Elaborate your understanding of the key IHL principles that the case has elucidated with regard to classification of conflicts and protection of persons.

Read the case of ICTY, The Prosecutor v. Dusko Tadić, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995.

Elaborate your understanding of the key IHL principles that the case has elucidated with regard to classification of conflicts and protection of persons.

PRELIMINARY

In the case of Prosecutor v. Dusko Tadić[1], Mr Tadic was arraigned before International Criminal Tribunal For the former Yugoslavia (ICTY) for war crimes and crimes against humanity. Dusko Tadic was the president of the local board of the SDS in Kozarac, he was arraigned before tribunal for being party in a war attacking Bosnian Muslims and Bosnian Croat residential areas in the Kozarac area. During war, Dusco who was in charge of Serb forces imprisoned Muslims and Croats in the Trnopolje, Omarska, and Keraterm camps; he deported Muslims and Croats from Prijedor count; and he participated in unlawful killings, sexual assault, physical and psychological torture and abuse of Muslims and Croats in and outside the camps marking this case as the first trial for sexual violence and rape as a crime against humanity in an international tribunal[2]. This case was also the first case to go to trial at the ICTY, and on appeal ruled that the conflict in Bosnia was an international armed conflict (IAC) and established the overall control test for determining if an individual’s omissions or actions are part of the war when they were performed by a paramilitary or non–state group. The prosecution accused him on the basis of individual criminal liability of crimes against humanity of acts of persecution, deportation, confinement, rape, murder, inhumane treatment, willful killings, and willful causing of serious body or health injury; and violation of the laws or customs of war for cruel treatment and murder.

In 1997, the ICTY found Tadic guilt and convicted him of crimes against humanity for persecution and inhumane treatment and violations of international humanitarian laws or customs of war, he was sentenced 20 years imprisonment. On 1999, Tadic appealed unsuccessful against the conviction and sentence on three grounds of appeal that, the international tribunal was illegal found, wrongful primacy of the international tribunal over national courts and last ground was lack of jurisdiction ratione materiae.  The Appeals Chamber denied Tadic’s appeal on all grounds and sentenced him 25 years in prison, a sentence which replaced an original sentence of 20 years which issued by the trial tribunal before an appeal of 1999[3]. This case is a precedent because it was a first case for sexual violence and rape as a crime against humanity in ICTY and a case which established the overall control test for determining if an individual’s omissions or actions are part of the war when they were performed by a paramilitary or non–state group. This case also discussed several International Humanitarian Law (IHL) principles regarding to categories of conflicts, classification of persons and protection of persons in warfare as follows; -

CLASSIFICATION OF CONFLICTS

Categorization of conflicts is an important aspect when one is to determine if an armed conflict falls under obligation of international humanitarian laws (IHL) or domestic laws. The geographical coverage of hostilities is among an important element which may help in determining category of an armed conflict together with other elements such as number of people involved in fight and deaths, and if the fights are domestic or cross border etc. The IHL is a number of international rules, conventions, protocols and agreements which secure civilians and other people not party to war fights from being inhumane treated by combatants[4]. The IHL sets permissions and limits to combatants on what to do and what not to do during warfare. IHL permits the lawful killing of some persons and destruction of certain properties which are war infrastructures whilst protecting others. IHL does not apply to all forms of inter-state fights unless there is serious employment of forms of violence and mass killing of innocent civilians not party to war and isolation or deportation civilians. It requires that a minimum threshold of violence is crossed first, or a military occupation occurs. Where this threshold is not met, then the rights and treatment of individuals will be determined by human rights law and any unlawful violence will be regulated by municipal criminal law. The following are categories of armed conflicts as per IHL and as discussed in the case of Prosecutor v. Dusko Tadić.

I: International Armed Conflicts (IAC).

