Redefining Armed Conflict as a Jurisdictional Prerequisite

Elizabeth A. Koehn*

 

I.                    Introduction

 

            Imagine yourself in the middle of Mexico City, Mexico. A group of young men, with covered faces and automatic weapons, storm into a peaceful military base in the middle of the city and destroy the building, killing 45 military officers. They run away, still shooting at the building, and a few stray bullets kill a mother and her two young children who are walking out of a nearby grocery store. What law governs these egregious acts? Is it possible that these acts constitute war crimes? If so, does an International Court have jurisdiction to try the offenders for their acts?

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,[1] 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.[2] 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 International Court’s jurisdictional prerequisite.  First, this paper discusses the history of international courts and the international law that governs war-crimes cases. Specifically, this paper focuses on the International Criminal Tribunal for the former Yugoslavia (ITCY). Next, this paper examines jus in bello, the laws of war, which includes Common Article 3 of the Geneva Conventions. This paper then discusses the ICTY’s jurisprudence on the law of armed conflicts as a jurisdictional prerequisite.  Next, this paper examines specific real-world instances of conflict and discusses whether or not the acts fall within the definition of an armed conflict. This paper also examines various hypothetical permutations of conflict and attempts to categorize those scenarios as an armed conflict or a non-armed conflict. This paper discusses the possible outcomes of international criminal tribunals and national courts trying the same crimes committed within the potential scope of an armed conflict. Finally, this paper makes recommendations based on those outcomes. 

            This 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 in bello.  All of these propositions further the policy of holding individuals accountable for the crimes they commit. 

 

 

II.                 Background: International Courts and the Law Governing War Crimes

 

An international criminal tribunal has jurisdiction to try an individual for violations of war crimes only if an armed conflict exists.[3]  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?

 

A.     Governing 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.”[4]

The law that enforces such liability has long-established roots. The law of Geneva and the Law of The Hague constitute the historical heart of international humanitarian law.[5]    The law of The Hague resulted from the Hague Conventions of 1899 and 1907. [6]  The Geneva Conventions of 1949 developed from the first Geneva Convention adopted in 1864.[7] International humanitarian law is the part of international law that establishes minimum international standards for national human rights as international norms, which states are required to respect and ensure. One of the purposes of international humanitarian law is to protect individuals in time of war. Thus, international humanitarian law is the broader category of law that encompasses the laws of war. [8]

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.[9]  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.[10]  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.[11]

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.[12] 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.[13] 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.

 

B.     Courts hat Enforce Common Article 3

 

Before the establishment of international criminal tribunals, national courts tried war crimes and still have the obligation to do so under international law.[14] 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.[15]  One year later, the Security Council established the International Criminal Tribunal for Rwanda with a statute modeled after the ICTY Statute. [16]

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 Yugoslavia since 1991 in accordance with the provisions of the present Statute.”[17]  The Statute also provides that while the Tribunal and national courts have concurrent jurisdiction over “serious violations of international humanitarian law,” the international tribunal “shall have primacy over national courts.”[18] Therefore, the ITCY may at any time request the national courts to defer to its competence.[19]  The United Nations Security Council concluded that the ICTY should be granted primacy over national court when trying crimes within the ICTY’s jurisdiction to ensure the fair and effective prosecution of these crimes despite the tensions resulting from years of was and ethnic conflict. [20]          

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).[21] 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.[22]  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.[23] 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.[24] Therefore, Common Article 3 has a potentially far-reaching scope. [25] 

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.”[26]  But, Common Article 3 is still some of the only legal authority that defines the scope and applicability of internal armed conflicts.

 

III.               Jus In Bello

 

International laws which govern the activity of participants in an armed conflict are categorized into one of two categories: jus ad bellum and jus in bello.[27] Jus as bellum, Latin for “law approaching war,” are a set of criteria that determine whether entering into war is justifiable. No institution has the power to enforce jus ad bellum. [28]  In general, this doctrine requires a state engaging in an armed conflict to have a legitimate reason to go to war and is satisfied when the initial decision to raise arms is justifiable. In contrast, Jus in bello is concerned with whether a war is conducted justly (regardless of whether the initiation of war was just). Jus in bello, translated as “law in war,” derives its authority from customary international law and the 1949 Geneva Conventions and 1907 Hague Protocols.[29]  Jus in bello regulates how a conflict is carried out. [30] Jus in bello is significant to this paper because it defines the laws of war in an armed conflict. Specifically, it applies to individuals, and with the formation of the International Criminal Tribunal for the former Yugoslavia individuals who violate jus in bello can be prosecuted.[31] 

            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.”[32]  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…” [33]

Since the end of World War II, the vast majority of armed conflicts have been non-international.[34]  There has traditionally been a dearth of law, however, analyzing internal armed conflicts.[35]  This paper focuses exclusively on the existence of armed conflicts that are internal. 

