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Paper on Question No 12(g) “Case No. 180, ICTY, the Prosecutor v. Tadic”, ICTY, 2 October 1995
By Faridoon Hazeen
Prof. Marco Sassoli & Assist. Prof. Katja Schöbrel
Monday 15 November 2010, Uni Mail, Geneva Switzerland
non – retroactivity and clarity of the law . Bouvier Antonio. p 1857. Robinson Darryl and Wilmshurst Elizabeth. 4 of Convention IV to Tadic’s past actions violate the principle of nullum crimen sine lege? Firstly the Trial Chamber trying to define ‘protected person’ relied upon Article 4(1) of GCIV stating “Persons protected … are those …. para 164 Ibid 3 Ibid 4 Cryer Robert.. A. in the hands of a Party to the conflict or Occupying Power of which they are not nationals” 1. The principle of “Nullum crimen sine lege having two aspects . 2nd Ed.seeks to ensure that the law is reasonably publicized. but let’s see if the fundamental principle of criminal law. Does the fact that the Appeals Chamber applies its new interpretation of Art. Often. the penal code of every state contains a provision that covers this principle at the national level. while there is no mention of such category to be protected by Article 4(2) of GCIV. 4 of Convention IV to Tadic’s past actions violate the principle nullum crimen sine lege? 2. but it is not as absolute at the international level as it is at the national level. Friman Hakan. P 17 2 .”4 Whereas.3 The Trail Chamber in its new interpretation has included new category of persons being protected under Article 4(2) of GCIV. occupied territory or the combat zone) who do not have the nationality of the belligerents …”2 According to the new interpretation of the Trial Chamber even those civilians having the same nationality of the party to the conflict in whose hands they find themselves are counted as refugees and are protected under the second paragraph of Article 4. Merits. In fact. so people can know whether their planned course of action is acceptable or not. An Introduction to International Criminal Law and Procedures. the new interpretation given by the Trial Chamber was done in a good faith. Is it necessary to qualify Tadic’s victims as ‘protected persons’ to punish his acts? a) As grave breaches to the Geneva Conventions? b) As violations of the laws and customs of war? Answers: 1. Secondly. namely ‘Nullum crimen sine lege’ is against or in favor of the new interpretation.Question 12g: 1. it relied upon paragraph (2) of the same article mentioning that “the Convention intends to protect civilians (in enemy territory. How Does Law Protect in War? V 2. According to the object and purpose of the article. the new interpretations is correct. Cambridge 2nd edition. Does the fact that the Appeals Chamber applies its new interpretation of Art. and a person shall not 1 2 Sassoli Marco. this is one of the most important principles of criminal law.
5 For example: Afghanistan. Issue no 13. it can be argued that Common Article 311 of the GCs could still be applied. Robinson Darryl and Wilmshurst Elizabeth.gov. the acts committed by Tadic were crimes under internal legislation. hence the new interpretation to Art. 1) That either the Appeals Chamber applied its new interpretation of Art. it can be argued that as far as the acts were committed between 25 May 1992 and early August of the same year then the GCs and APs were applicable.18 7 Nuremburg IMT Judgment (1947) 41 AJIL 127 at 217 8 The best examples are the Nuremburg and Tokyo IMTs. If it is claimed that the conflict was not international to apply the GCs.af 6 Cryer Robert.8 In addition.moj. UN Doc. An Introduction to International Criminal Law and Procedures. Friman Hakan. Therefore. responded that crimes against peace were already criminalized in international law6.” 9 It means. S/25704. 9 Cryer Robert. Articles 2 and 3 – www. in particular GCIV of 12 August 1949. para 34) 10 Greenwood Christopher. with which the Tokyo IMT agreed. Penal Code of 7 October 1976. 5 There are claims that prosecutions for international crimes violated this principle.” 7 It means. Robinson Darryl and Wilmshurst Elizabeth. the UN Secretary – General was sensitive to critiques over violations of nullum crimen sine lege by international courts stating that “The application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of International Humanitarian Law which are beyond any doubt part of customary law so that the problem of adherence of some but not all states to specific conventions does not arise. 2) That according to the Prosecutor replication that the alleged offences of Tadic had been committed in the course of an international armed conflict as well as based on the Security Council resolution that treated the entire conflict in the former Yugoslavia as an international armed conflict10. Furthermore. which most of their judgments with respect to war crimes and crimes against humanity were based on customary international law. Friman Hakan. Cambridge 2nd edition. pgs 18 – 19 (Rep of the Secretary – General Pursuant to Paragraph 2 of Security Council resolution 808. In addition. when drafting the Statute of the ICTY.be accused for an act unless it is already counted as crime under existed legislation. it based its judgment on customary international law. and as far as there are plenty of rules criminalizing Tadic’s acts at the time of commission. 4 is not in contradiction with the principle of nullum crimen sine lege. torture or cruel treatment of detainees …) had been crimes under customary international law too. but is in general a principle of justice. most of his acts (killing. it also stated that “The maxim nullum crimen sine lege is not a limitation of sovereignty. An Introduction to International Criminal Law and Procedures. the new interpretation given by the Appeals Chamber is not violating the principle of nullum crimen sine lege. Cambridge 2nd edition. The Nuremburg IMT. International Humanitarian Law and the Tadic Case. p 267 11 It is obvious that Common Article 3 to the 4GCs has a customary nature 3 . the Appeals Chambers decision was implicitly based on customary nature of the rules. the Nuremburg and Tokyo IMTs both faced claims that prosecution of crimes against peace involved violations of the nullum crimen sine lege principle. 4 to the GCIV or not. Professor of International Law. London School of Economics. pgs 17 .
