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International humanitarian law—1949 Geneva Conventions—international criminal law—conflict in Bosnia and Herzegovina—distinction between international and noninternational armed conflicts—concept of protected persons—participation in international crimes—crimes against humanity—motives—discriminatory intent

Published online by Cambridge University Press:  27 February 2017

Marco Sassòli  and
Laura M. Olson
Marco Sassòli
Affiliation:
Swiss Federal Tribunal
Laura M. Olson
Affiliation:
International Committee of the Red Cross, Moscow
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Type
International Decisions
Information
American Journal of International Law , Volume 94 , Issue 3 , July 2000 , pp. 571 - 578
Copyright
Copyright © American Society of International Law 2000

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References

1 Prosecutor v. Tadić, Jurisdiction Appeal, No. IT-94–1-AR72 (Oct. 2, 1995) [hereinafter Tadić Jurisdiction Appeal]. For comment, see Marco, Sassòli, La premiere decision de la chambre d’appel du Tribunal pénal international pour Vex-Yougoslavie: Tadić (competence), 100 Revue Générale De Droit International Public 101 (1996)Google Scholar. The decisions of the ICTY are available online at <http://www.un.org/icty/ind-e.htm.

2 Prosecutor v. Tadić, Judgement, No. IT-94–1-T, paras. 578–607 (May 7, 1997) [hereinafter Tadić Judgement]; see also Scharf, Michael P., Case Report: Prosecutor v. Tadić, 91 AJIL 718 (1997)CrossRefGoogle Scholar.

3 Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, annex, UN Doc. S/RES/827 (May 25, 1993), as amended by SC Res. 1166, annex, UN Doc. S/RES/1166 (May 13, 1998).

4 Convention [No. I] for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention [No. II] for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention [No. III] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva Conventions].

5 Tadić Jurisdiction Appeal, supra note 1, paras. 79–83.

6 Id., para. 76.

7 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 ICJ Rep. 14, para. 115 (June 27) (emphasis added).

8 TadićJudgement, supra note 2, paras. 578–607.

9 Prosecutor v.Tadić Judgement, No. IT-94–1-A, paras. 115–62 (App. Cham.July 15, 1999) [hereinafter Appeal Judgement]. Earlier, trial chambers had come to similar conclusions in the review of the indictment of a Bosnian Serb, Prosecutor v. Nikolić, Rule 61 Indictment Review, No. IT-94–2-R61, para. 30 (Oct. 20, 1995), reprinted in 108 ILR 21 (1998); in the trial of Bosnian Muslims and Croats in the Čelebići case, Prosecutor v. Delalić, Judgement, No. IT-96–21-T, paras. 233–34 (Nov. 16, 1998) [hereinafter Čelebići Judgement]; and in relation to the involvement of Croatia in the conflict in Bosnia and Herzegovina, Prosecutor v. Rajić, Rule 61 Indictment Review, No. IT-95–12-R61, para. 25 (Sept. 13, 1996) [hereinafter Rajić Rule 61 Indictment Review], reprinted in 108 ILR 141 (1998); see also Olivia, Swaak-Goldman, Case Report: Prosecutor v. Rajić, 91 AJIL 523 (1997)Google Scholar. For a discussion of related cases, see Murphy, Sean D., Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AJIL 57 (1999)CrossRefGoogle Scholar; Christoph J. M., Safferling, Case Report: Public Prosecutor v. Djajić, 92 AJIL 528 (1998)Google Scholar; Olivia, Swaak-Goldman, Case Report: Prosecutor v. Delalić, 93 AJIL 514 (1999)Google Scholar; Olivia, Swaak-Goldman, Case Report: Prosecutorv. Erdemović, 92 AJIL 282 (1998)Google Scholar.

10 This definition of protected persons is from Article 4 of Geneva Convention No. IV. Only acts directed against such persons qualify as “grave breaches” under Article 50 of Geneva Convention No. I, Article 51 of Geneva Convention No. II, Article 130 of Geneva Convention No. III, Article 147 of Geneva Convention No. IV, and Articles 11(4), 85, and 86 of the 1977 Additional Protocol [I]. Geneva Conventions, supra note 4; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3.

11 Appeal Judgement, paras. 163–69.

12 It is not clear how the chamber defines this “common purpose doctrine.” In the introduction, the chamber considered it sufficient that the result not covered by the common plan is predictable and that the accused was indifferent to that risk. Appeal Judgement, para. 204. Later the chamber refers to “an attenuated form of intent (dolus eventualis) or . . . a high degree of carelessness (culpa).” Id., para. 219. In the following paragraph one reads that mere “negligence” is insufficient; “the so-called dolus eventualis required (also called ‘advertent recklessness’ in some national legal systems).” Id., para. 220. In summing up the relevant section of the decision, the chamber mentions yet another standard, i.e, that the crime was foreseeable and that the accused willingly took that risk. Id., para. 228. For systematic reasons and taking into account how the standard was actually applied to the case, we guess that this last standard was the one actually adopted.

