the MUP operation on Adem Jashari’s compound on 5 March 1998, the KLA intensified its weapons smuggling operations from Albania, Montenegro, and Macedonia. John Crosland testified that by 24 March 1998 the KLA would get supplies across the border from Albania and later also from across the Macedonian border. According to Cuf? Krasniqi, around March 1998 people would bring weapons from Albania, Serbia, and Montenegro. After March 1998, village commanders sent young men to Ramush Haradinaj who would send them on to contacts in Albania in order to pick up weapons. These unarmed young men were usually escorted by two or three armed KLA soldiers and brought the weapons through the mountains back to their villages. Dragan ?ivanović testified that, by April 1998, groups of up to 200 persons smuggled arms across the border into Kosovo/Kosova for the KLA. Guides, who knew the state border security system well, led columns of pedestrians or mules across the border.

79. The Trial Chamber received specific evidence of smuggling expeditions from Albania in March and April 1998. In the beginning of March, Avdullah Avdija went to Tropoj? in Albania with three friends to get weapons. The witness stated that he was not a member of the KLA at that point, but a volunteer. The distribution and issuing of weapons in Albania was supervised by people whom Avdija did not know. He returned several nights later, with around 420 others, transporting Kalashnikovs and other weapons loaded onto horses. Some of them were wearing uniforms. Ismet Kadrijaj testified that after the Serbian attack on the Haradinaj family compound in March 1998 he travelled to Albania with fellow villagers to purchase weapons. Ylber Haskaj went to Albania together with a great number of other villagers in Rznić/Irzniq to purchase weapons in mid-April 1998. They travelled on foot and he brought back a weapon, ammunition, and a uniform for himself. At the end of April 1998, Shaban Balaj travelled with a group of some 500 people from various villages to Tropoj? to obtain weapons and supplies. On their return to Kosovo/Kosova, transporting the purchased weapons (15 millimetre machine guns on tripods, long range mortars, sub-machine guns, and rifles), the group was escorted by approximately five KLA soldiers. The witness was aware of numerous large convoys travelling from Kosovo/Kosova to Albania in this period.

80. The weapons were transported through established routes. According to Zoran Stijović, these passed through Jablanica/Jabllanic? and Glođane/Gllogjan. Branko Gajić confirmed that by March 1998 there were illegal channels along which large quantities of weapons were being imported from Albania.312 John Crosland testified that weapons would be smuggled into Kosovo/Kosova along routes across the FRY/Albania border, and that many would go through the Dukagjin area to the Drenica/Drenic? area or Kosovska Mitrovica/Mitrovic?. By 24 April 1998 the KLA tried to create a corridor from Albania through the west of Kosovo/Kosova, the Jablanica/Jabllanic? area, and onto the Drenica/Drenic? area, along which some of the major KLA headquarters were situated. Branko Gajić corroborated this testimony. Dragan ?ivanović testified that the weapons would go to village staffs in Kosovo/Kosova which would distribute them to KLA volunteers.

81. The weapons obtained by the KLA in the early months of 1998 were light, compared to those of the Serbian forces. In the first half of 1998, the VJ primarily intercepted Chinese-made weapons which had belonged to the Albanian Army. The weaponry included semi-automatic and automatic rifles, machine guns, hand-held launchers, mortars, anti-personnel mines, recoilless guns, and ammunition. Branko Gajić testified that, in that same period, the VJ discovered some 25,000 weapons of differing calibre and type, 500,000 bullets and shells of different calibre, 10,000 hand-grenades, larger quantities of hand-held launchers and mortars, and several tonnes of military equipment, which had apparently been abandoned by KLA members attempting to cross the Albanian border into Kosovo/Kosova. Further and largely consistent evidence on KLA smuggling of weapons from Albania was received from ?arko Bajčetić and Witness 69.

82. The transportation of weapons across the border prompted Serbian counter-measures in March and April 1998. Branko Gajić testified that in March 1998 Colonel Delić made requests for the approval of operations designed to inhibit the smuggling of weapons by the KLA and secure the border. According to Dragan ?ivanović, starting around April 1998, the VJ reinforced the border posts in response to the increased number of border crossings.Branko Gajić testified that, in an attempt to prevent the smuggling of weapons, the Government of FRY decided on 23 April 1998 to extend the frontier zone with Albania, giving the army military responsibilities up to five kilometers from the Albanian border."

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 281:

"281. Gzim Ostreni testified that the NLA was able to supply its units with weaponry and equipment, even though this was only achieved with difficulty. A number of sources pointed to the NLA having financial support from the ethnic Albanian diaspora, which funded the weaponry for most of the Brigades. Over the course of 2001, KFOR routinely intercepted large amounts of weaponry and other supplies being smuggled over the border into FYROM from Kosovo, as well as hundreds of suspected NLA members. According to Ostreni, the NLA had a variety of weapons, including "Strela-2M" AA portable missiles (used against aircraft), 60 millimetre, 82 millimetre and 120 millimetre mortars, 12.7 millimetre AA machine guns, sniper rifles, anti-tank rocket launchers, rocket propelled grenades and 120 millimetre howitzers. Nazim Bushi testified that the 114th Brigade in early July and late August had pistols, automatic rifles, sniper rifles, hand-held grenades, "Gulinov" automatic rifles, 12.7 millimetre launchers, cannons, OSA (manual rocket launchers) and 62 millimetre and 82 millimetre mortars. Other evidence suggests that the NLA Brigades were armed with sniper rifles equipped with telescopic sights, a number of shotguns and access to belt fed light machine guns, man-portable air defence systems, 120 millimetre mortars, and that most members carried at least one grenade and a side arm or a knife. The evidence does not disclose the numbers of these weapons. As noted, in Operation Essential Harvest, NATO received 3,875 weapons from NLA members, but this is likely to be significantly less than the actual numbers possessed by the NLA at the height of the conflict. An email of the OSCE spill-over mission indicated that the NLA routinely used anti-tank mines and maybe anti-personnel mines."

