Abstract
International humanitarian law (IHL) provides limits to the conduct of warring parties during armed conflicts. If these limits are crossed, international criminal law (ICL) can address alleged violations of IHL. When certain conduct falls outside the scope of jurisdiction over war crimes it may result in impunity. International courts and tribunals have therefore taken a very broad approach to their jurisdiction, including with regards to the concept of non-international armed conflict, which has been expanded well beyond the initial intention of States. While an expansive approach to the application of IHL may be desirable after the fact, in order to ensure that atrocities can be prosecuted as war crimes, applying IHL too broadly to situations on the ground may not result in better protection of those affected by violence. Although the protective function of IHL remains of paramount importance, States nowadays also extensively rely on the permissive aspect of IHL that allows targeting of military objectives, combatants and other persons taking a direct part in hostilities. The present chapter addresses the tension between the desire to expand the jurisdiction over war crimes and the consequential impact on IHL. It does so by specifically looking at the manner in which international courts and tribunals have pronounced on the material scope of IHL.
Rogier Bartels is Legal Officer in Chambers (Trial Division) at the International Criminal Court and research fellow at the Netherlands Defence Academy. The views expressed in this article are the author’s and do not necessarily represent those of the aforementioned institutions.
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Notes
- 1.
Ratner 2017, p 912. Article 38 of the Statute of the International Court of Justice sets out the sources of public international law, which includes both IHL and ICL, but Hilary Charlesworth observes that international law is “generated by a multi-layered process of interactions, instruments, pressures and principles” (Charlesworth 2012, p 189). In this regard, Steven Ratner submits that IHL and ICL, “differ […] from the traditional sources doctrine in ‘the priority they accord to different sources and the approaches they take to them’” (Ratner 2017, p 916, referring to ibid.).
- 2.
Ibid., p 912.
- 3.
Ibid., pp 912–913.
- 4.
Albeit at a later stage, and arguably less “significantly”, other institutions dealing with situations of armed conflict, such as the Special Court for Sierra Leone (SCSL) and the International Criminal Court have also contributed to the development and clarification of IHL. Shane Darcy, for example, in discussion the ICTY’s contribution to the development of IHL, observes that the ICTR and the SCSL “have also made relevant contributions, albeit often in the shadow of the ICTY’s work” (Darcy 2014, p 8). In addition, outside the scope of the present contribution, the International Court of Justice’s role in this regard ought to be acknowledged.
- 5.
- 6.
Cullen 2010, p 122.
- 7.
Sassòli 2009, pp 111, 117–119.
- 8.
IHL aims to regulate warfare and thereby to mitigate the suffering resulting therefrom (e.g., Fleck 2008, p 11; and Kalshoven 2011, p 2), while the war crimes part of ICL seeks to counter the impunity of those having violated the rules of IHL in such a manner as to give rise to individual criminal responsibility (e.g., Cryer et al. 2010, p 1; Werle 2009, pp 29–36). On the interplay between the different objectives, see, generally, Corn 2014, pp 189–195; Bartels 2013b, pp 345–349.
- 9.
Jenks 2013, p 103.
- 10.
Stahn 2017, p 193. Carsten Stahn further notes that as a result, “some alliance with human rights concepts (‘dynamic interpretation’) and natural law foundations of IHL” was created.
- 11.
Ibid. It must be noted, however, that the dynamic forces of the judicial process and the role of individual judges, such as Judge Cassese, had a big impact during the early phase of ICL (ibid.).
- 12.
Horowitz 2016.
- 13.
- 14.
The United States, for example, contends that an armed conflict continues to exist against Al-Qaeda and “associated forces” and that therefore the power to detain (under the 2001 Authorization for the Use of Military Force) several persons captured during or in relation to the said conflict, such as Mr. Al-Alwi, persists. See for the aforementioned case, and a discussion of other similar cases, the amicus brief by Oona Hathaway et al.: United States Court of Appeals for the District of Columbia, Al-Alwi v Trump, Brief of experts on international law and foreign relations law as amici curiae in support of initial hearing en banc, 10 October 2017.
- 15.
ICRC 2016, paras 289–290.
- 16.
Theodor Meron, before himself joining the ICTY as a judge, held that the jurisprudence of the ad hoc Tribunals helped IHL “to come of age” and to develop more rapidly between 1991 and 1998 than during the 45 years after the Nuremberg Tribunal (Meron 1998b, pp 463–464). For a similar observation, see Schabas 2001, p 42.
- 17.
Fenrick 1998, p 197.
- 18.
ICTY, Prosecutor v Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, Case No. IT-94-1-A (Tadić 1995), para 119.
