Internal Armed Conflict having an International Character An analysis of Prosecutor v Tadic.

. Submitted by Priyanka Chandrashekar, Deepti Sherawat and Ajay Kumar (The Authors)

Contents
Introduction ............................................................................................................................................. 1 Methodology ........................................................................................................................................... 3 Internal Armed Conflict having an International Character ................................................................... 4 Analysis of Tadic .................................................................................................................................... 7 Conclusions ............................................................................................................................................. 9 Bibliography ......................................................................................................................................... 10

"Courts try cases, but cases also try courts." -Justice Robert Jackson1 The law condemns and punishes only actions within certain definite and narrow limits; it thereby justifies, in a way, all similar actions that lie outside those limits. ~Leo Tolstoy, What I Believe

Introduction The law of Armed Conflict is broad in scope but specific in application. The International Criminal Court was established in the year 2002 by way of The Rome Statute of the
1

Quoted in Taylor, Telford. The anatomy of the Nuremberg trials: A Personal Memoir. Boston: Back Bay

Books, 1992 45 (1992)

International Criminal Court2 reaching its minimum number of ratifications and the treaty becoming effective. The Rome Statute of the International Criminal Court provides for the prosecution of crimes which constitute a Grave Breach of the Geneva Conventions of 1949. The Geneva Conventions of 19493 only provide for prosecution of crimes against protected persons. These protected persons are defined as persons protected in the time of an international armed conflict. Additional Protocol II of 1977 though does offer some limited protection to persons in internal armed conflict, the full power and scope of the Geneva Conventions of 1949 can only be felt in the case of an international armed conflict as such. 4 The authoritative ICRC commentary on the Geneva Conventions of 1949 does little to define and help further understand the nature of the term international armed conflict. Jean Pictet in the authoritative commentary states that There should be a de facto relationship between the resistance organisation or militia or volunteer corps and the party which is in a state of warbut the existence of this relationship is sufficient. It may find expression merely by tacit agreement, if the operations

UNDCPEICC A/CONF.183/9 (Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12

August 1949, art. 5, 75 U.N.T.S. 970 (hereinafter Geneva Convention I); Convention relative to the Treatment of Prisoners of War, 12 August 1949, art. 5, 75 U.N.T.S. 972 (hereinafter Geneva Convention III); see also Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, art. 6, 75 U.N.T.S. 973 (hereinafter Geneva Convention IV).)
4

Pictet, Jean (1975). Humanitarian law and the protection of war victims. Leyden: Sijthoff Also See Christopher

Greenwood in: Fleck, Dieter, ed. (2008). The Handbook of Humanitarian Law in Armed Conflicts. Oxford University Press, USA.

are such as to indicate clearly for which side the resistance organisation or militia or volunteer corps is fighting.5 This definition in the commentary to the conventions does little to clear the ambiguity with regards to what actually constitutes an International Armed Conflict for the purposes of the Geneva Conventions, so it is essential to pull that definition out of the general body of International Humanitarian Law which is available to us. The case of Prosecutor v. Tadic6 at the International Criminal Tribunal for the former Yugoslavia is a landmark judgment concerning the scope and nature of the term International Armed Conflict and its relationship with the term Non-International Armed Conflict.7 In that case the Tribunal created a new term with regards to armed conflicts the term being Internal Armed Conflict having an International Character. An examination of this definition and its nature and scope will be discussed below.

Methodology The judgment in the matter of Prosecutor v Tadic has been analysed in order to answer the following question Under what circumstances will an internal armed conflict become and international Armed Conflict having an international character.

Jean Pictet (ed.), Commentary: III Geneva Convention Relative to the Treatment of Prisoners of War,

International Committee of the Red Cross, Geneva, 1960, First reprint, Geneva, 1994, p. 57
6

ICTY Case No.: IT-94-1-A Date: 15 July 1999 Appeals Chamber Judgment Prosecutor v. Tadic (Judgement). Case No. IT-94-a-A. 38 ILM 1518 (1999) Author(s): Marco Sassoli and

Laura M. Olson. The American Journal of International Law, Vol. 94, No. 3 (Jul., 2000), pp. 571-578

Internal Armed Conflict having an International Character In the Interlocutory Appeal on the Jurisdiction of the Tribunal the Appeals chamber held that an Armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.8 The Tribunal discussed at Length the nature of what would constitute an International Armed Conflict the court begins with an analysis of the ICJ Judgement in the case of Nicaragua v. The United States of America9 in which the world court propounded what is now commonly known as the effective control test the court stated that in order for the effective control test to hold good there must be Effective control of the military or paramilitary operations in the course of which the alleged violations of international human rights and humanitarian law were committed10

