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Discrepancies Between International Humanitarian Law on the Battlefield and in the Courtroom: The Challenges of Applying International Humanitarian Law During International Criminal Trials

Abstract

International humanitarian law and international criminal law are distinct but related fields. The application of international humanitarian law to concrete facts by international tribunals and courts has contributed to the development and clarification of this body of law. However, using a law in the courtroom that was created instead, to be applied on the battlefield poses significant challenges. In the process of such use, the law may have been distorted to fit facts that it was not envisioned to cover. Its use is as a means to punish unwanted behaviour during armed conflicts and to combat impunity risks contorting the balance on which international humanitarian law is based: military necessity and humanity. This chapter highlights some findings by international criminal tribunals and courts that do not sit easily with international humanitarian law as applied by armed forces, and discusses the consequences that applying the laws of armed conflict during criminal trials may have for this branch of international law.

Keywords

  • Supra Note
  • Armed Conflict
  • Appeal Chamber
  • Rome Statute
  • Trial Chamber

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

The author had the privilege of collaborating with Avril during his time at the Netherlands Red Cross and the International Criminal Tribunal for the former Yugoslavia. The many conversations with her, both during professional and social occasions, will always remain fond memories. The author would like to thank Jeroen van den Boogaard, Chris Gosnell, Robert Heinsch, Eric Iverson, Dov Jacobs, Thomas Wayde Pittman, Barbara Sonczyk, and Natalie Wagner for their helpful comments on an earlier draft. Naturally, the views expressed in this chapter are those of the author alone and any mistakes remain his own responsibility. The case law is updated until June 2012.

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Notes

  1. 1.

    The first multilateral humanitarian law treaty dates back to 1864 (Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864, http://www.icrc.org/ihl.nsf/FULL/120?OpenDocument). After a failed attempt to set up a tribunal to try the German Emperor Wilhelm II, the International Military Tribunals of Nuremberg and Tokyo saw the light of day in 1945; however, it took until the 1990s for international criminal law to really take off.

  2. 2.

    Fenrick 1997, p. 26.

  3. 3.

    Fenrick 1997, p. 26. However, in situations of targeting, military lawyers will normally be involved in the target selection process. See e.g. Boyle 2001, pp. 32–33.

  4. 4.

    Examples include Articles 38–41, 57–66, and 79 of the Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, (hereinafter: Third Geneva Convention), United Nations Treaty Series, Vol. no. 75, http://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-972-English.pdf. In addition, it was not accepted until the ad hoc Tribunals that war crimes included more than only “grave breaches” and that other serious violations of IHL as well as such violations committed during non-international armed conflicts were also to be included. See generally Wagner 2003.

  5. 5.

    In its report on the North Atlantic Treaty Organisation’s (hereinafter: NATO) 1999 bombing campaign in relation to Kosovo, the Office of the Prosecutor of the ICTY acknowledged that sometimes IHL is not clear enough to start an investigation into alleged crimes. See the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia of 2000 (hereinafter: “Final Report to the Prosecutor”), p. 90.

  6. 6.

    The judges at the ad hoc Tribunals had to develop the elements of crimes themselves (albeit aided by the parties that made proposals) for the alleged crimes that they were asked to pronounce upon. The International Criminal Court has elements of crimes that have been drafted by a special working group, and were subsequently adopted by the Assembly of States Parties. The elements of crimes merely serve to “assist” the judges and are not binding on the chambers, however. See Article 9(1) of the Rome Statute of the International Criminal Court (hereinafter: Rome Statute), Rome, 17 July 1998, U.N. Doc. A/CONF. 183/9, http://untreaty.un.org/cod/icc/statute/romefra.htm.

  7. 7.

    Besides war crimes, substantive international criminal law also includes the crime of genocide and crimes against humanity. Both of these crimes can be committed outside a situation of armed conflict. See further Sect. 14.2 below.

  8. 8.

    See Werle 2009, p. 358, para 964, referring to the ICTY, Prosecutor v. Dusko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 81.

  9. 9.

    See on this issue e.g. Darcy 2010; Heinsch 2007; Danner 2006; van den Herik 2005; Kress 2001; Green 1999; Greenwood, 1998; Meron 1998a; Fenrick 1998.

  10. 10.

    Sassòli 2009, pp. 111, 117–119.

  11. 11.

    See Sect. 14.6.

  12. 12.

    See Kalshoven’s speech, published as Kalshoven 2004, p. 151.

  13. 13.

    Ibid., at p. 153.

  14. 14.

    ‘Modern’ vis-à-vis the criminalisation of, e.g., piracy and slavery. Extradition and mutual assistance in criminal cases are often—besides the term that is also used: transnational criminal law—grouped under the heading of “international criminal law”. ICL is used herein for the law criminalising genocide, crimes against humanity, and violations of IHL.

  15. 15.

    The full name of the ICTY is the “International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”. The ICTR’s full name is the “International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994”. See, respectively, UN SC Resolutions 827 (S/RES/827 (25 May 1993)) and 955 (S/RES/955 (8 November 1994)). The United Nations Secretary-General’s report to the Security Council on the establishment of the ICTY also made clear that the Tribunal was to apply “rules of international humanitarian law which are beyond any doubt part of customary law” (see Report of the Secretary-General, ‘Report pursuant to Article 2 of Security Council Resolution 808’ (1993) U.N. Doc. S/25704, 34).

  16. 16.

    Article 1(1) of the Special Court Statute reads: “The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996” (Statute of the Special Court for Sierra Leone, annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed on 17 January 2002).

  17. 17.

    As such “serious violations of international humanitarian law” would also include acts of genocide and crimes against humanity. In 1966, Pictet described IHL “in the wide sense” as “compromising two branches: the law of war and human rights” (Pictet 1966, p. 10).

  18. 18.

    Bothe 2004, p. 37.

  19. 19.

    Ibid. For the fragmentation of international law and the consequences for the separate branches, see the Report of the Study Group of the International Law Commission (2006), which was prepared by Martti Koskenniemi.

  20. 20.

    Wuerzner 2008, p. 929.