A.     Duties and Rights under Common Article 3

 

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. [36]  In general, combatants are privileged to engage in violence during an armed conflict.[37] Combatants are also immune from national prosecution stemming from their conduct.[38] 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.[39]  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.[40]

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...”[41] Stated another way, Common Article 3 requires combatants during and armed conflict to avoid targeting civilians and target only enemy combatants.[42] 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.[43] Moreover, death of innocent civilians, even when it results from a gross mistake, does not necessarily imply a crime.[44] 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.

 

IV.              The ICTY’s Original Framework: Defining an Armed Conflict

In 1999 International Criminal Tribunal for the Former Yugoslavia addressed the question of jurisdiction in Prosecutor v. Tadic[45] 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.[46] 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. [47] 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.[48] 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…”[49] 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.[50]

 

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…[51]

 

Thus, the holding in Tadic established the ICTY as a legitimate court in which to try individuals who violate jus in bello. 

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.[52] 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.” [53] 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.”[54]

 

V.                 ITCY’s Continuing Framework

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. [55] The tribunal in Prosecutor v. Miodrag Jokic[56] 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.[57]

 

This paper will analyze each of these elements under ITCY jurisprudence.

 

A.     Existence of an Armed Conflict

 

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.[58] In Prosecutor v. Limaj [59], 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.[60]

 

Applying this test, the Chambers of the ITCY assess the facts of each case independently, that is, on a case-by-case basis. [61]  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.[62] 

 

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. [63]

 

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, [64] as no determination of individual criminal responsibility is intended under this provision of the Statute.”[65] 

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.

           

B.     Nexus Between the Acts of the Accused and the 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.”[66]

            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.[67] 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.[68]  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.’[69]

 

            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.[70]  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.”[71] 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 [72], the Appeals Chamber found that an armed conflict existed in the southeastern border of Bosnia and Herzegovia at the times relevant to the indictment, and rejected the accused’s argument that the nexus requirement was not satisfied. [73] The Appeals Chamber concluded that the acts of the accused in fact were closely related to the armed conflict even though he did not take place in any fighting. The accused was closely associated with one of the political parties to the conflict and his actions were taken in furtherance of the armed conflict. [74]  The accused admitted that the Milan Lukic group (a Serb paramilitary group) was closely associated with the conflict. Moreover, the accused’s acts at issue were carried out while he was a member of this group.[75]  In sum, “[t]he Appeals Chamber is of the view that the Appellant was associated with the Milan Lukic group on that occasion and that this establishes a sufficient nexus between the Appellant’s acts and the armed conflict.” [76] The Tribunal in this case announced a lenient standard: association with a participant group to an armed conflict at the time of the act at issue seems to implicate a sufficient nexus.

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.[77] 

 

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.” [78] 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.”[79] 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.

 

VI.              Application to Real World Conflicts

 

 

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. 

A.      Afghanistan

 

One of the most well known current conflicts is the one in Afghanistan: it is

unquestionably defined as an armed conflict. As early as 1978 Muslim Mujahideen rebel groups, supported by the United States, Saudi Arabia, China, and Pakistan, began attacking the government of Afghanistan, the People's Democratic Party of Afghanistan (PDPA). In 1979 the USSR intervened to support the government until 1989 when UN-supported negotiations convinced the troops to withdraw and established an interim government. Mujahideen rebels continued to oppose the government and captured Kabul, the capital of Afghanistan, which led to more rival factions vying for control of the city. The Taliban surfaced in 1994 and advanced as a powerful organization over the next half of a decade. The Taliban captured Kabul in 1996 and the majority of the country (90%) by 1998.  The attacks on the United States of September 11, 2001, led the US to invade Afghanistan and remove the Taliban from power because of its involvement with al-Qaeda’s terrorist organization, the alleged responsible party of the September 11th attacks. A sector of the Mujahideen groups regained control of Kabul in 2001 after the US bombed parts of the country. In 2003 the US coalition remained in Afghanistan, whose presence was aimed at targeting remaining Taliban or al-Qaeda members and a NATO-led International Security Assistance Force (ISAF) authorized by the UN Security Council was established to control military operations.  In October 2004 Hamid Karzai was declared Afghanistan president through popular elections. [80]

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 Afghanistan was barely recognized as a governmental body until the end of 2001 when Hamid Karzai took office as president. A sect of this government also includes the Afghan National Army (ANA), which is a weak organization at the moment but committed to growing into a larger force. The second group, the groups allied with the Afghan government, includes US-led forces aimed to combat the Taliban, NATO[81], and Pakistani armed forces that attacked insurgents on both sides of the Afghanistan/Pakistan border. Pakistani forced continued until 2006 when the Pakistani government and pro-Taliban militants signed a peace accord aimed at ending violence in the tribal border region. The third category of players to this conflict, groups fighting against the Afghan government, includes that Taliban, al-Qaeda, and Guelbuddin Kekmatyar, the leader of another Islamic militant group. Lastly, the United Nations acts as the fourth party to the armed conflict, continuing its presence through the UN Assistance Mission in Afghanistan (UNAMA).[82]

