The Statute of the International Criminal Tribunal for the Former Yugoslavia: The Development of Criminalisation of International Humanitarian Law

Table of contents

Introduction

I. The Scope of Offences pursuant to Arts. 2 - 5 of the Yugoslavia Statute

II. Universal Jurisdiction over Violations of Art. 2, 4 and 5 of the Yugoslavia Statute

III. Conclusions

Bibliography

Introduction

The United Nations Security Council, acting under chapter VII of the United Nations Charter, has established an International Criminal Tribunal for the prosecution of perpetrators responsible for the violations of international humanitarian law in the territory of the former Yugoslavia after January 1st, 1991.^[1] This was possible because the Security Council has recognised that the outrageous atrocities committed on a mass scale in the former Yugoslavia have posed a threat to international peace and security.^[2] After having investigated violations through a commission of experts^[3] and announced the prosecution and punishment of serious violations of international humanitarian law^[4], the Security Council has taken - by establishing the International Criminal Tribunal for the Former Yugoslavia and formulating the Yugoslavia Statute as a new body of international law - the first steps to punish the commission of serious war crimes. The Yugoslavia Statute does not only remain a legal construction that combines the traditional legal framework of international humanitarian law with the establishment of common penal principles, such as the principle of individual criminal responsibility, universal jurisdiction and the penalisation of international war crimes. Moreover, the Tadic case^[5] has affirmed the primacy^[6] and the subject matter jurisdiction of the International Criminal Tribunal set forth in Arts. 2-5 of the Yugoslavia Statute. In this essay, I shall examine the development of penalisation of international humanitarian law pursuant to the Yugoslavia Statute and its jurisdiction over certain war crimes. Section I describes the scope of offences set forth in Arts. 2-5 of the Yugoslavia Statute. In this chapter, I will argue that customary international law contains a major part of the modern criminalisation of international humanitarian law fading within the scope of the Yugoslavia Statute. In addition, I shall criticise some of the penal developments established in the Yugoslavia Statute. Section III presents some concluding remarks.

I. The Scope of Offences pursuant to Arts. 2 - 5 of the Yugoslavia Statute

Articles 2-5 of the Yugoslavia Statute have established several criminal offences dealing with serious violations of international humanitarian law. Art. 2 and 3 punish "grave breaches of the Geneva Conventions of 1949 and "violations of the laws or customs of war", whereas Art. 4 and 5 give the court jurisdiction over "genocide" and "crimes against humanity".

Art. 2 of the Yugoslavia Statute gives the International Tribunal authority to prosecute perpetrators committed grave breaches of the Geneva Conventions of 12 August 1949, "against persons or property" who are protected by the relevant provisions. While sub-paragraphs (a) - (c) refer to each of the four Geneva Conventions^[7], sub-clause (d) of Art. 2 Yugoslavia Statute has been copied from the wording of the Conventions I, II and IV. Sub-paragraph (e) has been adopted from Convention III, whereas sub-clauses (f) - (h) refer verbatim to the Convention IV. Although the Geneva Conventions are regarded as having the status of treaties which can only bind the contracting parties^[8], it is widely accepted that the provisions of the 1949 Geneva Conventions serve as a "declaratory of customary international law"^[9]. Art. 2 of the Yugoslavia Statute thus punish the commission of certain international war crimes. It is also accepted that the commitment of rape constitutes such a war crime that falls within the grave breaches system of the Geneva Conventions, although is it not expressively listed in Art. 2 of the Yugoslavia Statute.^[10] The reference to the grave breaches system of the 1949 Geneva Conventions made by Art. 2 of the Yugoslavia Statute is important for the requirement to punish perpetrators committing war crimes because those Geneva Conventions themselves establish the duty to prosecute or extradite the suspected against whom an accusation of grave breaches has been made.^[11] The duty to punish criminals through the 1949 Geneva Conventions can be viewed as a new development in the context of modern international humanitarian law.

Because, prior to the amendment of the Geneva Conventions in 1949, the 1929 Geneva Conventions did not establish such a criminal obligation. In the absence of clearly listed penal provisions in the 1929 Geneva Conventions, customary international law served as a basis for individual criminal responsibility.^[12] Because the Geneva Conventions preceded those of 1949 were formally addressed to states^[13] which were bound by the 1929 Geneva Conventions, and not to individuals. However, the 1949 Geneva Conventions provide a sound framework for prosecuting and punishing those persons who violate norms of international humanitarian law. By referring to the grave breaches provisions of the 1949 Geneva Conventions, Art. 2 of the Yugoslavia Statute adopts the penal character of the Geneva Conventions and is thus part of the enforcement of the criminal concept of international humanitarian law.