- 19.
See discussion below at Sect. 2.3.1.
- 20.
See mainly ICTY, Prosecutor v Kunarac et al., Judgement (Trial Chamber), 22 February 2001, Case No. IT-96-23-T & IT-96-23/1-T. The debate in this judgment on the definition of rape as an international crime was preceded by the discussion in Akayesu and Furundzija (ICTR, Prosecutor v Akayesu, Judgement (Trial Chamber), 2 September 1998, Case No. ICTR-96-4-T (Akayesu); ICTY, Prosecutor v Furundzija, Judgement (Trial Chamber), 10 December 1998, Case No. IT-95-17/1-T (Furundzija)).
- 21.
The prohibition of acts or threats the primary purpose of which is to spread terror among the civilian population, as prohibited under Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1979) (Additional Protocol I), Article 52(2), was clarified by the ICTY in ICTY, Prosecutor v Galić, Judgement (Trial Chamber), 5 December 2003, Case No. IT-98-29-T (Galić).
- 22.
- 23.
See, e.g., Supreme Court of the United States, Hamdan v Rumsfeld, 29 June 2006, 548 U.S. 557; Court of Appeal of The Hague (The Netherlands), Arrest [Appeal Judgment] 09-748802-09, 30 April 2015 (known as the LTTE case or Tamil Tigers case); Hof van Beroep Antwerpen (Belgium), Arrest [Appeal Judgment], 26 January 2016, Case No. 2015/FP/1-7 - FD35.98.47-12 (known as the Sharia4Belgium case).
- 24.
Ratner 2017, p 922, mentioning the Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (31 March 2011) as an example.
- 25.
See, e.g., Werle 2009, p 361; La Haye 2008, p 139; Graditzky 1999, p 199. In this regard, Eric David observes that even if the Rome Statute did not seek to modify the existing IHL instruments, Article 8(2)(e) leads to “an implicit extension of the scope of the 1977 Additional Protocol II”, as the war crimes concerned can be committed as part of violence between armed groups only and no longer require the government forces on one side and control over territory (David 2003, pp 357–358).
- 26.
- 27.
- 28.
By Christopher Greenwood, for example, who averred that in relation to the customary prohibition found by the Tribunal, “the general statement about customary law is flawed”, and that “the remarks about reprisals in non-international armed conflicts are more attractive but were made without consideration (or, at least, without any discussion in the text of the decision) of State practice” (Greenwood 2001, pp 556–557). The foremost expert on belligerent reprisals, Frits Kalshoven, similarly argued that the ICTY’s analysis was flawed: Kalshoven 2003, pp 481–509. See also Cryer et al. 2010, p 134; and more generally on the—at times problematic—treatment by international courts and tribunals of custom, see Zahar and Sluiter 2008; Bantekas 2006.
- 29.
ICTY, Prosecutor v Kupreškić et al., Judgement (Trial Chamber), 14 January 2000, Case No. IT-95-16-T, paras 525–529.
- 30.
Ratner 2017, pp 921–922.
- 31.
Dinstein 2016, p 9.
- 32.
With regards to the abovementioned ICTY’s findings on belligerent reprisals in Kupreškić (and similar findings in the Martić case), the United Kingdom Ministry of Defence’s Manual of the Law of Armed Conflict states that it “is unconvincing and the assertion that there is a prohibition in customary law flies in the face of most of the state practice that exists. The UK does not accept the position as stated in this judgment” (UK Ministry of Defence 2004, pp 420–421). The findings on the so-called “200-metre rule” to assess whether civilian objects were attacked, as applied by the Trial Chamber in Gotovina (ICTY, Prosecutor v Gotovina et al., Judgement (Trial Chamber), 15 April 2011, Case No. T-06-90-T, para 1898), drew criticism from, inter alia, the United States and Israel.
- 33.
- 34.
The Lubanga Trial Chamber stated that apart from “those on the front line (who participate directly)” also “the boys or girls who are involved in a myriad of roles that support the combatants”, such as “finding and/or acquiring food”, would be potential targets and thus needed to be protected by Article 8(2)(e)(iv) of the Rome Statute, which criminalises “using [children under the age of fifteen years] to participate actively in hostilities” (ICC, Prosecutor v Lubanga, Judgment Pursuant to Article 74 of the Statute, 14 March 2012, Case No. ICC-01/04-01/06 (Lubanga 2012), paras 624–628).
- 35.
