Nationality and internationality in international humanitarian law

Stanford Journal of International Law

Volumn 34, Issue 2, 1998, Pages 347-406

  Brown, Bartram S ^a,b,c,d,e,f  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

^b Intl Crim Ct Amnesty I ^*

^c Intl Crim Tribun Former Y   (Netherlands)

^d UNIVERSITY OF GENEVA   (Switzerland)

^e Och Spine at New York Presbyterian Hospitals   (United States)

^f HARVARD UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0032378309     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (254)

1. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia is generally referred to by its shorter name, the International Criminal Tribunal for the former Yugoslavia (ICTY). The four general categories of crimes within the jurisdiction of the Tribunal are: (1) grave breaches of the Geneva Conventions of 1949; (2) violations of the laws and customs of war; (3) genocide; and (4) crimes against humanity. See Statute of the International Tribunal, Report of the Secretary-General Pursuant to Paragraph 2 of U.N. Security Council Resolution 808, U.N. GAOR, 48th Sess., 3175th mtg., arts. 2-5, U.N. Doc. S/2-5704 (1993), reprinted in 32 I.L.M. 1159, 1192-93 (1993) [hereinafter ICTY Statute]. Each of these categories will be discussed in greater detail below.
2. See Bartram S. Brown, The Protection ofHuman Rights in Disintegrating States: A New Challenge, 68 CHI.-KENT L. REV. 203,205 (1992) (discussing the "state-centric" nature of international law).
3. Mark Janis argues that "the law of nations of the seventeenth and eighteenth centuries [was] a law common to individuals as well as to states," which developed into an international law of narrower scope in the era of nineteenth century positivism. Janis notes that in 1789, when Jeremy Bentham invented the expression "international law" in his Introduction to the Principles of Morals and Legislation, he offered the term as a replacement for the older term "law of nations" and that Bentham incorrectly assumed that, under either name, the scope ofthat law was limited to the relations between states. This contributed to the narrow scope of international law that prevailed in the nineteenth century. See MARKW. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 228-34 (1993).
4. "It is the object of international humanitarian law to regulate hostilities in order to attenuate their hardships. Humanitarian law is that considerable portion of international law which is inspired by a feeling for humanity and is centered on the protection of the individual in time of war.input commas JEAN PICTET, DEVELOPMENT AND PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW 1 (1985).
5. The term input commasinternationalityinput commas refers to input commasthe quality or state of being international.input commas WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE: UNABRIDGED 1181 (1961). In the context of this Article it is used to refer to situations of armed conflict involving two or more states. Violations of international humanitarian law can qualify as grave breaches of the Geneva Conventions of 1949 only if committed in the context of armed conflicts with internationality. Parts III and V of this Article, infra, discuss this issue in greater detail.
6. The issue of formalism in international humanitarian law is not a new one. The commentary to Article 29 of Genera Convention (IV) points out that when that Convention was negotiated, [t]he decision to limit the responsibility of the State to its agents was the subject of criticism at the Diplomatic Conference. Various delegations pointed out that an Occupying Power might have certain of its decisions carried out by the local authorities, or it might set up a puppet government, in order to throw responsibility for crimes, of which it was the instigator, upon authorities which were regarded as being independent of it In order to remove this difficulty, it is necessary to disregard all formal criteria. It does not matter whether the person guilty of treatment contrary to the Convention is an agent of the Occupying Power or in the service of the occupied State; what is important is to know where the decision leading to the unlawful act was made, where the intention was formed and the order given. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art 29, 75 U.N.T.S. 287 (emphasis added) [hereinafter Geneva Convention (IV)].
7. See Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 1 (T.Ch.II May 7, 1997). Legal documents related to the Tadic case and other ICTY cases cited in this Article (including indictments, motions, and judgments) are available on the ICTYs website at 〈http://www.un.org/icty/cases.htm〉 (visited Apr. 30, 1998).
8. See id. para. 9.
9. Closing arguments were heard from November 25-28, 1996. The final decision of the court was filed on May 7,1997, five months later. See id. para. 34.
10. Michail Wladimiroff, who acted as the lead defense attorney for Tadic during the course of the trial, has spoken favorably of the Tribunal's judges and their dedication to due process. He noted that while the parties operated input commasunder severe restrictions, including no access to relevant documents and persons . . . within those limits the judges did a very good job, and were totally fair." Roy Gutman, Confusion in War Crimes Case, NEWSDAY, May 13, 1997, at A16.
11. The official version of the Trial Chamber's decision is 301 pages long, with a dissenting opinion of 19 pages. See Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute(T.Ch.II May 7, 1997).
12. Id. paras. 738, 742, 760.
13. Genocide is the one other crime subject to such a regime of enforcement under international humanitarian law, but the burden of proving genocide is much greater. See infra notes 199-213 and accompanying text.
14. See generally Geneva. Convention (IV), supra note 6.
15. Alternative definitions of protected persons apply under the other three Geneva Conventions of 1949. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, arts. 4-5, 75 U.N.T.S. 31 [hereinafter Genera Convention (I)]; Geneva Convention for the Amelioration of the Condition of Wounded Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, arts. 6, 7, 10, 75 U.N.T.S. 85 [hereinafter Geneva Convention (II)]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, arts. 4-5, 75 U.N.T.S. 135 [hereinafter Geneva Convention (III)].
16. See Geneva Convention (IV), supra note 6, art. 2 (limiting the applicability of the Convention to armed conflict between parties to the Convention).
17. See id. art. 4 ("Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."), art 147 (defining grave breaches as certain enumerated acts committed against "protected persons" as provided in Article 4).
18. As the dissenting opinion notes, "the majority makes no clear finding regarding the nature of the armed conflict after 19 May 1992." Prosecutor v. Tadic, Case No. IT-94-1-T, Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute, para. 5 (T.Ch.II May 7, 1997) [hereinafter Dissenting Opinion of Judge McDonald]. Instead, the majority decision on the applicability of Article 2 of the Statute turns on the related issue of whether the victims can be classified as protected persons. See Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 1 (T.Ch.II May 7, 1997).
19. See infra text accompanying notes 138-52.
20. The process began with the first Geneva Convention of 1864 and continued with the Hague Conventions of 1899 and 1907, when the Geneva Convention was revised and expanded into the four Geneva Conventions of 1949 and their Protocols. The process has continued through the acceptance of related treaties such as the Genocide Convention. All of these treaties are discussed in greater detail below.
21. See PICTET, supra note 4, at 1.
22. See ICTY Statute, supra note 1, art. 9(1).
23. See id. art. 9 (2).
24. Convention for the Amelioration of the Condition of the Wounded Armies in the Field, signed at Geneva, Aug. 22, 1864, 129 COXSOL. T.S. 361.
25. Article 55 of the U.N. Charter states that the United Nations "shall promote . . . universal respect for, and observance, of human rights and fundamental freedoms for all wthout distinction as to race, sex, language, or religion," and Article 56 states that "[a] 11 members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." U.N. CHARTER, arts. 55-56.
26. In discussing the declaration in Article 1 of the Genocide Convention that genocide is a "crime under international law," a 1985 Report on the Convention by the U.S. Senate Committee on Foreign Relations expressed skepticism about the entire concept and reduced it to a matter of municipal criminal law. The term "crime under international law" has a variety of meanings. As used in the Genocide Convention, it combines two ideas: internationally authorized municipal criminal law and municipal criminal law common to civilized nations. Parties to the Convention undertake to enact domestic legislation making genocide a municipal crime. Thus, common to the municipal law of all parties to the Convention is a proscription against genocide, a proscription enacted as part of each party's obligation under the Convention. S. EXEC. REP. No. 99-2, at 5 (1985), reprinted in 28 I.L.M. 760, 763 (1989).
27. See, e.g., United States v. Galley, Jr., 46 C.M.R. 1131 (1973). In much-publicized proceedings, the appellant was convicted by a general court-martial of three specifications of premeditated murder and one of assault with intent to commit murder in violation of Articles 118 and 134 of the Uniform Code of Military Justice (10 USC §§ 918, 934, respectively). He was sentenced to dismissal, forfeiture of all pay and allowances, and confinement at hard labor for life. The convening authority approved dismissal and the forfeitures, but reduced the period of confinement to twenty years. The offenses were committed by First Lieutenant William L. Calley when he was performing as a platoon leader during an operation in the hamlet of My Lai (4) in Song My village, Quang Ngai Province, Republic of South Vietnam, on March 16, 1968. Although all charges could have been laid as war crimes, they were prosecuted under the UCMJ. Id. at 1138 (emphasis added).
28. See U.N. Doc. S/RES/827 (1993). The creation of the ICTY was based upon the Security Council's determination that widespread atrocities in the territory of the former Yugoslavia constituted a threat to international peace and security. For a useful analysis of the ICTY, see generally VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1995) (providing a documentary history and analysis of the ICTY); M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996) (describing the history, jurisdiction, procedures, and enforcement powers of the ICTY).
29. See U.N. Doc. S/RES/827 (1993). The creation of the ICTY was based upon the Security Council's determination that widespread atrocities in the territory of the former Yugoslavia constituted a threat to international peace and security. For a useful analysis of the ICTY, see generally VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1995) (providing a documentary history and analysis of the ICTY); M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996) (describing the history, jurisdiction, procedures, and enforcement powers of the ICTY).
30. Article 24(1) of the U.N. Charter provides that the members of the United Nations "confer on the Security Council primary responsibility for the maintenance of international peace and security." U.N. Charter, art 24(1).
31. See, e.g., U.N. Doc. S/RES/670 (1990) (condemning "the treatment by Iraqi forces of Kuwaiti nationals, including measures to force them to leave their own country and mistreatment of persons and property in Kuwait in violation of international law"); U.N. Doc. S/RES/1034 (1995) (condemning "in the strongest possible terms" violations of international humanitarian law and human rights by Bosnian Serb and paramilitary forces in Srebrenica, Zepa, Banja Luka and Sanski Most, "which show a consistent pattern of summary executions, rape, mass expulsions, arbitrary detentions, forced labour and large-scale disappearances").
32. The International Military Tribunal at Nuremberg was established by an agreement between four victorious Allied Powers at the end of World War II. See generally Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279.
33. See S.C. Res. 808, U.N. SCOR, U.N. Doc. S/RES/808 (1993); S.C. Res. 827, U.N. SCOR, U.N. Doc. S/RES/827 (1993).
34. See generally Convention for the Pacific Settlement of International Disputes, July 29, 1899, 32 StaL 1779.
35. See generally Statute of the International Court of Justice, June 26, 1945, 59 StaL 1055.
36. See Leo Gross, Underutilization of the International Court of Justice, 27 HARV. INT'L L. J. 571 (1986) (discussing the historical purposes of the International Court of Justice). One limitation common to all of these institutions is that they can decide a dispute only when the states concerned have in some way consented to their jurisdiction. This limits their utility even as a means for the settlement of disputes between states. Id. at 573-78.
