Redefining Armed Conflict as a Jurisdictional Prerequisite
Elizabeth A. Koehn*
Imagine yourself in the middle of
International criminal courts are unique judicial bodies that try war crimes and other violations of international criminal law. National courts also have jurisdiction to try war–crimes cases, but must defer to some International Courts that choose to exercise jurisdiction. When an International court, the International Criminal Tribunal for the Former Yugoslavia, for example, exercises its jurisdiction, it divests national courts with jurisdiction of their power to hear the same case. This transfer of jurisdiction from a national court to an international court can occur only when an armed conflict exists. In other words, the existence of an armed conflict is an international court’s jurisdictional prerequisite to trying individuals for violations of war crimes.
This paper examines the criteria of existence of an
armed conflict, and thus the criteria required to satisfy an
paper argues that the concept of armed conflict should be broadened to include
those cases when a state’s court would not be able to prosecute crimes because
of a corrupt or ineffective judicial system or political bias. The meaning of
armed conflict should also be broadened to include close cases where an
international criminal tribunal could exercise jurisdiction to create a more
just result. Lastly, the concept of armed conflict should be tailored to ensure
that non-participants of an armed conflict are not given the benefits of jus
An international criminal tribunal has jurisdiction to try an individual for violations of war crimes only if an armed conflict exists. In other words, war crimes are defined as certain conduct occurring in or in conjunction with an armed conflict. When an international criminal tribunal hears the preliminary issues of any criminal case it must decide the issue of jurisdiction. Similarly, a national court will address the issue of jurisdiction and recognize the existence or non-existence of an armed conflict if it is the forum hearing the case. It is important to note, as an introductory matter, that no external institution exists to vest an international court with the power to hear a case or divests a national court to do the same. Moreover, it is theoretically possible that an international criminal tribunal and a state’s domestic courts may both try the crimes at issue by reaching opposite conclusions on the existence of an armed conflict.
Before considering the scope of an armed conflict as a jurisdictional prerequisite, two preliminary issues must be addressed. First, what law is applicable when an individual is tried for violation of a war crime? Second, which courts may try war crimes under international law?
This paper focuses on an individual’s liability for violations of war crimes under international law. An individual’s criminal liability was recognized as early as 1946 at the Nuremburg trial. There, the court stated, “that international law imposes duties and liabilities upon individuals as well as upon some states has long been recognized. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
The law that
enforces such liability has long-established roots. The law of
All of the Pre-1949 international treaties applied the laws of war only when the conflict at issue occurred between states, that is, when a conflict of international character existed. After World War II and the Nuremburg and Tokyo Tribunals, the Geneva Conventions were drafted to address international conflicts and internal conflicts. This paper focuses on these conflicts called “internal armed conflicts.” The law that governs those conflicts is the Third Article in each of the four Geneva Conventions and is referred to as “Common Article 3.”
Common Article 3 specifically extends the Geneva Conventions to internal conflicts. It refers to ‘armed conflicts not of international character occurring in one of the High Contracting Parties. Common Article 3 provides in relevant part:
(1) Persons taking no active part in the hostilities…shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
Common Article 3’s provisions provide minimum standards of protection to persons not participating in hostilities during internal armed conflicts. Thus, the Article protects those classes of people deemed most vulnerable when conflict occurs. Moreover, a notable feature of Common Article 3 is that it purports to impose obligations on any party to a non-international armed conflict, not just on signatory states to the Geneva Conventions. Thus, Common Article 3’s protections are potentially expansive, but as this paper will discuss, the scope of Article 3’s application is quite ambiguous.
establishment of international criminal tribunals, national courts tried war
crimes and still have the obligation to do so under international law.
In 1992, the International Criminal Tribunal for Former Yugoslavia (‘ICTY’),
under the ICTY Statute, became the first international criminal court empowered
by the U.N. Security Council to adjudicate war crimes under international law. One year later, the Security Council established
the International Criminal Tribunal for
The Statute for
the ICTY clearly articulates the Tribunal’s geographic and temporal
jurisdiction. Article 1 states: “The International Tribunal shall have the
power to prosecute persons responsible for serious violations of international
humanitarian law committed in the territory of the former
According to the ICTY Statute, subject matter jurisdiction of the ICTY is divided into four general categories: 1) Grave breaches of the Geneva Conventions of 1949 (Article 2); 2) violation of the laws and customs of war (Article 3); 3) Genocide (Article 4); and 4) Crimes against humanity (Article 5). Because this paper focuses on Common Article 3’s provisions, it is important to note that it is well settled that violations of Common Article 3 are included within the scope of Article 3 of the ITCY Statute. Thus, the ICTY has jurisdiction over violations of Common Article 3 via Article 3 of the ICTY Statute. In addition, ICTY found that Common Article 3 has attained the status of customary international law. As previously noted, even when a state does not proclaim that it has adopted Common Article 3 to for the purposes of an internal state conflict, a court may still hold Common Article 3’s provisions applicable. Therefore, Common Article 3 has a potentially far-reaching scope. 