Prosecutor v. Tadic: IT-94-1-A , Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction at

Para 70
9

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),

Jurisdiction and Admissibility, 1984 ICJ REP. 392

10

Ibid, At Para 118

In the case of Prosecutor v. Rajic11 it had been discussed that the Nicaragua judgement applied only so far as the issue of State Responsibility was concerned. In the Nicaragua12 judgement the International Court of Justice laid down that in order for the conduct of military groups to be attributable to a State, the following tests are to be satisfied: (i) (ii) The State should have been in effective control of the military group, and The control should have exercised control with respect to the specific operation in the course of which breaches may have been committed.13 In the case of Prosecutor v. Tadic14, the Appeals Chamber of the ICTY held that an internal armed conflict would become an armed conflict of an international character if some of the participants in the armed conflict act on behalf of a foreign state.15 The Appeals Chamber of the ICTY in the Tadic16 case took a different view from the test laid down in Nicaragua stating that the control of a State over the military forces must be of an overall character comprising of more than a provision of financial assistance, military equipment or training.17 This control may be deemed to exist under International Law when a State has a role in organising, coordinating or planning the military actions of the military

11

Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, The Prosecutor v.

Ivica Raji, Case No.: IT-95-12-R61, Trial Chamber II, 13 September 1996, para. 25.
12

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),

Jurisdiction and Admissibility, 1984 ICJ REP. 392

13

Ibid at 115 Prosecutor v. Tadic, Appeals Chamber Judgment, IT-94-1-A, 15th July 1999. Ibid at 84 Ibid at 137 Ibid at 137

14

15

16

17

group in addition to providing the assistance stated above.18 The Appeals Chamber stating that there existed a third test under International Law, went ahead to state that this test is the assimilation of individuals to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions).19 The Appeals Chamber relied on two cases which formed the basis for the reasoning. One was the case of Joshep Kramer et al.20 where along with German camp officials, Polish internees who had been elevated to the position of camp administrators were inter alia accused and held liable for the murder of their fellow inmates in the camp. The reasoning of the court was that by acting as de facto organs of the S.S., and by helping in the running of the camp, the Polish State officials could be assimilated as being a part of the German camp machinery. Another case referred to by the Appeals Chamber in its reasoning was the Menton21 case heard before the Dutch Court of Cassation where a Dutch National who was not formally a part of the German Armed Forces had committed war crimes and crimes against humanity on behalf of the German Special forces. The Dutch Court held that the accused had been acting as a member of the German Armed Forces and hence was subsequently convicted of those war crimes.

18

Ibid at 137 Prosecutor v. Tadic, Appeals Chamber Judgment, IT-94-1-A, 15th July 1999 at 140 Trial of Joseph Kramer and 44 Others, British Military Court, Luneberg, 17th September-17th November,

19

20

1945, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Published for the United Nations War Crimes Commission by His Majestys Stationary Office, London 1947 (UNWCC), vol. II, p. 1.
21

Public Prosecutor v. Menton, 75 International Law Reports 1987, pp. 331 ff

Analysis of Tadic The Tadic judgment laid out two important aspects of International Criminal Law. They shall be discussed below. One: The test to judge international state responsibility cannot be the same as judging the notion of individual international criminal responsibility. Two: Conflicts which are prima-facie internal in nature may take on an international character if certain criteria are satisfied. Discussing notion one, the test for State Responsibility for Internationally Wrongful Acts is a distinct assertion from determining an individuals responsibility under International Humanitarian Law. This was clearly laid out in the opinion which stated that In sum, the Appeals Chamber holds the view that international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. The extent of the requisite State control varies. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question; alternatively, it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue. By contrast, control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is

by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.22 Thus the court in this case clearly went on to state that by the behaviour of the forces and their respect for a military structure it can be clearly evidenced that there would indeed be personal criminal responsibility if not actual State Responsibility for the crimes committed.23 Discussing Notion two discussed in the Tadic judgment which is that Conflicts which are prima-facie internal in nature may take on an international character if certain criteria are satisfied. From a holistic and comprehensive analysis of the Tadic judgment the following test is proposed. This is a two pronged test. 1. In an Internal Armed Conflict was there an existence of overall control but not limited to specific control by another state in relation to one of the parties to the Armed Conflict?