37. Another ad hoc tribunal, the International Tribunal for Rwanda (ICTR), was created to deal with a similarly disturbing situation in that country. See U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994). Unlike the Statute of the ICTY, the Statute of the ICTR does not mention grave breaches of the Geneva Conventions crimes within the jurisdiction of that Tribunal. Despite this difference, most of the discussion in this article applies to the ICTR as well.
38. See ICTY Statute, supra note 1, art. 1.
39. See M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997).
40. According to Article 1 of the ICIY Statute, "[t]he International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute." ICIY Statute, supra note 1, art 1. Thus, the territorial scope of that jurisdiction is limited to the territory of the former Yugoslavia, and the temporal jurisdiction is limited to events occurring since January 1, 1991.
41. See Regina v. Finta, 1 S.C.R. 701, 728 (1994) (LaForest, J., dissenting opinion). The dissent states: War crimes and crimes against humanity are crimes under international law. . . . While some of these crimes have been given a considerable measure of definition in international documents, as a whole they have not been reduced to the precision one finds in a national system of law. Crimes against humanity, in particular, are expressed in compendious terms relying broadly on principles of criminality generally recognized by the international community. Id.
42. See Judgement of the International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis (U.S. Gov't Printing Office, Nazi Conspiracy and Aggression, Opinion and Judgement), reprinted in 41 AM. J. INT'L L. 172 (1947) [hereinafter NUREMBERG JUDGEMENT].
43. The International Military Tribunal for the Far East was established in Tokyo pursuant to the Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, Establishment of an International Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 BEVANS 27 (amended Apr. 26, 1946)
44. In the words of the Tadic defense pretrial brief: "The historical development of the law on indicidual [sic] criminal responsability [sic] for violations of international humanitarian law is mainly on the abstract level, and no case law of international Tribunals is known since Tokyo and Nürnberg [sic]." Defendant's Pre-Trial Brief at 8122, Prosecutor v. Tadic, Case No. IT-94-1-T, (T.Ch.II May 7, 1997).
45. See W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AM. J. INT'L L. 866, 873 (1990).
46. Philip Allott, State Responsibility and the Unmaking of International Law, 29 HARV. INT'L L.J. 1, 25 (1988).
47. Geneva Convention (IV), supra note 6, art. 146; see also id. art. 147 (defining the grave breaches), art. 148 (preventing states from absolving themselves from any responsibility for grave breaches). See generally Geneva Convention (I), supra note 15, arts. 45-49; Genera Convention (II), supra note 15, arts. 50-52; Geneva Convention (III), supra note 15, arts. 129-31.
48. Convention on the Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951, art. 1, 102 Stat. 3045, 78 U.N.T.S. 277 [hereinafter Genocide Convention].
49. S. EXEC. REP. NO. 99-2, at 25 (1985), reprinted in 28 I.L.M. 760, 773 (1989).
50. Article VI of the Genocide Convention mentions the possibility of prosecutions for genocide before a future international penal tribunal, but the 1985 Senate Report on that convention suggests that the text itself establishes neither the substantive law nor the procedures that such an international tribunal would apply: e international penal tribunal contemplated by Article VI represents a sharp departure from the concepts contained in the Genocide Convention. The Convention is an agreement among the parties to make certain acts criminal under their municipal laws and to prosecute individuals accused of violating them. The notion of an international penal tribunal suggests the existence of a body of law separate from the municipal laws of the contracting parties. What this law would be and what procedures would govern in proceedings before the tribunal remain to be determined. S. EXEC. REP. No. 99-2, at 25, reprinted in 28 I.L.M. 760, 773.
51. 50 See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. SCOR, para. 106, U.N. Doc. S/25704 (1993), reprinted in 32 I.L.M. 1159 (1993) [hereinafter Report of the Secretary-General]; see also International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, art. 14, 999 U.N.T.S. 171, 179 (entered into force Mar. 23, 1976) [hereinafter ICCPR].
52. The Rules of the ICTY state that "determinations of courts of any State are not binding on the Tribunal." ICTY R. PRO. & EVID. 12 (as amended Oct. 6, 1995), U.N. Doc. IT/32/Rev.6/1995. See generally ICTY R. PRO. & EVID. (amended Dec. 3, 1996), U.N. Doc. IT/32/Rev. 10/1996 [hereinafter ICTY Rules]. Similarly, the Tribunal is not bound by any state's approach to criminal trial and procedure.
53. The Tribunal is guided by definitions of war crimes, genocide, and crimes against humanity that are well established in international law, but no treaty or other rule of international law requires any specific form of criminal procedure. International human rights law does require a fair trial based on a presumption of innocence, but countries manage to achieve this objective in different Ways. Two important legal systems with fundamentally different approaches are the common law system, followed in many areas formerly administered by the British, and e civil law system, followed by most countries on the European continent and in many of their former colonies. In common law countries a fair trial is believed to result from the adversarial confrontation of two active sides. On the one hand there are the prosecuting attorneys who present evidence, question the witnesses, and make legal arguments supporting conviction. On the other are the defense attorneys responsible for presenting evidence and arguments to the opposite effect. The process is refereed by a judge who decides the issues of law but normally must leave it to the jury which, after being instructed in that law, decides the issues of fact and of ultimate guilt or innocence. In civil law countries the trial is based on an inquisitorial rather than an adversarial model, wherein the judge plays a more active role. He or she summons evidence, asks most of the questions of the witnesses, and has enormous discretion both to determine the conduct of the trial and to reach the verdict on the evidence. An even greater variance exists among criminal procedures if one looks beyond these two western models. See generally William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 YALE J. LNT'L L. 1, 7-10 (1992).
54. See ICIY Statute, supra note 1, arts. 2-5.
55. See Blockburger v. United States, 284 U.S. 299 (1932).
56. See NOUVEAU CODE PÉNAL [N.C. PEN.] arts. 111-13 (Fr.) ("Nul ne peut être puni pour un crime ou pour un délit dont les éléments ne sont pas définis par la loi, ou pour une contravention dont les éléments ne sont pas définis par le règlement. [No one can be punished for a crime or misdemeanor whose elements have not been defined by law, or for an infraction whose elements are not defined by the applicable rules.]) (author's own translation).
57. Such instructions are necessary because while the trial byjury system leaves it to the jury to make factual determinations based on the evidence presented, the jury must apply the proper legal standards to those facts in order to determine the legal consequences. See, e.g., Francis v. Franklin, 471 U.S. 307 (1985) (holding that the jury instructions given in the case under review had created a mandatory evidentiary presumption that unconstitutionally shifted the burden of proof to the defendant).
58. In trials before the ICIY, the three judges of the trial chamber hearing the case will decide the guilt or innocence of the accused by majority vote. See ICTY Statute, supra note 1, art. 23(2); ICIY Rules, supra note 51, Rule 87(A).
59. See ICCPR, supra note 50, art. 14.
60. ICTY Statute, supra note 1, art. 21 (discussing the rights of the accused).
61. Report of the Secretary-General, supra note 50, para. 106: It is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such internationally recognized standards are, in rticular, contained in article 14 of the International Covenant on Civil and Political Rights. Id.
62. "The adoption of an individual right to trial in court and detailed minimum guarantees of the accused in criminal proceedings is based on the Anglo-Saxon common law tradition of 'due process of law' which can be traced back to the Magna Carta Liberatum of 1215." MANFRED NOWAK, U.N. COVENANTON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 236 (1993).
63. ICCPR, supra note 50, art 14(1) (emphasis added). Essentially the same standard appears in Article 21(2) of the ICTY Statute, which provides that "in the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to Article 22 of the Statute." ICTY Statute, supra note 1, art. 21 (2).
64. "The right to a fair and public hearing before a tribunal in all suits at law and criminal matters pursuant to Art. 14(1) is the core of 'due process of law.' All the remaining provisions in Art 14(2) to (7) and Art 15 are specific formulations of the 'fair trial' in criminal cases." NOWAK, supra note 61, at 241.
65. "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law." ICCPR, supra note 50, art 14(2). This standard also appears in Article 21(3) of the ICTY Statute, which states, "The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute." ICTY Statute, supra note 1, art. 21 (3).
66. "The prosecution bears the burden of proving all elements of the offense charged . . . ." Sullivan v. Louisiana, 508 U.S. 276, 277-78 (1993) (citing Duncan v. Louisiana, 391 U.S. 145, 149 (1968)) (emphasis added).
67. In a 1979 extradition case, the High Court of Justice in England was confronted with differences between the definitions of burglary under English law and under the law of the District of Columbia in the United States. Under the relevant U.S. law, Section 1801 (b) of Title 22 District of Columbia Code, entry as a trespasser is not an essential element of the crime of burglary, whereas under English law trespass is an essential element of the crime (see Theft Act 1968, § 9). The issue raised was whether the principle of "double criminality" should thus come into play so as to prevent the extradition of an accused from England to the District of Columbia to face charges of burglary. According to that principle, a criminal is only to be extradited for the commission of a crime punishable by the laws of both countries. The English court held: ]ouble criminality in our law of extradition is satisfied if it is shown: (1) that the crime for which extradition is demanded would be recognised as substantially similar in both countries; (2) that there is a prima facie case that the conduct of the accused amounted to the commission of the crime according to English law. Re the Habeas Corpus Application of Morrison Budlong & Jane Kember, 1 W.L.R. 1110, 1122-23 (Q.B. 1980).
68. "As with many aspects of statutory construction, determination of what elements constitute a crime often is subject to dispute." United States v. Michael E. Gaudin, 115 S. Ct. 2310, 2321 (1995) (Rehnquist, J., concurring).
69. Article 38(1) of the Statute of the International Court of Justice, which is generally considered to be the most authoritative enumeration of the sources of international law, identifies these sources as follows: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59 (i.e. that only the parties are bound by the decision in any particular case), judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, at 1060.
70. See United States, v. Calley, Jr., 46 C.M.R. 1131, 1135 (1973).
71. As W. Hays Parks puts it: Having prosecuted offenses that may have been characterized as war crimes during the U.S. involvement in the Vietnam War, for example, this reviewer is aware that it is much easier to gain conviction of an accused for the simple and well-established ofnse of murder than it is to allege - and prove - a war crime, particularly a new offense. W. Hays Parks, Book Review, 28 GEO.WASH. J. INT'L L. & ECON. 207, 213 (1994) (reviewing HOWARD S. LEVIE, TERRORISM IN WAR - THE LAW OF WAR CRIMES (1993) and JUDITH G. GARDAM, NON-COMBATANT IMMUNITY AS A NORM OF INTERNATIONAL HUMANITARIAN LAW (1993)).
