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Published online by Cambridge University Press: 25 February 2011
1 Prosecutor v. Delalic et al. (Celebici Case), Judgement, Case No. IT-96–21-T, T. Ch. Ilqtr, 16 Nov. 1998, (hereinafter “Celebici Case 1998”), para. 170.
2 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) (hereinafter ICTY or Tribunal).
3 Prosecutor v. Tadic, Judgement, Case No. IT-94–1-A, App. Ch., 15 July 1999 (hereinafter Tadic Appeals Chamber Judgement).
4 The teleological approach has been defined as follows: “[A]lso called the ‘progressive’ or ‘extensive’ approach of the civilian jurisprudence, [it] is in contrast with the legislative historical approach. The teleological approach plays the same role as the ‘mischief rule’ of common law jurisprudence. This approach enables interpretation of the subject matter of legislation within the context of contemporary conditions. The idea of the approach is to adapt the law to changed conditions, be they special, economic or technological, and attribute such change to the intention of the legislation.” Celebici Case 1998, op. cit. (note 1), para. 163.
5 Fora discussion of issues raised concerning the extension of the nationality requirement of protected person status, see J-F. Quéguiner, “Dix ans après la création du Tribunal pénal international pour l'ex-Yougoslavie: évaluation de l'apport de sa jurisprudence au droit international humanitaire”, Revue Internationale de la Croix-Rouge/Revue Internationale de la Croix-Rouge, this volume. See also Sassôli, M. and Olson, L. M.: International Decision: Prosecutor v. Tadic (judgement). Case No. IT-94–1-A, 39 ILM 1518 (1999)Google Scholar; “International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, July 15 1999”, American Journal of International /.aw, Vol. 94, 2000, p. 571. For issues relating to the rights of the accused in extending individual criminal responsibility to include the common purpose doctrine, see the following analysis by Sassôli and Olson: International Decision: Prosecutors. Tadic (Judgement). Case No. IT-94–1-A,. 39 ILM 1518 (1999); “International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, July 15 1999”, American Journal of International Law, Vol. 94, 2000, p. 571; and “The judgment of the ICTY Appeals Chamber on the merits in the Tadic Case: New horizons for international humanitarian and criminal law?”, Revue Internationale de la Croix-Rouge/Revue Internationale de la Croix-Rouge, Vol. 839, 2000, p. 733.
6 SC Res. 827 (May 25,1993), reprinted in 32 ILM 1203 (1993).
7 Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827, Annex, (hereinafter ICTY Statute or Statute). Security Council resolution 808 (1993) established the purposes of the Tribunal, which were later elaborated in Security Council resolution 827 (1993).
8 Meron, T., “International criminalization of internal atrocities”, American Journal of International Law, Vol. 89, 1995, p. 554 and p. 559.CrossRefGoogle Scholar
9 Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, para. 37 (1993), reprinted in 32 ILM 1159, 1192 (1993). (Hereinafter Report of the Secretary-General or Secretary-General's Report). The principle nullum crimen sine lege is illustrative of the fact that the Tribunal was not empowered to “legislate” or to create new law in the field of international humanitarian law. Granting a law-making power to a United Nations body would in fact “… be contrary to the present configuration of the law-making process in international law.” In establishing the Tribunal, the verbatim records of the discussions in the Security Council reveal that “… The Tribunal would not be empowered with (…) the ability to set down norms of international law or to legislate with respect to those rights. It simply applies existing international humanitarian law.” A. Cassese, “The International Criminal Tribunal for the former Yugoslavia and the implementation of international humanitarian law”, in Condorelli, L.et al. (ed.), The United Nations and International Humanitarian Law, Pedone, Paris, 1995, p. 232Google Scholar and footnote 1.
10 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949; Convention relative to the Treatment of Prisoners of War, 12 August 1949; Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (hereinafter Geneva Conventions or Conventions).
11 Report of the Secretary-General, op. cit. (note 8), p. 1192.
12 Tiefenbrun, S. W., “The paradox of international adjudication developments in the International Criminal Tribunals of the former Yugoslavia and Rwanda, the World Court, and the International Criminal Court”, NC Journal of International Law and Commercial Regulation, Vol. 25, 2000, p. 572Google Scholar and footnotes 143–144.
13 Tadic Appeals Chamber Judgement, op. cit. (note 3).
14 Carrillo-Suarez, A., “Hors de logique: Contemporary issues in international humanitarian law as applied to internal armed conflict”, American University International Law Review, Vol. 15, 1999, p. 3Google Scholar and footnote 5.
15 Brown, B. S., “Nationality and Internationality in International Humanitarian Law”, Stanford Journal of International Law, Vol. 34, 1998, p. 348.Google Scholar
16 Greppi, E., “The evolution of individual criminal liability under international law”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, No. 835, 1999, p. 541Google Scholar and footnote 52.