22

Prosecutor v. Tadic, Appeals Chamber Judgment, IT-94-1-A, 15th July 1999 at 137 Moir, Lindsay. The law of internal armed conflict. Cambridge, UK New York: Cambridge University Press,

23

2002

2. Was a party to the conflict acting under the belief that such acts were being committed on behalf of another state?24 Thus upon a successful application of this test, the conflict ceases to be an internal armed conflict and becomes an international armed conflict.

Conclusions As evidenced by the tests determined to be laid out by the tribunal it can be ascertained that when a third state or state-like entity is in overall control of a party to an internal armed conflict the conflict would indeed gain an international character. Thus the conclusions from Tadic are that an internal conflict can indeed take on the character of an international armed conflict and thus invoke the full power of the Geneva Conventions. Thus the research question has been sufficiently answered. The research determines the individual criminal responsibility as well as the nature of the Armed Conflict. An interesting situation would be in the case of the Intervention in Libya. Would the armed support provided by NATO to the Libyan Rebels indeed turn the rebellion in Libya into an international conflict? This situation if and when a test case in this regard is brought before the ICC should indeed settle the matter of law and the ambiguity still left by the Tadic Judgment. The Tadic Judgment though a rather long one leaves a lot of scope for ambiguity in its interpretation in this regard. Further the actual precedential value of the Tadic judgment is yet to be tested by a competent court (In this case the International Criminal Court at the Hague). Though the Tadic judgment in this regard was relied upon by the Tribunal in order to secure the convictions it did secure the
24

This is a very important element as it deals with the Mens Rea element of the Crimes under International Law.

A failure of this test would render the entire assertion invalid as Mens Rea is an integral element of International Criminal law

real application of the Tadic test would certainly be only established after it has been read and interpreted by a body other than the Special Tribunals. This being said the scope of International Criminal Law is forever an evolving one. The position of law today may not be the position of law tomorrow. But the Tadic judgment does provide a useful weapon when it comes to the prosecution of persons having committed grave crimes in the course of a civil war or an internal armed conflict and this perhaps would indeed be its lasting legacy. With one stroke the entire body of International Humanitarian Law was applied to civil wars allowing numerous prosecutions of some of the worst of humanity. In conclusion it is essential to note this that the Tadic Appeals Judgments validity and how much good it did can only be determined over the course of history and it is much beyond the scope of academic research in order to determine its true worth.

Bibliography Books 1. Taylor, Telford. The anatomy of the Nuremberg trials: A Personal Memoir. Boston: Back Bay Books, 1992 45 (1992) 2. Pictet, Jean (1975). Humanitarian law and the protection of war victims. Leyden: Sijthoff Also See Christopher Greenwood in: Fleck, Dieter, ed. (2008). The Handbook of Humanitarian Law in Armed Conflicts. Oxford University Press, USA. 3. Jean Pictet (ed.), Commentary: III Geneva Convention Relative to the Treatment of Prisoners of War, International Committee of the Red Cross, Geneva, 1960, First reprint, Geneva, 1994, p. 57

4. Prosecutor v. Tadic (Judgement). Case No. IT-94-a-A. 38 ILM 1518 (1999) Author(s): Marco Sassoli and Laura M. Olson. The American Journal of International Law, Vol. 94, No. 3 (Jul., 2000), pp. 571-578 5. Moir, Lindsay. The law of internal armed conflict. Cambridge, UK New York: Cambridge University Press, 2002

Statues 1. Rome Statue of the International Criminal Court UNDCPEICC A/CONF.183/9 2. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, art. 5, 75 U.N.T.S. 970 3. Convention relative to the Treatment of Prisoners of War, 12 August 1949, art. 5, 75 U.N.T.S. 972 4. Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, art. 6, 75 U.N.T.S. 973 Cases 1. Prosecutor v Tadic : Chamber Judgment 2. Prosecutor v. Tadic: IT-94-1-A , Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 3. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 ICTY Case No.: IT-94-1-A Date: 15 July 1999 Appeals

4. Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, The Prosecutor v. Ivica Raji, Case No.: IT-95-12-R61, Trial Chamber II, 13 September 1996 5. Trial of Joseph Kramer and 44 Others, British Military Court, Luneberg, 17th September-17th November, 1945, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Published for the United Nations War Crimes Commission by His Majestys Stationary Office, London 1947 (UNWCC), vol. II, p. 1. 6. Public Prosecutor v. Menton, 75 International Law Reports 1987, pp. 331 fff

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