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DEFINITION UNDER ICRC OPINION PAPER DATED MARCH 20081:

On the basis of the analysis set out above, the ICRC proposes the following definitions, which

reflect the strong prevailing legal opinion:

1. International armed conflicts exist whenever there is resort to armed force between two or

more States.

2. Non-international armed conflicts are protracted armed confrontations occurring betweengovernmental armed forces and the forces of one or more armed groups, or between such

groups arising on the territory of a State [party to the Geneva Conventions]. The armed

confrontation must reach a minimum level of intensity and the parties involved in the conflict

must show a minimum of organisation.

CHARGES :

Colonel Calley Jones is being tried by the ICC on the following charges.

COUNT 1. In respect of the treatment of detained persons in the towns of Argus and Corti in

September 2010 and in the following months:

on the basis of superior responsibility (Article 28(a) of the Statute)

(a) the war crime of violence to life and person, in particular cruel treatment and torture (article

8(2)(c)(i) of the ICC Statute),

ELEMENTS:

War crime of cruel treatment

1.The perpetrator inflicted severe physical or mental pain or suffering upon one or morepersons.

Cruel Treatment2:

Cruel, inhuman or degrading (CID) treatment or punishment is a lesser form or act of

torture. More specifically, cruel, inhuman or degrading (CID) treatment or punishment refers

to:

any harsh or neglectful treatment that coulddamage a detainees physical or mental health.

Such a treatment may characterise, for instance, prison conditions.

any punishment intended to cause physical or mental pain or suffering, or to humiliate or

degrade the person concerned. Like torture, CID treatment or punishment can occur in anumber of places and for a number of reasons. In many cases, the human rights worker will

investigate CID treatment or punishment perpetrated against individuals in the context of

their detention (such as a police station or secret detention centres). But CID punishment can

1International Committee of the Red Cross (ICRC) Opinion Paper, March 2008

2Monitoring and Investigating Torture, Cruel, Inhuman or Degrading Treatment, and Prison Conditions, Amnesty

International and CODESRIA (http://www.amnesty.nl/sites/default/files/public/booklet_eng_torture_0.pdf)
http://www.amnesty.nl/sites/default/files/public/booklet_eng_torture_0.pdfhttp://www.amnesty.nl/sites/default/files/public/booklet_eng_torture_0.pdfhttp://www.amnesty.nl/sites/default/files/public/booklet_eng_torture_0.pdfhttp://www.amnesty.nl/sites/default/files/public/booklet_eng_torture_0.pdf


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also be inflicted outside a formal place of imprisonment, such as in the victims home or in thestreet.

Definitions3:

Wilfully causing great suffering or serious injury to body or healthunder Article 2 is defined

as:a. an intentional act or omission consisting of causing great suffering or serious injury

to body or health, including mental health

b. committed against a protected person.

Cruel treatment under Article 3 is defined as:

a. an intentional act or omission *+ which causes serious mental or physical suffering or injuryor constitutes a serious attack on human dignity,

b. committed against a person taking no active part in the hostilities.

Inhumane Treatment4is:

a. an intentional act or omission, that is an act which, judged objectively, is deliberate and not

accidental, which causes serious mental harm or physical suffering or injury or constitutes a

serious attack on human dignity

b. committed against a protected person.

2. Such person or persons were either hors de combat, or were civilians, medical personnel, or

religious personnel taking no active part in the hostilities.

Hors de Combat5:

It follows from the letter and the spirit of Article 5 that the term civilian population

must be interpreted broadly. The text states that the acts are directed against any civilianpopulation. In addition, reference to a civilian population would seek to place the emphasis

more on the collective aspect of the crime than on the status of the victims.The Commission

of Experts formed pursuant to Security Council resolution 780 (hereinafter theCommission ofExperts)considered furthermore that the civilian population within the meaning of Article 5 ofthe Statute must include all those persons bearing or having borne arms who had not, strictly

speaking, been involved in military activities.