Applying the various factors employed by a criminal tribunal, it is clear that an armed conflict exists in Afghanistan. First, the law dictates that a tribunal must assess the existence of an armed conflict, taking organization and intensity into account. With respect to organization, on its face the situation involves multiple highly organized groups. As described above, each of the four main participants includes multiple members, with designated roles, allies and opponents.[83]

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. [84] 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.[85]  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. [86]  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 Afghanistan.

 

B.     Serbia and Montenegro (ex-Yugoslavia)-Kosovo 

Kosovo’s population comprises almost 90% ethnic Albanians, but Serbs consider the area to be the historical birthplace of the Serb State. The Yugoslav government removed Kosovo’s autonomous status in 1989 and from this point until 1998 the Kosovo Democratic League (LDK) sought independence for Kosovo’s Albanian people in a non-violent manner. The Kosovo Liberation Army (KLA) arose in 1996 as a militant response to Serbian repression in the Kosovo region of Yugoslavia, also seeking independence for Kosovo as an ethnic Albanian nation. The KLA’s goals were to defend its families, build popular support through resistance to Serbian rule, to import arms from Albania into Dukagjini (a designated territory within Kosovo), to interfere with Serbian lines of supply within certain areas of Kosovo and to attract international intervention. The KLA specifically targeted secret police, police stations and convoys, Serbian military units, and Serbian supply lines.

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.[87] One source estimates these casualties:  “[s]ome 2,000 people were killed and 250,000 displaced in fighting in Kosovo in 1998.” [88] 

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).[89] 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.[90]  Therefore, it is clear through the two-prong analysis that an armed conflict existed in Kosovo, at least by the spring of 1998.

 

C.     London bombings

 

 

On July 7, 2005 four suicide bombers struck central London’s transport system, leaving 52 casualties and injuring more than 770 people. The suicide bombers were identified as Hasib Hussain, Mohammad Sidique Khan, Germaine Lindsay, and Shehzad Tanweer.[91] Police investigations concluded that “[t]he best indications of the group’s motivation are set out in Khan’s video statement, first aired on the Arabic television channel, Al Jazeera on 1 September and in his last Will and Testament, discovered by the police after the bombings.” [92] The video was focused on perceived injustices carried out against Muslims.[93] Khan threatened in his video, “…until you stop the bombing, gassing, imprisonment and torture of my people we will not stop this fight. We are at war and I am a solider. Now you too will taste the reality of this situation.... I myself, I make du’a to Allah.... to raise me amongst those whom I love like the prophets, the messengers, the martyrs and today’s heroes like our beloved Sheikh Osama Bin Laden, Dr. Ayman al-Zawahiri and Abu Musab al-Zarqawi and all the other brothers and sisters that are fighting in the...of this cause.” Police investigators concluded that the video “draws heavily on the published Will of a young British man killed during the US bombing of Tora Bora in Eastern Afghanistan in late 2001, and who was married with young children like Khan.” [94]  Investigators also concluded that there was less material found relating to the motivation of the other three participants, although there was evidence that they had similarly extreme religious views. [95]

Even though the bombers actions seemed to be motivated by the conflict in Afghanistan and the Middle East, the nexus between their actions and the conflict abroad was tenuous.  The official report concluded, “…[a]uthorities do not believe that the four suicide bombers were directed from abroad. It is also believed that their attack was self-financed…the extent of Al Qauida involvement is unclear” [96]

            Is it possible to define the London bombings as an armed conflict? Looking at the organization factors of this conflict, it appears that the bombers, if acting alone, were not part of a supportive organization. There is no evidence of headquarters, designated zones of operation or distribution of arms from a higher organized force. Moreover, with respect to the intensity factors, the bombings do not appear to be very intense.  The attacks were three single instances of bombings within a couple of hours on one day. Although hundreds of people were injured and killed the attacks do not seem serious because they were only a few occurrences. Since the bombings there has been no increase in clash in London, nor have government forces intervened or distributed weapons. Thus, there seems to be a low level of intensity.[97] On the other hand, the investigation suggested that Al Qaeda could have been the motivating force behind the bombings. The bombers were not themselves combatants in the war, but one does call himself a soldier. The victims were surely not-combatants. The bombings were, at least to some degree, carried out to further a religious goal and to combat the West’s political and military goals. Thus, the political motivation establishes some nexus. The nexus between the bombers’ actions and the pervasive armed conflict that existed in Afghanistan may be enough to label the London bombings an armed conflict if a Tribunal were to take a liberal approach in its application. Recall that in Prosecutor v. Vasiljevic, [98] the Tribunal found nexus where the defendant was associated with the known party to the armed conflict. In theory, a Tribunal could find that the pervasive armed conflict occurring in Afghanistan is the armed conflict at issue in the London Bombings, and if the defendants are associated with a party to that conflict, nexus has been established too. This analysis is highly unlikely however, as the facts show a tenuous connection to an armed conflict.