17 Celebici Case 1998, op. cit. (note 1), para. 158.
18 Ibid., para. 165.
19 Brown, , op. cit. (note 15), p. 347.Google Scholar
20 See Kalshoven, F. and Zegveld, L., Constraints on the Waging of War: An Introduction to International Humanitarian Law, International Committee of the Red Cross (ICRC), Geneva, 2001Google Scholar, Chapters I and II.
21 Brown, , op. cit. (note 15), p. 347Google Scholar and footnotes 2–3.
22 Deborah Ungar argues that “… since the Tadic decision was the first case to put international humanitarian law to the test, it cannot be ignored that the theatre of war between and within States has evolved. Because fifty years passed since the Nuremberg trials, the ICTY had to apply international humanitarian laws according to the standard of conventional wars. Today, few of the major conflicts ‘are conventional wars – that is, wars that entail the direct, sustained confrontation of the military forces of two or more States within a defined space, usually occurring on the soil of one of the combatants’. After the fall of the Soviet Union, contemporary wars consist of ‘nation-based violence’. As most evident in the former Yugoslavia, violence erupts between groups with differences grounded in ethnicity, religion, and history. Further, in contemporary wars, groups attempt to establish independence based on their national identities, such as the Serbs in creating the Republika Srpska.” Ungar, D. L., “The Tadic war crimes trial: The first criminal conviction since Nuremberg exposes the need for a permanent war crimes tribunal”, Whittier Law Review, Vol. 20, 1999, pp. 720–721.Google Scholar
23 According to the Tribunal in the Celebici Case 1998, op. cit. (note 1), “[t]he nature of the international armed conflict in Bosnia and Herzegovina reflects the complexity of many modern conflicts and not, perhaps, the paradigm envisaged in 1949.”
24 Kalshoven and Zegveld note in relation to individual responsibility, the “… total silence on the possibility of international adjudication of violations of the Geneva Conventions, this notwithstanding the experience of the two International Military Tribunals, and in stark contrast with the position adopted by the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article VI of which expressly reserves the possibility of trial by a competent ‘international tribunal’.” Kalshoven, and Zegveld, , op. cit. (note 20), p. 81.Google Scholar
25 Boisson de Chazournes, L., “Les résolutions des organes des Nations Unies, et en particulier celles du Conseil de Sécurité, en tant que source de droit international humanitaire”, in Condorelli, L.et al. (eds), The United Nations and International Humanitarian Law, Pedone, Paris, 1995, p. 169.Google Scholar
26 Cassese, A., op. cit. (note 9), p. 245.Google Scholar
27 Brown, , op. cit. (note 15), p. 348.Google Scholar
28 Prosecutor v. Tadic, Decision of the Defence Motion on jurisdiction, Case No. IT-94–1-T, T. Ch., 10 Aug. 1995 (hereinafter “Tadic -1995 Decision on Jurisdiction”).
29 According to Article 2 of the ICTY Statute, op. cit. (note 7), “[t]he International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(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.
30 Tadic–1995 Decision on jurisdiction, op, cit. (note 28), paras. 46–83.
31 Ibid.
32 Article 4 of the Fourth Geneva Convention, op. cit. (note 7), defines protected persons as follows: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” In this regard seej. Pictetef, et al. (eds), Commentary on the Geneva Conventions of 12 August 3949, ICRC, Geneva, 1958, 46–47.Google Scholar
33 In order for jurisdiction to be granted over grave breaches of the 1949 Geneva Conventions, other general requirements must be met, including the existence of an international armed conflict, a nexus between the armed conflict and the crime, and the requirement that the crime be committed against persons and property protected under the Conventions. See, for example, Prosecutorv. Tadic, Decision of the Defence Motion for Interlocutory Appeal on jurisdiction, Case No. IT-94-AR72, App. Ch., 2 Oct. 1995 (hereinafter “Tadic – 1995 Appeal on Jurisdiction“), para. 67; see also Prosecutorv. Tadic, Opinion and judgement. Case No. IT- 94–1-Y, T. Ch. II, 7 May 1997, (hereinafter ”Tadic –1997 Opinion and judgement“), para. 561 (quoting the Tadic –1995 Decision on Jurisdiction). According to Judge Shahabuddeen, “[i]f the accused is charged with a grave breach, then, no matter what he has actually done and how outrageous it may be, he cannot be said to have engaged in the criminal conduct under that provision unless that element, concerning the status of the victim as a ‘protected’ person, is proved.” Prosecutor v. Jelisic, judgement. Case No. IT-95–10, App. Ch., 5 July 2001 (Partial Dissenting Opinion of Judge Shahabuddeen, para. 39).
34 Tadic–1995 Appeal on Jurisdiction, op. cit. (note 33), paras. 71–78.
35 Ibid., para. 81.
36 According to this strict interpretation by the Appeals Chamber of Article 4 of the Fourth Geneva Convention, grave breaches occur solely when victims and perpetrators differ in terms of nationality, and the Bosnian-Muslim victims of Dusko Tadic were not protected persons, for they were not in the hands of a party to the conflict of which they were not nationals. Rather, they were in the hands of Bosnian Serbs, including Tadic, who were of the same nationality as their victims. Sassöli, and Olson, , “The judgment of the ICTY“, op. cit. (note 5), pp. 733 and 738Google Scholar and footnotes 30–31.
