Guide The Rise and Fall of War Crimes Trials

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Dale discussed the…. Marking the 60th anniversary of the Nuremberg War Crime Trials , Nuremberg prosecutors described in detail the trials,…. Benjamin Ferencz, an Army officer who served as prosecutor at the Nuremberg trials, delivered the keynote address for the symposium…. More information about Nuremberg War Crimes Trials. Request Download. Error requesting format availability. Your request has been submitted. November 19, Situation in Sudan Ms. With respect to the Geneva Convention, the Special Court of Cassation stated that the Convention only protected members of an army against acts by members of the opposing army.

Therefore, the acts of a German military doctor with respect to an escaping member of the German army did not constitute war crimes, but were crimes in the domestic sphere of German military law and jurisdiction. Not all violations of international humanitarian law are to be regarded as war crimes.

The starting point is that the violation must involve a serious breach of a rule of international law that protects substantial values, and that causes individual criminal responsibility according to either international customary law or treaty based law. Repak case , Judgment, 12 April , p. In its judgment, the Court noted:. Here, the petitioner is a Filipino citizen though of a Japanese father, and associating himself with Japan in the war against the United States of America and the Philippines, committed atrocities against unarmed and noncombatant Filipino civilians and looted Filipino property.

He is, indeed, a war criminal subject to the jurisdiction of the military commission, and his confinement by the respondent is not illegal. In re Yamashita, 66 Sup. C antos case, Judgment, 28 June The defence claimed that the accused did not know of the use to which the gas was to be put. For Drosihn it was also pleaded that the supply of gas was beyond his control.

Tesch and Weinbacher were condemned to death. Drosihn was acquitted. Zyklon B case , Judgment, 1—8 March In a number of post-Second World War decisions, US courts held that war crimes could be committed by civilians. The cases included prosecutions against the staff of a State sanatorium for the extermination of civilians deported from occupied territories; officials of companies which supplied the gas used for the extermination of concentration camp detainees; and high-ranking officials in private corporations for, inter alia , deportation of the civilian populations of occupied territories to slave labour and plunder of public and private property in occupied territories.

Acts adjudged criminal when done by an officer of the government are criminal also when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona. The application of international law to individuals is not a novelty. Farben Trial , Judgment, 14 August —29 July Handel case , Judgment, 31 January Kudriavtsev eds. The tribunal held:. War crimes, which were first defined in the Charter of the International Military Tribunal of Nuremberg of 8 August [ IMT Charter Nuremberg ], are not always connected to the offence of military rebellion.

These crimes, according to the [] Rome Statute of the International Criminal Court, must be committed as part of a plan or policy or on a large-scale and, broadly speaking , refer to various acts against persons and objects that include: grave breaches of the Geneva Conventions of 12 August or other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, in the case of international armed conflicts; or serious violations of article 3 common to the four Geneva Conventions of 12 August , among others, in the case of an armed conflict not of an international character, and not including situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

These war crimes can initiate with a military rebellion but this does not mean that every military rebellion … will result in … a war crime. Thus, it cannot be said that a military rebellion is always an offence connected with war crimes. Recao case , Judgment, 27 July , Section V, pp. The cited provisions of Geneva Convention IV establish that, in general, a person commits a crime of war only if:. Other National Practice. Australia further declares its understanding that the offences in Article 6, 7 and 8 [related to Genocide, Crimes Against Humanity and War Crimes, respectively] will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law.

OpenDocument last accessed on 17 February In an explanatory memorandum submitted in to the Belgian Senate in the context of the adoption of the Draft Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, it was stated that the law reserved the application of other criminal provisions applicable to other breaches of the conventions to which it referred. An early draft of this law was amended in order to include acts committed in the context of non-international conflicts that corresponded to the grave breaches of the Geneva Conventions and the Additional Protocol I.

Among the reasons for the inclusion of acts committed in the context of non-international conflicts, members of the Senate who submitted the amendment mentioned, inter alia , that international law did not prohibit such criminalization. The Report on the Practice of Belgium notes that the Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols shows that Belgium believes that the grave breaches aimed at by the Geneva Conventions and the Additional Protocol I are also war crimes when committed in a non-international armed conflict.

Report on the Practice of Belgium, , Chapter. The report further states:. This definition predates the Geneva Conventions of and is fundamentally based on the Law of The Hague that originated in the Peace Conferences of and … The definitions laid down by the Code of Military Justice are understood to form part of customary international law. Report on the Practice of Chile, , Chapter 6. In , during a debate in the Sixth Committee of the UN General Assembly on the establishment of an international criminal court, China stated:. In , a training manual by the prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo.

