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Antonio Cassese, The Nexus Requirement for War Crimes,

10 J. Int'l Crim. Just. 1395, 1418 (2012)
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V ANTHOLOGY
The Nexus Requirement for
War Crimes
Antonio Cassese*

1. Introduction
Not all crimes committed during an armed conflict constitute war crimes. It is
widely held in case law and legal literature that, in order to qualify as a war
crime, criminal conduct must be 'closely related to the hostilities'.' This rela-
tionship between armed conflict and conduct, termed 'nexus' (or 'link'), serves
to distinguish between war crimes, on the one side, and 'ordinary'crimes com-
mitted during - but unrelated to - an armed conflict, on the other.2
The nature of this nexus requirement under current international law and
the means to prove it, though theoretically distinct questions, are two closely
intertwined matters, especially in the context of criminal trials. Prosecuting
authorities in criminal proceedings dealing with alleged war crimes will have
to prove the existence of this nexus beyond reasonable doubt on the basis of
various indicia. One of the most problematic aspects of this exercise is that
courts have not often made findings about the nexus requirement explicitly.
This is probably due to the fact that in most war crimes prosecutions the
nexus between the armed conflict and the alleged criminal conduct is
self-evident and does not warrant any distinct or separate analysis by the

[We are pleased to publish here an edited extract of an expert opinion Professor Cassese pro-
vided the Dutch Court of Appeals in the proceedings concerning Joseph Mpambara in late
2010 (see Gerechtshof, The Hague, judgment of 7 July 2011, LJ number: BR0686). Our kind
thanks to Ward Ferdinandusse, Prosecutor, National Division, Dutch Department of
Prosecutions, for permitting its publication. The Editors]
* I would like to express my gratitude to Guido Acquaviva and Jennifer Wheeler for their assist-
ance in researching and contributing to helpful discussion on the legal issues dealt with in
this Opinion. The Opinion is written in a personal capacity and does not reflect the views of
any institution to which the author may be attached.
1 Judgment, Kunarac (IT-96-23-T & IT-96-23/1-T), Trial Chamber, 22 February 2001, § 402
('Kunarac Trial Judgment'). [...]
2 For example, G. Mettraux, 'Nexus with Armed Conflict, in A. Cassese et al. (eds), Oxford
Companion to InternationalCriminalJustice (OUP, 2009), at 435.

Journal of InternationalCriminalJustice 10 (2012), 1395-1417 doi:10.1093/jicj/mqsO82

0 The Author (2012). Published by Oxford University Press. All rights reserved.
For Permissions, please email: journals.permissions@oup.com
1396 JICJ10 (2012), 1395-1417

judges. Be that as it may, it should be pointed out that case law is not always
clear in establishing guiding principles to ascertain the contours of customary
law dealing with the nexus.
An important point should be made at the outset. The question of identifying
a nexus between a criminal offence and an armed conflict is relatively easy in
the case of internationalarmed conflict: there, normally two or more belliger-
ents face each other, and the civilians who belong to the enemy belligerent
and do not take an active part in hostilities are 'protected persons' (together
with the wounded and the sick, the shipwrecked and the prisoners of war);
they therefore may not be the subject of an attack. In addition, any offence
committed by a combatant against a 'protected person' in breach of interna-
tional humanitarian law (IHL) is the actus reus of a war crime, for the offence
amounts to a 'serious' violation of a rule of IHL. In international armed con-
flicts it is relatively rare for offences to be committed by civilians belonging to
one party against enemy combatants or enemy civilians, but even in these
cases it does not prove difficult to identify the 'nexus' [...]. In contrast, things
are less clear in internal armed conflict. Here, in addition to the fact that gov-
ernments face rebels having the same nationality as government officials, civil-
ians sometimes engage in fighting and attack other civilians - despite the
fact that they have the same nationality - on the assumption that the latter
'belong to' the opposed faction (i.e. owe allegiance to the military and political
structure of the opposed faction). Furthermore, technically speaking, in a
civil war civilians are not 'protected persons' pursuant to the Geneva
Conventions and Protocols. These problems affecting internal armed conflicts
should be borne in mind when working out the various issues that accompany
the question of pinpointing the nature and scope of the 'nexus.'
Here I succinctly discuss the notion of nexus with an armed conflict that
can be inferred from international humanitarian law, then describe how
courts - both domestic and international - have dealt with the nexus re-
quirement in war crimes trials over the past decades. I then address the main
issues that the International Criminal Tribunals for the former Yugoslavia and
Rwanda (ICTY and ICTR) have faced and the quandary in which the ICTR in
particular has found itself. Finally, after having drawn some conclusions on
the nexus requirement as laid down in the relevant case law, the Opinion
addresses specific issues with respect to recent Dutch jurisprudence on the
question.

3 On the notion of allegiance to a party to the conflict as a possible alternative to nationality of

that party, see Judgment, Tadid (IT-94-1-A), Appeals Chamber, 15 July 1999 ('Tadid Appeal
Judgment'), §§164-166.
 The Nexus Requirementfor War Crimes 1397

2. The Purpose and Nature of Nexus

I1...]I
The rationale behind the punishment of war crimes is that all those who,
during an armed conflict, seriously contravene rules of IHL against persons
protected by such rules should be personally accountable for such breaches.
As no international rule clearly and explicitly defines the nexus under discus-
sion, the contours and content of such nexus must be inferred from the whole
spirit of IHL and international criminal law (ICL) as well as the object and pur-
pose of the relevant international rules.
It stands to reason that to be labelled as a war crime an offence must meet
two requirements. It must have been (i) perpetrated against persons who do
not take direct part in hostilities or who no longer take part in such hostilities
and (ii) occasioned by and linked to the armed conflict, which created the situ-
ation and provided an opportunity for the criminal offence. To be more explicit:
the offence must be committed to pursue the aims of the conflict or, alterna-
tively, be carried out with a view to somehow contributing to attain the ultim-
ate goals of a military campaign or, at a minimum, in unison with the
military campaign.
The fact that the victim is a 'protected person' (lato sensu, i.e. as a term
embracing both protected persons under the four Geneva Conventions and ci-
vilians in internal armed conflict who do not take direct part in the hostilities)
is therefore not a sufficient link with the armed conflict per se - otherwise
every offence committed against 'protected persons' (and property) would
amount to a war crime. It is also necessary for the offence to bear a close rela-
tionship with the armed conflict.
A few examples will clarify the above definition. Plainly, an offence (murder,
torture, rape, etc.) committed by a combatant against a civilian of the opposing
party, or an offence against an enemy combatant (e.g. by using unlawful weap-
ons) in breach of a rule of IHL is generally classified as a war crime: such of-
fence has been perpetrated to (wrongly) pursue the purposes of war. By the
same token, an offence (theft, murder, rape, etc.) committed by a combatant
against another combatant belonging to the same belligerent (e.g. the rape of
a member of an army by a fellow officer or private), is not a war crime,
although the armed conflict may have been the occasion for the offence (for in-
stance, it is possible that if there was no armed conflict they would not
happen to serve in the same battalion or to meet in the barracks).
Similarly, an offence (e.g. murder or rape) committed by a civilian against
another civilian of the same party to the conflict is not a war crime, even
when the opportunity for the commission of the offence has been created by
the armed conflict (for instance, a civilian murders or rapes a neighbour,
knowing that he is likely to enjoy impunity on account of the collapse of
public order caused by the armed conflict).
Instead, an offence perpetrated during a non-international armed conflict by
a civilian against a civilian belonging to the opposing party to the conflict
would generally amount to a war crime (for instance, the rape of a Muslim
1398 JICJ 10 (2012), 1395-1417