Unfortunately, the text of Common Article 3 does not clarify the problem of applicability, that is, to what conduct the provisions apply. It lacks any definition of “an armed conflict not of international character.” But, Common Article 3 is still some of the only legal authority that defines the scope and applicability of internal armed conflicts.
which govern the activity of participants in an armed conflict are categorized
into one of two categories: jus ad bellum and jus in
Within the context of an armed conflict, two sub-categories exist: 1) international armed conflicts, and 2) internal armed conflicts. International conflicts are those conflicts between two or more States. Article 2 of the Geneva Conventions governs “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if a state of war is not recognized by one of them.” Internal conflicts are those occurring within one State. By definition, they are not international and are governed by Common Article 3. To reiterate, Common Article 3 explicitly states that it governs “in the case of armed conflict not of an international character…” 
Since the end of World War II, the vast majority of armed conflicts have been non-international. There has traditionally been a dearth of law, however, analyzing internal armed conflicts. This paper focuses exclusively on the existence of armed conflicts that are internal.
Common Article 3 imposes duties on and provides rights for persons involved in an armed conflict. Such persons are classified either as participants (combatants) or non-participants (civilians). Combatants are members of armed forces who participate directly in the hostilities.  In general, combatants are privileged to engage in violence during an armed conflict. Combatants are also immune from national prosecution stemming from their conduct. In contrast, noncombatants include civilians, medical, religious, and similar personnel in organized armed forces that are not lawful targets of direct attack and are entitled to numerous specific protections under the conventions. Noncombatants lack immunity from prosecution during an armed conflict, and thus have a duty to refrain from taking part in the hostilities. They have the right, however, not to be targets during a war.
There is some terminological confusion about combatants and non-combatants, and participants and non-participants. For example, the Bush Administration defines an “unlawful combatant” as a participant but a non-combatant. Thus, an unlawful combatant, according to this definition, may be a legal target, but does not have the privilege to kill. The categories of players in armed conflicts are beyond the scope of this paper, but it is important to note that there is a gap between the categories of combatants and non-combatants and participants and non-participants. Accordingly, there is no universal definition of the parties to an armed conflict. For convenience, this paper uses the terms “combatant” and “participant” and their opposites interchangeably.
With respect to participants to an armed conflict, two duties are imposed upon participants: 1) a duty of proportionality and 2) a duty to discriminate. The duty to discriminate is explicitly provided for under Common Article 3: Common Article 3 “protects persons taking no part in hostilities, including members of armed forces who have laid down their arms...” Stated another way, Common Article 3 requires combatants during and armed conflict to avoid targeting civilians and target only enemy combatants. Therefore, if a civilian was the target of an attack, the participants have violated the duty to discriminate and are criminally liable.
If, on the other hand, the civilian was not the target of an attack, the participants responsible for the civilian’s deaths may avoid liability if it is established that they complied with the duty of proportionality. Thus, the duty of proportionality requires participants in an armed conflict to ensure that the means used during an attack is proportional to the military objective they hope to achieve. It does not necessarily criminalize the killing of innocent civilians, but acts as a guideline for determining whether participants may be criminally liable. The duty of proportionality also does not require a participant to use the narrowest means or to jeopardize his own to minimize potential collateral damage. Moreover, death of innocent civilians, even when it results from a gross mistake, does not necessarily imply a crime. If a participant to an armed conflict is targeting other combatants, he may be held criminally liable for the death of non-combatants only if he used means that were un-proportional, or excessive, to the military objective.
In 1999 International Criminal Tribunal for the Former Yugoslavia addressed the question of jurisdiction in Prosecutor v. Tadic where Tadic was being tried for various war crimes under international law. The ICTY’s decision in this case was the first time since the 1940’s that an individual had been tried and convicted by an international tribunal for war crimes. To escape liability, Tadic argued that his alleged crimes did not occur during an armed conflict, and thus, none of his actions fell within Common Article 3 or the statute of the ICTY. The court, of course, was able to exercise jurisdiction only if an armed conflict existed at the time of Tadic’s alleged crimes.  The Tribunal explained that it did have jurisdiction and defined what types of conflict qualified as ‘armed conflicts’.