in order to bring Tadic’s acts into justice and to give the rights of those entitled. Bouvier Antonio. The controversy of the issue is seemed in Tadic’s case. it means ICTY and the national courts shall have concurrent jurisdiction over grave breaches. Also. Otherwise. grave breaches are those defined by the Four GCs13 as “…those involving… acts… against persons or property protected…willful killing. p 1857. Professor of International Law. 2nd Ed. A. but in fact it is one of the most controversial issues being discussed at the international level. It was important to blazon the acts to be against ‘protected persons’. Although. p268 -269 16 Sassoli Marco. How Does Law Protect in War? V 2. It means. p 1857. p 1857. I think of it as a shortage of this branch of law. How Does Law Protect in War? V 2. if not Tadic’s victims would not be regarded as protected persons. occupation. I think people will be more vulnerable during NIAC than IAC. first the armed conflict be international 19. protected person or object too. Article 4 of GCIII and Article 4 of GCIV. 12 It should be noted that there is no protected person in NIAC with the same concept as in IAC. Sassoli Marco. while ICTY’s jurisdiction has primacy over national courts with respect to the prosecution of such crimes. 16 The new interpretation was rightly given to this article17. Merits para 163 15 Ibid. while having the nationality of the Party to the conflict in whose hands they find themselves. In fact. 130 and 147 of the Four Geneva Conventions of 12 August 1949. Merits para 164 17 I am totally in favor of this interpretation. a) For the purpose of the Tribunal to amount Tadic’s victims as protected persons there were two requirements to be fulfilled namely. As long as the concept of grave breaches is limited to the IAC15. Bouvier Antonio. London School of Economics. 51. the domestic courts would have been qualified to prosecute Tadic in accordance with their national legislations. it seems easy to grant protection to someone affected by armed conflict. Is it necessary to qualify Tadic’s victims as ‘protected persons’ to punish his acts? a) As grave breaches to the Geneva Conventions? b) As violations of the laws and customs of war? There is a very close link between ‘grave breaches’. ‘armed conflict’ and ‘occupation’. p 268 Also. Merits para 163 4 . neither do the court could get a right decision in this respect 18 What stated above does not necessarily mean that only ICTY has jurisdiction over grave breaches of IHL committed in the territory of former Yugoslavia. 2nd Ed. respectively 14 Greenwood Christopher.2. 2nd Ed. A. A. are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection”. The conflict in the former Yugoslavia was recognized as IAC14. it is one of the realities of IHL. International Humanitarian Law and the Tadic Case. It remains a question for me that why those trapped in NIAC do not benefit from this status? 13 Articles 50. torture or inhumane treatment…” The protected persons are those mentioned under Article 13 common to the GCs I and II. Bouvier Antonio. 9(2)). 19 Sassoli Marco. ‘protected persons’. the Appeals Chamber had to qualify the victims of Tadic’s acts as ‘protected persons’. How Does Law Protect in War? V 2. under international humanitarian law everyone is not granted protection to benefit from its provisions. It stated that “… the convention also intends to protect those civilians in occupied territory who. Although. ICTY Statute (Art. the Chamber which was functioning in accordance with the provisions of its statute had to link Tadic’s acts with Article 2 of its statute dealing with grave breaches of the GCs and APs. hence only in the latter situation the protected person status can be granted. and his acts would not amount to grave breaches under international humanitarian law18. If there is a grave breach then there should be a situation of armed conflict12.
. Article 3. then it means the perpetrator has violated the laws and customs of war enforce. 18 October 1907. The Hague. In this respect. which should be respected.must be respected. Article 8(2)(b)(e). raped or treated inhumanly.and second the acts be grave breaches20. victims of Tadic’s acts are those who are victims of violations of the laws and customs of war. counted as part of the laws and customs of war. para 164 Convention (IV) on Respecting the Laws and Customs of War on Land. Such acts having a long history are not only prohibited by treaty law. In these instruments and statutes there are many articles stating the acts. According to Article 9(1) of the ICTY’s Statute which talks about concurrent jurisdiction of itself and the national courts over serious violations of international humanitarian law in the former Yugoslavia. it should be noted that most of these instruments are based on customary law. The Hague. When there is violation of these regulations. In case Tadic’s acts did not amount to grave breaches or serious violations of international humanitarian law. the national courts could argue for being qualified for prosecution. 29 July 1899 22 ICC Statute. tortured. but also forbidden under customary international law too. the court had to qualify Tadic’s acts as serious violations or grave breaches of international humanitarian law so as to impose its jurisdiction in this concern and show its primacy over national courts.. Therefore. Convention (II) with Respect to the Laws and Customs of War on Land.. 18 October 1907 states: “Family honor and rights. ICTY Statute. this was true that the Appeals Chamber qualified Tadic’s acts prohibited under the laws and customs of war. This incorporation shows the importance of the subject matter at the international level.” Besides. for instance Article 46 of the Hague Convention (IV) Respecting the Laws and Customs of War on Land. Same is true with the statutes of international tribunals. b) The phrase ‘laws and customs of war’ is incorporated in various international instruments21 and statutes22 establishing criminal tribunals at the international level and has been interpreted as a residual clause to international humanitarian law.. 20 21 Ibid. the lives of persons. They were killed. 5 .
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