Chris Jenks aptly notes that while a broader definition of participation in hostilities may have been aimed at affording “wider protection to child soldiers”, in effect “[t]he attendant methodological compromises and contradictions increased one defendant’s liability, but eroded that very protection in the process” (Jenks 2013, p 124). For further criticism, see Stahn 2017, pp 208–209; Kurth 2013; Wagner 2013; Bartels 2013b, pp 364–365; Aptel 2012; Urban 2012; see, however, in support of the Trial Chamber, Graf 2012; Chamberlain 2015, pp 118–124. Earlier, in the RUF case, the Special Court for Sierra Leone appeared well aware of the impact on IHL when it held that “an overly expansive definition of active participation in hostilities would be inappropriate as its consequence would be that children associated with armed groups lose their protected status as persons hors de combat under the law of armed conflict” (SCSL, Prosecutor v Sesay, Kallon and Gbao, Judgement (Trial Chamber), 2 March 2009, Case No. SCSL-04-15-T, para 1723).
- 36.
ICC, Prosecutor v Ntaganda, Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9 (Trial Chamber), 4 January 2017, Case No. ICC-01/04-02/06.
- 37.
ICC, Prosecutor v Ntaganda, Judgment on the appeal of Mr. Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9” (Appeals Chamber), 15 June 2017, Case No. ICC-01/04-02/06.
- 38.
ICC, Prosecutor v Ntaganda, Consolidated submissions challenging jurisdiction of the Court in respect of Counts 6 and 9 of the Updated Document containing the charges (Defence), 7 April 2016, Case No. ICC-01/04-02/06, para 2 and para 16 and further.
- 39.
Ibid., para 39; ICC, Prosecutor v Ntaganda, Appeal from the Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9 (Defence), 26 January 2017, Case No. ICC-01/04-02/06, para 45.
- 40.
Ibid., para 39.
- 41.
- 42.
ICRC 2017, para 569.
- 43.
McDermott 2017.
- 44.
Heller 2017 (emphasis in original).
- 45.
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute), Article 7(2)(a).
- 46.
The two judges of the majority emphasised that the only characteristic of the group with any importance was its capacity to do harm on the scale and gravity necessary for the acts to be considered crimes against humanity. ICC, Situation in The Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation Into the Situation in the Republic of Kenya (Pre-Trial Chamber), 31 March 2010, Situation No. ICC-01/09 (Kenya), para 90.
- 47.
Ibid., Dissenting Opinion of Judge Hans-Peter Kaul, para 51. More recently, another ICC Judge, in rejecting Judge Kaul’s approach, stated that the focus ought to be more on the levels of “cruelty and mass victimisation” than on the level of organisation and whether any link to the State or government exists, see ICC, Prosecutor v Ruto and Sang, Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, 5 April 2016, Case No. ICC-01/09-01/11, paras 448–457.
- 48.
Kenya, above n 46, Dissenting Opinion of Judge Hans-Peter Kaul, para 51.
- 49.
- 50.
- 51.
Bartels and Fortin 2016, pp 45–47.
- 52.
See ICC, Prosecutor v Katanga, Trial Judgment, 7 March 2014, Case No. ICC-01/04-01/07 (Katanga 2014), paras 1119–1122; ICC, Prosecutor v Bemba, Trial Judgment, 21 March 2016, Case No. ICC-01/05-01/08 (Bemba 2016), paras 157–161.
- 53.
This is the language used in Article 3, common to the four 1949 Geneva Conventions (Common Article 3).
- 54.
Pictet 1975, p 49.
- 55.
Greenwood 2008, p 47. Greenwood therefore understands the “omission” to define the term armed conflict to have been “deliberate”.
- 56.
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (Geneva Convention I), Article 2. In 1977, Article 1(4) of Additional Protocol I further added situations comparable to the anti-colonial struggles, which until then had been regarded as non-international, to the realm of international armed conflict.
- 57.
Farer 1971, p 43.
- 58.
According to one of the prominent drafters of the 1949 Geneva Conventions, the omission of a definition of non-international armed conflict in Common Article 3 was deliberate to avoid a restrictive interpretation: Castrén 1966, p 85. Indeed, Jelena Pejic observes that the deliberate omission from Common Article 3 is considered to be a “blessing in disguise” by the “‘no-definition’ school of thought” (Pejic 2007, p 85).
- 59.
See, e.g., ICRC 2011, pp 8–13.
- 60.
Whilst initially, the scope of application of the 1949 Geneva Conventions and 1977 Additional Protocols related only to the application of these treaties, it has become accepted that by now their scope (and distinction between international and non-international armed conflicts) governs the application of the whole body of IHL, i.e. the rest of the treaty rules as well as customary rules—save of course restrictions based on ratification of concerning treaties. See, inter alia, Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 10 October 1980, 1342 UNTS 137 (entered into force 2 December 1983) (as amended on 21 December 2001), Article 1, which provides that the convention and its protocols have the same scope of application as the 1949 Geneva Conventions and the 1977 Additional Protocols.
