Judgment of the International Criminal Tribunal for the Former Yugoslavia
in the case of

Delalic et al. (I.T-96-21) "Celebici" 16 November 1998

Part III A

Applicable law

A. General Principles of Interpretation

158. The question of interpretation of the provisions of the Statute and Rules has continuously arisen throughout the proceedings in the present case. The Trial Chamber is aware that the meaning of the word "interpretation" in the context of statutes, including the Statute of the Tribunal, may be explained both in a broad and in a narrow sense. In its broad sense, it involves the creative activities of the judge in extending, restricting or modifying a rule of law contained in its statutory form. In its narrow sense, it could be taken to denote the role of a judge in explaining the meaning of words or phrases used in a statute. Within the context of the provisions of the Rules, the meaning of "interpretation" assumes a special complexity. This is because of the approach adopted in the formulation of these provisions, which accommodate principles of law from the main legal systems of the world.

159. The Tribunal’s Statute and Rules consist of a fusion and synthesis of two dominant legal traditions, these being the common law system, which has influenced the English-speaking countries, and the civil law system, which is characteristic of continental Europe and most countries which depend on the Code system. It has thus become necessary, and not merely expedient, for the interpretation of their provisions, to have regard to the different approaches of these legal traditions. It is conceded that a particular legal system’s approach to statutory interpretation is shaped essentially by the particular history and traditions of that jurisdiction. However, since the essence of interpretation is to discover the true purpose and intent of the statute in question, invariably, the search of the judge interpreting a provision under whichever system, is necessarily the same. It is, therefore, useful at the outset to discuss some of the rules which could be usefully applied in the interpretation of our enabling provisions.

160. It cannot be disputed that the cornerstone of the theory and practice of statutory interpretation is to ensure the accurate interpretation of the words used in the statute as the intention of the legislation in question. In all legal systems, the primary task of the court or judge interpreting a provision is to ascertain the meaning of that particular statutory provision.

161. In every legal system, whether common law or civil law, where the meaning of the words in a statute is clearly defined, the obligation of the judge is to give the words their clearly defined meaning and apply them strictly. This is the literal rule of interpretation²⁰⁶. If only one construction is possible, to which the clear, plain or unambiguous word is unequivocally susceptible, the word must be so construed. In cases of ambiguity, however, all legal systems consider methods for determining how to give effect to the legislative intention.

162. Where the use of a word or expression leads to absurdity or repugnance, both common law and civil law courts will disregard the literal or grammatical meaning. Under the golden rule of interpretation, the common law court as well as the civil law court will modify the grammatical sense of the word to avoid injustice, absurdity, anomaly or contradiction, as clearly not to have been intended by the legislature²⁰⁷. Where the grammatical meaning is ambiguous and suggests more than one meaning, the text of the provision in question may be construed under the logical interpretation approach of civil law jurisprudence, or the golden rule of common law jurisprudence. If the literal meaning of the provision does not resolve the issue, the civil law courts may resort to analogy to extract the meaning.

163. The ‘teleological approach’, also called the ‘progressive’ or ‘extensive’ approach, of the civilian jurisprudence, is in contrast with the legislative historical approach. The teleological approach plays the same role as the ‘mischief rule’ of common law jurisprudence. This approach enables interpretation of the subject matter of legislation within the context of contemporary conditions. The idea of the approach is to adapt the law to changed conditions, be they special, economic or technological, and attribute such change to the intention of the legislation.

164. The mischief rule (also known as the purposive approach), is said to have originated from Heydon’s case, decided by the ancient English Court of Exchequer in 1584. In Heydon’s case²⁰⁸, four questions were posed in order to discover the intention of the legislation in question: (a) what was the common law before the making of the Act; (b) what was the mischief and defect for which the common law did not provide; (c) what remedy has Parliament resolved and appointed to cure the disease; and (d) the true reason for the remedy. According to the approach taken, the court is enjoined to suppress the mischief and advance the remedy. This requires looking at the legislative history for the "mischief" which may not be obvious on the face of the statute. This approach to interpretation is generously relied upon in Continental and American courts. In the important case of AG v. Prince Ernest Augustus of Hanover²⁰⁹, Viscount Simonds spelled out what he regarded as the meaning of context in the construction of statutes, as follows:

     (a) other enacting provisions of the same Statute;

     (b) its preamble;

     (c) the existing state of the law;

     (d) other statutes in pari materia;

     (e) the mischief which the statute was intended to remedy.

     In addition, the object of a statute or treaty is to be taken into consideration in arriving at the ordinary meaning of its provisions. ²¹⁰

165. The method of judicial ‘gap-filling’, which may be adopted under the teleological interpretation of the civilian jurisprudence, would, under a common law approach, suggest two approaches. The first of these is to consider that, because the observation of the doctrine of the separation of powers preserves the judicial function to the judiciary, any judicial law-making would be an abuse of the legislative function by the judiciary²¹¹. The second view is that courts are established to ascertain and give effect to the intention of the legislature²¹². Filling any gap is also a means of securing this objective. The common law has rejected both views²¹³, despite an attempt to argue that the filling of gaps is part of the judicial role in the interpretation of statutes. The interpretative role of the judiciary is, however, never denied.

166. The Trial Chamber would here refer to some other canons of interpretation, as illustrative in the interpretation of statutes. The five most common canons are:

     (a) reading the text as a whole;

     (b) giving technical words their technical meaning;

     (c) reading words in their context noscitur a sociis;

     (d) the ejusdem generis rule and the rank rule;

     (e) the expressio unius est exclusio alterius rule.