woman by a Croat in a civil war opposing Croats to Muslims). In this case, the
offender identifies with the party opposed to that which the civilian victim be-
longs to (or to which she owes allegiance) and thus the crime is carried out
in unison with the ultimate goals of the military campaign. These circum-
stances make it clear that the armed conflict created the situation for the
crime to be perpetrated. Indeed, the offence is committed because, and within
the context, of the armed conflict, it is carried out in consonance with the ul-
timate goals of the military campaign, and against a protected person. The
same applies to the case of an offence (e.g. murder) committed, in breach of
IHL, by a civilian against a combatant belonging to the opposing party to the
conflict.
In contrast, if a crime committed by a combatant against an enemy civilian
does not pursue the ultimate goals of the military campaign nor is at least in
unison with the military campaign, it can be classified as an ordinary crime.
Take the case of a group of militias or combatants intent on profiting from the
confusion caused by an internal armed conflict by engaging in armed robbery
in the house or a jewellery store of a rich civilian who happens to belong to
the enemy party. In this case, unless prosecuting authorities show some other
specific link with the armed conflict, the robbery should be characterized as a
common crime and not as looting as a war crime. [...]

3. Case Law on the Nexus Requirement: Post-World War

II Prosecutions
The Nuremberg and Tokyo Military Tribunals made several important pro-
nouncements in relation to the existence of war crimes, and the nexus thereof
with hostilities [...]. Although all of these cases only concern international
armed conflict, they can nonetheless shed some light also on internalconflicts,
for they set out notions that can also be applied to civil wars.

A. Post-World War II Military Tribunals

The International Military Tribunal (IMT), established in 1945 to try the major
German war criminals of World War II, was given jurisdiction to try crimes
against peace, war crimes, and crimes against humanity. When discussing
war crimes, the Tribunal noted inter alia that Article 6(b) of the Charter pro-
vides that "ill-treatment ... of civilian population of or in occupied terri-
tory ... killing of hostages ... wanton destruction of cities, towns or villages"
shall be a war crime. In the main these provisions are merely declaratory of
the existing laws of war as expressed by the Hague Convention, Article
46 ...." In reaching its findings on the evidence, it established, for instance

4 Judgment of the International Military Tribunal for the Trial of the German Major War
Criminals, Nuremberg, 30 September and 1 October 1946 ('IMT Judgment'), at 48.
 The Nexus Requirementfor War Crimes 1399

that '... in the East, the mass murders and cruelties were not committed solely
for the purpose of stamping out opposition or resistance to the German oc-
cupying forces. [...] these crimes were part of a plan to get rid of whole native
populations by expulsion and annihilation,in order that their territory could be
used for colonisation by Germans.'5 Thus, while many of the horrendous
crimes committed by the Germans in the East were found to be part and
parcel of persecutory policies (and, at least in part, of what came to be known
as genocide) - and not directly linked to the military operations - they
were nonetheless considered war crimes, for the nexus was clearly there.
In a similar way, the judges at Nuremberg came to the conclusion that
[t]he brutal suppression of all opposition to the German occupation was not confined to
severe measures against suspected members of resistance movements themselves, but was
also extended to their families. On the 19th July 1944, the Commander of the SIPO and SD
in the district of Radom, in Poland, published an order, transmitted through the Higher SS
and Police leaders, to the effect that in all cases of assassination or attempted assassination
of Germans, or where saboteurs had destroyed vital installations not only the guilty
person, but also all 'his or her male relatives should be shot, and female relatives over sixteen
6
years of age put into a concentration camp.'

Such attacks on relatives of saboteurs were also considered war crimes, even
though they were not committed by German armed forces per se and even
though the victims were not former combatants or other persons taking part
in the hostilities. In other words, according to the IMT, even crimes committed
solely for intimidation or revenge purposes can be connected with the armed
conflict. It would appear that the pivotal element to establish the required
nexus was, in such cases, that the crimes occurred during an armed conflict,
that the persons in question were protected by IHL, and that the attacks against
them were carried out pursuant to the persecutory policy underpinning the
conflict - and were not motivated by reasons extraneous to the war. This find-
ing was reached regardless of the fact that the killings clearly had a stronger
connection with the persecution and genocide than with the military oper-
ations per se. In all the cases mentioned above, the armed conflict's causal link
to the crimes was quite remote in the abstract, but very closely related in the
manner in which the concrete circumstances were playing out.
Other post-World War II trials provide clarifications as to the necessary con-
nection with the armed conflict for a court of law to establish a nexus. In its
judgment of 25 January 1949, in R6chling, the Superior Military Government
Court of the French Occupation Zone in Germany clarified multiple aspects of
the case law on war crimes committed by civilians. [...] Hermann R6chling
was one of the directors of the R6chling enterprises, leading German concerns
in the coal, iron and steel industries. He was indicted, together with other
members of the board for inter alia, war crimes, crimes against humanity and
crimes against peace. [...] Richling was a militant member of the

5 IMT Judgment, at 52 (emphasis added).

6 Ibid., at 49 (emphasis added).
1400 JICJ 10 (2012), 1395-1417

National-Socialist Party. Interestingly, while the Court established that he and

other accused had participated in various meetings related to the re-armament
of the German Reich and to the economic development of the country both
before and during the war, they were not found guilty of war crimes only in re-
lation to the unlawful appropriation of property in France, Norway, Poland,
Ukraine, and Serbia aimed at furthering the German war effort (where a clear
and direct link existed with the armed conflict). Instead, the Court established
that the conduct of various accused was to be considered a war crime even
when plunder had been carried out for the benefit of the firm. Thus, for instance,
the Court stated: 'The following clearly established facts [scil. removal of pri-
vate property] must also be set forth to the charge of Hermann Richling,
which on the one hand, constitute simple economic spoliation in favor of the
Reich and, on the other hand, spoliation and robbery in favor of his firm; but
which in both cases constitute war crimes'.7 It concluded that '[a]ll these acts
constitute unlawful seizure of property, which belonged to private persons in
the occupied countries, in violation of the Hague Convention' 8 While, again,
there was no explicit finding on the existence of a nexus with the armed con-
flict in this case, the reasoning is compelling that, since the spoliation of pri-
vate property had been carried out thanks to the existence of an armed conflict
and according to modalities typical of lawful requisitions in war (though unlaw-
ful in the concrete circumstances of the case), a sufficient link had been
demonstrated with the hostilities and occupation policy to justify the labelling
of the conduct as war crime.9
In the medical case (United States v. Karl Brandt et al.), several doctors in Nazi
Germany were indicted for their role in human medical experiments under
Control Council Law No. 10. War crimes and crimes against humanity were dis-
cussed together, the only distinction being that war crimes were committed
against members of the armed forces and civilians of countries at war with
Germanyo These experiments were not performed by military doctors and
were not carried out (only) on prisoners of war. In addition, they were com-
mitted far away from the frontlines, and did not have any close and direct link

