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LISTING OF CASES INCLUDED

[This compendium is complete through July 30, 2003, and includes the following cases:]

Prosecutor v. Aleksovski, Case No. IT-95-14/1 (Appeals Chamber), March 24, 2000.

Prosecutor v. Aleksovski, Case No. IT-95-14/1 (Trial Chamber), June 25, 1999.

Prosecutor v. Blaskic, Case No. IT-95-14 (Trial Chamber), March 3, 2000.

Prosecutor v. Erdemovic, Case No. IT-96-22 (Appeals Chamber), Joint Separate Opinion of Judge McDonald and Judge Vohrah, October 7, 1997.

Prosecutor v. Erdemovic, Case No. IT-96-22 (Trial Chamber), March 5, 1998.

Prosecutor v. Furundzija, Case No. IT-95-17/1 (Appeals Chamber), July 21, 2000.

Prosecutor v. Furundzija, Case No. IT-95-17/1 (Trial Chamber), December 10, 1998.

Prosecutor v. Jelisic, Case No. IT-95-10 (Appeals Chamber), July 5, 2001.

Prosecutor v. Jelisic, Case No. IT-95-10 (Trial Chamber), December 14, 1999.

Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2 (Trial Chamber), February 26, 2001.

Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2 (Bureau Decision), May 4, 1998, & (Trial Chamber), May 21, 1998.

Prosecutor v. Krnojelac, Case No. IT-97-25 (Trial Chamber), March 15, 2002.

Prosecutor v. Krstic, Case No. IT-98-33 (Trial Chamber), August 2, 2001.

Prosecutor v. Kunarac, Kovac and Vokovic, Case No. IT-96-23 and IT-96-23/1 (Appeals Chamber), June 12, 2002.

Prosecutor v. Kunarac, Kovac and Vukovic, Case No. IT-96-23 and IT-96-23/11 (Trial Chamber), February 22, 2001.

Prosecutor v. Kupreskic et al., Case No. IT-95-16 (Trial Chamber), January 14, 2000.

Prosecutor v. Kvocka et al., Case No. IT-98-30/1 (Trial Chamber), November 2, 2001.

Prosecutor v. Mucic et al., Case No. IT-96-21 (Appeals Chamber), April 8, 2003.

Prosecutor v. Mucic et al., Case No. IT-96-21 (Appeals Chamber), February 20, 2001.

Prosecutor v. Mucic et al., Case No. IT-96-21 (Trial Chamber), November 16, 1998.

Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34 (Trial Chamber), March 31, 2003.

Prosecutor v. Plavsic, Case No. IT-00-39&40/1 (Trial Chamber), February 27, 2003.

Prosecutor v. Rajic, Case No. IT-95-12 (Trial Chamber), Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, September 13, 1996.

Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), November 13, 2001.

Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), September 3, 2001.

Prosecutor v. Simic, Case No. IT-95-9/2-S (Trial Chamber), October 17, 2002.

Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995.

Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), January 31, 2000.

Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), January 26, 2000.

Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), July 15, 1999.

Prosecutor v. Tadic, Case No. IT-94-1 (Trial Chamber), November 11, 1999.

Prosecutor v. Tadic, Case No. IT-94-1 (Trial Chamber), May 7, 1997.

Prosecutor v. Todorovic, Case No. IT-95-9/1 (Trial Chamber), July 31, 2001.

Prosecutor v. Vasiljevic, Case No. IT-98-32-T (Trial Chamber), November 29, 2002.


I) WAR CRIMES: GRAVE BREACHES OF THE GENEVA CONVENTIONS OF 1949 (Article 2)

a) Statute

ICTY Statute, Article 2:

“The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;

(b) torture or inhuman treatment, including biological experiments;

(c) wilfully causing great suffering or serious injury to body or health;

(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

(g) unlawful deportation or transfer or unlawful confinement of a civilian;

(h) taking civilians as hostages.”

b) General elements for Article 2 crimes 

Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34 (Trial Chamber), March 31, 2003, para. 176: “Article 2 of the Statute deals with grave breaches of the Geneva Conventions of 1949.  The applicability of Article 2 of the Statute is subject to four prerequisites: an armed conflict must exist; there must be a nexus between this conflict and the crimes alleged; the armed conflict must be international in scope; and the persons or property subject of grave breaches must be defined as ‘protected’ in the Geneva Conventions.”

i) the existence of an armed conflict (element 1)

(1) armed conflict required

Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2 (Trial Chamber), February 26, 2001, para. 22: “Articles 2 and 3 of the Statute set forth provisions which reflect the laws of war; plainly a pre-condition to the applicability of these Articles is the existence of an armed conflict in the territory where the crimes are alleged to have occurred.”