167. In addition to the above, there are presumptions and precedents which are valuable aids to interpretation. The proper status of decided cases as judicial precedents and aids to interpretation is still not settled. The question is whether previous decisions involving words judicially interpreted are binding as to interpretation of the same words in a different statute. The general rule is that they are not. This view is based on the fact that the ratio decidendi of each case will be specific and confined to the particular piece of legislation being considered. The reasoning on the interpretation of the words of a statute will apply to cases decided on the same legislation. It does not necessarily relate to another statute. It might thus seem that decisions from the Appeals Chamber of the Tribunal on the provisions of the Statute ought to be binding on Trial Chambers, this being the fundamental basis of the appellate process. However, decisions from the same or other jurisdictions which have not construed the same provisions in their decisions as the case being considered, are of merely "persuasive" value.

3. Differences in Statutory Interpretation Between Systems

168. Notwithstanding the similarity between the various systems, some of the significant differences in judicial attitudes towards the use of precedents as an aid to the interpretation of statutes ought to be mentioned. These are differences in:

     (i) materials used in argument;

     (ii) use of travaux préparatoires;

     (iii) styles in judicial opinion;

     (iv) styles of justification;

     (v) levels of abstraction;

     (vi) modes of rationality.

     Materials used in argument consist of authoritative and non-authoritative materials, which correspond with the idea of binding and non-binding materials. Authoritative texts which are binding include the statute itself, related instruments, and general principles of law or customary law, whereas dictionaries, technical lexicons and other factors which might have led to the passing of the statute are non-authoritative.

169. It seems to the Trial Chamber that any travaux préparatoires, opinions expressed by members of the Security Council when voting on the relevant resolutions, and the views of the Secretary-General of the United Nations expressed in his Report, on the interpretation of the Articles of the Tribunal’s Statute cannot be ignored in the interpretation of provisions which might be deemed ambiguous. The vast majority of members of the international community rely upon such sources in construing international instruments.

4. Conclusion

170. The International Tribunal is an ad hoc international court, established with a specific, limited jurisdiction. It is sui generis, with its own appellate structure. The interpretation of the provisions of the Statute and Rules must, therefore, take into consideration the objects of the Statute and the social and political considerations which gave rise to its creation. The kinds of grave violations of international humanitarian law which were the motivating factors for the establishment of the Tribunal continue to occur in many other parts of the world, and continue to exhibit new forms and permutations. The international community can only come to grips with the hydra-headed elusiveness of human conduct through a reasonable as well as a purposive interpretation of the existing provisions of international customary law. Thus, the utilisation of the literal, golden and mischief rules of interpretation repays effort.

171. It is with these general observations on interpretation in mind that the Trial Chamber turns its attention to the particular provisions of the Tribunal’s Statute which are applicable in the present case.

B. Applicable Provisions of the Statute

172. The following Articles of the Statute of the International Tribunal are those which the Trial Chamber must consider in rendering its Judgement in the present case. Each of these is discussed in turn below.

Article 1

Competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.

Article 2

Grave breaches of the Geneva Conventions of 1949

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.

Article 3

Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;

(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;

(e) plunder of public or private property.

Article 7

Individual criminal responsibility

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

 

C. General Requirements for the Application of Articles 2 and 3 of the Statute

1. Provisions of Article 1

173. The terms of Article 1 provide the starting point for any discussion of the jurisdiction of the International Tribunal and constitute the basis for the more detailed provisions of the articles on jurisdiction which follow. The Tribunal is hereby confined to concerning itself with "serious violations of international humanitarian law" committed within a specific location and time-period. It is within this frame of reference that the Trial Chamber must consider the acts alleged in the Indictment and the applicability of Articles 2 and 3 of the Statute.

174. There is no question that the temporal and geographical requirements of Article 1 have been met in the present case. In their closing written submissions, however, each of the accused, with the exception of Mr. Mucic, challenge the jurisdiction of the Tribunal on the basis that the crimes charged in the Indictment cannot be regarded as "serious" violations of international humanitarian law²¹⁴. This argument was first raised by the Defence in their Motion to Dismiss, although it is unclear in that document whether it is being asserted by all of the accused (excluding Mr. Mucic, who filed a separate motion) or only by the Defence for Mr. Landzo.

175. The Defence²¹⁵ asserts that the International Tribunal was established by the United Nations Security Council to prosecute and punish only the most serious violators of international humanitarian law, that is, those persons in positions of political or military authority, responsible for the most heinous atrocities. The Defence states that the International Tribunal should not "become bogged down in trying lesser violators for lesser violations" as such persons are more appropriately the subjects of prosecution by national courts²¹⁶. In addition, it is argued on behalf of Mr. Landzo that he is but one of thousands of individuals who might be prosecuted for similar offences committed in the former Yugoslavia and this places him in the unfair position of being made into a kind of representative of all these other persons, who are not the subject of proceedings before the International Tribunal.

176. The provisions of Articles 2, 3, 4 and 5 of the Statute set out in some detail the offences over which the International Tribunal has jurisdiction and clearly all of these crimes were regarded by the Security Council as "serious violations of international humanitarian law". Article 7 further establishes that individual criminal responsibility attaches to the perpetrators of such offences and those who plan, instigate, order, or aid and abet the planning, preparation or execution of such offences, as well as, in certain situations, their superiors. It is clear from this latter article that the Tribunal was not intended to concern itself only with persons in positions of military or political authority. This was recognised previously by Trial Chamber I in its "Sentencing Judgement" in the case of Prosecutor v. Drazen Erdemovic, when it stated that "[t]he Trial Chamber considers that individual responsibility is based on Articles 1 and 7(1) of the Statute which grant the International Tribunal full jurisdiction not only over "great criminals" like in Nürnberg - as counsel for the accused maintains – but also over executors." ²¹⁷

177. Article 9 of the Statute enunciates the principle that the International Tribunal has concurrent jurisdiction with national courts for the prosecution of the crimes over which it has jurisdiction. This article also states that the International Tribunal has primacy over such national courts and thus several of the Rules are concerned with the matter of deferral of national prosecutions to the Tribunal. States are, indeed, obliged to comply with formal requests for deferral to the International Tribunal and, therefore, there can be no doubt that the question of forum is one solely to be decided first by the Prosecutor and then by the Judges of the Tribunal.²¹⁸

178. A mere cursory glance over the Indictment at issue in the present case provides a lasting impression of a catalogue of horrific events which are variously classified as crimes such as wilful killing, torture, inhuman acts, cruel treatment and plunder. To argue that these are not crimes of the most serious nature strains the bounds of credibility²¹⁹. While the fact that these acts are not alleged to have occurred on a widespread and systematic scale in this particular situation may have been of relevance had they been charged as crimes against humanity under Article 5 of the Statute, there is no such requirement incorporated in Articles 2 and 3, with which the Trial Chamber is here concerned.