37 Tadic –1995 Appeal on Jurisdiction, op. cit. (note 33), para. 81.
38 Greenwood, C., “International humanitarian law and the Tadic case“, European Journal of International Law, Vol. 7, 1996, p. 273.CrossRefGoogle Scholar
39 Tadic–1995 Appeal on Jurisdiction, op. cit. (note 33), paras. 83–84.
40 Meron, T., “The continuing role of custom in the formation of international humanitarian law“, American journal of International Law, Vol. 90, 1996, p. 238 and p. 243.CrossRefGoogle Scholar
41 In his separate opinion, Judge Abi-Saab stated that “[a]s a matter of treaty interpretation — and assuming that the traditional reading of ‘grave breaches’ has been correct — it can be said that this new normative substance has led to a new interpretation of the Conventions as a result of the ‘subsequent practice’ and opinio juris of the States parties: a teleological interpretation of the Conventions in light of their object and purpose to the effect of including internal conflicts within the regime of‘grave breaches.’” Tadic–1995 Appeal on Jurisdiction, op. cit. (note 33), (Separate Opinion of Judge Abi-Saab).
42 Tadic–1997 Opinion and Judgement, op. cit. (note 33).
43 Brown, , op. cit. (note 15), p. 379.Google Scholar
44 The date is of significant importance, for the question arose as to whether the acts committed by Tadic were perpetrated in the context of an international armed conflict. de Hoogh, A., “Commentary” in Klip, A. and Sluiter, G. (eds), Annotated Leading Cases of International Criminal Tribunals: The International Criminal Tribunal for the former Yugoslavia 1993–1998, Intersentia, Antwerp, Vol. 1, 1999, p. 468.Google Scholar
45 Tadic–1997 Opinion and Judgement, op. cit. (note 33), paras. 607–608.
46 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14.
47 In her dissent, Judge McDonald suggested that there had been a grave misreading of the Nicaragua case. In disagreeing with the majority, she espoused the concept of dependency and control. Having adopted this lower standard vis-à-vis the threshold of agency control, Judge McDonald concluded that the armed conflict was international in character, that the victims were protected persons and that the grave breaches regime was in fact applicable in relation to the specific indictments. See Tadic–1997 Opinion and Judgement, op. cit. (note 33) (Separate Opinion of Judge McDonald).
48 Tadic–1995 Appeal on Jurisdiction, op. cit. (note 33), (Separate Opinion of Judge Abi-Saab).
49 Brown, , op. cit. (note 15), p. 403Google Scholar and footnote 244.
50 Prosecutor v. Tadic, Decision of the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, App. Ch., 2 Oct. 1995, para. 84.
51 Tadic Appeals Chamber Judgement, op. cit. (note 3).
52 Brown, , op. cit. (note 15), p. 380Google Scholar and footnote 161, p. 398 and footnote 227.
53 In addressing the subject of responsibility for a military organization, the Tribunal held that international humanitarian law was applicable to international armed conflict when overall control by a foreign State over that organization could be established. This would in turn render the foreign State responsible for all acts committed by the organization. See Tadic Appeals Chamber Judgement, op. cit. (note 3), paras. 115–162. The threshold of agency control held by the majority reflects the dissenting opinion of Judge McDonald in Tadic–1997 Opinion and judgement, op. cit. (note 33). See note 62.
54 Tadic Appeals Chamber Judgement, op. cit. (note 3), para. 162.
55 Sassòli and Olson, “The judgment of the ICTY“, op. cit. (note 5), p. 733 and p. 738, footnote 32.
56 ladle Appeals Chamber Judgement, op. cit. (note 3), paras. 166 and 168.
57 Since, for example, “… it cannot be contended that the Bosnian Serbs constitute a State, arguably, the classification [of the conflict as exclusively international] would be based on the implicit assumption that the Bosnian Serbs are acting not as a rebellious entity but as organs or agents of another State, the Federal Republic of Yugoslavia (Serbia-Montenegro). As a consequence, serious infringements of international humanitarian law committed by the government army of Bosnia-Herzegovina against Bosnian Serbian civilians in their power would not be regarded as ‘grave breaches’, because such civilians, having the nationality of Bosnia-Herzegovina, would not be regarded as ‘protected persons’ under Article 4, paragraph 1 of Geneva Convention IV. By contrast, atrocities committed by Bosnian Serbs against Bosnian civilians in their hands would be regarded as ‘grave breaches’, because such civilians would be ‘protected persons’ under the Convention, in that the Bosnian Serbs would be acting as organs or agents of another State, the Federal Republic of Yugoslavia (Serbia-Montenegro) of which the Bosnians would not possess the nationality. This would be, of course, an absurd outcome, in that it would place the Bosnian Serbs at a substantial legal disadvantage vis-à-vis central authorities of Bosnia-Herzegovina.” Prosecutors. Tadic, Decision of the Defence Motion for Interlocutory Appeal on jurisdiction, Case No. IT-94–1-AR72, App. Ch., 2 Oct 1995, para. 76. The Appeals Chamber held, in Prosecutorv. Delalic et al. that “[t]he Commentary did not envisage the situation of an internationalised conflict where a foreign State supports one of the parties to the conflict, and where the victims are detained because of their ethnicity, and because they are regarded by their captors as operating on behalf of the enemy. In these circumstances, the formal link with Bosnia and Herzegovina cannot be raised before an international tribunal to deny the victims the protection of humanitarian law.” Prosecutorv. Delalic et al. (Celebici Case), judgement. Case No. IT-96–21, App. Ch., 20 Feb. 2001, (hereinafter Celebici Case 2001), para. 58 (quoting the Aleksovski Appeals Judgement: Prosecutor v. Aleksovski, judgement, Case No. IT-95–14/1, App. Ch., 24 March 2000, para. 79).
