Table of contents:
Element:
1. The conduct took place in the context of and was associated with an international armed conflict.
In the Mbarushimana Decision on the Confirmation of Charges, the Pre-Trial Chamber held that:
"Furthermore, article 8(1) of the Statute states that the Court "shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes". The article therefore does not articulate a strict requirement for the exercise of the Courts jurisdiction over war crimes only in these circumstances, but only gives "a particular guideline for the Court". Accordingly, a single act could also amount to a war crime within the jurisdiction of the Court if it was committed in the context of and was associated with an armed conflict." [32]
1.1. Existence of an "international armed conflict"
In the words of the Appeals Chamber in the Tadić Appeals Judgment,
"It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State."[1]
In order to determine whether a conflict which involves different forces from within the same state fighting each other should be regarded as international, the Appeals Chamber of the ICTY in Tadić focused on the international law doctrine of state responsibility:
"The Appeals Chamber thus considers that the Third Geneva Convention, by providing in Article 4 the requirement of 'belonging to a Party to the conflict', implicitly refers to a test of control."[2]
The test adopted by the Tadić Appeals Chamber for control over subordinate military forces is the one we use and we refer to it as the "overall control" test:
"In sum, the Appeals Chamber holds the view that international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. The extent of the requisite State control varies. Where the question at issue is whether a single private individual or a group that is not military organised has acted as a de facto State organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question; alternatively, it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue. By contrast, control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, co-ordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts."[3]
"Of course, if, as in Nicaragua, the controlling State is not the territorial State where the armed clashes occur or where at any rate the armed units perform their acts, more extensive and compelling evidence is required to show that the State is genuinely in control of the units or groups not merely by financing and equipping them, but also by generally directing or helping plan their actions..."[4]
"Where the controlling State in question is an adjacent State with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls, it may be easier to establish the threshold."[5]
The Naletilić and Martinović ("Tuta and Štela") Appeals Chamber precised:
"Naletilić's and Martinović's assertions that they 'cannot be held responsible for the character of the armed conflict' because it was beyond their knowledge mischaracterise the Trial Chamber's findings. They were not found responsible for the fact that the conflict was international, but rather for the crimes committed in the context of the international armed conflict."[6]
The Prlić Trial Chamber established:
"The Chamber wants to recall that an armed conflict that starts on the territory of a state and that is internal at the beginning can nonetheless be considered as an international conflict if the troops of another state intervene in that conflict or if some actors of the internal armed conflict act on the behalf of this other state. This intervention must be proven in facts to conclude that an international armed conflict occurred. The Chamber recalls that in order to determine if the conflict presents an international character, it must ne considered as a whole and that it is not necessary to prove the presence of troops belonging to the foreign army in each of the places where crimes are charged."[7]
1.1.1. Evidence of an "armed conflict" falling into art. 8(2)(b)
According to the Pre-Trial Chamber in Katanga and Chui:,
"there is sufficient evidence to establish substantial grounds to believe that between August 2002 and May 2003, an armed conflict took place in the territory of Ituri between a number of local organised armed groups [...]. These armed groups:
"(ii) had the capacity to plan and carry out sustained and concerted military operations, insofar as they held control of parts of the territory of the Ituri District."[8]
ICTY
The term "armed conflict" was defined in the Tadić Appeals Decision on Jurisdiction:
"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. 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."[9]
The Pre-Trial Chamber in Katanga and Chui stated that:
"There is [...] sufficient evidence to establish substantial grounds to believe that Uganda directly intervened in this armed conflict through the Ugandan People Armed Forces ("the UPDF"). The evidence presented establishes direct participation of significant numbers of UPDF troops in several military operations on behalf of different armed groups [...]. There is also sufficient evidence to establish substantial grounds to believe that Uganda was one of the main supplier of weapons and ammunitions to these armed groups and that the respective recipients' ability to successfully attack other groups was aided by this Ugandan military assistance. As a result, the Chamber finds that there is sufficient evidence to establish substantial grounds to believe that the conflict that took place in Ituri District between, at least, August 2002 and May 2003, was of an international character."[10]
While citing to the Commentary on the Geneva Convention, the Pre-Trial Chamber in Lubanga held that:
"any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how mush slaughter takes place. The respect due to human personality is not measured by the number of victims."[11]