179. The final argument of Mr. Landzo, that he is somehow being presented as a representative of countless others who are not in the custody of the Tribunal or named in any indictment, is also completely without merit. First, this contention is simply incorrect. The Prosecutor has at this time issued 20 public indictments against 58 individuals of various rank and position and several of these individuals have been, are currently being, or are soon to be, tried. There are many and varied reasons why the other indictees are not in the custody of the Tribunal and are, therefore, not subject also to its judicial process, but this is not an issue for the concern of this Trial Chamber in the current context.

180. In addition, it is preposterous to suggest that unless all potential indictees who are similarly situated are brought to justice, there should be no justice done in relation to a person who has been indicted and brought to trial. Furthermore, the decision of whom to indict is that of the Prosecutor alone and, once such an indictment has been confirmed, it is incumbent upon the Trial Chambers to perform their judicial function when such accused persons are brought before them.

181. In sum, the interpretation of Article 1 put forward by the Defence does not bear close scrutiny and is, therefore, dismissed. Accordingly, the Trial Chamber must turn its attention to the substance of Articles 2 and 3 and the requirements for their applicability.

182. In order to apply the body of law termed "international humanitarian law" to a particular situation it must first be determined that there was, in fact, an "armed conflict", whether of an internal or international nature. Without a finding that there was such an armed conflict it is not possible for the Trial Chamber to progress further to its discussion of the nature of this conflict and how this impacts upon the applicability of Articles 2 and 3.

183. For this purpose, the Trial Chamber adopts the test formulated by the Appeals Chamber in its "Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction", in the case of The Prosecutor v. Dusko Tadic (hereafter "Tadic Jurisdiction Decision")²²⁰. According to the Appeals Chamber,

     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.²²¹

     The Appeals Chamber continued by stating that,

     [i]nternational 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.²²²

184. Clearly, therefore, this test applies both to conflicts which are regarded as international in nature and to those which are regarded as internal to a State. In the former situation, the existence of armed force between States is sufficient of itself to trigger the application of international humanitarian law. In the latter situation, in order to distinguish from cases of civil unrest or terrorist activities, the emphasis is on the protracted extent of the armed violence and the extent of organisation of the parties involved. At this juncture, however, the Trial Chamber does not seek to discuss whether there was an international or an internal armed conflict for the purposes of the determination of the present case, as this will be dealt with in sub-section D below.

185. In addition, whether or not the conflict is deemed to be international or internal, there does not have to be actual combat activities in a particular location for the norms of international humanitarian law to be applicable. Thus, the Trial Chamber is not required to find that there existed an "armed conflict" in the Konjic municipality itself but, rather, in the larger territory of which it forms part.

186. The preceding background section has discussed in some detail the military and political situations in the States of the former SFRY leading up to 1992. Particular attention was focused upon the State of Bosnia and Herzegovina and there is no need for repetition of the relevant facts. Suffice it to say that in Bosnia and Herzegovina as a whole there was continuing armed violence at least from the date of its declaration of independence – 6 March 1992 – until the signing of the Dayton Peace Agreement in November 1995. Certainly involved in this armed violence, and relevant to the present case, were the JNA, the Bosnian Army (consisting of the TO and MUP), the HVO and the VRS.

187. The JNA was the official army of the SFRY and was, after the creation of the FRY, under that State’s authority until its division (the FRY claiming to be the sole legitimate successor State of the SFRY). However, the authorities of the so-called SRBH also announced the existence of their own army in May 1992 – the VSRBH (later the VRS) – which was comprised of former JNA units in Bosnia and Herzegovina. The remainder of the JNA became the VJ, the army of the FRY. The VRS was controlled from Pale by the leadership of the Bosnian Serb administration, headed by Radovan Karadzic, and throughout 1992, and thereafter, it occupied significant amounts of Bosnia and Herzegovina. The HVO was in a position similar to that of the VRS, in that it was established by the self-proclaimed para-State of the Bosnian Croats as its army and operated from territory under its control. The remaining participants, the Bosnian TO and MUP, were clearly acting on behalf of the authorities of Bosnia and Herzegovina.

188. As has been discussed at some length in Section II above, the Konjic municipality was indeed itself the site of some significant armed violence in 1992. In April of that year the municipal TO was mobilized and a War Presidency was formed. The JNA, which had occupied various military facilities and other locations throughout the municipality, was involved in the mobilization of Serb volunteers, in co-operation with the local SDS, and had distributed weapons among them. It also appears that the JNA itself participated in some of the military operations, at least until May 1992.²²³

189. The Trial Chamber has been presented with significant amounts of evidence regarding military attacks on and the shelling of Konjic town itself, as well as many of the villages in the municipality, including Borci, Ljubina, Dzajici and Gakici, by these Serb forces. It is further uncontested that military operations were mounted by the forces of the municipal authorities, incorporating the TO, MUP and, within the period of the Joint Command, the HVO, against the villages of, inter alia, Donje Selo, Bradina, Bjelovcina, Cerici, and Brdani. It was as a result of these operations that persons were detained in the Celebici prison-camp.