3. The perpetrator was aware of the factual circumstances that established this status.

4. The conduct took place in the context of and was associated with an armed conflict not of aninternational character.

3PROSECUTOR V Zejnil DELALIC, Zdravko MUCIC (aka PAVO), Hazim DELIC and Esad LANDO (aka ZENGA), Case

No. IT-96-21-A, Appeals Chamber, 20 February 2001, par. 4244PROSECUTOR V Zejnil DELALIC, Zdravko MUCIC (aka PAVO), Hazim DELIC and Esad LANDO (aka ZENGA), Case

No. IT-96-21-A, Appeals Chamber, 20 February 2001, par. 4265THE PROSECUTOR v. GORAN JELISI] (Jelisic), Case No. IT-95-10-T, Trial Chamber, 14 December, 1999, par. 54


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Non-international armed conflicts are protracted armed confrontations occurring between

governmental armed forces and the forces of one or more armed groups, or between such

groups arising on the territory of a State [party to the Geneva Conventions].The armed


must show a minimum of organisation.6

5. The perpetrator was aware of factual circumstances that established the existence of an

armed conflict.

War crime of torture

1.The perpetrator inflicted severe physical or mental pain or suffering upon one or more

persons.

Definition of Torture7

For the purposes of this Convention, torture means any act by which severe pain or suffering,whether physical or mental, is intentionally inflicted on a person for such purposes as

obtaining from him or a third person information or a confession, punishing him for an act he

or a third person has committed or is suspected of having committed, or intimidating or

coercing him or a third person, or for any reason based on discrimination of any kind, when

such pain or suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.It does not

include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Elements of Torture8:

(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.

(ii) The act or omission must be intentional. (important to take note)

(iii) The act or omission must aim at obtaining information or a confession, or at punishing,intimidating or coercing the victim or a third person, or at discriminating, on any ground,

against the victim or a third person.

Degree of Pain and Suffering9:

Torture is constituted by an act or an omission giving rise to severe pain or suffering, whetherphysical or mental, but there are no more specific requirements which allow an exhaustiveclassification and enumeration of acts which may constitute torture. Existing case-law has not

determined the absolute degree of pain required for an act to amount to torture.

6ICRC Opinion Paper March 2008, page 5

7Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1.

8PROSECUTOR V DRAGOLJUB KUNARAC RADOMIR KOVAC AND ZORAN VUKOVIC, Case No. IT-96-23& IT-96-23/1-A,

Appeals Chamber, 12 June 2002, par. 1429PROSECUTOR V DRAGOLJUB KUNARAC RADOMIR KOVAC AND ZORAN VUKOVIC, Case No. IT-96-23& IT-96-23/1-A,

Appeals Chamber, 12 June 2002, par. 150


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2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or

a confession, punishment, intimidation or coercion or for any reason based on discrimination of

any kind.

Elements of Torture10

:

(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.(ii) The act or omission must be intentional. (important to take note)

(iii) The act or omission must aim at obtaining information or a confession, or at punishing,

intimidating or coercing the victim or a third person, or at discriminating, on any ground,

against the victim or a third person.

3. Such person or persons were either hors de combat, or were civilians, medical personnel or


Hors de Combat11

:


must be interpreted broadly. The text states that the acts are directed against any civilian

population. In addition, reference to a civilian population would seek to place the emphasis





5. The conduct took place in the context of and was associated with an armed conflict not of aninternational character.

Elements of Torture in a SITUATION OF ARMED CONFLICT12

:

(i) . . . the infliction, by act or omission, of severe pain or suffering, whether physical or

mental; in addition

(ii) this act or omission must be intentional;

(iii) it must aim at obtaining information or a confession, or at punishing, intimidating,

humiliating or coercing the victim or a third person, or at discriminating, on any ground,

against the victim or a third person;

(iv) it must be linked to an armed conflict;(v) at least one of the persons involved in the torture process must be a public official or must

at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other

10PROSECUTOR V DRAGOLJUB KUNARAC RADOMIR KOVAC AND ZORAN VUKOVIC, Case No. IT-96-23& IT-96-23/1-

A, Appeals Chamber, 12 June 2002, par. 14211

THE PROSECUTOR v. GORAN JELISI] (Jelisic), Case No. IT-95-10-T, Trial Chamber, 14 December, 1999, par. 5412

PROSECUTOR v. ANTO FURUND@IJA (Furundzija), Case No. IT-95-17/1-A, Appeals Chamber, 21 July 2000, par.

111


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authority-wielding entity.

GENERAL CONSIDERATIONS:

International Armed Conflict13

Common Article 2 to the Geneva Conventions of 1949 states that:

"In addition to the provisions which shall be implemented in peacetime, the presentConvention shall apply to all cases of declared war or of any other armed conflict which may

arise between two or more of the High Contracting Parties, even if the state of war is not

recognized by one of them. The Convention shall also apply to all cases of partial or total

occupation of the territory of a High Contracting Party, even if the said occupation meets with

no armed resistance".

