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 B

Applicable law

2. Status of the Victims as "Protected Persons"

236. In its Pre-Trial Brief, the Prosecution asserts that all of the victims of the acts alleged in the Indictment were at all relevant times "persons protected" by either the Third Geneva Convention, on prisoners of war, or the Fourth Geneva Convention, on civilians. Article 4 of the Fourth Geneva Convention states:

Persons protected by the Convention are 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.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

 

237. The provisions of the second paragraph of article 4 are, however, wider in application, as defined in article 13:

Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention.

238. Article 4(A) of the Third Geneva Convention defines those who are subject to its protection in the following terms:

Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognisable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

239. Thus, the Prosecution maintains that the victims of the acts alleged in the Indictment were either non-combatants linked to one side in an international armed conflict and in the hands of the other side to that conflict, or prisoners of war from one side in the conflict, detained by the other side. Due to the nature of the crimes charged, the Prosecution deems it irrelevant which of the two Conventions is applied, except in relation to the charge of unlawful confinement of civilians.²⁶⁷

240. In their Pre-Trial Briefs, the Defence for Mr. Landzo and Mr. Delic respond that the alleged victims do not satisfy the requirements of article 4(A) of Geneva Convention III or of article 4 of Geneva Convention IV and therefore cannot be "protected persons". In their view, the definition of "prisoners of war" is strict and the detainees in the Celebici prison-camp did not fit into any of the categories listed in article 4(A). In addition, the nationality of all of the detainees was Bosnian, the same as that of the party to the conflict detaining them and, thus, they are outwith the ambit of article 4 of Geneva Convention IV.

241. The Prosecution counters these arguments by contending that the victims in the present case were all Bosnian Serbs and, as such, should not be considered as nationals of Bosnia and Herzegovina. During its case it brought an expert witness on the question of nationality, Professor Constantine Economides, who discussed the concept of an "effective link" requirement between a State and its nationals, as well as the development of the right of an individual to opt for a particular nationality. In its Motion to Dismiss, the Defence maintains its position and considers the testimony of Professor Economides as confirming rather than refuting it.²⁶⁸

242. The Prosecution argues, in its Response to the Motion to Dismiss, that it is unnecessary to consider whether some of the victims were prisoners of war, unless it is found that they cannot qualify as protected civilians on account of their nationality. Its position remains that some of the detainees were civilians while others may have been prisoners of war and, in relation to the latter of these categories, if there was any doubt as to their status, article 5 of Geneva Convention III required that they should receive the protections of that Convention until a "competent tribunal" had made a proper determination. In any case, in its view, it does not matter whether it is unclear if some persons were civilians or prisoners of war, for there is no gap between the Conventions and their provisions on "grave breaches" are the same in relation to the offences alleged in the Indictment. While some individuals may indeed have been involved in activities "hostile to the security of the State", and thus they may have been legitimately detained, they were nevertheless protected by article 5 of the Fourth Geneva Convention, which requires their humane treatment.

243. In their Closing Briefs, the Prosecution and the Defence restate these positions and discuss the evidence which has been adduced in relation to the status of the detainees in the Celebici prison-camp. The Defence for Mr. Delalic, Mr. Mucic and Mr. Delic particularly argue that there can be no doubt that the relevant persons were not part of the armed forces of a party to the conflict, nor of an irregular militia or resistance movement satisfying the conditions of article 4(A)(2) of the Third Geneva Convention, nor of a levée en masse as envisaged in article 4(A)(6). The Prosecution focuses on the Fourth Geneva Convention and urges the Trial Chamber to take an approach which extends the protection of the Geneva Conventions equally and fairly to all victims on all sides of the conflict.

244. It is logical to deal in turn with the relevant provisions of the two Geneva Conventions with which we are here concerned. For the sake of clarity, the Trial Chamber deems it most appropriate first to address the question of protection under the Fourth Geneva Convention and to then consider the requirements of the Third Geneva Convention.

(i) Were the Victims Protected Civilians?

245. The operative part of article 4 of the Fourth Geneva Convention for the present purposes is clearly the first paragraph, in particular the requirement that persons be "in the hands of a party to the conflict or occupying power of which they are not nationals" in order to be considered "protected". It is this phrase which has engendered such intense discussion of the concept of nationality by the parties in this case, as well as in other cases, and in recent literature on this area of international humanitarian law. It is also here that there arises a connection with the issue of the nature of the armed conflict, for clearly a showing that individuals are "in the hands of" a party of foreign nationality would generally lead to the conclusion that the conflict is international in nature. Conversely, if individuals are deemed not to be protected by the Fourth Geneva Convention on the grounds that they are of the same nationality as their captors, it may well be, although it does not necessarily follow, that the relevant conflict is an internal one.²⁶⁹

246. It is necessary to note that the expression "in the hands of" is used in article 4 in a general sense. It is not to be understood merely in the physical sense of being held prisoner, but indicates that the civilian in question is in territory which is under the control of an opposing party to the conflict²⁷⁰. This issue clearly does not arise in the present case as there is no dispute that the victims of the alleged offences were, at all relevant times, detained in a prison-camp belonging to the Bosnian authorities, a party to the conflict. The Trial Chamber thus may proceed directly with a discussion of the question of nationality.

247. Traditional tenets of international legal theory maintained that States are the only real subjects of international law. Thus, individuals were only of concern to international law as part of the State to which they are linked by their nationality²⁷¹. In consequence, it is a matter for a State’s domestic jurisdiction who are to be considered its nationals. Jennings and Watts state this position thus:

     In principle, and subject to any particular international obligations which might apply, it is not for international law but for the internal law of each State to determine who is, and who is not, to be considered its national.²⁷²

248. However, international law does have a role to play in placing limitations on States in the exercise of their discretion in the granting of nationality. Jennings and Watts concede,

     although the grant of nationality is for each State to decide for itself in accordance with its own laws, the consequences as against other States of this unilateral act occur on the international plane and are to be determined by international law.