  21. 21.

    Ibid.

  22. 22.

    Ibid.

  23. 23.

    Fleck 2008, p. 11; Kalshoven 2011, p. 2.

  24. 24.

    Cryer et al. 2010, p. 1; Werle 2009, pp. 29–36.

  25. 25.

    See Articles 45(1) (“Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.”), 50(1) (“In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”), and 52(3) (“In case of doubt whether an object which is normally dedicated to civilian purposes […] is being used to make an effective contribution to military action, it shall be presumed not to be so used.”) of Protocol (I) Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 9 December 1978) 1125 United Nations Treaty Series 3 (hereinafter: Additional Protocol I), http://treaties.un.org/doc/Publication/UNTS/Volume%201125/volume-1125-I-17512-English.pdf.

  26. 26.

    See Article 21(3) ICTY Statute, Article 20(3) ICTR Statute, and Article 66 Rome Statute.

  27. 27.

    ICTY, Prosecutor v. Delalić et al., Case No. IT-96-21-T, Judgement, 16 November 1998 (“Delalić et al. Judgement”) para 601. See generally Raimundo 2008, pp. 110–111.

  28. 28.

    ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement, 5 December 2003 (“Galić Judgement”), para 55.

  29. 29.

    This challenge obviously also exists for the adjudication of violations of IHL on the national level. See on the issue of the civilian presumption and the principle of in dubio pro reo, Hayashi 2006, pp. 76–84, which also includes a discussion on the approach taken by the ICTY with regard to “doubt” as to direct participation and prisoner of war status.

  30. 30.

    See below the discussion of the Lubanga case (ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06) at “Military targets vs civilian objects”. Naturally, case law is formed by the decisions of the chambers and not by the view of a prosecutor’s office or the defence. However, with regard to submissions by the parties, it is interesting that the Final Report to the Prosecutor (see supra note 5) has been so widely referred to in both academic writings and in case law. Similarly, the reliance of the Customary IHL Study on the First Indictment in Karadžić and Mladić as evidence of the customary nature of the prohibition to attack UN personnel appears not to take into account the fact that, although the indictment has been confirmed by the Pre-Trial Chamber, it is still merely the view of one of the parties to a criminal trial and a chamber at trial has yet to pronounce thereon (see Henckaerts and Doswald-Beck 2005b, Rule 33 and accompanying text, p. 113).

  31. 31.

    Sivakumaran 2011, p. 220.

  32. 32.

    Ibid., at p. 230.

  33. 33.

    For its part, a joint criminal enterprise (JCE) is purely an ICL concept that was first introduced by the ICTY in Prosecutor v. Tadić. The judges deemed it necessary to introduce this extra-statutory mode of liability because

    to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility.

    (ICTY, Prosecutor v. Dusko Tadić, Case No. IT-94-1, Judgement (Appeals Chamber), 15 July 1999 (“Tadić Appeal Judgement”) para 192).

    This mode of participation was found (and has since been found by later ICTY Trial and Appeals Chambers, as well as at the ICTR, Special Court and the Extraordinary Chambers in the Courts of Cambodia) to exist for war crimes. There are three different types of JCE, namely:

    1. i.

      A plurality of persons. They need not be organised in a military, political or administrative structure […].

    2. ii.

      The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

    3. iii.

      Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose. (Tadić Appeal Judgement, para 224).

  34. 34.

    Direct participation in hostilities is purely an IHL concept that has been subject to extensive legal debate. A study initiated by Avril McDonald, together with the International Committee of the Red Cross (hereinafter: ICRC), seeking to clarify the concept of direct participation in hostilities, was published by the ICRC in 2009: the Interpretive Guidance on the notion of direct participation in hostilities under international humanitarian law. According to this Interpretive Guidance (herein referred to as Melzer 2009), the notion of direct participation in hostilities “refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict.” (Melzer 2009, p. 16). Such acts must meet the following cumulative criteria:

    1. 1.

      The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and

    2. 2.

      there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and

    3. 3.

      the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus). (Melzer 2009, p. 16).

  35. 35.

    Interestingly, this issue was discussed only briefly during the expert meetings that formed part of the drafting of the Interpretive Guidance. IHL and ICL are (arguably) separate legal regimes, and academic experts in both or either of these fields might not view this issue as being problematic because they have a clear understanding of each of the two concepts. However, those practicing in these fields, and those with less in-depth knowledge of IHL and of ICL, have trouble in understanding how someone can be responsible for committing war crimes without losing his/her protection as a civilian under the laws of war.

  36. 36.

    The Commentary to the Additional Protocol I uses the term “extensive”. The Commentary’s substitution of the word “excessive” by “extensive” is criticised by, inter alia, Anthony Rogers for negating the balancing process inherent in the idea of proportionality (see Rogers 2004, p. 18). Extensive is deliberately used here, however, as it should be clear that a large number of casualties is at issue, which does not fall within the required equation, and thus need not be balanced against the military advantage that would be gained.

  37. 37.

    See e.g. Kolb and Hyde 2008, p. 48; and Dinstein 2004, p. 59.

  38. 38.

    Articles 51(5)(b) and 57(2) of Additional Protocol I refer only to “civilian life, injury to civilians, damage to civilian objects, or a combination thereof” that would be “excessive in relation to the concrete and direct military advantage anticipated”.

  39. 39.

    It is submitted by the present author that the fundamental principle of proportionality underlying Articles 52 and 57 of Additional Protocol I would include any person who cannot directly be targeted under IHL, i.e. in addition to civilians, also persons hors de combat.

  40. 40.

    Of course also during an armed conflict certain (international) crimes can be very well organised, planned and far from ‘chaotic’. One need only think of the Holocaust as being a case in point.

  41. 41.

    It is acknowledged that courts at the national level are faced with many problems also when dealing with war crimes. Some of these problems are of a similar nature as those on the international level. Because of the substance of the applicable law and the situations in which the alleged crimes were committed, some problems are due to the national criminal justice systems. See, generally, Witteveen 2010.

  42. 42.