According to this provision, IACs are those which oppose "High Contracting Parties",

meaning States. An IAC occurs when one or more States have recourse to armed force against

another State, regardless of the reasons or the intensity of this confrontation.Relevant rules

of IHL may be applicable even in the absence of open hostilities. Moreover, no formal

declaration of war or recognition of the situation is required. The existence of an IAC, and as a

consequence, the possibility to apply International Humanitarian Law to this situation, depends

on what actually happens on the ground. It is based on factual conditions. For example, there

may be an IAC, even though one of the belligerents does not recognize the government of the

adverse party. The Commentary of the Geneva Conventions of 1949 confirms that "any

difference arising between two States and leading to the intervention of armed forces is an

armed conflict within the meaning of Article 2, even if one of the Parties denies the existence

of a state of war. It makes no difference how long the conflict lasts, or how much slaughter

takes place.

6. The perpetrator was aware of factual circumstances that established the existence of anarmed conflict.

Alternatively

(b) the war crime of committing outrages upon personal dignity, in particular humiliating and

degrading treatment (article 8(2)(c)(ii) of the ICC Statute).

War crime of outrages upon personal dignity

1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or morepersons.

Requisites of Outrages upon Personal Dignity14

:

13ICRC Opinion Paper, page 1, March 2008 (http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-

conflict.pdf)
http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdfhttp://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdfhttp://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdfhttp://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf


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The crime of outrages upon personal dignity requires:

(i) that the accused intentionally committed or participated in an act or an omission which

would be generally considered to cause serious humiliation, degradation or otherwise be a

serious attack on human dignity, and

(ii) that he knew that the act or omission could have that effect.

2. The severity of the humiliation, degradation or other violation was of such degree as to be

generally recognized as an outrage upon personal dignity.

What constitutes outrage upon personal dignity:

- The crime of outrages upon personal dignity requires that the accused knew that his actor omission could cause serious humiliation, degradation or otherwise be a serious

attack on human dignity15

- An outrage upon personal dignity is an act which is animated by contempt for thehuman dignity of another person. The corollary is that the act must cause serious

humiliation or degradation to the victim. It is not necessary for the act to directly

harm the physical or mental well-being of the victim. It is enough that the act causes

real and lasting suffering to the individual arising from the humiliation or ridicule.16



Hors de Combat17

:



population. In addition, reference to a civilian population would seek to place the emphasismore on the collective aspect of the crime than on the status of the victims.The Commission



Civilian Population18

:

As noted by the Trial Chamber, when establishing whether there was an attack upon a



PROSECUTOR V DRAGOLJUB KUNARAC RADOMIR KOVAC AND ZORAN VUKOVIC, Case No. IT-96-23& IT-96-23/1-


THE PROSECUTOR v. ZLATKO ALEKSOVSKI, Case No. IT-95-14/1-T, Trial Chamber, 25 June 1999, par. 5617





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particular civilian population, it is not relevant that the other side also committed atrocities

against its opponents civilian population. The existence of an attack from one side against

the other sides civilian population would neither justify the attack by that other side against

the civilian population of its opponent nor displace the conclusion that the other sides forces

were in fact targeting a civilian population as such.Each attack against the others civilian

population would be equally illegitimate and crimes committed as part of this attack could, allother conditions being met, amount to crimes against humanity.


5. The conduct took place in the context of and was associated with an armed conflict not of an

international character.

Non-international armed conflicts are protracted armed confrontations occurring between

governmental armed forces and the forces of one or more armed groups, or between such

groups arising on the territory of a State [party to the Geneva Conventions].The armed


must show a minimum of organisation.19


armed conflict.

COUNT 2. In respect of denying access to medical treatment and the confiscation of medical

vehicles in the town of Corti in September 2010:

On the basis of ordering, soliciting or inducing the commission of such a crime (Article 25(3)(b)

of the ICC Statute)

(a) the war crime of intentionally directing attacks against buildings, material, medical units and

transport, and personnel using the distinctive emblems of the Geneva Conventions in

conformity with international law (article 8(2)(e)(ii) of the ICC Statute),

ELEMENTS:

War crime of attacking objects or persons using the distinctive emblems of the Geneva

Conventions

1. The perpetrator attacked one or more persons, buildings, medical units or transports orother objects using, in conformity with international law, a distinctive emblem or other method

of identification indicating protection under the Geneva Conventions.

