13.3 JURISDICTION OF THE ICTY AND ICTR
13.3.1 Grave breaches of the 1949 Geneva Conventions
Thejus in bello has conventionally been categorised as ‘Geneva’ law, that is, international humanitarian, and ‘Hague’ law, which is concerned with the regulation of the means and methods of warfare. International humanitarian law is itself concerned with the protection of victims of armed conflict, which includes those renderedhors de combatby injury, sickness or capture, as well as civilians. This division is purely artificial and there is a wide measure of overlap between the two.58For the purposes of ICTY jurisdiction, international humanitarian law is contained principally in the four 1949 Geneva Conventions. The Geneva Conventions recognise two types of violations, in accordance with the gravity of the condemned act, namely,
‘grave breaches’59and other prohibited acts not falling within the definition of grave breaches. Although both grave breaches and all other infractions of the Conventions are outlawed under international humanitarian law, the distinguishing feature of grave breaches is that they can only be committed in international armed conflicts against protected persons or property as designated by the Conventions and are moreover subject to universal jurisdiction.60
According to theTadicappeals jurisdiction decision an armed conflict exists where there is ‘resort to armed force between States or protracted armed violence between governmental authorities and organised groups or between such groups within a State’.61The Appeals Chamber further affirmed that the temporal and geographical scope of an armed conflict extends beyond the exact time and place of hostilities.62 This means that, although actual fighting may not be taking place in certain parts of a territory plagued by war, any breaches committed in these locations against protected persons or property may warrant the application of humanitarian law if the breaches are connected in some way to the armed conflict.
An armed conflict may be classified as being international in nature when armed force is resorted to between two or more States, when a State directly intervenes militarily in a non-international armed conflict on the side of either party, or when a State exercises ‘overall control’ over a rebel entity as to justify attributing its actions to
57 ICTY Statute, Art 7(3); ICTR Statute, Art 6(3).
58 H McCoubrey,International Humanitarian Law: The Regulation of Armed Conflicts,1990, Aldershot:
Dartmouth, pp 1–2.
59 Convention I, Art 50; Convention II, Art 51; Convention III, Art 130; Convention IV, Art 147.
60 1977 Protocol I added new ‘grave breaches’ to the list of the 1949 Geneva Conventions and further introduced a new set of such breaches, namely those violations against the laws of warfare; C Van den Wyngaert, ‘The Suppression of War Crimes under Additional Protocol I’, in AJM Delissen and GJ Tanja (eds),Humanitarian Law of Armed Conflict,1991, Dordrecht: Martinus Nijhoff, p 197.
61 Tadicappeals jurisdiction decision (2 October 1995), para 70.
62 Ibid,para 67.
the controlling State. The Appeals Chamber in its judgment in theTadiccase rebuffed the ‘effective control’ test propounded by the International Court of Justice in the Nicaraguacase, which held that organised private individuals whose action is co- ordinated or supervised by a foreign State and to whom specific instructions are issued are consideredde factoorgans of the controlling State. Although this test had found application by the International Court of Justice (ICJ) to ‘Unilaterally Controlled Latino Assets’ who were non-US nationals, but acting while in the pay of the US, on direct instructions and under US military or intelligence supervision to carry out specific tasks, it was not applied to the contras because they had not received any instructions.63 The ICTY Appeals Chamber held that the ICJ’s ‘effective control’ test was at variance with both judicial and State practice, and could only apply with regard to individuals or unorganised groups of individuals acting on behalf of third States, but was generally inapplicable to military or paramilitary groups.64The ICTY’s departure from the stringent ‘effective control’ test was duly replaced with an ‘overall control test’ which simply requires co-ordinating or helping in a group’s general military planning, besides equipping or possibly financing the group, in order to establish a relationship of agency between the group and the aiding State.65Thus, in overturning the much criticised Trial Chamber’s judgment which had found the Bosnian Serb Army (VRS) not to be an agent of FRY,66the Appeals Chamber held the VRS to constitute a military organisation under the overall control of the FRY, finding the latter not only to have equipped and financed the VRS, but to have also participated in the planning and supervision of its military operations.67Until theTadicappeals judgment in 1999, the various ICTY Chambers had, as a direct result of interpreting the test propounded in theNicaraguajudgment differently in each case, reached inconsistent determinations of the nature of the Bosnian armed conflicts. The ‘overall control’ test, correct on its merits,seemstohavesetaprecedentandisnowacceptedasgoodlawbyICTYChambers in their evaluation of both FRY and Croat intervention on behalf of rebel entities.68
As already observed, the ‘grave breaches’ provisions are applicable where the victims are defined as ‘protected persons’ under the relevant Geneva Convention.