In the Katanga Trial Judgement, the Trial Chamber held that:
"To assess if an international armed conflict exists by reason of the indirect participation of a State, the Chamber must analyse and appraise the degree of control exerted by that State over one of the armed groups participating in the hostilities. In appraising the degree of such control, Trial Chamber I held the "overall control" test to be the correct approach, allowing a determination as to whether an armed conflict not of an international character has become internationalised due to the involvement of armed forces acting on behalf of another State. That test is met when the State "has a role in organising, co-ordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group". It is not required that the State give specific orders or direct each military operation."[31]
For instance, the Prlić Trial Chamber stated:
"The Chamber realize that the Minister of Defense of Croatia was also furnishing arms and materials and was transferring money to the HVO."[12]
"Element of evidence also indicate that croatian leaders, in particular Gojko Šušak, Mate Granić et Franjo Tuđ;man had a decisive influence of the decisions relative to the political structure of the HR H-B and to the appointment of his higher officials."[13]
ICC
According to the Pre-Trial Chamber in Katanga and Chui:
"The Chamber has defined that a crime has taken place in the context of, or in association with an armed conflict where 'the alleged crimes were closely related to the hostilities.' This means that the armed conflict'"must play a substantial role in the perpetrator's decision, in his ability to commit the crime or in the manner in which the conduct was ultimately committed.' It is not necessary, however, for the armed conflict to have been regarded as the ultimate reason for the criminal conduct, nor must the conduct have taken place in the midst of the battle."[14]
ICTY
In the Tadić Jurisdiction Decision, the Appeals Chamber stated that:
"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."[15]
The Trial Chamber in the Vasiljević Case referred to the Kunarac Appeals Judgment and pointed out that:
"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."[16]
The Vasiljević Trial Chamber observed that the:
"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."[17]
The Kunarac Appeals Chamber ruled that a sufficient link exists if it is shown, inter alias, that:
"e) the crime was committed as part of or in the context of the perpetrator's official duties."[18]
These factors are not determinative or exhaustive criteria; in particular, there is no requirement that the accused be a combatant. On that issue, the Akayesu Appeals Chamber stated:
"The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category."[19]
According to the Kunarac Appeals Chamber,
"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 the crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict."[20]
According to the Mucić et al. ("Čelebići") Trial Judgment,
"This Trial Chamber shares the view of Trial Chamber II in the Tadić Judgment, where it stated that it is not necessary that a crime "be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict." Such a requirement would indeed serve to detract from the force of the concept of individual criminal responsibility."[21]
The Mrkštić et al. Trial Chamber concluded:
"the Chamber is satisfied that the requisite nexus between the conduct alleged in the Indictment and the armed conflict for the purposes of Article 3 of the Statute has been established. As discussed elsewhere, after the capitulation of the Croat forces the victims, as alleged in the Indictment, were selected by members of the Serb forces having regard, inter alia, to their ethnicity and their known or believed involvement in the Croat forces in the conflict. They were searched for weapons, placed under guard by Serb forces and taken by Serb forces eventually to the place where the crimes alleged in the Indictment were committed. While those matters are sufficient to establish the necessary nexus under Article 3 of the Statute, the Chamber would add its further finding that the primary motive for the offences was revenge or punishment because the victims were known or believed to have been in the Croat forces."[22]
ICTR
The Bagosora et al. Trial Chamber found:
"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. In the Chamber's view, the military and civilian assailants were acting in furtherance of the armed conflict or under its guise."[23]
The Nyiramashuko et al. Trial Chamber added:
"In discussing the nexus requirement, the Appeals Chamber has stated that this element 'would not be negated if the crimes were temporarily and geographically remote from the actual fighting. It would be sufficient, for instance, [...] that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict'."[24]
The Setako Appeals Chamber similarly found:
"The Appeals Chamber does not see any error in this approach. In addition, the Appeals Chamber notes that the perpetrators of the killings at Mukamira camp were assailants stationed at the camp. Witnesses SLA and SAT testified that, prior to the killings and during their combat training, soldiers and civil defence force recruits were told to consider Tutsis and RPF allies to be the enemy and that, on 25 April 1994, Setako pointed to Tutsis as the target for the soldiers and civil defence force recruits assembled. These elements establish that the 25 April Killings were closely related to the hostilities. It is immaterial that, as asserted by Setako, at that point in time there may have been no fighting between the RPF and the Government Forces in the area of Mukamira camp, given that hostilities were taking place in other parts of the territory controlled by the parties to the conflict."[25]
Footnotes:
[1] ICTY, Tadić Appeal judgment, 15 July 1999, para. 84.