     … the determination by each State of the grant of its own nationality is not necessarily to be accepted internationally without question.²⁷³

249. The Hague Convention of 1930 on Certain Questions Relating to the Conflict of Nationality Laws also reflects this position. In its first article, it provides that, while it is for each State to determine under its own law who are its nationals, such law must be recognised by other States only "in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality."²⁷⁴

250. It was in the spirit of the traditional view of the role of international law that article 4 of the Fourth Geneva Convention was phrased in the negative to exclude from that Convention’s protection persons who are considered "nationals" of the State in whose hands they are. As observed in the Commentary, "the Convention thus remains faithful to a recognised principle of international law: it does not interfere in a State’s relations with its own nationals²⁷⁵." The Commentary summarises the meaning of this first part of article 4 thus:

     there are two main classes of protected person: (1) enemy nationals within the national territory of each of the Parties to the conflict and (2) the whole population of occupied territories (excluding the nationals of the Occupying Power).²⁷⁶

251. An analysis of the relevant laws on nationality in Bosnia and Herzegovina in 1992 does not, however, reveal a clear picture. At that time, as we have discussed, the State was struggling to achieve its independence and all the previous structures of the SFRY were dissolving. In addition, an international armed conflict was tearing Bosnia and Herzegovina apart and the very issue which was being fought over concerned the desire of certain groups within its population to separate themselves from that State and join with another.

252. According to the 1974 constitution of the SFRY, every citizen of one of its constituent republics was simultaneously a citizen of the SFRY. Thus, all citizens of Bosnia and Herzegovina were also considered citizens of the SFRY and remained so until its dissolution. Although Bosnia and Herzegovina declared its independence in March 1992, it did not pass any legislation on citizenship until October of that year, in the form of a decree which was subsequently supplemented by further decrees²⁷⁷. This provided that all people who had the citizenship of Bosnia and Herzegovina in accordance with previous regulations were to be considered citizens, and also allowed for the possibility of people holding another nationality simultaneously. In an additional decree of 23 April 1993, all those who had citizenship of the SFRY on 6 April 1992 and were domiciled in Bosnia and Herzegovina, were to be considered citizens of Bosnia and Herzegovina. ²⁷⁸

253. Despite this, the Bosnian Serbs, in their purported constitution of the SRBH, proclaimed that citizens of the Serb Republic were citizens of Yugoslavia.²⁷⁹ This was confirmed in a subsequent "Law on Serb Citizenship" passed by the National Assembly of Republika Srpska on 18 December 1992²⁸⁰. The constitution of the FRY of 27 April 1992, however, does not appear to allow for the extension of its citizenship beyond the citizens of Serbia and Montenegro.²⁸¹

254. In the context of these provisions, the Prosecution has urged the Trial Chamber to consider two principles in determining whether the Bosnian Serb victims of the alleged offences in the Indictment can be considered "protected persons" in relation to the Bosnian government authorities which were detaining them. These are the emerging doctrine of the right under international law to the nationality of one’s own choosing, and the requirement of an effective link between a State and its nationals in order for the grant of nationality to be recognised on the international plane. These are discussed here briefly.

255. In its consideration of the relevant international law on nationality, the Trial Chamber notes the evidence of Professor Economides on the work of the International Law Commission (hereafter "ILC") on nationality issues in cases of State succession. In addition, the Professor testified about the Declaration on the Consequences of State Succession for the Nationality of Natural Persons, prepared by the European Commission for Democracy through Law (hereafter "Venice Commission"). He explained that the conclusions of both of these bodies were that there existed certain fundamental principles, namely: that each individual involved in a case of State succession has the right to a nationality; that States must endeavour to avoid cases of statelessness; and that the will of the persons involved must be respected by a State conferring its nationality. The Professor also testified that it is a rule of customary international law that a successor State must grant its nationality to all nationals of the predecessor State habitually residing in its territory. He took the view that the will of the persons involved in a State succession was gaining ground as a criterion for the granting of nationality and, while a State may automatically confer its nationality on a person after a succession has taken place, after a period of time it must allow him or her to exercise their right to opt for another nationality.

256. It is not, however, altogether clear that the obligation on States to grant such a right is a settled rule of international law. The Draft Articles on Nationality in Relation to the Succession of States produced by the ILC²⁸², along with the Venice Commission Declaration, which refer to this right, probably cannot be said to yet reflect binding customary international law, on the basis of State practice and opinio juris²⁸³. In any case, whilst the Arbitration Commission established by the European Community (the Badinter Commission) expressed the opinion that the successor States of the SFRY must afford minorities and ethnic groups, such as the Serbian population in Bosnia and Herzegovina, the right to choose their nationality²⁸⁴, it is clear that no formal act was taken by Bosnia and Herzegovina to implement this right. It is, therefore, difficult for the Trial Chamber to conclude that the principle of a right of option is, of itself, determinative in viewing the Bosnian Serbs to be non-nationals of Bosnia and Herzegovina.

257. Professor Economides also referred to the doctrine of "effective link" as having a role to play in cases of armed conflict when there is some ambiguity concerning the nationality of the various groups involved. This doctrine gained currency after the Nottebohm Case, decided by the ICJ in 1955²⁸⁵. In that case, the ICJ stated that,

     nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred … is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.²⁸⁶

     Thus the Court found that Mr. Nottebohm could not be considered a national of Liechtenstein for the purposes of a claim against Guatemala, a State with which he had, in fact, a closer connection.