 

VII.            Application to Other Potential Conflicts

 

 

Rrecall the first scenario this paper illustrated. In the middle of Mexico City, Mexico a group of young men, with covered faces and automatic weapons storm into a peaceful military base and destroy the building, killing 45 military officers. They run away, still shooting at the building, and a few stray bullets kill a mother and her two young children who are walking out of a nearby grocery store. What law governs these egregious acts? Is it possible that these acts constitute war crimes? If so, does an International Tribunal have jurisdiction to prosecute the offenders for their acts? In order to exercise jurisdiction, the Tribunal must to find the existence of an armed conflict at the time of the alleged acts and a nexus between the conflict and the acts. Remember that an international criminal tribunal decides the issue of jurisdiction when it hears the preliminary matters of a case. No external institution exists which vests an international court with the power to hear a case. Similarly, a national court would address the issue of jurisdiction and recognize the existence or non-existence of an armed conflict if it was the forum hearing the case. Moreover, it is theoretically possible that an international criminal tribunal and a state’s domestic courts may both try the crimes at issue.

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 shootings in Columbine High School.  Based on these facts, it is clear that an armed conflict does not exist.  With respect to organization, there is no formal entity or headquarters. The only organization that exists is a group of teenage boys. With respect to intensity, there is little: the act at issue constitutes only one instance of shootings.  The government need intervene only as much as it does in a murder investigation. Surely according to these facts there is no armed conflict because of such a shallow level of intensity and organization.  With respect to nexus, there is no political motivation connecting the acts to any armed conflict.

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 Mexico City, City X. In addition, assume this is the only instance of attack undertaken by the five perpetrators, but there have been other insurgent operations for three months. The insurgent group is divided into 3 levels of combatants. The Mexican government has authorized some troops to regulate the area, but the conflict seems to be confined to a 30-mile radius. Based on these additional facts, does an armed conflict exist? The levels of organization and intensity have surely risen. First, now there is an established group of insurgents, which is evidence of some organization. The insurgency group has established ranks, which proves a higher level of organization. Moreover, that conflict has developed over a period of months, and that the situation is serious enough for the government to intervene on a military level is evidence of intensity.

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 Mexico City. A well-known insurgency group and its many leaders and affiliates have been fighting in City X in opposition to the Mexican government for 2 years. The conflict has resulted in hundreds of deaths, large intervention by the Mexican military and U.S. exportation of arms to the Mexican government. The territory is clearly divided between opposing forces. Here the organization and intensity factors are heightened to a level in which an armed conflict probably exists. The children arguably have no connection, or nexus, to the armed conflict. They are not themselves combatants and there is no evidence that they are affiliated with the insurgency group. Moreover, there is no evidence that the crimes were committed in furtherance of the conflict that exists so far away. Therefore, an international criminal tribunal would most likely not be able to exercise jurisdiction in this instance to prosecute the crimes.

Suppose now that the shooters are newly self-proclaimed insurgents in Mexico City who oppose the Mexican government. They specifically target the military base to attack as the headquarters of the Mexican’s government’s army.  They have specific officers in mind as targets and wish to make an important political statement with the planned attack. The perpetrators have a plan to recruit insurgents in the future to carry out more attacks once the first attack is complete. It is better to analyze this scenario considering nexus first. Surely if an armed conflict exists in Mexico City, the shooters motivation and actions have a close enough nexus to the conflict that an international tribunal could exercise jurisdiction. It is likely, however, that there is no armed conflict in the first place. With respect to organization, the perpetrators are a newly formed and even though they plan to expand, there is not an established headquarters or designated ranks for this group. There is also no evidence that the new group has been able to procure weapons in order to carry out plans in the future. With respect to intensity, this is the first instance of an attack opposing the Mexican government, which is a shallow showing of intensity, even though many people were killed. Thus, even though nexus is likely established, the jurisdictional prerequisite of existence of an armed conflict is lacking.

