Individual criminal responsibility for violations of article 3 common to the Geneva Conventions of 1949 and of additional protocol II thereto in the case law of the International Criminal Tribunal for Rwanda

Criminal Law Forum

Volumn 13, Issue 3, 2002, Pages 293-322

  Boed, Roman ^a  

^a United Nations   (Tanzania)

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EID: 52649138977     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1023396810005     Document Type: Article

References (273)

1. See, e.g., Theodor Meron, International Criminalisation of Internal Atrocities, 89 AM. J. INT'LL. 554, 554 (1995).
2. See, e.g., Daniel Smith, New Protections for Victims of International Armed Conflicts: The Proposed Ratification of Protocol II by the United States, 120 MIL. L. REV. 59, 65 (1988).
3. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1950) 75 U.N.T.S. 31;
4. Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, (1950) 75 U.N.T.S. 85;
5. Convention Relative to the Treatment of Prisoners of War, (1950) 75 U.N.T.S. 135;
6. Convention Relative to the Protection of Civilian Persons in Time of War, (1950) 75 U.N.T.S. 287 (hereinafter the "Geneva Conventions").
7. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, (1978) 1125 U.N.T.S. 609 (hereinafter "Additional Protocol II").
8. See, e.g., Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, NEW RULES FOR VICTIMS OF ARMED CONFLICTS: COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949, 608 (1982);
9. Stefan Oeter, Civil Wars, Humanitarian Law and the United Nations, 1997 MAX PLANCK Y.B. U.N. L. 195, 204, 210;
10. Bruno Simma and Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AM. J. INT'L L. 302, 310, 311 (1999);
11. Waldemar A. Solf, The Status of Combatants in Non-International Armed Conflicts under Domestic Law and Transnational Practice, 33 AM. U. L. REV. 53, 58, 59 (1983).
12. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, (1978) 1125 U.N.T.S. 3 (hereinafter "Additional Protocol I").
13. Note, for example, that Additional Protocol I contains an entire section dealing with repression of breaches of the Conventions and of the Protocol. See Additional Protocol I, supra note 6, part V, sec. II.
14. See also Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, supra note 3, arts. 49-54 (repression of abuses and infractions);
15. Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, supra note 3, arts. 50-53 (repression of abuses and infractions);
16. Convention Relative to the Treatment of Prisoners of War, supra note 3, arts, 129-132 (repression of abuses and infractions);
17. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 3, arts. 146-149 (repression of abuses and infractions).
18. See also Solf, supra note 5, at 55.
19. See, e.g., Erik Mose, The Criminality Perspective, 15 GEO. IMMIGR. L.J. 463, 465 (2001).
20. The Security Council acting under Chapter VII of the Charter of the United Nations established the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 by Resolution 955 on 8 November 1994. See U.N. Doc. S/RES/955 (1994).
21. The Security Council established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 by Resolution 827 in May 1993. See U.N. Doc. S/RES/827 (1993).
22. Steven R. Ratner and Jason S. Abrams, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY, 94 (1997).
23. See Luigi Condorelli, War Crimes and Internal Conflicts in the Statute of the International Criminal Court, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A CHALLENGE TO IMPUNITY 107, 109 (2001).
24. Whether provisions covering non-international conflicts should be incorporated in the Statute of the International Criminal Court was one of the most controversial issues. See Thomas Graditzky, War Crime Issues before the Rome Diplomatic Conference on the Establishment of an International Criminal Court, 5 U.C. DAVIS J. INT'L L. and POL'Y 199, 208 (1999).
25. The jurisprudence of the ICTR and the ICTY will assist the work of the International Criminal Court. See, e.g., L.C. Green, Enforcement of the Law in International and Non-International Conflicts - The Way Ahead, 24 DENVER J. INT'L L. and POL'Y 285, 319 (1996).
26. See, e.g., Babafemi Akinrinade, International Humanitarian Law and the Conflict in Sierra Leone, 15 NOTRE DAME J.L. ETHICS and PUB. POL'Y 391, 409 (2001);
27. Gabrielle Kirk McDonald, The International Criminal Tribunals: Crime and Punishment in the International Arena, 25 NOVA L. REV. 463, 482 (2001);
28. Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the former Yugoslavia, 93 AM. J. INT'L L. 57, 95 (1999).