258. There has been a considerable amount of literature written on the Nottebohm Case and its implications and limitations. However, although the principle of effective link traditionally was recognised in the context of dual nationality, "the particular context of origin does not obscure its role as a general principle with a variety of possible applications²⁸⁷." Thus, operating on the international plane, the International Tribunal may choose to refuse to recognise (or give effect to) a State’s grant of its nationality to individuals for the purposes of applying international law. ²⁸⁸

259. Assuming that Bosnia and Herzegovina had granted its nationality to the Bosnian Serbs, Croats and Muslims in 1992, there may be an insufficient link between the Bosnian Serbs and that State for them to be considered Bosnian nationals by this Trial Chamber in the adjudication of the present case. The granting of nationality occurred within the context of the dissolution of a State and a consequent armed conflict. Furthermore, the Bosnian Serbs had clearly expressed their wish not to be nationals of Bosnia and Herzegovina by proclaiming a constitution rendering them part of Yugoslavia and engaging in this armed conflict in order to achieve that aim. Such a finding would naturally be limited to the issue of the application of international humanitarian law and would be for no wider purpose. It would also be in the spirit of that law by rendering it as widely applicable as possible.

260. Reference should also here be made to the concept of agency, discussed by Trial Chamber II in the Tadic Judgment. This approach to the issue of protection under the Fourth Geneva Convention considers whether the Bosnian Serbs should be regarded as the agents of the FRY on the basis of its control over them. Thus, persons "in the hands of" the forces of the Bosnian Serbs are constructively "in the hands of" the FRY, a foreign party to the conflict. In the Tadic Jurisdiction Decision, the Appeals Chamber addressed this possibility and reasoned that the outcome of the application of the agency concept would render Bosnian Serb civilians in the hands of Bosnian government forces unprotected by the Fourth Geneva Convention, while Bosnian Muslim and Croat civilians in the hands of Bosnian Serb forces would be protected persons. The Appeals Chamber labelled such an asymmetrical outcome as "absurd" and thus dismissed the Prosecution’s argument in that case that the Security Council had determined the conflict to be international in nature when it adopted the Statute of the International Tribunal. ²⁸⁹

261. However, it is the view here taken that such an outcome is not the inevitable consequence of the application of the doctrine. As has been discussed, it is not necessarily the case that Bosnian Serb civilians are to be viewed as Bosnian nationals for the purpose of applying the grave breaches regime of the Fourth Geneva Convention. Hence, it would be possible to regard Bosnian Serb civilians as protected when detained by Bosnian government forces. ²⁹⁰

262. Given the reasoning set out above in the discussion of the international nature of the conflict in Bosnia and Herzegovina in 1992, this Trial Chamber takes a different view to that of the majority in the Tadic Judgment. It has been found that the purported withdrawal of the JNA and severance of involvement of the FRY in the conflict after 19 May 1992 was merely a smokescreen and that there can be no doubt of their continued influence. There was a clear common purpose between the FRY and the Bosnian Serbs to execute a project conceived of in Belgrade – that of an expanded Serbian State – and it is, therefore, possible to regard the Bosnian Serbs as acting on behalf of the FRY in its continuing armed conflict against the authorities of Bosnia and Herzegovina.

263. Bearing in mind the relative merits of the "effective link" and the "agency" approaches, this Trial Chamber wishes to emphasise the necessity of considering the requirements of article 4 of the Fourth Geneva Convention in a more flexible manner. The provisions of domestic legislation on citizenship in a situation of violent State succession cannot be determinative of the protected status of persons caught up in conflicts which ensue from such events²⁹¹. The Commentary to the Fourth Geneva Convention charges us not to forget that "the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests"²⁹² and thus it is the view of this Trial Chamber that their protections should be applied to as broad a category of persons as possible. It would, indeed, be contrary to the intention of the Security Council, which was concerned with effectively addressing a situation that it had determined to be a threat to international peace and security, and with ending the suffering of all those caught up in the conflict, for the International Tribunal to deny the application of the Fourth Geneva Convention to any particular group of persons solely on the basis of their citizenship status under domestic law.

264. The law must be applied to the reality of the situation before us and thus, to reiterate, the relevant facts are as follows:
     - Upon the dissolution of the SFRY, an international armed conflict between, at least, the FRY and its forces and the authorities of the independent State of Bosnia and Herzegovina took place;
     - A segment of the population of Bosnia and Herzegovina, the Bosnian Serbs, declared their independence from that State and purported to establish their own Republic which would form part of the FRY;
     - The FRY armed and equipped the Bosnian Serb population and created its army, the VRS;
     - In the course of military operations in the Konjic municipality, being part of this international armed conflict, the Bosnian government forces detained Bosnian Serb men and women in the Celebici prison-camp.

265. Without yet entering the discussion of whether or not their detention was unlawful, it is clear that the victims of the acts alleged in the Indictment were arrested and detained mainly on the basis of their Serb identity. As such, and insofar as they were not protected by any of the other Geneva Conventions, they must be considered to have been "protected persons" within the meaning of the Fourth Geneva Convention, as they were clearly regarded by the Bosnian authorities as belonging to the opposing party in an armed conflict and as posing a threat to the Bosnian State.