Definition of attack20

:

19ICRC Opinion Paper March 2008, page 5

20PROSECUTOR v. RADOSLAV BR\ANIN (BRDANIN), Case No. IT-99-36-T, T. Ch. II, 1 September 2004, par. 131


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An attack for the purpose of Article 5 is described as a course of conduct involvingthe commission of acts of violence. In the context of a crime against humanity, an attack is

not limited to the use of armed force; it also encompasses any mistreatment of the civilian

population.The concepts of attack and armed conflict are distinct and independent fromeach other. The attack could precede, outlast or continue during the armed conflict, without

necessarily being part of it. To establish whether there was an attack, it is not relevant that theother side also committed atrocities against its opponents civilian population. Each attackagainst the other sides civilian population would be equally illegitimate and crimes committedas part of such attack could, all other conditions being met, amount to crimes against humanity.

Legal Requirements of an Attack21

:

In order to amount to a crime against humanity, the acts of an accused must be part of

a widespread or systematic attack directed against any civilian population. This phrase hasbeen interpreted by the Trial Chamber, and the Appeals Chamber agrees, as encompassing five

elements:

(i) There must be an attack.

(ii) The acts of the perpetrator must be part of the attack.

(iii) The attack must be directed against any civilian population.

(iv) The attack must be widespread or systematic.

(v) The perpetrator must know that his acts constitute part of a pattern of widespread or

systematic crimes directed against a civilian population and know that his acts fit into such a

pattern.

2. The perpetrator intended such persons, buildings, units or transports or other objects so

using such identification to be the object of the attack.

Intention to subject to the attack22:In order to determine whether the attack may be said to have been directed against a

civilian population, the means and methods used in the course of the attack may be

examined, the number and status of the victims, the nature of the crimes committed in its

course, the resistance to the assailants at the time and the extent to which the attacking

force may be said to have complied or attempted to comply with the precautionary

requirements of the laws of war.It is also not necessary that the entire civilian population of

the geographical entity in which the attack is taking place be targeted by the attack. It must,

however, be shown that the attack was not directed against a limited and randomly selected

number of individuals.

Widespread/Systematic Attack23

:

For an attack to be widespread, it needs to be of a large-scale nature, which is

primarily reflected in the number of victims, whereas the term systematic refers to the

21PROSECUTOR v. ANTO FURUND@IJA (Furundija), Case No. IT-95-17/1-A, Appeals Chamber, 21 July 2000, par. 85




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organised nature of the acts of violence and the non-accidental recurrence of similar criminal

conduct on a regular basis.Only the attack as a whole, not the individual acts of the accused,

must be widespread or systematic. Consequently, even a single or relatively limited number of

acts on his or her part could qualify as a crime against humanity, unless these acts may be said

to be isolated or random.



Doctrines on NIAC24

:

According to H.-P. Gasser, it is generally admitted that "non-international armed

conflicts are armed confrontations that take place within the territory of a State between the

government on the one hand and armed insurgent groups on the other hand. *+ Another caseis the crumbling of all government authority in the country, as a result of which various groups

fight each other in the struggle for power"

.

D. Schindler also proposes a detailed definition: "The hostilities have to be conducted by force

of arms and exhibit such intensity that, as a rule, the government is compelled to employ its

armed forces against the insurgents instead of mere police forces. Secondly, as to the

insurgents, the hostilities are meant to be of a collective character, [i.e] they have to be carried

out not only by single groups. In addition, the insurgents have to exhibit a minimum amount of

organisation. Their armed forces should be under a responsible command and be capable of

meeting minimal humanitarian requirements".


armed conflict.

Knowledge that the act constitutes an attack25

:

In addition to the intent to commit the underlying crime, the accused must be aware

that there is an attack on the civilian population and that his or her acts form part of that

attack.This requirement does not imply knowledge of the details of the attack. In addition, the

accused need not share the ultimate purpose or goal underlying the attack: the motives for

his or her participation in the attack are irrelevant, and a crime against humanity may even

be committed exclusively for personal reasons.

Alternatively

(b) the war crime of committing outrages upon personal dignity, in particular humiliating and

degrading treatment (article 8(2)(c)(i) of the ICC Statute).

24ICRC Opinion Paper, page 5, March 2008



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War crime of outrages upon personal dignity

1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more

persons.