When explaining the constitutive elements of crimes, the training manual states:. Actus reus … describes the prohibited conduct which is adopted by the accused …. Thus, for war crimes, the fact that a specific crime murder, rape, etc. Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes , adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, , p.

Thus, the concept of war crimes as it was recognized in the [ IMT Charter Nuremberg ] had already existed in He added that it was agreed that in practice the Statute would reflect existing law. As regards the definition of war crimes, endorsement must be made [in the ICC Statute] of the grave breaches of international humanitarian law committed in international as well as in internal armed conflicts, as defined by the Geneva Conventions and their two additional Protocols.

Some States are entirely opposed to the idea that the definition of war crimes may apply to internal conflicts. But accepting this restriction would be a retrograde step. Here in Rome we must find a workable solution to this problem. Articles 22 and 26 of the draft statute [for an international criminal court] contained criteria for jurisdiction.

First, the court would have jurisdiction over the crimes defined in international treaties as set forth in article 22 [containing a list of crimes including, inter alia , genocide, grave breaches of the Geneva Conventions and the Additional Protocol I, apartheid and related crimes, crimes against internationally protected persons and hostage-taking and related crimes].

The treaties listed in article 22 covered most of the crimes which called for international prosecution.

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It was somewhat surprising, however, that the crime of torture as defined in article 1 of the [ Convention against Torture] was not included in the list. Second, the court would be competent to try crimes under general international law as stipulated in Article 26 2 a of the draft statute [providing for the possibility of special acceptance of jurisdiction by States in respect of other international crimes not covered by Article 22]. However, the principle nullum crimen sine lege required clarity and precision in the definition of crimes in the statute. The Report on the Practice of the Netherlands, referring to an interview with a legal adviser of the Ministry of Justice of the Netherlands, states:.

A violation [of IHL other than a grave breach] has to be as severe as is required for a grave breach in order to be a war crime. The Ministry of Justice does not make a distinction between international and internal armed conflicts regarding the grave breaches regime.

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This means that definitions of war crimes in the Geneva Conventions become customary. The offences contained in the Statute of the International Criminal Court ICC reflect international law provisions that were already applicable to the conduct of United Kingdom of Great Britain and Northern Ireland forces in any theatre of engagement. The ICC Statute does not therefore impose new conditions.

Under the Statute, investigation and, if necessary prosecution of any allegations of war crimes, crimes against humanity or genocide by a UK national would be carried out by the UK. The Court would intervene only if it determined that a state was unwilling or unable to pursue a particular case, but it is inconceivable that the UK would ever be unable or unwilling to investigate or take appropriate action.

Hansard , 28 January , Vol. According to the Report on US Practice, the United States considers any violation of the law of war a war crime, provided the accused had the requisite criminal intent at the time of his or her participation in the violation. The report adds that conspiracy to violate the laws of war, inciting violations and aiding and abetting violations of the laws of war are also punishable as war crimes. Report on US Practice, , Chapter 6. The memorandum stated in part:. Armed Forces. It criminalizes such conduct whether it occurs inside or outside the United States, including conduct within the special maritime and territorial jurisdiction.

See id. We have previously concluded that this statute does not apply to conduct toward the members of al Qaeda and the Taliban. See Treaties and Laws Memorandum at 8—9. We reached this conclusion because we found al Qaeda to be a non governmental terrorist organization whose members are not legally entitled to the protections of GPW [ Geneva Convention III]. Since its members cannot be considered to be POWs [prisoners of war] under the Convention, conduct toward members of al Qaeda could not constitute a grave breach of the Geneva Conventions. See 18 U. We further found that common Article 3 of the Geneva Conventions covers either traditional wars between state parties to the convention or non-international civil wars, but not an international conflict with a non-governmental terrorist organization.

As a result, conduct toward members of al Qaeda could not constitute a violation of common Article 3, see Treaties and Law Memorandum at 9, and thus could not violate Section c 3. See Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. On February 7, , the President determined that these treaties did not protect either the Taliban or al Qaeda ….

Thus, section is inapplicable to conduct toward members of the Taliban or al Qaeda. See Letter for William H. Indeed, our conflict with al Qaeda does not directly involve any distinct civilian population. Rather, al Qaeda solely constitutes a group of illegal belligerents who are dispersed around the world into cells, rather than being associated with the civilian population of a nation-state.