266. This interpretation of the Convention is fully in accordance with the development of the human rights doctrine which has been increasing in force since the middle of this century. It would be incongruous with the whole concept of human rights, which protect individuals from the excesses of their own governments, to rigidly apply the nationality requirement of article 4, that was apparently inserted to prevent interference in a State’s relations with its own nationals²⁹³. Furthermore, the nature of the international armed conflict in Bosnia and Herzegovina reflects the complexity of many modern conflicts and not, perhaps, the paradigm envisaged in 1949. In order to retain the relevance and effectiveness of the norms of the Geneva Conventions, it is necessary to adopt the approach here taken. As was recently stated by Meron,

     [i]n interpreting the law, our goal should be to avoid paralyzing the legal process as much as possible and, in the case of humanitarian conventions, to enable them to serve their protective goals.²⁹⁴

     (ii) Were the Victims Prisoners of War?

267. Article 4(A) of the Third Geneva Convention sets rather stringent requirements for the achievement of prisoner of war status. Once again, this provision was drafted in light of the experience of the Second World War and reflects the conception of an international armed conflict current at that time. Thus, the various categories of persons who may be considered prisoners of war are narrowly framed.

268. In the present case, it does not appear to be contended that the victims of the acts alleged were members of the regular armed forces of one of the parties to the conflict, as defined in sub-paragraph 1 of the article. Neither, clearly, are sub-paragraphs 3, 4 or 5 applicable. Attention must, therefore, be focused on whether they were members of militias or volunteer corps belonging to a party which: (a) were commanded by a person responsible for his subordinates; (b) had a fixed distinctive sign recognisable at a distance; (c) carried arms openly; and (d) conducted their operations in accordance with the laws and customs of war. Alternatively, they could have constituted a levée en masse, that is, being inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously took up arms to resist the invading forces, without having had time to form themselves into regular armed units, and at all times they carried arms openly and respected the laws and customs of war.

269. The Prosecution seeks to invoke the provisions of Additional Protocol I ²⁹⁵to interpret and clarify those of article 4(A)(2) and wishes to take a liberal approach to the detailed requirements that the sub-paragraph contains. Even should this be accepted, and despite the discussion above of the need to take a broad and flexible approach to the interpretation of the Geneva Conventions, the Trial Chamber finds it difficult, on the evidence presented to it, to conclude that any of the victims of the acts alleged in the Indictment satisfied these requirements. While it is apparent that some of the persons detained in the Celebici prison-camp had been in possession of weapons and may be considered to have participated to some degree in ‘hostilities’, this is not sufficient to render them entitled to prisoner of war status. There was clearly a Military Investigating Commission established in Konjic, tasked with categorising the Celebici detainees, but this can be regarded as related to the question of exactly what activities each detainee had been engaged in prior to arrest and whether they posed a particular threat to the security of the Bosnian authorities. Having reached this conclusion, it is not even necessary to discuss the issue of whether the Bosnian Serbs detained in Celebici "belonged" to the forces of one of the parties to the conflict.

270. Similarly, the Trial Chamber is not convinced that the Bosnian Serb detainees constituted a levée en masse. This concept refers to a situation where territory has not yet been occupied, but is being invaded by an external force, and the local inhabitants of areas in the line of this invasion take up arms to resist and defend their homes. It is difficult to fit the circumstances of the present case, as described in Section II above, into this categorisation. The authorities in the Konjic municipality were clearly not an invading force from which the residents of certain towns and villages were compelled to resist and defend themselves. In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.

271. It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;

     [e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.²⁹⁶

272. This position is confirmed by article 50 of Additional Protocol I which regards as civilians all persons who are not combatants as defined in article 4(A) (1), (2), (3) and (6) of the Third Geneva Convention, and article 43 of the Protocol itself.

273. The Prosecution has further argued that article 5 of the Third Geneva Convention required that, where there was some doubt about the status of the Celebici detainees, they had to be granted the protections of the Convention until that status was determined by a competent tribunal²⁹⁷. On this basis, they were "protected persons" and subject to the grave breaches provisions of the Third Convention. While there may, on the basis of this article, have been a duty upon the Bosnian forces controlling the Celebici prison-camp to treat some of the detainees as protected by the Third Geneva Convention until their status was properly determined and thus treat them with appropriate humanity, the Trial Chamber has found that they were not, in fact, prisoners of war. They were, instead, all protected civilians under the Fourth Geneva Convention and the Trial Chamber thus bases its consideration of the existence of "grave breaches of the Geneva Conventions" on this latter Convention.

274. On the basis of the above discussion, the Trial Chamber concludes that all of the victims of the acts alleged in the Indictment were "persons protected" by the Fourth Geneva Convention of 1949. For the purposes of the application of Article 2 of the Statute, these victims must be regarded as having been in the hands of a party to the conflict of which they were not nationals, being Bosnian Serbs detained during an international armed conflict by a party to that conflict, the State of Bosnia and Herzegovina.

275. This finding is strengthened by the Trial Chamber’s fundamental conviction that the Security Council, in persistently condemning the widespread violations of international humanitarian law committed throughout the conflict in Bosnia and Herzegovina and, indeed, in establishing the International Tribunal to prosecute and punish such violations, did not consider that the protection of the whole corpus of international humanitarian law could be denied to particular groups of individuals on the basis of the provisions of domestic citizenship legislation. The International Tribunal must, therefore, take a broad and principled approach to the application of the basic norms of international humanitarian law, norms which are enunciated in the four Geneva Conventions. In particular, all of those individuals who took no active part in hostilities and yet found themselves engulfed in the horror and violence of war should not be denied the protection of the Fourth Geneva Convention, which constitutes the very basis of the law concerned with such persons.