(2) armed conflict defined

Prosecutor v. Kunarac, Kovac and Vokovic, Case No. IT-96-23 and IT-96-23/1 (Appeals Chamber), June 12, 2002, para. 56: “An ‘armed conflict’ is said to exist ‘whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.’”  See also Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 70 (same).

(3) duration of application of international humanitarian law

Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 70: “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.”

ii) there must be a nexus between the conflict and crimes alleged (element 2)

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 32: “[I]n order for a particular crime to qualify as a violation of international humanitarian law under Articles 2 and 3 of the Statute, the Prosecution must also establish a sufficient link between that crime and the armed conflict.  In this regard, the Appeals Chamber has held that: Even if substantial clashes were not occurring in the [specific region] at the time and place the crimes were allegedly committed . . . international humanitarian law applies.  It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.”

Prosecutor v. Blaskic, Case No. IT-95-14 (Trial Chamber), March 3, 2000, para. 69: “[I]t is imperative to find an evident nexus between the alleged crimes and the armed conflict as a whole.  This does not mean that the crimes must all be committed in the precise geographical region where an armed conflict is taking place at a given moment.  To show that a link exists, it is sufficient that:  ‘the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.’”

iii) the armed conflict must be international (element 3)

(1) international armed conflict defined

Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), July 15, 1999, para. 84: “It is indisputable that an armed conflict is international if it takes place between two or more States.  In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 66: “In the Tadic case, the Appeals Chamber conducted an extensive review of the applicable law as to how an internal armed conflict becomes internationalized for the purposes of Article 2 of the Statute.  The Appeals Chamber held: ‘. . . in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.’” 

(2) overall control test applies

Tadic, (Appeals Chamber), July 15, 1999, para. 146: “The Appeals Chamber has concluded that in general international law, three tests may be applied for determining whether an individual is acting as a de facto State organ.  In the case of individuals forming part of armed forces or military units, as in the case of any other hierarchically organised group, the test is that of overall control by the State.”1

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 111: Tadic “established that an armed conflict, which is otherwise internal, is internationalised if a foreign state exercises ‘overall control’ over the military forces of one of the parties to that conflict.”  

Prosecutor v. Mucic et al., Case No. IT-96-21 (Appeals Chamber), February 20, 2001, para. 26: “The ‘overall control’ test set forth in the Tadic Appeal Judgement is . . . the applicable criteria for determining the existence of an international armed conflict.”

Prosecutor v. Aleksovski, Case No. IT-95-14/1 (Appeals Chamber), March 24, 2000, para. 134, 145: “[T]he Appeals Chamber will follow its decision in the Tadic Judgement, since, after careful analysis, it is unable to find any cogent reason to depart from it,” and the “‘overall control’ test, set out in the Tadic Judgement is the applicable law.”  “The ‘overall control’ test calls for an assessment of all the elements of control taken as a whole, and a determination to be made on that basis as to whether there was the required degree of control.”

(3) overall control test satisfied where a state has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support

Tadic, (Appeals Chamber), July 15, 1999, para. 137, 138: “[C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training).  This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation.  Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law.  The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.  Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.”  “[I]f the controlling State is not the territorial State where the armed clashes occur or where at any rate the armed units perform their acts, more extensive and compelling evidence is required to show that the State is genuinely in control of the units or groups not merely by financing and equipping them, but also by generally directing or helping plan their actions.”  See also Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 184.

(4) do not just look at the locality where the crimes occurred to determine if conflict is international

Tadic, (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 70: “[I]nternational 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.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 70: “[I]t would be wrong to construe the Appeals Chamber’s decision [in Tadic] as meaning that evidence as to whether a conflict in a particular locality has been internationalized must necessarily come from activities confined to the specific geographical area where the crimes were committed, and that evidence of activities outside that area is necessarily precluded in determining that question.” 

Blaskic, (Trial Chamber), March 3, 2000, para. 64: “It is not necessary to establish the existence of an armed conflict within each municipality concerned.  It suffices to establish the existence of the conflict within the whole region of which the municipalities are a part.”