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, para. 835-836:

"835. The KLA used the money it received largely to purchase weapons abroad.2200 Frederick Abrahams testified that, after the fall of the communist regime in Albania in March 1997, large quantities of weapons were transferred to Kosovo.2201 According to Crosland, by early 1998 the KLA had impressive weapons depots.2202 Starting in late 1998 there was a "quantum increase" in supplies and weapons that enhanced the capability of the KLA to oppose or engage the VJ and MUP forces. Around October 1998 they were using up to date small arms weaponry which included new rifles, sub-machine guns, anti-armour vehicles, anti-armour grenades, and uniforms. Božidar Delić indicated that the KLA had the "most up-to-date sniper weapons". In December 1998 his units came across two caches of weapons and military equipment after clashes with the KLA. These included hand grenades, grenades for a grenade launcher, several kalashnikov rifles, PAP semi-automatic rifles, hand-held rocket launchers, mortar shells, and TNT. However, Karol Drewienkiewicz testified that the KLA did not have heavy weaponry, such as tanks, in December 1998, and this was supported by Maisonneuve, who stated that the KLA was very lightly armed, with no heavy vehicles, from December 1998 to mid-March 1999.

836. Zyrapi, Ciaglinski, and Crosland described the various types of weapons used by the KLA, which were largely pistols, Kalashnikovs, and semi-automatic rifles. They testified that it also had some light and heavy machine guns, a few recoilless guns and cannons, anti-tank mines, two to three grenades per soldier, RPGs (rocket propelled grenades) with a range of 150 to 500 metres, a few zoljas (a hand held mortar), sniper rifles, and 82 and 120 millimetre mortars."

P.20.1. Evidence of an extensive passage of arms across the border.

P.20.2. Evidence showing that an armed group send runners with orders of weapons.

A. Legal source/authority and evidence:

Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal (TC), 16 June 2004, paras. 23-25:

"(b) Evidence of an armed conflict

(i) Organisation of the KLA

23. The Amici Curiae submit that "[t]he KLA did not constitute a sufficiently organised armed group under responsible command or an organised military force ‘responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention’".⁵⁰ However, the Trial Chamber has considered the question of the degree of organisation of the KLA and found that there is in fact a sufficient body of evidence pointing to the KLA being an organised military force, with an official joint command structure, headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms.

24. Lord Ashdown visited the region in June 1998.⁵¹ The Yugoslav Government had refused Lord Ashdown a visa to enter Kosovo, so he observed the operations of the KLA from the Albanian side of the border.⁵² He noted the extent of the KLA’s operations and witnessed an extensive passage of arms across the border; and it appeared to him that "the KLA were well organised".⁵³ Lord Ashdown called the village of Tropoj?, in Albania, an "arms supermarket"; weapons were brought up by (probably) criminal organisations, and the KLA would send runners with orders of weapons.⁵⁴ He thus concluded that the KLA was visible and organised, had support, and was exporting and collecting arms.⁵⁵ Mr. Buja became aware of the existence of the KLA in 1996 and began supporting it.⁵⁶ In 1998, Mr. Buja was given instructions by the KLA headquarters, and he confirmed that during this time the KLA had an official structure.⁵⁷ From June 1998, he became the commander of a subzone⁵⁸ and in 1999 was the KLA Commander in Racak.⁵⁹ Dr. Rugova testified that the KLA began as individual groups, but then unified and had a joint command by the end of 1998 and early 1999.⁶⁰ Mr. Merovci testified that, in the course of 1998 and in the beginning of 1999, the KLA was an organised and commanded army.⁶¹ K6 testified that in 1996 the KLA was concentrated in Drenica in Kosovo and that he was aware of plans from 1991 to 1998 to eliminate the KLA, especially in Drenica.⁶²

25. On the basis of this evidence, the Trial Chamber is satisfied that the conflict in Kosovo meets the first element of the Tadic test."

"50. Motion, at para. 31(iii) (Amici Curiae emphasis omitted).

51. T. 2336.

52. T. 2341.

53. T. 2341.

54. T. 2342.

55. T. 2342-2343.

56. T. 6301.

57. T. 6303.

58. T. 6304.

59. T. 6296-6297.

60. T. 4263; referenced in Amici Curiae Motion, Annex 1, at pp. 28-29.

61. T. 5490-5491; referenced in Amici Curiae Motion, Annex 1, at p. 29.

62. T. 6594."

P.21. Evidence of the issuance of political statements

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 101-103:

101. Further, it was the General Staff that issued political statements and communiqués which informed the general public in Kosovo and the international community of its objectives and its activities. Political Statement No 2 of the KLA, issued by the General Staff on 27 April 1998 and published in the Kosovo newspaper "Bujku" two days later, described the KLA and its political goals as follows:341

The KLA constitutes the integrity of the armed forces of Kosovo and its occupied territories, and its aim is the liberation and unification of the occupied territories of Albania.

Political Statement No 2 further proclaimed that the KLA had a defending and liberating character and that it condemned terrorism and other forms of violence over civilians and prisoners of war.342 102. From early June 1998 the KLA had an official spokesperson, Jakup Krasniqi,343 whose duties were to communicate with the domestic and foreign media based in Kosovo and to present the KLA’s political program.344 Jakup Krasniqi was a member of the General Staff.345

103. The communications between the KLA and the public were generally conducted by communiqués. As a general rule the communiqués were issued by the General Staff. Infrequently, communiqués were released by a zone commander acting without the knowledge of the General Staff. This was explicitly stated in such a communiqué.346 From the end of 1997 to August 1998 the General Staff of the KLA issued dozens of communiqués reporting military actions and operations undertaken by the organisation.347

341 Exhibit P142, Point 1; Jakup Krasniqi, T 3371-3373.

342 Exhibit P142, Points 2 and 3. 343 Jakup Krasniqi, T 3311.

344 Jakup Krasniqi, T 3311-3313.

345 Jakup Krasniqi, T 3310-3311.

346 Jakup Krasniqi, T 3314-3315.

347 Jakup Krasniqi, T 3319-3340.

Prosecutor v. Idriz Balaj et al., Case No. IT-04-84-T, Judgement (TC), 3 April 2008, para. 88:

"88. Ability to speak with one voice. Jakup Krasniqi testified that during 1997 and until 1998, he was involved in issuing political statements on behalf of the KLA. Until 11 June 1998, KLA communiqués were issued by KLA units on behalf of the KLA General Staff. KLA communiqués aimed to inform the public of KLA activity, but were also used as propaganda, exaggerating the successes and the organizational level of the KLA while downplaying its failures and losses, in order to boost KLA morale, raise KLA standing and encourage recruitment. The Trial Chamber has received into evidence KLA communiqués dated between June 1995 and August 1998."

