1 Prosecutor v. Milan Martić, Judgement, Case No. IT-95–11-A, A.Ch., 8 October 2008 (hereinafter Martić Appeal Judgement).

2 R. Cryer et al., An Introduction to International Criminal Law and Procedure (2007), 187–8; M. C. Bassiouni, International Criminal Law: Crimes (1999), I, 536–7.

3 Cryer et al., supra note 2, at 188; Bassiouni, supra note 2, at 537–40.

4 Cryer et al., supra note 2, at 188. See also Bassiouni, supra note 2, at 521.

5 Bassiouni, supra note 2, at 571.

6 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, August 1945, 59 Stat. 1544, 82 UNTS 279 (hereinafter Nuremberg Charter). The concept of crimes against humanity in the Nuremberg Charter was adopted shortly thereafter by the UN General Assembly, UNGA Res. 95(I), UN Doc. A/64/Add.1 (1946).

7 See Bassiouni, supra note 2, at 571; A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), I, at 354. See also K. Ambos, Internationales Strafrecht (2006), §7, para. 174 (arguing that, through the nexus requirement, the criticism of an incrimination of conduct ex post facto, otherwise forbidden in international criminal law, could be pre-empted).

8 Charter of the International Military Tribunal for the Far East, approved 26 April 1946, TIAS No. 1589 (hereinafter Tokyo Charter), at 11, Art. 5(c).

9 Cassese et al., supra note 7, at 356.

10 Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin, 31 January 1946 (hereinafter Control Council Law No. 10).

11 5 UN GAOR Supp/ (No. 12), UN Doc. A/1316 (1950), 11. It has been noted, however, that Control Council Law No. 10 was in the nature of domestic German legislation, and, as such, contrary to the Nuremberg Charter, the need to link the crimes to an international legal source (here, the laws of war) did not arise, Bassiouni, supra note 2, at 563–4, 572; United States v. Josef Altstoetter et al., ‘The Justice Case’, Judgment of 3–4 December 1947, Military Tribunal III, Law Reports of Trials of War Criminals, III (hereinafter Justice case), Separate Opinion of Judge Blair.

12 Draft Code of Offences against the Peace and Security of Mankind, UN GAOR, 9th Sess., supp. No. 9, UN Doc. A/2691 (1954), Art. 2; Draft Code of Offences against the Peace and Security of Mankind, Report of the International Law Commission on its Forty-Third Session, UN GAOR, 46th Sess., Supp. No. 10, UN Doc. A/46/10 (1991) (1991 ILC Draft Code), Art. 21; Draft Code of Offences against the Peace and Security of Mankind: Titles and Articles on the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission on its Forty-Eighth Session, UN GAOR, 51st Sess., UN Doc. A/CN.41.532 (1996), Art. 18.

13 See Cassese et al., supra note 7, at 356, citing the Canadian and French criminal codes.

14 Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968); International Convention on the Suppression and Punishment of the Crime of Apartheid of 30 November 1973, 1015 UNTS 243 (hereinafter Apartheid Convention); Inter-American Convention on Enforced Disappearance (1994); UN Declaration on Enforced Disappearance (1992).

15 E.g. Einsatzgruppen Case, in Trials of War Criminals, IV, at 49; Justice case, supra note 11, at 974.

16 Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, A.Ch., 2 October 1995 (hereinafter Tadić Jurisdiction Decision), para. 141.

17 Ibid., para. 141.

18 Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827 (1993), Ann. (hereinafter ICTY Statute).

19 Martić Appeal Judgement, supra note 1, para. 305, referencing Prosecutor v. Duško Tadić, Opinion and Judgement, Case No. IT-94–1, T.Ch. 7 May 1997 (hereinafter Tadić Trial Judgement), para. 626.

20 Statute of the International Criminal Tribunal for Rwanda, S/RES/955 (1994), Ann., Art. 3; Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Att., 16 January 2002, Art. 2; Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as amended 27 October 2004 (NS/RKM/1004/006), Art. 5; Reg. No. 2000/15 On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15, 6 June 2000, Section 5. See also Statute of the Iraqi Special Tribunal for Crimes against Humanity, Art. 12 (see also Elements of the Crimes, Section 3 (1)(b), available at www.law.case.edu/saddamtrial/documents/IST_Elements.pdf, last visited Feb. 14, 2009).