[2] ICTY, Tadić Appeal judgment, 15 July 1999, para. 95.
[3] ICTY, Tadić Appeal judgment, 15 July 1999, para. 137.
[4] ICTY, Tadić Appeal judgment, 15 July 1999, para. 138.
[5] ICTY, Tadić Appeal judgment, 15 July 1999, para. 140.
[6] ICTY, Prosecutor v. Naletilić and Martinović ("Tuta and Štela"), "Appeals Judgement", IT-98-34-A.
[7] ICTY, Prosecutor v. Prlić, "Judgment", IT-04-74-T (vol. 3), 29 May 2013, para. 518 (footnotes omitted) [unofficial translation from French] .
[8] ICC, Katanga and Chui Decision on the confirmation of charges, 30 September 2008, para. 239.
[9] ICTY, Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.
[10] ICC, Katanga and Chui Decision on the confirmation of charges, 30 September 2008, para. 240.
[11] ICC, Lubanga Decision on the confirmation of charges, 29 January 2007, para. 207.
[12] ICTY, Prosecutor v. Prlić, "Judgment", IT-04-74-T (vol. 3), 29 May 2013, paras. 555-556 (footnotes omitted) [unofficial translation from French].
[13] ICTY, Prosecutor v. Prlić, "Judgment", IT-04-74-T (vol. 3), 29 May 2013, para. 565 (footnotes omitted) [unofficial translation from French].
[14] ICC, Katanga and Chui Decision on the confirmation of charges, 30 September 2008, para. 380 (footnotes omitted).
[15] ICTY, Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70 (emphasis added).
[16] ICTY, Vasiljević Trial Judgment, 29 November 2002, para. 25.
[17] ICTY, Vasiljević Trial Judgment, 29 November 2002, para. 25.
[18] ICTY, Kunarac et al. Appeal judgment, 12 June 2002, para. 59.
[19] ICTR, Akayesu Appeal judgment, 1 June 2001, para. 443.
[20] ICTY, Kunarac et al. Appeal judgment, 12 June 2002, para. 58. See also ICTY, Vasiljević Trial Judgment, 29 November 2012, para. 25.
[21] ICTY, Mucić et al. ("Čelebići") Trial Judgment, 16 November 1998, paras. 194-195, citing ICTY, Tadić Trial Judgment, 7 May 1997, para. 573.
[22] ICTY, Mrkštić et al. Trial Judgment, 27 September 2007, para. 424.
[23] ICTR, Bagosora et al. Trial Judgment, 18 December 2008, paras. 2232, 2234-2236 (footnotes omitted).
[24] ICTR, Nyiramashuko et al. Trial Judgment, 21 June 2011, paras. 6153-6154.
[25] ICTR, Setako Appeal Judgment, 28 September 2011, para. 250-251. (footnotes omitted).