The ITCY took this opportunity to establish its authority to try the alleged war crime, and reinforce the principle that its jurisdiction was premised on the existence of an armed conflict. Specifically, the court held that the United Nations Security Council had endowed it with jurisdiction over both international and non-international armed conflicts. The court reiterated that Common Article 3 was the law governing internal armed conflicts, relying on the following language: “In the case of armed conflict not of an international character… each Party to the conflict shall be bound to apply, as a minimum, the following provisions…” With respect to the existence of an armed conflict, the court held:
An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. An ‘armed conflict’ extends beyond the precise time and area where fighting occurs and that the conflict extends to the “whole territory under the control of a party, whether or not actual combat takes place until a peaceful settlement of the conflict is achieved.
The Tribunal also qualified this statement by explaining:
[t]he existence of an armed conflict or occupation and the applicability of international humanitarian law to the territory is not sufficient to create international jurisdiction over each and every serious crime committed in the territory of the former Yugoslavia. For a crime to fall within the jurisdiction of the International Tribunal, a sufficient nexus must be established between the alleged offense and the armed conflict…
holding in Tadic established the ICTY as a legitimate court in which to try
individuals who violate jus in
Moreover, the Tribunal created a working-definition of an armed conflict. Specifically, the Court held that two factors must be considered when determining if an armed conflict exists: 1) the intensity of the conflict, and 2) the organization of the parties to the conflict. Therefore, Tadic established that the Tribunal must scrutinize 1) the existence of an armed conflict, taking intensity and organization into account, and 2) then nexus of the alleged crime to the armed conflict, as jurisdictional prerequisites.
According to some scholars, the Tadic decision represents the “high-water mark of the judicial expansion at the ICTY with regard to the laws of war and argue that the Tribunal’s later decisions have been much more modest.”  For example, in Danner’s opinion, “the ICTY has addressed its seminal cases years ago and since that time has done little to clarify the scope of armed conflicts.”
More recent Tribunal decisions analyze the Tribunal’s jurisdiction as premised on the two requirements as set forth in the Tadic decision: 1) the existence of an armed conflict; and 2) a sufficient nexus between the acts of the accused and the armed conflict.  The tribunal in Prosecutor v. Miodrag Jokic explained:
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. Second, there was a close nexus between the armed conflict and the
offence, meaning that the acts in question were ‘closely related’ to the hostilities.
This paper will analyze each of these elements under ITCY jurisprudence.
As noted above, in order to determine if an armed conflict exists, the Tribunal must assess the intensity of the conflict and the organization of the parties. The test for determining the existence of an armed conflict that was set out in the Tadic decision has been applied consistently by the Tribunal since. In Prosecutor v. Limaj , the Trial Chamber also recognized that other international courts have employed the Tadic test, thus giving it even more credibility.
The Chamber is also conscious of Article 8 of the Statute of the International Criminal Court (ICC) which, inter alia, defines, for its purposes, war crimes committed in an armed conflict not of an international character. Article 8, paragraph 2(f) of the ICC Statute adopts a test similar to the test formulated in the Tadic Decision on Jurisdiction. It defines an internal armed conflict by the same two characteristics, ‘protracted armed conflict’ and ‘organised armed groups,’ without including further conditions.
Applying this test, the Chambers of the ITCY assess the facts of each case independently, that is, on a case-by-case basis.  With respect to assessing the intensity of the conflict at issue, the Tribunals have endorsed the use of a several factor test to make a determination. In Limaj, the Tribunal explained this approach.
[I]n assessing the intensity of a conflict, other Chambers have considered factors such as the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and 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, whether any resolutions on the matter have been passed.
Thus, the Chambers of the ITCY may employ these factors to determine the conflict’s intensity.
With respect to the seriousness of the attacks and whether there has been an increase in clashes, more casualties and an increase in casualties, presumably is evidence a more intense conflict. The spread of clashes over territory and time is an important factor to consider because it helps defines the scope of the conflict. The more territory that is affected by the conflict and the more time that has passed since the first act of conflict go towards proving that the conflict is more “intense.” With respect to an increase in the number of government forces and mobilization and the distribution of weapons among parties to the conflict, these factors seem to consider how far the conflict will extend in the future. If there is more government intervention and an increase in distribution of weapons, it is more likely that the conflict will extend further into the future, and thus the conflict will become more intense. Whether the conflict has attracted the attention of the United Nations Security Council is an important factor to consider because international recognition of an internal war is clear evidence of a more serious conflict. Considering whether any resolutions on the matter have been passed takes into account whether the armed conflict has been given formal recognition. Moreover, if resolutions have been passed and the conflict still continues, this is further evidence of the conflict’s increasing intensity.