Requisites of Outrages upon Personal Dignity26

:

The crime of outrages upon personal dignity requires:(i) that the accused intentionally committed or participated in an act or an omission which

would be generally considered to cause serious humiliation, degradation or otherwise be a

serious attack on human dignity, and

(ii) that he knew that the act or omission could have that effect.

2. The severity of the humiliation, degradation or other violation was of such degree as to be

generally recognized as an outrage upon personal dignity.

What constitutes outrage upon personal dignity:

- The crime of outrages upon personal dignity requires that the accused knew that his actor omission could cause serious humiliation, degradation or otherwise be a serious

attack on human dignity27

- An outrage upon personal dignity is an act which is animated by contempt for thehuman dignity of another person. The corollary is that the act must cause serious

humiliation or degradation to the victim. It is not necessary for the act to directly

harm the physical or mental well-being of the victim. It is enough that the act causes

real and lasting suffering to the individual arising from the humiliation or ridicule.28



Hors de Combat29

:



population. In addition, reference to a civilian population would seek to place the emphasis








THE PROSECUTOR v. ZLATKO ALEKSOVSKI, Case No. IT-95-14/1-T, Trial Chamber, 25 June 1999, par. 5629



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Non-International Armed Conflict30

Common Article 3 applies to "armed conflicts not of an international character occurring

in the territory of one of the High Contracting Parties". These include armed conflicts in which

one or more non-governmental armed groups are involved. Depending on the situation,

hostilities may occur between governmental armed forces and non-governmental armed

groups or between such groups only. As the four Geneva Conventions have universally been

ratified now, the requirement that the armed conflict must occur "in the territory of one of

the High Contracting Parties" has lost its importance in practice. Indeed, any armed conflict

between governmental armed forces and armed groups or between such groups cannot but

take place on the territory of one of the Parties to the Convention. In order to distinguish an

armed conflict, in the meaning of common Article 3, from less serious forms of violence, such as

internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain

threshold of confrontation. It has been generally accepted that the lower threshold found in

Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of

NIAC, also applies to common Article 3.

Two criteria are usually used in this regard:

First, the hostilities must reach a minimum level of intensity. This may be the case, for

example, when the hostilities are of a collective character or when the government is obliged

to use military force against the insurgents, instead of mere police forces.

Second, non-governmental groups involved in the conflict must be considered as "parties to

the conflict", meaning that they possess organized armed forces. This means for example thatthese forces have to be under a certain command structure and have the capacity to sustain

military operations.


armed conflict.

COUNT 3. In respect of the cyber-attack on the power station in Bargo in December 2010:

On the basis of contributing to the commission of such a crime by a group of persons actingwith a common purpose (Article 25(3)(d) of the ICC Statute)

(a) the war crime of intentionally launching an attack in the knowledge that such attack will

cause incidental loss of life or injury to civilians or damage to civilian objects which would be

30ICRC Opinion Paper, page 1, March 2008, page 3. Article 3, Geneva Conventions of 1949


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clearly excessive in relation to the concrete and direct overall military advantage anticipated

(article 8(2)(b)(iv) of the ICC Statute),

War crime of excessive incidental death, injury, or damage

1. The perpetrator launched an attack.


:



elements:





(v) The perpetrator must know that his acts constitute part of a pattern of widespread or

systematic crimes directed against a civilian population and know that his acts fit into such a

pattern.

2. The attack was such that it would cause incidental death or injury to civilians or damage to

civilian objects or widespread, long-term and severe damage to the natural environment and

that such death, injury or damage would be of such an extent as to be clearly excessive in

relation to the concrete and direct overall military advantage anticipated.

Widespread/Systematic Attack32

:

For an attack to be widespread, it needs to be of a large-scale nature, which isprimarily reflected in the number of victims, whereas the term systematic refers to the

organised nature of the acts of violence and the non-accidental recurrence of similar criminal

conduct on a regular basis.Only the attack as a whole, not the individual acts of the accused,

must be widespread or systematic. Consequently, even a single or relatively limited number of

acts on his or her part could qualify as a crime against humanity, unless these acts may be said

to be isolated or random.

3. The perpetrator knew that the attack would cause incidental death or injury to civilians or

damage to civilian objects or widespread, long-term and severe damage to the natural

environment and that such death, injury or damage would be of such an extent as to beclearly excessive in relation to the concrete and direct overall military advantage anticipated.

4. The conduct took place in the context of and was associated with an international armed

conflict.