29. On the standard-setting nature of the work of the ICTR and the ICTY in the field of humanitarian law, see L.C. Green, THE CONTEMPORARY LAW OF ARMED CONFLICT 335 (2d ed., 2000).
30. McDonald, supra note 13, at p. 484.
31. Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex, art. 4 [hereinafter the "ICTR Statute" or "Statute"].
32. Indeed, in the case of Prosecutor v. Kambanda, the Tribunal found the former Prime Minister of Rwanda criminally liable on six counts of genocide and crimes against humanity following his guilty plea.
33. Prosecutor v. Kambanda (Case No. ICTR-97-23-S), Judgment and Sentence, 4 September 1998.
34. The Judgment and Sentence have been affirmed by the Appeals Chamber. See Kambanda v. Prosecutor (Case No. ICTR-97-23-A), Judgment, 19 October 2000.
35. See supra note 7 and accompanying text.
36. See supra note 5 and accompanying text.
37. See Meron, supra note 1, at 554.
38. In traditional doctrine, laws of war were conceived to govern relations among states, as sovereign entities and subjects of international law, and were therefore not applicable to internal conflicts. INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF NON-INTERNATIONAL ARMED CONFLICTS (PROTOCOL II) 1320 (1987) [hereinafter the "ICRC COMMENTARY: ADDITIONAL PROTOCOL II"].
39. See also Jan E. Aldykiewicz and Geoffrey S. Corn, Authority to Court-Martial Non-U.S. Military Personnel for Serious Violations of International Humanitarian Law Committed During Internal Armed Conflicts, 167 MIL. L. REV. 74, 105 (2001).
40. See Meron, supra note 1, at 554.
41. In this respect, the ICTR observed that during negotiations of the Geneva Conventions "the idea of the ICRC to apply the four … Conventions to internal armed conflicts had been treated by many delegations as unfriendly attempts to interfere in the internal affairs of the states …. " Prosecutor v. Kayishema and Ruzindana (Case No. ICTR-95-1-T), Judgment, 21 May 1999, para. 163.
42. See also David P. Forsythe, Legal Management of Internal War: The 1977 Protocol on Non-International Armed Conflicts, 72 AM. J. INT'L L. 272, 278 (1978) (discussing the negotiating history of Additional Protocol II on this point).
43. Note also that the Additional Protocol II includes an express provision on non-intervention: 1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend national unity and territorial sovereignty of the State. 2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs. Additional Protocol II, supra note 4, art. 3.
44. This provision recognises the sovereign prerogative of States to take measures within their territory to maintain law and order, national unity, and territorial integrity. Article 3 of the Protocol was included in the instrument to overcome the fears that Additional Protocol II could be used to violate State sovereignty by intervening in the internal affairs of States parties. See ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at 1362.
45. See Additional Protocol I, supra note 6, arts. 85-87.
46. See also Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, supra note 3, arts. 49-50;
47. Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, supra note 3, arts. 50-51;
48. Convention Relative to the Treatment of Prisoners of War, supra note 3, arts. 129-130;
49. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 3, arts. 146-147.
50. On the grave breaches regime see generally Rudiger Wolfrum, Enforcement of International Humanitarian Law, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 530-31 (Dieter Fleck, ed., 1995).
51. See also Yves Sandoz, Penal Aspects of International Humanitarian Law, in I INTERNATIONAL CRIMINAL LAW: CRIMES 393, 404, 406 (M. Cherif Bassiouni, ed., 2nd ed., 1999) (setting out the grave breaches and the regime for their repression).