190. The level of the fighting in Bosnia and Herzegovina as a whole, as in Konjic itself, was clearly intense and consequently attracted the concern of the United Nations Security Council and General Assembly, along with other international organizations. Acting under Chapter VII of the United Nations Charter, the Security Council passed numerous resolutions in relation to the conflict and consistently called upon all of the parties involved to put an end to their military operations. ²²⁴

191. In Konjic, the TO and MUP were joined for a short period by the HVO as part of a Joint Command established and organized to fight the Serb forces. At the very least, these forces representing the "governmental authorities" were engaged against the forces of the Bosnian Serbs – the JNA and VRS joined by local volunteers and militias – who themselves constituted "governmental authorities" or "organized armed groups". This finding is without prejudice to the possibility that the conflict may in fact have been international and the parties involved States and their representatives.

192. The Trial Chamber must therefore conclude that there was an "armed conflict" in Bosnia and Herzegovina in the period relevant to the Indictment and notes that, regardless of whether or not this conflict is considered internal or international, it incorporated the municipality of Konjic. Thus, the first fundamental precondition is met for the application of international humanitarian law, including those norms of the law incorporated in Articles 2 and 3 of the Statute, to the present case, providing there is shown to be a sufficient nexus between the alleged acts of the accused and this armed conflict.

3. Nexus Between the Acts of the Accused and the Armed Conflict

193. It is axiomatic that not every serious crime committed during the armed conflict in Bosnia and Herzegovina can be regarded as a violation of international humanitarian law. There must be an obvious link between the criminal act and the armed conflict. Clearly, if a relevant crime was committed in the course of fighting or the take-over of a town during an armed conflict, for example, this would be sufficient to render the offence a violation of international humanitarian law. Such a direct connection to actual hostilities is not, however, required in every situation. Once again, the Appeals Chamber has stated a view on the nature of this nexus between the acts of the accused and the armed conflict. In its opinion,

     [i]t 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.²²⁵

194. This re-emphasises the view expressed above that there need not have been actual armed hostilities in the Konjic municipality in order for the norms of international humanitarian law to have been applicable. Nor is it required that fighting was taking place in the exact time-period when the acts alleged in the Indictment occurred.

195. This Trial Chamber shares the view of Trial Chamber II in the Tadic Judgment, where it stated that it is not necessary that a crime "be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict.²²⁶" Such a requirement would indeed serve to detract from the force of the concept of individual criminal responsibility.

196. In the present case, all of the alleged acts of the accused took place within the confines of the Celebici prison-camp, a detention facility in the Konjic municipality operated by the forces of the governmental authorities of Bosnia and Herzegovina. The prisoners housed in the prison-camp were arrested and detained as a result of military operations conducted on behalf of the Government of Bosnia and Herzegovina and in the course of an armed conflict to which it was a party. Each of the accused is alleged to have been involved, in some capacity, in the operation of the camp and the acts for which they have been indicted are alleged to have been committed in the performance of their official duties as members of the Bosnian forces.

197. The Trial Chamber is, therefore, in no doubt that there is a clear nexus between the armed conflict in Bosnia and Herzegovina, including the military operations in Konjic, and the acts alleged in the Indictment to have been committed by the four accused in the present case.

198. Having satisfied these more general prerequisites for the applicability of international humanitarian law, it is now possible to turn to the more specific requirements of Articles 2 and 3 of the Statute.

199. Article 2 of the Statute pertains to "grave breaches of the Geneva Conventions of 1949" and lists eight categories of criminal conduct which fall within the jurisdiction of the International Tribunal when committed against persons or property protected under the provisions of the relevant Geneva Convention. In considering this Article, it therefore falls to the Trial Chamber to determine whether the offences alleged in counts 1, 3, 5, 7, 11, 13, 15, 18, 21, 24, 27, 30, 33, 36, 38, 42, 44, 46 and 48 of the Indictment satisfy the requirements for its application.

200. The four Geneva Conventions of 1949²²⁷ (hereafter "Geneva Conventions" or "Conventions") provide the basis for the conventional and much of the customary international law for the protection of victims of armed conflict. Their provisions seek to guarantee the basic human rights to life, dignity and humane treatment of those taking no active part in armed conflicts and their enforcement by criminal prosecution is an integral part of their effectiveness. The system of mandatory universal jurisdiction over those offences described as "grave breaches" of the Conventions requires all States to prosecute or extradite alleged violators of the Conventions. Hence, this State jurisdiction is concurrent with that of the International Tribunal under Article 2 of the Statute.

201. It seems that both the Prosecution and the Defence are in broad agreement that the application of Article 2 requires the satisfaction of two conditions; first, that the alleged offences were committed in the context of an international armed conflict; and, secondly, that the alleged victims were "persons protected" by the Geneva Conventions. In closing arguments, Mr. Niemann for the Prosecution, stated the view that Article 2 could also be applied in situations of internal armed conflict, yet the Prosecution has consistently maintained that the conflict in Bosnia and Herzegovina must in fact be deemed international by the Trial Chamber.²²⁸

202. While Trial Chamber II in the Tadic case did not initially consider the nature of the armed conflict to be a relevant consideration in applying Article 2 of the Statute²²⁹, the majority of the Appeals Chamber in the Tadic Jurisdiction Decision did find that grave breaches of the Geneva Conventions could only be committed in international armed conflicts and this requirement was thus an integral part of Article 2 of the Statute²³⁰. In his Separate Opinion, however, Judge Abi-Saab opined that "a strong case can be made for the application of Article 2, even when the incriminated act takes place in an internal conflict"²³¹. The majority of the Appeals Chamber did indeed recognise that a change in the customary law scope of the "grave breaches regime" in this direction may be occurring. This Trial Chamber is also of the view that the possibility that customary law has developed the provisions of the Geneva Conventions since 1949 to constitute an extension of the system of "grave breaches" to internal armed conflicts should be recognised.