- 61.
It should be noted that certain provisions of IHL already apply in peacetime or continue to apply after the armed conflict has ended. See, e.g., Geneva Convention I, above n 56, Articles 47, 49 and 53; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (Geneva Convention II), Articles 44–45, 48 and 50; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Additional Protocol II), Article 5.
- 62.
As mentioned in the above footnote, certain provisions of IHL, and thereby the protection afforded by these provisions, continue to apply after the relevant international or non-international armed conflict has ended. Consequently, as discussed below, also after an international armed conflict has ended, war crimes can still be committed against prisoners of war, for example, who were detained during the conflict and not yet released and repatriated at the time of the criminal conduct.
- 63.
UN Security Council 1993 Resolution 827 (1993): Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/RES/827 (ICTY Statute), Article 5.
- 64.
- 65.
- 66.
Tadić 1995, above n 18, para 81. The “grave breaches” of the 1949 Geneva Conventions are a limited list of crimes that can be committed against persons specifically protected by these conventions. The Geneva Conventions establish individual criminal responsibility for those crimes (see Articles 50, 51, 130, and 147 of the four Geneva Conventions of 1949, respectively).
- 67.
Article 8(2)(a) and (b) of the Rome Statute list war crimes committed in during international armed conflicts, whilst Article 8(2)(c) and (e) apply only to violations committed in non-international armed conflicts.
- 68.
- 69.
Lubanga 2012, above n 34, para 539 (footnotes omitted).
- 70.
In addition to the need for an armed conflict (either international or non-international) for IHL to apply and thus for war crimes to be committed, the ICTY Statute in Article 5 also requires the existence of an “armed conflict” for crimes against humanity. Later tribunals and courts, such as the ICTR and ICC, do not require crimes against humanity to have a jurisdictional nexus to armed conflict. On this issue, see, e.g., Cryer et al. 2010, pp 234–235.
- 71.
See Tadić 1995, above n 18, paras 79–83.
- 72.
The ICTY Statute refers only to “armed conflict” and not to international or non-international armed conflict.
- 73.
Tadić 1995, above n 18, para 70.
- 74.
Boelaert-Suominen 2000, p 623.
- 75.
Ibid.
- 76.
See Milanovic and Hadzi-Vidanovic 2013.
- 77.
- 78.
Dino Kritsiotis explains that “by its choice and use of words, the Appeals Chamber might be taken to have been defining the concept of an ‘armed conflict’ as a generic proposition – one that serves as a common denominator for both international and non-international armed conflicts – for it is with this formulation (‘an armed conflict exists’) that the Appeals Chamber begins its declaration and apparent definition. However, nothing could be further from the truth for it becomes immediately apparent upon reading this dictum in full that the Appeals Chamber was in fact committing itself to the provision of not one but two definitions: it proceeded to define the concept of an international armed conflict (“a resort to armed force between States”) – which it interspersed with its definition of the concept of a non-international armed conflict (‘protracted violence between governmental authorities and organized armed groups or between such groups within a State’)”. Kritsiotis 2010, pp 267–268 (emphasis omitted).
- 79.
ICTY, Prosecutor v Dusko Tadić, Opinion and Judgment (Trial Chamber), 7 May 1997, Case No. IT-94-1-T, para 562.
- 80.
Akayesu, above n 20, para 620.
- 81.
See, e.g., ICTY, Prosecutor v Delalić et al., Judgement (Trial Chamber), 16 November 1998, Case No. IT-96-21-T, para 184; ICTY, Prosecutor v Kordić and ČCerkez, Judgement (Appeals Chamber), 17 December 2004, Case No. IT-95-14/2-A, para 341; ICTY, Prosecutor v Limaj et al., Judgement (Trial Chamber), 30 November 2005, Case No. IT-03-66-T (Limaj), para 84, ICTY, Prosecutor v Haradinaj et al., Judgement (Trial Chamber), 3 April 2008, Case No. IT-04-84-T (Haradinaj), para 38; ICTR, Prosecutor v Musema, Judgement (Trial Chamber), 27 January 2000, Case No. ICTR-96-13-T, paras 248–251.
- 82.
ICTY, Prosecutor v Dusko Tadić, Judgement (Appeals Chamber), 15 July 1999, Case No. IT-94-1 (Tadić 1999), para 84.
- 83.
Ibid., paras 120–131 and 145.
- 84.
- 85.
Quénivet 2014, p 44.
- 86.
