1. Brief to support the Motion of the Defence on the jurisdiction of the Tribunal before the Trial Chamber of the International Tribunal (Defence Trial Brief), paras. 10.1 and 10.2. However, the defence seemed to contradict itself by stating in para. 10.3 that ‘[t]herefore the tribunal does not have jurisdiction under article 3 of the Statute as far as this provision deals with violations of the laws and customs of war committed in a situation that is not an international armed conflict …’

2. The Prosecutor v. Dusko Tadić, Decision on the Defence Motion on Jurisdiction of the Tribunal, Case No. IT-94-I-T (10 August 1995), para. 58 (Trial Chamber's decision on jurisdiction); The Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (Appeals decision on jurisdiction), para. 89 (Case No. IT-94-1-AR72).

3. Under most indictments, charges under Art. 3 Statute ICTY are issued as alternatives to charges under Art. 2 of the Tribunal's Statute. Art. 2 grants the ICTY the power to ‘prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949 …’ Although some authors argue that the grave breaches provisions of the Geneva Conventions apply to all violations of the Conventions, including Common Art. 3 (see Paust, J.J., ‘Applicability of International Criminal Laws to the Events in the former Yugoslavia’, 9 Am. Univ. JIL & Pol. (1994) no. 2, p. 511.Google Scholar Also Paust, J.J., ‘War Crimes Jurisdiction and Due Process: the Bangladesh Experience’, 11 Vanderbilt J Trans. L (1978) no. 1, p. 28Google Scholar), the Appeals confirmed that grave breaches only apply to ‘offences committed within the context of international armed conflicts’, Appeals decision on jurisdiction, ibid., para. 84.

4. Throughout this article, where the term ‘war crimes’ is employed, it should be interpreted as interchangeable with ‘violations of the laws or customs of war’.

5. Art. 3 Statute of the International Tribunal, originally published as Annex to the Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704.

6. Ibid., para. 44. One may argue about the legal weight to be given to the Report of the Secretary-General. The Statute is a decision of an international organisation. It has the characteristics of a treaty as well as a penal code. Analogous to the interpretation of treaties, while interpreting the articles of the Statute in the ordinary meaning of the terms used, where relevant, account will be taken of the context of the adoption of the Statute, i.e., die instruments and texts endorsed by the UN Security Council (UNSC) together with the Statute, in casu the report of the UN Secretary-General. This method of interpretation follows the Vienna Convention on the Law of Treaties, stating in Art. 31 that ‘a treaty should be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of its object and purpose’. According to Art. 31. 1(a) the context for the purpose of interpretation compromises, inter alia, ‘any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty’. Vienna Convention on the Law of Treaties (1969).

7. Roberts, A. and Guelff, R., Documents on the Laws of War (1994) pp. 1–2.Google Scholar

8. Ibid.

9. This is also reflected in the Martens clause and a common article to the Geneva Conventions. Arts. 63/62/142/158 Geneva Conventions I/II/III/IV state that if a party denounces the Convention, this ‘shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of the public conscience’.

10. Report of the ILC on the work of its 46th session (1994), UNGAOR forty-ninth session, Suppl. No. 10, UN Doc. A/49/10, at p. 74. The concept of ‘war’ has evolved from its classic meaning provided in the definition of war given by Oppenheim — ‘war is a contention between two or more States through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases’, Lauterpacht, H., ed., L. Oppenheim's International Law, Volume I (1952) p. 202,Google Scholar to the terminology ‘armed conflict’ as employed by the Geneva Conventions. See Greenwood, C., ‘The Concept of War in Modern International Law’, 36 Int. & Comp. LQ (1987).Google Scholar See also Appeals decision on jurisdiction, supra n. 2, para. 87 stating that ‘[t]he expression “violations of the laws or customs of war” is a traditional term of art used in the past when the concepts of “war” and “laws of warfare” still prevailed, before they were largely replaced by two broader notions: (i) that of “armed conflict”, essentially introduced by the Geneva Conventions; and (ii) the correlative notion of “international law of armed conflict”, or the more recent and comprehensive notion of “international humanitarian law”…’

11. In the widest sense, war crimes may include crimes against humanity and crimes against the peace.

12. The Trial Chamber's decision on jurisdiction described war crimes as ‘crimes committed by any person in violation of recognized obligations under rules derived from conventional or customary law’, supra n. 2, para. 61.