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 269:

"269. The NLA issued a number of communiqués during the course of 2001, most of them signed by Ali Ahmeti. These communiqués were the NLA’s primary vehicle of communication to the public. A communiqué of 9 March set out the goals of the group. One dated 9 May informed about the NLA’s structure and hierarchy. The weaponry and manpower of the NLA was communicated in a communiqué of 10 May signed by Ostreni. A communiqué was issued proclaiming the appointment of Mevlud Aliu as NLA political representative in Turkey and the Middle East.There is no further evidence as to the existence of this political representative or any activities undertaken in Turkey or the Middle East, although Gzim Ostreni testified that almost all the countries of Europe as well as the United States had had political representatives appointed to them. Another communiqué explained that the NLA withdrawal from Aračinovo was voluntary and done on the basis of negotiations with the EU and NATO. On 14 August, Ahmeti issued a communiqué to inform about the agreement between the NLA and the NATO about the demilitarisation and disarmament of the NLA."

P.22. Evidence of the existence of military regulations

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 110-111:

110. The KLA Regulations further support the existence of such an organisational structure and hierarchy. Although the Regulations are dated "1998" and the precise date of their promulgation is not identified, the Chamber accepts from the evidence, and finds, that at least by the end of June 1998 these Regulations were available and were being distributed among KLA soldiers at various positions. This is supported by the evidence of Ramiz Qeriqi, aka Luan, who testified that at the end of June 1998 he and Shukri Buja had the Regulations and had to give a copy of these Regulations to every soldier. Fatmir Limaj also testified that at the end of June 1998 he received the KLA Reguslations.

111. The Regulations, inter alia, established several ranks of KLA servicemen, defined the duties of the unit commanders and deputy unit commanders, as well as the duties of the company, platoon, and squad commanders, and created a chain of military hierarchy between the various levels of commanders. It was declared in the Regulations that "obedience, respect and orders strictly follow the chain of military hierarchy." The Regulations authorised an officer at a higher level "to demand from an officer beneath him the enforcement of the law, of regulations, of orders, instructions, etc." and provide that "a junior officer is obliged to carry out orders, decisions, instructions, etc." Further, the Regulations contained explicit provisions directed to guaranteeing that orders would be executed down the hierarchy.

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 272-274:

"272. To establish a functioning organisational system the Prosecution seeks to rely on a number of the rules and regulations which are said to have been applicable to the NLA in 2001. These informal regulations and rules, inter alia, purport to establish a chain of command defining the duties of each level; oblige unit commanders to ensure implementation of the regulations; lay down provisions on disciplinary measures such as detention or arrest; inform the Brigade commanders of their duty to respect civilians and civilian property as well as the obligation to observe the laws of war and international conventions during any military engagements; and recognise the jurisdiction of the ICTY over any crimes committed by NLA members. Gzim Ostreni, who says he created the documents in March, April and May 2001, testified that he did indeed use KLA, KPC, Albanian and SRFY regulations as sources.

273. A review of these documents leaves the Chamber with the clear impression that some of these rules and regulations were merely copies of documents of the KLA, KPC, or other similar forces and had not been devised for or adapted to the circumstances in FYROM or the needs of the NLA. Even taking into account the fact that both the NLA and the KLA share the same acronym "UČK" in Albanian, the Chamber notes that many references to "Kosovo" in the purported documents of the NLA supports the view that most of these were merely KLA documents with an NLA heading or front cover. For example, a document entitled "Order on the Internal Life of the NLA" provides for rules in the military barracks, dormitories and related issues, yet the evidence suggests that the NLA did not have such facilities in FYROM. Further, Exhibit P461, a document entitled "Regulation on the Competencies and Work of the Brigade Command", which describes the functions and responsibilities of Brigade officers, inter alia, speaks of the obligation of members to "carry out their duties and obligations in line with the Constitution […]", whereas the goals of the NLA, as stated in the Prizren Agreement, included a change to the constitutional order of FYROM. Another document, entitled "Regulations for the Criteria Involved in the Classification of Information of Importance to the NLA which Must be Kept as Military or State Secret and Methods Entailed in the Preservation thereof" refers to the NLA’s "preparation for the defence and safety of the country", whereas it is clear that at the time the NLA was in confrontation with FYROM security forces which by definition had the purpose to guarantee the safety and defence of the country, and the NLA could not be the custodian of "State Secrets".

274. What remains pertinent to the Chamber is whether or to what extent these rules and regulations had actually been applied in practice by the NLA Brigades. In this regard, Nazim Bushi, the commander of the 114th Brigade, testified that he was familiar with the regulations and Gzim Ostreni testified that the Brigades followed the instructions by the General Staff and the NLA regulations. Although, apart from this, there is no direct evidence that these rules and regulations were distributed and implemented throughout the NLA units and structures, the NLA has been described in a NATO document prepared in 2001 and accepted as reliable as "a well armed, well disciplined and a highly motivated organisation" with "a highly developed basic level of organisation and discipline" which allows the group to function effectively at the tactical level. This suggests that while the full content of the purported "Rules" and "Regulations" of the NLA does not credibly reflect the degree of organisation of the NLA, there was nonetheless a basic system of discipline within the NLA that allowed it to function with some effectiveness."