72. As W. Hays Parks puts it: Having prosecuted offenses that may have been characterized as war crimes during the U.S. involvement in the Vietnam War, for example, this reviewer is aware that it is much easier to gain conviction of an accused for the simple and well-established ofnse of murder than it is to allege - and prove - a war crime, particularly a new offense. W. Hays Parks, Book Review, 28 GEO.WASH. J. INT'L L. & ECON. 207, 213 (1994) (reviewing HOWARD S. LEVIE, TERRORISM IN WAR - THE LAW OF WAR CRIMES (1993) and JUDITH G. GARDAM, NON-COMBATANT IMMUNITY AS A NORM OF INTERNATIONAL HUMANITARIAN LAW (1993)).
73. As W. Hays Parks puts it: Having prosecuted offenses that may have been characterized as war crimes during the U.S. involvement in the Vietnam War, for example, this reviewer is aware that it is much easier to gain conviction of an accused for the simple and well-established ofnse of murder than it is to allege - and prove - a war crime, particularly a new offense. W. Hays Parks, Book Review, 28 GEO.WASH. J. INT'L L. & ECON. 207, 213 (1994) (reviewing HOWARD S. LEVIE, TERRORISM IN WAR - THE LAW OF WAR CRIMES (1993) and JUDITH G. GARDAM, NON-COMBATANT IMMUNITY AS A NORM OF INTERNATIONAL HUMANITARIAN LAW (1993)).
74. One commentator wrote: What trial prosecutors know is that every time you add an element of proof to the criminal case, even if it is ajurisdictional element, you are lessening the odds of a conviction. To be sure, in the Yugoslav case the fact-finding will be performed by trial judges, rather than jurors, and will require only a majority, rather than a unanimous verdict But new prosecutors sometimes find to their surprise that judges can be even more demanding than jurors about factual proof, perhaps because they feel more trepidation deciding as a small chamber where the jury has the comfort of larger numbers. Any new element of a crime diminishes the probability of a successful prosecution. Ruth Wedgwood, War Crimes in the Former Yugoslavia: Comments on the International War Crimes Tribunal, 34 VA. J. INT'L L. 267, 271 (1994) (emphasis added).
75. In the course of the Tadic case the prosecution argued that under Article 15 of the ICCPR, the nullum crimen principle "can be satisfied by the application of the national law of the situs where the crime is committed or by international law, which includes both conventional and customary law, as well as the 'general principles of law recognized by the community of nations.'" Prosecutor's Reply Brief at D8151-D8152, Prosecutor v. Tadic, Case No. IT-94-1-T (T.Ch.II May 7, 1997). This is probably a correct statement with regard to the narrow issue of the nullum crimen principle, but it is not within the Tribunal's mandate and jurisdiction to convict on the basis of the national law of the situs if the acts concerned do not constitute a violation of applicable rules of international humanitarian law. Cf. ICTY Statute, supra note 1, art. 1 ("The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute." (emphasis added)).
76. See U.S. CONST. art I, § 9, cl. 3; § 10, cl. 1; 'see also Jordan J. Paust, It's No Defense: Nullum Crimen, International Crime and the Gingerbread Man, 60 ALBANY L. REV. 657, 664-65 (1997).
77. On the criminal responsibility for grave breaches, see supra note 46. Under Article 1 of the Genocide Convention the parties "confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish." Genocide Convention, supra note 47, art 1.
78. CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL, annexed to The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, art. 6, 59 Stat. 1544, 82 U.N.T.S. 279, art. 6(b).
79. G.A. Res. 95, U.N. GAOR, 6th Comm., 1st Sess., pt. 1, 55th plen. mtg., U.N. Doc. A/64/Add.1 (1946). In this resolution, the General Assembly officially expressed its support for the principles of international law incorporated into the Nuremberg Charter.
80. The Secretary General's report stated: Although the question of whether [C]ommon [A]rticle 3 entails the individual responsibility of the perpetrator of the crime is still debatable, some of the crimes included therein, when committed against the Chilian population, also constitute crimes against humanity and as such are customarily recognized as entailing the criminal responsibility of the individual. Report of the Secretary-General, supra note 50, para. 12, n.8.
81. The defense stated: Customary law was classically established by state practice, where these states felt that they were under an international legal obligation to behave as they did. There seems to be an evolution in which it is less and less found that custom has developed into existence, but where it is decided, either by States or International bodies, that customary law [should] exist[]. The vagueness of the normative rules and the tendency to decide that custom exists, rather than to find it existing, creates a serious risk of violation of the rule of legality, the nullum crimm principle." Defendant's Pre-Trial Brief at D8121-D8122, Prosecutor v. Tadic, Case No. IT-94-1-T (T.Ch.II May 7, 1997).
82. See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, paras. 128-36 (A.C. Oct. 2, 1995).
83. See infra text accompanying note 121.
84. See Paust, supra note 73, at 664-71.
85. Id. at 666.
86. The Judgement of the Nuremberg International Military Tribunal reaffirms the status of the principle even in dismissing it as legally inapplicable: In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is a general principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. NUREMBERG JUDGEMENT, supra note 41, at 217.
87. Paust argues: It was also recognized that international crimes can be incorporated "by reference" in international instruments . . . that such crimes or their elements need not be defined with great particularity, that a tribunal can "determine the content" of relevant international law, that sentences need not be prescribed, and that there need not exist any mention of a forum for prosecution. Paust, supra note 73, at 667.
88. NUREMBERG JUDGEMENT, supra note 41, at 217.
89. The widely reported case of the Rodney King beating in Los Angeles provides a good example. King is an African-American whose beating by white Los Angeles police officers was videotaped and so was available as evidence at the officers' criminal trial. After a suburban jury acquitted the police officers of most criminal charges under state law (involving the use of excessive force and assault under color of authority), these same officers were separately prosecuted by the federal government, and this time convicted, for violating King's civil rights, a crime under federal law. For the result of the federal trial, see United States v. Koon, 833 F. Supp. 769 (C.D. Cal. 1993).
90. As Judge Abi-Saab has noted, the various categories of serious violations of international humanitarian law that the Tribunal was established to prosecute were articulated in a highly emotional atmosphere in the various fora where such reverberations of revulsion could find a way to legal expression, by reaching for the proscribed acts and practices from all possible angles and by all conceivable legal ways and means. This led to a relatively loose normative formulation and a large degree of overlap between these crimes. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction (A.C. Oct. 2, 1995) (separate opinion of Judge Abi-Saab, pL I, para. 2).
91. See id. para. 6.
92. See infra notes 240-45 and accompanying text.
93. Secretary-General's Report, supra note 36, para. 29. The report also stated: It should be pointed out that, in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to 'legislate' that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law. Id.
94. See Research of Bartram Brown, Table C (unpublished manuscript, on file with the Stanford Journal of International Law).
95. See Indictment of Dusko Tadic & Goran Borovnica, Case No. IT-94-1-I (T.Ch. Dec. 14, 1995) (as amended) (counts 5, 6, 9).
96. Four out of the first 12 indictments formulated by the ICTY allege charges in the alternative. See Meakic & Others, Case No. IT-954 (T.Ch. Feb. 13, 1995) (counts 19.4, 19.7, 19.13, 20.3, 21.3, 22.3, 22.6, 22.9, 22.12, 22.15, 23.3, 24.3, 24.6, 24.9, 24.12, 25.3, 26.3, 27.3, 28.3, 29.3, 29.3, 20.3, 31.3) (accused: Meakic, Kvocka, Pracac, Radic, Kos, and Gruban, in their capacity as superiors); Tadic & Borovnica, Case No. IT-94-1-I (T.Ch. Dec. 14, 1995) (as amended) (counts 3, 27, 28); Sikirca & Others, Case No. IT-95-8-I (T.Ch. July 21, 1995) (counts 18.10, 19.1.4, 24.4, 25.2) (accused; Dusko Sikirica); Martic, Case No. IT-95-11-I (T.Ch. July 25, 1995) (counts 2, 4); Rajic ("Stupni Do"), Case No. IT-95-12-I (T.Ch. Aug. 23, 1995) (counts 4, 5, 6).
97. Occasionally, the prosecutor has framed counts in the indictment in the alternative. See Research of Bartram Brown, Table C (unpublished manuscript, on file with the Stanfordjoumal of International Law).
98. The grave breaches counts are torture or inhuman treatment under Article 2(b), and willfully causing great suffering or serious injury to body or health under Article 2(c). See Indictment of Dusko Tadic & Goran Borovnica, Case No. IT-94-1-I (T.Ch. Dec. 14, 1995) (as amended) (counts 10-11).
99. See id. (count 8, charging Tadic with cruel treatment under Common Art 3(1) (a) of the Geneva Conventions).
100. See id., count 13 (charging Tadic with inhumane acts under Article 5(i) of the ICTY Statute).
101. It is interesting to note, in this context, that for most of the illegal acts for which Tadic was convicted, the Trial Chamber found him guilty of both a violation of the laws and customs of war under Article 3 of the ICTY Statute and a crime against humanity under Article 5. This seems to be incompatible with the Appeals Chamber's earlier decision on jurisdiction, which held that "Article 3 thus confers on the International Tribunal jurisdiction over any serious offense against international humanitarian law not covered by Article 2, 4 or 5." Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 91 (A.C. Oct 2, 1995) (emphasis added).
102. The New French Penal Code incorporates an explicit hierarchy of crimes, based upon their gravity, in its first article: "Les infractions pénales sont classées, suivant leur gravité, en crimes, délits et contraventions." (Pénal violations are classified according to their severity.) N.C. PEN. art. 111-1 (Fr.). This code, which entered into force on March 1, 1994, see JOSÉE GRYNBAUM & DIDIER SAFAR, LE NOUVEAU CODE PéNAL: DROIT ET SOCIÉTÉ 2 (1994), could be seen as extending that principle to crimes against humanity, placing genocide at the top of the hierarchy as the most serious form of crime against humanity. See N.C. PÉN. arts. 211-1 to 213-5 (Fn). While the approach adopted by France is of great interest, it does not suffice to create, in international law, a hierarchy of serious violations of international humanitarian law corresponding to logically organized classifications of crimes under the French Penal Code.
103. At least one Trial Chamber of the ICTY has endorsed the notion that genocide is indeed a form of crime against humanity, as suggested by the French Penal Code. See N.C. PÉN., art. 211-1 (Fr.); Prosecutor v. Tadic, Case No. IT-94-1-T, Sentencing Judgment, para. 8 (T.Ch.II July 14, 1997) (observing that while the Penal Code of the Former Republic of Yugoslavia did not prescribe any particular penalty for crimes against humanity, "genocide, itself a specific form of crime against humanity, is dealt with in Article 141 of the SFRY Penal Code which prescribes a similar range of penalties").
104. The prosecution stated: Because each of these Articles has a distinct purpose and object and, as a consequence, contain different elements, it is permissible that they be charged together in the instance where a particular act is violative of each and the accused, if guilty, should be subject to conviction for each. It may well be that for purposes of sentencing, the various offenses must be merged into one to provide for one sentence no greater than the aggregate of the individual offences, but that issue is not germane at this time. Prosecutor v. Tadic, Case No. IT-94-1-T, Response to the Motion of the Defence on the Form of the Indictment, at D2344, D2337 (1995).