13. Malekian, F., International Criminal Law (1991) pp. 101–102.Google Scholar L.C. Green defines war crimes as ‘war crimes are violations of the laws and customs of the law of armed conflict and are punishable whether committed by combatants or civilians, including the nationals of neutral states’. Green, L.C., The Contemporary Law of Armed Conflict (1993) p. 276.Google Scholar Bassiouni defines war crimes as ‘[w]ar crimes consist of conduct (acts or omissions) which is prohibited by the rules of international law applicable in armed conflict, conventions to which the parties to the conflict are Parties, and the recognised principles and rules of international law of armed conflict’. Bassiouni, Ch., A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987) p. 130.Google Scholar

14. The 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, entry into force 26 January 1910, intended to replace the 1899 Hague Convention II. While the Convention does not define the notion of ‘war’, the Regulations Respecting the Laws and Customs on War, annexed to the Convention, clarify the status of a belligerent, Art. 1.

15. Even though this may have been criticised by some at the time, nowadays, there is no controversy as to its customary law status.

16. Roberts and Guelff, op. cit. n. 7, at p. 56.

17. United Nations War Crimes Commission, History of the United Nations War Crimes Commission (1948) pp. 34–35.

18. These included the two 1929 Geneva Conventions, seeMalekian, op. cit. n. 13, at p. 109.

19. According to Lauterpacht ‘the immediate subjection of individuals to the rules of warfare, entails, in the very nature of things, a responsibility of a criminal character’. Lauterpacht, H., ‘The Law of Nations and the Punishment of War Crimes’, 21 BYIL (1944) pp. 61–62.Google Scholar

20. Art. 6(b) of the Charter of the IMT (8 August 1945), 82 UNTS (1945) p. 279.

21. Green, op. cit. n. 13, at p. 285.

22. UNGA Res. 95(1) (1946), UN Doc. A/64/Add. 1.

23. Malekian, op. cit. n. 13, p. 45.

24. Greenwood, L.C., ‘The lnternational Tribunal for former Yugoslavia’,69Int. Affairs(1993) no. 2, at p. 645.Google Scholar

25. See also Green, op. cit. n. 13, at pp. 282 and 290. Some authors have maintained that labelling some breaches, ‘as distinct from others, as “grave” tends to obscure the character of war crime of any breach of these [Geneva] Conventions’. Schwarzenberger, G., International Humanitarian Law as Applied by International Courts and Tribunals (1968) p. 355.Google Scholar

26. However, undoubtedly, grave breaches constitute war crimes. See Additional Protocol I, Art. 85(5).

27. Green, op. cit. n. 13, p. 290.

28. Post, H.H.G., ‘Some Curiosities in the Sources of the Law of Armed Conflict Conceived in a General International Legal Perspective’, 25 NYIL (1994) pp. 92,Google Scholar 96.