Art. 3 of the Yugoslavia Statute allows the International Tribunal to prosecute persons who have violated "the laws or customs of war" by enumerating some "but not limited" examples, such as the "employment of poisonous weapons" (sub-paragraph (a) ) or the "wanted destruction of cities, towns or villages" (sub-para. (b) ) or the "plunder of public or private property" (sub-para. (e) ). The brief reference of Art. 3 to "the laws or customs of war" remains silent regarding the scope of the norm. However, the scientific literature and the Tadic judgement have already put the scope of Art. 3 in concrete terms. O'Brian has shown that "the laws and customs of war under Artide 3 included all law of armed conflict in force in the territory of the former Yugoslavia" which makes it possible to apply the "provisions of the Geneva Conventions on nongrave breaches, including common Art. 3 concerning internal armed conflict, and the Additional Protocols to the Conventions"^[14]. Concerning Art. 3 of the Yugoslavia Statute, the International Tribunal has more precisely decided in the Tadic case that this provision covers

"all violations of humanitarian law not fading under Art. 2 (grave breaches) or covered by Articles 4 (genocide) or 5 (crimes against humanity), more specifically: (i) violations of The Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as "grave breaches" by those Conventions; (iii) violations of common Art. 3 and other customary rules on internal conflicts […]"^[15].

The authoritative statement of the appeals chamber in the Tadic case presents some remarkable developments. Firstly, it clarifies that the 1907 Hague Regulation, although in former times only regarded as part of the customary international law^[16], as well as all the nongrave breaches of the 1949 Geneva Conventions have explicitly become part of the criminalisation of international humanitarian law. Secondly, the judgement reflects the modern tendency in the literature to internationally criminalise offences of Art. 3 of the Geneva Conventions and the Additional Protocols. Both are applicable in noninternational armed conflicts as a basis for criminal prosecution and conviction.^[17] Therefore, Art. 3 of the Yugoslavia Statute unambiguously allows to prosecute and punish the perpetrator who has committed violations of "the law or customs of war" which are both designed to cover the criminalisation of international wars and internal armed conflicts.^[18]

However, some authors arguably criticise that the appeals chamber in the Tadic case has overlooked a closer examination of the grave breaches norms of the 1949 Geneva Conventions which have become, in addition, part of customary international law^[19] and which may also fall within the scope of "the laws or customs of war" pursuant to Art.3 of the Yugoslavia Statute.

Moreover, further critique can be established when looking at the scope of Art. 3 of the Yugoslavia Statute which unites provisions applicable to international armed conflicts (e.g. The Hague law) and norms of internal armed conflicts (violations of common Art. 3 of the Geneva Conventions). Firstly, the mixed applicability of norms of international conflicts and internal conflicts incorporated in Art. 3 of the Yugoslavia Statute pursuant to the Tadic judgement goes beyond the intention of the legislator (Security Council) who classified the hostilities and military conflicts occurred in the former Yugoslavia as international in character.^[20]

In addition, the Secretary-General has pointed out that the "tribunal should apply only those rules of international customary law applicable in international armed conflicts"^[21]. Despite the legislator's statement, there also exists a strong attempt by some scholars to extend the concept of crimes under international law to internal atrocities through the applicability of common Art. 3 of the Geneva Conventions.^[22] The necessity for the expansive interpretation of Art. 3 of the Yugoslavia Statute applicable even to noninternational armed conflicts in the territory of the former Yugoslavia is reasonably justified by the assumption that "the conflict in the former Yugoslavia has internal and international elements"^[23]. Even though this statement is inconsistent^[24], it would be even more difficult for the International Tribunal to prove beyond doubt whether the Yugoslavia conflict was internal or international in character. In my view, the opinions of those authors, including the opinion of the appeals chamber in the Tadic case, favouring a broad interpretation of Art. 3 of the Yugoslavia Statute which should even be applicable to internal armed conflicts (common Art. 3 of the Geneva Conventions), would fail because of practical problems and difficulties in the proof of evidence. Furthermore, the expansion of Art. 3 of the Yugoslavia Statute to apply to norms of internal armed conflicts would clearly infringe the legislator’s intention to limit the scope of Art. 3 of the Yugoslavia Statute applicable only to international armed conflicts.

Secondly, it can be further argued that the broad scope of Art. 3 of the Yugoslavia Statute, which is both applicable to international and internal armed conflicts, stands dogmatically in sharp contrast to the strict interpretation of Art. 2 of the Yugoslavia Statute. While Art. 2 of the Yugoslavia Statute is closely oriented to the grave breaches norms of the 1949 Geneva Conventions, and thus to clear positive norms that penalise certain atrocities committed in international armed conflicts, Art. 3 of the Yugoslavia Statute lacks dogmatic transparency and certainty. Because a major part of “the laws or customs of war” included in Art. 3 of the Yugoslavia Statute is governed by the rules of customary international law, namely some provisions of the 1907 Hague Regulations^[25], violations of Art. 3 common to the Geneva Conventions^[26] and “other customary rules on internal conflicts”^[27]. The problem of acceptance of customary law as part of the concept of criminalisation of international humanitarian law is that it remains unclear which of the provisions can be exactly regarded as part of the customary rules. Some authors even emphasise the dogmatic difficulties in determining and establishing individual criminal responsibility based on customary international law.^[28] In fact, various factors, such as the “extent to which provisions is addressed to individuals, whether the prohibition is unequivocal in character” or “the gravity of the act”^[29], makes it difficult to consider which norms of international humanitarian law in each case can be viewed as penal provision and thus be transformed into customary international law.^[30]

[...]