52. See, e.g., Ratner and Abrams, supra note 11, at pp. 94-95;
53. Green, supra note 12, at p. 309;
54. Meron, supra note 1, at p. 559;
55. Oeter, supra note 5, at p. 210;
56. Steven R. Ratner, The Schizophrenias of International Criminal Law, 33 TEX. INT'L L.J. 237, 240 (1998);
57. Simma and Paulus, supra note 5, at p. 310.
58. See, e.g., Ratner and Abrams, supra note 11, at 95;
59. William Schabas, Commentary: Prosecutor v. Akayesu, in II ANNOTATED LEADING CASES OF INTERNATIONAL CRIMINAL TRIBUNALS: THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA 1994-1999 539, 550 (Andre Klip and Goran Sluiter eds., 2001) ("Until the adoption of Security Council resolution 955 creating the Rwanda Tribunal, it was widely believed among specialists in humanitarian law that the very concept of war crimes in non-international armed conflict did not exist.");
60. Meron, supra note 1, at p. 559;
61. Ratner, supra note 24, at p. 240.
62. Ratner and Abrams pointed out that while states prosecuted the acts listed in common article 3 under their domestic criminal laws, "only a few instances are documented of prosecutions for war crimes as such in the context of internal conflicts until the creation of … [ICTY and ICTR] in the 1990s". Ratner and Abrams, supra note 11, at p. 95.
63. L.C. Green in a similar vein observed that " [u]ntil the conflicts in Bosnia and Rwanda, no attempt was made to prosecute any accused for any sort of war crime as defined either in the Conventions or in customary Law". Green, supra note 12, at p. 309.
64. And Simma and Paulus wrote that they "know of no case in which a national, let alone an international, tribunal prior to the ICTY's establishment has exercised jurisdiction over war crimes in internal conflicts irrespective of the nationality of the victim and the perpetrator". Simma and Paulus, supra note 5, at p. 312.
65. See also Catherine Cisse, The International Tribunals for the former Yugoslavia and Rwanda: Some Elements of Comparison, 7 TRANSNAT'L L. and CONTEMP. PROBS. 103, 116 (1997);
66. Marsha V. Mills, War Crimes in the 21st Century, 3 HOFSTRA L. and POL'Y SYMP. 47, 51 (1999).
67. See ICTR Statute, supra note 16, arts. 4 and 6. In comparison, the ICTY Statute does not expressly refer to common article 3 or Additional Protocol II.
68. Report of the Secretary-General pursuant to Paragraph 5 of Security Council Resolution 955 (1994), 13 February 1995, U.N. Doc. S/1995/134, para. 12 (1995) (emphasis added).
69. Meron, supra note 1, at 561.
70. Professor Greenwood, on the other hand, has suggested that in granting the ICTR jurisdiction over violations of Additional Protocol II, the Security Council "considered that criminal responsibility for violations of [the Protocol] was implicit in the obligations which it contained …. " Christopher Greenwood, A Critique of the Additional Protocols to the Geneva Conventions of 1949, in THE CHANGING FACE OF CONFLICT AND THE EFFICACY OF INTERNATIONAL HUMANITARIAN LAW 3, 14 (Helen Durham and Timothy L.H. McCormack eds., 1999).
71. See Simma and Paulus, supra note 5, at p. 312.
72. Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9, art. 8(2)(c) and (e) (hereinafter the "ICC Statute").
73. See Simma and Paulus, supra note 5, at p. 312.
74. Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998.
75. Prosecutor v. Bagilishema (Case No. ICTR-95-1A-T), Judgment, 7 June 2001, para. 98;
76. Prosecutor v. Musema (Case No. ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 242;
77. Prosecutor v. Rutaganda (Case No. ICTR-96-3-T), Judgment and Sentence, 6 December 1999, para. 90;
78. Prosecutor v. Kayishema and Ruzindana (Case No. ICTR-95-1-T), Judgment and Sentence, 21 May 1999, paras. 156-157.
79. See Prosecutor v. Akayesu, supra note 33, para. 615.
80. Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
81. See Christopher Greenwood, International Humanitarian Law and the Tadic Case, 7 EUR. J. INT'L L. 265 (1996).
82. See, e.g., George H. Aldrich, Jurisdiction of the International Criminal Tribunal for the former Yugoslavia, 90 AM. J. INT'L L. 64, 69 (1996);
83. Aldykiewicz and Corn, supra note 21, at p. 137;
84. Cisse, supra note 25, at p. 116;
85. Greenwood, supra note 36, at pp. 279-81, 282-83;
86. Simma and Paulus, supra note 5, at p. 313.
87. That is to say that even those who find the proof of the existence of custom in the decision lacking agree on the significance of the decision. See, e.g., Ratner and Abrams, supra note 11, at pp. 96-97;
88. W.J. Fenrick, International Humanitarian Law and Criminal Trials, 7 TRANSNAT'L L. and CONTEMP. PROBS. 23, 39-11 (1997).