29. The assertion that certain rules of the laws of war also apply to non-international armed conflicts is backed by historic arguments as well. Even though it may be a fact that most international instruments on the laws of war before the mid-twentieth century governed armed conflicts between States, certain regional agreements related to internal conflicts. (See, for instance, the 1928 Havana Convention on Civil Strife). The laws of war could also become (partly) applicable to noninternational armed conflicts of a certain scale and intensity through the operation of the doctrine of ‘recognition ofbelligerency’. (See, forinstance, the 1956 United States Army Field Manual stating that ‘the customary law of war becomes applicable to civil war upon recognition of the rebels as belligerents’, para. 11a). Moreover, recognition ofbelligerency was not an absolute prerequisite for the applicability of certain elements of the laws of war. For instance, during the Spanish Civil War, both parties and third States recognised formally the extension of parts of the laws and customs of war to the internal strife in Spain. The principle reason for this, as explained by Cassese, ‘may be found in the magnitude assumed by this war, its duration and scope. The internal strife was so long and complex and had such wide international repercussions that it greatly resembled an inter-State war. These features explain inter alia why, as was pointed out above, third parties, although they did not assimilate it to a war proper, did not regard it as a mere internal conflict either, and mutually undertook non-intervention obligations that are at variance with traditional practice in case of civil wars proper’. (Cassese, A., ‘The Spanish Civil War and the Development of Customary Law Concerning Internal Armed Conflict’, in A. Cassese, ed., Current Problems of International Law (1975) p. 313Google Scholar). Going back even further, one may find support for this proposition in the Lieber Code, an early effort to codify the laws of land warfare, applicable to the United States armed forces during the American Civil War. (The Lieber Code, Instructions for the Government of Armies of the United States in the Field by Order of the Secretary of War, General Orders No. 100, Washington DC (24 April 1863), reprinted in Friedman, L., ed., A Documentary History — Volume I (1972) p. 158).Google Scholar This Code influenced the drafting of other military manuals as well as the development of the laws of war. (See Green, op. cit. n. 13, p. 279. He notes that between 1870 and 1893 similar manuals or codes were issued by Prussia, the Netherlands, France, Russia, Serbia, Argentina, Great Britain and Spain). One may go back even earlier to trace the origins of the idea that certain rules of war would apply to ‘internal’ conflicts of a certain intensity. For instance, during the American revolution, a situation of rebellion developing into a civil war, it was recognised that the rules of warfare had to be observed by the established government. (See Clancy, M.J., ‘Rules of Land Warfare during the War of the American Revolution’, Yearbook of World Polity, Vol. II (1960) p. 210Google Scholar). The Lieber Code not only prohibited specific conduct and provided for its criminality and punishment (Arts. 44, 46, 47, 71), but also resulted in several war crimes trials. See also the Trial Chamber's decision on jurisdiction, referring to these historic arguments, supra n. 2, para. 63.

30. Roberts and Guelff, op. cit. n. 7, at pp. 12–13. According to Werner Meng ‘ … it is to war in the legal sense that the laws of war apply as a matter of principle, whereas certain rules of the laws of war are now applied also to situations described as “armed conflicts”’, Meng, W., ‘War’, in Encyclopedia of Public International Law (1982) p. 286.Google Scholar

31. Malekian, op. cit. n. 13, at p. 139. Even going beyond this view, Blischenko states that ‘Protocol II qualifies as crimes a number of acts not recognised as such by the majority of criminal codes’ … ‘The conclusion is that the above-mentioned actions [various articles of Protocol II, including the fundamental prohibitions contained in Art. 4] should be considered as criminal offences calling for prosecution and punishment of offenders’. Blischenko, I.P., ‘Responsibility in Breaches of International Humanitarian Law’, International Dimensions of Humanitarian Law (1988) p. 293.Google Scholar

32. Art. 125 Criminal Code, Collection of Yugoslav Laws, Vol. XI (1964) p. 75.Google Scholar

33. Statements by France, , United Kingdom and the United States, UN Doc. S/PV. 3217 (25 05 1993),Google Scholar paras. 11, 15 and 19.

34. Appeals decision on jurisdiction, supra n. 2, para. 77.

35. Ibid., para. 92.

36. Some argue for a more restrictive approach. See, for instance, Kalshoven, F., Statement to the Conference on the International Criminal Court for the former Yugoslavia (16 02 1995).Google Scholar

37. In addition to Art. 2 Statute ‘grave breaches’ and Art. 3, the ICTY has two further bases for subject-matter jurisdiction. Art. 4 grants the ICTY jurisdiction over genocide, while Art. 5 deals with crimes against humanity. While the latter provisions apply in internal as well as international armed conflicts (or, arguably, need no connection with an armed conflict at all), both require that the acts were widespread and systematic.