    The question is answered in the negative, but it is held that the prosecution of conduct of hostilities crimes meets with many difficulties. Wuerzner 2008, pp. 907–930.

  43. 43.

    Nazi Germany documented the Holocaust meticulously and the ICTY has been able to make use of thousands of documents produced by the parties to the Balkan conflict. However, obtaining documents containing, e.g., the targeting decisions or orders to commit a violation, is difficult as the armed forces will normally attempt to prevent these documents from falling into the hands of a third party. Furthermore, written documents by militia, whose activities may more often be before the ICC, rarely exist, if indeed at all; or such documents may be few in number.

  44. 44.

    See, inter alia, Dawson and Dixon 2006, pp. 112–134; and Neuner 2002, p. 163.

  45. 45.

    ICTY, Prosecutor v. Tihomir Blaškić, Case No. IT-95-14, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, 29 October 1997. The Appeals Chamber held that the Tribunal “does not possess any power to take enforcement measures against sovereign States” and that States can only receive “orders” or “requests” from the Tribunal pursuant to Article 29 of the ICTY Statute.

  46. 46.

    See, inter alia, Sluiter 2009, pp. 590–608.

  47. 47.

    See Combs 2010. It should be noted that Combs’ extensive research did not include the ICTY, but some of the problems that she highlights also apply to witness testimonies at the ICTY.

  48. 48.

    Individual criminal responsibility thus also only arises when the attacker intended the outcome (or at least an outcome contrary to IHL) to occur. See, inter alia, Article 8(2)(a)(i), (iii), (iv) and (vi) of the Rome Statute, using the wording “willful(ly)” and “wantonly”; and 8(2)(b)(i)–(iv), (ix) of the Rome Statute, proscribing that the acts should have been carried out “intentionally”.

  49. 49.

    Examples include the 7 May 1999 attack by NATO on the Chinese Embassy in Belgrade as part of Operation Allied Force (see the Final Report to the Prosecutor, supra note 5, paras 80–85); as well as the attack by the United States on the Amiriyah shelter/Al Firdus bunker during the 1991 Gulf War (United States Department of Defense 1992, pp. 615–616).

  50. 50.

    In the Hostage case, the Military Tribunal held that “The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered on his own military situation provided the facts or want thereof which furnished the basis for the defendant’s decision […]. [T]he conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgement but he was guilty of no criminal act.” (United States of America v. Wilhelm List et al., in Trials of War Crimes before the Nuremberg Military Tribunals under Control Council No. 10, Vol. XI TWC (1948) (“Hostage case”) 1297).

  51. 51.

    Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, para 7. Similar statements have been made by, e.g., Austria, the Netherlands and the United Kingdom (see the reservations/declarations to Additional Protocol I at www.icrc.org/ihl).

  52. 52.

    Galić Judgement, supra note 28, para 58.

  53. 53.

    Rules 24 and 15 of ICRC, ‘Study on Customary International Humanitarian Law’ (2005) (hereinafter: ICRC Customary IHL Study). Since 2005 updated and available at http://www.icrc.org/customary-ihl/eng/docs/home.

  54. 54.

    See Van Schaack and Slye 2007, pp. 252–253.

  55. 55.

    Hayashi 2006, pp. 87–88.

  56. 56.

    Office of the Prosecutor of the ICC Press Release, ‘Georgia preliminary examination: OTP concludes second visit to the Russian Federation’ (4 February 2011) ICC-OTP-20110204-PR625; and the overview available at http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/, stating that the ICC’s Office of the Prosecutor is conducting preliminary examinations, e.g. into the situations in Georgia, Afghanistan and Palestine.

  57. 57.

    The various ad hoc Tribunals and the ICC have often made use of expert witnesses, called by both the Prosecution and the Defence. An example is the Gotovina case before the ICTY, where Lieutenant Colonel Konings, an artillery expert in the Royal Netherlands Army, called by the Prosecution, and Professor Corn, a former US army officer, called by the Defence, testified on issues such as the feasibility of taking precautions and targeting with artillery. See ICTY, Prosecutor v. Gotovina et al., Case No. IT-06-90-T, Judgement, 15 April 2011 (Gotovina Trial Judgement), paras 36, 1163–1175; See also ICTY, Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement, 31 January 2005, paras 130–131, 203–204; ICTY, Prosecutor v. Milan Martić, Case No. IT-95-11-T, Judgement, 12 June 2007, para 29.

  58. 58.

    This is also true for the testimony of crime-based witnesses.

  59. 59.

    ICTY, Prosecutor v. Gotovina et al., Case No. IT-06-90-A, Decision on Application and Proposed Amicus Curiae Brief, 14 February 2012, para 7. The group of military experts (from Canada, the United Kingdom and the United States) attempted to submit its report as an amicus curiae brief to the ICTY’s Appeals Chamber, but its request was denied by the Appeals Chamber. See the aforementioned decision.

  60. 60.

    International Humanitarian Law Clinic at Emory University School of Law 2012, p. 12. See, however, http://opiniojuris.org/2012/02/01/significant-problems-with-the-gotovina-expert-report/ for a critique of the report by Kevin Jon Heller. The present author shares some of the concerns as to the effect on the application of the law in military practice, mentioned in the report, and agrees that the law has to continue being realistic, but does not share all the criticisms included in the report.

  61. 61.

    International Humanitarian Law Clinic at Emory University School of Law, p. 7.

  62. 62.

    Fenrick 1998, p. 197.

  63. 63.

    Meron 1998b, pp. 463, 464. See for similar remarks Schabas 2001, p. 42

  64. 64.

    See ICTY, Prosecutor v. Dusko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras 66–70.

  65. 65.

    In first Limaj and then in Haradinaj, the ICTY clarified the definition of non-international armed conflict that had been used by this Tribunal since Tadić (see ICTY, Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Case No. IT-04-84-T, Judgement, 3 April 2008). In Boškoski, the Trial Chamber elaborated on this clarification by giving a detailed overview of what constitutes such a conflict, and by reviewing how the relevant elements of Common Article 3 that were recognised in Tadić, namely ‘intensity’ and ‘organisation of the armed group’ are to be understood (ICTY, Prosecutor v. Boškoski and Tarčulovski, Case No. IT-04-82-T, Judgement, 10 July 2008, paras 175–206). The Appeals Chamber later confirmed the approach taken by the Trial Chamber. See ICTY, Prosecutor v. Boškoski and Tarčulovski, Case No. IT-04-82-A, Appeal Judgement, 19 May 2010, paras 19–24.