13 The UN Secretary-General has vaguely suggested such domestic law as a subsidiary source for the ICTY. See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)Google Scholar, UN Doc. S/25704 (1993), para. 36 [hereinafter Report of the Secretary-General].

14 Appeal Judgement, para. 225.

15 Id., para. 226. The two treaties referred to are not yet in force: International Convention for the Suppression of Terrorist Bombing, GA Res. 52/164, annex (Dec. 15, 1997), 37 ILM 249 (1998) (adopted by consensus by the UN General Assembly); and Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9*, Art. 25 (3) (d), reprinted in 37 ILM 999 (1998) (adopted by an overwhelming majority of the states attending the Rome Diplomatic Conference and therefore, in view of the appeals chamber, expressive of the opinio juris of the states that adopted the statute).

16 The appeals chamber discusses the third ground at paras. 238–72, and the fourth ground at paras. 273–305.

17 Appeal Judgement, para. 248 (footnote omitted).

18 The defense had distinguished these cases. See id., para. 245.

19 Id., paras. 268, 270.

20 Id.

21 Report of the Secretary-General, supra note 13, para. 48. For statements by Security Council members, see Provisional Verbatim Record, UN Doc. S/PV.3217 (May 25, 1993).

22 Appeal Judgement, para. 293.

23 Id., para. 304. See, e.g., Tadić Jurisdiction Appeal, supra note 1, paras. 75, 88, 143.

24 Appeal Judgement, paras. 103–05; see Fenrick, William, The Development of the Law of Armed Conflict Through the Jurisprudence of the International Tribunal for the Former Yugoslavia, in The Law of Armed Conflict: Into the Next Millennium 71, 85–92 (Schmitt, Michael N. & Green, Leslie C. eds., 1998)Google Scholar; Meron, Theodor, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout, 92 AJIL 236 (1998)CrossRefGoogle Scholar; Čelebići Judgement, supra note 9, paras. 230–31.

25 Geneva Convention No. IV, supra note 4, Art. 47; see Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser. A) paras. 56–57 (1995).

26 See Richard Holbrooke, to End A War 4, 5, 99, 105–07, 139, 140, 148–51, 197, 243, 255, 256, 310, 341–43 (1998).

27 See Rajić Rule 61 Indictment Review, supra note 9, para. 35; Prosecutor v. Blaškić judgement, No. IT95–14-T, paras. 125–33 (Mar. 3, 2000).

28 The ICTY Trial Chamber in the Čelebići case reasoned that Bosnian Serbs detained by the Bosnian government were protected persons because they had not accepted the nationality of Bosnia and Herzegovina. See Čelebići Judgement, supra note 9, paras. 250–66 (in particular, para. 259).

29 Article 35 of Geneva Convention No. IV, supra note 4, regulates only their right to leave the territory. In its commentary to that Convention, the International Committee of the Red Cross (ICRC) considers that “the right of expulsion has been retained.” ICRC, Commentary on Geneva Convention Relative to the Protection of Civilian Persons in Time of War 235 (Oscar M. Uhler & Henri Coursier eds., 1958).

30 Tadić Jurisdiction Appeal, supra note 1, para. 76.

31 Id. For the definition of protected persons, see supra note 10.

32 As suggested by Meron, supra note 24, at 238–42; Greenwood, Christopher, International Humanitarian Law and the Tadić Case, 7 Eur. J. Int’l L. 265, 273–274 (1996)Google Scholar; Fenrick, supra note 24, at 91–92; Čelebići Judgement, supra note 9, paras. 245–66.

33 See Conventions, Geneva, supra note 4 Google Scholar, [common] Art. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, Arts. 4–6, 1125 UNTS 609 [hereinafter Additional Protocol II].

34 Compare Additional Protocol II, supra note 33, Art. 17 (relating to noninternational armed conflict) with Geneva Convention No. IV, supra note 4, Art. 49(1) and sources cited at supra note 29 (relating to international armed conflict).

35 On these issues and for criticism of other parts of the judgment, see Marco, Sassòli & Olson, Laura M., The Judgment of the ICTY Appeals Chamber on the Merits of the Tadić Case: New Horizons for International Humanitarian and Criminal Law? 82 Int’l Rev. Red Cross (forth coming Sept. 2000)Google Scholar.