P.23. Evidence of the ability to recruit, equip and train new members

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 118-124:

118. Of further relevance to the extent and effectiveness of the KLA’s organisation at the relevant time is its ability to recruit new members. While the events in Kosovo from early 1998 had a positive impact on KLA membership,405 it is apparent from the evidence that the KLA’s General Staff made a consistent effort to persuade people to join the organisation. On 15 June 1998 at his first public statement as the official spokesperson of the KLA, made on Albanian television and reprinted in the Kosovo’s newspaper "Bujku," Jakup Krasniqi presented part of the KLA’s programme and called on the people of Kosovo to join the KLA.406 He further testified that the aim of the KLA communiqués, as a propaganda material, was to increase the respect and authority of the KLA in the perception of the citizens, in order that the people would believe in it and would join. Indeed, the number of people joining the KLA was increasing rapidly. Reports of the VJ indicate that during the relevant period the KLA mobilised between 3500 and 4500 men.409

119. The evidence confirms that, generally, upon joining the KLA soldiers were provided with military training. As an illustration of this, after he registered with the KLA in mid May 1998, L95 received weapon and other training. A training centre for volunteers was also set up in Klecka/Klecka by Fatmir Limaj. Ajet Kastrati was appointed by him to be responsible for the training there. Basic military training of KLA forces was provided in the Albanian villages of Tropolja, Kukes, and Bajram Curi.

120. At the end of June 1998 three experienced military officers, Bislim Zyrapi, Agim Qelaj, and a person identified only as "Hans" were sent by the General Staff to Klecka/Klecka and various other points including Lapushnik/Lapusnik, to assess the armament of the KLA soldiers and to give advice to the respective unit commanders on matters such as training, tactics, and the placement of defensive positions.

121. In early 1998, including the period material to the Indictment, the KLA had mostly light weapons. KLA soldiers were normally armed with AK-47 rifles, a standard weapon for the region, and rocket propelled grenades. Other KLA armaments in limited supply were pistols, semi-automatic and automatic rifles,416 some anti-tank weapons,417 light infantry weapons of 7.62 and 7.9 calibre, other hand held weapons,418 some 60 mm and 82 mm mortars, as well as 150 mm and 250 mm mortars, hand grenades and some mines.

122. Most of the KLA weapons were supplied from Albania. Some weapons also came from Kosovo, as civilians who possessed weapons surrendered them to the KLA. These were often hunting rifles. The KLA also used weapons of Yugoslav manufacture. In the initial stages at least, many point and area commanders sought weapons on their own initiative. Others only recruited those who came with their own weapon.424 At the same time and increasingly by May 1998 and thereafter, as discussed earlier, the General Staff was directly active in securing supplies of weapons and ammunition and their distribution.

123. The evidence varies considerably as to the supply and use of uniforms in the KLA in the period before August 1998. Some evidence indicates that by February 1998 most of the KLA soldiers had uniforms with badges identifying their allegiance, although the evidence indicates that the military uniforms were of varying nature. Some KLA soldiers wore some self-made uniforms. Others had no uniforms at all. As with most things the position regarding uniforms improved as the end of 1998 neared. While the existence of a uniform may be indicative of the existence of a well-organised entity, in the view of the Chamber, this factor alone is not determinative in this case of the existence of an organised military structure, as it has little bearing on the functioning of the KLA, especially having regard to its rapid expansion after March 1998 which undoubtedly placed unanticipated strain on the provision of commodities such as uniforms, at a time when other needs were clearly more relevant to the military functioning of the KLA.

124. The evidence is clear that at least until near the end of 1998 the KLA was not adequately equipped with communications equipment, either for linking headquarters with units or between units. For this reason, and because of security, much communication was by means of messenger. There were some radio transmitters, however, and some units came to use two way radios and mobile phones, often provided by individual members. Others relied on basic means, such as gun shots, as a means of communication.

409 Philip Coo, T 5792-5794. See also Exhibit P92, tab 17. The Chamber notes that it is suggested in the evidence that this number may have been exaggerated, Philip Coo, T 5794-5800; John Crosland, T 2009.

Prosecutor v. Idriz Balaj et al., Case No. IT-04-84-T, Judgement (TC), 3 April 2008, para. 83-86 :

"83. Recruits. The first public appearance of the KLA was on 28 November 1997, during the funeral of Halit Geci, when three people wearing KLA uniforms gave a speech calling on the people of Kosovo/Kosova to fight.325 Bislim Zyrapi, a JNA-trained officer, testified that, from late 1997 onwards, KLA representatives attended Albanian clubs around Europe to raise funds and recruit personnel for the KLA. At one such event, in early 1998, Zyrapi was invited by two KLA members, who knew about his military background, to join the KLA. Bislim Zyrapi testified that he moved to Albania in the second half of March 1998. From that time, until 28 May 1998, when the witness crossed into Kosovo/Kosova, he shared an apartment in Tirana with other KLA recruits, including three other former JNA officers. Branko Gajić testified that there was an international network supporting the KLA, which was primarily based in Germany, Sweden, Switzerland, and Albania. This network provided finances for the KLA, recruited new members, organized their training in Albania, before smuggling them across the border to Kosovo/Kosova.

84. The Trial Chamber received differing estimates of the number of KLA recruits in the early months of 1998. Branko Gajić testified that, based on discussions with imprisoned KLA members and those who had contact with the KLA, in January, February, and March 1998, in Kosovo/Kosova, the KLA consisted of up to 3,000 men, (Jakarmed and organized into units, and a further 6,000 to 8,000 men who had weapons and occasionally participated in operations.333 A VJ report, dated 23 February 1998, estimated that, at the end of 1997 and beginning of 1998, there were 200 KLA soldiers in Đakovica/Gjakov?, and in addition a greater number were engaged as farmers by day and KLA soldiers by night. Zoran Stijović testified that by 30 March 1998, the RDB estimated that the KLA had between 50 and 150 militarily trained and well-equipped members in the Jablanica/Jabllanic? area.335 In addition to this core group of members, the KLA was a grassroots organization with supporters in the villages where it was active. According to Jakup Krasniqi before March 1998 there were fewer than 1000 KLA soldiers. John Crosland estimated, based on his field observations, that in the period between March and May 1998 the KLA consisted of a hard core of 400-500 fighters.