276. The Trial Chamber does not consider it necessary to discuss at length in the present context the development of the law of the Third Geneva Convention relating to prisoners of war, for even if none of the victims can be viewed as prisoners of war, there is no gap between the Geneva Conventions and they must, therefore, be considered protected civilians, along with the other detainees. This finding does not prejudice the later discussion of whether the authorities of Bosnia and Herzegovina were legitimately entitled to detain all of these civilians.

277. Having decided that Article 2 of the Statute is applicable to the facts of the present case, the Trial Chamber now turns its attention to the application of Article 3, concerning violations of the laws or customs of war.

E. Article 3 of the Statute

1. Introduction

278. In addition to the charges of grave breaches of the Geneva Conventions, the Indictment also contains 26 counts of violations of the laws or customs of war, punishable under Article 3 of the Statute²⁹⁸. In the Tadic Jurisdiction Decision, the Appeals Chamber opined that Article 3 refers to a broad category of offences, namely all "violations of the laws or customs of war", and that the enumeration of some of these in the Article itself is merely illustrative, not exhaustive²⁹⁹. In particular, Article 3 is not limited to offences under "Hague law", being the law regulating the conduct of hostilities and most notably finding expression in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, (hereafter "Hague Convention IV") and annexed Regulations, but includes some violations of the Geneva Conventions.³⁰⁰

279. The Appeals Chamber, in its discussion of Article 3, proceeded further to enunciate four requirements that must be satisfied in order for an offence to be considered as within the scope of this Article. These requirements are the following:

     (i) the violation must constitute an infringement of a rule of international humanitarian law;

     (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met (…);

     (iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. (…);

     (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.³⁰¹

280. This Trial Chamber finds no reason to depart from the position taken by the Appeals Chamber on this matter and considers that the first and third of these requirements have been dealt with by our discussion of the general requirements for the application of both Articles 2 and 3 of the Statute above. ³⁰²

281. With the exception of count 49 (plunder), the Indictment specifies that the offences charged as violations of the laws or customs of war are "recognised by" article 3 common to the four Geneva Conventions, which reads as follows:

     In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

     (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are, and shall remain, prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

     (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

     (b) taking of hostages;

     (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

     (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

     (2) The wounded and sick shall be collected and cared for.

     An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

     The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

     The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

282. Thus, the Trial Chamber, in its discussion of the applicability of Article 3 of the Statute to the present case, must perforce consider common article 3 of the Geneva Conventions. The Defence has challenged the nature of this provision and its place within the bounds of Article 3 of the Statute, on the basis that it does not form part of customary international law and that any violation thereof does not entail individual criminal responsibility.

283. In relation to the charge of plunder in count 49 of the Indictment, the Trial Chamber notes that Article 3(e) of the Statute specifically enumerates this offence as a violation of the laws or customs of war within the jurisdiction of the International Tribunal. Nonetheless, it must be established that the prohibition of plunder is a norm of customary international law which attracts individual criminal responsibility.

284. In order to proceed with its determination on the applicability of Article 3, the Trial Chamber deems it necessary, for the sake of clarity, to briefly set out the arguments of the parties in relation to these issues.

285. In the Tadic Jurisdiction Decision, the Appeals Chamber found that the International Tribunal may have jurisdiction over offences under Article 3 of the Statute whether the offences alleged were committed in an international or internal armed conflict³⁰³. In reaching this conclusion, it examined the customary nature of common article 3 of the Geneva Conventions, as well as other norms governing internal armed conflicts, and determined that their violation does entail individual criminal responsibility. The Prosecution contends that the findings of the Appeals Chamber on this matter should be applied in the present case. On this basis, the Prosecution takes the view that it is only required to prove that an armed conflict existed and that the alleged violations were related to this conflict in order for the Trial Chamber to apply Article 3 of the Statute in the present case.

286. In relation to violations of the substantive prohibitions contained in common article 3 of the Geneva Conventions, the Prosecution submits that these are clearly part of customary international law and that it must simply demonstrate that the victims of the alleged offences satisfy the requirements of sub-paragraph (1) (that is, that they be taking no active part in the hostilities). In sum, it is the view of the Prosecution that common article 3 of the Geneva Conventions can be applied by the International Tribunal when four conditions are met, namely, that:
     
     1) the unlawful acts were committed in the context of an armed conflict;
     2) the perpetrator was connected to one side involved in the armed conflict;
     3) the victims were persons taking no active part in the hostilities, which includes civilians, members of the armed forces who have laid down their arms, and those placed hors de combat by sickness, wounds, detention, or any other cause; and
     4) one of the enumerated acts listed in common article 3 of the Geneva Conventions was committed.³⁰⁴

287. In addition, the Prosecution contends that violations of article 75 of Additional Protocol I, which reflects customary international law, are covered by Article 3 of the Statute. It asserts that the offences charged under Article 3 in the Indictment, clearly also constitute violations of this provision.³⁰⁵

288. The Prosecution finally argues that the prohibition of plunder is a well-established principle in international law, recognised in the 1907 Hague Convention (IV) and annexed Regulations, as well as Geneva Convention IV.

289. The Defence concedes that its position on Article 3, which is that it cannot incorporate common article 3 of the Geneva Conventions, is contrary to that taken by the Appeals Chamber in the Tadic Jurisdiction Decision³⁰⁶. Nonetheless, it contends that the Appeals Chamber wrongly decided the issue of whether common article 3 of the Geneva Conventions is included in Article 3 of the Statute.

290. The first argument raised by the Defence in support of its position is that the Security Council, in establishing the International Tribunal, never intended it to have jurisdiction over violations of common article 3. By examining the provisions of the statute of the International Criminal Tribunal for Rwanda (hereafter "ICTR"), the Defence deduces that, without explicit reference to common article 3 in the Statute as is contained in the statute of the ICTR, the Security Council could not have intended to include it within the ambit of the jurisdiction of the International Tribunal.