58 Individual criminal responsibility is defined in Article 7 of the ICTY Statute. The relevant provision in the Tadic case is Article 7(1), which reads as follows: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.” ICTY Statute, op. cit. (note 7), Art. 7.
59 Sunga, L. S., Individual Responsibility in International Law for Serious Human Rights Violations, Martinus Nijhoff Publishers, Dordrecht, 1992, p. 53.Google Scholar
60 The common purpose doctrine was identified by the Trial Chamber as a form of participation within the context of direct criminal responsibility. In determining the required extent of participation, the Trial Chamber held that criminal responsibility is incurred “[i]f people were all present together at the same time, taking part in a common enterprise which was unlawful, each one in their own way assisting the common purpose of all, they were all equally guilty in law (…). Thus not only does one not have to be present but the connection between the act contributing to the commission and the act of commission itself can be geographically and temporally distanced.” Tadic–1997 Opinion and judgement, op. cit. (note 33), paras. 685, 687 (quoting the Almelo case: The Almelo Trial, Case No. 3, Law Reports of War Criminals, United Nations War Crimes Commission, Vol. 1, HMSO, London, 1949, p. 40).
61 The Trial Chamber was not satisfied with regard to the evidence that the accused had any part in the killing of the five men. It considered that the killing of five men in the village of Sivci “may have been the act of a quite distinct group of armed men, or the unauthorized and unforeseen act of one of the force that entered Sivci, for which the accused cannot be held responsible.” Tadic–1997 Opinion and judgement, op. cit. (note 33), esp. para. 373.
62 Sassöli, and Olson, , “The judgment of the ICTY“, op. cit. (note 5), p. 740.Google Scholar The Appeals Chamber identified three distinct categories in which the notion of common purpose leads to collective criminality, the third of which is common purposes cases. The common purpose doctrine “… concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting ofthat common purpose. An example of this would be common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region to effect ‘ethnic cleansing’ with the consequence that, in the course of doing so, one or more of the victims is shot and killed.” The other two categories identified by the Appeals Chamber in which common purpose leads to collective criminality are cases of co-perpetration and concentration cases. Tadic Appeals Chamber Judgement, op. cit. (note 3), para. 204.
63 According to the Appeals Chamber, “[t]here is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.” Tadic Appeals Chamber Judgement, op. cit. (note 3), para. 227.
64 Tadic Appeals Chamber Judgement, op. cit. (note 3), para. 232.
65 Sassöli, and Olson, , International Decision, op. cit. (note 5), p. 1518Google Scholar; Sassoli, and Olson, , “International Criminal Tribunal“, op. cit. (note 5), p. 571 and p. 573.Google Scholar
66 Sassôli, and Olson, , “International Criminal Tribunal“, op. cit. (note 5), p. 573.Google Scholar The Appeals Chamber referred to Article 25 (paragraph 3(d)) of the Rome Statute of the International Criminal Court as justification for recognizing common purpose liability. The legal weight attributed to the Rome Statute was set out by the Tribunal in Prosecutors. Furundzija, wherein it held that the Statute “… possesses significant legal value. (…) The text (…) may be taken to express the legal position i.e. opinio juris of [the overwhelming majority of States attending the Rome Diplomatic Conference].” Prosecutors/. Furundzija, Judgement, Case No. IT-95–14/ l-T, T. Ch. II, 10 Dec. 1998. According to the Appeals Chamber in the Tadic case, “[tjhis is consistent with the view that the mode of accomplice liability under discussion is well-established in international law and is distinct from aiding and abetting.” Tadic Appeals Chamber Judgement, op. cit. (note 3), paras. 204 and 223 (quoting the Furundzija Judgement, para. 227). Given the legal weight attributed to the Rome Statute and the Tribunal's reliance on a principle of law contained therein, it can be argued that a general principle of law recognized by nations in the field of common purpose does in fact exist.