85. The second category of KLA recruits, that of villagers volunteering to help the KLA, began to expand considerably in March and April 1998. Jakup Krasniqi testified that from April until August 1998, the KLA became a "people’s army", with a vast increase in the number of KLA volunteers. The number of volunteers was so large that the KLA, General Staff could not arm and discipline them all. Corroboration for this surge in KLA recruitment was provided by Branko Gajić, Zoran Stijović, and Witness 17, who testified that it had already begun as of 5 and 6 March 1998. Witness 28 testified that by the end of April 1998, the KLA were mobilizing the villagers. The evidence examined above in this section of the judgement establishes that Avdullah Avdija, Ylber Haskaj joined the KLA in March or April 1998. Other witnesses who joined KLA during the same period were Zymer Hasanaj, Shaban Balaj,and Ahmet Ukaj.The evidence examined in section 6.4, below, indicates the presense of large numbers of KLA soldiers in Dečani/De?an municipality on 22 April 1998.

86. Military training. As a former police officer, Cuf? Krasniqi started training KLA soldiers in Vranovac/Vranoc, Peć/Pej? municipality, in February 1998.Around this time, the majority of the young men who possessed weapons had not had any training. At first he trained 21 soldiers, but the number grew considerably over time. Cuf? Krasniqi taught them how to use weapons, and how to treat prisoners of war, persons who surrendered, and civilians. Ylber Haskaj testified that around mid-April 1998 he received some basic training in Rznić/Irzniq and then took part in guarding the village. Dragan ?ivanović testified that he received occasional information from VJ, MUP, and RDB sources indicating that, since 28 February 1998, professionals were giving military training to KLA soldiers in several villages in Dečani/De?an municipality. Bislim Zyrapi, who as previously mentioned was in Albania between the second half of March and 28 May 1998, testified that he was frequently visited by members of the KLA’s General Staff for advice on military training. He also secretly took part in the training of approximately 300 KLA recruits in military tactics and the use of weapons. Recruits would receive an average of two weeks’ training. Expenses were covered by the logistics department of the KLA’s General Staff from funds raised abroad."

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, para. 823:

"823. Zyrapi stated that during the period in which he served as KLA Chief of Staff, between November 1998 and March 1999, membership was voluntary, but later there was a general mobilisation.2152 While he was Chief of Staff, the number of KLA soldiers stood at 17,000 to 18,000. He explained that not all were full-time soldiers, due to a lack of equipment. Many people were dealing with logistics issues and supplies. These figures are similar to the estimate given by former VJ Chief of Staff, Perišić, in the directive issued on 28 July 1998, setting out the Grom 98 plan, which stated that the KLA had "15,000 armed personnel, about 5,000 personnel for various forms of logistical support and approximately another 2,500 trained terrorists in the Republic of Albania".

2152 Bislim Zyrapi, T. 6031 (7 November 2006), 6260–6261 (10 November 2006). Zyrapi stated on 10 November that there was not a general mobilization while he was in office, but there was one at a "later phase".

P.24. Evidence of the ability to engage in negotiations

Prosecutor v. Fatmir Limaj et. al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005, paras. 125-128:

125. Indicative of the extent of the KLA’s organisation is its role in the negotiations with representatives of the European Community and foreign missions based in Belgrade. Jan Kickert, a diplomat with the Austrian Embassy in Belgrade, indicated that by the middle of 1998 it had become evident that a solution of the Kosovo crisis would not be achieved without the involvement of the KLA. This was the assessment of his Mission, which is of particular relevance as Austria then had the Presidency of the European Union.

126. In July 1998 at the request of the Secretary-General of the Austrian Foreign Ministry, Albert Rohan, a meeting of representatives of the Missions of States of the European Community with KLA representatives was set up in Malisheve/Malisevo, which was known as the "capital" of the so-called "free territories," i.e. those under the KLA control. The meeting took place on

22 July 1998 and was attended, inter alia, by the Secretary-General of the Austrian Foreign Ministry, Albert Rohan, by the Director of the Balkans Department of the Austrian Ministry of Foreign Affairs, Gerhard Jandl, by Nick Turnbull, Jan Kickert and an observer from the European Community Monitoring Mission ("ECMM"). On the KLA side the meeting was attended by Gani Krasniqi, a civilian and the mayor of Malisheve/Malisevo and Kadri Veseli, who was introduced to the foreign delegation as Number 7.

127. On the following day, 23 July 1998, a second meeting was held. Hashim Thaci, who was introduced as Number 3 and Kadri Veseli, introduced as Number 7 attended the meeting. On 24 July 1998 Jan Kickert prepared a report to the Austrian Ministry of Foreign Affairs indicating, inter alia, that the KLA representatives had informed the Embassy of the KLA’s resolve to cooperate with the other Kosovo parties and to participate in a government of national unity or a round table.

128. On 30 July 1998 a third meeting between representatives of the foreign missions of States of the European Community and the KLA was held in Klecka/Klecka. The meeting was attended by Jan Kickert from the Austrian Embassy and David Slinn from the British Embassy in Belgrade. The KLA was represented by Jakup Krasniqi, the KLA spokesperson, Rame Buja, the person responsible for organising the civil authorities in the so-called free territories, and Fatmir Limaj. At the meeting the creation of a united Kosovar political platform, a delegation from various political entities in Kosovo to enter into negotiations with Belgrade, was discussed. A report to the Austrian Federal Ministry of Foreign Affairs prepared by Jan Kickert on 31 July 1998 indicated that at the meeting the KLA representatives confirmed a change in their tactics and proposed conditions for the KLA not to carry out offensive operations. The report stated:

The KLA representatives who were met with confirmed the change in their tactics: it is clear for them that a conventional war with well-defined front lines is not possible and they will therefore confine themselves to guerrilla actions. The threat was reiterated that actions in big towns, such as Pristina, could always be started.

The report further indicates that the KLA representatives named the following three conditions if the KLA was to exercise restraint: the withdrawal of the Yugoslav army, the return of all expelled persons, and the removal of Serbian checkpoints.

129. As this evidence confirms, by July 1998 the KLA had become accepted by international representatives, and within Kosovo, as a key party involved in political negotiations to resolve the Kosovo crisis. This discloses and confirms that by that time the KLA had achieved a level of organisational stability and effectiveness. In particular this gave it the recognised ability to speak with one voice and with a level of persuasive authority on behalf of its members. Both the KLA’s need for secrecy and the existence of an established hierarchy in its ranks is apparent from the circumstance that individuals involved in negotiations with foreign missions were referred to by a number, apparently corresponding to their level in the KLA hierarchy. Further, from the course of these discussions it appears that the KLA was able to formulate and declare a change of military tactics and also conditions for refraining from further military action. This is indicative that at the time the KLA had the ability to coordinate military planning and activities and to determine a unified military strategy, as well as the ability to conduct military operations of a larger scale.