291. The Defence further contends that the listed offences in Article 3 of the Statute are illustrative of offences under "Hague law" – that is the laws enunciated in the 1907 Hague Convention (IV) and annexed Regulations – which relates to the conduct of hostilities, not the protection of victims taking no active part in the fighting. In its view, had the Security Council intended to include certain provisions of "Geneva law" – such as common article 3 - within Article 3 of the Statute, it would have done so explicitly.

292. Responding to the Prosecution on this matter, the Defence examines the statements made by certain State representatives to the Security Council at the time of adoption of the Statute of the Tribunal. The Defence challenges the Prosecution’s interpretation of these statements and maintains that they cannot be regarded as an endorsement of the inclusion of common article 3 of the Geneva Conventions into Article 3 of the Statute.

293. Fundamentally, the Defence argues that the provisions of common article 3 of the Geneva Conventions do not constitute settled customary international law on the basis of State practice and opinio juris. The Report of the Secretary-General, adopted by the Security Council and containing the Statute, clearly states that the Tribunal is to apply "rules of international humanitarian law which are beyond doubt part of customary law"³⁰⁷ and it is the view of the Defence that common article 3 does not conform to this requirement.

294. The second leg of the Defence argument is that, even should the substantive prohibitions in common article 3 be regarded as customary international law, individual criminal responsibility does not necessarily flow from their violation. In support of this view, it discusses the historical development of international law and concludes that it is only recently that the concept of individual criminal responsibility has been introduced to this field. It notes that, in 1949, the States adopting the four Geneva Conventions did not include common article 3 in the system of "grave breaches" established to enforce the Conventions’ proscriptions. It then argues that there has been no development of customary international law since that time such as to attach individual criminal responsibility to violations of common article 3.

295. Bearing in mind the findings made in sub-section C above concerning the relevant nexus between the alleged acts of the accused and the armed conflict, along with the position of the alleged victims as detainees in the Celebici prison-camp and of the accused in relation to that prison-camp, the Trial Chamber turns to the question of the customary nature of the prohibitions contained in common article 3 of the Geneva Conventions and their incorporation into Article 3 of the Statute.

296. The Trial Chamber is instructed in its consideration of Article 3 by the views expressed by the Appeals Chamber in the Tadic Jurisdiction Decision. In that Decision, the Appeals Chamber engages in a lengthy discussion of the nature of Article 3 and the incorporation of common article 3 of the Geneva Conventions therein, a discussion which this Trial Chamber finds unnecessary to revisit in whole.

297. Fundamentally, the Appeals Chamber describes the division of labour between Articles 2 and 3 of the Statute thus:

     Article 3 may be taken to cover all violations of international humanitarian law other than "grave breaches" of the four Geneva Conventions falling under Article 2 (or, for that matter, the violations covered by Articles 4 and 5, to the extent that Articles 3, 4 and 5 overlap).³⁰⁸

     Furthermore,

     Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. Article 3 aims to make such jurisdiction watertight and inescapable.³⁰⁹

298. The Trial Chamber observes that the finding of the Appeals Chamber on the extent of application of Article 2 of the Statute, excluding internal armed conflicts from the ambit of the Tribunal’s jurisdiction over "grave breaches" of the Geneva Conventions, is such that its approach to Article 3 has to be rather broader, in order to achieve this goal of making our jurisdiction "watertight". Hence, violations of common article 3 of the Geneva Conventions find their place within Article 3 of the Statute.

299. In similar spirit, this Trial Chamber is in no doubt that the intention of the Security Council was to ensure that all serious violations of international humanitarian law, committed within the relevant geographical and temporal limits, were brought within the jurisdiction of the International Tribunal. Thus, if violations of common article 3 of the Geneva Conventions are not to be considered as having been incorporated into the "grave breaches" regime, and hence falling under Article 2 of the Statute, such violations must be considered as forming part of the more general provisions of Article 3.

300. It is noteworthy that the Appeals Chamber qualifies its discussion of the existence of customary rules of international humanitarian law relating to internal armed conflicts with the caveat that not all of the rules applicable in international armed conflicts have been extended to internal conflicts and that it is the essence of these rules that is important and not their detailed provisions³¹⁰. However, the prohibitions contained in the first paragraph of common article 3 of the Geneva Conventions express "the fundamental principle underlying the four Geneva Conventions" – that of humane treatment³¹¹. The perpetrators of violations of this article during internal conflicts cannot, on any level of reasoning, be treated more leniently than those who commit the same acts in international conflicts. It would, therefore, appear that the prohibitions contained in common article 3 are of precisely the nature which may be expected to apply in internal, as well as international, armed conflicts.

301. While in 1949 the insertion of a provision concerning internal armed conflicts into the Geneva Conventions may have been innovative, there can be no question that the protections and prohibitions enunciated in that provision have come to form part of customary international law. As discussed at length by the Appeals Chamber, a corpus of law concerning the regulation of hostilities and protection of victims in internal armed conflicts is now widely recognised³¹². This development is illustrative of the evolving nature of customary international law, which is its strength. Since at least the middle of this century, the prevalence of armed conflicts within the confines of one State or ensuing from the breakdown of previous State boundaries is apparent and absent the necessary conditions for the creation of a comprehensive new law by means of a multilateral treaty, the more fluid and adaptable concept of customary international law takes the fore.