89. See, e.g., Prosecutor v. Bagilishema, supra note 34, para. 98;
90. Prosecutor v. Musema, supra note 34, para. 242;
91. Prosecutor v. Rutaganda, supra note 34, para. 90.
92. Simma and Paulus, supra note 5, at pp. 312-13.
93. Ratner and Abrams, supra note 11, at p. 98.
94. See, e.g., Prosecutor v. Rutaganda, supra note 34, para. 86.
95. Nullum crimen, nulla poena, sine lege is a principle of legality which requires that no one may be punished except for a breach of an existing rule of law. See, e.g., Francis G. Jacobs and Robin C.A. White, THE EUROPEAN CONVENTION ON HUMAN RIGHTS 162 (2d ed. 1996);
96. Manfred Nowak, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 274-81 (1993).
97. The International Covenant on Civil and Political Rights, (1976) 999 U.N.T.S. 171 (ICCPR) contains the nullum crimen principle in article 15 (prohibition of retroactive criminal laws) which reads, in part: "1.
98. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed." See also, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, (1955) 213 U.N.T.S. 221, E.T.S. 5, art. 7(1).
99. Prosecutor v. Akayesu, supra note 33.
100. Prosecutor v. Bagilishema, supra note 34;
101. Prosecutor v. Musema, supra note 34;
102. Prosecutor v. Rutaganda, supra note 34;
103. Prosecutor v. Kayishema and Ruzindana, supra note 34.
104. Prosecutor v. Bagilishema, supra note 34, para. 98;
105. Prosecutor v. Musema, supra note 34, para. 242;
106. Prosecutor v. Rutaganda, supra note 34, para. 90;
107. Prosecutor v. Kayishema and Ruzindana, supra note 34, paras. 156-157
108. Prosecutor v. Akayesu, supra note 33, para. 617.
109. The Geneva Conventions of 1949 entered into force for Rwanda with a retroactive effect as from 1 July 1962, the date of Rwanda's independence.
110. See 〈www.icrc.org/ihl.nsf〉.
111. The non-governmental party to the conflict, the Rwandese Patriotic Front, had stated to the International Committee of the Red Cross that it was bound by the rules of international humanitarian law. See Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 157.
112. See, e.g., Kayishema and Ruzindana, supra note 34, para. 157
113. Prosecutor v. Akayesu, supra note 33, para. 617.
114. For example, articles 311-312 of the Rwandan Penal Code in force during the massacres in 1994 proscribed murder, article 316 proscribed torture, article 359 proscribed indecent assault, article 360 proscribed rape, and articles 339-342 proscribed threats to commit any of these offences. See CODES ET LOIS DU RWANDA, titre II (des infractions contre les personnes) 207-12 (Filip Reyntjens et al. eds., 1979).
115. See also Meron, supra note 1, at p. 566;
116. Condorelli, supra note 12, at p. 114 ("[T]he principle of legality is by no means violated when a system of criminal prosecution is organised at the international level to punish acts having a criminal character which the author could not possibly ignore as those acts were clearly and exhaustively defined as criminal offences by the law").
117. See Prosecutor v. Bagilishema, supra note 34, para. 98;
118. Prosecutor v. Musema, supra note 34, para. 242;
119. Prosecutor v. Rutaganda, supra note 34, para. 90;
120. Prosecutor v. Kayishema and Ruzindana, supra note 34, paras. 156-157
121. Prosecutor v. Akayesu, supra note 33, para. 617.
122. See Meron, supra note 1, at pp. 566, 568 (agreeing with this position).
123. Common article 3 and Additional Protocol II established international interest in internal armed conflicts, but did not provide any mechanism for interpretation of their provisions. Duncan B. Hollis, Accountability in Chechnya - Addressing Internal Matters with Legal and Political International Norms, 36 B.C. L. REV. 793, 834 (1995).
124. See Mariann M. Wang, The International Tribunal for Rwanda: Opportunities for Clarification, Opportunities for Impact, 27 COLUM. HUM. RTS. L. REV. 177, 222 (1995).