105. The prosecution stated: There are also instances in the present indictment, notably the charges set forth under the general paragraphs 5, 10, and 11, where the accused is, in essence, charged in the alternative. In those instances, for each particular victim where the accused is charged with the death of the victim, the accused is also charged in the alternative with offenses related to subjecting the victim to Physical or mental harm in the event that the proof of the victim's death is insufficient In the Statute and Tribunal Rules there is no provision for automatically included lesser offenses. Therefore, it is legally permissible to allege some offenses in the alternative for contingencies of proof. Id. at D2337-D2336.
106. Turning now to the second ground of attack on the indictment, it is complained that the indictment alleges, in respect of each paragraph alleging criminal conduct by the accused, several distinct offenses, expressed as cumulative rather than as in the alternative: The only ground urged in support of this complaint is that it is contrary to the law of the former Yugoslavia and of the Republic of Bosnia and Herzegovina. This is said to be material if there are convictions in respect of any of the counts and there therefore arise questions of penalty. There appears to be dispute as between the parties as to the requirements of Yugoslavia law and the law of its successor States. In any event, since this is a matter that will only be at all relevant insofar as it might affect penalty, it can best be dealt with if and when matters of penalty fall for consideration. What can, however, be said with certainty is that penalty cannot be made to depend upon whether offences arising from the same conduct are alleged cumulatively or in the alternative. What is to be punished by penalty is proven criminal conduct and that will not depend upon technicalities of pleading. Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on a Preliminary Motion on the Form of the Indictment, paras. 15-17 (T.Ch.II. Nov. 14, 1995) (emphasis added).
107. Id., Sentencing Judgment, paras. 8, 75 (T.Ch.II July 1997).
108. Under the Statutes of the ICIY and of the ICTR it is the prosecutor who formulates the original indictment. See ICTY Statute, supra note 1, art. 18(4); Statute of the International Tribunal for Rwanda, Annex to Resolution 955 (1994), U.N. SCOR, ?? Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, art 17(4) [hereinafter ICTR Statute].
109. The next step after indictment in the pretrial process of the ICTY and the ICTR is the review of the indictment by a judge. Both the ICTY and ICTR provide in nearly identical language that "[t]he judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed." ICTY Statute, supra note 1, art. 19(1); see also ICTR Statute, supra note 105, art. 18(1). In an optional and interpretive written decision confirming an indictment, one judge of the ICTY has interpreted this provision to require a review of the facial sufficiency of the charges under the indictment: The review of the indictment by a judge under our procedures, has two separate and distinct components. First, the Judge should make an assessment of whether, from the face of the indictment, it is alleged that the accused committed acts which, if proven beyond a reasonable doubt, are crimes as charged and are within the subject matter jurisdiction of the International Tribunal. . . . The second component of the review, however, entails an examination of the material accompanying the indictment In a sense, the Judge is then discharging a function akin to that of an examining magistrate (juge d'instruction) or of a grand jury helping to ensure that the prosecution will not be frivolous or wilful. Prosecutor v. Kordic, Blaskic, Cerkez, Santic, Skopljak and Aleksovski, Case No. IT-95-14-I, Decision on the Review of the Indictment, (T.Ch.II 1995) (Confirming Judge Gabrielle Kirk McDonald). After a first informal review of the indictment the confirming judge may question the prosecutor concerning the legal theories behind the charges and the sufficiency of the evidence to sustain the charges before deciding whether to confirm some or all of the counts in the indictment. As part of this process, the judge must decide whether "it is alleged that the accused committed acts which, if proven beyond a reasonable doubt, are crimes as charged." See id. This provides the confirming judge with the authority to refuse confirmation of any indictment that charges crimes in an unacceptably cumulative way. The indictment, as ultimately confirmed, may be transformed by this process of dialogue between the judge and the prosecutor concerning the appropriate terms of the indictment. Under the ICTY's Rules of Procedure and Evidence, "[t]he Judge of the Trial Chamber who reviews an indictment against an accused . . . shall not sit as a member of the Trial Chamber for the trial of that accused." ICTY Rules, supra note 51, Rule 15(C).
110. See Prosecutor v. Tadic, Case No. IT-94-I, Decision on the Motion of the Defence on the Form of the Indictment, para. 14 (T.Ch.II Nov. 14,1995) (upholding the defense's challenge to paragraph four of the Tadic indictment on the ground of imprecision, and sending it back to the prosecutor with leave to amend).
111. The Rules of the ICTY provide that after hearing the evidence and deliberating, "[t]he Trial Chamber shall vote separately on each charge contained in the indictment" ICIY Rules, supra note 51, Rule 87(B). Thus, if their interpretation of the law required it, the judges have the leeway to find an accused guilty of only the most serious of the multiple overlapping charges for the same acts.
112. ICTIY Statute, supra note 1, art. 1 ("The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.").
113. Id.
114. Id.
115. See Genocide Convention, supra note 47, arts. 2, 3. Neither Article 4 of the ICTY Statute, nor the Genocide Convention upon which that article is based, requires any context of armed conflict in order for the enumerated acts to qualify as genocide. See also Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, paras. 78, 140, 141 (A.C. Oct. 2, 1995) (recognizing that customary international law no longer requires any nexus between crimes against humanity and armed conflict, even though the ICTY Statute explicitly, if somewhat conservatively, maintains the requirement that such crimes be committed in armed conflict).
116. 115 Specifically, the Trial Chamber found: [A]t all relevant times, an armed conflict was taking place between the parties to the conflict in the Republic of Bosnia and Herzegovina of sufficient scope and intensity for the purposes of the application of the laws or customs of war embodied in Article 3 common to the four Geneva Conventions of 12 August 1949, applicable as it is to armed conflicts in general, including armed conflicts not of an international character. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 568 (T.Ch.II May 7, 1997).
117. See id. para. 569: It is clear from the evidence before the Trial Chamber that, from the beginning of 1992 until 19 May 1992, a state of international armed conflict existed in at least part of the territory of Bosnia and Herzegovina. . . . It suffices for the moment to say that [after that date] the level of intensity of the conflict . . . was sufficient to meet the requirements for the existence of an international armed conflict for the purposes of the Statute. Id.
118. Following the earlier decision of the Appeals Chamber on jurisdiction, the Trial Chamber ruled that "[a]n armed conflict exists for the purposes of the application of Article 5 if it is found to exist for the purposes of either Article 2 or Article 3." Id. para. 559.
119. See ICTY Statute, supra note 1, art. 1.
120. The prosecutor stated: The nexus required between the commission of the crimes and the conflict is described by the Appeals Chamber as "only a relationship between the conflict and the [acts], not that the [acts] occurred in the midst of a battle." . . . As regards the present case, however, the Appeals Chamber has already decided the nexus issue, wherein it held that all of the crimes with which the accused is charged were committed in the context of an armed conflict. . . . The only remaining issue of proof as regards the exis-tence of armed conflict for Article 2 is the nature of the conflict Prosecutor v. Tadic, Case No. IT-94-I, D7884-D7883 (T.Ch.II Apr. 10, 1996).
121. The defense stated: [We agree] with the Prosecutor that the Appeals Chamber has established that there was a sufficient nexus between the armed conflict and the alleged crimes. This decision has however been taken in the context of a preliminary decision on jurisdiction. No evidence has been presented by either parties [sic] as to the facts underlying the decision, which may be understandable in the limited context of a decision on jurisdiction. The mere fact that the defence has offered no contrary evidence to what the
122. See Report of the Secretary-General, supra note 50, para. 34: In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise. This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law. Id.; see also id. para. 36 ("[Suggestions have been made that the international tribunal should apply domestic law in so far as it incorporates customary international humanitarian law. \Vhile international humanitarian law . . . provides a sufficient basis for subject-matter jurisdiction, there is one related issue which would require reference to domestic practice, namely, penalties.")
123. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 572 (T.Ch.II May 7, 1997).
124. See id. para. 574. "Given the nature of the armed conflict as an ethnic war and the strategic aims of the Republika Srpska to create a purely Serbian State, the acts of the accused during the armed take-over and ethnic cleansing of Muslim and Croat areas of Opstina Prijedor were direcdy connected with the armed conflict."
125. id. para. 575. The Trial Chamber also stated: Secondly, there are the acts of the accused in the camps run by the authorities of the Republika Srpska. Those acts clearly occurred with the connivance or permission of the authorities running these camps and indicate that such acts were part of an accepted policy towards prisoners in the camps in Opstina Prijedor. Indeed, such treatment effected the objective of the Republika Srpska to ethnically cleanse, by means of terror, killings or otherwise, the areas of the Republic of Bosnia and Herzegovina controlled by Bosnian Serb forces. Accordingly, those acts too were directly connected with the armed conflict. Id.
126. ICTY Statute, supra note 1, art 1.
127. See supra text accompanying note 46.
128. See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, paras. 79-84, 91 (A.C. Aug. 19, 1995) (concluding that "in the present state of the development of the law, Article 2 of the Statute only applies to offenses committed within the context of international armed conflicts"); see also Geneva Conventions (I)-(FV), supra notes 6 & 15, art. 2.
129. The definition of "protected persons" that applies to acts of violence against civilian persons is the most relevant here. That definition states: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." Geneva Convention (IV), supra note 6, art 4.
130. The Trial Chamber's opinion case acknowledges that the character of the armed conflict as international or internal is a key issue and promises to return to this issue in a subsequent section of the opinion: [T]he extent of the application of international humanitarian law from one place to another in the Republic of Bosnia and Herzegovina depends upon the particular character of the conflict with which the Indictment is concerned. This depends in turn on the degree of involvement of the VJ and the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) after the withdrawal of the JNA on 19 May 1992. That issue will be dealt with in Section VI. B of this Opinion and Judgment. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 571 (T.Ch.II May 7, 1997). The focus of the section referred to, however, is not upon the character of the armed conflict as such, but upon the related issue of whether the civilian victims concerned are "protected persons" within the definition of the Geneva Convention (IV) of 1949. Indeed, the section concludes with the observation: [S]ince Article 2 of the Statute is applicable only to acts committed against "protected persons" within the meaning of the Geneva Conventions, and since it cannot be said that any of the victims, all of whom were civilians, were at any relevant time in the hands of a party to the conflict of which they were not nationals, the accused must be found not guilty of the counts which rely upon that Article. Id. para. 608.
131. See Geneva Convention (IV), supra note 6, art. 4.
132. Geneva Conventions (I)-(IV), supra notes 6 & 15, art. 2. The full text of Article 2 common to the four Geneva Conventions of 1949 ("Common Article 2") reads as follows: Art. 2. In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. Id art. 2.
133. Prosecutor v. Tadic, Case No. IT-94-1-T, Motion of the Defence on the Jurisdiction of the Tribunal (T.Ch.II June 23, 1995).