21 Rome Statute of the International Criminal Court, 37 ILM 1002, 2187 UNTS 90 (hereinafter Rome Statute).

22 Prosecutor v. Milan Martić, Judgement, Case No.IT-95–11-T, T.Ch., 12 June 2007 (hereinafter Martić Trial Judgement), para. 48. Art. 5 of the ICTY Statute is cited in text at notes 18–19, supra. For a more detailed analysis of the Martić Trial Judgement see Bostedt, F. and Dungel, J., ‘The International Criminal Tribunal for the former Yugoslavia in 2007: Key Developments in International Humanitarian and Criminal Law’, (2008) 7 (2)Chinese Journal of International Law 389, at 390–2CrossRefGoogle Scholar.

23 Martić Trial Judgement, supra note 22, para. 51, citing Prosecutor v. Tihomir Blaškić, Judgement, Case No. IT-95–14-A, A.Ch., 29 July 2004 (hereinafter Blaškić Appeal Judgement), para. 107.

24 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 UNTS 3 (hereinafter Additional Protocol I).

25 Martić Trial Judgement, supra note 22, para. 51, citing Blaškić Appeal Judgement, supra note 23, para. 110.

26 Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (hereinafter Geneva Convention III).

27 Art. 4 A (1), (2), (3) and (6), of Geneva Convention III provides:

1. A

   A Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

2. 1.

   1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

3. 2.

   2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

   1. (a)

      (a) That of being commanded by a person responsible for his subordinates;

   2. (b)

      (b) That of having a fixed distinctive sign recognizable at a distance;

   3. (c)

      (c) That of carrying arms openly;

   4. (d)

      (d) That of conducting their operations in accordance with the laws and customs of war.

4. 3.

   3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. . . .

5. 6.

   6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.’

Art. 43 of Additional Protocol I provides:

1. 1.

   1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. 2.

   2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. 3.

   3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

28 Martić Trial Judgement, supra note 22, para. 51.

29 Ibid., paras. 52–55. The relevant portions of the three appeal judgements are: Blaškić Appeal Judgement, supra note 23, para. 114; Prosecutor v. Dario Kordić and Mario Čerkez, Judgement, Case No. IT-95–14/2-A, A.Ch., 17 December 2004 (hereinafter Kordić and Čerkez Appeal Judgement), paras. 421–422; Prosecutor v. Stanislav Galić, Judgement, Case No. IT-98–29-A, A.Ch., 30 November 2006 (hereinafter Galić Appeal Judgement), fn. 437.

30 Martić Trial Judgement, supra note 22, para. 55.

31 Ibid., para. 56.

32 Ibid., paras. 51 and 55.

33 The Parties often referred to ‘international humanitarian law’ as meaning the law of armed conflict in a strict sense, excluding crimes against humanity. The Appeals Chamber adopted the same language for ease of reference: Martić Appeal Judgement, supra note 1, fn. 735. The present paper follows the ICTY Appeals Chamber's approach in this regard.

34 Cf. text at notes 18–19, supra.

35 Martić Appeal Judgement, supra note 1, paras. 274 and 275.

36 Ibid., para. 292.

37 Blaškić Appeal Judgement, supra note 23, para. 110.

38 Ibid., para. 113.

39 Ibid., para. 114; Martić Appeal Judgement, supra note 1, para. 292.

40 Ibid., para. 293; Kordić and Čerkez Appeal Judgement, supra note 29, para. 421. See also ibid., paras. 480, 570, and 571.

41 Martić Appeal Judgement, supra note 1, para. 294.

42 Ibid., para. 294, quoting Kordić and Čerkez Appeal Judgement, supra note 29, para. 97.

43 Galić Appeal Judgement, supra note 29, para. 144 and fn. 437.

44 Martić Appeal Judgement, supra note 1, para. 297.

45 Ibid., para. 297, referencing Prosecutor v. Duško Tadić, Judgement, Case No. IT-94–1-A, A.Ch., 15 July 1999 (hereinafter Tadić Appeal Judgement), paras. 282–283, 285 (quoting with approval the Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1949, [1950] ICJ Rep., at 8).

46 Martić Appeal Judgement, supra note 1, para. 297, referencing Oxford English Dictionary (2007), ‘civilian’: ‘One who does not professionally belong to the Army or the Navy; a non-military person’, and Dictionnaire de l'Académie Française (1991), ‘civil’: ‘Par opposition à Militaire’.