125. See, e.g., ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at p. 1348 ("In the absence of clarity of this concept [a definition of armed conflict], it gave rise to a great variety of interpretations and in practice its applicability was often denied");
126. Forsythe, supra note 22, at p. 273 ("No one has been completely sure as to what factual situations … [common article 3] applies, and no one has been totally sure exactly what is prohibited in whatever situation it is that is regulated");
127. Smith, supra note 2, at p. 65.
128. In this regard the ICTR has observed that common article 3 "lacked clarity and enabled the States to have a wide area of discretion in its application". Prosecutor v. Rutaganda, supra note 34, para. 94.
129. See also Prosecutor v. Musema, supra note 34, para. 252.
130. Geneva Conventions, supra note 3, art. 3.
131. See Geneva Conventions, supra note 3, art. 3.
132. See also ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at p. 1348;
133. Geoffrey Best, WAR AND LAW SINCE 1945 177 (1994);
134. Solf, supra note 5, at p. 63.
135. INTERNATIONAL COMMITTEE OF THE RED CROSS, THE GENEVA CONVENTIONS OF 12 AUGUST 1949 COMMENTARY: IV GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 36 (1958) [hereinafter "ICRC COMMENTARY: GENEVA CONVENTIONS"].
136. Additional Protocol II, supra note 4, art. 1.
137. See ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at 1348.
138. See also Bothe et al. supra note 5, at 628.
139. See Additional Protocol II, supra note 4, art. 1.
140. See also ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at 1349;
141. Bothe et al., supra note 5, at p. 627.
142. ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at 1349.
143. For a review of the drafting history on this point see Forsythe, supra note 22, at pp. 284-85.
144. See also Bothe et al., supra note 5, at p. 606;
145. Leslie C. Green, International Regulation of Armed Conflicts, in INTERNATIONAL CRIMINAL LAW: CRIMES 355, 377-78 (M. Cherif Bassiouni, ed., 2nd ed., 1999) (commenting on the high threshold of application of the Protocol);
146. Richard N. Kiwanuka, Humanitarian Norms and Internal Strife: Problems and Prospects, in IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW 229, 231 (Frits Kalshoven and Yves Sandoz, eds., 1989);
147. Oeter, supra note 5, at pp. 204-205.
148. Professor Greenwood has commented that Additional Protocol II was "made subject to a definition of internal conflicts which excludes the majority of such conflicts". Greenwood, supra note 29, at p. 19.
149. Additional Protocol II, supra note 4, art. 1(2).
150. Prosecutor v. Musema, supra note 34, para. 971;
151. Prosecutor v. Rutaganda, supra note 34, para. 436;
152. Prosecutor v. Kayishema and Ruzindana, supra note 34, paras. 172 and 597;
153. Prosecutor v. Akayesu, supra note 33, paras. 621 and 627.
154. Prosecutor v. Akayesu, supra note 33, paras. 619-621 and 622-627.
155. See Prosecutor v. Musema, supra note 34, paras. 250-251 and 256-258;
156. Prosecutor v. Rutaganda, supra note 34, paras. 93 and 436;
157. Prosecutor v. Kayishema and Ruzindana, supra note 34, paras. 172 and 597.
158. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 170.
159. Note that drawing such a distinction can be exceedingly difficult in practice and that the propriety of drawing such a distinction in the first place has been criticised. Application of Humanitarian Law in Non-International Armed Conflicts: Remarks by W. Michael Reisman, 85 AM. SOC'Y INT'L L. PROC. 83, 85, 87, 88 (1991).
160. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 170.
161. See also Prosecutor v. Tadic, supra note 36, para. 72;
162. Prosecutor v. Musema, supra note 34, para. 247 ("… a non-international conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory");
163. ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at 1351.
164. See, e.g., Bothe et al., supra note 5, at p. 606 (noting that Additional Protocol II has a threshold of application "clearly above that of common Art. 3").
165. This approach is in line with the general position of the ICTY that an internal armed conflict exists where there is "protracted armed violence between governmental authorities and organised armed groups or between such groups within a State." Prosecutor v. Tadic, supra note 36, para. 70.