Compare, e.g., the Tadić Appeal Judgment: Tadić 1999, above n 82, para 104.
- 87.
A notable exception was ICTY, Prosecutor v Aleksovski, Joint Opinion of the Majority, Judge Vohrah and Judge Nieto-Navia, on the Applicability of Article 2 of the Statute Pursuant to para 46 of the Judgement, 25 June 1999, Case No. IT-95-14/1-T (Aleksovski), para 27.
- 88.
Tadić 1999, above n 82, para 84.
- 89.
It is relevant, however, that the Tadić definition accepts that there is no threshold of intensity for international armed conflicts (see, e.g., Clapham 2015, p 12), as opposed to claims that State practice in fact shows that a certain intensity threshold also exists for such conflicts (see International Law Association Committee on the Use of Force 2010; O’Connell 2008). The ICRC, in line with the ICTY and the majority of academics, also submits any use of force triggers an international armed conflict (see ICRC 2016, paras 236–244).
- 90.
Ibid., paras 120–131 and 145.
- 91.
Ibid., paras 137 and 145.
- 92.
- 93.
ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), Judgment, 27 June 1986, [1986] ICJ Rep 14, paras 105–115.
- 94.
The ICRC observes that “while the International Court of Justice does not accept the use of the ‘overall control’ test as articulated by the ICTY for the purpose of attribution of conduct to a State, the most recent decisions of international tribunals display a clear tendency to apply the overall control test for the purposes of classifying a conflict. Of course, the ICTY was a precursor in this context since it was under its auspices that the concept of overall control was first developed.” ICRC 2016, para 270 (emphasis added).
- 95.
See the trial judgments in Lubanga, Katanga and Bemba: Lubanga 2012, above n 34, para 541; Katanga 2014, above n 52, para 1178; Bemba 2016, above n 52, para 130. The Lubanga Trial Chamber merely stated: “As regards the necessary degree of control of another State over an armed group acting on its behalf, the Trial Chamber has concluded that the ‘overall control’ test is the correct approach”. The Katanga Trial Chamber similarly did not address its choice for the overall control standard. Judge Van den Wyngaert, however, considered in her dissenting opinion that the question of overall versus effective control “is far from settled”. With respect to this issue and conflict classification, she noted that “the facts of this case are particularly complex on this point” and the evidence “not sufficient to arrive at any conclusions beyond reasonable doubt”. Katanga 2014, above n 52, Minority Opinion of Judge Christine Van den Wyngaert, para 276. See also ICC, Prosecutor v Lubanga, Decision on the confirmation of charges, 29 January 2007, Case No. ICC-01/04-01/06 (Lubanga 2007), paras 208–211.
- 96.
See, e.g., Liefländer, who critically assessed the Lubanga Trial Chamber’s approach to classifying the armed conflict. He expressed his surprise about the Trial Chamber’s lack of reasoning, because “[o]ne could have expected the [Trial Chamber] to at least consider the ICJ’s opinion [in the Genocide case] before blindly following the Tadic precedent. […] Irrespective of what answer the [Trial Chamber] would have given, considering that all cited authorities predate the ICJ’s Genocide judgment, one would have expected the [Trial Chamber] to show a minimum degree of awareness of this debate” (Liefländer 2012, pp 195–196).
- 97.
ICRC 2016, para 273.
- 98.
See, generally, Draper 2013, pp 575–590.
- 99.
See Yildiz and Breau 2010.
- 100.
Common Article 3 of the four Geneva Conventions of 1949 states, in relevant part: “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict”.
- 101.
Abi-Saab 1991, p 213.
- 102.
Cullen 2010, pp 57–58.
- 103.
Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims 1949, Minutes of 19th Plenary Meeting (29 July 1949), p 336; ibid., Summary Records of the Joint Committee, 1st Meeting (26 April 1949), pp 11–16. Shortly before the adoption of the 1949 Geneva Conventions, Hersch Lauterpacht distinguished the following four criteria for a belligerency: “[F]irst, there must exist within the State an armed conflict of a general (as distinguished from a purely local) character; secondly, the insurgents must occupy and administer a substantial portion of national territory; thirdly, they must conduct the hostilities in accordance with the rules of war and through organized armed forces acting under a responsible authority; fourthly, there must exist circumstances which make it necessary for outside States to define their attitude by means of recognition of belligerency” (Lauterpacht 1947, p 176).
- 104.
See, e.g., ICRC 1960, p 37 (emphasis added). See also Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims 1949, p 11, showing that Norway, the Soviet Union, Romania, Mexico, Denmark and Hungary, at the time of drafting, expressed a similar understanding.
- 105.