The court must also consider the second element, the organization of the parties, to determine if an armed conflict exists. Again, the ITCY has used a multi-factor test to assess this element.
With respect to the organisation of the parties to the conflict Chambers of the Tribunal have taken into account factors including the existence of headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms. 
In addition, the Trail Chamber in Limaj explained that “[S]ome 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.”
The existence of headquarters goes to the formality of the party to a conflict, and indicates that the party to the conflict is under the direction of a specific entity. Designation of zones seems relevant to the organization of the conflict because it can be likened to conflicts where armed forces are organized into brigades, battalions and companies. Thus the clear division of ranks and zones is evidence of higher organization. The ability to procure, transport and distribute arms is direct evidence that the party has a logistics capacity. As evidenced by this jurisprudence, the ITCY has provided multi-factor guidelines within a two-prong test to use when analyzing if an armed conflict.
After the Tribunal decides that an armed conflict exists it must determine if the accused’s acts are sufficiently connected to the armed conflict. As recently noted by the Trial Chamber, “the Appeals Chamber considered this matter [the connection between the acts of the accused and the armed conflict] in Tadic and held that the required nexus should be established between the alleged crime and the armed conflict.”
First, ITCY jurisprudence suggests that in order to satisfy the nexus requirement, the acts of the accused must be closely related to the hostilities. This jurisdictional requirement presumes the existence of an armed conflict at the time and place relevant to the indictment, but it does not mean that the crimes have to occur in the heat of battle. Moreover, it is not necessary that the criminal acts coincide exactly with the actual fighting. Once the existence of an armed conflict has been established, the ITCY’s jurisdiction continues to apply beyond the scene of actual fighting and after the cessation of hostilities. The Trial Chamber framed the issue of nexus as follows:
As to the precise nature of the nexus, when the crime alleged has not occurred at a time and place in which fighting was actually taking place, the Appeals Chamber has held that ‘[i]t would be sufficient that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.’
The Tribunal in Prosecutor v. Limaj ruled on the issue of nexus to an armed conflict. It held, to meet jurisdictional requirements of Article 3 of the ITCY statute, the prosecutor must establish a sufficient link between the acts of the accused and the armed conflict by considering the following factors: 1) whether the perpetrator is a combatant, 2) whether the victim is a non-combatant, 3) whether the victim is a member of the opposing party, 4) whether the act may be said to serve the ultimate goal of a military campaign, and 5) whether the crime is committed as a part of or in the context of the perpetrator’s official duties. If the perpetrator was a combatant to an armed conflict it is more likely that his acts were related to the conflict in which he had a vested interest. If the victim was a non-combatant and it is assumed that a combatant would not illegally target a civilian, this goes towards the likelihood that the act was not closely related to the conflict. In contrast, if the victim was a member of the opposing party and it is assumed that the combatant was legally targeting another combatant, this goes towards the likelihood that the act was closely related to the conflict. If the act was committed in furtherance of the goal of a military campaign or within the scope of the actor’s official duties, this is direct evidence that the act was directly linked to the armed conflict because it was being used as a means to an end; the end being the goal of the armed conflict.
The Appeals Chamber has provided additional guidelines to address the issue of nexus. The armed conflict does not need to cause the commission of the crime at issue, but the armed conflict must meet a minimal test. Thus, “… the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.” The first possibility, that the armed conflict played a substantial part in the perpetrator’s ability to commit the crime, could mean that the perpetrator would not have been able to commit the crime, but for the procurement of weapons that the parties to the armed conflict acquired. It could also mean that the perpetrator could not have committed the crime without the help of other members of the party involved in the conflict. Another possibility, that the armed conflict played a substantial role in the perpetrator’s decision to commit the crime, means that the perpetrator was influenced by the conflict such that he probably would not have committed the crime, but for the presence of an armed conflict. With respect to the manner in which the perpetrator committed the crime, which the perpetrator carried out the crime with the help of, or under the organization and control of a party to the conflict, is evidence of a nexus to the armed conflict. Lastly, it is possible that perpetrator committed the crime with the purpose of furthering the armed conflict, or to retaliate for other crimes committed during the armed conflict. That the armed conflict was a motivating factor for the perpetrator to act is evidence of nexus to the conflict.