As we have explained, neither members of the al Qaeda terrorist network nor Taliban soldiers are entitled to the legal status of prisoners of war under the GPW. See Treaties and Laws Memorandum at 8 Jan. Lindh, F. Interrogation of al Qaeda or Taliban members therefore cannot constitute a war crime because article 8 of the Rome Statute applies only to those protected by the Geneva Conventions. In September , the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency CIA detention program thus publicly revealing that such a program existed into military custody:.

Some may ask: Why are you acknowledging this [CIA] program now? First, we have largely completed our questioning of the men — and to start the process for bringing them to trial, we must bring them into the open.


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Rumsfeld, US ] has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act — simply for doing their jobs in a thorough and professional way. This is unacceptable. They have risked their lives to capture some of the most brutal terrorists on Earth.

And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people. United Nations. In a resolution adopted in on the status of the Protocols Additional to the Geneva Conventions of and relating to the protection of victims of armed conflicts, the UN General Assembly:.

Acknowledging the fact that the Rome Statute of the International Criminal Court, which entered into force on 1 July , includes the most serious crimes of international concern under international humanitarian law, and that the Statute, while recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for such crimes, shows the determination of the international community to put an end to impunity for the perpetrators of such crimes and thus to contribute to their prevention.

UN General Assembly, Res. In a resolution adopted in on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights:. Reaffirming the applicability of the Fourth Geneva Convention to the Palestinian territories occupied since the June war, including East Jerusalem,. Also strongly condemns acts that consist of imposing collective punishments, military siege of Palestinian territories, isolating Palestinian towns and villages from each other by military roadblocks used as a trap to kill Palestinians, demolishing houses and levelling agricultural lands, as these practices contribute, together with other factors, to the acts of violence that have prevailed in the region for over three and a half years, and calls upon the Government of Israel immediately to put an end to these practices and to lift its military siege of Palestinian towns and villages and its military roadblocks, and affirms anew that such collective punishments are prohibited under international law, as they constitute grave violations of the provisions of the Fourth Geneva Convention and Additional Protocol I thereto, and are also war crimes;.

Affirms anew that the demolitions carried out by the Israeli occupying forces of at least 30, Palestinian houses, facilities and property constitute grave violations of articles 33 and 53 of the Fourth Geneva Convention and that acts of levelling farmlands, uprooting trees and destroying what is left of the Palestinian infrastructure constitute a form of collective punishment to which Palestinians are subjected, grave violations of the provisions of international humanitarian law and war crimes according to international law.

Subparagraph b of article 22 [which includes grave breaches of the Geneva Conventions and the Additional Protocol I in the list of crimes defined by treaties] does not include [the Additional Protocol II] because this protocol contains no provision concerning grave breaches. Yearbook of the International Law Commission , , Vol.


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Other International Organizations. International Conferences. International and Mixed Judicial and Quasi-judicial Bodies. A war crime is committed if there is a nexus between the criminal act in question and the armed conflict … the Elements of Crimes require that the conduct in question took place in the context of and was associated with an armed conflict. In this respect, the Chamber follows the approach of the jurisprudence of the ICTY, which requires the conduct to have been closely related to the hostilities occurring in any part of the territories controlled by the parties to the conflict.

The armed conflict need not be considered the ultimate reason for the conduct and the conduct need not have taken place in the midst of battle. Having established the existence of an armed conflict, the Chamber observes that in order for a particular crime to qualify as a war crime within the meaning of article 8 2 b xxvi and 8 2 e vii of the [ ICC] Statute, at this stage, the Prosecution must establish that there are substantial grounds to believe that there is sufficient and clear nexus between that crime and the conflict. In other words, it must be proved that there are substantial grounds to believe that the alleged crimes were closely related to the hostilities.

On the basis of the evidence submitted for the purposes of the confirmation hearing, the Chamber is satisfied that there are substantial grounds to believe that the crimes set out above, which the Chamber found substantial grounds to believe were committed by FDLR troops, took place in the context of and were associated with the abovementioned armed conflict of a non international character in the North and South Kivus. The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity.

The Pre-Trial Chamber did not confirm the charges. For the purposes of an international criminal Tribunal which is trying individuals, it is not sufficient merely to affirm that Common Article 3 [of the Geneva Conventions] and parts of Article 4 of Additional Protocol II — which comprise the subject-matter jurisdiction of Article 4 of the [ ICTR] Statute — form part of international customary law.

Even if Article 6 of the Statute provides for individual criminal responsibility as pertains to Articles 2, 3 and 4 of the Statute, it must also be shown that an individual committing serious violations of these customary norms incurs, as a matter of custom, individual criminal responsibility thereby.