7 The Government Commissioner of the General Tribunal of the Military Government for the French
Zone of Occupation in Germany v. Herman Roechling and Others, Judgment on Appeal to the
Superior Military Government Court of the French Occupation Zone in Germany, 25 January
1949, Vol. XIV Trials of War Criminals ('TWC'), Appendix B, at 1114 [Roechling Appeal
Judgment].
8 Ibid., at 1115.
9 It might be argued that the Tribunal did not wish to make a distinction between war crimes
and ordinary crimes, and just resorted to enter convictions for both types of crimes, despite its
formal limited jurisdiction. However, elsewhere in the Judgment, the judges clearly described
other conduct as war crimes because as part of 'an actual government program which had
been arranged by the State and was carried out by its agencies.' (Roechling Appeal Judgment,
at 1128. with reference to forced labour). Had the judges wished to make this distinction for
plunder, too, they would have been easily able to distinguish.
10 United States v. Karl Brandt et al., Judgment US Nuremberg Military Tribunals. 19 August 1947,
Vol. II, TWC, at 174.
 The Nexus Requirementfor War Crimes 1401

to how hostilities were waged; nonetheless they were classified as war crimes.
According to the Tribunal:
[b]eginning with the outbreak of World War II criminal medical experiments on
non-German nationals, both prisoners of war and civilians ... were carried out on a large
scale in Germany and the occupied countries. These experiments were not the isolated
and casual acts of individual doctors and scientists working solely on their own responsibil-
ity, but were the product of coordinated policy-making and planning at high governmental,
military, and Nazi Party levels, conducted as an integral part of the total war effort. They were
ordered, sanctioned, permitted, or approved by persons in positions of authority who
under all principles of law were under the duty to know about these things and to take
11
steps to terminate or prevent them.

In dealing with such a conflict - where persecution (and genocide), on the

one side, and military objectives, on the other, intertwine - the judges there-
fore reached the conclusion that medical experiments of this type amounted
to war crimes when committed against civilians of the opposing side in the
conflict (i.e. protected persons). There was no need to show that these civilians
were up in arms against Germany or its allies, no need to show formal status
of prisoners of war, and no requirement that the medical experiments were dir-
ectly linked to the war efforts. The existence of the armed conflict, coupled
with the fact that the medical experiments in question were carried out in
unison with a persecutory plan that could not concretely have been carried out
in the absence of the hostilities were sufficient to consider the conduct in ques-
tion to be war crimes.
At the International Military Tribunal for the Far East, similar findings were
made in relation to war crimes. Suffice it to mention the case of the crimes of
vivisection and cannibalism (under Chapter VIII: Conventional War Crimes),
where mutilations by Japanese soldiers were considered war crimes not only
when committed against prisoners of war, but also when perpetrated against
domestic servants without any apparent connection with the hostilities.12

B. National Tribunals
In the aftermath of World War II a number of domestic courts also tried to
come to grips with the terrible crimes committed during that conflict. While
most of these crimes were undoubtedly strictly connected with the hostilities,
some instances were not so clear. A caveat when dealing with such domestic
prosecutions is, of course, that courts and tribunals were generally called
upon to apply international law not directly, but rather as 'mediated' by domes-
tic provisions, such as criminal codes and other legislative instruments. The
wording of these national provisions may differ somewhat from the rules of

11 Ibid., at 181 (emphasis added).

12 See, among the others, the event occurred in Manila mentioned at page 409 of Volume I of
B.VA. Rling and C. E Riter (eds), The Tokyo Judgment: The InternationalMilitaryTribunal for the
Far East (Amsterdam University Press, 1977).
1402 JICJ 10 (2012), 1395-1417

international law directly applied by the military tribunals discussed above -

but when there is no major difference, they can generally be considered as
'state practice' in helping to establish the exact import of the international cus-
tomary rules applicable to the nexus requirement.

Tribunals [...] have apparently [..], require[d] a strong connection between

crimes and armed conflicts. This is the case, for instance, of the Corte di assise
of Santa Maria Capua Vetere (Italy) in its judgment of 25 October 1994 in the
case of Emden Wolfgang Lehnigk and Kurt Arthur Werner Schuster.13 The
two accused were officers in the German armed forces in October 1943, sta-
tioned around Caiazzo (in southern Italy) - an area where, on one occasion,
German soldiers killed 22 civilians who were hiding in a country house. One
of the issues before the judges was whether the killings were war crimes (to
be tried by a military tribunal) or common offences (to be tried before ordinary
courts). 14 The court explained that a civilian court had jurisdiction over the
crime described above because, although Lehnigk and Schuster were military
officers accused of killing innocent civilians during a war operation, 'war
crimes are characterised by an objective nexus with war necessities, that is,
on account of their military nature; killings that lack such a nexus, and only
broadly related with the war, fall into the category of common murders.'
In order for an act to be considered a violation of the laws or customs of war,
in the view of the judges, violence had to be 'the result, the effect, the product
of a military operation'. The court found that the crimes had been committed
due to'hatred against the Italian people' ('intolleranza e astio... nei confronti del
popolo italiano') and for reasons unrelated to the war operations ('i motivi...
trascendevano la logica della guerrd) - thus questionably assigning relevance
to motives rather than to objective circumstances. No higher court reviewed
the case, which, however, remains isolated even in Italian case law.
Indeed, on 8 October 2002 in Seifert, the Italian Supreme Court ruled on the
matter of the necessary nexus with the armed conflict in Article 185 of the
Code as interpreted by Italian tribunals. 15 Between December 1944 and April
1945, Seifert was a guard in a concentration camp in Bolzano (northern
Italy). While serving there, he participated in the torture and killing of at least
18 detained persons, including Jews and other 'non-Arians'. The first instance
Tribunal in Verona held that Seifert's conduct constituted war crimes despite
the fact that some of the detainees were Jews and others were civilian

13 The text of this judgment is available in its original (Italian) version at: http://www.difesa.it/
GiustiziaMilitare/RassegnaGM/Processi/CriminiGuerra/Lehnigk-Emden-Schuster/c-assise-
smcv.htm (visited 2 November 2012).
14 Art. 185, in the Chapter of the Italian Military Penal Code Applicable in Time of War dealing
with crimes against the laws and customs of war, is applicable to military people who commits
acts of violence against person not taking part in military operations for reasons not unrelated
to the conflict.
15 The texts of the judgments of the first instance tribunal, the court of appeal and the Supreme
Court are available in their original (Italian) version at http://www.difesa.it/GiustiziaMilitare/
RassegnaGM/Processi/Seifert+Michael/ (visited 2 November 2012).
 The Nexus Requirement for War Crimes 1403