(5) application

(a) conflict between Bosnia and Herzegovina and Croatia

Prosecutor v. Rajic, Case No. IT-95-12 (Trial Chamber), Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, September 13, 1996, para. 13, 26, 32: “[F]or purposes of the application of the grave breaches provisions of Geneva Convention IV, the significant and continuous military action by the armed forces of Croatia in support of the Bosnian Croats against the forces of the Bosnian Government on the territory of the latter was sufficient to convert the domestic conflict between the Bosnian Croats and the Bosnian Government into an international one.”  “[B]etween 5000 to 7000 members of the Croatian Army, as well as some members of the Croatian Armed Forces (‘HOS’), were present in the territory of Bosnia and were involved, both directly and through their relations with Croatian Community of Herceg-Bosna (‘HB’) and the Croatian Defence Council (‘HVO’), in clashes with Bosnian Government forces in central and southern Bosnia.  [T]he Bosnian Croats can, for the purposes of these proceedings, be regarded as agents of Croatia in respect of discrete acts which are alleged to be violations of the grave breaches provisions of the Geneva Conventions.  It appears that Croatia, in addition to assisting the Bosnian Croats . . . inserted its own armed forces into the conflict on the territory of Bosnia and exercised a high degree of control over both the military and political institutions of the Bosnian Croats.”

Blaskic, (Trial Chamber), March 3, 2000, para. 83-123: The Trial Chambers concluded that “[b]ased on Croatia’s direct intervention in BH [Republic of Bosnia and Herzegovina]” there was “ample proof to characterise the conflict as international,” and that Croatia’s “indirect control over the HVO [Croatian Defence Council] and HZHB [Croatian Community of Herceg-Bosna]” and “indirect intervention” would “permit the conclusion that the conflict was international.”  The Trial Chamber found that “Croatia, and more specifically former President Tudjman, was hoping to partition Bosnia and exercised such a degree of control over the Bosnian Croats and especially the HVO that it is justified to speak of overall control.  [T]he close ties between Croatia and the Bosnian Croats did not cease with the establishment of the HVO.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 108-146: The Trial Chamber concluded that the relevant issues were (a) whether Croatia intervened in the armed conflict between the Bosnian Muslims and the Bosnian Croats in Bosnia and Herzegovina through its troops and, alternatively, (b) whether the HVO [Croatian Defence Council] acted on behalf of Croatia.  “The Chamber concludes that the evidence in this case satisfies each of the alternative criteria set forth . . . for internationalising an internal conflict.” 

(b) conflict between Bosnia and Herzegovina and the Federal Republic of Yugoslavia (FRY)

Tadic, (Appeals Chamber), July 15, 1999, para. 156, 162: “It is sufficient to show that [the Yugoslav Army] exercised overall control over the Bosnian Serb Forces.  Such control manifested itself not only in financial, logistical and other assistance and support, but also, and more importantly, in terms of participation in the general direction, coordination and supervision of the activities and operations of the VRS [the Army of the Serbian Republic of Bosnia and Herzegovina/Republika Srpska].  This sort of control is sufficient for the purposes of the legal criteria required by international law.”  “[F]or the period material to this case (1992), the armed forces of the Republika Srpska were to be regarded as acting under the overall control of and on behalf of the FRY [the Federal Republic of Yugoslavia (Serbia and Montenegro)].  Hence, even after 19 May 1992 the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authorities of Bosnia and Herzegovina must be classified as an international armed conflict.”  See also Tadic, (Appeals Chamber), July 15, 1999, para. 87.

Mucic et al., (Appeals Chamber), February 20, 2001, para. 33, 48, 50: “The Trial Chamber’s finding as to the nature of the conflict prior to 19 May 1992 is based on a finding of a direct participation of one State on the territory of another State.  This constitutes a plain application of the holding of the Appeals Chamber in Tadic that it ‘is indisputable that an armed conflict is international if it takes place between two or more States,’ which reflects the traditional position of international law. . . .”  “Although the Trial Chamber did not formally apply the ‘overall control’ test set forth by the Tadic Appeal Judgement, . . . the Trial Chamber’s legal reasoning is entirely consistent with the previous jurisprudence of the Tribunal.”  “The Trial Chamber came to the conclusion, as in the Tadic case, that the armed conflict taking place in Bosnia and Herzegovina after 19 May 1992 could be regarded as international because the FRY remained the controlling force behind the Bosnian Serbs armed forces after 19 May 1992. . . . [T]his Appeals Chamber is satisfied that the facts as found by the Trial Chamber fulfil the legal conditions as set forth in the Tadic case.”

iv) the person or property at issue must be “protected” (element 4)

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 176: The fourth requirement for applicability of Article 2 of the Statute is “the persons or property subject of grave breaches must be defined as ‘protected’ in the Geneva Conventions.”