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Otherwise, it might be argued that these instruments only state norms applicable to States and Parties to a conflict, and that they do not create crimes for which individuals may be tried. Furthermore, the Trial Chamber in the Akayesu Judgement concluded that violations of these norms would entail, as a matter of customary international law, individual responsibility for the perpetrator. It was also recalled that as Rwanda had become a party to the Geneva Conventions and their Additional Protocols, on 5 May and 19 November , respectively, these instruments were in any case in force in the territory of Rwanda in , and formed part of Rwandan law.

Thus, Rwandan nationals who violated these international instruments incorporated into national law, including those offences as incorporated in Article 4 of the Statute, could be tried before the Rwandan national courts. The Chamber therefore concludes that, at the time the crimes alleged in the Indictment were perpetrated, persons were bound to respect the provisions of the Geneva Conventions and their Additional Protocols, as incorporated in Article 4 of the [ ICTR] Statute.

Violations thereof, as a matter of custom and convention, attracted individual criminal responsibility and could result in the prosecution of the authors of the offences. Jurisprudence of this Tribunal has established that Common Article 3 and Additional Protocol II were applicable as a matter of custom and convention in Rwanda in Consequently, at the time the events in the Indictment are said to have taken place, persons who violated these instruments would incur individual criminal responsibility and could be prosecuted therefore.

Common Article 3 and Additional Protocol II afford protection to, inter alia , civilians, non-combatants and persons placed hors de combat , in the context of internal armed conflicts.


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Such conflicts must meet a minimum threshold requirement to fall within the ambit of these instruments. This rules out acts of banditry and internal disturbances but covers hostilities that involve armed forces organized to a greater or lesser extent. To be covered by Common Article 3, the hostilities must take place within the territory of a single State ….

Additional Protocol II offers a higher threshold of applicability inasmuch it applies to conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Whether a conflict meets the material requirements of the above instruments is a matter of objective evaluation of the organization and intensity of the conflict and of the forces opposing one and another. Once the material requirements of Common Article 3 or Additional Protocol II have been met, these instruments will immediately be applicable not only within the limited theatre of combat but also in the whole territory of the State engaged in the conflict.

Consequently, the parties engaged in the hostilities are bound to respect the provisions of these instruments throughout the relevant territory. For a violation to be covered by Article 4 of the Statute it must be deemed serious. Regarding the elements of murder, as covered by Article 4 a of the [ ICTR] Statute, the Chamber refers to its definition of murder in 3. Common Article 3 and Additional Protocol II afford protection primarily to victims or potential victims of armed conflicts.

In the case of Common Article 3, these individuals are persons taking no active part in the hostilities and, under Additional Protocol II, the protection is extended to all persons who do not take or who have ceased to take part in the hostilities. In the present matter, it is clear that the victims of the events alleged are unarmed men, women, and children, all civilians. To take a direct or active part in the hostilities covers acts which by their very nature or purpose are likely to cause harm to personnel and equipment of the armed forces.

In assessing whether or not an individual can be classed as being a civilian, the overall humanitarian purpose of the Geneva Conventions and their Protocols should be taken into account. For a crime to constitute a serious violation of Common Article 3 and Additional Protocol II, there must be a nexus between the offence and the armed conflict. As such, it is not necessary that actual armed hostilities have broken out in Mabanza commune and Kibuye Prefecture for Article 4 of the [ ICTR] Statute to be applicable.

Moreover, it is not a requirement that fighting was taking place in the exact time-period when the acts the offences alleged occurred were perpetrated. The Chamber will determine whether the alleged acts were committed against the victims because of the conflict at issue. These crimes included genocide, crimes against humanity and serious violations of common Article 3 of the Geneva Conventions and of the Additional Protocol II. In its judgment in , the Trial Chamber found the accused guilty of complicity to commit genocide, as well as various crimes against humanity, including rape, torture, murder and extermination.

He was, however, found not guilty on any of the three counts related to serious violations of common Article 3 common of the Geneva Conventions and of the Additional Protocol II. Although the Trial Chamber found that a number of the acts of the accused had constituted serious violations of common Article 3, the Trial Chamber declined to enter convictions for these acts due to the application of the law on cumulative convictions.