47 Martić Appeal Judgement, supra note 1, para. 299.

48 Ibid., para. 299.

49 Text at notes 18–19, supra.

50 Tadić Jurisdiction Decision, supra note 16, para. 141. See also text at note 17, supra.

51 Martić Appeal Judgement, supra note 1, fn. 806, referencing Prosecutor v. Dragoljub Kunarac et al., Judgement, Case No. IT-96–23 and IT-96–23/1-A, A.Ch., 12 June 2002 (hereinafter Kunarac et al. Appeal Judgement), para. 91; Blaškić Appeal Judgement, supra note 23, para. 106; Prosecutor v. Milorad Krnojelac, Judgement, Case No. IT-97–25-T, T.Ch., 15 March 2002 (hereinafter Krnojelac Trial Judgement), para. 54; Prosecutor v. Stanislav, Judgement and Opinion, Case No. IT-98–29-T, T.Ch., 5 December 2003 (hereinafter Galić Trial Judgement), para. 144.

52 Kunarac et al. Appeal Judgement, supra note 51, para. 91; Blaškić Appeal Judgement, supra note 23, para. 106.

53 Krnojelac Trial Judgement, supra note 51, para. 54; Galić Trial Judgement, supra note 51, para. 144.

54 C. Pillot et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) (hereinafter ICRC Commentary on Additional Protocols), paras. 1911–1913, cited in Martić Appeal Judgement, supra note 1, fn. 806.

55 UN War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948), 174.

56 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva of 8 June 1977, 1125 UNTS 609 (hereinafter Additional Protocol II).

57 Martić Appeal Judgement, supra note 1, para. 300.

58 Cf. text of Art. 50 of Additional Protocol I at note 27, supra.

59 Martić Appeal Judgement, supra note 1, para. 302.

60 See ibid., para. 302.

61 Ibid., para. 303.

62 Ibid., para. 305, referencing Kunarac et al. Appeal Judgement, supra note 51, paras. 90 and 91; Kordić and Čerkez Appeal Judgement, supra note 29, para. 95; Blaškić Appeal Judgement, supra note 23, para. 105. Rather, the chapeau only requires that the attack itself is primarily directed against a civilian population, as opposed to a limited and randomly selected number of individuals. Ibid.

63 See Martić Appeal Judgement, supra note 1, para. 307.

64 Ibid., para. 306, referencing Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Res. 808 (1993), UN Doc. S/25704, 3 May 1993, fn. 9; UN Doc. S/RES/827 (1993) (approving the Report of the Secretary-General); Final Report of the Commission of Experts Established Pursuant to the Security Council Resolution 780, SCOR, 49th Session, Ann., UN Doc. S/1994/674, paras. 77–80.

65 Martić Appeal Judgement, supra note 1, para. 307.

66 Ibid., para. 308, with references in fns. 821–6.

67 Ibid., paras. 309 and 311.

68 Ibid., para. 309, referencing inter alia Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, 78 UNTS 277; Apartheid Convention, supra note 14; Tadić Jurisdiction Decision, supra note 16, para. 140; 1991 ILC Draft Code, Art. 21.

69 United States v. Wilhelm von Leeb et al., ‘The High Command Case’, Judgment of 27 October 1948, Military Tribunal V, Law Reports of the Trials of War Criminals, XI, at 520, 596–9, 675, 679, 683. The Appeals Chamber also referenced United States v. Ernst Von Weizsaecker et al., ‘The Ministries Case’, Judgment of 11–13 April 1949, Military Tribunal IV, Law Reports of the Trials of War Criminals, XIV, at 541–6.

70 Supreme Court in the British Occupied Zone, OGHSt 1, 217–29; Supreme Court in the British Occupied Zone, OGHSt 2, 231–46; Supreme Court in the British Occupied Zone, OGHSt 1, 45–9.

71 Crim. 20 décembre 1985, Bull. n°407, Cour de cassation (chambre criminelle), M. Barbie; Crim. 27 novembre 1992, Bull. n°394, Cour de cassation (chambre criminelle), M. Touvier.

72 Martić Appeal Judgement, supra note 1, fn. 831. For an overview of the Barbie case see also Prosecutor v. Mile Mrkšić, Miroslav Radić, and Veselin Šljivančanin, Judgement, Case No. IT-95–13/1-T, T.Ch., 27 September 2007 (hereinafter Mrkšić et al. Trial Judgement), fn. 1686.