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Doctrines regarding IAC33

According to D. Schindler, "the existence of an armed conflict within the meaning of

Article 2 common to the Geneva Conventions can always be assumed when parts of the

armed forces of two States clash with each other. *+ Any kind of use of arms between two

States brings the Conventions into effect".

H.-P. Gasser explains that "any use of armed force by one State against the territory of

another, triggers the applicability of the Geneva Conventions between the two States. *+ It isalso of no concern whether or not the party attacked resists. *+ As soon as the armed forcesof one State find themselves with wounded or surrendering members of the armed forces or

civilians of another State on their hands, as soon as they detain prisoners or have actual

control over a part of the territory of the enemy State, then they must comply with the

relevant convention"


armed conflict.

Alternatively

(b) the war crime of intentionally directing attacks against the civilian population as such or

against individual civilians not taking direct part in hostilities (article 8(2)(e)(i) of the ICC

Statute).

War crime of attacking civilians

1. The perpetrator directed an attack.


:



elements:





(v) The perpetrator must know that his acts constitute part of a pattern of widespread orsystematic crimes directed against a civilian population and know that his acts fit into such a

pattern.

33ICRC Opinion Paper, page 1, March 2008. Article 2, Geneva Conventions of 1949



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2. The object of the attack was a civilian population as such or individual civilians not taking

direct part in hostilities.

Civilian Population35

:

As noted by the Trial Chamber, when establishing whether there was an attack upon a

particular civilian population, it is not relevant that the other side also committed atrocitiesagainst its opponents civilian population. Theexistence of an attack from one side against

the other sides civilian population would neither justify the attack by that other side against

the civilian population of its opponent nor displace the conclusion that the other sides forces

were in fact targeting a civilian population as such.Each attack against the others civilianpopulation would be equally illegitimate and crimes committed as part of this attack could, all

other conditions being met, amount to crimes against humanity.

3. The perpetrator intended the civilian population as such or individual civilians not taking

direct part in hostilities to be the object of the attack.

Intention to subject to the attack36

:

In order to determine whether the attack may be said to have been directed against a

civilian population, the means and methods used in the course of the attack may be

examined, the number and status of the victims, the nature of the crimes committed in its

course, the resistance to the assailants at the time and the extent to which the attacking

force may be said to have complied or attempted to comply with the precautionary

requirements of the laws of war.It is also not necessary that the entire civilian population of

the geographical entity in which the attack is taking place be targeted by the attack. It must,

however, be shown that the attack was not directed against a limited and randomly selected

number of individuals.



Non-International Armed Conflict37

Common Article 3 applies to "armed conflicts not of an international character occurring

in the territory of one of the High Contracting Parties". These include armed conflicts in which

one or more non-governmental armed groups are involved. Depending on the situation,

hostilities may occur between governmental armed forces and non-governmental armed

groups or between such groups only. As the four Geneva Conventions have universally been

ratified now, the requirement that the armed conflict must occur "in the territory of one ofthe High Contracting Parties" has lost its importance in practice. Indeed, any armed conflict

between governmental armed forces and armed groups or between such groups cannot but



PROSECUTOR v. RADOSLAV BR\ANIN (BRDANIN), Case No. IT-99-36-T, T. Ch. II, 1 September 2004, par. 13437

ICRC Opinion Paper, page 1, March 2008. Article 3, Geneva Conventions of 1949


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take place on the territory of one of the Parties to the Convention. In order to distinguish an

armed conflict, in the meaning of common Article 3, from less serious forms of violence, such as

internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain

threshold of confrontation. It has been generally accepted that the lower threshold found in

Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of

NIAC, also applies to common Article 3.

Two criteria are usually used in this regard:

First, the hostilities must reach a minimum level of intensity. This may be the case, for

example, when the hostilities are of a collective character or when the government is obliged

to use military force against the insurgents, instead of mere police forces.

Second, non-governmental groups involved in the conflict must be considered as "parties to

the conflict", meaning that they possess organized armed forces. This means for example that

these forces have to be under a certain command structure and have the capacity to sustain

military operations.


armed conflict.

Knowledge that the act constitutes an attack38

:

In addition to the intent to commit the underlying crime, the accused must be aware

that there is an attack on the civilian population and that his or her acts form part of that

attack.This requirement does not imply knowledge of the details of the attack. In addition, the

accused need not share the ultimate purpose or goal underlying the attack: the motives for

his or her participation in the attack are irrelevant, and a crime against humanity may even

be committed exclusively for personal reasons.

38Ibid, par. 138

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