166. See also, e.g., Prosecutor v. Furundzija (Case No. IT-95-17/1-T), Judgment, 10 December 1998, para. 59;
167. Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment, 16 November 1998, para. 183;
168. Prosecutor v. Tadic (Case No. IT-94-1-T), Opinion and Judgment, 7 May 1997, paras. 561-568.
169. See ICRC COMMENTARY: GENEVA CONVENTIONS, supra note 72, at 36.
170. See also Kiwanuka, supra note 69, at p. 244 (arguing for a broad application of common article 3: "… where a government takes extraordinary measures, that objectively reveal the existence of a military situation, there is an 'armed conflict' within the meaning of common article 3").
171. See Prosecutor v. Bagilishema, supra note 34, para. 101;
172. Prosecutor v. Musema, supra note 34, paras. 283-284;
173. Prosecutor v. Rutaganda, supra note 34, paras. 102-103;
174. Prosecutor v. Kayishema and Ruzindana, supra note 34, paras. 176, 182-183;
175. Prosecutor v. Akayesu, supra note 33, paras. 635-636.
176. This is also the position taken by the ICTY Appeals Chamber: Prosecutor v. Tadic, supra note 36, para. 69.
177. See also ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at 1359-60;
178. Bothe et al., supra note 5, at p. 630.
179. Geneva Conventions, supra note 3, art. 3.
180. ICRC COMMENTARY: GENEVA CONVENTIONS, supra note 72, at p. 40 (emphasis added).
181. Additional Protocol II, supra note 4, art. 2(1).
182. ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at p. 1359.
183. See also Smith, supra note 2, at p. 66.
184. Additional Protocol II, supra note 4, art. 4(1).
185. See Prosecutor v. Akayesu, supra note 33, para. 629.
186. See also Green, supra note 14, at pp. 59, 231, 323, 325 ("In a non-international armed conflict civilians are protected by [common] article 3 … which … applies to civilians as well as those hors de combat").
187. Bothe et al., supra note 5, at p. 640;
188. Hans-Peter Gasser, Protection of Civilian Population, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 214 (Dieter Fleck, ed., 1995);
189. International Committee of the Red Cross, Memorandum on Compliance with International Humanitarian Law by Forces, "Operation Turquoise", Geneva, June 23, 1994, reprinted in Marco Sassoli and Antoine A. Bouvier, HOW DOES LAW PROTECT IN WAR?: CASES, DOCUMENTS AND TEACHING MATERIALS ON CONTEMPORARY PRACTICE IN INTERNATIONAL HUMANITARIAN LAW 1307, 1308 (1999).
190. Prosecutor v. Delalic et al. (Case No. IT-96-21-A), Judgment, 20 February 2001, para. 420 (emphasis in original).
191. Moreover, if there is "doubt as to a person's status, he is to be considered as a civilian". Green, supra note 14, at p. 234.
192. See Prosecutor v. Bagilishema, supra note 34, paras. 103-104;
193. Prosecutor v. Musema, supra note 34, para. 280;
194. Prosecutor v. Rutaganda, supra note 34, para. 101;
195. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 179;
196. Prosecutor v. Akayesu, supra note 33, para. 629.
197. See Prosecutor v. Bagilishema, supra note 34, para. 104;
198. Prosecutor v. Musema, supra note 34, para. 279;
199. Prosecutor v. Rutaganda, supra note 34, para. 100;
200. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 179;
201. Prosecutor v. Akayesu, supra note 33, para. 629.
202. This is also the test used by the International Tribunal for the former Yugoslavia. See Prosecutor v. Tadic (Case No. IT-94-1-T), Opinion and Judgment, 7 May 1997, para. 615.
203. The Tadic Trial Chamber noted, at para. 616: "It is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual's circumstances, that person was actively involved in hostilities at the relevant time." To take a direct part in hostilities means, for the purposes of these provisions, to engage in acts of war that strike at personnel or equipment of the enemy armed forces. See Prosecutor v. Bagilishema, supra note 34, para. 104;
204. Prosecutor v. Musema, supra note 34, para. 279;
205. Prosecutor v. Rutaganda, supra note 34, para. 100.
206. See also ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at p. 1453.
207. Prosecutor v. Akayesu (Case No. ICTR-96-4-A), Judgment, 1 June 2001, paras. 425-446.
208. See, e.g., Prosecutor v. Akayesu, supra note 33, para. 628 ("Two distinct issues arise with respect to personal jurisdiction over serious violations of common article 3 and Additional Protocol II - the class of victims and the class of perpetrators").