302. The evidence of the existence of such customary law - State practice and opinio juris – may, in some situations, be extremely difficult to ascertain, particularly where there exists a prior multilateral treaty which has been adopted by the vast majority of States. The evidence of State practice outside of the treaty, providing evidence of separate customary norms or the passage of the conventional norms into the realms of custom, is rendered increasingly elusive, for it would appear that only the practice of non-parties to the treaty can be considered as relevant.³¹³ Such is the position of the four Geneva Conventions, which have been ratified or acceded to by most States.

303. Despite these difficulties, international tribunals do, on occasion, find that custom exists alongside conventional law, both having the same substantive content. This occurred, in relation to the prohibition on the use of force contained in the United Nations Charter, in the Nicaragua Case³¹⁴. Additionally, in that case, the ICJ’s discussion of the Geneva Conventions, particularly common articles 1 and 3 thereof, indicates that it considered these also to be part of customary international law³¹⁵. Furthermore, the ICJ found that common article 3 was not merely to be applied in internal armed conflicts, but that,

     [t]here is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called "elementary considerations of humanity" (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22).³¹⁶

304. Additionally, in a recent Judgement, the ICTR also discussed the customary status of common article 3 in the context of its application of the provisions of its statute³¹⁷. The Trial Chamber adjudicating that case stated that,

     [i]t is today clear that the norms of Common Article 3 have acquired the status of customary law in that most States, by their domestic penal codes, have criminalised acts which if committed during internal armed conflict, would constitute violations of Common Article 3.³¹⁸

305. It should be noted that the Secretary-General, in charging the International Tribunal to apply the customary rules of international humanitarian law, specified particular conventions as being incorporated in custom. Included in these are the four Geneva Conventions of 1949, with no mention of the exclusion of certain of their provisions, such as common article 3³¹⁹. That common article 3 was considered included in the law to be applied by the Tribunal is borne out by the statement of the representative of the United States upon the adoption of Security Council resolution 827, which was not contradicted by any other State representative, that

     it is understood that the "laws or customs of war" referred to in Article 3 include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common Article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions.³²⁰

306. On the basis of these considerations, the Trial Chamber is in no doubt that the prohibitions contained within common article 3 of the Geneva Conventions are prohibitions of customary international law which may be considered to be within the scope of the jurisdiction of the International Tribunal under Article 3 of the Statute.

307. The Trial Chamber is thus led to the second argument of the Defence that, even if it should constitute custom in its prohibitions, there is no customary law to suggest that common article 3 attracts individual criminal responsibility in its violation. Once again, this is a matter which has been addressed by the Appeals Chamber in the Tadic Jurisdiction Decision and the Trial Chamber sees no reason to depart from its findings³²¹. In its Decision, the Appeals Chamber examines various national laws, as well as practice, to illustrate that there are many instances of penal provisions for violations of the laws applicable in internal armed conflicts³²². From these sources, the Appeals Chamber extrapolates that there is nothing inherently contrary to the concept of individual criminal responsibility for violations of common article 3 of the Geneva Conventions and that, indeed, such responsibility does ensue.

308. The fact that the Geneva Conventions themselves do not expressly mention that there shall be criminal liability for violations of common article 3 clearly does not in itself, preclude such liability. Furthermore, identification of the violation of certain provisions of the Conventions as constituting "grave breaches" and thus subject to mandatory universal jurisdiction, certainly cannot be interpreted as rendering all of the remaining provisions of the Conventions as without criminal sanction. While "grave breaches" must be prosecuted and punished by all States, "other" breaches of the Geneva Conventions may be so. Consequently, an international tribunal such as this must also be permitted to prosecute and punish such violations of the Conventions.

309. This conclusion finds support in the ILC Draft Code of Crimes Against the Peace and Security of Mankind (hereafter "ILC Draft Code")³²³. Article 20 of the ILC Draft Code, entitled "War Crimes", includes violations of international humanitarian law applicable in non-international armed conflicts, as well as those violations which constitute grave breaches of the Geneva Conventions. The crimes listed in this section mirror the provisions of common article 3 of the Geneva Conventions, along with article 4 of Additional Protocol II (hereafter "Additional Protocol II")³²⁴. Moreover, the final Statute of the International Criminal Court, adopted in Rome on 17 July 1998, specifically lists serious violations of common article 3 of the Geneva Conventions as war crimes, under its article 8³²⁵. Another recent instrument, the statute of the ICTR, also enumerates violations of common article 3 as offences within the jurisdiction of that tribunal. While recognising that these instruments were all drawn up after the acts alleged in the Indictment, they serve to illustrate the widespread conviction that the provisions of common article 3 are not incompatible with the attribution of individual criminal responsibility.

310. The statute of the ICTR and the Report of the Secretary-General relating to that statute cannot be interpreted so as to restrict the application of our Statute. While article 4 of the ICTR statute contains explicit reference to common article 3 of the Geneva Conventions and Additional Protocol II, the absence of such express reference in the Statute of the International Tribunal does not, by itself, preclude the application of these provisions. The Defence cites the Report of the Secretary-General relating to the ICTR, which states that article 4 of that statute "for the first time criminalizes common article 3 of the four Geneva Conventions"³²⁶ in support of its position. The Trial Chamber notes, however, that the United Nations cannot "criminalize" any of the provisions of international humanitarian law by the simple act of granting subject-matter jurisdiction to an international tribunal. The International Tribunal merely identifies and applies existing customary international law and, as stated above, this is not dependent upon an express recognition in the Statute of the content of that custom, although express reference may be made, as in the statute of the ICTR.