As an illustrative example, In
Prosecutor v. Vasiljevic ,
the Appeals Chamber found that an armed conflict existed in the southeastern
Moreover, there is no strict requirement that the commission of the act take place within some territorial limits. In fact, the territorial scope of imputing liability to individuals who violate the laws of war is very far-reaching. The Appeals Chamber has explained the breadth of this doctrine as a liberal standard:
There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved. A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place. [T]he requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting.
Furthermore, there is no requirement that the criminal acts be part of an organized plot. Thus, “[t]he Trial Chamber recalls that for the existence of the required nexus, the crimes need not have been planned or supported by some form of policy.”  In addition to this loose standard, “[t]here is no reason why a single, isolated act, could not constitute a violation of the law and customs of war, when the required nexus has been established.” Therefore, once a Tribunal establishes that the alleged crimes were substantially related to the armed conflict, that is, that the existence of an armed conflict played a substantial role in the individual’s ability, decision, or manner in which he commits the crime, the location of and formal plan behind the alleged crimes become mostly irrelevant.
In order to appreciate and understand the framework an international tribunal employs to determine the existence of an armed conflict, it is helpful to see the elements explained through real world conflicts. The following examples attempt to show how these elements are fleshed out to determine if an armed conflict exists and whether alleged acts have a sufficient nexus to the armed conflict such that an international tribunal may exercise jurisdiction.
One of the most
well known current conflicts is the one in
unquestionably defined as an armed
conflict. As early as 1978 Muslim Mujahideen rebel groups, supported by the
The parties to this complex
and current armed conflict can be divided into 4 categories: 1) the government
of Afghanistan; 2) Groups allied with the Afghan Government against the
Taliban and other insurgency groups; 3) Groups fighting against the Afghan
government and other allied security forces; and 4) the United Nations. With
respect to the first group, the government of
Applying the various factors employed by a criminal tribunal, it is clear
that an armed conflict exists in
There is also no question as to the intensity of this
ongoing conflict. According
to the Armed Conflicts Report the total number of deaths resulting from this
armed conflict may be as many as one-and-a-half million people. 
Two-thirds of these casualties are thought to be civilians. Since the
American-led Operation “Enduring Freedom” beginning in 2001, and subsequent
NATO-led operations, an estimated 18 to 19 thousand have died. Thus, on its face, the conflict seems intense
because of the seriousness of the casualties. Moreover, the clashes have
worsened over the last 30 years, and such casualties are a result of the
parties’ military operations involving mass distribution of weapons.  More and more governments have become involved since the
beginning of the conflict: this conflict has attracted the Security
Council, NATO forces, and intervention by US and other forces. Therefore, in
assessing the organization and intensity of the conflict, it is clear that a
complex armed conflict exists in
comprises almost 90% ethnic Albanians, but Serbs consider the area to be the
historical birthplace of the
From 1981 to 1998 the KLA did build resistance and by 1998 40% of Kosovo was not controlled by Serbian forces. Conflict rose within Kosovo and peaked in the spring of 1998 after Serbian forces killed a KLA member and his entire family in his home. This massacre, known as the “Jashari Massacre,” sparked a huge amount of KLA support and membership. Before the Jashari Massacre KLA membership included 200-300 active fighters, and afterwards it ballooned to 15,000. In August of 1998 the Serbs ran most of the KLA out of Kosovo with a counteroffensive. A ceasefire ensued until October of 1998, but by December the KLA had regrouped and was back in force.
Throughout this time the KLA made an active attempt to attract international support for its side of the conflict. It publicized the conflict through the Internet until the general public in western countries felt pressured to take action. In early 1999 the UN and its allies, led by Madeline Albright tried to negotiate an end to the conflict. The negotiations were not successful: The KLA would not agree to the disarming of their units unless they were recognized as the official police force in an autonomous Kosovo and the Albanian delegation remained deeply divided. NATO launched a bombing campaign in April 1999, which resulted in Serbs being expelled from Kosovo by June of 1999. The KLA disbanded shortly after this international intervention. Throughout this time frame violence and casualties permeated the Kosovo region. One source estimates these casualties: “[s]ome 2,000 people were killed and 250,000 displaced in fighting in Kosovo in 1998.” 