opponents to the fascist regime existing in northern Italy since 1943. Even in
relation to these victims, the nexus with the armed conflict existed because
- as the Supreme Court confirmed - the criminal actions were connected
with the war - and it was irrelevant that they were also connected with polit-
ical and racial persecution. Most of the violent acts were indeed linked to
hostage-taking and retaliatory operations against armed opponents to the
regime. The military context was provided by the fact that the perpetrator
was a military person who followed military orders. The identity of the victims
was irrelevant: crimes forming part of the persecution against opponents to
the regime and against Jews were not separate from the other crimes com-
mitted against prisoners of war (lato sensu) and were committed in the context
of the armed conflict. Nothing else was required.
Another domestic jurisdiction that has dealt extensively with war crimes
committed during World War II is the Netherlands, with its prosecutions
under Article 27a of the Extraordinary Penal Law Decree (Any person who,
during the present war, while in the military service of the enemy, is guilty of
a war crime ... as defined in Article 6 ... of the [Nuremberg] Charter shall' be
punishable according to existing Dutch legislation).
Dutch courts dealing with crimes committed during World War II seem to
have interpreted the nexus requirement quite loosely, in general limiting them-
selves to assessing the jurisdictional requirements ('during the present war'
and 'while in the service of the enemy') and then assuming a nexus to the
armed conflict if no evidence showed otherwise.
For instance, in Bellmer, decided in final instance by the Special Court of
Cassation on 20 March 1950, the accused was an officer in the German SS. He
was found guilty of war crimes, inter alia, for allowing arson of a private
house because he had been disappointed by not finding people that he had
(wrongly) assumed were hiding there.' 6 Thus, the nexus with the armed con-
flict was remote, but this did not prevent the Dutch judges from considering
the offence as a war crime.
In Lages, Willi Lages, who had been head of the Zentralstelle fur judische
Auswanderung in Amsterdam, an organization in charge of the deportation of
Jews from the Netherlands, was charged inter alia with participation in the de-
portation of 70,000 Dutch Jews to German concentration camps as a war
crime. His conviction was upheld by the Special Court of Cassation even
though it is clear that those crimes were part of the persecution and genocide
against the Jews rather than being directly connected with the armed con-
flict.17 In other words, since the persecution of the Jews was part and parcel of
the overall plan implemented by Germany during World War II, being a
member of the German forces and acting pursuant to the aims of that party
to the conflict was enough to provide the required connection to consider the
deportation a war crime.

16 Ned Jur. 1950, No. 305.

17 Ibid., No. 680.
1404 JICJ 10 (2012), 1395-1417

Other domestic tribunals have also dealt with the nexus explicitly. In rela-
tion to the conflict taking place in Rwanda during the genocide, the Swiss
Tribunal militaire d'appel held on 26 May 2000 in the Niyonteze case, that one
should not follow the strict criteria adopted by the ICTR on the nexus problem
(on such criteria see below). [...]
[T]he Tribunal noted that the accused, a civilian, who had the position of
mayor of a Rwandan municipality,'at a time where it was difficult to disassoci-
ate the civil war between the FAR and the FPR from the massacre of the
Tutsis and the moderate Hutus' in this capacity had instigated both the mili-
tary and civilians to exterminate members of the Tutsi group. In the opinion
of the Tribunal this clearly evinced a link between the armed conflict and the
war crimes attributable to the accused.

C. Concluding Comments on the Case Law

In general, what can be gleaned from the above-mentioned international and
domestic case law is that the nexus requirement does not mean that the
crimes must be committed while fighting is actually taking place or that they
must be performed at the scene of combat, or that they have to be directly
linked to the military campaign - for non-combatants may also commit war
crimes and their conduct is generally only indirectly connected with the
war.18 When the perpetrator and/or the victim are related or linked to one of
the parties to the conflict, it is obviously easier to establish the nexus, but this
is not a necessary requirement.
Admittedly, as stated above, during an international armed conflict such as
World War II, establishing a nexus between crimes committed by members of
the armed forces, on the one side, and the conflict, on the other, is less complex
than in non-international armed conflicts. Victims of war crimes would often
be protected persons under IHL (i.e. civilians not taking an active part in the
hostilities, the wounded and the sick, prisoners of war, shipwrecked persons,
and so on). Instead, during a non-international armed conflict where perpetra-
tors and victims can be of the same nationality, it will be a matter of assessing
whether the armed conflict provided the context and opportunity for the
crime which was thus committed in pursuance of or in unison with the aims
of the conflict and, for instance, whether the victim was a person not taking
an active part in the hostilities associated or connected with the opposing
party. In such circumstances, there should be compelling reasons to deny the
existence of a nexus.

18 G.Werle, Principles of InternationalCriminalLaw (2nd edn., T.M.C. Asser, 2009), at 373-375.

 The Nexus Requirement for War Crimes 1405

4. ICTY and ICTR

I1...]I

A. ICTY
In general, ICTY jurisprudence on the nexus requirement has been consistent
and has tended to apply in concrete circumstances principles expressed in the
Tadid and Kunarac Judgments. After clarifying that a war crime must be 'closely
related to the hostilities',19 the Appeals Chamber in Kunarac elaborated:
57. There is no necessary correlation between the area where the actual fighting is taking
place and the geographical reach of the laws of war. The laws of war apply in the whole ter-
ritory of the warring states or, in the case of internal armed conflicts, the whole territory
under the control of a party to the conflict, whether or not actual combat takes place
there, and continue to apply until a general conclusion of peace or, in the case of internal
armed conflicts, until a peaceful settlement is achieved. A violation of the laws or customs
of war may therefore occur at a time when and in a place where no fighting is actually
taking place. As indicated by the Trial Chamber, the requirement that the acts of the
accused must be closely related to the armed conflict would not be negated if the crimes
were temporally and geographically remote from the actual fighting. It would be sufficient,
for instance, for the purpose of this requirement, that the alleged crimes were closely
related to hostilities occurring in other parts of the territories controlled by the parties to
the conflict.
58. What ultimately distinguishes a war crime from a purely domestic offence is that a war
crime is shaped by or dependent upon the environment - the armed conflict - in which
it is committed. It need not have been planned or supported by some form of policy. The
armed conflict need not have been causal to the commission of the crime, but the existence
of an armed conflict must, at a minimum, have played a substantialpart in the perpetratorsabil-
ity to commit it, his decision to commit it, the manner in which it was committed or the purpose
for which it was committed. Hence, if it can be established,as in the present case, that the perpet-
rator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to con-
clude that his acts were closely related to the armed conflict...
59. In determining whether or not the act in question is sufficiently related to the armed
conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact
that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact
that the victim is a member of the opposing party; the fact that the act may be said to
serve the ultimate goal of a military campaign; and the fact that the crime is committed as
20
part of or in the context of the perpetrator's official duties.

While the criterion of 'in furtherance of or under the guise of the armed con-
flict' might appear vague, its application has been rather consistent. In
Naletilid and Martinovid, the ICTY, for instance, dealt with plunder of Bosnian
Muslim houses by Bosnian Croat irregular militias. The Chamber clarified