73 Martić Appeal Judgement, supra note 1, para. 310.

74 Justice case, supra note 11, at 973, 982 (emphasis by Martić Appeals Chamber).

75 Justice case, supra note 11, Law Reports of Trials of War Criminals, VI, at 79.

76 Martić Appeal Judgement, supra note 1, paras. 313 and 314.

77 Ibid., para. 313.

78 Text at note 21, supra.

79 Text at note 19, supra.

80 Art. 7(2)(a) of the Rome Statute corresponds, to an extent, to ICTY and ICTR case-law holding that the ‘attack’ can be described as a course of conduct involving the commission of acts of violence. See Prosecutor v. Dragoljub Kunarac et al., Judgement, Case No. IT-96–23-T & IT-96–23/1-T, T.Ch., 22 February 2001 (hereinafter Kunarac et al. Trial Judgement), para. 415, endorsed in Kunarac et al. Appeal Judgement, supra note 51, para. 89, reiterated in Kordić and Čerkez Appeal Judgement, supra note 29, para. 666, followed in Prosecutor v. Fatmir Limaj et al., Judgement, Case No. IT-03–66-T, T.Ch., 30 November 2005 (hereinafter Limaj et al. Trial Judgement), paras. 182, 194; Prosecutor v. Vidoje Blagojević and Dragn Jokić, Judgement, Case No. IT-02–60-T, T.Ch., 17 January 2005, para. 543; Prosecutor v. Radoslav Brđanin, Judgement, Case No. IT-99–36-T, T.Ch., 1 September 2004, para. 131; Galić Trial Judgement, supra note 51, para. 141; Prosecutor v. Milomir Stakić, Judgement, Case No. IT-97–24-T, T.Ch., 31 July 2003, para. 623; Prosecutor v. Mladen Naletilić and Vinko Martinović, Judgement, Case No. IT-98–34-T, T.Ch., 31 March 2003 (hereinafter Naletilić and Martinović Trial Judgement), para. 233; Prosecutor v. Mitar Vasiljević, Judgement, Case No. IT-98–32-T, T.Ch., 29 November 2002, para. 29. The ICTR Appeals Chamber has adopted the exact same approach as Art. 7(2)(a) of the Rome Statute, Nahimana et al. v. Prosecutor, Judgement, Case No. ICTR-99–52-A, A.Ch., 28 November 2007 (hereinafter Nahimana et al. Appeal Judgement), para. 918.

81 The two exceptions are the proceedings against Bosco Ntaganda and Thomas Lubanga, the charges against whom are confined to war crimes. See Le Procureur c. Bosco Ntaganda, Mandat d'arrêt, Case No. ICC-01/04–02/06, PT.Ch., 22 August 2006 (under seal, but reclassified as public pursuant to Dec. ICC-01/04–02/06–18 dated 28 April 2008); Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, Case No. ICC-01/04–01/06, PT.Ch., 29 January 2007 (hereinafter Lubanga Decision on Confirmation of Charges).

82 For the situation in Uganda, see Case No. ICC-02/04: Warrant of arrest for Joseph Kony Issued on 8 July 2005 as amended on 27 September 2005; Warrant of Arrest for Okot Odhiambo, Warrant of Arrest for Dominic Ongwen and Warrant of Arrest for Vincent Otti, 8 July 2005; situation in the Central African Republic: see Le Procureur c. Jean-Pierre Bemba Gombo, Mandat d'arrêt à l'encontre de Jean-Pierre Bemba Gombo remplaçant le mandat d'arrêt décerné le 23 mai 2008, Case No. ICC-01/05–01/08, PT.Ch., 10 June 2008; Situation in Darfur, Sudan: see Prosecutor v. Ahmad Harun and Ali Kushayb, Warrant of Arrest for Ahmad Harun (hereinafter Harun Arrest Warrant), and Warrant of Arrest for Ali Kushayb, Case No. ICC-02/05–01/07, PT.Ch., 27 April 2007; situation in the Democratic Republic of the Congo: see Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on Confirmation of Charges, Case No. ICC-01/04–01/07, PT.Ch., 30 September 2008 (hereinafter Katanga and Chui Decision on Confirmation of Charges), paras. 389 ff.