67 Tadic Appeals Chamber Judgement, op. cit. (note 3), para. 226.
68 Prosecutor v. Krstic, Judgement, Case No. IT-98–33, T. Ch. I, 2 Aug. 2001, para. 601.
69 Ibid, at para. 190 & n. 222. Emphasis in original.
70 Tadic Appeals Chamber Judgement, op. cit. (note 3), para. 189. Emphasis in original.
71 Ibid., para. 190.
72 Ibid.
73 Prosecutor v. Blaskic, judgement, Case No. IT-95–14, TCh. I, 3 March 2000.
74 Ibid., para. 126.
75 Ibid., para. 127.
76 Aleksovski Appeals Judgement, op. cit. (note 57).
77 Ibid., para. 153.
78 CelebiciCase 2001, p. c/f. (note 57), para. 58 (quoting the Aleksovski Appeals Judgement, para. 151).
79 In referring to the teleological approach by the 1999 Tadic Appeals Chamber Judgement (op. cit., note 3) in interpreting Article 4 of the Fourth Geneva Convention, the Appeals Chamber held that “this extended application of Article 4 meets the object and purpose of Geneva Convention IV, and is particularly apposite in the context of present-day inter-ethnic conflicts.” Aleksovski Appeals Judgement, op. cit. (note 57), para. 152.
80 Ibid., (Declaration of Judge Hunt, para. 4).
81 Ibid. (Declaration of Judge Hunt, paras. 8–9).
82 Ibid. (Declaration of Judge Hunt, para. 10).
83 Celebici Case 2001, op. cit. (note 57), para. 84 (quoting the application of the teleological approach enunciated in the Aleksovski Appeals Judgement, op. cit. (note 57)).
84 Ibid.
85 Vienna Convention on the Law of Treaties, 23 May 1969. Article 31 states that “[a] treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Article 32, entitled “Supplementary means of interpretation” states that “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous and obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
86 Celebici Case 2001, op. cit. (note 57), paras. 59 and 65.
87 Ibid., para. 73.
88 The Appeals Chamber in the Tadic case held that Articles 4(1) and 4(2) of the Fourth Geneva Convention, in addition to the preparatory work, illustrate that “… already in 1949 the legal bond of nationality was not regarded as crucial and allowance was made for special cases.” Tadic Appeals Chamber Judgement, op. cit. (note 3), paras. 164–165.
89 Celebici Case 2001, op. cit. (note 57), para. 73.
90 Ibid., para. 168.
91 Ibid., para. 73.
92 Ibid., para. 81.
93 Ibid., para. 86.
94 Ibid., para. 87 (quoting the Celebici Case 1998, op. cit. (note 1), para. 264).
95 Ibid., para. 86 (quoting the Celebici Case 1998, op. cit. (note 1), para. 263).
96 Ibid., para. 26 (Separate and Dissenting Opinion of Judge Hunt and Judge Bennouna).
97 Celebici Case 1998, op. cit. (note 1), para. 266 (quoting Theodor Meron).
98 Prosecutor v. Kordic and Cerkez, Judgement, Case No. IT-95–14/2, T. Ch. II, 26 Feb. 2001 (hereinafter Kordic and Cerkez Judgement).
99 Ibid., para. 148.
100 Ibid., para. 150.
101 Prosecutor v. Naletilic and Martinovic, Judgement, Case No. IT-98–34-T, 31 March 2003, para. 207.
102 For the use of persuasive precedent, see Prosecutor v. Bagambiki et al. Decision on the Defence Motion on Defects in the Form of the Indictment, Case No. ICTR-97–36-O), T. Ch. II, 24 Sept. 1998, para. 7. See also Prosecutors. Kupreskic et al., Judgement, Case No. IT-95–16,14 Jan. 2001, para. 540
103 Kordic and CerkezJudgement, op. cit. (note 98), para. 364.
104 Ibid., para. 374.
105 Tadic–1997 Opinion and Judgement, op. cit. (note 33), para. 674.
106 Askin, K., “Developments in international criminal law: Sexual violence in decisions and indictments of the Yugoslav and Rwandan Tribunal: Current status”, American Journal of International Law, Vol. 93, 1999, pp. 97, 103 and 104.CrossRefGoogle Scholar
107 See for example, Prosecutors. Mucic et al., Judgement on Sentence Appeal, Case No. IT-96–21,8 April 2003, para. 40. For a detailed discussion of joint criminal enterprise liability, see Prosecutor v. Radoslav Brdanin and Momir Talic, Decision on Form Further Amended Indictment and Prosecution Application to Amended Indictment and Prosecution Application to Amend, Case No. IT-99–36-PT, 26 June 2001.
108 Blaskic Judgement, op. cit. (note 73), para. 263 (quoting the Celebici Case 1998, op. cit. (note 1), para. 319).
109 Celebici Case 2001, op. cit. (note 57), para. 355.
110 Kordic and Cerkez Judgement, op. cit. (note 98).
111 Ibid., para. 372. Quotation marks in original.
112 Ibid., para. 373 (quoting the Tadic Appeals Chamber Judgement, op. cit. (note 3), para. 186).
113 Ibid., para. 385.
114 This reflects the finding in the Tadic Appeals Chamber Judgement that allows the Prosecution to plead Article 7(1) in its entirety vis-à-vis the accused's participation in a joint criminal enterprise: “… Although only some members of the group may physically perpetrate the criminal act, (…) the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less — or indeed no different — from that of those actually carrying out the acts in question. Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrator of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending on the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminality.” Prosecutor v Krnojelac, Judgement, Case No. IT-97–25, T. Ch. II, 15 March 2002 (hereinafter Krnojelac judgement), para. 73 (quoting the Tadic) Appeals Chamber Judgement, op. cit. (note 3), paras. 191–192.