  66. 66.

    See mainly ICTY, Prosecutor v. Kunarac, Kovač and Vuković, Case No. IT-96-23-T& IT-96-23/1-T, Judgement, 22 February 2001. The debate in this judgment on the definition of rape as an international crime was preceded by the debate in the ICTR’s Akayesu case and the ICTY’s Furundžija case. See ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998; and ICTY, Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgement, 10 December 1998.

  67. 67.

    The prohibition of acts or threats the primary purpose of which is to spread terror among the civilian population (Article 52(2) Additional Protocol I), as clarified by the ICTY in the Galić Judgement, supra note 28.

  68. 68.

    Sandoz 2009, p. 1061.

  69. 69.

    See e.g. Graditzky 1999, p. 199; Darcy 2010, p. 321; Meron 1998c, p. 1518. Convention on Cluster Munitions (adopted 30 May 2008, entered into force 1 August 2010) CCM/77, http://www.icrc.org/ihl.nsf/FULL/620?OpenDocument.

  70. 70.

    See Cryer 2006, pp. 239–263; and Darcy 2010, p. 321.

  71. 71.

    See, inter alia, the “critical analysis” by Wolff Heintschel von Heinegg in Heintschel von Heinegg 2003, pp. 35–43.

  72. 72.

    ICTY, Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-T, Judgement, 14 January 2000 (“Kupreškić et al Judgement”).

  73. 73.

    ICTY, Prosecutor v. Milan Martić, Case No. IT-95-11-R61, Judgement, 8 March 1996 (“Martić Judgement”).

  74. 74.

    See the list of state parties and reservations made to Additional Protocol I at www.icrc.org/ihl.

  75. 75.

    Sofaer 1988, pp. 784, 785.

  76. 76.

    Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (hereinafter Additional Protocol II), Geneva, 8 June 1977, United Nations Treaty Series, Volume Number 1125 (“Additional Protocol II”), http://treaties.un.org/doc/Publication/UNTS/Volume%201125/volume-1125-I-17513-English.pdf

  77. 77.

    Kupreškić et al Judgement, supra note 72, paras 527–535.

  78. 78.

    Martić Judgement, supra note 73, paras 16–17.

  79. 79.

    Kalshoven 2003, pp. 481–509; Greenwood 2001, pp. 539–557, who concludes 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” (at pp. 556–557).

  80. 80.

    Robert Cryer et al. wrote that the Kupreškić Judgement “rather unconvincingly derived the prohibition of practically all reprisals from contradictory practice and a bold interpretation of the Martens clause” (Cryer et al. 2010, p. 134). See also the discussion of Kupreškić in Kuhli and Günther 2011, pp. 1261–1278.

  81. 81.

    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” (United Kingdom Ministry of Defence 2004, pp. 420–421).

  82. 82.

    ICTY, Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in relation to Command Responsibility, 16 July 2003. See Greenwood 2004, p. 601; See also Mettraux 2009, p. 22.

  83. 83.

    Sassòli 2009; Sassòli and Olsen 2000; Compare Dörmann 2003, pp. 45–74.

  84. 84.

    Greenwood 1998.

  85. 85.

    ICTY, Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement, 3 March 2000, para 180. The Kordić Trial Chamber used a different, but similarly ambiguous wording when it stated that “prohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity.” (ICTY, Prosecutor v. Dario Kordić and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, para 328).

  86. 86.

    Galić Judgement, supra note 28, paras 42–45.

  87. 87.

    ICTY, Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Appeal Judgement, 29 July 2004, para 109.

  88. 88.

    See, e.g., Article 23 (g) of the 1907 Hague Convention IV respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (better known as the Hague Regulations), http://www.icrc.org/ihl.nsf/FULL/195?OpenDocument; Articles 8, 33, 34, 50 of Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (hereinafter First Geneva Convention), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75, http://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-970-English.pdf; Articles 8, 28, 51 of Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (hereinafter Second Geneva Convention), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75, http://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-971-English.pdf; Article 126 of 1949 Geneva Convention III; Articles 49, 53, 143, 147 of Convention (IV) relative to the Protection of Civilian Persons in Time of War (hereinafter Fourth Geneva Convention), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75, http://treaties.un.org/doc/Publication/UNTS/Volume%2075/volume-75-I-973-English.pdf; Articles 54(5), 62(1), 67(4), 71(3) of Additional Protocol I; Articles 4(2), 11(2) of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, United Nations Treaty Series, Volume Number 249, http://treaties.un.org/doc/Publication/UNTS/Volume%20249/volume-249-I-3511-English.pdf; Article 17(1) of Additional Protocol II; but also Article 8(2)(b)(xiii), 8(2)(e)(viii), 8(2)(e)(xii) of the Rome Statute.

  89. 89.

    Hayashi 2006, p. 108 (footnote omitted).

  90. 90.

    See, inter alia, the way in which the pillage of military supplies (such as ammunition), which is by all means legal under IHL, was considered a crime by the Special Court (SCSL, Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, Appeal Judgement, 28 May 2008) and is considered to be an alleged war crime by the ICC’s Prosecutor and Pre-Trial Chamber II (ICC, Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09-243-Red, Decision on the Confirmation of Charges, 8 December 2010; and ICC, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09-121-CORR-RED, Corrigendum of the “Decision on the Confirmation of Charges”, 7 March 2011 (“Banda and Jerbo Confirmation Decision”).

  91. 91.

    SCSL, Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgement, 2 August 2007, paras 839–841.

  92. 92.

    Pictet 1958, pp. 226–227.

  93. 93.