203. Nonetheless, in the adjudication of the present case, the Trial Chamber deems it apposite to consider the nature of the armed conflict within which the acts alleged in the Indictment occurred. The Defence has, on occasion, asserted that the conflict must be viewed as internal and, more forcefully, that the alleged victims cannot be regarded as "protected persons". The Prosecution, on the other hand, takes the view that the conflict was clearly international and the victims were persons protected under either Geneva Convention III (the Prisoners of War Convention) or Geneva Convention IV (the Civilians Convention). Each of these contentions is thus dealt with in turn.

204. In its Pre-Trial Brief, the Prosecution maintains that the conflict in Bosnia and Herzegovina must be regarded as international from the date of its independence in March 1992 and at least for the duration of that year²³². The Prosecution quotes the International Committee of the Red Cross²³³ Commentary to Geneva Convention IV²³⁴ (hereafter "Commentary" or "Commentary to Geneva Convention IV") in the view that the Convention applies as soon as de facto hostilities occur. Further, "[a]ny difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2 [of the Geneva Conventions], even if one of the parties denies the existence of a state of war²³⁵." According to the Prosecution, Bosnia and Herzegovina and its armed forces were one of the parties to this international conflict and the other parties were, first, the SFRY and its army, the JNA, and then the FRY and its army, the VJ, along with the SRBH (becoming the RS) and its army, the VSRBH (becoming, and here referred to as, the VRS). It contends that the military involvement of the SFRY and FRY in Bosnia and Herzegovina and the existence of de facto hostilities between them, along with the SRBH/RS whom they controlled, and the State of Bosnia and Herzegovina, was thus sufficient to render the conflict international. Armed hostilities, which did not have a separate status, occurred in the Konjic municipality as part of this international armed conflict.

205. In its Motion to Dismiss, the Defence²³⁶ argue that the Prosecution should not be permitted to posit the existence of an international armed conflict as this issue has already been decided by Trial Chamber II in the Tadic Judgment, a case to which the Prosecution was obviously a party. In that Judgement, Trial Chamber II found that the conditions necessary for the application of Article 2 were not satisfied. The Defence asserts that this was partly on the basis that they did not find there to have been an international armed conflict at the relevant time – the same time-period as concerns the present case. Thus, in the view of the Defence, the matter is res judicata and beyond further debate by the Prosecution. The Defence also points to a reference made by the Appeals Chamber in the Tadic Jurisdiction Decision to an agreement signed in May 1992 by the parties to the conflict in Bosnia and Herzegovina as evidence that they themselves considered the conflict to be internal, and concludes that the Appeals Chamber has thus also resolved the matter of the nature of the conflict contrary to the position taken by the Prosecution. The Defence additionally asserts that the evidence before the Trial Chamber does not reveal a sufficient degree of control by the FRY over the actions of the VRS to merit a finding different from that of Trial Chamber II in the Tadic Judgment.

206. In its Response to the Defence Motion to Dismiss, the Prosecution maintains once again that the evidence shows that there existed an international armed conflict in 1992 between Bosnia and Herzegovina on the one side and the SFRY, FRY and SRBH/RS on the other. It claims that there was clear, direct involvement of the JNA and VJ in the conflict, as well as a requisite level of linkage between these forces and those of the SRBH/RS, for the latter to be regarded as forming part of a party to this international armed conflict. The Defence Reply to this Response discusses the decision of the ICJ in the Nicaragua Case ²³⁷in support of its view that the FRY did not exercise a sufficient amount of command and control over the SRBH/RS and their forces in order to render them part of the FRY forces.²³⁸

207. In its Closing Brief, the Prosecution reiterates its previous arguments and emphasises that the conflict in Konjic cannot be viewed separately from that in Bosnia and Herzegovina as a whole²³⁹. In its view, if the latter was an international armed conflict, it is irrelevant whether or not the JNA or VJ were present in the Konjic municipality itself, or whether there were actual combat activities there, during the entire time-period relevant to the Indictment. The Prosecution also challenges the test of "effective control" adopted in the Nicaragua Case and utilised by the majority in the Tadic Judgment for determining whether the VRS was acting as an agent of the FRY, and urges the Trial Chamber to adopt a different standard. It maintains that it has adduced more than enough evidence to show that the VRS and Bosnian Serb militia were demonstrably linked to the FRY and VJ and has, in fact, also satisfied the stricter standard of "effective control" advocated by the Defence. The Closing Briefs of the Defence are confined to a restatement of their previous arguments on this issue.²⁴⁰

208. In its adjudication of the nature of the armed conflict with which it is concerned, the Trial Chamber is guided by the Commentary to the Fourth Geneva Convention, which considers that "[a]ny difference arising between two States and leading to the intervention of members of the armed forces" is an international armed conflict and "[i]t makes no difference how long the conflict lasts, or how much slaughter takes place."²⁴¹

209. Before proceeding any further, the Trial Chamber deems it necessary to address the possibility that there may be some confusion as to the parameters of this concept of an "international armed conflict". We are not here examining the Konjic municipality and the particular forces involved in the conflict in that area to determine whether it was international or internal. Rather, should the conflict in Bosnia and Herzegovina be international, the relevant norms of international humanitarian law apply throughout its territory until the general cessation of hostilities, unless it can be shown that the conflicts in some areas were separate internal conflicts, unrelated to the larger international armed conflict. Should the entire conflict in Bosnia and Herzegovina be considered internal, the provisions of international humanitarian law applicable in such internal conflicts apply throughout those areas controlled by the parties to the conflict, until a peaceful settlement is reached.