115 Krstic judgement, op. cit. (note 68), para. 643.
116 Prosecutor v. Kvocka et al., judgement, Case No. IT-98–30/1, T. Ch. I, 2 Nov. 2001 (hereinafter Kvocka judgement).
117 The Trial Chamber held that “… though the Prosecutor did not expressly refer to the common purpose in the indictment, indeed far from it, nothing prohibits the Chamber from taking into consideration the theory which, after all, constitutes only one of the many forms of participation covered by the Statute.” Press Release, Trial Chamber, judgement in the Case of the Prosecutor against Miroslav Kvocka, Milojica Kos, Mlado Radi, Zoran Zigic and Dragoljub Prac: Omarska/KeratermfTmopolje, 2 November 2001, CC/P.I.S./63ie (on file with author). See also Krstic judgement, op. cit. (note 68), para. 602. However, in Prosecutor v. Krnojelac the Trial Chamber held that “… in the exercise of its discretion considers that, in the light of its own express interpretation that only a basic joint criminal enterprise had been pleaded, it would not be fair to the Accused to allow the Prosecution to rely upon [an] extended form of joint criminal enterprise liability with respect to any of the crimes alleged in the Indictment in the absence of such an amendment to the Indictment to plead it expressly.” Krnojelac Judgement, op. cit. (note 114), para. 86.
118 Kvocka ludgement, op. cit. (note 116), para. 248 (referring to the Furundzija judgement, op. cit. (note 66), para. 189; Kupreskic judgement, op. cit. (note 102), para. 388).
119 Kvocka ludgement, op. cit. (note 116), para. 297 (citing Tadic Appeals Chamber Judgement, op. cit. (note 3), para. 229).
120 Kupreskic judgement, op. cit. (note 102), para. 772.
121 Prosecutors/. Milosevic et at. Indictment, Case No. IT-02–54, 24 May 1999, para. 83.
122 ibid., para. 83.
123 Prosecutor v. Milosevic et al., Amended Indictment, Case No. IT-99–37-I, 29 June 2001, para. 16. See also Prosecutors. Milosevic, Indictment, Case No. IT-01–51-I, 22 Nov. 2001 (hereinafter Milosevic Indictment), para. 5; and Prosecutorv. Stanisic andSimatovic, Indictment, Case No. IT-03–69,1 May 2003, paras. 8–14.
124 Prosecutorv. Milosevic etal., Indictment, Case No. IT-oi-50–l, 8 Oct. 2001, para. 5. See also Milosevic Indictment, op. cit. (note 123), para. 5. This is suggestive of an approach more similar to the finding of the Trial Chamber in Prosecutorv. Krnojelac than to the Ce/et/c/Appeals Chamber and Prosecutorv. Kvocka etal. Judgements. Interestingly the Tribunal, in citing the Tadic Appeals Chamber Judgement, held in Prosecutorv. Naletilic and Martinovic that “[cjommitting means physically and personally perpetrating a crime or engendering a culpable omission in violation of a rule of criminal law”, without actually stating as it did in the Tadic Appeals Chamber Judgement, op. cit. (note 3) that “… the commission of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute might also occur through participation in the realisation of a common design or purpose.” See Naletilic and MartinovicJudgement, op. cit. (note 101), para. 62. See also Prosecutor v. Krstic, wherein the Prosecutor refers to joint criminal enterprise liability as “co-perpetration” and considers “co-perpetration” to be a form of “committing”. Krstic Judgement, op. cit. (note 68), para. 601. (Quotation marks in original)
125 Prosecutor v. Milosevic et al., Second Amended Indictment, Case No. IT-99–37-PT, 29 Oct. 2001, paras. 16–17. See also Milosevic Indictment, op. cit. (note 123), paras. 6–7.
126 There were a number of ways in which Slobodan Milosevic, acting alone and in concert with other members of the joint criminal enterprise, participated in the common plan. See Milosevic Indictment, op. cit. (note 123), paras. 9 and 25.
127 Prosecutors. Milosevic et al., Second Amended Indictment, Case No. IT-99–37-PT, 29 Oct. 2001, para. 18.
128 Brown, op. cit. (note 15), pp. 352, 387 and 394.
129 In its ruling in Prosecutor v. Kupreskic, the Tribunal referred to the “… progressive trend towards the so-called ‘humanisation’ of international legal obligations…” and in particular, to the Martens Clause, which, as a minimum, enjoins reference to the “principles of humanity” and “the dictates of public conscience (…) and dictates any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances the scope and purport of the rule must be defined with reference to those principles and dictates.” Kupreskic Judgement, op. cit. (note 102), paras. 518 and 525.