    The ICRC Customary IHL Study states at Rule 49: “The parties to the conflict may seize military equipment belonging to an adverse party as war booty.” See further Dörmann 2002, p. 277, referring to Oppenheim 1952, p. 401 and further. “War booty” is in various military manuals defined as “enemy military objects (or equipment or property) captured or found on the battlefield.” (E.g. the Argentinian, Australian, Canadian, Dutch, French and German manuals as referred to in: ICRC Customary IHL Study, Rule 49, under “Definition”).

  94. 94.

    Henckaerts and Doswald-Beck 2005b, p. 174 (Commentary to Rule 49 on “War Booty”) or Henckaerts and Doswald-Beck 2005b, http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule49.

  95. 95.

    ICC, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09-79-Red, Document Containing the Charges Submitted Pursuant to Article 61(3) of the Statute, 11 November 2010, para 44.

  96. 96.

    According to some witnesses, the African Union markings appearing on AMIS vehicles were later removed and covered with mud (Banda and Jerbo Confirmation Decision, supra note 90, para 121). This is a common practice in Darfur, where the non-state actors cover captured vehicles in mud for camouflage and use the vehicles in their fight against the government forces and militias. See e.g. Ferguson, ‘Sudan rebels tell war stories over sheep feast’, 26 December 2010, http://edition.cnn.com/2010???/WORLD/africa/12/14/sudan.darfur.rebels/index.html.

  97. 97.

    Banda and Jerbo Confirmation Decision, supra note 90, paras 110–117.

  98. 98.

    In Galić (supra note 28) and ICTY, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1.

  99. 99.

    Article 3(d) of the Special Court’s Statute.

  100. 100.

    SCSL, Prosecutor v. Norman et al., Case No. SCSL-03-14-I, Decision on Motions for Judgement of Acquittal Pursuant to Rule 98, 21 October 2005 (“Norman Rule 98 Decision”), para 111.

  101. 101.

    SCSL, Prosecutor v. Brima et al., Case No. SCSL-04-16-T, Judgement, 20 June 2007, paras 668, 669, referring to the Galić Appeal Judgement, para 671, and referring to the Norman Rule 98 Decision, para 111.

  102. 102.

    Sandoz et al. 1987, para 4538 (emphasis added).

  103. 103.

    Galić Judgement, supra note 28, para 136. See more in detail, Bartels and Wagner 2008, pp. 296–299; and Bianchi and Naqvi 2011, pp. 232, 233.

  104. 104.

    Sandoz et al. 1987, para 1940.

  105. 105.

    ICTY, Prosecutor v. Dusko Tadić, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999, paras 164–166. Earlier, in the Čelebići Trial Judgment, the ICTY had also addressed the nationality issue in a similar way. See ICTY, Prosecutor v. Mucić et al., Case No. IT-96-21-T, Judgement, 16 November 1998.

  106. 106.

    Sassòli 2009; Sassòli and Olsen 2000; Compare Dörmann 2003, pp. 45–74.

  107. 107.

    ICC, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008 (“Katanga Confirmation Decision”), para 266 (footnotes omitted).

  108. 108.

    See Jann Kleffner, Chap. 11 of this book. The Special Court determined in Prosecutor v. Issa H. Sesay, Morris Kallon and Augustine GBAO, SCSL-04-15-T, Judgement, 2 March 2009, paras 1108, 1452, 1453, that when a party to an armed conflict kills members of its own forces, this does not amount to a war crime because those killed were neither civilians nor persons hors de combat and as such could not benefit from the protection that IHL grants to both categories. This issue might also be addressed by the ICTY Trial Chamber seized of the Prlić et al. case, which has to determine whether the killing by the HVO of some of its Muslim members is a violation of the laws and customs of war.

  109. 109.

    Banda and Jerbo Confirmation Decision, supra note 90. The AMIS camp was situated in Darfur.

  110. 110.

    Katanga Confirmation Decision, supra note 107, para 329.

  111. 111.

    Ibid. The Pre-Trial Chamber explained that “part of the doctrine endorses the view that, as any war crime, the crime of pillage is committed against the adverse party to the conflict” and refers to Dörmann 2002, pp. 279, 280. The ICTY Prosecution in Delalić argued that one of the material elements of plunder, a term that is often used synonymously with pillage, was that the “accused unlawfully destroyed, took, or obtained any public or private property belonging to institutions or persons linked to the other side of the armed conflict.” (ICTY, Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Closing Statement of the Prosecution, 25 August 1998). The Trial Chamber in that case held that “international law today imposes strict limitations on the measures which a party to an armed conflict may lawfully take in relation to private and public property of an opposing party” and that “the prohibition against the unjustified appropriation of public and private enemy property is general in scope” (Delalić et al. Judgement, paras 587–590; emphasis added. See also Dörmann 2002, pp. 273–275).

  112. 112.

    Before the Banda and Jerbo Confirmation Decision, the ICC dealt with the same attack in the ICC, Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09-243-Red, Decision on the Confirmation of Charges, 8 December 2010. The charges against Abu Gharda were not confirmed. In its decision, the Pre-Trial Chamber did not deal with the alleged crime of pillage.

  113. 113.

    Office of the Prosecutor of the ICC Press Release, ‘ICC Prosecutor: alleged war crimes in the territory of the Republic of Korea under preliminary examination’ (6 December 2010) ICC-CPI-20101206-PR608, http://www.icc-cpi.int/menu/icc/press%20and%20media/press%20releases/press%20releases%20(2010)/pr608 (last visited on 7 April 2012).

  114. 114.

    Ibid.

  115. 115.

    Whether or not the crime of aggression would be an issue concerning the Koreas, which are said to be still at war with each other because no peace treaty has ever been signed, is interesting food for thought, but lies outside the scope of this contribution.

  116. 116.

    There is no doubt that the warship itself was a legitimate target. Since the dead and the injured, according to South Korea, were all “servicemen”, and hence, were also legitimate targets, there is no proportionality issue. See the Letter dated 4 June 2010 from the Permanent Representative of the Republic of Korea to the United Nations addressed to the President of the Security Council, 4 June 2010, S/2010/281.