210. In the present case the Trial Chamber is concerned only with Geneva Conventions III and IV, as the Prosecution has asserted that the victims of the acts alleged were all either protected civilians or prisoners of war. Article 6 of the Fourth Geneva Convention provides for its immediate application at the outset of any armed conflict between two or more of the "High Contracting Parties" to the Convention, this ceasing only upon the general close of military operations. Article 5 of the Third Geneva Convention provides for its application to all prisoners of war from the time they fall into the power of the enemy and until their final release and repatriation – this may be either before or after the end of the conflict itself. It is, however, important to note that the issue of whether the conflict was international in nature is quite separate from that of whether the individual victims of the alleged criminal acts were protected persons, although, as is discussed later, they are obviously closely related.

211. The relevant question to be addressed by the Trial Chamber is, therefore: was there an international armed conflict in Bosnia and Herzegovina in May 1992 and did that conflict continue throughout the rest of that year, when the offences charged in the Indictment are alleged to have been committed?

212. There can be no question that the JNA strengthened its presence in Bosnia and Herzegovina throughout the latter half of 1991 and into 1992 and that, consequently, significant numbers of its troops were on the ground when the government declared the State’s independence on 6 March 1992. Witnesses for both the Prosecution and the Defence have testified that the initial aim of the JNA was to prevent the break-away of Bosnia and Herzegovina from the SFRY and that, by the time of Bosnia and Herzegovina’s declaration of independence, the JNA was dominated largely by Serbia and staffed mainly by Serb officers. In addition, the JNA had been providing arms and equipment to the Serb population of Bosnia and Herzegovina from 1991, who had, in turn, been organising themselves into various units and militia in preparation for combat. Similarly, the Bosnian Croat population had been receiving such support from the Government of Croatia and its armed forces.

213. As already noted in Section II above, there is substantial evidence that the JNA was openly involved in combat activities in Bosnia and Herzegovina from the beginning of March and into April and May of 1992, aided by various paramilitary groups. This offensive was accompanied by a campaign designed to drive non-Serbs out of desired territory, a practice gaining notoriety under the term "ethnic cleansing"²⁴². As a result, the Government of the newly independent State of Bosnia and Herzegovina found its authority limited to a core area, surrounded by regions controlled by hostile Serb forces. The United Nations Security Council and the European Community recognised the involvement of these and other outside forces in the conflict by calling for the Governments of Croatia and Serbia to "exert their undoubted influence" and demanding the cessation of all forms of outside interference. In early May 1992, however, the authorities in the FRY, clearly asserting control of the JNA, announced that all of its personnel who were not citizens of Bosnia and Herzegovina would be withdrawn by 19 May.²⁴³

214. On the basis of this evidence alone, the Trial Chamber can conclude that an international armed conflict existed in Bosnia and Herzegovina at the date of its recognition as an independent State on 6 April 1992. There is no evidence to indicate that the hostilities which occurred in the Konjic municipality at that time were part of a separate armed conflict and, indeed, there is some evidence of the involvement of the JNA in the fighting there.

215. It is evident that there was no general cessation of hostilities in Bosnia and Herzegovina until the signing of the Dayton Peace Agreement in November 1995. The Trial Chamber must, however, address the possibility that the nature of the armed conflict was changed by the withdrawal of the external forces involved, and hence the cessation of those hostilities, and the commencement of a distinct, self-contained, internal conflict between the Government of Bosnia and Herzegovina and organised armed groups within that State.

216. On 15 May 1992, the United Nations Security Council adopted resolution 752 which noted the decision of the Belgrade authorities to withdraw JNA personnel from Bosnia and Herzegovina and once again demanded that all forms of outside interference, including units of the JNA and elements of the Croatian army, cease immediately. The resolution demanded that those units of the JNA and Croatian army still present in Bosnia and Herzegovina be withdrawn, or be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed. This call echoed the demands of the European Community made in a Declaration on Bosnia and Herzegovina on 11 May²⁴⁴ and also of the Committee of Senior Officials of the CSCE in its Declaration on Bosnia and Herzegovina on 12 May, which noted the aggression against the Bosnian State and identified the JNA as participants in this aggression²⁴⁵. The Government of the FRY responded to the latter two Declarations by emphasising that the withdrawal of JNA personnel from Bosnia and Herzegovina was in progress and expressing its dismay at the "one-sided manner" in which the European Community was addressing the crisis in Bosnia.²⁴⁶

217. As has been previously noted, on 13 May 1992 the SRBH had announced its decision to form the army of the Serb Republic, comprised of units of the former JNA based in Bosnia and Herzegovina. The commander of this new army (the VRS) was General Ratko Mladic, of the JNA, and it answered to the authorities of the SRBH/RS in Pale. The remaining units of the JNA then became the army of the FRY, named the VJ.

218. The plan to divide the JNA into the VRS and the VJ, so as to disguise its presence in Bosnia and Herzegovina once that Republic became an independent State, was conceived several months earlier in Belgrade. On 5 December 1991, the Serbian president, Slobodan Milosevic, and Serbia’s representative in the Presidency of the SFRY, Borisav Jovic, met and discussed the issue of a future conflict in Bosnia. According to the diary which Jovic kept of the meeting that day:

     When Bosnia-Herzegovina is recognised internationally, the JNA will be declared a foreign army and its withdrawal will be demanded, which is impossible to avoid. In that situation, the Serb population in Bosnia-Herzegovina, which has not created its own paramilitary units, will be left defenseless and under threat.