38. Gasser, H.P., ‘Negotiating the 1977 Additional Protocols: Was It a Waste of Time?’, in G. Tanja and A. Delissen, eds., Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven (1991) p. 82.Google Scholar

39. See , B.Jakovljevic, ‘Validity of Indictments Brought under Articles 2–5 of the Statute’, Statement to the Conference on Practical Concerns Relating to the Work of the Ad Hoc Tribunal for the Former Yugoslavia (3–4 03 1994).Google Scholar See also C. Greenwood, ‘Customary Law Status of the 1977 Geneva Protocols’, in Tanja and Delissen, eds., op. cit. n. 38, p. 96.

40. UN Doc. S/25704, para. 34.

41. Ibid., para. 44.

42. This was the position the Trial Chamber took in its decision on jurisdiction, supra n. 2, para. 65.

43. Appeals Decision on jurisdiction, supra n. 2, para. 89.; also the Trial Chamber's decision, supra n. 2, para. 64.

44. Appeals decision on jurisdiction, supra n. 2, para. 91.

45. Ibid., para. 94.

46. Pictet, J., Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) at p. 36.Google Scholar See also Meindersma, C., ‘The Applicability of Humanitarian Law in International and Internal Armed Conflict’, Hague YIL (1995).Google Scholar

47. Appeals decision on jurisdiction, supra n. 2, para. 70.

48. See van Elst, R., ’Afscheid van Yoegoslavie: Over Oorlogsmisdrijven en Misdrijven tegen de Menselijkheid Begaan in Voormalig Joegoslavie en de Nederlandse Rechter’, 41 NJB (1994) p. 1403.Google Scholar

49. Some disagree that breaches of Common Art. 3 entail individual criminal responsibility. See Plattner, D., ‘The Penal Repression of Violations of International Humanitarian Norms Applicable in Non-Internation Armed Conflicts’, 30 Int. Rev. Red Cross (1990) p. 409Google Scholar at p. 414. The ICRC has made similar comments on the ICTY's Draft Statute stating that: ‘… according to International Humanitarian Law as it stands today, the notion of war crimes is limited to situations of international armed conflicts’, as cited in Meron, T., ‘International Criminilization of Internal Atrocities’, 89 AJIL (1995) p. 559.Google Scholar Also Zacklin, R. and Shraga, D., ‘The International Criminal Tribunal for the former Yugoslavia’, 5 EJIL (1994) pp. 360–380,Google Scholar at p. 366.

50. The Appeals decision on jurisdiction, para. 143 stating that the Tribunal ‘is authorised to apply, in addition to customary international law, any treaty which: (i) was unquestionably binding on the parties at the time of the alleged offence; and (ii) was not in conflict with or derogated from preremptory norms of international law … ’

51. Pictet, op. cit. n. 46, pp. 38, 41.

52. Ibid., at p. 36. See also Meron, T., Human Rights and Humanitarian Norms as Customary Law (1991) p. 34.Google Scholar See also Cassese, A., ‘The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law’, 3 UCLA Pacific Basin LJ (1984) pp. 55,Google Scholar 68.

53. Nicaragua case (merits), para. 115, ICJ Rep. (1986). However, the Court failed to reason the State practice as well as opinio juris supporting the customary law status of Common Art. 3.

54. Ibid., para. 220. See also Charney, J.I., ‘Customary International Law in the Nicaragua Case Judgment on the Merits’, Hague YIL (1988) p. 21.Google Scholar

55. Barcelona Traction case, ICJ Rep. (1970).

56. Bothe, M., Partsch, K. and Solf, W., New Rulesfor Victims of Armed Conflicts: Commentary on the two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982) p. 620.Google Scholar ‘… the application of common article 3 in the practice of States has not developed in such a way that one could speak of “established custom” regarding non-international conflicts’.