He was sentenced to a total of 24 years and 6 months of imprisonment. The fundamental question that must be answered is whether these civilians [against whom crimes had been committed] became the victims, not only of genocide and of certain crimes against humanity, but also of the armed conflict. A direct connection between the alleged crimes, referred to in the Indictment, and the armed conflict should be factually established. No test therefore can be defined in abstracto. For example, in Rutaganda , it was not sufficient for the Prosecutor to simply allege in a general manner that the Interahamwe orchestrated massacres as part of their support for the Rwandan Armed Forces and that, ipso facto , the acts of the Accused, who held a leadership position in that organization, also formed part of this support.

Such an approach is not justified without showing the nexus between each criminal act and the armed conflict. Therefore, at the threshold, it must first be established whether the genocidal massacres at the three sites and the alleged crimes committed against Rusanganwa and Victims A and B constitute war crimes or, in other words, whether there is a nexus between these crimes and the armed conflict. The jurisprudence on cumulation of convictions is settled.

An element is materially distinct from another if it requires proof of a fact not required by the other. In the present case, convictions were not entered under Article 4 of the Statute due to apparent ideal concurrence with complicity to commit genocide Count 3 and crimes against humanity Counts 10, 11 and In the opinion of the Appeals Chamber this constitutes an error.

Simultaneous convictions are permissible for war crimes, crimes against humanity and complicity to commit genocide as each has a materially distinct element. As noted earlier, the mens rea for complicity in genocide, for those forms of complicity amounting to aiding and abetting, is knowledge of the specific intent of the perpetrator s. In the view of the Appeals Chamber, the Trial Chamber erred when it failed to enter convictions for serious violations of Common Article 3 of the Geneva Conventions and of the Additional Protocol II thereto under Count 7 for having aided and abetted the intentional murders committed at Musha church and Mwulire hill , and under Count 13 for having instigated the rape and torture of Victim A and murder of Victim B, and for having committed torture and intentional murder of Rusanganwa.

The Appeals Chamber subsequently reversed the acquittals and entered convictions for serious violations of common Article 3 in respect of Count 7 for ordering murder and aiding and abetting murder and in respect of Count 13 for instigating rape and torture, for murder and for committing torture and intentional murder. The Appeals Chamber also found that the Trial Chamber had erred in its finding that the accused did not have the necessary authority to render him liable for ordering the attacks that had resulted in charges of genocide and extermination in respect of the massacre at Musha Church.

It therefore entered a conviction for ordering genocide and for ordering extermination in relation to that massacre. In defining the elements required for conviction … the Trial Chamber held that there must be a nexus between the offence and an armed conflict in order to satisfy the material requirements of common Article 3 of the Geneva Conventions and of Article 1 of Additional Protocol II to the Geneva Conventions. 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:.

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. 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. It is only necessary to explain two matters.

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. The provisions of Common Article 3 and Additional Protocol II, as incorporated in Article 4 of the Statute, are expressly applicable to alleged offences committed within the context of conflicts of a non-international character.

Accordingly, the Chamber must address the question whether the conflict in Rwanda falls within the ambit of these provisions. Therefore, Common Article 3 is applicable to any non-international armed conflict within the territory of a state party. In general, non-international armed conflicts referred to in Common Article 3 are conflicts with armed forces on either side engaged in hostilities that are in many respects similar to an international war, but take place within the confines of a single country.

The category of persons who are accountable under this article for war crimes on civilians is not limited. Similarly, Common Article 3 and Additional Protocol II do not specify classes of potential perpetrators but rather indicate who are bound by the obligations imposed by their provisions to protect victims and potential victims of armed conflicts. However, further clarification of the class of potential perpetrators is unnecessary in view of the principal purpose of these instruments, which is to protect victims of armed conflicts.

Indeed it is well established from the jurisprudence of the International Tribunals that the protections of Common Article 3, as incorporated in Article 4 of the Statute, imply effective punishment of perpetrators, whoever they may be. In this regard, the Appeals Chamber in its judgment in the Akayesu case held that:.

The minimum protection provided for victims under common Article 3 implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. 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.

The Akayesu Appeals Chamber also held that there need be no requisite link between the perpetrator and one of the parties to the conflict. Accordingly, criminal responsibility for the commission of any act covered by Article 4 of the Statute is not conditional on any defined classification of the alleged perpetrator. The protections of both Common Article 3 and Additional Protocol II, as incorporated in Article 4 of the Statute, extend to persons taking no active part in the hostilities.

If the answer to this question is the negative, then the alleged victim was a person protected under Common Article 3 and Additional Protocol II. For a criminal offence to fall within the ambit of Article 4 of the Statute, the Chamber must be satisfied that a nexus existed between the alleged breach of Common Article 3 or of Additional Protocol II and the underlying armed conflict.