130 Abi-Saab, G., “The specificities of humanitarian law,” in Swinarski, C. (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of lean Pictet, ICRC, Geneva, 1984, p. 273.Google Scholar
131 “From the outset”, Brown continues, “the situation in Rwanda was seen as an internal armed conflict. Therefore, the Rwandan Tribunal's Statute does not include ‘grave breaches of the Geneva Conventions’ as crimes within its jurisdiction. Unlike the ICTR, the ICTY was granted jurisdiction over grave breaches under Article 2 of its Statute, and it would be unfortunate if any unduly narrow application of that article were to neutralize this central aspect of its intended jurisdiction.” Brown, op. cit. (note 15), pp. 394, 381 and footnotes 162–164. See International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994).
132 The alternative charges available include crimes against humanity, violations of the laws and customs of war, and genocide. Only partial compensation is due to three factors, according to Brown: “difficulties in proving the elements of some alternative categories of crimes, the relatively weak normative status of others, and the lack of an international enforcement regime applicable to most of them.” Brown, , op. cit. (note 15), P. 391.Google Scholar
133 Brown notes that the possibility to convict for crimes against humanity requires proof of “widespread or systematic acts against a group based on race, sex, language, or religion.” “Similarly”, he continues, “without proof that the accused had the specific intent to destroy a racial, ethnic, or religious group in whole or in part, it will be impossible to convict for genocide.” Of all crimes, violations of the laws and customs of war are the easiest to prove, for they are not subject to any of the above-mentioned requirements. Ibid., p. 391 and footnotes 199–200.
134 Article 2 differs from Article 3 of the Statute in that it “requires a materially distinct element, namely that the victim was a ‘protected person’, in accordance with the 1949 Geneva Conventions.” Jelisic, op. cit. (note 33), (Partial Dissenting Opinion of Judge Wald, para. 13).
135 Brown, , op. cit. (note 15), pp. 391–393.Google Scholar
136 ibid., p. 394.
137 Bianchi, A., “Denying State immunity to violators of human rights”, Austrian journal of Public International Law, Vol. 46, 1994, pp. 195 and 221.Google Scholar
138 Ibid.
139 Brown also argues that “[t]he notion of moving beyond state-centricism is implicit in the idea of an international law of human rights, since the rights with which this law is concerned are those of individuals, or groups of individuals, rather than those of states. The very concept of internationally recognized human rights is in derogation of state sovereignty. While traditional state-centric approaches to international law insist upon a very broad definition of state sovereignty and a formalistic defense of it from any external intrusion, international humanitarian law requires some encroachment on sovereignty.” Brown, , op. cit. (note 15), p. 395Google Scholar and footnote 219, p. 353.
140 Celebici Case 2001, op. cit. (note 57), para. 46 (quoting the Trial Judgement, op. cit. (note 1), paras. 275–276).
141 Sassòli, and Olson, , International Decision, op. cit. (note 5), p. 577.Google Scholar
142 Ibid., pp. 577–578.
143 Celebici Case 1998, op. cit. (note 1), para. 402.
144 Ibid., para. 402.
145 Celebici Case 2001, op. cit. (note 57), para. 46 (quoting the 1998 Trial Judgement, op. cit. (note 1), paras. 275–276).
146 Ibid., para. 49 (quoting the 1998 Trial Judgement), op. cit. (note 1), para. 259.
147 Prosecutor v. Kordic and Cerkez, Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of jurisdiction Based on the Limited lurisdictional Reach of Articles 2 and 3, Case No. IT-95–14/2-PT, T. Ch. Ill, 2 March 1999, para. 20.
148 Celebici Case 1998, op. cit. (note i), para. 402.
149 See the decision by the Trial Chamber in the 1995 Tadic case, which stated that: “[t]he Report of the Secretary-General (…) makes it clear, in paragraph 34, that it was intended that the rules of international law that were to be applied should be ‘beyond any doubt part of customary law’, so that problems of non-adherence of particular States to any international Convention should not arise. Hence, no doubt, the specific reference to the law of the Geneva Conventions in Article 2 since, as the Report states in paragraph 35, that law applicable in armed conflict has beyond doubt become part of customary law. But there is no ground for treating Article 2 as in effect importing into the Statute the whole of the terms of the Conventions, including reference in common Article 2 of the Geneva Convention to international conflicts. As stated, Article 2 of the Statute is on its face, self-contained, save in relation to the definition of protected persons and things. It simply confers subject matter jurisdiction to prosecute what, if one were concerned with the Conventions, would indeed be grave breaches of those Conventions, but which are, in the present context, simple enactments of the Statute.” Tadic–1995 Decision on Jurisdiction, op. cit. (note 28), para. 51.
150 Sassòli, and Olson, , “The judgement of the ICTY”, op. cit. (note 5), pp. 733Google Scholar, 742 and footnote 65, p. 748.