Now assume the same facts as the last scenario with respect to the shooters motivations and assume that there has been uproar in Mexico City for 14 months by a firmly established insurgency group. The leaders are well known and have recruited hundreds of followers whom they train to use weapons. The U.S. has taken notice of the conflict and sent military support for the Mexican government. Now it is likely that an armed conflict exists. First, there is a sufficient level of organization because the group is firmly established and has organized logistics that include procuring weapons and training members of the group. The intensity factor is also high because conflict has been ensuing for over a year and the perpetrators acts at issue take place in the heart of the conflict and leave many people killed. Moreover, the acts of the insurgent leaders seem closely related to the armed conflict where an international criminal tribunal could establish jurisdiction to try the crimes at issue.  Nexus is established because the acts of the perpetrators seem motivated by an insurgency goal. They are presumably combatants to the conflict and the Mexican government is an opposing party to the same conflict. Therefore, existence and nexus are established in this situation.

Whether an international or domestic court exercises jurisdiction to try war crimes may be outcome determinative. If the prosecutor proves that the jurisdictional prerequisite of armed conflict is satisfied an international tribunal would hold the perpetrators guilty of three war crimes committed against the mother and her children, but not the soldiers because they would be lawful targets under jus in bello. If the perpetrators are tried by the State (under Mexico’s domestic law) and the court finds that an armed conflict did not exist at the time the crimes were committed, they will be guilty of murder with respect to the soldiers, the mother and children.

Which outcome is more favorable? If the existence of an armed conflict is not clearly present, why should the perpetrators get the benefit of jus in bello’s rules against imputing liability to legal targets of war? On the other hand, if Mexico had a corrupt or ineffective judicial system and it was unlikely that the perpetrators would be convicted under Mexico’s domestic law, prosecution of three crimes over none is a more favorable outcome. Assume, however, that Mexico’s judicial system is effective in prosecuting crimes committed within its jurisdiction and, therefore, has the opportunity to hold the perpetrators liable for 48 deaths. Should the perpetrators be held guilty for 48 crimes when, arguably, an armed conflict did exist? 

 

VIII.         Conclusion

 

Society’s interests are best served when individuals are held accountable for the war crimes they commit. When national courts do not have the ability to try individuals for war crimes, or would be politically biased, it is best that an international criminal tribunal exercise jurisdiction to decide these cases.  Moreover, in close cases, where a national court may not find an armed conflict existed, and an international criminal tribunal could find the opposite, it is best that an international tribunal consider the outcomes of the prosecution. Specifically, a tribunal should judge the likelihood of a state court’s determination of armed conflict, and even where a state could effectively prosecute war crimes, a tribunal should exercise jurisdiction if it would likely prevent a miscarriage of justice. Furthermore, an international criminal tribunal should scrutinize nexus factors of alleged war crimes to ensure that individuals who engage in politically motivated crimes are tried in national courts when justice would be hindered by giving them the benefits of jus in bello under an international tribunal’s jurisdiction.

Therefore, the definition of armed conflict should be expanded to include those instances where 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 in bello. 

If it is clear that an armed conflict exists at the time period relevant to the criminal acts, an international criminal tribunal and a national court may both exercise jurisdiction to try the crimes.  If the ITCY, for example, chooses to try the crimes, the national court where the alleged war crimes occurred must defer to its jurisdiction. Under the principles of jus in bello, an international tribunal will hold the perpetrators guilty of war crimes for the deaths of the three civilians, but not the 45 legal targets of war. If a national court exercises its jurisdiction, the outcome will vary according to the state’s ability to enforce domestic law. An effective system will hold the perpetrators guilty of the war crimes committed against the three civilians, just as an international court would. In contrast, if the state is unable to enforce its domestic law the perpetrators may not incur any criminal liability. Thus, an international criminal court’s ability to exercise jurisdiction becomes more important when the state does not have means to enforce domestic law.[99] Therefore, when it is certain that an armed conflict existed at the time of the alleged crimes, an international criminal tribunal, when making its decision to exercise or defer jurisdiction, should assess the state judicial system’s ability to enforce liability for war crimes. If the state’s system seems ineffective or corrupt, an international criminal tribunal should not forgo its opportunity to try the criminals. This guideline furthers the goal of holding individuals responsible for their crimes.

Many times it is not easy to determine if the alleged crimes occurred within the context of an armed conflict. Analysis of real-world conflicts and hypothetical factual permutations shows that the legal framework for determining the existence of an armed conflict is not a bright line test: it is a multi-factor analysis that is relatively malleable. Moreover, in every case in which a defendant is being tried for war crimes in an international tribunal, he or she will argue that an armed conflict does not exist and, therefore, that the international criminal court may not exercise jurisdiction to try the alleged crimes. Similarly, any defendant being tried for war crimes under domestic law in a state’s forum will argue the opposite: that an armed conflict did exist and, therefore, liability may not be imputed to him based on the laws of war. 