P.25. Evidence of the use of uniforms

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, paras. 837-839:

"837. The Chamber heard various accounts from witnesses concerning the style of KLA uniforms and the frequency of their use. According to Zyrapi, by March 1999 85-90 percent of KLA soldiers had a military uniform and the remainder wore improvised uniforms with KLA emblems. These uniforms were of various colours, but everybody had the same KLA emblem on the left arm, which was red with a black eagle in the centre and read "KLA, Kosovo Liberation Army", and that applied "regardless of whether it was a standard uniform or improvised one". K14 testified that some KLA members who wore civilian clothes also wore "head gear". According to Zyrapi, the same KLA emblem was also on the head gear. He confirmed that the KLA lacked sufficient uniforms due to a limit on the supplies available.

838. Some witnesses observed that not all KLA members wore uniforms.2214 For example, KLA doctor Liri Loshi testified that wounded KLA fighters whom he treated were often wearing a uniform, although some KLA members, such as himself, wore civilian clothes.

839. Zyrapi testified that the KLA had both camouflage and non-camouflage uniforms. These uniforms were of a variety of colours, since they were received from various countries and various armies. Witness K73, a member of the VJ who was deployed in Kosovo, testified that, when he encountered the KLA, they were wearing German uniforms with an "U?K" emblem on them.According to K79, a member of the PJP in 1998 and 1999, KLA members either wore blue work uniforms or green or brown camouflage uniforms. Evidence led by the Defence also supports the notion that the nature of KLA uniforms varied. Shaban Fazliji testified that the KLA wore three different types of uniform – initially black with a black balaclava, then Serbian police uniforms, and then "all kinds of uniforms." Other witnesses also testified that the KLA used police uniforms. Vladimir Marinković, Head of intelligence for the 15th Armoured Brigade, testified that the KLA wore olive-green M-77 uniforms, of the type worn and previously discarded by the old Yugoslav Army (JNA) and the Territorial Defence.2221 Dragan Milenković, a member of the PJP in Peć/Peja, indicated that they came across both Chinese and German-made uniforms discarded by the KLA."

3.2."In the context of": Temporal and geographical scope of the application of international humanitarian law [Temporal and geographical scope of armed conflict][8]

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

"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."

3.2.1.Evidence of temporal scope of the application of international humanitarian law [Evidence of temporal scope of armed conflict][9]

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 194:

"194. With regard to Vojvodina,¹⁴⁹ the majority, Judge Lattanzi dissenting, wishes first to stress that it was not an area of armed conflict. Moreover, the majority does not find that any effort was made by the Prosecutor to submit to, even less convince, the Chamber that there was an undeniable nexus between the conflict in Croatia and in BiH and the situation in Vojvodina. The Chamber could not infer this nexus solely from the presence of Serbian refugees coming from Croatia to Hrtkovci. It is all the more unable to do so since the Prosecution remained silent on the specific circumstances that surrounded the deportation of these Serbian refugees from Croatia. Were these acts of war or simply acts of reinforcing their identitarian closure that preceded the open conflict? No evidence was offered on this point.¹⁵⁰"

"149. In regard of Vojvodina, the Chamber relied on the following evidence: Ewa Tabeau; Katica Paulić; Aleksa Ejić; Franja Baričević; Goran Stoparić; VS-007; VS-061 (T(E) 10014-1016); VS-067; VS-1134; C26 under seal; P31; P164; P547; P549; P550; P551 under seal; P554; P555; P556; P557; P558; P559; P560; P561; P564 under seal; P565; P566; P631; P1049 under seal; P1050 under seal; P1104 under seal; P1330.

150. VS-061 agreed with the Accused on the fact that many of the Serbian refugees had come from the municipality of Grubišno Polje in Western Slavonia where there had never been any fighting. See VS-061, T(E) 10015 ff."

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009, para. 1217:

1217. […]Importantly, it has been established beyond reasonable doubt that an armed conflict existed on the territory of Kosovo at all times relevant to the Indictment period, starting in 1998 and continuing into 1999 and ending with the cessation of the NATO bombing campaign."

P.26. Evidence of the timing of the initiation of hostilities.

P.27. Evidence of the timing of the cessation of hostilities.

P.28. Internal armed conflict: Evidence of the timing of the achievement of a peaceful settlement beyond 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.⁴⁶A 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 Bobetko’s 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 Bobetko’s 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 Bobetko’s role in its consideration of this question.¹⁴⁴"

144. Blaskic Trial Judgement, para. 112."

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 970:

"970. The Chamber notes that the Defence admitted that, at the time of the events alleged in the Indictment, there existed an internal armed conflict meeting the temporal and territorial requirements of both Common Article 3 and Additional Protocol II. Further, evidence presented during the trial, in particular the testimony of Musema, demonstrated the full extent of the conflict between the dissident armed forces, the FPR, and the Government forces, the FAR, in Rwanda throughout the period the offences were said to have been perpetrated."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 182-183:

"182. In spite of the fact that there is no clear provision on applicability ratione loci either in Common Article 3 or Protocol II, the juridical situation is rather clear. The Chamber has to recall that two Parties in the armed conflict were legally bound by the provisions of these international instruments. Therefore, in accordance with requirements of international public law, these instruments should be applicable in the whole territory of Rwanda. Moreover, in Article 4 of Protocol II, which in principle reproduces Common Article 3, there is a clear indication that the enumerated criminal acts "shall remain prohibited at any time and in any place whatsoever." Therefore, it is unnecessary that serious violations of Common Article 3 and Protocol II occur in the actual theatre of operations. Captured persons, for example, could be brought to other locations of the territory, but despite this relocation, they should be treated humanely. The expression "at any time whatsoever" means that the temporal factor does not assume a narrow interpretation. This approach was confirmed by the ICTY Appeal Chamber in its decision on jurisdiction in the Tadic Judgement wherein it was held that,