57. Sandoz, Y., Swinarski, C. and Zimmerman, B., eds., ICRC Commentary to the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) p. 1340.Google Scholar

58. See Greenwood, C., ‘Customary Law Status of the 1977 Geneva Protocols’, in Tanja and Delissen, eds., op. cit. n. 38, p. 113,Google Scholar stating that ‘[i]nplaces Protocol II does no more than restate principles already contained in common Article 3 of the Geneva Conventions. Other provisions of the Protocol do no more than cloak the bare bones of Article 3 with a moderate amount of flesh. Thus, Article 4(1) and (2) of the Protocol are really just an elaboration of the general duty of humane treatment imposed by common Article 3(1)’. Similarly, Art. 6(2), which deals with due process guarantees, is an elaboration of common Art. 3(1,d).

59. Appeals decision on jurisdiction, supra n. 2, para. 117.

60. Even though the following analysis appears to be limited to Common Art. 3, the same reasoning would apply to the Second Additional Protocol.

61. See Lauterpacht, op. cit. n. 10, at p. 65. See also the Trial Chamber's decision on jurisdiction, supra n. 2, para. 70; Appeals Chamber decision on jurisdiction, ibid., para. 128.

62. Nor is it relevant that the provision does not contain any reference to grave breaches. Grave breaches refer to jurisdiction based on the universality principle while the Tribunal's jurisdiction is based on internationality, namely Security Council Res. 808 and 827. The question as to whether there exists jurisdiction must be distinguished from the existence of a criminal offence, which is a matter of substantive criminal law.

63. Art. 1 Common to all four Geneva Conventions.

64. Paust, , ‘Applicability of International Criminal Law’, loc. cit. n. 3, at p. 512.Google Scholar

65. The IMT at Nuremberg considered that various factors were relevant to establishing individual criminal responsibility: the clear and unequivocal recognition of the rules of warfare in international law and State practice indicating an intention to criminalise the prohibition, including statements by government officials and international organisations, as well as punishment of violations by national courts and military tribunals, referred to in Appeals decision on jurisdiction, supra n. 2, para. 128.

66. Malekian, op. cit. n. 13, at p. 112.

67. Paust, , ‘The Bangladesh Experience’, loc. cit. n. 3, at p. 25.Google Scholar

68. Lauterpacht, op. cit. n. 10, at pp. 78–79.

69. Appeals decision on jurisdiction, supra n. 2, para. 84.

70. Paust, , The Bangladesh Experience’, loc. cit. n. 3, at p. 28.Google Scholar Also Eiting, R.M., ‘Joegoslavie en Aspecten van het Oorlogsrecht’, LXXXVI Mil. Rechtelijk Tijdschrift (1993) p. 217.Google Scholar

71. UN Doc. A/49/10, at pp. 74–75.

72. UN Doc. S/1995/134, at p. 4.

73. See Roberts and Guelff, op. cit. n. 7, at p. 11.

74. On the weight to be given to military manuals and the question whether these are evidence of State practice or opinio iuris, see Greenwood, C., ‘Customary Law Status of the 1977 Geneva Protocols’, in Tanja and Delissen, op. cit. n. 38, at p. 102;Google Scholar Post, loc. cit. n. 28, at pp. 18–19.

75. USA Department of the Army Law of War Manual (1956): ‘every violation of the law of war is a war crime’ (Field Manual 27–10, para. 499). British Manual of Military Law (1958): ‘war crimes include all violations of the law of war’ (para. 624); ‘all war crimes are punishable by death’ para. 638). See Meron, loc. cit. n. 49, at p. 565.

76. Para. 7.

77. Para. 7.

78. UNSC Res. 820, para. 6.

79. For instance, statements made on 30 October 1992; 25 February 1993; 3 March 1993; 3 April 1993; 8 April 1993; 28 October 1993; 9 Nov. 1993.

80. The Appeals Chamber of the ICTY, in its decision on jurisdiction, referring to the Criminal Code of the SFRY and Bosnia-Herzegovina, held that ‘nationals of the former Yugoslavia as well as, at present, those of Bosnia-Herzegovina were therefore aware, or should have been aware, that they were amenable to the jurisdiction of their national criminal courts in cases of violation of international humanitarian law’, supra n. 2, para. 135. See also Trial Chamber's decision on jurisdiction, ibid., para. 73.

81. Appeals decision on jurisdiction, supra n. 2, para. 78.