     Sloba feels that we must withdraw all citizens of Serbia and Montenegro from the JNA in Bosnia-Herzegovina in a timely fashion and transfer citizens of Bosnia-Herzegovina to the JNA there in order to avoid general military chaos upon international recognition, caused by moving the military around from one part of the country to another. That will also create the possibility for the Serb leadership in Bosnia-Herzegovina to assume command over the Serb part of the JNA […]²⁴⁷

219. Clearly, this project had been put in motion well in advance and the JNA utilised to strengthen the local Serb forces in preparation for conflict. The military expert witness for the Defence, Brigadier Vejzagic, told the Trial Chamber that,

     [t]he JNA was included into the process of forming, organising, training and equipping with arms as well as was the SDS party, they worked hand in hand to create Serbian forces, which might, once the JNA was withdrawn, make a new military power, a new military force of the Serbian republic. ²⁴⁸

220. In addition, General Veljko Kadijevic, former Federal Defence Minister of the SFRY, has stated that,

     we had to orient ourselves toward concrete cooperation with representatives of the Serbs and with the Serb nation as such. … This had enabled us during the war in Croatia to manoeuvre and move JNA troops via Bosnia-Herzegovina, which was of vital significance for the JNA. ... This also enabled the mobilisation in the Serb parts of Bosnia-Herzegovina to be very successful.

     Assessing the further development of events, we felt that after leaving Croatia we should have strong JNA forces in Bosnia-Herzegovina. […]

     […] The units and headquarters of the JNA formed the backbone of the army of the Serb Republic, complete with weaponry and equipment. That army, with the full support of the Serb people, which is required in any modern war, protected the Serb people and created the military conditions for an adequate political solution that would meet its national interests and goals, to the extent, of course, that present international circumstances allow. ²⁴⁹

221. Despite the attempt at camouflage by the authorities of the FRY and their insistence that all non-Bosnian JNA troops had been removed from Bosnia and Herzegovina by 19 May, and that they were, consequently, no longer taking any decisions which could affect the conflict there²⁵⁰, the United Nations Security Council recognised the continued influence and control that Belgrade exercised over the Serb forces in Bosnia and Herzegovina. In resolution 757, on 30 May 1992, the Security Council deplored the fact that its demands for the withdrawal of external armed forces, particularly units of the JNA, from Bosnia and Herzegovina, in resolution 752, had not been fully complied with. It condemned the failure of the authorities of the FRY to take effective measures to implement resolution 752 and also demanded that any elements of the Croatian Army still present in Bosnia and Herzegovina act in accordance with that resolution. The Security Council went further and imposed comprehensive trade sanctions on the FRY for its non-compliance, stating that these would remain in place until effective measures were taken to fulfil the requirements of resolution 752.

222. The United Nations General Assembly also issued a resolution in August 1992, which demanded the withdrawal of all remaining units of the JNA and the Croatian Army – a clear indication that it also believed these forces still to be involved in the conflict²⁵¹. Subsequently, in a report dated 3 December 1992, the United Nations Secretary-General emphasised that this resolution had not been complied with. He stated that the United Nations force (UNPROFOR) in Bosnia and Herzegovina had "received credible reports of extensive involvement of forces of the Croatian Army in Bosnia and Herzegovina." In addition, "[t]he Bosnian Serb forces allegedly continue to receive supplies and support from elements in the Federal Republic of Yugoslavia (Serbia and Montenegro)." Furthermore, "[t]hough [the] JNA has withdrawn completely from Bosnia and Herzegovina, former members of Bosnian Serb origin have been left behind with their equipment and constitute the Army of the Serb Republic."²⁵²

223. It further appears that those forces of the former JNA which had been transformed into the VJ continued to play an active role in the Bosnian conflict. The Prosecution expert witness, Dr Gow, testified that, after 19 May 1992 the VJ contributed in terms of personnel and supplies to the execution of the Serbian "new State project" in Bosnia and Herzegovina. It supported the VRS where additional support or special forces were required and it continued to act as one body with the VRS, albeit with a broad degree of operational authority given to the commander in Bosnia and Herzegovina, General Mladic, whose objectives were to execute the armed campaign without bringing Belgrade’s role into question. VJ troops were also specifically identified in a number of locations throughout the conflict, for example during the air operations in 1994 and in the Posavina region. Dr. Gow further stated that, while the Serbian authorities in Belgrade professed to having no more active role in the conflict, as well as conceiving of the plan to expand Serb controlled territory and participating in the execution of this plan through the VRS and VJ, their security service also organised Serbian paramilitary groups in Bosnia and Herzegovina. The continued involvement of those elements of the JNA which had become the VJ is supported also by the above-mentioned calls for the complete withdrawal of outside forces by, inter alia, the United Nations Security Council and General Assembly.

224. In October 1991, the Assembly of the Serbian people in Bosnia and Herzegovina had already issued a decision to remain in "the Joint State of Yugoslavia"²⁵³. It subsequently determined that various areas within Bosnia and Herzegovina would remain part of this State²⁵⁴. In March 1992 it proclaimed a Constitution for the SRBH, reaffirming this principle²⁵⁵. Thus, the conflict in which the forces of this purported Republic were involved, was fought primarily to further this aim and to expand the territory which would form part of the Republic. This does not display the existence of a separate armed conflict from 19 May 1992 with different aims and objectives from the conflict involving the FRY and JNA. Rather, it evinces a continuation of that conflict. The FRY, at the very least, despite the purported withdrawal of its forces, maintained its support of the Bosnian Serbs and their army and exerted substantial influence over their operations.

225. The Government of Bosnia and Herzegovina, for its part, undoubtedly considered itself to be involved in an armed conflict as a result of aggression against that State by Serbia and Montenegro, the Yugoslav Army and the SDS²⁵⁶. On 20 June 1992, it proclaimed a state of war, identifying these parties as the aggressors, despite the insistence of the FRY that it was no longer involved in the conflict. In addition, it clearly considered the Bosnian Serb forces organised by the SDS to be a party to that same armed conflict.²⁵⁷

226. It is clear that the "new" army belonging to the Bosnian Serbs constituted no more than a re-designation of the JNA units in Bosnia and Herzegovina. The expert witness, Brigadier Vejzagic, explained that,

     [the w]ithdrawal of the JNA from B-H was done in such a way that formations numbering 60 to 80 thousand members of the former JNA were transformed into the Army of [the] self-proclaimed "Serb Republic of B-H". The JNA left all arms for the Army of Bosnian Serbs as well as ammunition and all other necessary military equipment.