(1) protected persons defined

Tadic, (Appeals Chamber), July 15, 1999, para. 168: “Protected persons” are those “who do not enjoy . . . diplomatic protection,” and “are not subject to the allegiance and control, of the State in whose hands they may find themselves.”

Blaskic, (Trial Chamber), March 3, 2000, para. 145: “[I]n those situations where civilians do not enjoy the normal diplomatic protection of their State, they should be accorded the status of protected person.”

Compare Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 147: “Article 4 of Geneva Convention IV defines protected persons as: those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the Conflict or Occupying Power of which they are not nationals.”

(2) use ethnicity or substance of relations and not formal nationality to determine protected status

Tadic, (Appeals Chamber), July 15, 1999, para. 166-169: “Th[e] legal approach [for defining protected persons], hinging on substantial relations more than on formal bonds, becomes all the more important in present-day international armed conflicts.  While previously wars were primarily between well-established States, in modern inter-ethnic armed conflicts such as that in the former Yugoslavia, new States are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance.  Or, put another way, ethnicity may become determinative of national allegiance.  Under these conditions, the requirement of nationality is even less adequate to define protected persons.”  It is “the substance of relations” between the parties, “not . . . their legal characterisation” which is controlling.  “[T]he victims were ‘protected persons’ as they found themselves in the hands of armed forces of a State of which they were not nationals” and they “did not owe allegiance to (and did not receive the diplomatic protection of) the State (the FRY) on whose behalf the Bosnian Serb armed forces had been fighting.”

Blaskic, (Trial Chamber), March 3, 2000, para. 126-127: The Trial Chamber followed the Tadic Appeals Chamber which chose a “‘legal approach hinging more on substantial relations than on formal bonds,’. . . .”  “In an inter-ethnic armed conflict, a person’s ethnic background may be regarded as a decisive factor in determining to which nation he owes his allegiance and may thus serve to establish the status of the victims as protected persons.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 152: “[T]he Appeals Chamber in Tadic concluded that ‘allegiance to a Party to the conflict and, correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test.’  In such a case, nationality is not as crucial as allegiance to a party.  [T]he Bosnian Muslim victims are protected persons since they owe no allegiance to the Bosnian Croats under whose effective control they were.”

(3) protected persons can be same nationality as captor

Mucic et al., (Appeals Chamber), February 20, 2001, para. 81, 84: “[D]epriving victims, who arguably are of the same nationality under domestic law as their captors, of the protection of the Geneva Conventions solely based on that national law would not be consistent with the object and purpose of the Conventions.”  “The nationality of the victims for the purpose of the application of Geneva Convention IV should not be determined on the basis of formal national characterisations, but rather upon an analysis of the substantial relations, taking into consideration the different ethnicity of the victims and the perpetrators, and their bonds with the foreign intervening State.”

Aleksovski, (Appeals Chamber), March 24, 2000, para. 151: “[I]n certain circumstances, Article 4 [of Geneva Convention IV] may be given a wider construction so that a person may be accorded protected status, notwithstanding the fact that he is of the same nationality as his captors.”

(4) “in the hands of a Party to the Conflict or Occupying Power” defined

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 208: The Chamber held that “the expression ‘in the hands of’ a party or occupying power, as it appears in Article 4 of Geneva Convention IV, refers to persons finding themselves on the territory controlled by that party or occupying power.”

c) Mental state (mens rea)

i) generally

Blaskic, (Trial Chamber), March 3, 2000, para. 152: “[T]he mens rea constituting all the violations of Article 2 of the Statute includes both guilty intent and recklessness which may be likened to serious criminal negligence.”

See also discussion of the mens rea for willful killing, Section (I)(d)(i)(2); mens rea for extensive destruction of property not justified by military necessity, Section (I)(d)(v); and mens rea for unlawful transfer, Section (I)(d)(vii), ICTY Digest.

d) Underlying offenses

i) willful killing

(1) defined

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 229: “[I]n relation to the crime of wilful killing, the actus reus – the physical act necessary for the offence – is the death of the victim as a result of the actions or omissions of the accused.  [T]he conduct of the accused must be a substantial cause of the death of the victim, who must have been a ‘protected person.’”