19 Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Tadid (IT-94-1), Appeals
Chamber, 2 October 1995, § 70.
20 Judgment, Kunarac (IT-96-23 & IT-96-23/1-A), Appeal Chamber, 12 June 2002, §§ 57-59
('KunaracAppeal Judgment') (emphasis added).
1406 JICJ 10 (2012), 1395-1417

that the crimes included 'plunder committed on the entire territory of the par-
ties to a conflict,21 not only in occupied territory It went on to consider as
war crimes acts of plunder for private gains as long as they were committed
in the course of the ethnic cleansing campaign waged by one side of the con-
flict against the civilians of the other side, even if this happened far away
from the combat areas.22 In such cases, the Chamber considered as one of the
bases for establishing the existence of war crimes the fact that 'the
acts ... charged were committed in the course, and as a consequence, of
the armed conflict'.23 In fact, although there was evidence that property had
been looted not just by soldiers, but also by civilians acting as gangs, the
crimes could still be defined as war crimes when a link with the armed conflict
was found.24 In such cases, the accused and their conduct were linked to the
armed conflict by the fact that the looting occurred during the campaign of
deportation accompanying the armed conflict. Despite the fact that some
of the perpetrators were civilians, the looting was carried out in unison with
the goals of the armed conflict. In other words, the offences had been occa-
sioned by the armed conflict, which created the situation and provided an
opportunity for the criminal offence - or, as the ICTY put it in other contexts,
the plunder was perpetrated 'in furtherance or under the guise of' the armed
conflict.
In Brdanin,the accused had been convicted, inter alia, under Article 2 of the
ICTY Statute (grave breaches of the Geneva Conventions of 1949) for a series
of rapes committed by Bosnian Serb police and the Bosnian Serb Army (VRS)
during military operations in the Tesli6 municipality in Bosnia-Herzegovina in
1992. In paragraph 256 of the Appeal Judgment, the Appeals Chamber rejected
the arguments advanced by the defence, as follows:
The first argument [raised by Brdanin] essentially states that a conviction under Article 2
of the Statute may not rely solely on the fact that the rapes were committed during a war.
The Appeals Chamber has previously stated that the jurisdictional prerequisites for the
application of Article 2 of the Statute have been exhaustively considered in the jurispru-
dence. One of those prerequisites ... is that the offence alleged to violate Article 2 of the
Statute must be committed in the context of an international armed conflict. The Trial
Chamber concluded that there was an international armed conflict in 1992 in the territory
of the ARK at the relevant time. When concluding that the members of the Bosnian Serb
police and the VRS committed rapes in Teslic municipality, the Trial Chamber cited wit-
nesses who described rapes associated with weapons searches. The Appeals Chamber con-
siders that the Trial Chamber clearly established the existence of an international armed
conflict and furthermore reasonably concluded that the rapes in Tesli, committed as they
were during weapons searches, were committed in the context of the armed conflict, and
were not 'individual domestic crimes' ... Crimes committed by combatants and by members
of forces accompanying them while searching for weapons during an armed conflict, and

21 Judgment, Naletilid and Martinovid (IT-98-34), Trial Chamber. 31 March 2003, § 615 ('Naletilid and
MartinovidTrial Judgment').
22 ibid., §§619-622.
23 Ibid., § 180.
24 Ibid., §626.
 The Nexus Requirementfor War Crimes 1407

taking advantage of their position, clearly fall into the category of crimes committed 'in the
context of the armed conflict.' The Trial Chamber did not err in concluding that the rapes
25
at issue could form a basis for conviction under Article 2 of the Statute.

The Appeals Chamber did not say, as might seem at first sight, that to establish
the required nexus a positive finding that a combatant has taken advantage
of his position to commit a crime is needed. Rather, the Appeals Chamber
applied a more general principle: within the context of an armed conflict,
when the victim is a protected person (as a non-combatant attacked by a com-
batant), then the fact that the perpetrators acted as they did because of the
war situation 'clearly' establishes the nexus. In that case, house searches
(more permissible in times of war than in times of peace) provided the causal
link between soldiers and their victims, and thus the nexus with the armed
conflict.

B. ICTR
In the context of ICTR trials, the issue has generally been whether crimes
against civilians (usually in the context of genocide) could be considered as
closely related to the internal armed conflict in Rwanda between the
Tutsi-controlled Rwandan Patriotic Front (RPF), and the Hutu-controlled
Rwandan Armed Forces (RAF).
It is notable that the ICTR, in its early cases, was reluctant to find a
nexus between offenses and the armed conflict. This initially tepid approach,
however, has been replaced by a broader application of the nexus standard
that is flexible and more consistent with the jurisprudence of the ICTY
Appeals Chamber - unsurprisingly, considering the mutual interaction
between ICTY and ICTR Appeals Chambers. The marked shift can be traced
to the ICTR's integration of the standard adopted in Kunarac. In 2002 the
Trial Chamber in Semanza adopted the Kunarac standard, and subsequent
cases have informed the contours of that standard as applied to the Rwanda
conflict.

1. Main Issues the ICTR Has Struggled With

(a) Absence of positive criteria

One of the main areas of struggle for the ICTR (and, indeed, for courts gener-
ally) has been balancing the case-by-case approach, which evaluates a
number of factors in their entirety, with a need for identifying the nature of
relevant criteria. 26 In other words, which criteria definitively establish a

25 Judgment Britanin (IT-99-36-A), Appeal Chamber. 3 April 2007, § 256.

26 See e.g. Judgment, Kayishema and Ruzindana (ICTR-95-1-T), Trial Chamber, 21 May 1999, § 188
('Kayishema and Ruzindana Trial Judgment'). ('Thus the term "nexus" should not be understood
as something vague and indefinite. A direct connection between the alleged crimes, referred
1408 JICJ 10 (2012), 1395-1417

nexus? Which criteria definitively establish no nexus? And, which criteria are
merely evidence of a nexus?
In fact, this struggle is misdirected because in evidentiary terms the nexus
standard is not a positive one, nor should it be. Rather than looking for specific
facts that point to a relationship between the crime and the armed conflict,
the court must first determine whether the crime would have been committed
in the absence of the armed conflict. This determination must be made at the
preliminary and general stage. In the cases brought before the ICTR, since the
genocide and armed conflict were somehow connected, as a rule the determin-
ation would lead to the conclusion that the underlying offences were linked to
the armed conflict. Once this determination was made, what the court had to
do in practice was to assess whether individual crimes should nevertheless
have been regarded as un-linked to the conflict, on other grounds.

(b) Link between individual and conflict v. link between crime and conflict
The second issue that the ICTR has struggled with, related to that just dis-
cussed, is the role and relevance of the accused's relationship with the armed
conflict in determining whether the offence is a war crime. While the link be-
tween the accused and the conflict can be seen as evidence supporting the ex-
istence of a nexus, it has at times been extracted from the nexus analysis and
presented as an additional element that must be established in conjunction
with a nexus between the crime and the armed conflict. Or, a link between
the accused and the armed conflict has been presented as the determinative cri-
terion for establishing a nexus between the crime and the armed conflict.
Known as the 'public agent test', the standard articulated by the Akayesu
Trial Chamber required the prosecutor to prove that the accused 'was either a
member of the armed forces under the military command of either of the belli-
gerent parties, or that he was legitimately mandated and expected, as a public
official or agent or person otherwise holding public authority or de facto repre-
senting the Government, to support or fulfil the war efforts.' 27
In Akayesu, the Trial Chamber failed to find that the accused was identified
with the armed forces, despite the fact that he wore a military jacket, carried
a rifle, assisted the military when they arrived in Taba, allowed the military
to use his office, and referred to targeted individuals as RPF accomplices. The
court even accepted that Akayesu was a communal authority,28 but held that
the evidence was insufficient to prove that acts perpetrated by Akayesu 'were
committed in conjunction with the armed conflict'or that he was 'legitimately
mandated and expected, as a public official or agent ... to support or fulfil the
war efforts.'29

to in the Indictment and the armed conflict should be established factually No test, therefore,
can be defined in abstracto.)
27 Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, § 640.
28 Ibid., §642.
29 Ibid., §643.
 The Nexus Requirementfor War Crimes 1409

Four months later, in Kayishema and Ruzindana, the Trial Chamber made an
even more forceful distinction between (i) a link between the armed forces
and the accused and (ii) the nexus between the armed conflict and the crime,
stating that:
It must be established that the armed conflict in Rwanda in this period of time was of a
non-international character. There must also be a link between the accused and the armed
forces. Further, the crimes must be committed ratione loci and ratione personae. Finally
30
there must be a nexus between the crime and the armed conflict.