134. "[T] he element of internationality forms no jurisdictional criterion of the offen [s]es created by Article 2 of the Statute of the International Tribunal." Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on the Defence Motion on Jurisdiction, para. 53 (T.Ch.II Aug. 10, 1995).
135. The Trial Chamber stated: [T]here is no ground for treating Article 2 as in effect importing into the Statute the whole of the terms of the Conventions, including the reference in common Article 2 of the Geneva Convention to international conflicts. As stated, Article 2 of the Statute is on its face, self-contairied, save in relation to the definition of protected persons and things. Id. para. 51.
136. "[T]he Appeals Chamber must conclude that, in the present state of development of the law, Article 2 of the Statute only applies to offences committed within the context of international armed conflicts." Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, paras. 84,91 (A.C. Aug. 19, 1995).
137. In a separate proceeding, the Trial Chamber noted that "[t]he Appeals Chamber's decision in the Tadic case did not . . . set out the quantum of involvement by a third state that is needed to convert a domestic conflict into an international one." Prosecutor v. Rajic, Case No. IT-95-12-R61, Review of the Indictment Pursuant to Rule 61, para. 12 (T.Ch.II Sept. 13, 1996).
138. Prosecutor v. Tadic, Case No. IT-94-1-T, Dissenting Opinion of Judge McDonald, para. 5 (T.Ch.II May 7, 1997).
139. See id., Opinion and Judgment, para. 608.
140. See id. paras. 115, 125, 118, 127, 139-53, 155, 168, 190.
141. See id. para. 104.
142. See id. para. 109.
143. See id. para. 113.
144. See id. paras. 114-15.
145. See id. para. 115.
146. See id para. 118.
147. See id. para. 116.
148. See id. para. 125.
149. Id. para. 137.
150. Id. para. 714, Indictment, para. 4.1.
151. The conflict in the former Yugoslavia had been rendered international by the involvement of the Croatian Army in Bosnia-Herzegovina and by the involvement of the Yugoslav National Army ('JNA') in hostilities in Croatia, as well as in Bosnia-Herzegovina at least until its formal withdrawal on 19 May 1992." Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 72 (A.C. Aug. 19, 1995).
152. The Appeals Chamber stated: To the extent that the conflicts had been limited to clashes between Bosnian Government forces and Bosnian Serb rebel forces in Bosnia-Herzegovina, as well as between the Croatian Government and Croatian Serb rebel forces in Krajina (Croatia), they had been internal (unless direct involvement of the Federal Republic of Yugoslavia (Serbia-Montenegro) could be proven). r. 72.
153. The issue of agency will be discussed at greater length infra Part III.
154. See Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 608 (T.Ch.II May 7, 1997); see also supra note 129.
155. Geneva Convention (IV), supra note 6, art 4, 75 U.N.T.S. at 290.
156. Id. at 47 (Commentary to Geneva Convention (IV)).
157. The Geneva Convention (FV) states that "[g]rave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention." Id. art. 158, 75 U.N.T.S. at 388, (emphasis added). In interpreting this language Jordan Paust argues as follows: The Convention states that any of the listed acts committed against persons "protected by the present Convention" are grave breaches of the Convention. This means persons protected anywhere in the present Convention or in any articles of the Convention. It does not utilize the more restrictive terminology of "protected persons[.]" Jordan J. Paust, War Crimes Jurisdiction and Due Process: The Bangladesh Experience, 11 VAND. J. TRANSNAT'L L. 1, 28 n.101 (1978).
158. Referring to Article 2 of the ICTY Statute, the Trial Chamber concluded that "[t]he Article has been so drafted to be self contained rather than referential, save for the identification of the victims of [the] enumerated acts; that identification and that alone involves going to the Conventions themselves for the definition of 'persons or property protected.'" Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on the Defence Motion on Jurisdiction, para. 49 (T.Ch.II Aug. 10, 1995).
159. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 81 (A.C. Oct. 2, 1995).
160. "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." Geneva Convention (IV), supra note 6, art. 1, 75 U.N.T.S at 288.
161. See id. art. 3 (common to all four of the Geneva Conventions of 1949).
162. For a discussion of the possibility of applying a broader and more functional concept of nationality in international humanitarian law, see infra notes 221-37 and accompanying text.
163. see infra text accompanying notes 199-245 for a discussion of the special importance of the grave breaches regime in international criminal law and the need to maintain its effectiveness.
164. the Report of the Commission of Experts established to analyze evidence of grave violations of international humanitarian law committed in the territory of Rwanda notes: The armed conflict between 6 April and 15 July 1994 qualifies as a non-international armed conflict. The use of armed force had been carried out within the territorial borders of Rwanda and did not involve the active participation of any other State. Third State involvement entailed peacemaking and humanitarian functions rather than belligerent action. Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935, para. 108, U.N./Doc. S/1994/1405, 1994.
165. The Statute of the International Criminal Tribunal for Rwanda names genocide (Article 2), crimes against humanity (Article 3), and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (Article 4) as crimes within that institution's jurisdiction. See ICTR Statute, supra note 105, 1602-04.
166. Although the majority opinion did not find the Bosnian Serbs to have acted as agents of the FRY, it did accept the applicability of the principle of agency. That opinion notes: The armed forces of the Republika Srpska, and the Republika Srpska as a whole, were, at least from 19 May 1992 onwards, legal entities distinct from the VJ and the Governfthe Federal Republic of Yugoslavia (Serbia and Montenegro). However, as a rule of customary international law, the acts of persons, groups or organizations may be imputed to a State where they act as de facto organs or agents of that State. One may speak of imputability as "the result of the intellectual operation necessary to bridge the gap between the delinquency of the organ or official, and the attribution of breach and liability to the State." In this case, the acts of the armed forces of the Republika Srpska, although nationals of the Republic of Bosnia and Herzegovina, after 19 May 1992 in relation to Opstina Prijedor may be imputed to the Federal Republic of Yugoslavia (Serbia and Montenegro) if those forces were acting as de facto organs or agents ofthat State for that purpose or more generally. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 584 (T.Ch.II May 7, 1997).
167. See supra Part III.A (discussing the factual findings regarding international armed conflict).
168. 1986 I.C.J. 14 (June 27), reprinted in 25 I.L.M. 1023 (1986).
169. As the Tadic court observed: [T]he facts of the Nicaragua case and this case are very different, and especially so in Wo important respects. First, the VRS was an occupying force, rather than just a raiding army. . . . Secondly, prior to the withdrawal of forces of the Federal Republic of Yugoslavia (Serbia and Montenegro) on or before 19 May 1992, Bosnian Serb troops served in the ranks of the JNA, and were transferred into the newly-formed VRS after that date. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, paras. 586-87 (T.Ch.II May 7, 1997). The court went on to conclude: Thus, unlike the Nicaragua case in which the court considered whether the contra forces had, over time, fallen into such a sufficient state of dependency and control visa-vis the United States that the acts of one could be imputed to another, the question for this Trial Chamber is whether, after 19 May 1992, the Federal Republic of Yugoslavia (Serbia and Montenegro), by its withdrawal from the territory of the Republic of Bosnia and Herzegovina and notwithstanding its continuing support for the VRS, had sufficiently distanced itself from the VRS so that those forces could not be regarded as de facto organs or agents of the VJ and hence of the Federal Republic of Yugoslavia (Serbia and Montenegro). Id. para. 587.
170. "In concluding that the United States had not exercised sufficient control 'in all fields as to justify treating the contras as acting on its behalf', [sic] the Court set a particularly high threshold test for determining the requisite degree of control on the part of the United States." Id. para. 585.
171. Id, para. 595. The Trial Chamber stated: It can be seen then that the JNA played a role of vital importance in the establishment, equipping, supplying, maintenance and staffing of the 1st Krajina Corps, as it did with other VRS units. However, that in itself is not enough; it is also necessary to show, as the Court required of Nicaragua in proving control by the United States over the contras, that the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) continued to exercise effective control over the operations of the VRS, after the transfers of men and matériel on or before 19 May 1992. Id.
172. "[T]he appropriate test of agency from Nicaragua is one of 'dependency and control' and a showing of effective control is not required." Id., Dissenting Opinion of Judge McDonald, para. 4.
173. "[T]he Federal Republic of Yugoslavia (Serbia and Montenegro) established what is essentially a puppet regime in the VRS, which was charged with the responsibility for executing the military operations of the Federal Republic of Yugoslavia (Serbia and Montenegro) in Bosnia and Herzegovina." Id., Dissenting Opinion of Judge McDonald, para. 3. The dissent further contended: [T]he Trial Chamber should not import the Nicaragua requirement of effective control but should instead . . . disregard the formal criteria of the military structure. The key issue here is whether the VRS was indeed dependent on and controlled by the Federal Republic of Yugoslavia (Serbia and Montenegro). As noted above, the evidence is more than sufficient to make such a determination. Id.
174. In discussing the participation of the United States in supporting the contras in Nicaragua, the International Court of Justice noted that "[f]or this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed." Military and Paramilitary Activities (Nicar. v. U.S.), 1986, I.C.J. 14, 65, para. 115 (June 27), reprinted in 25 I.L.M. 1023 (1986); see also Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, paras. 585-86 (T.Ch.II May 7, 1997).
175. Judge McDonald addressed this issue directly in her dissenting opinion: In coming to its ultimate conclusion, the majority opinion fails to give appropriate weight to the unique circumstances the Trial Chamber is faced with given its position as an international criminal tribunal determining individual - as opposed to State - responsibility. This problem permeates the entire analysis, beginning with the manner in which the issue is initially framed as one of "imputability," which the majority clearly notes relates to "delinquency" and the "attribution of breach and liability" to a State. A determination of imputability was appropriate in Nicaragua, where the moving party sought to determine fault and liability of a State for the acts of the contras as against the United States, but is not suitable here, where the issue of responsibility is solely for the purpose of identifying the occupying power. Prosecutor v. Tadic, Case No. IT-94-1-T, Dissenting Opinion of Judge McDonald, para. 27 (T.Ch.II May 7, 1997).
176. Judge Ago stated: It would indeed be inconsistent with the principles governing the question to regard members of the contra forces as persons or groups acting in the name and on behalf of ied States of America . . . [except] in cases where certain members of those forces happened to have been specifically charged by United States authorities to commit a particular act, or [to] carry out a particular task of some kind on behalf of the United States. Nicaragua, 1986 I.C.J. at 18, para. 16 (separate opinion of Judge Ago).
177. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 601 (T.Ch.II May 7, 1997). The court noted: [A]lthough they may be considered as instances in which, to paraphrase Judge Ago, "certain members of the VRS happened to have been specifically charged by Federal Republic of Yugoslavia (Serbia and Montenegro) authorities to commit a particular act, or to carry out a particular task of some kind," without evidence of orders having been received from Belgrade which circumvented or overrode the authority of the Corps Commander, those acts cannot be said to have been carried out "on behalf of" the Federal Republic of Yugoslavia (Serbia and Montenegro). Id.