209. Prosecutor v. Akayesu, supra note 33, para. 630.
210. The Trial Chamber's holding was criticised for setting and applying a "standard for civilian liability [that] is unduly high, in that it excludes Akayesu, an elected official who held chief executive power in his community, who was a local representative of the national Government, and who gave some assistance to the Government's war effort". Diane Marie Amann, Case Note, Prosecutor v. Akayesu, 93 AM. J. INT'L L. 195, 199 (1999).
211. Prosecutor v. Kayishema and Ruzindana, supra note 34, paras. 175 and 176.
212. Like the Akayesu holding on this point, this ruling was criticised. See Kelly D. Askin, Judgments Rendered in 1999 by the International Criminal Tribunals for the former Yugoslavia and for Rwanda: Tadic; Aleksovski; Jelisic; Ruzindana and Kayishema; Serushago; Rutaganda, 6 ILSA J. INT'L and COMP. L. 485, 502, 504 (2000) ("The not guilty verdicts as to the common article 3 and Additional Protocol II counts were made based on determinations that the Prosecution did not prove that the Accused, both civilians, were suporting the Government efforts against the RPF (the standard seemingly erroneously adopted in Akayesu), and that therefore the Accused did not incur criminal liability for their crimes under article 4 of the Statute.")
213. Prosecutor v. Rutaganda, supra note 33.
214. Prosecutor v. Musema, supra note 34, paras. 264-266.
215. The ICTR Appeals Chamber observed that the issue of a link between a perpetrator and a party to the conflict had arisen only once in ICTY jurisprudence, in a Trial Chamber's judgment in the case of Prosecutor v. Kunarac et al. (Case No. IT-96-23-T and IT-96-23/1-T), Judgment, 22 February 2001, para. 407.
216. Prosecutor v. Akayesu, supra note 99, 1 June 2001, para. 439. The ICTY Trial Chamber said: "It would appear to the Trial Chamber that common article 3 may also require some relationship to exist between a perpetrator and a party to the conflict." The ICTR Appeals Chamber, however, observed "that this holding finds no support either in Statute or in case law."
217. Prosecutor v. Akayesu, supra note 99, para. 435.
218. See Geneva Conventions, supra note 3, art. 3.
219. See Additional Protocol II, supra note 4, art. 2(1).
220. The ICRC Commentary on Additional Protocol II simply says that the field of application ratione personae includes "those who must, within the meaning of the Protocol, conform to certain rules of conduct with respect to the adversary and the civilian population". ICRC COMMENTARY: ADDITIONAL PROTOCOL II, supra note 21, at 1359.
221. See Prosecutor v. Akayesu, supra note 99, para. 442;
222. Prosecutor v. Akayesu, supra note 33, paras. 603, 618, 630.
223. See also Antonio Cassese, The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts, 30 INT'L and COMP. L.Q. 416, 418-19 (1981) (The Protocol "has an almost exclusively humanitarian content; in other words, it is primarily designed to protect 'victims' of the armed conflict …. " (emphases in original)).
224. See Prosecutor v. Akayesu, supra note 99, para. 443.
225. Prosecutor v. Akayesu, supra note 99, paras. 444-445.
226. Specifically, the category of persons in question in the Trial Chamber's judgment consisted of members of the armed forces "under the military command of either of the belligerent parties, or to individuals who were legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts". See Prosecutor v. Akayesu, supra note 33, para. 631;
227. Prosecutor v. Akayesu, supra note 99, para. 444.
228. Prosecutor v. Akayesu, supra note 99, para. 444.
229. Prosecutor v. Bagilishema, supra note 34.
230. See Prosecutor v. Bagilishema, supra note 34, para. 105;
231. Prosecutor v. Musema, supra note 34, para. 259;
232. Prosecutor v. Rutaganda, supra note 34, para. 104;
233. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 185;
234. Prosecutor v. Akayesu, supra note 33, para. 643.
235. This is also the position taken by the International Tribunal for the former Yugoslavia. See, e.g., Prosecutors. Tadic, supra note 36, para. 70.