In June, 2001, however the Appeals Chamber for the Akayesu case defini-
tively found that the 'public agent test' used by the Trial Chamber was an incor-
rect application of the law. The holding was clear in stating that such a
relationship is not a required factor for the nexus between the armed conflict
and the crime, nor can it be a required element on its own:
[The] nexus between violations and the armed conflict implies that, in most cases, the per-
petrator of the crime will probably have a special relationship with one party to the conflict.
However, such a special relationshipis not a condition precedent to the application of common
Article 3 and, hence of Article 4 of the Statute.31 (emphasis added)

Despite this clear authority from the Appeals Chamber, and the formal adop-
tion of the Kunarac criteria by the Appeals Chamber in Semanza, the public
agent test has continued (inappropriately) to seep into the nexus analysis in
some cases. Not surprisingly, where the public agent test reappears is one of
only two post-Kunarac cases where the nexus requirement has been deemed
not met - the Kamuhanda case.32 In that case, the Trial Chamber held that:
[I]t is the Prosecution's responsibility to prove that the Accused was either a member of the
armed forces under the military command of the belligerent parties or that, by virtue of
his authority as a public civilian official representing the Government, he was legitimately
3
mandated or expected to support the war efforts. 3

This 'public agent' requirement by the Kamuhanda Court directly contradicts

the important policy consideration outlined by the Akayesu Appeals Chamber,
that it is to the detriment of IHL 'if it were to be admitted that certain persons
be exonerated from individual criminal responsibility for a violation of
common Article 3 under the pretext that they did not belong to a specific cat-
egory'.3 4 While, admittedly, many of those prosecuted are in fact members of
the military and even high-ranking officials, this is a fact that often correlates
to the nexus requirement, but does not per se define such nexus requirement.
Civilians participating in the genocide can be found guilty of war crimes

30 Kayishema and Ruzindana Trial Judgment, § 169.

31 Judgment, Akayesu (ICTR-94-4-A), Appeal Chamber, 1 June 2001, § 444 ('Akayesu Appeal
Judgment').
32 The other case, Ntakirutimana, provides little analysis for the court's decision with respect to
the nexus requirement.
33 Judgment, Kamuhanda (ICTR-99-54), Trial Chamber, 22 January 2004, §739 ('KamuhandaTrial
Judgment').
34 Akayesu Appeal Judgment, § 443.
1410 JICJ 10 (2012), 1395-1417

despite the absence of an official military or 'public agent' connection, as re-

peatedly occurred in post-World War II prosecutions.

(c) Relationship between genocide and conflict and the issue of 'pretext'
The third issue with which the ICTR has grappled in its jurisprudence is the
determination of which facts are relevant to identifying the relationship be-
tween the armed conflict and the genocide.
One of the most troubling ideas that has emerged, and which appears to
have guided, at least in part, the ICTR's reluctance to characterize offences
that were part of the genocide as war crimes, is the notion that the armed con-
flict was used as a pretext 'to unleash an official policy of genocide.' 35 The
logic here seems to suggest that the 'pretext' negates any true causal relation-
ship between the conflict and the genocide. On the contrary, in actuality the
'pretext' approach would suggest that either the conflict was manufactured in
order to perpetrate genocide, or that the existence of the conflict created condi-
tions which facilitated the organization and execution of the genocide. In any
case, there is a clear and close connection between the conflict and genocide.
Though the jurisprudence of the ICTR has since become more consistent
with international law as described in international and domestic case law
above, it is instructive to take a closer look at the Kayishema judgment to gain
insight into how the distinction between the armed conflict and genocide in
early cases facilitated the ICTR's failure to establish a nexus.
In Kayishema, the Court established that Tutsis went to sites throughout
Kibuye and Rwanda to seek refuge, and even found that the attacks were a
'result of a campaign to exterminate the Tutsi population of the country'.36
The court further stated that because the Hutu civilian population was mobi-
lized to kill Tutsis, and that the 'men, women and children were killed not as
a result of the military operations between the FAR and the RPF but because
of the policy of extermination of the Tutsi, pursued by the official authorities
of Rwanda,'" no nexus could be established. The court failed to find a nexus
because it considered the fact that the attacks were orchestrated by civilian
authorities to be determinative, citing evidence that the Hutu civilian popula-
tion used 'traditional' weapons as opposed to rifles issued by the military.38
This reasoning was echoed, as discussed above, in the Kamuhanda case.
This result is startling, and a comparison with war crimes committed during
World War II can help to illustrate the absurd outcome of the court's reasoning.
On the one hand, the genocide and persecution of Jews and other targeted
groups, i.e. the organized extermination of a civilian population by a govern-
ment and its military, no doubt amounted to both genocide and war crimes.
The persecutory policy was never disjointed from the armed conflicts - not

35 Kayishema and RuzindanaTrial Judgment, §603.

36 Ibid., § 602.
37 Ibid., § 619.
38 Ibid., § 643.
 The Nexus Requirementfor War Crimes 1411

in the minds of the German officials implementing it, nor in the way it was ac-
tually allowed to occur. On the other hand, if one were to follow the approach
taken by the ICTR in Kayishema, the planners of genocide in Rwanda would
avoid individual criminal responsibility for war crimes in part because they
provided machetes, as opposed to rifles, and used propaganda to incite civilians
to engage in an 'official policy' of genocide. This result would be absurd and
does not tally with the facts (assuming that prosecuting authorities do not
forget to show that (i) the genocide was targeting civilians deemed associated
with the opposite warring party and that (ii) the armed conflict provided
cover and justification for the genocide). It would also run counter to the
body of law intended to protect innocent people in a time of armed conflict.
Indeed, the notion that crimes committed under the pretext of an armed
conflict cannot be considered as war crimes goes directly against the Kunarac
criteria later adopted by the ICTR. As discussed above, the Kunarac criteria pro-
vide that 'if it can be established ... that the perpetrator acted in furtherance
or under the guise of the armed conflict, it would be sufficient to conclude that
his acts were closely related to the armed conflict'.3 9
In 2005 the Semanza Appeals Chamber incidentally shed light on this very
important issue, finding the accused in that case guilty on charges of genocide
and war crimes for the same offenses. The classification and prosecution of
the genocide in many cases as a crime against humanity has been used by
some to suggest that, as a matter of law and fact, offences relating to the geno-
cide cannot also be classified as war crimes. The Appeals Chamber explicitly
refuted this notion, holding that cumulative convictions are permissible
where 'each provision involved has a materially distinct element not contained
in the other' 40 (in this case, the nexus requirement being one of these elem-
ents) and that such requirement was met.41 In so holding, the Court properly
rejected the notion that the genocide per se is to be considered as detached
from the armed conflict.