178. Id., Dissenting Opinion of Judge McDonald, para. 3.
179. Rule 61, entitled "Procedure in Case of Failure to Execute a Warrant," provides for a special proceeding to be held with regard to an accused who has not been arrested and brought before the Tribunal within a reasonable time after being indicted. See ICTY Rules, supra note 51, Rule 61. The Tribunal's evaluation of the facts presented in the course of a Rule 61 proceeding results in neither a conclusive factual determination, nor a finding of guilt or innocence. As the Trial Chamber noted in the Rajic case: A Rule 61 proceeding is not a trial in absentia. There is no finding of guilt in this proceeding. The only determination the Trial Chamber makes is whether there are reasonable grounds for believing that the accused committed the crimes charged in the indictment As part of this determination, the Chamber considers whether the acts with which the accused is charged, if proven beyond a reasonable doubt at trial, are crimes falling within its subject-matterjurisdiction and ensures that the charges against the accused are well founded in fact. . . . The only consequences of the proceeding are the public airing of the evidence against the accused and the possible issuance of an international artest warrant, thereby enhancing the likelihood of the artest of the accused and enabling the International Tribunal to discharge its mandate instead of being rendered ineffective by the non-compliance of States. Thus the procedure furthers the purposes for which the International Tribunal was established. Prosecutor v. Rajic, Case No. IT-95-12-R61, Review of the Indictment Pursuant to Rule 61, para. 3 (T.Ch.II Sept 13, 1996).
180. The ICIY has rejected requests to participate in Rule 61 hearings made by attorneys representing those indicted but refusing to surrender to the jurisdiction of the Tribunal. Although these attorneys may be granted observer status at Rule 61 hearings, these hearings, unlike trials before the ICIY, are ex parte and not adversarial. See Prosecutor v. Karadzic & Mladic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictment Pursuant to Rule 61, para. 4 (T.Ch.I July 11, 1996).
181. See Prosecutor v. Rajic, Case No. IT-95-12-R61, Review of the Indictment Pursuant to Rule 61, para. 3 (T.Ch.II Sept 13, 1996).
182. See Prosecutor v. Rajic, Case No. IT-95-12, Indictment, paras. 12-13, (T.Ch.II Aug. 23, 1995).
183. See id. para. 13. In its review, the court stated: The Chamber finds that, for purposes of the application of the grave breaches provisions of Geneva Convention IV, the significant and continuous military action by the armed forces of Croatia in support of the Bosnian Croats against the forces of the Bosnian Government on the territory of the latter was sufficient to convert the domestic conflict between Bosnian Croats and the Bosnian Government into an international one. Prosecutor v. Rajic, Case No. IT-95-12-R61, Review of the Indictment Pursuant to Rule 61, para. 13 (T.Ch.II Sept 13, 1996).
184. The court held: The evidence submitted in this case establishes reasonable grounds for believing that the Bosnian Croats were agents of Croatia in clashes with the Bosnian Government in central and southern Bosnia from the autumn of 1992 to the spring of 1993. It appears that Croatia, in addition to assisting the Bosnian Croats in much the same manner in which the United States backed the contras in Nicaragua, inserted its own armed forces into the conflict on the territory of Bosnia and exercised a high degree of control over both the military and the political institutions of [the] Bosnian Croats. Id. para. 13.
185. See id. para. 26.
186. The judges were careful to qualify the significance of their findings in a Rule 61 proceeding by noting that "the instant proceedings are preliminary in nature and may be revisited at trial." Id. para. 25.
187. See id. para. 43.
188. The Appeals Chamber formulated a reductio ad absurdum argument in the following terms: If the Security Council had categorized the conflict as exclusively international and, in addition, had decided to bind the International Tribunal thereby, it would follow that the International Tribunal would have to consider the conflict between Bosnian Serbs and the central authorities of Bosnia-Herzegovina as international. Since it cannot be contended that the Bosnian Serbs constitute a State, arguably the classification just referred to would be based on the implicit assumption that the Bosnian Serbs are acting not as a rebellious entity but as organs or agents of another State, the Federal Republic of Yugoslavia (Serbia-Montenegro). As a consequence, serious infringements of international humanitarian law committed by the government army of Bosnia-Herzegovina against Bosnian Serbian civilians in their power would not be regarded as "grave breaches," because such civilians, having the nationality of Bosnia-Herzegovina, would not be regarded as "protected persons" under Article 4, paragraph 1 of Geneva Convention IV. By contrast, atrocities committed by Bosnian Serbs against Bosnian civilians in their hands would be regarded as "grave breaches," because such civilians would be "protected persons" under the Convention, in that the Bosnian Serbs would be acting as organs or agents of another State, the Federal Republic of Yugoslavia (Serbia-Montenegro) of which the Bosnians would not possess the nationality. This would be, of course, an absurd outcome, in that it would place the Bosnian Serbs at a substantial legal disadvantage vis-à-vis the central authorities of Bosnia-Herzegovina. This absurdity bears out the fallacy of the argument advanced by the Prosecutor before the Appeals Chamber. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 76 (A.C. Oct. 2, 1995).
189. See Id.
190. See ICIY Statute, supra note 1, arts. 3-5.
191. The ICIY Statute defines genocide in language borrowed without change from the Genocide Convention, supra note 47, art 2: Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: ling members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. ICIY Statute, supra note 1, art. 4.
192. The ICTY Statute defines crimes against humanity as the following crimes, when committed "in armed conflict, whether international or internal in character, and directed against any civilian population": murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds; and "other inhumane acts." ICTY Statute, supra note 1, art. 5.
193. The Tadic decision identifies the following as the elements of crimes against humanity: The requirements for crimes against humanity under the Statute are, apart from the existence of an armed conflict, that the acts be taken against a Chilian population on a widespread or systematic basis in furtherance of a policy to commit these acts and that the perpetrator has knowledge of the wider context in which his act occurs. Additionally, because of the interpretation of Article 5 proffered by the Secretary-General as well as several members of the Security Council, the Trial Chamber has incorporated the additional element that the act must be taken on discriminatory grounds. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 716 (T.Ch.II May 7, 1997).
194. Article 3 of the ICTY Statute gives the International Tribunal the power "to prosecute persons violating the laws or customs of war." ICTY Statute, supra note 1, art. 3. Such violations include, but are not limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity, and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. ICTY Statute, supra note 1, art. 3.
195. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 91 (A.C. Oct. 2, 1995).
196. See id. paras. 128-36.
197. Common Article 3 reads as follows: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. Geneva Convention (IV), supra note 6, art 3 (common to all four of the Geneva Conventions of 1949).
198. See Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 614 (T.Ch.II May 7, 1997).
199. See id. para. 615. The court stated: Whereas the concept of "protected person" under the Geneva Conventions is defined positively, the class of persons protected by the operation of Common Article 3 is defined negatively. For that reason, the test the Trial Chamber has applied is to ask whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, being those hostilities in the context of which the alleged offences are said Io have been committed. If the answer to that question is negative, the victim will enjoy the protection of the proscriptions contained in Common Article 3. Id.; see also Geneva Convention (IV), supra note 6, art. 3 (common to all four of the Geneva Conventions of 1949). By its terms, Common Article 3 protects "[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause." Id.
200. See supra notes 191-92.
201. See supra note 190.
202. See supra note 193.
203. See supra notes 77-80 and accompanying text.
204. "Article 3 thus confers on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5." Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 91 (A.C. Oct. 2, 1995).
205. See supra note 196 and accompanying text.
206. See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, paras. 128-36 (A.C. Oct. 2, 1995); Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, paras. 610-17 (T.Ch.II May 7, 1997).
207. See, e.g., Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 91 (A.C. Oct. 2, 1995).
208. The novelty of attaching individual criminal responsibility to violations of Common Article 3 has raised the issue of nullum crimen sine lege with regard to these crimes. See supra notes 72-85 and accompanying text.
209. The acts proscribed as grave breaches include wilful killing, torture, unlawful deportation or transfer of protected civilians, wilfully depriving a person of the rights of fair and regular trial, and the taking of hostages. See supra note 46.
210. The appeals court observed: The grave breaches system of the Geneva Conventions establishes a twofold system: [T]here is on the one hand an enumeration of offences that are regarded so serious as to constitute "grave breaches"; closely bound up with this enumeration a mandatory enforcement mechanism is set up, based on the concept of a duty and a right of all Contracting States to search for and try or extradite persons allegedly responsible for "grave breaches." Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 80 (A.C. Oct. 2, 1995).
211. This regime is set out in the Geneva Convention (IV) in the following terms: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima fade case. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949. Geneva Convention (IV), supra note 6, art. 146 (emphasis added). The Convention also states: Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Id. art. 147. Article 148 states: "No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article." Id. art 148 (emphasis added).
212. The Genocide Convention establishes an international enforcement regime in the following terms: Article V. The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of Genocide or any of the other acts enumerated in Article III. Article VI. Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. Article VII. Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition. nracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force. Genocide Convention, supra note 47, arts. 5-7.
213. The differing scope of the applicability of these two categories of crimes is evident from the indictments of the ICTY. The first 12 indictments of the ICIY allege 144 counts of grave breaches and only nine counts of genocide. See Table A and supra note 98.
214. The acts that can qualify as grave breaches under Article 2 of the ICTY Statute are the following: wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or a civilian to serve in the forces of a hostile power; wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement of a civilian; and taking civilians as hostages. See ICIY Statute, supra note 1, art. 2.
215. See Geneva Convention (IV), supra note 6, art 146.
216. As the Permanent Court of International Justice noted in the Lotus case, restrictions upon the sovereignty of states are not to be presumed. See S.S. Lotus, (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).
217. The judge stated: The international armed conflict element generally attributed to the grave breaches provisions of the Geneva Conventions is merely a function of the system of universal mandatory jurisdiction that those provisions create. The international armed conflict requirement was a necessary limitation on the grave breaches system in light of the intrusion on state sovereignty that such mandatory universal jurisdiction represents. State parties to the 1949 Geneva Conventions did not want to give other states jurisdiction over serious violations of international humanitarian law committed in their internal armed conflicts - at least, not the mandatory universal jurisdiction involved in the grave breaches system. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 80 (A.C. Oct. 2, 1995).