For the purposes of the present discussion civilian populations during the Yugoslav conflicts were made the target of attacks with a view to either being exterminated or expelled. Article 4 of Geneva Convention IV provides that protected persons are those belonging to another party to the conflict. When this provision was drafted in 1949, it did not envisage the transformation and unprecedented eruption of internal or mixed armed conflicts in their contemporary form, and its purpose was to protect civilian persons held by the adversary, these being in their majority enemy nationals.
The concept of nationality, belying a formal legal bond between an individual and a State, would not serve the protective function of Geneva Convention IV as both victims and attackers possessed the same nationality, even though the ensuing conflict
63 Prosecutor v Tadic,Appeals Judgment (15 July 1999) (Tadicappeals judgment), paras 109, 114.
64 Ibid,para 124.
65 Ibid,para 131.
66 T Meron, ‘Classification of Armed Conflicts in the Former Yugoslavia: Nicaragua’s Fallout’, 92 AJIL(1998), 236.
67 Tadicappeals judgment (15 July 1999), para 131.
68 Prosecutor v Aleksovski,Appeals Judgment (24 March 2000), Case No IT-95–14/1-A, para 145;Prosecutor v Blaskic,Judgment (Blaskicjudgment) (3 March 2000), Case No IT-95–14-T, para 100.
was in most part international in character. TheTadicappeals judgment correctly observed that since 1949 the legal bond of nationality has not been regarded as crucial in determining protected person status, further adding that, in the particular case of the former Yugoslavia, it was ‘allegiance’ to a party or ‘control’ over persons by a party that was perceived as crucial.69In a nation that had crumbled, ethnicity became more important than nationality in determining loyalties.70Therefore, civilian persons in Bosnia who fell into the hands of belligerents possessing the same nationality as they did, but who associated themselves with a different ethnic group, were entitled to protected status under Art 4 of Geneva Convention IV. TheTadic appeals judgment further identified as recipients of the same protection persons in occupied territory who, while possessing the nationality of their captor, are refugees and thus no longer benefit from the protection of Geneva Convention IV.71A possible scenario would be that of German Jews fleeing to France before 1940 to avoid persecution, and who subsequently fall into German hands when Germany occupies France. It should be noted that whatever the defining element of loyalty may be in each particular case, under Art 4(2) of Geneva Convention IV ‘nationals’ of co- belligerent States are not entitled to benefit from protected status. In the case of the fragile and, on many occasions, interrupted alliance between the Bosnian Croats and the Bosnian Moslems, theBlaskicjudgment found the two parties not to be co- belligerents.72Although the Trial Chamber in the latter case rebuffed the existence of an alliancein toto,at least as this was relevant to determining protected status, this alliance undoubtedly existed on various occasions despite its instability, and on this basis co-belligerency must be formally recognised as a fact.
The specific unlawful acts which entail individual responsibility under Art 2 of the ICTY Statute and which must further be sufficiently linked to the armed conflict are:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.
Although the International Committee of the Red Cross (ICRC) commentary to the 1949 Geneva Conventions states that the list of grave breaches therein is not exhaustive and that criminality itself may extend beyond grave breaches,73such construction cannot have any application to Art 2 of the ICTY Statute whose list of offences is exhaustive, and which must provide guarantees of fairness and certainty.
69 Tadicappeals judgment (15 July 1999), paras 165–66.
70 Blaskicjudgment (3 March 2000), paras 125–33.
71 Tadicappeals judgment (15 July 1999), para 164.
72 Blaskicjudgment (3 March 2000), paras 137–43.
73 JS Pictet,Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of Armed Conflict,1958, p 305.