In Prosecutor v. Limaj, the ICTY found that an armed conflict existed in Kosovo between Serbian forces and the KLA before the end of May 1998 (the relevant time frame to the alleged war crimes). The court assessed the intensity and organization factors necessary to determine the existence of an armed conflict. With respect to organization, the court considered these facts significant and determinative that an substantial amount of organization existed: 1) the KLA had a General Staff and zone commanders at that time; 2) the KLA issued public statements on behalf of the organization; 3) the KLA tried to establish disciplinary guidelines and military police, and also had started recruiting members, who were given weapons including artillery mortars and rocket launchers; 4) by July 1998 the KLA was participating in negotiations with international governments and bodies to determine a solution for Kosovo’s; 5) by the end of May 1998 there were constant armed clashes with Serbian forces in many territories including along the Kosovo-Albanian border, Priština, Prizren, and the Kosovo-Macedonian border. The wide range of activity supported the finding of a higher level of organization, which also indicated a high level of intensity. Moreover, with respect to intensity, the Tribunal noted that almost one million civilians were affected by the ongoing conflict: civilians were forced to leave their homes and were often casualties to the conflicts. Therefore, it is clear through the two-prong analysis that an armed conflict existed in Kosovo, at least by the spring of 1998.
On July 7, 2005
four suicide bombers struck central
Even though the
bombers actions seemed to be motivated by the conflict in
it possible to define the
Rrecall the first scenario this paper illustrated. In the middle of
Suppose, along with the facts given above, that the shooters were 5
teenage boys excited by the same motivations as those students in the famous
Now suppose the same facts as above, and also assume that the teenage
boys are children of Mexican insurgents who have sparked conflict in a city 500
miles away from
Assuming that the threshold requirements of organization and intensity are met, an armed conflict exists. The nexus requirement, however, must still be met. The perpetrators may be categorized as combatants because they have assumed the role of insurgents through their actions. Some of the victims are non-combatants and others are members of the opposing party in the city where the armed conflict takes place. These facts show some nexus exists between the acts and armed conflict. The legal criteria also include the perpetrator’s motivations and association with the insurgency group. If the 5 boys were motivated by the goals of their parents, this is further evidence of nexus, and the more affiliated they are with the insurgency group, the more nexus is established. Thus, organization, intensity and nexus are arguably established by these facts.
Another permutation on these facts follows: the shooters are 5 young men,
orphaned as children in City X, 3,000 miles away from
Suppose now that the shooters are newly self-proclaimed insurgents in
Now assume the same facts as
the last scenario with respect to the shooters motivations and assume that
there has been uproar in
consideration that an international criminal court should scrutinize in its
analysis of armed conflict is political motivation as a function of nexus.
Suppose that the shooters in the hypothetical scenario in
 See Statute of the International Tribunal, Report of the Secretary General Pursuant to Paragraph 2 of U.N. Security Council Resolution 808, U.N. GAOR, 48th Sess., 3175th mtg., arts. 9(1), U.N. Doc. S/2-5704 (1993) [hereinafter ICTY Statute].
 See id. art. 9(2).
 See ICTY Statute, arts 2-5. The four general categories of crimes within the jurisdiction of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the former Yugoslavia (ICTY) are 1) grave breaches of the Geneva Conventions of 1949; 2) violations of the laws and customs of war; 3) genocide; and 4) crimes against humanity. This paper focuses on the first category, grave breached of the Geneva Conventions. For this category, the ICTY’s jurisdictional prerequisite to hearing the case is the existence of an armed conflict.
 International Military Tribunal (Nuremburg 1946), Judgment and Sentences, 41 Am. J. Int’l. L. 172, 220-221 (1947).
 Bartram Brown, Nationality and Internationality in International Humanitarian Law (1998) 34 Stan. J. Int’l L. 347, 353.
Convention for the Amelioration of the Condition of the Wounded Armies in the
Field, signed at
 Bartram Brown, Human Rights Law Lecture, International Law, Fall Semester 2007 (Nov. 5, 2007).
 A.M. Danner, Where Courts Make Law: How the International Criminal Tribunals Recast the Laws of War (2006) 59 Vand. L. Rev. 1, 10 [hereinafter Danner].
 Article 3 from all four of the 1949 Geneva Conventions is the same, thus “Common Article 3”. See e.g. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 3, Aug. 12, 1949, 3 U.S.T. 3114, T.I.A.S. 3362 [hereinafter Common Article 3].
 Common Article 3.
 R.O. Weiner and F.N. Aolain, Beyond the Laws of War: Peacekeeping in Search of a Legal Framework (1996) 27 Colum. Human Rights L. Rev. 293, 346 [hereinafter Weiner].
 See e.g. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 49, Aug. 12, 1949, 3 U.S.T. 3114, T.I.A.S. 3362.
 See ITCY Statute, art. 9(1).
 See U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994).
 See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. SCOR, U.N. Doc. S/25704 (1993), at para. 64, 65.
 See ICTY Statute, supra note 1.