218. See id.
219. See id. para. 85.
220. See Reisman, supra note 44, at 866, 873.
221. See supra notes 164-76.
222. Geneva Convention (IV), supra note 6, art. 4.
223. The Trial Chamber's Opinion and Judgment does not discuss this issue explicitly except to conclude as follow: The Trial Chamber is, by majority with the Presiding Judge dissenting, of the view that, on the evidence presented to it, after 19 May 1992 the armed forces of the Republika Srpska could not be considered as de facto organs or agents of the Government of die Federal Republic of Yugoslavia (Serbia and Montenegro), either in Opstina Prijedor or more generally. For that reason, each of the victims of the acts ascribed to the accused in Section III of this Opinion and Judgment enjoy the protection of the prohibitions contained in Common Article 3, applicable as it is to all armed conflicts, rather than the protection of the more specific grave breaches regime applicable to civilians in the hands of a party to an armed conflict of which they are not nationals, which falls under Article 2 of the Statute. Such a conclusion is, of course, without prejudice to the position of those citizens of the Republic of Bosnia and Herzegovina who found themselves in the hands of forces of the JNA before 19 May 1992 or in the hands of forces of the VJ after that date, whether in the territory of the Republic of Bosnia and Herzegovina or elsewhere, or to those citizens of the Republic of Bosnia and Herzegovina in the hands of units of the VRS which, from time to time, may have fallen under the command and control of the VJ and of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro). Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 607 (T.Ch.II May 7, 1997).
224. The Trial Chamber refers to "the nature of the armed conflict as an ethnic war and the strategic aims of the Republika Srpska to create a purely Serbian State." Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 574 (T.Ch.II May 7, 1997).
225. The Trial Chamber's findings of fact with regard to the acts of the accused in the camps run by Republika Srpska note: Those acts clearly occurred with the connivance or permission of the authorities running these camps and indicate that such acts were part of an accepted policy towards prisoners in the camps in opstina Prijedor. Indeed, such treatment effected the objective of the Republika Srpska to ethnically cleanse, by means of terror, killings or otherwise, the areas of the Republic of Bosnia and Herzegovina controlled by Bosnian Serb forces. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 575 (T.Ch.II May 7, 1997).
226. It was certainly the objective of Serb leaders in Republika Srpska and elsewhere to create a "Greater Serbia" cleansed of Muslims and Croats. The Trial Chamber found that at the beginning of the conflict in Bosnia and Herzegovina: [t]he objective of Serbia, the JNA and Serb-dominated political parties, primarily the SDS . . . was to create a Serb-dominated western extension of Serbia, taking in Serbdominated portions of Croatia and portions, too, of Bosnia and Herzegovina. This would then, together with Serbia, its two autonomous provinces and Montenegro, form a new and smaller Yugoslavia with a substantially Serb population. However, among obstacles in the way were the very large Muslim and Croat populations native to and living in Bosnia and Herzegovina. To deal with that problem the practice of ethnic cleansing was adopted. This was no new concept As mentioned earlier, it was familiar to the Croat wartime regime and to many Serb writers who had long envisaged the redistribution of populations, by force if necessary, in the course of achieving a Greater Serbia. This concept was espoused by Slobodan Milosevic, with ethnic Serbs widely adopting it throughout the former Yugoslavia, including Serb political leaders in Bosnia and Herzegovina and in Croatia. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 84 (T.Ch.II May 7, 1997).
227. See supra note 135.
228. Michael Reiterer has described this trend as follows: Under traditional international law, which concerned itself mainly with relations between sovereign entities (and recognized them as the sole subjects of international law), nationality was the sole link between the individual (an "object" of international law) and the law itself. The further development of international law, especially with the growing awareness of human rights, has diminished the linkage function of nationality. The appearance of new (at least partly) subjects of international law, i.e., international organizations, NGOs, transnational corporations, and the individual, has fostered the establishment of other links (assignment methods), either by redefining nationality or by employing criteria other than nationality, e.g., effective or genuine or functional links. Michael Reiterer, Book Review, 81 A.J.I.L. 970 (1987) (reviewing RUTH DONNER, THE REGULATION OF NATIONALITY IN INTERNATIONAL LAW).
229. Michael Reiterer has described this trend as follows: Under traditional international law, which concerned itself mainly with relations between sovereign entities (and recognized them as the sole subjects of international law), nationality was the sole link between the individual (an "object" of international law) and the law itself. The further development of international law, especially with the growing awareness of human rights, has diminished the linkage function of nationality. The appearance of new (at least partly) subjects of international law, i.e., international organizations, NGOs, transnational corporations, and the individual, has fostered the establishment of other links (assignment methods), either by redefining nationality or by employing criteria other than nationality, e.g., effective or genuine or functional links. Michael Reiterer, Book Review, 81 A.J.I.L. 970 (1987) (reviewing RUTH DONNER, THE REGULATION OF NATIONALITY IN INTERNATIONAL LAW).
230. According to the Covenant of the League of Nations: If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendations as to its settlement. LEAGUE OF NATIONS COVENANT art 15(8).
231. See Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco Case, 1923 P.C.I.J. (ser. B) No. 4, at 24.
232. The PCIJ stated: [While nationality] is not, in principle, regulated by international law, the right of a state to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other states. In such a case, jurisdiction which, in principle, belongs solely to the state, is limited by rules of international law. Id.
233. Nottebohm Case, (Liech. v. Guat.), 1955 I.C.J. 4, 23-26 (Apr. 6).
234. Paust, supra note 156, at 14-15.
235. Wedgwood, supra note 71, at 273-74.
236. The landmark treaty relating issues of nationality to international law is the Convention on Certain Questions Relating to the Conflict of Nationality Laws (The Hague, 1930). But even the basic rule of national jurisdiction, as set out in Article 1 of that convention, leaves open the possibility that principles of international law may govern nationality. "It is for each state to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality." L.N. Doc. C. 24 Mar.-Apr. 1930, M. 13. 1931. V., 179 L.N.T.S., 89.
237. 235 In one of the best of all treatises on this issue, Dr. Paul Weis argues that "the importance of the decision in the Nottebohm Case lies in the fact that the principle of effective link was applied in a case where only one nationality was at issue. P. WEIS, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAW 180 (2d ed. 1979). He later concludes that "the principle of effective nationality . . . is widely practised and recognised today. . . . [I] t applies not only to cases of plural nationality but to cases of doubtful nationality also." Id. at 203.
238. See Satvinder S. Juss, Nationality Law, Sovereignty, and the Doctrine of Exclusive Domestic Jurisdiction, 9 FLA. J. INT'L L. 219, 222-23(1994). Juss comments: Nationality has long been a concept in international law. It is high time that it was recognized that as such it is too important, especially in the changing conditions of the modern world, to be left to the mercy of nation States where today, in many cases, nation States themselves are undergoing fundamental change. Id. at 222.
239. Michael Reiterer opines: Functional nationality . . . [is] a "nationality" acquired by the operation of international law and therefore an exception to the rule that "nationality cannot be bestowed or acquired under international law, only under municipal law" . . . [.] A further example of the influence of international law is the so-called de facto nationality, based on the interest of a state in assimilating a non-national to the status of a national in order to enable him to benefit from municipal rights granted to nationals or for the purpose of diplomatic protection in the international sphere. Reiterer, supra note 227, at 973.
240. See Monroe Leigh, Judicial Decisions: Decision of the Iran-United States Claims Tribunal 78 A.J.I.L. 912, 913 (1984).
241. The notion of the "failed state" has become increasingly familiar, although it remains controversial. See Gerald B. Helman & Steven R. Ratner, Saving Failed States, FOREIGN POL'Y, Winter 1992-93, at 3 (advocating U.N. conservatorship for such states). "The common theme is overwhelmed governments that are almost, if not completely, unable to discharge basic governmental functions." Ruth E. Gordon, Some Legal Problems with Trusteeship, 28 CORNELL INT'L L.J. 301, 306 (1995). This certainly describes the government of Bosnia and Herzegovina during the period when Tadic committed his crimes. Gordon is wary of this idea, and after asking if "[p]erhaps failed States have failed to the point that they are no longer States, and by inference, no longer Members of the United Nations," id. at 332, she concludes that "[g]iven the strong presumption in favor of retaining international personality, and taking into account recognition and the views of the entity concerned, failed States do not appear to have forfeited their status as States." Id. at 336. But for a state such as Bosnia-Herzegovina, which in 1992 had recently seceded from the former Yugoslavia and had not yet established the objective control of its territory normally associated with statehood, this presumption should not apply to the same extent as it does for established states which have subsequendy failed. The concept of the "failed state" has been linked to the need for the international community to take humanitarian action where a state cannot act effectively to protect fundamental rights: The emergence of certain "failed states," incapable of fulfilling their state responsibility and expressing their consent to the establishment of administrative structures and democratic institutions on their behalf, has introduced what may be called a third generation humanitarian intervention. The United Nations' operations in the Congo , ambodia (UNTAC) and Somalia (UNOSOM), and the European Union's involvement in Mostar (Bosnia-Herzegovina) belong to this generation of humanitarian intervention. Yogesh K. Tyagi, The Concept of Humanitarian Intervention Revisited, 16 MICH. J. INT'L L. 883, 886 (1995); see also, Brown, The Protection of Human Rights in Disintegrating States: A New Challenge, supra note 2, at 218-24 (describing U.N. peacekeeping operations in Cambodia, Bosnia, and Iraq). Henry Richardson has argued that the notion of "failed states" should not be recognized under international law because it is a "state-centric, pejoratively normative label used to defend existing patterns of international dominance by attributing 'failure' and giving permission to intervene. ' Henry J. Richardson III, "Failed States, " Self-Determination, and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations, 10 TEMP. INT'L & COMP. L.J. 1, 7-8 (1996). Professor Richardson's focus is upon self-determination as opposed to armed intervention. He argues persuasively that instead of trying to define criteria for determining the "failure" of a state, "[i]t is time for international law to move from its present policy which supports the status quo government regardless of its acts and undergird a 'preventive diplomacy' that gives authority to groups' or peoples' warranted claims of self-determination as they may arise against national governments." Id, at 10-11. His points do not weigh against the recognition, under international humanitarian law, of the effective and functional nationality of minorities. From the perspective of minority rights this recognition would be more a vindication of the right to self-determination than an act of intervention.