See ICRC 1952, pp 49–50.
- 106.
In other words: without any direct involvement of governmental forces.
- 107.
- 108.
Tachou-Sipowo 2013, p 294.
- 109.
Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims 1949, Summary Records of the Joint Committee, 1st Meeting (26 April 1949), pp 10–11.
- 110.
According to Sonja Boelaert-Suominen, the Tadić definition was innovative because it “caters explicitly for conflicts between non-state entities”. Boelaert-Suominen 2000, p 622.
- 111.
See, e.g., Rule 23 of the cyber warfare manual, prepared by a group of international experts, at the invitation of the North Atlantic Treaty Organization: Schmitt 2018, p 84.
- 112.
Namely, the cases against Mr. Lubanga, Mr. Katanga, and Mr. Ngudjolo. The case against Mr. Ntaganda concerns the same conflict. See Bartels and Fortin 2016.
- 113.
Quénivet 2014, p 44.
- 114.
- 115.
Ash 2007, p 275.
- 116.
As done in the definition it created in the Tadić Jurisdiction Decision: Tadić 1995, above n 18, para 70.
- 117.
Kritsiotis 2010, pp 267–268.
- 118.
Zahar and Sluiter 2008, p 112.
- 119.
See, e.g., ICTY, Prosecutor v Popović et al., Judgement (Trial Chamber), 10 June 2010, Case No. IT-05-88-T, paras 744 and further; Galić, above n 21, para 22; ICTY, Prosecutor v Simić et al., Judgement (Trial Chamber), 17 October 2003, Case No. IT-95-9-T, para 38; Furundzija, above n 20, paras 59–60; ICTY, Prosecutor v Mladić, Judgment (Trial Chamber), 22 November 2017, Case No. IT-09-92-T (Mladić), paras 3018–3020.
- 120.
ICTY, Prosecutor v Halilović, Judgement (Trial Chamber), 16 November 2005, Case No. IT-01-48-T, para 25. See also ICTY, Prosecutor v Mrkšić et al., Judgement (Trial Chamber), 27 September 2007, Case No. IT-95-13/1-T, para 457, in which the Trial Chamber stated that it had “not been called upon to make a finding on the nature of the conflict (international or non-international), as this is not relevant for the applicability of Articles 3 and 5 of the Statute under which the crimes alleged in the Indictment are charged”.
- 121.
See ICTY, Prosecutor v Karadžić, Judgement (Trial Chamber), 24 March 2016, Case No. T-95-5/18-T, paras 2440; Mladić, above n 119, paras 3018–3020.
- 122.
Article 1 of Additional Protocol II further requires that the organised armed groups are “under responsible command, [and] exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (Additional Protocol II, above n 61, Article 1).
- 123.
Noëlle Quénivet considers this omission to be “unfortunate” and “surprising”: Quénivet 2014, p 47.
- 124.
All serious violations fulfilling the so-called Tadić conditions, that is. After Tadić, all ICTY’s chambers seised of alleged crimes under Article 3 of the ICTY Statute have applied these four conditions, which according to the Appeals Chamber, in the Tadić Jurisdiction Decision, must be met for criminal conduct to fall within the scope of the said article (Tadić 1995, above n 18, para 94). These conditions are: “(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […]; (iii) the violation must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim […]; (iv) the violation must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.”.
- 125.
Quénivet 2014, p 47.
- 126.
See, e.g., Galić, above n 21.
- 127.
Tadić 1995, above n 18, para 70.
- 128.
- 129.
Setting the standard for non-international armed conflict to end too strict results in the scope of application becoming too broad or loose.
- 130.
- 131.
ICRC 2016, para 493. In the ICRC’s view, one should not be too hasty in considering the conflict has ended to avoid “a ‘revolving door’ classification of a conflict which might lead to legal uncertainty and confusion”. On the temporal scope of international and non-international armed conflicts generally, see Grignon 2014.
- 132.
ICRC 2016, para 494.
- 133.
E.g., UK Ministry of Defence 2004, p 385. The Leuven Manual on the International Law Applicable to Peace Operations, drafted at the request of the International Society for Military Law and the Law of War, while noting that the ICTY standard does not provide much guidance, nonetheless adopts this strict standard: Gill et al. 2017, pp 103–104.
- 134.
This applies to cases with only crime against humanity or genocide charges, as well as cases where such crimes and war crimes are cumulatively charged.
- 135.
ICTY, Prosecutor v Boškoski and Tarčulovski, Case No. IT-04-82-T.
- 136.
ICTY, Prosecutor v Boškoski and Tarčulovski, Judgement (Trial Chamber), 10 July 2008, Case No. IT-04-82-T, paras 208–292.