The objective of this requirement of a nexus between the crimes committed and the armed conflict can best be appreciated in light of the underlying humanitarian purpose of these instruments to protect victims of internal conflicts, not victims of offences unrelated to the hostilities, however reprehensible such offences may be. The existence of the requisite nexus at the time of the alleged crime is an issue for determination on the evidence presented. Indeed the Appeals Chambers have stated:.

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. These criteria are not exhaustive of the factors indicating the existence of a close relationship between a particular offence and an armed conflict. Pursuant to Article 4 of the Statute, the Tribunal has been granted jurisdiction to prosecute serious violations of Common Article 3 and of Additional Protocol.

On this basis, the Tribunal has expressed the view, with which this Chamber concurs, that the acts articulated in Article 4 of the Statute, constituting serious violations of Common Article 3 and Additional Protocol II, entail individual criminal responsibility. The Chamber explained in the Semanza Judgement that in connection with crimes within the scope of Article 4 of the [ ICTR] Statute, the Prosecutor must prove … the following elements: 1 the existence of a non-international armed conflict on the territory of the concerned state; 2 the existence of a nexus between the alleged violation and the armed conflict; and 3 the victims were not directly taking part in the hostilities at the time of the alleged violation.

If these elements are proven beyond a reasonable doubt, the Chamber will proceed to assess whether the accused is responsible for a specific violation of Common Article 3 or Additional Protocol II. The only limitation is that such infringements must not be already covered by Article 2 lest this latter provision should become superfluous. The following requirements must be met for an offence to be subject to prosecution before the International Tribunal under Article Those requirements apply to any and all laws or customs of war which Article 3 covers.

In relation to requirements i and ii , it is sufficient to note that the Appeals Chamber has held, on the basis of the Nicaragua case , that Common Article 3 [of the Geneva Conventions] satisfies these requirements as part of customary international humanitarian law. Finally, in relation to the fourth requirement, namely that the rule of customary international humanitarian law imposes individual criminal responsibility, the Appeals Chamber held in the Appeals Chamber Decision that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.

Consequently, this Trial Chamber has the competence to hear and determine the charges against the accused under Article 3 of the Statute relating to violations of the customary international humanitarian law applicable to armed conflicts, as found in Common Article 3. In other words, subject to the provisions of Article 4 2 , the Convention intends to protect civilians in enemy territory, occupied territory or the combat zone who do not have the nationality of the belligerent in whose hands they find themselves, or who are stateless persons.

In addition, as is apparent from the preparatory work, the Convention also intends to protect those civilians in occupied territory who, while having the nationality of the Party to the conflict in whose hands they find themselves, are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection.

The Appeals Chamber, in its discussion of Article 3, proceeded further to enunciate four requirements that must be satisfied in order for an offence to be considered as within the scope of this Article. These requirements are the following:. This Trial Chamber finds no reason to depart from the position taken by the Appeals Chamber on this matter. It covers any serious violation of a rule of customary international humanitarian law entailing, under international customary or conventional law, the individual criminal responsibility of the person breaching the rule.

It is immaterial whether the breach occurs within the context of an international or internal armed conflict. The Prosecution contended that the provisions of the Regulations annexed to the Hague Convention IV of constitute international customary rules which were restated in Article 6 b of the Nuremberg Statute. Violations of these provisions incur the individual criminal responsibility of the person violating the rule.

Conversely, the Defence did not acknowledge that violations of the laws or customs of war within the meaning of Common Article 3 of the Geneva Conventions had ever been upheld to impose criminal sanctions upon individuals. The Trial Chamber recalls that violations of Article 3 of the [ ICTY] Statute which include violations of the Regulations of The Hague and those of Common Article 3 are by definition serious violations of international humanitarian law within the meaning of the Statute.

They are thus likely to incur individual criminal responsibility in accordance with Article 7 of the Statute. The Trial Chamber observes moreover that the provisions of the criminal code of the SFRY [Socialist Federal Republic of Yugoslavia], adopted by Bosnia-Herzegovina in April , provide that war crimes committed during internal or international conflicts incur individual criminal responsibility. The Appeals Chamber in the Jurisdiction Decision further identified four requirements specific to Article First, there must have been an armed conflict, whether internal or international in character, at the time the offences were allegedly committed.

In view of the jurisprudence of the Tribunal, the Chamber must be satisfied of four additional requirements:. In addition, there are four conditions which must be fulfilled before an offence may be prosecuted under Article 3 of the [ ICTY] Statute:.