242. The notion of the "failed state" has become increasingly familiar, although it remains controversial. See Gerald B. Helman & Steven R. Ratner, Saving Failed States, FOREIGN POL'Y, Winter 1992-93, at 3 (advocating U.N. conservatorship for such states). "The common theme is overwhelmed governments that are almost, if not completely, unable to discharge basic governmental functions." Ruth E. Gordon, Some Legal Problems with Trusteeship, 28 CORNELL INT'L L.J. 301, 306 (1995). This certainly describes the government of Bosnia and Herzegovina during the period when Tadic committed his crimes. Gordon is wary of this idea, and after asking if "[p]erhaps failed States have failed to the point that they are no longer States, and by inference, no longer Members of the United Nations," id. at 332, she concludes that "[g]iven the strong presumption in favor of retaining international personality, and taking into account recognition and the views of the entity concerned, failed States do not appear to have forfeited their status as States." Id. at 336. But for a state such as Bosnia-Herzegovina, which in 1992 had recently seceded from the former Yugoslavia and had not yet established the objective control of its territory normally associated with statehood, this presumption should not apply to the same extent as it does for established states which have subsequendy failed. The concept of the "failed state" has been linked to the need for the international community to take humanitarian action where a state cannot act effectively to protect fundamental rights: The emergence of certain "failed states," incapable of fulfilling their state responsibility and expressing their consent to the establishment of administrative structures and democratic institutions on their behalf, has introduced what may be called a third generation humanitarian intervention. The United Nations' operations in the Congo , ambodia (UNTAC) and Somalia (UNOSOM), and the European Union's involvement in Mostar (Bosnia-Herzegovina) belong to this generation of humanitarian intervention. Yogesh K. Tyagi, The Concept of Humanitarian Intervention Revisited, 16 MICH. J. INT'L L. 883, 886 (1995); see also, Brown, The Protection of Human Rights in Disintegrating States: A New Challenge, supra note 2, at 218-24 (describing U.N. peacekeeping operations in Cambodia, Bosnia, and Iraq). Henry Richardson has argued that the notion of "failed states" should not be recognized under international law because it is a "state-centric, pejoratively normative label used to defend existing patterns of international dominance by attributing 'failure' and giving permission to intervene. ' Henry J. Richardson III, "Failed States, " Self-Determination, and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations, 10 TEMP. INT'L & COMP. L.J. 1, 7-8 (1996). Professor Richardson's focus is upon self-determination as opposed to armed intervention. He argues persuasively that instead of trying to define criteria for determining the "failure" of a state, "[i]t is time for international law to move from its present policy which supports the status quo government regardless of its acts and undergird a 'preventive diplomacy' that gives authority to groups' or peoples' warranted claims of self-determination as they may arise against national governments." Id, at 10-11. His points do not weigh against the recognition, under international humanitarian law, of the effective and functional nationality of minorities. From the perspective of minority rights this recognition would be more a vindication of the right to self-determination than an act of intervention.
243. The notion of the "failed state" has become increasingly
244. The notion of the "failed state" has become increasingly familiar, although it remains controversial. See Gerald B. Helman & Steven R. Ratner, Saving Failed States, FOREIGN POL'Y, Winter 1992-93, at 3 (advocating U.N. conservatorship for such states). "The common theme is overwhelmed governments that are almost, if not completely, unable to discharge basic governmental functions." Ruth E. Gordon, Some Legal Problems with Trusteeship, 28 CORNELL INT'L L.J. 301, 306 (1995). This certainly describes the government of Bosnia and Herzegovina during the period when Tadic committed his crimes. Gordon is wary of this idea, and after asking if "[p]erhaps failed States have failed to the point that they are no longer States, and by inference, no longer Members of the United Nations," id. at 332, she concludes that "[g]iven the strong presumption in favor of retaining international personality, and taking into account recognition and the views of the entity concerned, failed States do not appear to have forfeited their status as States." Id. at 336. But for a state such as Bosnia-Herzegovina, which in 1992 had recently seceded from the former Yugoslavia and had not yet established the objective control of its territory normally associated with statehood, this presumption should not apply to the same extent as it does for established states which have subsequendy failed. The concept of the "failed state" has been linked to the need for the international community to take humanitarian action where a state cannot act effectively to protect fundamental rights: The emergence of certain "failed states," incapable of fulfilling their state responsibility and expressing their consent to the establishment of administrative structures and democratic institutions on their behalf, has introduced what may be called a third generation humanitarian intervention. The United Nations' operations in the Congo , ambodia (UNTAC) and Somalia (UNOSOM), and the European Union's involvement in Mostar (Bosnia-Herzegovina) belong to this generation of humanitarian intervention. Yogesh K. Tyagi, The Concept of Humanitarian Intervention Revisited, 16 MICH. J. INT'L L. 883, 886 (1995); see also, Brown, The Protection of Human Rights in Disintegrating States: A New Challenge, supra note 2, at 218-24 (describing U.N. peacekeeping operations in Cambodia, Bosnia, and Iraq). Henry Richardson has argued that the notion of "failed states" should not be recognized under international law because it is a "state-centric, pejoratively normative label used to defend existing patterns of international dominance by attributing 'failure' and giving permission to intervene. ' Henry J. Richardson III, "Failed States, " Self-Determination, and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations, 10 TEMP. INT'L & COMP. L.J. 1, 7-8 (1996). Professor Richardson's focus is upon self-determination as opposed to armed intervention. He argues persuasively that instead of trying to define criteria for determining the "failure" of a state, "[i]t is time for international law to move from its present policy which supports the status quo government regardless of its acts and undergird a 'preventive diplomacy' that gives authority to groups' or peoples' warranted claims of self-determination as they may arise against national governments." Id, at 10-11. His points do not weigh against the recognition, under international humanitarian law, of the effective and functional nationality of minorities. From the perspective of minority rights this recognition would be more a vindication of the right to self-determination than an act of intervention.
245. The notion of the "failed state" has become increasingly familiar, although it remains controversial. See Gerald B. Helman & Steven R. Ratner, Saving Failed States, FOREIGN POL'Y, Winter 1992-93, at 3 (advocating U.N. conservatorship for such states). "The common theme is overwhelmed governments that are almost, if not completely, unable to discharge basic governmental functions." Ruth E. Gordon, Some Legal Problems with Trusteeship, 28 CORNELL INT'L L.J. 301, 306 (1995). This certainly describes the government of Bosnia and Herzegovina during the period when Tadic committed his crimes. Gordon is wary of this idea, and after asking if "[p]erhaps failed States have failed to the point that they are no longer States, and by inference, no longer Members of the United Nations," id. at 332, she concludes that "[g]iven the strong presumption in favor of retaining international personality, and taking into account recognition and the views of the entity concerned, failed States do not appear to have forfeited their status as States." Id. at 336. But for a state such as Bosnia-Herzegovina, which in 1992 had recently seceded from the former Yugoslavia and had not yet established the objective control of its territory normally associated with statehood, this presumption should not apply to the same extent as it does for established states which have subsequendy failed. The concept of the "failed state" has been linked to the need for the international community to take humanitarian action where a state cannot act effectively to protect fundamental rights: The emergence of certain "failed states," incapable of fulfilling their state responsibility and expressing their consent to the establishment of administrative structures and democratic institutions on their behalf, has introduced what may be called a third generation humanitarian intervention. The United Nations' operations in the Congo , ambodia (UNTAC) and Somalia (UNOSOM), and the European Union's involvement in Mostar (Bosnia-Herzegovina) belong to this generation of humanitarian intervention. Yogesh K. Tyagi, The Concept of Humanitarian Intervention Revisited, 16 MICH. J. INT'L L. 883, 886 (1995); see also, Brown, The Protection of Human Rights in Disintegrating States: A New Challenge, supra note 2, at 218-24 (describing U.N. peacekeeping operations in Cambodia, Bosnia, and Iraq). Henry Richardson has argued that the notion of "failed states" should not be recognized under international law because it is a "state-centric, pejoratively normative label used to defend existing patterns of international dominance by attributing 'failure' and giving permission to intervene. ' Henry J. Richardson III, "Failed States, " Self-Determination, and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations, 10 TEMP. INT'L & COMP. L.J. 1, 7-8 (1996). Professor Richardson's focus is upon self-determination as opposed to armed intervention. He argues persuasively that instead of trying to define criteria for determining the "failure" of a state, "[i]t is time for international law to move from its present policy which supports the status quo government regardless of its acts and undergird a 'preventive diplomacy' that gives authority to groups' or peoples' warranted claims of self-determination as they may arise against national governments." Id, at 10-11. His points do not weigh against the recognition, under international humanitarian law, of the effective and functional nationality of minorities. From the perspective of minority rights this recognition would be more a vindication of the right to self-determination than an act of intervention.
246. The U.N. War Crimes Commission was quite forthright about this problem: The comparative novelty of certain parts of the law formulated in the Nuremberg and Far Eastern Charters, and the fact that they represent in themselves a partial and new codification in the field of international penal law which is in the making, give rise to some difficulties in establishing a precise classification of all the various effects of the law developed and codified in the Charters. This is particularly true in regard to the drawing of a clear line between "war crimes" proper on the one hand and "crimes against humanity" on the other, and in establishing in a precise manner the scope of the latter. This difficulty of drawing a clear line of demarcation between the two categories of crimes was confirmed by the Judgment of the Nuremberg Tribunal. It did not say in what cases and under what conditions or circumstances "crimes against humanity" are at the same time "war crimes" and in what cases they are not. Nevertheless, it established, on the one hand, the fact of the possibility of situations arising where the two categories overlap and intermingle, and on the other hand of situations arising where they remain distinct and separated. Without entering into the question whether the reason for such a close relationship between the two categories lies in the similar nature of the offenses which they are intended to cover, it is evident that the law is apparently not clear enough to provide a definite line of demarcation. On the other hand, the fact remains that, however closely intermingled, both categories preserve their individuality both in the text of the law and in the sphere of facts as established by the Nuremberg Judgment, and that they can never reach the point of being entirely absorbed the one by the other. United Nations War Crimes Comm'n, History of the United Nations War Crimes Commission and the Development of the Laws of War 219-20 (1948).
247. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction (A.C. Oct. 2, 1995) (separate opinion of Judge Abi-Saab, pt. I, at 2).
248. Id. at 15.
249. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeals Decision on Jurisdiction, para. 83 (A.C. Oct. 2, 1995). The Appeals Chamber cited evidence of what it called "the present trend to extend grave breaches provisions to such [internal] category of conflicts." Id. para. 84. It then concluded that "in the present state of development of the law, Article 2 of the Statute only applies to offences committed within the context of international armed conflicts." Id.
250. See id.
251. During its 46th session, the International Law Commission developed a draft statute creating such a permanent International Criminal Court in the form of a treaty that could be ratified by states. See Report of the International Law Commission on the Work of its Forty-Sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, at 29, U.N. Doc. A/49/10 (1994) (Draft Statute for an International Criminal Court) [hereinafter ILC Report]. In December of 1995, the General Assembly decided to create a Preparatory Committee on the Establishment of an International Criminal Court to discuss the issues arising out of the Draft Statute with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court for consideration by a plenipotentiary conference of states. See G.A. Res. 46, U.N.GAOR, 50th Sess., Supp. No. 49, at 307, U.N. Doc. A/50/46 (1995) [hereinafter G.A. Res. 46]. These negotiations gong, and a Plenipotentiary Conference to adopt the agreed text is anticipated in June of 1998. See Barbara Crossette, Legal Experts Agree on an Outline for a Global Criminal Court, N.Y. TIMES, Dec. 14, 1997, at A23.
252. Even as they decide the cases presently before them, similar legal issues are being raised in the continuing political negotiations concerning the possible creation of a permanent International Criminal Court. See ILC Report, supra note 245, at 29; GA. Res. 46, supra note 245, at 307.
253. See ICCPR, supra note 50, art 14; ICIY Statute, supra note 1, art. 21.
254. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, para. 572 (T.Ch.II May 7, 1997); see also note 122 and the accompanying quotation.