236. See Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 189.
237. See Prosecutor v. Bagilishema, supra note 34, para. 105 ("The 'nexus' requirement is met when the offence is closely related to the hostilities or committed in conjunction with the armed conflict.");
238. Prosecutor v. Musema, supra note 34, para. 260 ("[T]he alleged crimes … must be closely related to the hostilities or committed in conjunction with the armed conflict.");
239. Prosecutor v. Rutaganda, supra note 34, para. 104 ("[T]he offence must be closely related to the hostilities or committed in conjunction with them.");
240. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 186;
241. Prosecutor v. Akayesu, supra note 33, para. 643 ("[I]t has not been proved beyond reasonable doubt that the acts … were committed in conjunction with the armed conflict.") This is also the position taken by the International Tribunal for the former Yugoslavia.
242. See, e.g., Prosecutor v. Tadic, supra note 36 ("It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.")
243. See Prosecutor v. Musema, supra note 34, para. 974;
244. Prosecutor v. Rutaganda, supra note 34, para. 444;
245. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 623;
246. Prosecutor v. Akayesu, supra note 33, para. 643.
247. Prosecutor v. Akayesu, supra note 33, para. 643.
248. Prosecutor v. Akayesu, supra note 99, para. 444.
249. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 189.
250. See Prosecutor v. Akayesu, supra note 33, para. 643.
251. Prosecutor v. Tadic, supra note 36, para. 70.
252. See also, e.g., Prosecutor v. Tadic, supra note 97, para. 573.
253. See Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 622.
254. See also Prosecutor v. Bagilishema, supra note 34, para. 105 ("The Chamber will determine whether the alleged acts were committed against the victims because of the conflict at issue" (emphasis added)).
255. Prosecutor v. Rutaganda, supra note 34.
256. The Chamber's determination of the nexus issue in Rutaganda has been considered "unconvincing". See Askin, supra note 122, at p. 505.
257. Prosecutor v. Kayishema and Ruzindana, supra note 34, para, 188.
258. See Prosecutor v. Bagilishema, supra note 34, para. f02;
259. Prosecutor v. Musema, supra note 34, para. 285;
260. Prosecutor v. Rutaganda, supra note 34, para, 107.
261. Prosecutor v. Musema, supra note 34, para. 285.
262. See Prosecutor v. Bagilishema, supra note 34, para. 102;
263. Prosecutor v. Musema, supra note 34, para. 286;
264. Prosecutor v. Rutaganda, supra note 34, para, 106;
265. Prosecutor v. Kayishema and Ruzindana, supra note 34, para, 184;
266. Prosecutor v. Akayesu, supra note 33, para. 616.
267. This position is based on a decision of the Appeals Chamber of the International Tribunal for the former Yugoslavia where the Tribunal stated that "the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim". Prosecutor v. Tadic, supra note 36, para. 94.
268. See Prosecutor v. Musema, supra note 34, para. 288;
269. Prosecutor v. Rutaganda, supra note 34, para. 106 ("The fundamental guarantees included in article 4 of the Statute represent elementary considerations of humanity. Violations thereof would, by their very nature, be deemed serious.");
270. Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 184;
271. Prosecutor v. Akayesu, supra note 33, para. 616. For example, in Prosecutor v. Akayesu, supra note 33, para. 616, the Trial Chamber wrote: "The list of serious violations which is provided in article 4 of the Statute is taken from common article 3 - which contains fundamental prohibitions as a humanitarian minimum of protection for war victims - and article 4 of Additional Protocol II, which equally outlines "Fundamental Guarantees". The list in article 4 of the Statute thus comprises serious violations of the fundamental humanitarian guarantees which, as has been stated above, are recognised as part of international customary law" (emphasis in original). Similarly, the Chamber in Prosecutor v. Kayishema and Ruzindana, supra note 34, para. 184 stated: "The list of prohibited acts, which is provided in article 4 of the ICTR Statute, as well as in common article 3 and in article 4 of Protocol II, undeniably should be recognised as serious violations entailing individual criminal responsibility."
272. Oeter, supra note 5, at 216.
273. The Statute of the International Criminal Court came into force on 1 July 2002, in accordance with article 126 of the Statute, supra note 32. Article 8(2)(c) of the Statute gives the Court jurisdiction over serious violations of common article 3 and article 8(2)(e) gives the Court jurisdiction over "[o]ther serious violations of the laws and customs applicable in armed conflict not of an international character, within the established framework of international law …"