Blaskic, (Trial Chamber), March 3, 2000, para. 153: “For the material element of the offence, it must be proved that the death of the victim was the result of the actions of the accused. . . .”

(2) mental state (mens rea)

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 229: “To satisfy the mens rea for wilful killing, it must be established that the accused had the intent to kill, or to inflict serious bodily injury in reckless disregard of human life.”

Blaskic, (Trial Chamber), March 3, 2000, para. 153: “The intent, or mens rea, needed to establish the offence of wilful killing exists once it has been demonstrated that the accused intended to cause death or serious bodily injury which, as it is reasonable to assume, he had to understand was likely to lead to death.”

See also discussion of murder under Article 3, Section (II)(d)(iv) and murder under Article 5, Section (IV)(c)(i), ICTY Digest.

ii) torture or cruel and inhuman treatment

(1) torture

See discussion of torture under Article 3, Section (II)(d)(i), and Article 5, Section (IV)(c)(v), ICTY Digest.

(2) cruel and inhuman treatment

(a) generally

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 246: “[O]ffences of inhuman treatment and cruel treatment are residual clauses under Articles 2 and 3 of the Statute respectively.  Materially, the elements of these offences are the same.”  “The degree of physical or mental suffering required to prove either one of those offences is lower than the one required for torture, though at the same level as the one required to prove a charge of ‘wilfully causing great suffering or serious injury to body or health.’”

(b) cruel treatment

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 246: “Cruel treatment is constituted by a) an intentional act or omission, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity, b) committed against a person taking no active part in the hostilities.”

(c) inhuman treatment

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 246: “Inhuman treatment is defined as a) an intentional act or omission, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity, b) committed against a protected person.”  See also Aleksovski, (Appeals Chamber), March 24, 2000, para. 26.

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 256: “[I]nhuman treatment is 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.  [T]he act must have been directed against a ‘protected person.’”

Blaskic, (Trial Chamber), March 3, 2000, para. 154-155: “‘[I]nhuman treatment is 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 [ . . . ]  Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed “grave breaches” in the Conventions fall.  Hence, acts characterised in the Conventions and Commentaries as inhuman, or which are inconsistent with the principle of humanity, constitute examples of actions that can be characterised as inhuman treatment.’”  “[T]he category ‘inhuman treatment’ included not only acts such as torture and intentionally causing great suffering or inflicting serious injury to body, mind or health but also extended to other acts contravening the fundamental principle of humane treatment, in particular those which constitute an attack on human dignity.”

(d) application

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 256: “[I]njuries, inhuman treatment of detainees, and use of persons as human shields may be characterized as ‘inhuman treatment.’”

See also discussion of cruel treatment under Article 3, Section (II)(d)(iii), ICTY Digest.

iii) rape

See discussion of rape under Article 3, Sections (II)(d)(i)(7)(b) and (II)(d)(ii), and Article 5, Section (IV)(c)(vi), ICTY Digest.

iv) willfully causing great suffering or serious injury to body or health

(1) defined

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 245: “[T]he crime of willfully causing great suffering or serious injury to body or health constitutes an intentional act or omission which causes serious mental or physical suffering or injury, provided the requisite level of suffering or injury can be proven.”  “As with all offences charged under Article 2 of the Statute, there is a further requirement that the acts must have been directed against a ‘protected person.’”

Blaskic, (Trial Chamber), March 3, 2000, para. 156: “This offence is an intentional act or omission consisting of causing great suffering or serious injury to body or health, including mental health.  This category of offences includes those acts which do not fulfil the conditions set for the characterisation of torture, even though acts of torture may also fit the definition given.  An analysis of the expression ‘wilfully causing great suffering or serious injury to body or health’ indicates that it is a single offence whose elements are set out as alternative options.”