- 137.
Limaj, above n 81, para 89.
- 138.
Sivakumaran 2012, p 526.
- 139.
Kretzmer 2009.
- 140.
See, e.g., Wagner 2013, p 180, who notes that in case of re-characterisation by a chamber (pursuant to Regulation 55 of the Regulations of the Court, which allows the Judges to give a different legal classification to the facts) of the nature of the armed conflict (i.e. from an international to non-international, or the other way around), “an accused person would be facing a charge different in scope, on the basis of the nature of the armed conflict. Whilst from the perspective of IHL this is surely not strange or per se undesirable, this cannot be a welcomed development from an international criminal law (ICL) perspective, and from fair trial rights in particular.” See also Wilmshurst 2012, p 498, noting that “the criminalization of the conscription and enlistment of child soldiers […] has a slight but crucial difference in the terminology between the two respective crimes, which may render the classification of the conflict necessary in order to choose the correct charge”. Compare, however, with Pre-Trial Chamber I’s consideration in the Lubanga Confirmation Decision that “[t]he drafters of the Rome Statute wanted to include under article 8 of the Statute a larger array of criminal conduct committed in the context of an international armed conflict” (Lubanga 2007, above n 95, para 284).
- 141.
These principles, which dictate that in case of uncertainty or ambiguity the law shall be interpreted in favour of the accused, are included in Article 22(2) of the Rome Statute.
- 142.
For an international armed conflict it merely needs to be shown that two States used force against each other. This may be easy to prove in cases where the armed forces of the relevant States are directly engaging each other, or hard(er) when one of the States is secretly sending its troops to fight against the other State, alongside an armed group, or when it supports and controls the armed group through covert actions. What is not necessary to prove, however, is the existence of a certain intensity. On the other hand, establishing that a non-international armed conflict existed requires proving a far more elaborate fact pattern. Evidence has to be led on the indicators that assist in determining whether the intensity threshold has been met. Furthermore, evidence needs to be placed before the relevant chamber to show that one (in case government forces form the other party) or two or more (in case armed groups are fighting each other) of the alleged parties was/were sufficiently organised to be a “party to the conflict”. This may require the leading of significantly more evidence. That being the case, it may also be easier to obtain. Moreover, the indicators developed in the jurisprudence of the ad hoc tribunals appear to allow for consideration of the lower threshold on the basis of sources other than through insider witnesses. For example, establishing the existence of UN Security Council interest in the situation requires only a simple review of the debates held in the Council at the relevant time. Similarly, assessing the scale of displacement and number of refugees caused by the fighting is possible by consulting the public and readily available reports of humanitarian organisations such as the Office of the United Nations High Commissioner for Refugees.
- 143.
As discussed above, the Appeals Chamber had ruled that the grave breaches listed in Article 2 of the ICTY Statute could only be committed in times of international armed conflict.
- 144.
Milanovic 2010.
- 145.
See Decoeur 2013, p 479.
- 146.
Croatian Defence Council.
- 147.
Aleksovski, above n 87, para 27.
- 148.
Ibid.
- 149.
See Lubanga 2012, above n 34, para 554 and further. It is noted that it is not entirely clear whether the “contextual elements” of war crimes at the ICC require proof beyond reasonable doubt that a conflict was either international or non-international. The case law suggests that the beyond reasonable doubt standard applies; at least if the ICC’s Appeals Chamber determination in the Kenya cases, which concerned only crimes against humanity charges, that contextual elements need to be proven according to that standard is followed, see ICC, Prosecutor v Kenyatta and Muthaura, Decision on the appeal of Mr. Francis Kirimi Muthaura and Mr. Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’ (Appeals Chamber), 24 May 2012, Case No. ICC-01/09-02/11-425, paras 33–36. According to Judge Van den Wyngaert, who touched upon this issue in her dissent to the Katanga Trial Judgment, the standard of proof for the armed conflict element of war crimes is the same as for the other elements (Katanga 2014, above n 52, Minority Opinion of Judge Christine Van den Wyngaert, para 276). It has been argued, however, that the existence of an international or non-international armed conflict is simply a jurisdictional requirement not subject to the same standard, see the discussion on the drafting of the elements of war crimes in Kress 2000, pp 125–127. The ICTY’s case law is inconsistent both on the need to prove the existence of an international or non-international armed conflict as well as on the applicable standard, see Boas et al. 2008, pp 237–239.
- 150.