If an international criminal tribunal exercises jurisdiction, or a national court exercises jurisdiction and finds an armed conflict existed, the outcome should be the same.  For example, based on the hypothetical above, both courts will hold the perpetrators guilty of three war crimes assuming the state’s judicial system is effective in prosecuting crimes. On the other hand, a national court may find that no armed conflict existed and the shooters will be tried for murder of all 48 victims. When the facts are such that an armed conflict arguably does, and does not exist, it is possible that injustice will result depending on which court exercises jurisdiction. If an international tribunal exercises jurisdiction, victims may be mislabeled as participants to an armed conflict and their killers may not be held liable. Or, a national court could classify parties to an armed conflict outside of the context of jus in bello and hold them responsible for 45 murders that they otherwise would not have been. Another consideration that influences the outcome of a war crimes trial is the state’s ability to enforce its laws. If a state’s court is ineffective or corrupt it may fail to prosecute 3 war crimes, or 48 murders.

An international criminal tribunal should consider these outcomes when deciding whether or not to divest a national court of its competence to try the cases. First, an international criminal tribunal should consider the likelihood that a national court will find the existence of an armed conflict. Next, it should consider the likelihood that a national court will be effective in imputing liability to the perpetrators. If it is likely that a national court will find the existence of an armed conflict and will likely succeed in prosecuting the crimes an international court should not be deterred from exercising jurisdiction, nor should be persuaded to because, in theory, the outcome should be the same. Next, if it is likely that a national court will find the existence of an armed conflict and will be ineffective in prosecuting the crimes, an international court should exercise jurisdiction to ensure that perpetrators are effectively prosecuted for their war crimes. Thirdly, if it is likely that a national court will not find the existence of an armed conflict and will be ineffective in prosecuting the crimes, an international criminal tribunal should exercise its jurisdiction to ensure that at least three of the crimes are correctly prosecuted.  Lastly, if it is likely that a national court will not find that an armed conflict existed and will be effective in carrying out the prosecution, an international tribunal should consider the outcomes. Which is more just? Is it more just to hold the perpetrators guilty of 48 murders even though they should be liable for the deaths of only three? Or is it more just to allow the perpetrators to escape liability for the deaths of 45 people even though they should be found guilty of 48 murders?  This is something that will hinge on the facts of each case and should be considered as a fairness factor within the court’s decision.

One more 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 Mexico are members of a dangerous drug cartel. The drug cartel is highly organized: it has an established hierarchy, headquarters, and the ability to procure and distribute massive amounts of weapons. It is also clear that there is a high level of intensity: the drug cartel has caused more and more uproars in Mexico City, and the clashes have spread over more territory. Therefore, it is very likely that a court may find an armed conflict existed. With respect to nexus, the drug cartel’s actions are politically motivated and the members of the drug cartel and victims are arguably opposing parties to the armed conflict. The shooters actions were surely carried out to serve the purpose of the cartel and to further its criminal activity and presumably were taken as part of their official duties as members of the cartel. It is likely that these crimes could be construed as fitting within the context of an armed conflict. Thus, an overly permissive definition of an armed conflict would give the perpetrators immunity from prosecution as parties to an armed conflict. Therefore, an international court should closely examine the motivating factors that prove nexus. Insurgency groups’ political motivations should be treated as those supporting a finding of nexus, while political motivations, such as those that inspire a drug cartel, should not.

            International Criminal tribunals are new judicial entities, and the law on armed conflict is still developing. Thus, the ICTY’s definition and scope of armed conflict as a jurisdictional prerequisite may change. The guidelines that this paper advocates are based on the policy that holding individuals accountable for crimes such as murder, torture, and kidnapping will best serve the interests of society. Because international criminal tribunals may divest national courts of their jurisdiction, it should use this power to an advantage, and take the initiative to further the policies that this paper promotes.



* J.D. Candidate 2008, Chicago Kent College of Law.  Thank you to Professor Henry Perritt for providing the author with a unique opportunity and encouragement to write this paper. 

[1] 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].

[2] See id. art. 9(2).

[3] 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.

[4] International Military Tribunal (Nuremburg 1946), Judgment and Sentences, 41 Am. J. Int’l. L. 172, 220-221 (1947).

[5] Bartram Brown, Nationality and Internationality in International Humanitarian Law (1998) 34 Stan. J. Int’l L. 347, 353.

[6] Id.

[7] Convention for the Amelioration of the Condition of the Wounded Armies in the Field, signed at Geneva, Aug. 22, 1864, 129 CONSOL. T.S. 361.

[8] Bartram Brown, Human Rights Law Lecture, International Law, Fall Semester 2007 (Nov. 5, 2007).

[9] 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].

[10] 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].

[11] Common Article 3.

[12] 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].

[13] Id. at 347.

[14] 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.

[15]  See ITCY Statute, art. 9(1).

[16] See U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994).

[17] Id., art. 1.

[18] Id., art. 9(1), (2).

[19] 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.

[20] See ICTY Statute, supra note 1.