 ICTY Statute, art. 2-5.
 See Prosecutor v. Delalic, Case No. IT-96-21 (Appeals Chamber), February 20, 2001, para. 136: “The Appeals Chamber ... finds no cogent reasons in the interests of justice to depart from its previous jurisprudence concerning the question of whether common Article 3 of the Geneva Conventions is included in the scope of Article 3 of the Statute [they are included].” See also, Prosecutor v. Limaj, Case No. IT-03-66-T (Trial Chamber), November 30, 2005, para. 176: “It is settled by the Appeals Chamber that violations of Common Article 3 fall within the scope of Article 3 of the Statute.” See also Prosecutor v. Halilovic, Case No. IT-01-48-T (Trial Chamber), November 16, 2005, para. 23: “Article 3 of the Statute has been defined in the jurisprudence of the Tribunal as a general clause covering all violations of humanitarian law not covered by Articles 2, 4 or 5, including violations of Article 3 common to the four Geneva Conventions of 12 August 1949 (‘Common Article 3’) and other customary rules on non-international conflict.” See also Prosecutor v. Strugar, Case No. IT-01-42-T (Trial Chamber), January 31, 2005, para. 219: “At the outset, the Chamber notes that the jurisprudence of the Tribunal in relation to common Article 3 is now settled. . . .[I]t is well established that Article 3 of the Statute covers violations of common Article 3.”
and Paramilitary Activities,
 Weiner at 348.
Although technically a state is only bound by the Geneva Conventions if it is a
signatory state, Weiner argues that at least
 Weiner at 348.
 A. Strong, Neutralizing Threat: Reevaluating the Scope of Acceptable Targets in Unconventional Conflicts, available at http://www.kentlaw.edu/perritt/courses/seminar/ats-final-ir.htm [herinafter Strong]
 Henry H. Perritt, Making International Criminal Law Realistic (forthcoming) (draft on file with author).
 Strong, supra note 27.
 See e.g. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 3, Aug. 12, 1949, 3 U.S.T. 3114, T.I.A.S. 3362, Article 2.
 Common Article 3 (emphasis added).
 Joanna Dingwall, Unlawful Confinement as a War Crime: The Jurisprudence of the Yugoslav Tribunal and the Common Core of International Humanitarian Law Applicable to Contemporary Armed Conflicts, 9 J. Conflict & Security L. 133, 134 (2004). She explains that the lack of jurisprudence applicable to internal armed conflicts may be due the reluctance of states to commit to rules that could impinge their sovereign authority, by affording rights to rebel groups.
 See Protocol 1, art. 43, para. 2 (defining members of the armed forces of a party, other than medical personnel and chaplains covered by Article 33 of the Third Geneva Convention, as “combatants” who correspondingly have the right to participate directly in hostilities.)
 Nathan Berman, Privileging Combat? Contemporary Conflict and the Legal Construction of War, 43 Colum. J. Transnat’l L. 1, 9 (2004).
 See e.g. Fourth Geneva Convention, pt. III (regulating the status and treatment of “protected persons” as defined under Article 4).
 Common Article 3, para. 1.
Kerr, The International Criminal Tribunal for the Former
 Prosecutor v. Tadic, Case No. IT-94-1-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, para. 71 (Oct. 2, 1995), available at http://www.un.org/icty/tadic/appeal/decision-e/51002.htm. The court examined the applicable law, specifically Geneva Conventions Common Article 2 and Common Article 3. [hereinafter Tadic, Appeal on Jurisdiction].
 Tadic, Trial Chamber Opinion and Judgment, para. 1.
 Major Ian Corey, The Fine Line Between Policy and Custom : Prosecutor v. Tadic and the Customary International Law of Internal Armed Conflict,166 Mil L.Rev 145, 149 (2000).
Tadic Appeal on Jurisdiction, para. 71.
 Common Article 3 (emphasis added).
 Tadic, Appeal on Jurisdiction para. 70.
 Tadic, Trial Chamber Opinion and Judgment, para. 572.
 Anthony Cullen, Key Developments Affecting the Scope of Internal Armed Conflicts in International Humanitarian Law (2005) 183 Mil. L. Rev. 66, 69.
 Danner at 32.
 See Prosecutor v. Limaj, Case No. IT-03-66-T (Trial Chamber), November 30, 2005, para. 83: “In order for the Tribunal to have jurisdiction over crimes punishable under Article 3 of the Statute, two preliminary requirements must be satisfied. There must be an armed conflict, whether international or internal, at the time material to the Indictment, and, the acts of the accused must be closely related to this armed conflict.” [hereinafter Limaj Trial Chamber Opinion]. See also Prosecutor v. Blagojevic and Jokic, (Trial Chamber), January 17, 2005, para. 536: “The application of Article 3 of the Statute presupposes the existence of an armed conflict and a nexus between the alleged offence and the armed conflict.”
 Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-S (Trial Chamber), March 18, 2004 [herinafter Miodrag Jokic Trial Chamber Opinion].
 Miodrag Jokic Trial Chamber Opinion, para. 12.
 Limaj Trial Chamber Opinion, para. 84. As already quoted above, the relevant test under the Tadic holding is as follows: “An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Under this test, in establishing the existence of an armed conflict of an internal character the Chamber must assess two criteria: (i) the intensity of the conflict and (ii) the organisation of the parties.”
 Limaj Trial Chamber Opinion, para. 87.
 Limaj Trial Chamber Opinion, para. 90
 “Command responsibility” is an omission mode of individual criminal liability where the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish (as opposed to crimes he ordered). The ITCY recognizes this type of criminal liability: See ICTY statute article 7 (3). It establishes that the fact that crimes "were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators."
 Limaj Trial Chamber Opinion, para 89.
Prosecutor v. Halilovic, (Trial Chamber), November 16, 2005, para. 28 [herinafter Halilovic Trial Chamber Opinion].
 Tadic Trial Chamber Opinion and Judgment, para. 632.
 Prosecutor v. Blagojevic and Jokic, (Trial Chamber), January 17, 2005, para. 536.
 Limaj Trial Chamber Opinion, para. 91. See also Prosecutor v. Kunarac, Kovac, and Vokovic, (Appeals Chamber), June 12, 2002, para. 5-9 [herinafter Kunarac Appeals Chamber Opinion]: “In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account . . . the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.”
 Kunarac Appeals Chamber Opinion para. 58; see also, Halilovic Trial Chamber Opinion paras 29, 726; (same test).
 Prosecutor v. Vasiljevic, Case No. IT-98-32-A (Appeals Chamber), February 25, 2004 [herinafter Vasiljevic Appeals Chamber Opinion].
 Vasiljevic Appeals Chamber
Opinion, paras. 25-27: “The Appellant argues that, although he agrees that
there was an armed conflict in the
 Kunarac Appeals Chamber Opinion, para. 57.
 Halilovic Trial Chamber Opinion, para. 724.
 See Armed Conflicts Report, http://www.ploughshares.ca/libraries/ACRText/ACR-Afghanistan.html (last visited November 6, 2007).
2006, NATO took control of military operations in all of
 “UNAMA was established
on March 28, 2002 through United Nations Security Council resolution 1401. Its
original mandate was aimed at supporting the process of rebuilding and national
reconciliation outlined in the Bonn Agreement of December 2001. Today,
 See Benjamin
Sand, Voice of
See Armed Conflicts Report, http://www.ploughshares.ca/libraries/ACRText/ACR-Afghanistan.htm.. (last visited November 6, 2007).
 As an
example of the how intense the distribution and availability of weapons is, see
SIPRI Yearbook 2003, pp. 329 – 330: "As
part of the rebuilding of Afghanistan and the setting up of a well-functioning
government, France, Germany, India, the USA and other countries have started to
train and equip voluntary Afghan armed forces. ... In 2002, US Foreign Military
Financing (FMF) to
 Henry H. Perritt, Insurgency Presentation, Law of Nationbuilding, Fall Semester 2007 (Oct. 14, 2007).
 CBC NewsWorld, January 8th, 1999. See www.ploughshares.ca/libraries/ACRText/ACR-Yugoslavia.html.
 Limaj Trial Chamber Opinion and Judgment, paras. 171-173.
 See Special Reports, 7 July Bombings¸ available at http://news.bbc.co.uk/1/shared/spl/hi/uk/05/london_blasts/what_happened/html/default.stm. (last visited November 8, 2007).
of the Official Account of the Bombings in
 Vasiljevic Appeals Chamber Opinion, paras. 25-27
 Note that if a relatively healthy state is confronted with rebels’ crimes it will likely try the crimes at issue if it can. It is also possible, however, that an international criminal tribunal may also try the rebels’ acts as war crimes. In contrast, if the state in which the crimes were committed is a failed state, it is likely that there will be no domestic prosecution either because it fears the repercussion of the rebel group, or because the rebel group is in power and thus, will not try themselves. In this context it becomes even clearer why an international criminal tribunal’s decision to prosecute war crimes is important as potentially the only means to hold the rebels accountable for their crimes.