The Katanga Defence noted that “it is for the prosecution to prove beyond reasonable doubt that the alleged war crimes at Bogoro were committed either in an international armed conflict, if it relies on Articles 8(2)(a) and 8(2)(b), or in a non-international armed conflict, if it relies on Articles 8(2)(e) and 8(2)(c). Because the burden to establish the foregoing rests – and indeed remains – with the prosecution, it is for the prosecution to have called that evidence.” ICC, Prosecutor v Katanga and Ngudjolo, Second Corrigendum to the Defence Closing Brief, 29 June 2012, Case No. ICC-01/04-01/07, para 3.
- 151.
Parties can agree to certain facts, which—if the agreement is accepted by the chamber—are considered as proven for the purposes of the trial, see, inter alia, ICC (2002) Rules of Procedure and Evidence, ICC-ASP/1/3 and Corr.1, part II.A., Rule 69.
- 152.
E.g., ICC, Prosecutor v Bemba et al., Judgment (Appeals Chamber), 8 March 2018, Case No. ICC-01/05-01/13, paras 97–98; Supreme Court of the Netherlands, Arrest [Judgment] of 16 March 2010, Case No. 08/04489.
- 153.
The Lubanga Trial Chamber considered there to be “ample evidence” that Rwanda provided support to Mr. Lubanga’s armed group, the UPC/FPLC: “There is evidence that Rwanda supplied uniforms and weapons to the UPC/FPLC, including dropping weapons by air to Mandro, and it provided training to UPC/FPLC soldiers, in the DRC and in Rwanda.” (Lubanga 2012, above n 34, para 554). In addition, the Lubanga Trial Chamber heard (hearsay) evidence from a witness about the UPC/FPLC receiving orders from Rwanda (para 555). However, the Trial Chamber held that as “this statement has not been corroborated by other evidence and it is insufficient, taken alone or together with the other evidence above, to prove that Rwanda had overall control of the UPC/FPLC and the latter acted as its agent or proxy. Thus, there is insufficient evidence to establish (even on a prima facie basis) that either Rwanda or Uganda exercised overall control over the UPC/FPLC.” (para 561).
- 154.
The defence team for Mr. Lubanga opposed the Prosecution’s allegation that a non-international armed conflict existed and argued that the involvement of other States had rendered the conflict international in nature. Lubanga 2012, above n 34, paras 516–517.
- 155.
- 156.
Darryl Robinson warns in this regard that “ICL practitioners often assume that the ICL norms are coexistence with their human rights or humanitarian law counterparts [and][…] overlook the fact that these bodies of law have different purposes and consequences and thus entail different philosophical commitments.” Robinson 2008, p 925.
- 157.
See, inter alia, Rome Statute, above n 45, Article 66.
- 158.
Such as the approach by the US government following Hamdan, namely accepting the application of IHL, after it had initially argued that IHL was not applicable to captured persons such as Mr. Hamdan.
- 159.
- 160.
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Cases
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Court of Appeal of The Hague (The Netherlands), Arrest [Appeal Judgment] 09-748802-09, 30 April 2015
ICC, Prosecutor v Bemba et al., Judgment on the appeals of Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido against the decision of Trial Chamber VII entitled “Judgment pursuant to Article 74 of the Statute” (Appeals Chamber), 8 March 2018, Case No. ICC-01/05-01/13
ICC, Prosecutor v Bemba, Judgment pursuant to Article 74 of the Statute (Trial Chamber), 21 March 2016, Case No. ICC-01/05-01/08
ICC, Prosecutor v Katanga and Ngudjolo, Second Corrigendum to the Defence Closing Brief (Defence), 29 June 2012, Case No. ICC-01/04-01/07
ICC, Prosecutor v Katanga, Judgment pursuant to article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07
ICC, Prosecutor v Kenyatta and Muthaura, Decision on the appeal of Mr. Francis Kirimi Muthaura and Mr. Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute” (Appeals Chamber), 24 May 2012, Case No. ICC-01/09-02/11-425
ICC, Prosecutor v Lubanga, Decision on the confirmation of charges (Pre-Trial Chamber), 29 January 2007, Case No. ICC-01/04-01/06
ICC, Prosecutor v Lubanga, Judgment Pursuant to Article 74 of the Statute (Trial Chamber), 14 March 2012, Case No. ICC-01/04-01/06
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Bartels, R. (2019). A Fine Line Between Protection and Humanisation: The Interplay Between the Scope of Application of International Humanitarian Law and Jurisdiction over Alleged War Crimes Under International Criminal Law. In: Gill, T., McCormack, T., Geiß, R., Krieger, H., Paulussen, C. (eds) Yearbook of International Humanitarian Law, Volume 20, 2017. Yearbook of International Humanitarian Law, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-264-4_2
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