[21] ICTY Statute, art. 2-5.

[22] 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.”

[23] Military and Paramilitary Activities, Nicaragua v. U.S., 1986 I.C.J. 4, para 102.

[24] Weiner at 348.

[25] Although technically a state is only bound by the Geneva Conventions if it is a signatory state, Weiner argues that at least one International Court has stated that it may apply Common Article 3’s provisions to a non-signatory state. In Military and Paramilitary Activities, Nicaragua v. U.S., 1986 I.C. J. 4, para. 217 the court stated “However, if the Court were on its own initiative to find it appropriate to apply these Conventions, as such, for the settlemenet of the dispute, it could be argued that the Court would be treating it as a dispute arising under them…”

[26] Weiner at 348.

[27]  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]

[28] Henry H. Perritt, Making International Criminal Law Realistic (forthcoming) (draft on file with author).

[29] Geneva Conventions of 12 August 1949 for the Protection of War Victim, Aug. 12, 1949, 6 U.S.T. 3114. The Geneva Conventions consist of : Geneva Convention (I) for the Amelioration of the condition of Wounded and Sick in the Armed Forces in the Field, Aug. 12 1949, 6 U.S.T. 3114, (hereinafter Geneva Convention I); Geneva Convention (II) for the Amelioration of the condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, (Hereinafter Geneva Convention II); Geneva Convention (III) Relative to the Treatnet of Prisoners of War Aug. 12, 1949, 6 U.S.T. 3316, (Hereinafter Geneva Convention III); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12 1949, 6 U.S.T. 3516, (Hereinafter Geneva Convention IV); Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18 1907.

[30] Strong, supra note 27.

[31] Id.

[32] 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. 

[33] Common Article 3 (emphasis added).

[34] Para. 18, United Nations "Minimum Humanitarian Standards: analytical report of the Secretary-General submitted pursuant to Commission on Human Rights resolution 1997/21," E/CN.4/1998/87, adopted by the United Nations Commission on Human Rights (Resolution 1998/29).

[35] 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. 

[36] 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.)

[37] Nathan Berman, Privileging Combat? Contemporary Conflict and the Legal Construction of War, 43 Colum. J. Transnat’l L. 1, 9 (2004).

[38] Id. at 29. 

[39] See e.g. Fourth Geneva Convention, pt. III (regulating the status and treatment of “protected persons” as defined under Article 4).

[40] Id.

[41] Common Article 3, para. 1.

[42] Id.

[43] Rachael Kerr, The International Criminal Tribunal for the Former Yugoslavia: an Exercise in Law, Politics, and Diplomacy, 201 (Oxford University Press 2004).

[44] Id.

[45] 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].

[46] Tadic, Trial Chamber Opinion and Judgment, para. 1.

[47] 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).

[48]Tadic Appeal on Jurisdiction, para. 71. 

[49] Common Article 3 (emphasis added).

[50] Tadic, Appeal on Jurisdiction para. 70.

[51] Tadic, Trial Chamber Opinion and Judgment, para. 572.

[52] Anthony Cullen, Key Developments Affecting the Scope of Internal Armed Conflicts in International Humanitarian Law (2005) 183 Mil. L. Rev. 66, 69.

[53] Danner at 32.

[54] Id.

[55] 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.”

[56] Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-S (Trial Chamber), March 18, 2004 [herinafter Miodrag Jokic Trial Chamber Opinion].

[57] Miodrag Jokic Trial Chamber Opinion, para. 12.

[58] 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.”

[59] Id.  

[60] Limaj Trial Chamber Opinion, para. 87.

[61] Id., para. 90 (Consistently with decisions of other Chambers of this Tribunal and of the ICTR, the determination of the intensity of a conflict and the organisation of the parties are factual matters which need to be decided in light of the particular evidence and on a case-by-case basis.)

[62] Id., para. 90.

[63] Limaj Trial Chamber Opinion, para. 90

[64]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."

[65] Limaj Trial Chamber Opinion, para 89.

[66]Prosecutor v. Halilovic, (Trial Chamber), November 16, 2005, para. 28 [herinafter Halilovic Trial Chamber Opinion].

[67] Tadic Trial Chamber Opinion and Judgment, para. 632.

[68] Id.

[69] Prosecutor v. Blagojevic and Jokic,  (Trial Chamber), January 17, 2005, para. 536.

[70] 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.”

[71] Kunarac Appeals Chamber Opinion para. 58; see also, Halilovic Trial Chamber Opinion paras 29, 726; (same test).

[72] Prosecutor v. Vasiljevic, Case No. IT-98-32-A (Appeals Chamber), February 25, 2004 [herinafter Vasiljevic Appeals Chamber Opinion].