83 Although not binding, the jurisprudence of the ICTY has so far been extensively used by the ICC in interpreting the material elements of the crimes under the Rome Statute inasmuch as they coincide with the corresponding elements under the ICTY Statute. See, e.g., Lubanga Decision on Confirmation of Charges, supra note 81, paras. 208–211 (adopting the ‘overall control’ test set out by the ICTY's Tadić Appeal Judgement in order to determine whether an armed conflict is international in situations where a state does not intervene directly on the territory of another state). See also ibid., para. 233; Katanga and Chui Decision on Confirmation of Charges, supra note 82, paras. 268, 395, 448–450. See further Rome Statute, Art. 21(1)(a).

84 Rome Statute, Art. 9; Elements of Crimes, ICC-ASP/1/3 (hereinafter Elements of Crimes).

85 It might be worth noting in this regard that Arts. 8(b)(i) and 8(e)(i) appear to distinguish between ‘civilians’ and persons ‘not taking direct part in hostilities’. This would imply that, for purposes of war crimes, the term ‘civilian’ is not to be defined under Common Art. 3 or Art. 4 of Additional Protocol II.

86 Art. 7(2)(a) reads in relevant parts, ‘“Attack against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population’ (emphasis added).

87 This is apparently how the ICTR Appeals Chamber understood Art. 7(2)(a) of the Rome Statute. Nahimana et al. Appeal Judgement, supra note 80, para. 918.

88 Elements of Crimes, Art. 7 Crimes against Humanity, at 5–13. The exception is forced pregnancy, where the victims is referred to simply as ‘one or more women’. Ibid., at 10.

89 E.g. Prosecutor v. Jean-Paul Akayesu, Judgement, Case No. ICTR-96–4-A, A.Ch., 1 June 2001 (hereinafter Akayesu Appeal Judgement), para. 468.

90 Katanga and Chui Decision on Confirmation of Charges, supra note 82, para. 399, quoting R. S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Evidence (2001), at 78.

91 H. von Hebel and D. Robinson, ‘Crimes within the Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), 79, at 97, fn. 54. See also L. N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium, (2002), 153, fn. 111.

92 Von Hebel and Robinson, supra note 91, at 97, fn. 54.

93 Ibid.

94 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Art. 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecution against Jean-Pierre Bemba Gombo, Case No. ICC-01/05–01/08, PT.Ch., 15 June 2009 (hereinafter Bemba Decision on Confirmation of Charges).

95 Katanga and Chui Decision on Confirmation of Charges, supra note 82, para. 399.

96 Ibid., para. 399, quoting Tadić Trial Judgement, supra note 19, para. 635.

97 Tadić Trial Judgement, supra note 19, para. 643.

98 Which is the test at the confirmation of the charges stage. Rome Statute, Art. 61(7).

99 Katanga and Chui Decision on Confirmation of Charges, supra note 82, paras. 403 and 405.

100 Ibid., para. 421.

101 Ibid., para. 422 (emphasis added).

102 Ibid., paras. 424–427 (although the prosecution did not claim that all the murder victims were ‘civilians’; ibid., para. 420).

103 See ibid., paras. 428–436 (even though the prosecution alleged that the victims were ‘civilians’, ibid., para. 428).

104 See ibid., paras. 437–444 (again, the prosecution alleged that the victims were ‘civilians’, ibid., para. 437).

105 See ibid., paras. 445–455 (for this underlying offence the prosecution did not expressly allege that all the victims were civilians, ibid., para. 445).

106 Ibid., paras. 456–475. However, this charge was not confirmed for other reasons. Ibid., paras. 458–465.

107 Bemba Decision on Confirmation of Charges, supra note 94, para. 78.

108 Ibid., para. 78.

109 Ibid., paras. 96–99.

110 Ibid., paras. 140 (finding that the victims of murder were ‘civilians’), 165 (failing to specify whether the victims of rape were civilians). The underlying acts of torture were either subsumed by the charges on rape (ibid., para. 209) or insufficiently noticed (ibid., para. 205).

111 See ibid., paras. 73–89.

112 See ibid., paras. 131–134 (murder), 161–162 (rape), 191–193 (torture).

113 In addition to the pleadings referenced in notes 102–105 supra in the Katanga and Chui case, compare Harun Arrest Warrant, supra note 82, Counts 2, 4, 9, 11, 13, 17, 20, 34, 35, 40, 48, 51 (alleging that the victims were ‘civilians’) with ibid., Counts 9 and 20 (charging forcible transfer of ‘primarily Fur civilians’), 22, 24 and 28 (not specifying whether the alleged victims were civilians).

