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Internal Armed Conflict having an International Character An analysis ofProsecutor

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)

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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

2UNDCPEICC A/CONF.183/9

3

(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, ar t. 6, 75 U.N.T.S.

973 (hereinafter Geneva Convention IV).)

4Pictet, Jean (1975). Humanitarian law and the protection of war victims. Leyden: SijthoffAlsoSee Christopher

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

University Press, USA.

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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.

5 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

6ICTY Case No.: IT-94-1-A Date: 15 July 1999 Appeals Chamber Judgment

7 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

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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 ofNicaragua 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

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

Para 70

9Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),

Jurisdiction and Admissibility, 1984 ICJ REP. 392

10Ibid, At Para 118

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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) The State should have been in effective control of the military group, and(ii) 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 ofProsecutor v. Tadic

14

,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

11Review 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

13Ibid at115

14 Prosecutor v. Tadic, Appeals Chamber Judgment, IT-94-1-A, 15th July 1999.

15Ibidat 84

16Ibid at 137

17Ibid at137

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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 ofJoshep 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.

18Ibid at137

19Prosecutor v. Tadic, Appeals Chamber Judgment, IT-94-1-A, 15th July 1999 at 140

20 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.

21Public Prosecutor v. Menton, 75 International Law Reports 1987, pp. 331 ff

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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

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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?

22Prosecutor v. Tadic, Appeals Chamber Judgment, IT-94-1-A, 15th July 1999 at 137

23 Moir, Lindsay. The law of internal armed conflict. Cambridge, UK New York: Cambridge University Press,

2002

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2. Was a party to the conflict acting under the belief that such acts were beingcommitted 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

24This 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

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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 ofPrisoners of War, International Committee of the Red Cross, Geneva, 1960, First

reprint, Geneva, 1994, p. 57

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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.183/92. 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, 75U.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 : ICTY Case No.: IT-94-1-A Date: 15 July 1999 AppealsChamber Judgment

2. Prosecutor v. Tadic: IT-94-1-A , Decision on the Defence Motion for InterlocutoryAppeal on Jurisdiction

3. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. UnitedStates of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392

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4. Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure andEvidence, 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, 17thSeptember-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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