227. Despite the formal change in status, the command structure of the new Bosnian Serb army was left largely unaltered from that of the JNA, from which the Bosnian Serbs received their arms and equipment as well as through local SDS organizations.

228. There can be no question that the issue of the nature of the armed conflict relevant to the present case is not res judicata²⁵⁹. The principle of res judicata only applies inter partes in a case where a matter has already been judicially determined within that case itself. As in national criminal systems which employ a public prosecutor in some form, the Prosecution is clearly always a party to cases before the International Tribunal. The doctrine of res judicata is limited, in criminal cases, to the question of whether, when the previous trial of a particular individual is followed by another of the same individual, a specific matter has already been fully litigated. In national systems where a public prosecutor appears in all criminal cases, the doctrine is clearly not applied so as to prevent the prosecutor from disputing a matter which the prosecutor has argued in a previous, different case. Moreover, this Trial Chamber is certainly not bound by the Decisions of other Trial Chambers in past cases and must make its findings based on the evidence presented to it and its own interpretation of the law applicable to the case at issue. The circumstances of each case differ significantly and thus also the evidence presented by the Prosecution. Even should the Prosecution bring evidence which is largely similar to that presented in a previous case, the Trial Chamber’s assessment of it may lead to entirely different results.

229. It is, further, incorrect to contend that the Appeals Chamber has already settled the matter of the nature of the conflict in Bosnia and Herzegovina. In the Tadic Jurisdiction Decision the Chamber found that "the conflicts in the former Yugoslavia have both internal and international aspects" ²⁶⁰and deliberately left the question of the nature of particular conflicts open for the Trial Chambers to determine. Its reference to an agreement made by representatives of Bosnia and Herzegovina, the Bosnian Serbs, and the Bosnian Croats in May 1992 merely demonstrates that some of the norms applicable to international armed conflicts were specifically brought into force by the parties to the conflict in Bosnia and Herzegovina, some of whom may have wished it to be considered internal, and does not show that the conflict must therefore have been internal in nature²⁶¹. Indeed, the subsequent Proclamation of a State of War by the Bosnian Government would tend to illustrate that that party, at least, took the view that it was international.

230. A lengthy discussion of the Nicaragua Case is also not merited in the present context. While this decision of the ICJ constitutes an important source of jurisprudence on various issues of international law, it is always important to note the dangers of relying upon the reasoning and findings of a very different judicial body concerned with rather different circumstances from the case in hand. The International Tribunal is a criminal judicial body, established to prosecute and punish individuals for violations of international humanitarian law, and not to determine State responsibility for acts of aggression or unlawful intervention. It is, therefore, inappropriate to transpose wholesale into the present context the test enunciated by the ICJ to determine the responsibility of the United States for the actions of the contras in Nicaragua. ²⁶²

231. With this in mind, we can consider a very important point of distinction between the Nicaragua Case and the one here at issue. In that case, the ICJ was charged with determining whether there had been a use of force in violation of customary international law and article 2(4) of the United Nations Charter by the United States against Nicaragua, as well as an unlawful intervention in the internal affairs of Nicaragua on the part of the United States. This issue rests on the predominant, traditional perception of States as bounded entities possessed of sovereignty which cannot be breached or interfered with. More specifically, what was in question was the incursion of the forces of one such distinct, bounded entity into another and the operation of agents of that entity within the boundaries of the other. In contrast, the situation with which we are here concerned, is characterised by the breakdown of previous State boundaries and the creation of new ones. Consequently, the question which arises is one of continuity of control of particular forces. The date which is consistently raised as the turning point in this matter is that of 19 May 1992, when the JNA apparently withdrew from Bosnia and Herzegovina.

232. The Trial Chamber must keep in mind that the forces constituting the VRS had a prior identity as an actual organ of the SFRY, as the JNA. When the FRY took control of this organ and subsequently severed the formal link between them, by creating the VJ and VRS, the presumption remains that these forces retained their link with it, unless demonstrated otherwise.²⁶³

233. The Trial Chamber’s position accords fully with that taken by Judge McDonald in her Dissent to the majority Judgment in the Tadic case. Judge McDonald found that:

     [t]he evidence proves that the creation of the VRS was a legal fiction. The only changes made after the 15 May 1992 Security Council resolution were the transfer of troops, the establishment of a Main Staff of the VRS, a change in the name of the military organisation and individual units, and a change in the insignia. There remained the same weapons, the same equipment, the same officers, the same commanders, largely the same troops, the same logistics centres, the same suppliers, the same infrastructure, the same source of payments, the same goals and mission, the same tactics, and the same operations.²⁶⁴

     […]

     … [i]t would perhaps be naïve not to recognize that the creation of the VRS, which coincided with the announced withdrawal by the JNA, was in fact nothing more than a ruse.²⁶⁵

234. In light of the above discussion, the Trial Chamber is in no doubt that the international armed conflict occurring in Bosnia and Herzegovina, at least from April 1992, continued throughout that year and did not alter fundamentally in its nature. The withdrawal of JNA troops who were not of Bosnian citizenship, and the creation of the VRS and VJ, constituted a deliberate attempt to mask the continued involvement of the FRY in the conflict while its Government remained in fact the controlling force behind the Bosnian Serbs. From the level of strategy to that of personnel and logistics the operations of the JNA persisted in all but name. It would be wholly artificial to sever the period before 19 May 1992 from the period thereafter in considering the nature of the conflict and applying international humanitarian law. ²⁶⁶

235. Having reached this conclusion, the Trial Chamber makes no finding on the question of whether Article 2 of the Statute can only be applied in a situation of international armed conflict, or whether this provision is also applicable in internal armed conflicts. The issue which remains to be decided is simply whether the victims of the acts alleged in the Indictment were "persons protected" by the Geneva Conventions of 1949.