Common
Article 3 of the 1949 Geneva Conventions, which is encompassed by
Article 3 of the Statute, was intended to apply specifically to civil
wars. However, the Appeals Chamber found that the conduct regulated
by Common Article 3 [of the Geneva Conventions] was also part of customary
international law, and thus applicable to both internal and
international armed conflicts. This holding–which extends the
reach of the protections afforded by the Geneva Conventions - narrows
significantly the historical practice of treating conduct differently
depending on whether a war is regarded as internal or international.
The Chamber
also noted that under customary international law, crimes against
humanity can be committed in wartime or peacetime. Therefore, unless
the governing statute dictates otherwise, it is not necessary to establish
that there was an armed conflict at the time in order to prosecute
crimes against humanity.
Once
the jurisdictional matters were resolved, the trial on the merits
proceeded. Here again determinations as to whether international laws
would be applicable came to the fore. In rendering its Judgment (May
7, 1995), a majority of the Trial Chamber determined that grave breaches
[of the Geneva Conventions] were not considered part of customary
international law at the time of their commission. Essentially, the
majority found that grave breaches were limited to conflicts having
an international character, and the prosecution had not proved that
the crimes in question were committed during an international armed
conflict. Thus, all charges brought under Article 2 of the Statute
were dismissed. Subsequently Tadic was found guilty on 9 of the 34
counts, and guilty in part on two additional counts, for crimes against
humanity and violations of the laws or customs of war. Several issues
were appealed by both the defense and prosecution.
The Appeals Chamber Judgment (July 15, 1999) disagreed with the Trial
Chamber’s reasoning on international conflict, determining that
an armed conflict is international in character not only if it takes
places between two or more states; an internal armed conflict may
also become international or exist alongside an internal armed conflict
if another state intervenes through its troops or if some participants
in the internal armed conflict act on behalf of another state. The
Appeals Chamber went on to delineate the legal criteria for establishing
when an internal armed conflict may become international. In applying
the law to the facts, it found that at the time and place of the events
charged in the indictment, the conflict did indeed have an international
character, and thus the grave breach charges had been inappropriately
dismissed by the Trial Chamber. (It should be emphasized that the
Chamber was not stating that the entire war in the Balkans was an
international conflict – it was merely stating that during the
particular charges relevant to Tadic, the conflict could be regarded
as international.)
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