  117. 117.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Transcript (ICC-01/04-01/06-T-356-ENG ET WT 25-08-2011 1-90 PV T), 25 August 2011 (hereinafter: “Lubanga Transcript”), p. 53, lines 15–25, p. 54, line 1.

  118. 118.

    Lubanga Transcript, supra note 117, p. 55, lines 15–21.

  119. 119.

    “Active participation in hostilities” (the wording used in Article 8(2)(b)(xxxvi) of the Rome Statute) is to be understood as synonymous with “direct participation in hostilities”. See Dörmann 2002, pp. 378, 379; and ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, 29 January 2007; ICC, Prosecutor v. Germain Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008.

  120. 120.

    See the ICRC 2008 and the resulting academic debate in e.g. 42 Journal of International Law and Politics 3.

  121. 121.

    The Interpretive Guidance states unequivocally that the notion of direct participation has evolved from, and is used interchangeably with, that of active participation: “The notion of direct participation in hostilities has evolved from the phrase “taking no active part in hostilities” used in [Common] Article 3. Although the English texts of the Geneva Conventions and Additional Protocols use the words “active” and “direct”, respectively, the consistent use of the phrase “participent directement” in the equally authentic French texts demonstrate that the terms “direct” and “active” refer to the same quality and degree of individual participation in hostilities” (Melzer 2009, 43; footnotes omitted).

  122. 122.

    The war crime of conscripting, enlisting or using child soldiers is found in Article 8(2)(b)(xxxvi) for international armed conflict and in Article 8(2)(e)(iv) of the Rome Statute for non-international conflict. It has to be added that another member of the OTP earlier during the closing arguments had correctly (from an IHL point of view) answered a similar question posed by Presiding Judge Fulford (Lubanga Transcript, supra note 117, p. 23, lines 8–18). Also the Prosecution’s Final Brief is much more nuanced on this point (ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, OTP Final Brief, 20 July 2011, pp. 59–61). Whether the ‘last expressed view’, i.e. by the Prosecutor during the closing arguments, or the text of the final brief should be taken as the official view of the OTP, is not clear from the rules. However, the Prosecutor made very clear during the closing arguments that he believes that the former should prevail (see Lubanga Transcript, supra note 117, p. 55, line 25–p. 56, line 1).

  123. 123.

    See Article 51(3) of Additional Protocol I, which states that “[c]ivilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.” Article 13(3) of Additional Protocol II provides that civilians are immune from direct attack “unless and for such time as they take a direct part in hostilities.” See further inter alia Common Article 3 of the Geneva Conventions, Articles 8(2)(b)(i) and 8(2)(e)(i) of the Rome Statute.

  124. 124.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Separate and Dissenting Opinion of Judge Odio Benito, 14 March 2012, paras 17–21.

  125. 125.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, 14 March 2012 (“Lubanga Judgment”), paras 629, 630.

  126. 126.

    The Trial Chamber explained that “active participation” is not the same as “direct participation”, when it held that: “The use of the expression ‘to participate actively in hostilities’, as opposed to the expression ‘direct participation’ (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence of using children under the age of 15 actively to participate in hostilities. It is noted in this regard that Article 4(3)(c) of Additional Protocol II does not include the word ‘direct’.” (Lubanga Judgment, supra note 125, para 627). However, this is not a convincing argument as the drafting history should only be resorted to if the language of the Statute is unclear, which is not the case. The Trial Chamber’s reliance on treaty law does not make sense as (i) Additional Protocol II was not applicable to the armed conflict concerned (as the requirements by Article 1 of the said Protocol had not been met), ii) the subparagraph following the one referred to (i.e. Article 4(3)(d) of Addition Protocol (II) does include “direct”, and (iii) the omission of a word in Additional Protocol II does not change the fact that the Rome Statute uses the wording “active participation”. The Trial Chamber’s reference to Triffterer’s commentary does not support the finding in footnote 1801, nor does the article that said commentary refers to as this contains the opinion of the ICRC with regard to the draft text of the Optional Protocol to the Convention on the Rights of the Child concerning Involvement of Children in Armed Conflicts—a treaty that was adopted two years after the adoption of the Rome Statute. (See in this regard Louise Doswald-Beck, who held: “This provision reflects the prohibition in the 1977 Additional Protocols, rather than treaty developments since then. This was intentional as the negotiators of the Rome Statute based their reasoning on prohibitions that were considered to represent customary international law at the time, ie in 1998.” Doswald-Beck 2011, p. 529).

  127. 127.

    Lubanga Judgment, supra note 125, paras 624–628.

  128. 128.

    The ICRC has noted in this regard that even civilians forced to participate directly in hostilities and children under the lawful recruitment age may lose their protection against direct attack, but regain it once they no longer so participate. See ICRC 2008, p. 60 and Footnote 154.

  129. 129.

    See Sandoz et al. 1987, para 1945 (“There should be a clear distinction between direct participation in hostilities and participation in the war effort. The latter is often required from the population as a whole to various degrees. Without such a distinction the efforts made to reaffirm and develop international humanitarian law could become meaningless. In fact, in modern conflicts, many activities of the nation contribute to the conduct of hostilities, directly or indirectly; even the morale of the population plays a role in this context”).

  130. 130.

    Lubanga Judgment, supra note 125, para 628.

  131. 131.

    See in this regard also the warning given by Sivakumaran 2011, p. 230.

  132. 132.

    For the charges of “conscripting and enlisting children under the age of fifteen years”, an expansion would not have been necessary.

  133. 133.

    ICL has unfortunately not been an effective deterrent for violations of IHL. For the International Military Tribunals, the ICTR and the Special Court this was, of course, impossible (at least with regard to the conflicts these tribunals related to), because they were established after the fact. The ICTY, however, was established before some of the worst violations (e.g. the killings in Srebrenica, the siege of Sarajevo and the ethnic cleansing in Kosovo) of the Balkan conflict occurred. Dieter Fleck observes that “[c]riminal sanctions are not the most decisive tool during military operations” and that “the prospect of being tried for war crimes by international tribunals post-conflict is still too vague to influence the behaviour of insurgents during combat” (Fleck 2003, p. 66). David Scheffer, on the other hand, gives a more hopeful account, when describing that there “already are signs of deterrence emerging from the work of the International Criminal Court” and that the fear of being taken to The Hague has an effect on war criminals. (Scheffer 2011, p. 6).