2. Principlesfrom ICTR Case Law

The principles that can be gleaned from ICTR jurisprudence, and which are
useful in considering the nexus requirement, have taken shape in the post-
Kunarac cases of Rutaganda and Semanza. These cases endorsed the Kunarac
criteria, and affirmed that such criteria do not require that the perpetrator
meet the 'public agent' test. The emphasis was redirected toward the crimes,

39 KunaracAppeal Judgment, § 58 (emphasis added).

40 Judgment Semanza (ICTR 97-20-A), Appeal Chamber, 20 May 2005, § 368 ('Semanza Appeal
Judgment') (quoting Judgment, Delalic (IT-96-21-A), Appeal Chamber, 20 February 2001,
§§412-413).
41 'The Appellant's convictions for crimes against humanity necessitated proof of a widespread or
systematic attack against a civilian population, whereas convictions for war crimes require
that the offences charged be closely related to the armed conflict.' Semanza Appeal Judgment,
§369.
1412 fICJ 10 (2012), 1395-1417

the context in which the crimes took place, and the clear link between the
genocide and armed conflict in Rwanda. These cases also make clear that any
connection established by 'pretext' or 'under the guise of' cannot be used to
play down or even negate the value of the link between the genocide and
armed conflict.
The Trial Chamber in Semanza noted that the conflict 'created the situation'
for the killings and abuses of Tutsi civilians,4 2 a factor that is consistent with
the Kunarac criteria. Importantly, in Semanza the court was clear in establish-
ing a link between the crime and the armed conflict. The fact that military offi-
cials were involved in the killings of local Tutsi civilians and influenced the
manner in which they occurred, tied the killings to the broader conflict even
where civilians were the direct perpetrators. Though in this case Semanza
was more than a civilian (he was directly involved with the Interahamwe mili-
tiamen and soldiers), the court found that the nexus requirement had been
met not because Semanza was identified as a combatant, but because the
crimes in which he took part were linked to the conflict. The Appeals
Chamber in Semanza upheld the Trial Chamber's holdings and use of the
Kunarac criteria as a framework for evaluating the nexus requirement.
Following the Trial Chamber's adoption of the Kunarac criteria in the
Semanza case, the Appeals Chamber in Rutaganda officially endorsed the
Kunarac criteria, finding Rutaganda guilty of war crimes after he was initially
acquitted at trial.4 3 The crimes committed by the Interahamwe, a group with
which Rutaganda had significant influence, were tied to the armed conflict in
part because '[t]he government's civil defence mobilization of April 1994, in
which the Interahamwe played a central role, was aimed at ensuring the suc-
cess of the campaign against the supposed internal enemy.'4 4 Thus the crimes
against the Tutsi 'enemy', though not committed by the official military, were
committed in furtherance of and in unison with the objectives of the military
campaign against the opposing party to the armed conflict.

5. The Nexus Requirement as Laid Down in the

Relevant Case Law
Historically, international and national courts have relied on varied but con-
sistent articulations of the 'occasioned by' standard set forth in section 2 of
this Opinion. For example, the Rochling Court considered economic spoliation
committed during World War II to constitute war crimes even where carried
out for the benefit of the private firm; or in the Bellmer case the Special Court
of Cassation in the Netherlands found that the burning of a private house by

42 Judgment Semanza (ICTR 97-20-T), Trial Chamber, 15 May 2003, § 518 ('Semanza Trial
Judgment').
43 Judgment, Rutaganda (ICTR-96-3-A), Appeal Chamber, 26 May 2003 ('Rutaganda Appeal
Judgment').
44 Rutaganda Appeal Judgment, § 563.
 The Nexus Requirementfor War Crimes 1413

the accused was sufficiently connected to the armed conflict to constitute a

war crime.
Importantly, ICTY and ICTR jurisprudence require that the criteria enumer-
ated in Kunarac (the fact that the perpetrator is a combatant; the fact that the
victim is a non-combatant; the fact that the victim is a member of the opposing
party; the fact that the act may be said to serve the ultimate goal of a military
campaign; and the fact that the crime is committed as part of or in the context
of the perpetrator's official duties) be seen in a broader context. The Kunarac
criteria on their face are structured as a loose set of factors that can be evi-
dence of a nexus. However, in practice and in line with the purposes that lie
behind humanitarian law, the Kunarac criteria are encompassed by a nexus
standard which is concrete in application. Indeed, the 'under the guise of' or
'pretext' language used in Kunarac and subsequent cases, when coupled with
the four criteria above, is actually applied as an'occasioned by' nexus standard
as laid out in section 2 of this Opinion.
The threshold issue for that standard is that the victim is a protected person
under IHL. Then, it must be shown that the armed conflict created both the
situation and opportunity for the offence. If the perpetrator is acting on an of-
ficial mission (i.e. is a military combatant) occasioned by the armed conflict,
unless other elements are shown by the record to the contrary, the offence
will generally be in unison with the aims of the conflict. Thus, given that the
first requirement is met - the victim is a protected person - tribunals in
such instances have been warranted in inferring the nexus. However, if the
perpetrator is a civilian, then it must be shown that the armed conflict created
the situation and opportunity for the offence by, e.g. showing that the offence
was carried out in accordance with the goals of the military campaign. Where
the civilian perpetrator can be said to identify with the party of the armed con-
flict opposing the victim, it will be generally admissible to infer that the offence
was carried out in conformity with the aims of the conflict.
Importantly, the 'occasioned by' nexus standard is objective in linking the
armed conflict with the crime, not the criminal. The fact that the offender is a
soldier, does not, in and of itself, provide the necessary link. Rather, it is the
inference regarding the conduct taken by the combatant that establishes the
link. The very same link can be proved between a crime committed by a
civilian and the armed conflict. Thus, the conduct is objectively a war crime -
even if in other respects the nexus is proven by looking at the personal
(subjective) qualification of the perpetrator and the victim.
Despite the comprehensiveness of this standard, courts have struggled with
hypothetical offenses involving a civilian perpetrator and a civilian victim,
e.g. where country A invades country B and civilian national of country B (ci-
vilian B) kills his neighbour. It is worth pausing on this example to provide
greater clarification because whether or not the offence is characterized as a
war crime will depend on the specific facts of the case. If civilian B's neighbour
is not a protected person, then at the start, there is no war crime. However, if
the neighbour is a citizen of country A and a protected person (civilian A), the
court must determine whether there is a link between the offence and the
1414 JICJ 10 (2012), 1395-1417

armed conflict. The opportunity to commit the murder due to lawlessness

during the armed conflict is not sufficient. The armed conflict must also have
created the'situation'. In this example, if civilians from country A are being per-
secuted in country B because they are associated with the enemy or opposing
party of the armed conflict, the situational requirement may be met. Civilian
B may have decided to kill civilian A for a number of reasons, but if the object-
ive criteria are met, those reasons are irrelevant.
The application of the standard as such avoids two unwanted outcomes.
First, opportunistic crimes that are unrelated to the conflict will not be charac-
terized as war crimes merely because of the existence of an armed conflict
(e.g. where a civilian who holds a personal vendetta against his neighbour
takes advantage of lawlessness created by the conflict to murder his neigh-
bour). Second, an enquiry into the state of mind of the offender is not neces-
sary to establish a nexus.