114 See Prosecutor v. Mrkšić et al., Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-95–13-R61, PT.Ch., 3 April 1996 (hereinafter Mrkšić et al. Rule 61 Decision), para. 29; Tadić Trial Judgement, supra note 19, para. 643. See also Prosecutor v. Kupreškić et al., Case No. IT-95–16-T, 14 January 2000, Judgement, para. 549.

115 Prosecutor v. Momčilo Krajišnik, Judgement, Case No. IT-00–39-T, T.Ch., 27 September 2006, para. 706(c); Limaj et al. Trial Judgement, supra note 80, para. 186; Naletilić and Martinović Trial Judgement, supra note 80, para. 235; Prosecutor v. Prosecutor v. Krnojelac, Judgement, Case No IT-97–25-T, T.Ch., 15 March 2002, para. 56.

116 Blaškić Appeal Judgement, supra note 23, para. 113; Kordić and Čerkez Appeal Judgement, supra note 29, para. 97; Galić Appeal Judgement, supra note 29, para. 144 and fn. 437.

117 Mrkšić et al. Trial Judgement, supra note 72, paras. 473–481. For a detailed analysis of the Mrkšić et al. Trial Judgement, see Bostedt and Dungel, supra note 22, at 392–7.

118 Mrkšić et al. Trial Judgement, supra note 72, para. 461.

119 See Mrkšić et al. Rule 61 Decision, supra note 114, para. 29.

120 Mrkšić et al. Trial Judgement, supra note 72, paras. 462–463.

121 Prosecutor v. Mile Mrkšić v. Veselin Šljivančanin, Judgement, Case No. IT-95–13/1-A, A.Ch., 5 May 2009 (hereinafter Mrkšić and Šljivančanin Appeal Judgement), para. 35.

122 Ibid., para. 33.

123 Ibid., para. 30.

124 Prosecutor v. Milan Milutinović et al., Judgement (Vol. I), Case No. IT-05–87-T, T.Ch., 26 February 2009, para. 146.

125 Ibid., para. 147.

126 Ibid.

127 See Prosecutor v. Zlatko Aleksovski, Judgement, Case No. IT-95–14/1-A, A.Ch., 24 March 2000, para. 113; Prosecutor v. Naser Orić, Judgement, Case No. IT-03–68-A, A.Ch., 3 July 2008, para. 165.

128 Prosecutor v. Théoneste Bagosora et al., Judgement and Sentence, Case No. ICTR-98–41-T, T.Ch., 18 December 2008, fn. 2353.

129 Prosecutor v. Jean-Paul Akayesu, Judgement, Case No. ICTR-96–4-T, T.Ch., 2 September 1998 (hereinafter Akayesu Trial Judgement), para. 582, fn. 146; Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Judgement, Case No. ICTR-96–03-T, T.Ch., 6 December 1999, para. 71; Prosecutor v. Alfred Musema, Judgement, Case No. ICTR-96–13-T, T.Ch., 27 January 2000, para. 207; Prosecutor v. Athanase Seromba, Judgement, Case No. ICTR-2001–66-I, T.Ch., 13 December 2006, para. 358. See also Prosecutor v. Clement Kayishema and Obed Ruzindana, Judgement, Case No. ICTR-95–04-T, T.Ch., 21 May 1999, para. 127 (though the status of the victims as civilians was not in dispute, ibid., para. 129).

130 See Akayesu Appeal Judgement, supra note 89, para. 464.

131 Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgement, Case No. SCSL-04–16-T, T.Ch., 20 June 2007, para. 219.

132 Prosecutor v. Moinana Fofana and Allieu Kondewa, Judgement, Case No. SCSL-04–14-T, T.Ch., 2 August 2007, para. 116, referencing Blaškić Appeal Judgement, supra note 23, paras. 110–113.

133 See Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Judgment, Case No. SCSL-04–16-A, A.Ch., 22 February 2008.

134 Prosecutor v. Moinana Fofana and Allieu Kondewa, Judgment, Case No. SCSL-04–14-A, A.Ch., 28 May 2008, para. 259.

135 Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Judgement, Case No. SCSL-04–15-T, T.Ch., 2 March 2009, para. 82.