311. The Defence is extremely concerned to draw attention to the principle of nullum crimen sine lege and, from its application, concludes that none of the accused can be convicted of crimes under common article 3 of the Geneva Conventions. It maintains that for the Tribunal to attach individual criminal responsibility to violations of common article 3 would amount to the creation of ex post facto law. Such a practice is contrary to basic human rights, as enunciated, inter alia, in the International Covenant on Civil and Political Rights 1966 (hereafter "ICCPR"). Article 15 of the ICCPR states, in relevant part:

     1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. […]

     2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.

312. In addition to what has been stated above concerning the customary nature of the prohibitions contained in common article 3 of the Geneva Conventions and the individual criminal responsibility which their violation entails, this Trial Chamber places particular emphasis on the provisions of the Criminal Code of the SFRY, which were adopted by Bosnia and Herzegovina in April 1992³²⁷. This legislation establishes the jurisdiction of the Bosnian courts over war crimes committed "at the time of war, armed conflict or occupation", drawing no distinction between internal and international armed conflicts. Thus, each of the accused in the present case could have been held individually criminally responsible under their own national law for the crimes alleged in the Indictment. Consequently, on this ground also there is no substance to the argument that applying the provisions of common article 3 of the Geneva Conventions under Article 3 of the Statute violates the principle of nullum crimen sine lege.

313. Moreover, the second paragraph of article 15 of the ICCPR is of further note, given the nature of the offences charged in the Indictment. It appears that this provision was inserted during the drafting of the Covenant in order to avoid the situation which had been faced by the International Military Tribunals at Nürnberg and Tokyo after the Second World War. These tribunals had applied the norms of the 1929 Geneva Conventions and 1907 Hague Conventions, among others, despite the fact that these instruments contained no reference to the possibility of their criminal sanction. It is undeniable that acts such as murder, torture, rape and inhuman treatment are criminal according to "general principles of law" recognised by all legal systems. Hence the caveat contained in Article 15, paragraph 2, of the ICCPR should be taken into account when considering the application of the principle of nullum crimen sine lege in the present case. The purpose of this principle is to prevent the prosecution and punishment of an individual for acts which he reasonably believed to be lawful at the time of their commission. It strains credibility to contend that the accused would not recognise the criminal nature of the acts alleged in the Indictment. The fact that they could not foresee the creation of an International Tribunal which would be the forum for prosecution is of no consequence.

314. While common article 3 of the Geneva Conventions was formulated to apply to internal armed conflicts, it is also clear from the above discussion that its substantive prohibitions apply equally in situations of international armed conflict. Similarly, and as stated by the Appeals Chamber, the crimes falling under Article 3 of the Statute of the International Tribunal may be committed in either kind of conflict. The Trial Chamber’s finding that the conflict in Bosnia and Herzegovina in 1992 was of an international nature does not, therefore, impact upon the application of Article 3. Nor is it necessary for the Trial Chamber to discuss the provisions of article 75 of Additional Protocol I, which apply in international armed conflicts. These provisions are clearly based upon the prohibitions contained in common article 3 and may also constitute customary international law. However, the Trial Chamber finds sufficient basis in the substance of common article 3 to apply Article 3 of the Statute to the acts alleged in the present case.

315. Finally, the Trial Chamber is in no doubt that the prohibition on plunder is also firmly rooted in customary international law. The Regulations attached to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land (hereafter "Hague Regulations") provide expression to the prohibition and it is reiterated in the Geneva Conventions³²⁹. The Hague Regulations have long been considered to be customary in nature, as was confirmed by the Nürnberg and Tokyo Tribunals. Moreover, the Report of the Secretary-General makes explicit mention of the Hague Regulations in its Commentary on Article 3 of the Statute, in the following terms:

     The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto comprise a second important area of conventional humanitarian international law which has become part of the body of international customary law.

     The Nürnberg Tribunal recognized that many of the provisions contained in the Hague Regulations, although innovative at the time of their adoption were, by 1939, recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war. The Nürnberg Tribunal also recognized that war crimes defined in article 6(b) of the Nürnberg Charter were already recognized as war crimes under international law, and covered in the Hague Regulations, for which guilty individuals were punishable.³³⁰

     There is, on this basis, no need to expand further upon the applicability of Article 3 of the Statute in relation to the charge of plunder.

316. In conclusion, the Trial Chamber finds that both the substantive prohibitions in common article 3 of the Geneva Conventions, and the provisions of the Hague Regulations, constitute rules of customary international law which may be applied by the International Tribunal to impose individual criminal responsibility for the offences alleged in the Indictment. As a consequence of the division of labour between Articles 2 and 3 of the Statute thus far articulated by the Appeals Chamber, such violations have been considered as falling within the scope of Article 3.

317. Recognising that this would entail an extension of the concept of "grave breaches of the Geneva Conventions" in line with a more teleological interpretation, it is the view of this Trial Chamber that violations of common article 3 of the Geneva Conventions may fall more logically within Article 2 of the Statute. Nonetheless, for the present purposes, the more cautious approach has been followed. The Trial Chamber has determined that an international armed conflict existed in Bosnia and Herzegovina during the time-period relevant to the Indictment and that the victims of the alleged offences were "protected persons", rendering Article 2 applicable. In addition, Article 3 is applicable to each of the crimes charged on the basis that they also constitute violations of the laws or customs of war, substantively prohibited by common article 3 of the Geneva Conventions (with the exception of the charges of plunder and unlawful confinement of civilians).

318. Having thus found that the requirements for the applicability of Articles 2 and 3 of the Statute are satisfied in the present case, the Trial Chamber must turn its attention to the nature of individual criminal responsibility as recognised under Article 7 of the Statute.