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As argued by the parties, in addition to the requirements common to Articles 3 and 5 of the [ ICTY] Statute, four additional requirements specific to Article 3 must be satisfied in respect of the crime of murder as a violation of the laws or customs of war:. The violation must constitute an infringement of a rule of international humanitarian law;. The rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […];. The violation of the rule must entail, under customary or conventional law, the individual responsibility of the person breaching the rule.

By analogy, violations of Additional Protocol I incur individual criminal liability in the same way that violations of Common Article 3 give rise to individual criminal liability. It is also settled that Article 3 is a general, residual clause covering all serious violations of international humanitarian law not falling under Articles 2, 4, or 5 of the Statute, as well as violations of Common Article 3 of the Geneva Conventions, which specifically applies to cases of armed conflict not of an international character.

Both the Prosecution and the Amici Curiae agree as to the requirement of an armed conflict for Articles 3 and 5 of the Statute.

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This calls for an examination of 1 the organisation of the parties to the conflict and 2 the intensity of the conflict. To fall within this residual jurisdiction, the offence charged must meet four conditions: i it must constitute an infringement of a rule of international humanitarian law; ii the rule infringed upon must be customary in nature or, if it belongs to treaty law, the treaty provisions were unquestionably binding on the parties at the time of the alleged offence and do not derogate from peremptory norms of international law; iii the violation must be serious, that is to say, it must involve a breach of a rule protecting important values and the breach must have grave consequences for the victim; and iv the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

Once jurisdiction is established, there are two general conditions that must be met for the applicability of Article 3 of the Statute: first, there must be an armed conflict; and second, there must be a nexus between the alleged offence and the armed conflict. Armed conflict … As indicated above, the nature of the conflict internal or international is immaterial for the purposes of Common Article 3 [of the Geneva Conventions]. The final requirement for the application of an Article 3 charge based on Common Article 3 is that the victim was taking no active part in the hostilities at the time the offence was committed.

This covers, among other persons, members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. The perpetrator must know or should have known the status of the victims as persons taking no active part in the hostilities. Following a plea agreement jointly filed by the accused and the Prosecution, the accused pleaded guilty to the charges. The Trial Chamber accepted the plea and entered a corresponding finding of guilt, being satisfied that the preconditions for the crimes charged were fulfilled:.

The common elements of Article 3 crimes are that, first, there was an armed conflict, whether international or non-international in character, at the time the offences were committed. The Trial Chamber is satisfied, from the material provided to it, that these prerequisites are met in the present case. First, there must have been an armed conflict at the time the offences were allegedly committed. There are four preconditions to the applicability of Article 2 of the [ ICTY] Statute: i the existence of an armed conflict; ii the establishment of a nexus between the alleged crimes and the armed conflict; iii the armed conflict must be international in nature; and iv the victims of the alleged crimes must qualify as protected persons pursuant to the provisions of the Geneva Conventions.

In linking the offences to the armed conflict, it is not necessary to establish that actual combat activities occurred in the area where the crimes are alleged to have occurred. Clearly, an armed conflict is international in nature if it takes place between two or more States. In addition, an internal armed conflict may become international if i another State intervenes in that conflict through its troops, or, alternatively, ii some of the participants in the internal armed conflict act on behalf of that other State. There are three different tests, specific to the circumstances, to determine the degree of control that a foreign State has over armed forces fighting on its behalf.

For armed forces, militias or paramilitary units acting as de facto organs of the State, the establishment of the overall character of the control suffices. 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 i organising, coordinating or planning the military actions of the military group, in addition to ii financing, training and equipping or providing operational support to that group.

These two elements must both be satisfied. Each of the four Geneva Conventions respectively sets out the conditions under which a person or property is protected by its provisions. Persons not entitled to protection under the first three Geneva Conventions, necessarily fall within the ambit of Geneva Convention IV, which applies to civilians, provided that the requirements of Article 4 of Geneva Convention IV are satisfied.

The criterion of nationality might exclude certain victims of crimes from the category of protected persons. However, it is settled jurisprudence of this Tribunal that protected persons should not be defined by the strict requirement of nationality, as opposed to more realistic bonds demonstrating effective allegiance to a party to a conflict, such as ethnicity.

This Trial Chamber agrees with and will follow this approach. The application of Article 3 of the Statute presupposes that the alleged acts of the accused have been committed in an armed conflict. It is immaterial whether this conflict was internal or international in nature. A close nexus must exist between the alleged offence and the armed conflict. Some of the prerequisites for the application of Article 3 of the Statute may differ depending on the specific basis of the relevant charges brought under this Article. First, there must be an armed conflict, whether international or internal, at the time material to the Indictment.