  134. 134.

    On this issue and an effort to have such a convention created, see generally Sadat 2011.

  135. 135.

    The “attack” does not refer to an attack within the meaning of Article 49 of Additional Protocol I. For the determination of what constitutes a civilian population, IHL is used as guidance. See ICTY, Prosecutor v. Milan Martić, Case No. IT-95-11-A, Appeal Judgment, 8 October 2008 (“Martić Appeal Judgement”).

  136. 136.

    Combatants and those directly participating in hostilities can legally be targeted (i.e. killed). Even the death of a civilian does not necessarily mean a war crime was committed, because this civilian may have been part of non-excessive incidental damage resulting from an attack on a military target (see e.g. Article 51(5)(b) of Additional Protocol I). With regard to deportation, see, inter alia, Articles 19 and 20 of the Third Geneva Convention, which deal with the obligation to evacuate POWs after their capture away from the combat zone.

  137. 137.

    Akhavan 2008, p. 23.

  138. 138.

    That for a crime against humanity, the attack has to be directed against the “civilian population”, indicates at the ad hoc Tribunals that it is the civilian population that is the primary object of the attack (see also Article 3 of the ICTR Statute). The victims of a crime against humanity need not be civilians strictu sensu, but can include persons hors de combat or those not afforded the protective status of civilians. (See ICTY, Prosecutor v. Tihomir Blaškić, Case No. IT-94-14-A, Appeal Judgement, 29 July 2004, para 113; Martić Appeal Judgement, para 313; ICTY, Prosecutor v. Vlastimir Đorđević, Case No. IT-05-89/1-T, Judgement, 23 February 2011, para 1591). In Mrksić, the Appeals Chamber overturned the Trial Chamber’s Judgement in part, but—albeit for different reasons—concurred with the Trial Chamber that the jurisdictional prerequisites of crimes against humanity (before the ICTY) had not been established. The Appeals Chamber reasoned that the nexus between the acts of the accused and the attack on the civilian population was not established now that the perpetrators of the alleged crimes “acted in the understanding that their acts were directed against members of the Croatian armed forces”, and as such, could not have intended their acts to be part of an attack against a civilian population. ICTY, Prosecutor v. Mile Mrksić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Appeal Judgement, 5 May 2009, paras 42–44.

  139. 139.

    ICTY, Prosecutor v. Mile Mrksić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Appeal Judgement, 5 May 2009, Disposition, p. 169.

  140. 140.

    For the relationship between crimes against humanity and war crimes, and the elements of crimes against humanity, see Cryer et al. 2010, p. 233 and further.

  141. 141.

    The Bosnian-Muslim forces were part of the Armija Republike Bosne i Hercegovine (i.e. the Army of the Republic of Bosnia and Herzegovina; hereinafter: ABiH).

  142. 142.

    Vojska Republike Srpske: the army of the Republika Srpska.

  143. 143.

    Forcible transfer or forced displacement means that people are moved against their will or without having had a genuine choice. See ICTY, Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Appeal Judgement, 17 September 2003, paras 229, 233; and ICTY, Prosecutor v.Milomir Stakić, Case No. IT-97-24-A, Appeal Judgement, 22 March 2006 (“Stakić Appeal Judgement”), para 279.

  144. 144.

    ICTY, Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Judgement, 10 June 2010 (“Popović et al. Trial Judgement”), paras 955–961. The Trial Chamber did not find that this (also) constituted the crime of deportation, since it was not clear whether the Bosnian-Serb forces meant for the Bosnian-Muslim soldiers to cross a border when swimming across the Drina.

  145. 145.

    Popović et al. Trial Judgement, supra note 144, para 956 (footnotes omitted).

  146. 146.

    A goal that has also been recognised in IHL given the fact that the forced movement of civilians across state borders is a violation of IHL (e.g. Article 49 of the Fourth Geneva Convention of 1949), whilst the forced movement of combatants during active hostilities, as well as when combatants are made POWs, is in conformity with IHL and, at times, even an obligation under these rules (e.g. Articles 19 and 111 of the Third Geneva Convention of 1949). It has also been recognised by the ICTY that POWs cannot be forcibly transferred or deported: Stakić Appeal Judgement, supra note 143, para 284. See also Prosecutor v. Mile Mrksić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgment, 27 September 2007, para 458 (stating that “deportation cannot be committed against prisoners of war”).

  147. 147.

    Popović et al. Trial Judgement, supra note 144, para 736.

  148. 148.

    Fleeing combatants remain legitimate military targets as long as they have not surrendered or otherwise fallen hors de combat (nota bene: also, after surrender, a POW can be shot when fleeing, i.e., when the POW attempts to escape from a POW camp; see Article 42 Third Geneva Convention, and Preux 1960, pp. 246, 247). Arguably, the principle of military necessity applied in a restricting manner or the principle of chivalry would limit to right to attack fleeing combatants. However, in itself such an attack on combatants would not be unlawful. See Hampson 1992, pp. 53, 54; and Hampson 1993.

  149. 149.

    In a decision on jurisdictional issues, the Gotovina Trial Chamber held that “as to the [Defence’s] argument that the victims of deportation must be in the hands of a party to the conflict, the Trial Chamber recalls that crimes against humanity must be ‘directed against any civilian population’. Article 5 of the Statute therefore applies to ‘any’ civilian population including one within the borders of the state of the perpetrator. There is no additional requirement in the jurisprudence that the civilian be in the power of the party to the conflict.” (ICTY, Prosecutor v. Gotovina et al., IT-06-90-PT, Decision on Several Motions Challenging Jurisdiction, 19 March 2007, para 56). Akhavan considers the decision problematic because it does not apply IHL to the actus reus of deportation as a crime against humanity. He submits that “[t]he Chamber is clearly confusing the distinction between protection of civilians in occupied territory as distinct from combat situations, with the nationality of such civilians” (Akhavan 2008, pp. 33, 34). This indeed appears to be the case and could lead to the conclusion that civilians leaving an area where bombardments are taking place as part of legitimate combat operations against military forces and structures could be considered to be deported as a crime against humanity. However, in its Judgment, the Gotovina Trial Chamber found that the crime of deportation resulted from the fear installed into civilians as a result of unlawful attacks on civilian objects (Gotovina Trial Judgement, supra note 57, paras 1742–1763).