151 It is understood that the term “committed” refers to the traditional physical perpetration of a crime and inactive participation in the sense of having “committed” a crime via a common criminal enterprise.
152 Tadic–1997 Opinion and Judgement, op. cit. (note 33), para. 577 (quoting the Tadic Jurisdiction Decision of the Appeals Chamber).
153 Greenwood, C., “The development of international humanitarian law by the International Criminal Tribunal for the former Yugoslavia”, Max Planck Yearbook of United Nations Law, Vol. 2, 1998, pp. 132–133.Google Scholar
154 Sassòli, and Olson, , “The judgement of the ICTY”, op. cit. (note 5), p. 743.Google Scholar
155 Ibid., pp. 743 and 748.
156 Ibid., p. 743.
157 Ibid., pp. 748 and 749.
158 In Prosecutor w. Furundzija, the Trial Chamber found that two types of liability for criminal participation “appear to have crystallised in international law — co-perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other.” It further stated that, to distinguish a co-perpetrator from an aider or abettor, “it is crucial to ascertain whether the individual who takes part in the torture process also partakes of the purpose behind torture (that is, acts with the intention of obtaining information or a confession, of punishing, intimidating, humiliating or coercing the victim or a third person, or of discriminating, on any ground, against the victim of a third person).” It then concluded that, to be convicted as a co-perpetrator, the accused “must participate in an integral part of the torture and partake in the purpose behind the torture, that is the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person.” Furundzija, Judgement, op. cit. (note 66), paras. 231, 118, 216, 253, and 257. Emphasis in original.
159 Kvocka Judgement, op. cit. (note 116), para. 309.
160 As an example, the Trial Chamber cited “a participation that enables the system to run more smoothly or without disruption. Physical or direct perpetration of a serious crime that advances the goal of the criminal enterprise would constitute a significant contribution.” Ibid., para. 309.
161 Ibid.
162 Ibid., para. 310.
163 Ibid.
164 The variety of factors includes “… the size of the criminal enterprise, the functions performed, the position of the accused, the amount of time spent participating after acquiring knowledge of the criminality of the system, efforts made to prevent criminal activity or to impede the efficient functioning of the system, the seriousness and scope of the crimes committed and the efficiency, zealousness or gratuitous cruelty exhibited in performing the actor's function. It would also be important to examine any direct evidence of a shared intent or agreement with the criminal endeavour, such as repeated, continuous, or extensive participation in the system, verbal expressions, or physical perpetration of the crime.” Kvocka Judgement, op. cit. (note 116), para. 311.
165 For example, “even a lowly guard who pulls the switch to release poisonous gas into the gas chamber holding hundreds of victims would be more culpable than a supervising guard stationed at the perimeter of the camp who shoots a prisoner attempting to escape.” Ibid., para. 311.
166 Ibid., para. 312.
167 In the Krstic Judgement, op. cit. (note 68), the Trial Chamber held that “… it is essential to make a distinction between what might be collective responsibility and individual responsibility. The Tribunal has not been established to deal with the possibility of collective responsibility. What is of interest (…) in each of the trials (…) in this court is to verify whether the evidence presented before it makes it possible to find an accused guilty. [It] seeks to judge an accused [and not] a people.” Press Release, Trial Chamber, “Radislav Krstic becomes the first person to be convicted of genocide at the ICTY and is sentenced to 46 years imprisonment”, 2 August 2001, OF/P.I.S./609e (on file with author).
168 Sassòli, and Olson, , “The judgement of the ICTY”, op. cit. (note 5), p. 743.Google Scholar
169 Kvocka judgement, op. cit. (note 116), para. 289.
170 Celebici Case 1998, op. cit. (note 1), paras. 415–417.
171 Brown, , op. cit. (note 15), p. 356Google Scholar and footnote 40.
172 Ibid., p. 404.
173 Ibid., p. 357 and footnotes 44–45.
174 Ibid., p. 404 and p. 396.
175 Celebici Case 1998, op. cit. (note 1), para. 266. See also Prosecutor v. Kupreskic, wherein the Tribunal held that “[i]t is difficult to deny that a slow but profound transformation of humanitarian law under the pervasive influence of human rights has occurred.” Kupreskic Judgement, op. cit. (note 102), para. 529.
176 Brown, , op. cit. (note 15), p. 348.Google Scholar
177 Certain authors view the ICTY's judgements (most notably the Tadic 1999 Appeals Chamber Judgement) as judicial lawmaking, rather than as representing a progressive interpretation of existing law. For example, William A. Schabas notes that: “[i]n the future, judges will have greater difficulty undertaking the kind of judicial lawmaking that the ad hoc Tribunal for Yugoslavia performed in the [1999 Appeals Chamber] Tadic case, and this will make it harder for justice to keep up with the imagination and inventiveness of war criminals. Indeed, the Tadic Appeals Chamber may well have frightened States with its bold judicial lawmaking, who then resolved that they would leave far less room for such developments in any statute of an international criminal court.” Schabas, W. A., An Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2001, p. 42.CrossRefGoogle Scholar