136 Ibid.

137 Case No. 001/18–07-2007-ECCC/OCIJ (PTC 02), Public Decision on Appeal against Closing Order indicting Kaing Guek Eav alias ‘Duch’, 5 December 2008, para. 59.

138 Ibid., paras. 67 (torture), 80 (murder).

139 See further Al-Dujail, Case No. 1/9 First/2005, Iraqi High Tribunal, Translation Part 2, at 8 (referring to victims of the crime against humanity of murder simply as ‘persons’).

140 Which was basically the defence's position in Martić; Martić Appeal Judgement, supra note 1, paras. 288, 303.

141 Text at notes 65–7, supra.

142 Text at notes 91–2, supra.

143 Which essentially reflects the prosecution's position in Martić. Martić Appeal Judgement, supra note 1, para. 278.

144 Kunarac et al. Trial Judgement, supra note 80, para. 429, endorsed in Kunarac et al. Appeal Judgement, supra note 51, para. 94, reiterated in Kordić and Čerkez Appeal Judgement, supra note 29, para. 666.

145 Text at notes 20–1, 93, 138–9.

146 See also Mrkšić et al. Trial Judgement, supra note 72, para. 458.

147 Rome Statute, Arts. 7(1)(d) and 7(2)(d); ICTY Statute, Art. 5(d).

148 Rome Statute, Art. 7(1)(e); ICTY Statute, Art. 5(e). Similarly, although not listed as an underlying act in Art. 7 of the Rome Statute, the conditions under which forced labour (ICTY Statute, Art. 5(h)) is permitted differs depending on whether the victim is a civilian or a prisoner of war. Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (hereinafter Geneva Convention IV), Art. 51; Geneva Convention III, Section III.

149 By contrast, international humanitarian law generally prohibits both deportation and imprisonment of civilians; see Geneva Convention IV, Arts. 49 and 70.

150 Kunarac et al. Appeal Judgement, supra note 51, para. 91; Blaškić Appeal Judgement, supra note 23, para. 106; Krnojelac Trial Judgement, supra note 51, para. 54; Galić Trial Judgement, supra note 51, para. 144.

151 See Martić Appeal Judgement, supra note 1, para. 302 (holding that that definition ‘reflects the definition of civilian for purposes of applying Article 5 of [the ICTY] Statute’).

152 See ibid., para. 306.

153 Ibid., para. 292; Blaškić Appeal Judgement, supra note 23, para. 114.

154 Common Art. 3; see Tadić Trial Judgement, supra note 19, para. 616.

155 See Blaškić Appeal Judgement, supra note 23, para. 111.

156 Common Art. 3 has been quoted in text at note 143, supra.

157 For a definition of that term see N. Melzer, Interpretive Guidelines on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross, (2009) (hereinafter ICRC Guidelines), 46.

158 It is noted in this respect that the Elements of Crimes, Art. 8(2)(c) ff., which mirrors Art. 43(2) of Additional Protocol I, envisages that certain persons do not qualify either as civilians or persons hors de combat, such as medical or religious military personnel.

159 Martić Appeal Judgement, supra note 1, para. 308.

160 Ibid., para. 309.

161 Ibid., para. 306.

162 See Akayesu Trial Judgement, supra note 129, para. 629 (holding that the term ‘active’ in Common Art. 3 is synonymous with the term ‘direct’ in Art. 4 of Additional Protocol II in this respect). See also ICRC Guidelines, supra note 157, at 43.

163 See, e.g., Prosecutor v. Duško Tadić, Case No. IT-94–1-A and IT-94–1-A bis, Judgement in Sentencing Appeals, 26 January 2000, Separate Opinion of Judge Cassese, para. 4(ii).

164 See, e.g., ICRC Guidelines, supra note 157, at 46 ff.; Third Report on the Human Rights Situation in Colombia, Inter-American Commission on Human Rights, OEA/Ser.L/V/II.102 Doc. 9 rev. 1, 26 February 1999, para. 53 (stating that ‘direct participation’ is understood to mean ‘acts which by their nature or purpose, are intended to cause actual harm to the enemy personnel and material’. See also ICRC Commentary on Additional Protocols, supra note 54, Additional Protocol I, Art. 43(2), para. 1679 (‘Direct participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and place where the activity takes place.’)