(2) requires showing of serious mental or physical injury, although need not be permanent or irremediable

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 245: “This crime is distinguished from that of inhuman treatment in that it requires a showing of serious mental or physical injury.  Thus, acts where the resultant harm relates solely to an individual’s human dignity are not included within this offence.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 339-343: “The Commentary to Article 147 of Geneva Convention IV describes the offence of wilfully causing great suffering as referring to suffering which is inflicted without ends in view for which torture or biological experiments are carried out.  It could be inflicted for other motives such as punishment, revenge or out of sadism, and could also cover moral suffering.  In describing serious injury to body or health, it states that the concept usually uses as a criterion of seriousness the length of time the victim is incapacitated for work…. This offence includes those acts that do not fulfil the conditions set for torture even though acts of torture may also fit the definition given. . . . [S]erious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment, or humiliation.  It must be harm that results in a grave and long-term disadvantage to a person’s ability to led a normal and constructive life.”

v) extensive destruction of property not justified by military necessity

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 574-580: “[T]wo types of property are protected under the grave breach regime: i) property, regardless of whether or not it is in occupied territory, that carries general protection under the Geneva Conventions of 1949, such as civilian hospitals, medical aircraft and ambulances; and ii) property protected under Article 53 of the Geneva Convention IV, which is real or personal property situated in occupied territory when the destruction was not absolutely necessary by military operations.  The Chamber holds that Article 2(d) of the Statute requires the destruction to be extensive regardless of whether the property is characterised as carrying general protection or is protected because it is situated on occupied territory.  A single act may, in exceptional circumstances, be interpreted as fulfilling the requirement of extensiveness, as for instance the bombing of a hospital.”

“[A] crime under Article 2(d) of the Statute has been committed when: i) the general requirements of Article 2 of the Statute are fulfilled; ii) property was destroyed extensively; iii) the extensive destruction regards property carrying general protection under the Geneva Conventions of 1949, or; the extensive destruction not absolutely necessary by military operations regards property situated in occupied territory; iv) the perpetrator acted with the intent to destroy this property or in reckless disregard of the likelihood of its destruction.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 335-341: “[T]he crime of extensive destruction of property as a grave breach comprises the following elements, either: (i) Where the property destroyed is of a type accorded general protection under the Geneva Conventions of 1949, regardless of whether or not it is situated in occupied territory; and the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction; or (ii) Where the property destroyed is accorded protection under the Geneva Conventions, on account of its location in occupied territory; and the destruction occurs on a large scale; and (iii) the destruction is not justified by military necessity; and the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction.”

Blaskic, (Trial Chamber), March 3, 2000, para. 157: “An occupying Power is prohibited from destroying movable and non-movable property except where such destruction is made absolutely necessary by military operations.  To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton.  The notion of ‘extensive’ is evaluated according to the facts of the case – a single act, such as the destruction of a hospital, may suffice to characterise an offence under this count.”

See also discussion of “wanton destruction not justified by military necessity” under Article 3, Section (II)(d)(viii), ICTY Digest.                          

vi) unlawful confinement of civilians and imprisonment

(1) generally

Mucic et al., (Appeals Chamber), February 20, 2001, para. 322, 327: “[T]he exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42 [Geneva Convention IV], and where the provisions of Article 43 [Geneva Convention IV] are complied with. Thus the detention or confinement of civilians will be unlawful in the following two circumstances: (i) when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e. they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and (ii) where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.”  “It is perfectly clear from the provisions of Geneva Convention IV . . . that there is no such blanket power to detain the entire civilian population of a party to the conflict in such circumstances, but that there must be an assessment that each civilian taken into detention poses a particular risk to the security of the State.”  “[T]he mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him.”

(2) responsibility more properly allocated to those responsible for detention, not those who merely participate in it, such as those who maintain a prison

Mucic et al., (Appeals Chamber), February 20, 2001, para. 342: “The Appeals Chamber is of the view that to establish that an individual has committed the offence of unlawful confinement, something more must be proved than mere knowing ‘participation’ in a general system or operation pursuant to which civilians are confined.  In the Appeals Chamber’s view, the fact alone of a role in some capacity, however junior, in maintaining a prison in which civilians are unlawfully detained is an inadequate basis on which to find primary criminal responsibility of the nature which is denoted by a finding that someone has committed a crime.  Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist.  The Appeals Chamber, however, does not accept that a guard’s omission to take unauthorised steps to release prisoners will suffice to constitute the commission of the crime of unlawful confinement.”