6. Application of the Above Conclusions to Recent

Dutch Jurisprudence
A. General Remarks
Dutch courts, not unlike other domestic tribunals, have often made strong ef-
forts to deal fairly with war crimes allegations brought before them in relation
to contemporary conflicts, where military rationales are often closely inter-
twined with genocidal and persecutory policies against the civilian population.
In doing so, judges have often striven to take into account international case
law, indicative of the developments in international customary law. One such
case is the so-called Maton case recently decided by the District Court in The
Hague.
In the Maton case the accused, Joseph M., was charged with various of-
fences all of which were charged principally as war crimes and alternatively
as torture (as a distinct crime). In its opinion, the Court provided a detailed
analysis of the evidence and testimony relating to each of the offences
before turning to the question of whether the offences could be qualified
as war crimes. The court stipulated that the following facts and events,
inter alia, had been proven: a roadblock was set up at Mugonero for the pur-
pose of identifying Tutsis, and the Defendant was in charge of the roadblock.
It is possible that, even as a civilian, the Defendant could have had actual
control of the soldiers at the barrier. The Defendant refused passage to a
family at the roadblock, threatened, insulted and humiliated them for
hours, during which time the family feared for their lives. The Defendant
stopped an ambulance, after which the ambulance was forced to drive to
Mugonero. The passengers were forced out of the ambulance at which time
two women passengers and their children were killed with clubs and/or
machetes.
 The Nexus Requirementfor War Crimes 1415

In light of the foregoing case law and analysis, the circumstances of this case
establish a clear nexus between the crimes and the armed conflict. However,
the Maton court did not find that a nexus had been established.

B. The Court's Analysis in the Maton Case

At the beginning of its analysis, the Court stated that it would adopt the case
law of international criminal tribunals as guidelines for its own opinion, but
also criticized the jurisprudence for not providing a framework that established
a simple way of assessing the existence of a nexus. It rejected the notion that
if one of the four Kunarac criteria 45 are met a nexus is imperatively established,
in favour of an approach that looks at the totality of the circumstances.
The Maton Court was not clear in exactly which criteria would be used, but
it did repeatedly emphasize two issues as evidence that a nexus was not estab-
lished: (i) the Defendant was a civilian and (ii) the armed conflict and genocide
were distinct (no hostilities took place between the RAF and the RPF in the
prefecture of Mugonero). The Court also found that (iii) the Defendant 'did not
have an influence on the progress of the hostilities, nor did he have a special
relationship with the RAF'.4 6
Those conclusions reached by the Court appear unreasonable based on the
following facts, which the Court stipulated: all Tutsi were purported to be ac-
complices of the RPF;4 7 the Defendant supported this idea and was thus
inspired to commit the crimes;4 8 the genocide and armed conflict between
the RAF and the RPF were closely related;49 army civilian authorities and mil-
50
itia worked closely together in the execution of the genocide; the military in
51
Mugonero were systematically involved in violence against Tutsi; roadblocks
were routinely set up to catch Tutsi trying to flee from the beginning of the
conflict; 52 the barrier in Mugonero was manned by soldiers and its purpose
was indeed to identify Tutsi;53 and the Defendant was in charge of that
barrier.5 4
Assuming no factual error in these findings, the legal standard followed by
the Dutch court is inconsistent with the case law of the ad hoc international

45 The fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the
fact that the victim is a member of the opposing party; the fact that the act may be said to
serve the ultimate goal of a military campaign; and the fact that the crime is committed as
part of or in the context of the perpetrator's official duties.
46 Judgment. Mpambara. Rechtbank (District Court), The Hague, 23 March 2009, LJ number:
BK0520 ('Maton Judgment'), Chapter 15, § 54.
47 Maton Judgment, Chapter 15, § 64.
48 Ibid., Chapter 15, § 57.
49 Ibid., Chapter 15, §58.
50 Ibid., Chapter 15, §61.
51 Ibid., Chapter 15, § 62.
52 lbid., Chapter 3, §§26-27 (referring to ICTR case law discussing these events)
53 Ibid., Chapter 7. § 34.
54 Ibid., Chapter 8, § 143.
1416 JICJ 10 (2012), 1395-1417

criminal tribunals and, generally, the law of war crimes as developed since
World War II. It relies on isolated and out-dated dicta rather than looking at
the state of the law as a whole. The Maton Court's distinction between the
genocide and the armed conflict is not grounded in recent ICTR final judg-
ments. Also inconsistent with post-Kunarac cases generally is the holding that
'the sole circumstance that the armed conflict against the RPF provided the
regime with an excuse for ethnic violence and the Defendant with a motive
and a licence to commit his crimes, do not turn these criminal offences into
war crimes'.55 Importantly, the Maton Court's emphasis on the fact that the
Defendant was a civilian is misplaced and contrary to the entire body of inter-
national jurisprudence dating back to post-World War II cases.56

C. Application of the Standard to Maton

In applying the nexus standard, the first issue to be addressed - whether the
offences were committed against protected persons - is clearly met in this
case (civilians belonging to the Tutsi group were protected persons during the
internal armed conflict, unless they were taking active part in the hostilities).
It must next be determined whether the armed conflict created the situation
and opportunity that led to the series of crimes. Though the crimes were com-
mitted far from the area where fighting between the RAF and the RPF was
occurring, this does not impede the classification of those crimes as war
crimes. Pursuant to the case law of the ICTR, ICTY and international law gen-
erally, geographic and temporal concurrence with the armed conflict is not a
prerequisite to the nexus requirement.5 7 What is significant is that the crimes
would not have been committed were it not for the armed conflict. The conflict
made it possible to set up road blocks and stop ambulances, e.g. acts that
would not normally take place in times of peace. That the Defendant, as a civil-
ian, was able to set up roadblocks bespeaks the fact that, without a situation
of turmoil and armed conflict, this type of action (generally not permissible
for civilians) would not have been possible. In the circumstances of the case,
setting up and manning roadblocks with civilians and combatants demon-
strates a close link between the armed conflict and the genocidal policy pur-
sued by one of the warring sides.
Although the crimes in question were committed by a civilian against other
civilians, this fact does not per se exclude the characterization of the offences
as war crimes. On the contrary, the offences were carried out by a civilian pur-
suant to the aims of the military campaign. The proposition that the crimes did
not serve any direct military purpose nor did they contribute to the ultimate
objective of the RAF in the conflict against the RPF does not hold water.

55 Ibid., Chapter 15, § 64.

56 For example, doctors who performed medical experiments on civilians or criminal gangs assist-
ing in looting property in Naletific and Martinovid.
57 See e.g. Kunarac Trial Judgment, § 402; Kunarac Appeal Judgment, § 568; Rutaganda Appeal
Judgment, § 570.
 The Nexus Requirement for War Crimes 1417

The crimes were committed in consonance with the purpose of the RAF to
fight against the RPF and to attack as many Tutsis as possible. This is not
unlike the medical experiments conducted on Jews during World War II
(which were, strictly speaking, unrelated to military operations as such), the
plunder of property for private gain in France and other countries, or the de-
portations from the Netherlands mentioned above. In Rwanda, according to
the findings of the Maton case, Hutu armed groups were engaging throughout
the country in acts of violence, in many instances so grave and systematic as
to amount to genocide. Many Hutu civilians were given free rein to attack
Tutsi women and other civilians, a pattern of violence in which the Defendant
in this case took part. It follows that it would have been warranted to rule
that his criminal conduct, being motivated and occasioned by as well as closely
connected to the armed conflict, amounted to war crimes. [...]