165 See Mrkšić et al. Trial Judgement, supra note 72, paras. 472–481. The question why, in these situations, the prosecution goes through the seeming trouble of charging certain acts as crimes against humanity as opposed to war crimes is not dealt with in this paper. Suffice it to note that a number of reasons, ranging from sufficiency of evidence to broader notions of comprehensive justice, may weigh in the choice between different prosecutorial strategies. See also Martić Appeal Judgement, supra note 1, para. 312, citing Tadić Appeal Judgement, supra note 45, para. 286 (‘those war crimes which, in addition to targeting civilians as victims, present special features such as the fact of being part of a widespread or systematic practice, must be classified as crimes against humanity and deserve to be punished accordingly’).

166 Blaškić Appeal Judgement, supra note 23, para. 107. The Appeals Chamber's statement in Mrkšić that this holding in Blaškić cannot be understood as implying that the underlying acts of crimes against humanity ‘can only be committed against civilians’ does not detract from the support the Blaškić holding lends to the proposition that such acts cannot be deemed to have occurred where none of the victims was a civilian. Mrkšić and Šljivančanin Appeal Judgement, supra note 121, para. 28 (emphasis added).

167 Indeed, such inconsistency does not exist between the chapeau and the underlying offences of war crimes, both of which cover ‘protected persons’ or ‘protected property’; see the Rome Statute and Elements of Crimes, Art. 8(2)(a), at 14 ff. Admittedly, however, war crimes do not have the heterogeneous pedigree of crimes against humanity.

168 Unless the chapeau consists of purely jurisdictional prerequisites which do not form part of the elements of the crime, but that is not the case for crimes against humanity. See Prosecutor v. Mladen Naletilić and Vinko Martinović, Judgement, Case No. IT-98–34-A, A.Ch., 3 May 2006, paras. 116 and 118. The term ‘jurisdictional prerequisite’ is here understood to mean requirements related to a court's temporal, geographical or personal jurisdiction, as opposed to its subject-matter jurisdiction, which latter consists of the statutory crimes and their substantive elements. If the term were employed to encompass also conditions of subject-matter jurisdiction, then it would lose its distinguishing purpose, as all substantive elements of all crimes would be ‘jurisdictional’ in the same sense as the temporal, geographical, and personal conditions for a court's exercise of jurisdiction are. It is noted that the Appeals Chamber in Mrkšić consistently spoke of the chapeau as a ‘jurisdictional element’, but it did not elaborate on the meaning of the term, in particular whether it would imply that the chapeau does not form part of the substantive elements of crimes against humanity, and, if so, why and on what legal basis such a novel and radical approach was justified. See Mrkšić and Šljivančanin Appeal Judgement, supra note 121, paras. 25, 26, 28, 30, 37, 43. In any event, given that it is the chapeau which changes the character of offences such that they are elevated to crimes against humanity, there can be no doubt that it forms part of the substantive elements of crimes against humanity.

169 Text at note 93, supra.

170 Art. 82(1)(d) of the Rome Statute and Rule 155 of the Rules of Procedure and Evidence, ICC-ASP/1/3 (hereinafter ICC RPE) allow for an immediate resolution by the Appeals Chamber of appeals from decisions that involve issues which would significantly affect the outcome of the trial and the immediate resolution of which by the Appeals Chamber may materially advance the proceedings.

171 See Rome Statute, Art. 83(2)(b).

172 Arts. 15(3), 19, 53(3), and 61 of the Rome Statute, and Rule 93 of the ICC RPE allow for different forms of victims’ participation at various stages of the proceedings. Under Art. 75 and Rules 94–99 of the ICC RPE, victims can seek reparations. Arguably, the notion of ‘victim’ in the context of participation in proceedings and reparations is somewhat broader than in relation to the objective elements of a specific crime; see Rule 85 of the ICC RPE and Report of the Working Group on Procedural Matters, UN Doc. A/CONF.183/C.1/WGPM/L.2/Add.7, at 5 (defining ‘victim’ broadly). See also C. Stahn et al., ‘Participation of Victims in Pre-trial Proceedings of the ICC’, 2006 4 Journal of International Criminal Justice 219, at 221; M. Henzelin et al., ‘Reparations to Victims before the International Criminal Court: Lessons from International Mass Claims Processes’, 2006 17 Criminal Law Forum 317, at 323.