(3) responsibility of camp commander

Mucic et al., (Appeals Chamber), February 20, 2001, para. 378-379: “[A] person in the position of Mucic [commander of the Celebici prison camp in the village of Celebici] commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where (i) he has no reasonable grounds to believe that the detainees do not [sic] pose a real risk to the security of the state; or (ii) he knows that they have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not).”  “Where a person who has authority to release detainees knows that persons in continued detention have a right to review of their detention and that they have not been afforded that right, he has a duty to release them.  Therefore, failure by a person with such authority to exercise the power to release detainees, whom he knows have not been afforded the procedural rights to which they are entitled, commits the offence of unlawful confinement of civilians, even if he is not responsible himself for the failure to have their procedural rights respected.” 

vii) unlawful transfer

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 519-521: “Forcible transfer is the movement of individuals under duress from where they reside to a place that is not of their choosing.”  “In order [for] the Chamber to be satisfied [that] Article 2(g) of the Statute [has been proven], proof of the following is required: i) the general requirements of Article 2 of the Statute . . . ; ii) the occurrence of an act or omission, not motivated by the security of the population or imperative military reasons, lead[s] to the transfer of a person from occupied territory or within occupied territory; iii) the intent of the perpetrator to transfer a person.”  “The Prosecution needs to prove the intent to have the person (or persons) removed, which implies the aim that the person is not returning.”

viii) taking civilians as hostages

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 311-314: “[A]n individual commits the offence of taking civilians as hostages when he threatens to subject civilians, who are unlawfully detained, to inhuman treatment or death as a means of achieving the fulfilment of a condition.”

Blaskic, (Trial Chamber), March 3, 2000, para. 158: “Within the meaning of Article 2 of the Statute, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death.”  “The Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage.  The elements of the offence are similar to those . . . covered under Article 3 of the Statute.”

See also discussion of “taking of hostages” under Article 3, Section (II)(d)(vii), ICTY Digest.

e) Miscellaneous

i) occupation (relevant to unlawful labor of civilians, unlawful transfer and destruction of property)

(1) where “occupation” is relevant

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 210: “Occupation is relevant in dealing with the charges of unlawful labour of civilians . . . , forcible transfer of a civilian . . . and destruction of property.”

See discussion of unlawful labor under Article 3, Section (II)(d)(xii); unlawful transfer and “extensive destruction of property not justified by military necessity” both under Article 2, Sections (I)(d)(vii) and (I)(d)(v), ICTY Digest.

(2) definition

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 214-216: “Occupation is defined as a transitional period following invasion and preceding the agreement on the cessation of the hostilities.  This distinction imposes more onerous duties on an occupying power than on a party to an international armed conflict.”  The Chamber endorsed the definition of occupation set forth in Article 42 of the Hague Regulations: “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army.  The occupation extends only to the territory where such authority has been established and can be exercised.”  The Chamber stated that the “overall control test, submitted in the Blaskic Trial Judgement, is not applicable to the determination of the existence of an occupation. . . . [T]here is an essential distinction between the determination of a state of occupation and that of the existence of an international armed conflict.  The application of the overall control test is applicable to the latter.  A further degree of control is required to establish occupation.”

(3) guidelines for determining occupation

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 217: The Chamber set out the following guidelines to help “determine whether the authority of the occupying power has been actually established”:

· “the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly”;

· “the enemy’s forces have surrendered, been defeated or withdrawn.  In this respect, battle areas may not be considered as occupied territory.  However, sporadic local resistance, even successful, does not affect the reality of occupation”;

· “the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt”;

· “a temporary administration has been established over the territory”;

· “the occupying power has issued and enforced directions to the civilian population.”     

(4) only applies to areas actually controlled by the occupying power

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 218: “[T]he law of occupation only applies to those areas actually controlled by the occupying power and ceases to apply where the occupying power no longer exercises an actual authority over the occupied area.”  The court “must determine on a case by case basis whether this degree of control was established at the relevant times and in the relevant places.”  “[T]here is no requirement that an entire territory be occupied, provided that the isolated areas in which the authority of the occupied power is still functioning ‘are effectively cut off from the rest of the occupied territory.’”

(5) different test would apply regarding individuals or property and other matters

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 222: The Chamber held that it “will have recourse to different legal tests to determine whether the law of occupation applies, depending on whether it is dealing with individuals or with property and other matters.”  In the present case, the forcible transfer and the unlawful labor of civilians “were prohibited from the moment that they fell into the hands of the opposing power, regardless of the stage of the hostilities.”



1 For discussion of the “effective control,” “specific instructions,” and “assimilation of individuals to State organs on account of their actual behavior within the structure of a State” tests discussed in Tadic, see Tadic, (Appeals Chamber), July 15, 1999, para. 115-137, 141-144.


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February 2004