Crimes committed anywhere in the territory under the control of a party to the conflict, until a peaceful settlement of the conflict is achieved, fall within the jurisdiction of the Tribunal. Two criteria are to be assessed under this test: i the intensity of the conflict and ii the organisation of the parties. Both are factual matters which ought to be determined in light of the particular evidence available and on a case-by-case basis. 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.

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. Further, to meet the jurisdictional preconditions of Article 3 of the Statute, the Prosecution must establish a sufficient link between the alleged acts of the accused and the armed conflict.

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. It is established in the jurisprudence of the Tribunal that for an offence to fall under the scope of Article 3 of the Statute, four conditions must be met:. In the present case, the three Accused are charged with three counts of violations of the laws and customs of war pursuant to Article 3 of the Statute, for cruel treatment, torture and murder.

All three counts are based on Common Article 3 of the Geneva Conventions. It is settled jurisprudence that violations of Common Article 3 fall within the scope of Article 3 of the Statute.

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In particular, it is now established that Common Article 3 forms part of customary international law and that violation of this provision entails criminal liability. Further, as Common Article 3 protects persons taking no active part in the hostilities, it must be established that the victims of the alleged violation were not taking active part in the hostilities at the time the crime was committed.

Under Article 3 of the Statute, it is immaterial whether the crimes alleged in the Indictment occurred within an internal or international armed conflict. In order for the Tribunal to have jurisdiction over crimes punishable under Article 3 of the Statute, two preliminary requirements must be satisfied: i a state of armed conflict must have existed at the time the offence was committed and ii the offence must be closely related to the armed conflict. As to the first requirement, it is well-settled in the jurisprudence of the Tribunal that an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.

Although the warring parties do not necessarily need to be as organised as the armed forces of a State, some degree of organisation is necessary to establish the existence of an armed conflict. However, this determination depends upon an examination of the specific circumstances of each case. The temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities. 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.

Thus, the norms of international humanitarian law apply regardless of whether actual combat activities are taking place in a particular location. The second requirement, namely that the alleged offences be closely related to the armed conflict, does not necessitate that the said offences be committed whilst fighting is actually taking place or at the scene of combat.

As the Appeals Chamber has affirmed, the armed conflict need not have been causal to the commission of the crime. Therefore, this requirement would be fulfilled if the alleged offence was committed either during or in the aftermath of the hostilities, provided that it was committed in furtherance of, or at least under the guise of, the situation created by the armed conflict. Some requirements for Article 3 of the Statute to apply may differ depending on the specific legal basis of the charges brought under this Article. To fulfil this requirement, it is sufficient to examine the relevant facts of each victim and to ascertain whether that person was actively involved in the hostilities at the relevant time.

The Trial Chamber found the accused guilty of the failure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of murder and cruel treatment from 27 December to 20 March The application of Article 3 of the Statute presupposes the existence of an armed conflict and a nexus between the alleged crime and the armed conflict.

Moreover, four additional [conditions] must be fulfilled for a crime to be [prosecuted] under Article 3 of the Statute. When an accused is charged with violation of Article 3 of the Statute, based on a violation of Common Article 3, it is immaterial whether the armed conflict was international or non-international in nature. Article 3 which is common to all four Geneva Conventions of 12 August defines certain rules to be applied in the armed conflicts of a non-international character.

Reports , p. In light of this general applicability of the provisions of Common Article 3, there is no need for the Trial Chamber to define the nature of the conflict in the present case. The Defence argued that for the alleged crimes it was not proven that the crimes were not isolated or random acts. The charge of murder as a violation of the laws and customs of war in the present case is based on Common Article 3. It is well established that Article 3 of the Statute encompasses violations of Common Article 3. It is also well established that Common Article 3 is part of international customary law, that murder is a serious violation of international humanitarian law, which has grave consequences for the victim and it also entails individual criminal responsibility.

For the application of any Article 3 charge based on Common Article 3, the Prosecution must also prove that the victim was a person taking no active part in the hostilities at the time the crime was committed. The Trial Chamber finds that it is the specific situation of the victim at the moment the crime was committed that must be taken into account in determining his or her protection under Common Article 3. The Trial Chamber considers that relevant factors in this respect include the activity, whether or not the victim was carrying weapons, clothing, age and gender of the victims at the time of the crime.

While membership of the armed forces can be a strong indication that the [victim] is directly participating in the hostilities, it is not an indicator which in and of itself is sufficient to establish this.