^[1] See the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia, published in SC Resolution 827 (May 25, 1993), reprinted in 32 ILM 1203 (1993): hereinafter Yugoslavia Statute.

^[2] O'Brian (1993), at p. 643; Meron (1994), at p. 79.

^[3] By SC Resolution 780 (Oct. 6, 1992), reprinted in 31 ILM (1992), quoted from O'Brian (1993), at p. 641.

^[4] See SC Resolution 808 (Feb. 22, 1993), reprinted in 32 ILM 1203 (1993), quoted from O'Brian (1993), at p. 642.

^[5] See Prosecutor v. Tadic, case No. IT-94-I-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, Appeals Chamber, reprinted in 35 ILM 32 (1996). For the discussion see, for instance, Aldrich (1996), pp. 64-69 and Warbrick/Rowe (1996), at pp. 691-701.

^[6] See Art 9(2) of the Yugoslavia Statute.

^[7] See Art. 50 of the Convention I, for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, reprinted in 75 UNTS 31; Art. 51 of the Convention II, for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, reprinted in 75 UNTS 85; Art. 130 of the Convention III, relative to the Treatment of Prisoners of War, reprinted in 75 UNTS 135; Art. 147 of the Convention IV, relative to the Protection of Civilian Persons in Time of War, reprinted in 75 UNTS 287.

^[8] Meron (1983), at p. 591.

^[9] Meron (1994), at p. 79, quoting further authorities in footnote 9).

^[10] See Arts. 13-14 of the Geneva Convention III; Art. 27 of the Geneva Convention IV. For discussion see, Meron (1993), pp. 424 ff.

^[11] See, e.g., Art. 146 of the Geneva Convention IV.

^[12] Compare, for example, Meron (1995), p. 564.

^[13] See Meron (1995), at pp. 562-563.

^[14] Quoted from O'Brian (1993), at p. 646.

^[15] Prosecutor v. Tadic, Case No. IT-94-I-AR72, Appeal on Jurisdiction (Oct. 2, reprinted in 35 ILM 32 (1996), at p. 51, para. 89, quoted from Meron (1996), pp. 241-242.

^[16] See Meron (1983), at p. 591.

^[17] Compare, e.g., O'Brian (1993), at p. 646.

^[18] See Meron (1996), at p. 243.

^[19] See Aldrich (1996), at p. 68 and Meron (1996), at p. 242. For the customary character of the 1949 Geneva Conventions, see Meron (1994), at p. 81.

^[20] See Meron (1995), at p. 556.

^[21] Report of the Secretary-General, para. 35, at p. 1170, UN Doc. S/25704, reprinted in 32 ILM 1159 (1993), quoted from Meron (1994), p. 82, footnote 15).

^[22] See O'Brian (1993), pp. 646-647; Meron (1994), p. 82; Meron (1995), pp. 560-561.

^[23] Quoted from O'Brian (1993), at p. 647.

^[24] See O’Brian (1993), stating at the same page that the "conflict (in the former Yugoslavia) is clearly international: three nations have fought, primarily in the territory of two of them (thus far), with a number of fronts and partisan or proxy groups participating on behalf of each", at p. 647.

^[25] See Hague Convention (No. IV) Respecting the Laws and Customs of War on Land and annexed Regulations of Oct. 18, 1907, reprinted in 36 Stat. 2277, TS No. 539. Meron (1983), at p. 591, pinpoints that "the acceptance of The Hague Regulations as customary law resolves the difference posed by Art. 2 of the fourth Hague Convention, which States that the provisions contained in the Convention and in the Regulations annexed to it "do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention". This si omnes or general participation clause can now be regarded as irrelevant”.

^[26] See Meron (1996), pp. 242-243.

^[27] See judgement of the appeals chamber in the Tadic case, at p. 51, para. 89, quoted from Meron (1996), pp. 241-242.

^[28] Compare, e.g., Meron (1983), p. 591; Meron (1995), pp. 562-563.

^[29] Quoted from Meron (1995), at p. 562.

^[30] Meron (1995), at p. 563, correctly mentions that in most cases, customary international law exercises a penal function to "supply (the) missing links" where treaties of international humanitarian law often fail "to clearly define the criminality of prohibited acts".