[73] Vasiljevic Appeals Chamber Opinion, paras. 25-27: “The Appellant argues that, although he agrees that there was an armed conflict in the municipality of Visegrad at all times relevant to the Indictment, his acts were not closely related to it.”

[74] Id. at para 57.

[75] Id.

[76] Id.

[77] Kunarac Appeals Chamber Opinion, para. 57.

[78] Halilovic Trial Chamber Opinion, para. 724.

[79] Id.

[80] See Armed Conflicts Report, http://www.ploughshares.ca/libraries/ACRText/ACR-Afghanistan.html (last visited November 6, 2007).

[81] In 2006, NATO took control of military operations in all of Afghanistan, and the total number of troops under NATO control reached 30,000. 37 countries are contributing troops towards this mission, including: US – 12,000 troops; UK – 4,500 troops; Canada – 2,300 troops; Germany – 2,600 troops; France – 1,000 troops; Turkey – 900 ISAF Website; Andrew White, Jane’s Defense Weekly, September 13, 2006; Edmonton Sun, AP, November 14, 2006]

[82]  “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, Afghanistan has moved on from the Bonn Process and the Mission’s work has adapted accordingly. As of 23rd March 2006 UNAMA’s mandate, which is renewed annually, contains six main elements. These are: providing political and strategic advice for the peace process; providing good offices; assisting Afghanistan’s government towards implementation of the Afghanistan Compact; promoting human rights; providing technical assistance; and continuing to manage all UN humanitarian relief, recovery, reconstruction and development activities in coordination with the government.” See UNAMA website, available at http://www.unama-afg.org/about/overview.htm (last visited November 18, 2007).

[83] See Benjamin Sand, Voice of America, August 22, 2006. The Taliban insurgency is comprosed of many groups, but they are all united through Islamic religious ideology. Taliban move into villages, recruit young men and pay them to do mercenary work. “This is a well-funded insurgency by all accounts…[n]o one knows for sure exactly how many Taliban-related militants there are in the country. U.S. officials refuse to provide even a rough estimate. Afghan authorities say it could be anywhere between 4,000 and 40,000.” Available at http://www.voanews.com/english/archive/2006-08/BKG-SAND-AFGHANISTAN-TALEBAN.

[84] See, Afghanistan Country Report on Human Rights Practices for 1997, Bureau of Democracy, Human Rights, and Labor, US Department of State, January 30, 1998.

[85]See Armed Conflicts Report, http://www.ploughshares.ca/libraries/ACRText/ACR-Afghanistan.htm.. (last visited November 6, 2007).

[86] 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 Afghanistan amounted to $7 million. For 2003, $50 million has been budgeted, and the budget request for 2004 has been set at $160 million, which would be approximately 45 percent of the estimated total cost for the Afghan Army in that year. The Russian Defence Minister ... promised in September 2002 to provide the Afghan Army with military equipment to the value of $100 million."

[87] Henry H. Perritt, Insurgency Presentation, Law of Nationbuilding, Fall Semester 2007 (Oct. 14, 2007).

[88] CBC NewsWorld, January 8th, 1999. See www.ploughshares.ca/libraries/ACRText/ACR-Yugoslavia.html.

[89] Limaj Trial Chamber Opinion and Judgment, paras. 171-173.

[90] Id., paras. 94-134.

[91] 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).

[92] Report of the Official Account of the Bombings in London on 7th July 2005, ordered by the House of Commons to be printed on 11th May, 2006, para. 38.

[93] Id. at para. 39. On the video, Khan explains his motivation does not “…come from tangible commodities that this world has to offer. Our religion is Islam – obedience to the one true God, Allah, and following the footsteps of the final prophet and messenger Mohammed...This is how our ethical stances are dictated. Your democratically elected governments continuously perpetuate atrocities against my people all over the world. And your support of them makes you directly responsible, just as I am directly responsible for protecting and avenging my Muslim brothers and sisters. Until we feel security, you will be our targets.”

[94] Id.  

[95] Id. at para 41:  “There is some evidence that Tanweer was motivated particularly by a desire for martyrdom. As described earlier, there are reports of Hussain and Lindsay expressing extreme views at school. Conspiracy theories also abounded, at least some of the bombers seem to have expressed the view that the 9/11 attacks were a plot by the US.”

[96] Id. at paras. 42-55; 75(e): Khan and Tanweer may have met Al Qaida figures during visits to Pakistan or Afghanistan. There was contact with someone in Pakistan in the run up to the bombings. Al Qaida’s deputy leader has also claimed responsibility.

[97] Id. para 75(g): The official report noted the simplicity of the plan: “The operation did not cost much and was financed by methods that would arouse little suspicion. The devices were constructed with materials that are readily available commercially and which required little expertise to turn into bombs.”

[98] Vasiljevic Appeals Chamber Opinion, paras. 25-27

[99] 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.