183. The Appeal Chamber also remarked in this paragraph that "like Common Article 3, it explicitly protects all persons who do not take a direct part or who have ceased to take part in the hostilities...Article 2(1) [of Protocol II] provides 'this Protocol shall be applied [...] to all persons affected by an armed conflict as defined in Article 1'." After quoting Article 2(2) of Protocol II about persons who have been deprived of their liberty the Appeals Chamber noted that "under this last provision the temporal scope of the applicable rules clearly reaches beyond the actual hostilities...The nexus required is only a relationship between the conflict and the deprivation of liberty, not that the deprivation occurred in the midst of battle." [Emphasis added]. On the basis of the foregoing, the Appeal Chambers came to the conclusion that in case of internal conflict, until a peaceful settlement is achieved, international humanitarian law continues to apply in the whole territory under the control of a Party, whether or not actual combat takes place there and the crimes committed in these circumstances should be considered as crimes "in the context of an armed conflict."⁶⁷ Thus, the Appeals Chamber found that the alleged crimes should not be considered in the narrow geographical and temporal framework and should be understood as crimes committed in the context of an armed conflict if there is a relationship between this conflict and the offence."

"66. ICTY Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, para. 69.

67. Ibid. para. 70."

Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (AC), 2 October 1995, paras. 67, 69-70:

"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.

[…]

69. The geographical and temporal frame of reference for internal armed conflicts is similarly broad. This conception is reflected in the fact that beneficiaries of common Article 3 of the Geneva Conventions are those taking no active part (or no longer taking active part) in the hostilities. This indicates that the rules contained in Article 3 also apply outside the narrow geographical context of the actual theatre of combat operations. Similarly, certain language in Protocol II to the Geneva Conventions (a treaty which, as we shall see in paragraphs 88 and 114 below, may be regarded as applicable to some aspects of the conflicts in the former Yugoslavia) also suggests a broad scope. First, like common Article 3, it explicitly protects "[a]ll persons who do not take a direct part or who have ceased to take part in hostilities." (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 12 December 1977, art. 4, para.1, 1125 U.N.T.S. 609 (hereinafter Protocol II). Article 2, paragraph 1, provides:

The same provision specifies in paragraph 2 that:

Under this last provision, the temporal scope of the applicable rules clearly reaches beyond the actual hostilities. Moreover, the relatively loose nature of the language "for reasons related to such conflict", suggests a broad geographical scope as well. The nexus required is only a relationship between the conflict and the deprivation of liberty, not that the deprivation occurred in the midst of battle.

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."

3.2.2.Evidence of geographical scope of the application of international humanitarian law [Evidence of geographical scope of armed conflict][10]

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 194:

P.29. Internal armed conflict: Evidence of the location of the commission of the crime being within the territory under the control of a party to the conflict, 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:

"46. Ibid.

47. See Trial Judgement, para 568.

48. Tadic Jurisdiction Decision, para 70."

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. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 970:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 182-183

183. The Appeal Chamber also remarked in this paragraph that "like Common Article 3, it explicitly protects all persons who do not take a direct part or who have ceased to take part in the hostilities...Article 2(1) [of Protocol II] provides 'this Protocol shall be applied [...] to all persons affected by an armed conflict as defined in Article 1'." After quoting Article 2(2) of Protocol II about persons who have been deprived of their liberty the Appeals Chamber noted that "under this last provision the temporal scope of the applicable rules clearly reaches beyond the actual hostilities...The nexus required is only a relationship between the conflict and the deprivation of liberty, not that the deprivation occurred in the midst of battle."[Emphasis added]. On the basis of the foregoing, the Appeal Chambers came to the conclusion that in case of internal conflict, until a peaceful settlement is achieved, international humanitarian law continues to apply in the whole territory under the control of a Party, whether or not actual combat takes place there and the crimes committed in these circumstances should be considered as crimes "in the context of an armed conflict."⁶⁷ Thus, the Appeals Chamber found that the alleged crimes should not be considered in the narrow geographical and temporal framework and should be understood as crimes committed in the context of an armed conflict if there is a relationship between this conflict and the offence."

"66. ICTY Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, para. 69.

67. Ibid. para. 70."

Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (AC), 2 October 1995, paras. 67, 69-70:

[…]

The same provision specifies in paragraph 2 that:

3. The conduct took place in the context of and was associated with an armed conflict not of an international character.3.3. "Was associated with": Nexus between the crime and the armed conflict [an armed conflict playing a substantial part in the perpetrator’s ability to commit a crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed[11] (the fact that the perpetrator acted in furtherance of or under the guise of the armed conflict)[12].]

A. Legal source/authority and evidence:

Prosecutor v. Ljube Boškoski 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 perpetrator’s 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 perpetrator’s 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 perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed".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.¹¹⁸⁷The 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. George Rutaganda, Case No. ICTR-97-20-A, Judgement (AC), 26 May 2003, paras. 569-570:

"569. The Appeals Chamber of the ICTR has not previously endorsed a particular definition of the nexus requirement.1066 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.1067 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.

1066. In the Akayesu case, the ICTR Appeals Chamber observed that "common Article 3 requires a close nexus between violations and the armed conflict." (Akayesu Appeal Judgement, para. 444.) It then stated: "This nexus between violations and the armed conflict implies that, in most cases, the perpetrator will probably have a special relationship with one party to the conflict. However, such a special relationship is not a condition precedent to the application of common Article 3 and hence of Article 4 of the Statute." (Idem). The Appeals Chamber expressly noted that the definition of the nexus requirement had not been raised on appeal. (Idem, Footnote 807) Trial Chambers of this Tribunal have four times considered charges under Article 4 of the Statute in their judgements. The definitions of the nexus requirement used in the four cases were similar but not identical to each other. In the Akayesu case, the Trial Judgement stated that the nexus requirement means that the acts of the accused have to be committed "in conjunction with the armed conflict." (Akayesu Trial Judgement, para. 643) In Kayishema-Ruzindana, the Trial Chamber used four different formulations to characterize the nexus requirement, apparently considering them synonymous. It sometimes stated that there must be "a direct link" or "a direct connection" between the offences and the armed conflict. (Kayishema-Ruzindana Trial Judgement, paras. 185, 602, 603, 623 ["direct link"]; 188, 623 ["direct connection"]. It also stated that the offences have to be committed "in direct conjunction with" the armed conflict. (Idem, para. 623). Finally, it stated that the offences had to be committed "as a result of" the armed conflict". (Idem). In the Musema case, the Trial Chamber took the view that the offences must be "closely related" to the armed conflict. (Musema Trial Judgement, para. 260). In the Ntakirutimana Case (currently on appeal), the Trial Chamber acquitted one of the accused of the count under Article 4(a) of the Statue based, inter alia, on the Prosecution’s failure to establish a nexus between the offence and the armed conflict, but it offered no definition of the nexus requirement. (Elizaphan and Gérard Ntakirutimana Trial Judgement, para. 861).