  150. 150.

    ICTY, Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Revised Second Consolidated Amended Indictment, 4 August 2006 (“Popović et al. Revised Second Consolidated Amended Indictment”), para 72.

  151. 151.

    Ibid.

  152. 152.

    According to the United Kingdom Manual on the Law of Armed Conflict, military necessity permits “a state engaged in an armed conflict to use only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources” (United Kingdom Ministry of Defence 2004, pp. 21, 22; emphasis added).

  153. 153.

    The accused Miletić, for example, was charged with having contributed to the military defeat of the Muslim forces by having “monitored the state of the Muslim forces before, during and after the attacks on Srebrenica and Žepa and communicated this information to his superiors […] and subordinate units”. Popović et al. Revised Second Consolidated Amended Indictment, supra note 150, para 75.

  154. 154.

    Popović et al. Revised Second Consolidated Amended Indictment, supra note 150, para 77.

  155. 155.

    However, in a situation like Žepa, the motivation or intent appears to become important. A soldier engaging in an attack could be engaging in lawful action if he is unaware of the ultimate plan (of his superiors), but his acts would be unlawful if he would be aware of this. Factually, his acts would remain the same, however.

  156. 156.

    SCSL, The Prosecutor v. Issan Hassan Sesay et al., Case No. SCSL-2004-15-PT, Corrected Amended Consolidated Indictment, 2 August 2006 (“Sesay et al. Corrected Amended Consolidated Indictment”), para 36.

  157. 157.

    Ibid., para 37.

  158. 158.

    The author does not in any way want to justify other actions by the VRS than the one discussed above, in relation to the Srebrenica and Žepa case, such as the extensive killing of POWs and the forced displacement of civilians.

  159. 159.

    SCSL, The Prosecutor v. Issan Hassan Sesay et al., Case No. SCSL-2004-15-A, Appeal Judgement, 26 October 2009, para 305.

  160. 160.

    In a dissenting opinion, the ICC Judge Kaul expressed his reservations to the expanded use of crimes against humanity. He considered that “a demarcation line must be drawn between international crimes and human rights in fractions; between international crimes and ordinary crimes; between those crimes subject to international jurisdiction and those punishable under domestic penal legislation. One concludes that the ICC serves as a beacon of justice intervening in limited cases where the most serious crimes of concern to the international community as a whole have been committed” (ICC, Situation in the Republic of Kenya, ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, Dissenting Opinion Judge Kaul, para 65).

  161. 161.

    At the international level that is, just as on the national level, in these situations, regular criminal charges, such as manslaughter and murder, could be brought.

  162. 162.

    Hayashi 2006, p. 70.

  163. 163.

    Ibid. Hayashi highlights the importance that a judicial decision “strike[s] a sensible balance between the legitimate interests of combatants and civilians alike”.

  164. 164.

    Hayashi 2006, p. 88.

  165. 165.

    International Humanitarian Law Clinic at Emory University School of Law 2012, p. 3.

  166. 166.

    Ibid.

  167. 167.

    Reciprocity is described in the Max Planck Encyclopedia of Public International Law as “a basic phenomenon of social interaction and consequently a guiding principle behind the formation and application of law” (Simma 2012, para 1). This has long been foundational to international law, and—more specifically—to IHL. Sean Watts observes that “the existing law of war derives from a set of rules that are contingent on reciprocity. Contrary to common understanding, reciprocity strongly influences states’ interpretation and application of the law of war.” (Watts 2009, p. 365).

  168. 168.

    Anderson 2009, p. 340.

  169. 169.

    Ibid. Anderson explains that international criminal law operates post hoc, i.e. “after the fact” (p. 343).

  170. 170.

    One could question the explanation given by Israel to certain provisions of IHL and the way the law was applied in practice. However, this does not detract from the fact that Israel used (its version of) IHL as a guidance during the operations (see e.g. The State of Israel 2010).

  171. 171.

    It has, however, been suggested that in these cases it is important to ‘label’ the crimes in a fair way. See Van de Herik 2009 (However, the current author has a different view on the Mpambara case discussed in the aforementioned article and considers that in that case a conviction for war crimes would have been warranted).

  172. 172.

    Nota bene: rape, of course, can never be justified by military advantage. A civilian death, however, does not necessarily mean that a war crime has been committed. Civilian casualties that are proportionate to the military advantage that is expected to be gained by the attack constitute legitimate incidental damage.

  173. 173.

    Whether the ICC has contributed, or will contribute, in a similar significant way remains to be determined. Naturally, the establishment of the Rome Statute and the following reference thereto as an expression of customary law was very relevant. However, apart from the comments hitherto on the way the ICC has dealt with IHL until now, its contribution is likely to be less significant than those of the ad hoc Tribunals. The ICC is a treaty-based institution and thus will not need to conduct the same evaluations of the customary status of the individual criminal responsibility for violations of IHL, as done so by the Tribunals. Be that as it may, when seized of a situation that involves alleged crimes committed on the territory of a non-party State, it is submitted here that the ICC’s chambers should conduct such an evaluation. At the time of writing, the chambers dealing with Sudan (Haskanita camp) have not done so, however.

  174. 174.

    Dinstein 2010, p. 5.

References

Online Documents

Literature

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Bartels, R. (2013). Discrepancies Between International Humanitarian Law on the Battlefield and in the Courtroom: The Challenges of Applying International Humanitarian Law During International Criminal Trials. In: Matthee, M., Toebes, B., Brus, M. (eds) Armed Conflict and International Law: In Search of the Human Face. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-918-4_14

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