1067. Tadić Appeal Judgement, 2 October 1995, para. 70.

1068. Kunarac Appeal Judgement, paras. 58 to 59. Before and after these paragraphs, the ICTY Appeals Chamber stated the following:

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:

"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.¹⁵The 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.¹⁶As 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 perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. The Trial Chamber’s finding on that point is unimpeachable."

Knut D?rmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p. 19:

[…]

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:

15. Tadic, Interlocutory Appeals Decision on Jurisdiction, supra note 5, paras. 70 and 68, respectively."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 441-442:

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

''442. In relation to the nexus requirement, while there must be a connection between the alleged offences and the armed conflict, the Prosecution need not establish that the armed conflict was causal to the commission of the crime. However, it needs to be shown that the conflict played a substantial part in the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed, or the purpose for which it was committed. To find a nexus, it is sufficient that the alleged crimes be closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.''

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.30. 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. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, paras. 2234-2236:

"2234. For the most part, soldiers, often from elite units, were the main perpetrators of the crimes or acted in conjunction with gendarmes and militiamen. The participation of military personnel in the attacks substantially influenced the manner in which the killings and other crimes were executed.

2235. With respect to crimes committed at roadblocks, the Chamber has highlighted their relationship to the military’s civil defence efforts and noted the frequent mixing of military and civilian personnel at them. The evidence shows that the pretext of the killings at them was to identify RPF infiltrators. The dispatch of militiamen, trained by military authorities in Gisenyi, to Bisesero was done to ostensibly assist with an operation against RPF operatives in the area.

2236. In the Chamber’s view, the military and civilian assailants were acting in furtherance of the armed conflict or under its guise. Accordingly, the Chamber finds it established that the alleged violations of Articles 4 (a) and 4(e) of the Statute had the requisite nexus to the armed conflict between Rwandan government forces and the RPF.[...]"

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 perpetrator’s official duties."

Prosecutor v. Anto Furundžija, 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."

Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, para. 987:

“987. The Trial Chamber further finds, based on the affiliation of the perpetrators and the manner in which the acts took place, that there was a close relationship between the killings and the armed conflict.”

P.31. Evidence of the status of the victim or victims (as non-combatant).

A. Legal source/authority and evidence:

The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para.569.

569. As a result of the shelling on 2 May 1995 at least 146 people were injured. According to the report prepared by the Croatian Ministry of Health, the vast majority of victims of this shelling were civilians. At the time that this issue was adjudicated by the Martic Trial Chamber in 2007, many of those who were injured still suffered from the injuries sustained on that day. The Trial Chamber also finds beyond a reasonable doubt that the civilian victims of the attack were not taking active part in hostilities.

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:

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 Furundžija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, para. 65:

P.32. Evidence showing that the victim was a member of the forces of the opposing party.

A. Legal source/authority and evidence:

The Prosecutor v. Momcilo Perisic, Case No. IT-04-81, Judgement (TC), 6 September 2011, para. 731-32.

731. The alleged victims of the crimes in this case were Bosnian Muslims captured by VRS and/or MUP forces in the course, or aftermath, of combat activity. Based on the evidence set out above regarding the capture, detention and killing of Bosnian Muslims, the Trial Chamber finds that the underlying crimes alleged in the Indictment were closely related to the armed conflict.

732. The alleged victims of the crimes were persons taking no active part in hostilities at the time the relevant crimes were committed. Based on the evidence set out above regarding the capture, detention and killing of Bosnian Muslims, the Trial Chamber finds that this additional requirement under Common Article 3 is fulfilled.

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:

P.33. 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:

P.34. Evidence showing that the crime was committed as part of, or in the context of, the perpetrator’s 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:

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 Furundžija, 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."

P.34.1. Evidence of the perpetrator’s official position in an organisation and the activities done by the organisation.

P.34.2. Evidence showing that the organisation in which the perpetrator served as president issued the ultimatum to the residents of a town that they should surrender their weapons or suffer the consequences.

A. Legal source/authority and evidence:

Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, paras. 569 and 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.¹¹⁸⁷The 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.¹¹⁹⁵Moreover, 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.35. Evidence of the perpetrator’s 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.¹¹⁵The 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 Accused’s relationship with the Paramilitary Group led by Milan Lukic"

P.36. 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.37. 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:

P.38. Evidence of the circumstances in which the crime was committed.

Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Judgement – Volume 1 (TC), 31 March 2016, para. 201:

"201. It is therefore established, in the view of the Chamber that: (i) an armed conflict existed in Croatia¹⁵⁹ and in BiH¹⁶⁰ in the period covered by the Indictment; (ii) the crimes charged in the Indictment as violations of the laws or customs of war were committed by members of the Serbian forces in furtherance of the armed conflict or as a result thereof."

P.38.1. In the case of torture inflicted during the interrogation, evidence of the nature of interrogation.

P.38.2. Evidence of the contents of the questions asked during the interrogation: questions about the victim’s link to the enemy and about the activities of the enemy.

P.38.3. Evidence of the perpetrator’s participation in expelling civilians from their homes.

P.38.4. Evidence showing that the victims were living within the relevant territory in the relevant period.

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:

Prosecutor v. Anto Furundžija, 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

[…]

"61. T. 403.

62. T. 406.

63. T. 406-409.

64. T. 326-328."