In the case of Prosecutor v. Dusko Tadić[5], the third ground of appellant’s appeal was lack of subject matter jurisdiction of ICTY. Appellant had a knowledge that, ICTY has jurisdiction for international crimes only and not domestic crimes. As per his knowledge, the killings, rape and inhumane treatment carried by his troops to Bosnian Muslims and Bosnian Croat residential areas in the Kozarac were in-state confrontation not falling under jurisdiction of the tribunal[6]. The tribunal in giving the meaning of international armed conflicts elaborated that, international armed conflict is a warfare which involve two or more states and not inter-state fights. To constitute international armed conflict, first there must be armed conflict then the conflict should involve parties from two or more different states and the impacts of war should be greater enough above minimum threshold of violence established in Geneva convention[7] and United Nations Charter[8]. The tribunal in the case of Prosecutor v. Dusko Tadić removed a minimum threshold of violence to term a conflict as an international conflict. As per this case, even minor instances of armed violence, such as an individual border incident or capture of a single prisoner, may suffice to cross the threshold for IHL to apply.[9]

II: Non - International Armed Conflicts (NIAC).

Non – International Armed Conflicts are those conflicts which do not fall within the context of international armed conflicts. All domestic fights and situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts are referred as Non - International Armed Conflicts. The domestic conflicts are those which involves people or groups within the same jurisdiction and no cross boarder impacts. These riots ends within the territory and the offenders may be punished under human rights laws and domestic legal regime not otherwise. In the case of Prosecutor v. Dusko Tadić, the accused challenged the jurisdiction of the tribunal by raising point of law that, the offences he committed were under jurisdiction of domestic courts and not international forums. The trial tribunal stated that, the offences committed were above minimum threshold of violence which is a measure of international armed conflict and many people got affected by his unlawful orders. Also, the people of other origins were involved and affected by the warfare hence the tribunal had a jurisdiction to entertain the matter.

Generally, the threshold is crossed when peacetime law enforcement approaches cannot handle the intensity of violence, thereby necessitating the engagement of the state's armed forces. Is the existence of a situation of "protracted armed violence" between a State and organized armed groups or between such groups.

PROTECTION OF PERSONS

Article 13 of the Geneva convention[10] protects a group of people who are wounded during warfare. Militants are allowed to arrest other militants who are their rivals in the war, but they are required, during all the time of detention, to treat them as other human beings by giving them all needs. Arrested or wounded militants are protected from torture, in degrading treatment and killings during warfare. Protected persons under Article 13 are 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; 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 etc. All wounded militants during period of war are treated as prisoners of war and all treaties or conventions protecting prisoners of war applies.

Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War[11] provides the same as Article 13 of Geneva Convention about protected persons. This convention provide responsibility to a military to treat well enemies who fall in their powers as prisoners of war. The convention applies all time when militants fall under hands of enemy until their release or repatriation.  Article 12 of this convention impose duty to military supervisor to take care of war prisoners, individual militants are less imposed with this duty but they’re bound to act in accordance with international customary laws or other guidelines concerning warfare. As per the convention, the war prisoners need fair treatment, respect of their dignity, and maintenance. Treatment of war prisoners in any other manner restricted by this convention may attract charges for crimes against humanity or war crimes as the case may be.

CONCLUSION

Signatories of Geneva Convention are bound to follow requirements of the convention because they signed and ratified the convention and agreed to be bound by its provisions. Unfortunately, some offenders of war crimes and crimes against humanity tries hard to escape hands of these international criminal tribunals by raising points of law that these tribunals have no jurisdiction to try offences they’re charged with. To be sure that no one escape their wrongs by these petty legal technicalities, all signatories of Geneva Convention must be adopted in their domestic laws, all provisions of Geneva convention so as to give effect to the convention at domestic level.

 

REFERENCE

CASE LAWS

The Prosecutor v. Dusko Tadić, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995.

 

CONVENTIONS

International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: https://www.refworld.org/docid/3ae6b36d2.html [accessed 26 January 2023]

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 26 January 2023]

International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135, available at: https://www.refworld.org/docid/3ae6b36c8.html [accessed 26 January 2023]

 

OTHER SOURCES

International Justice Resource Center, “tadic”, available at https://ijrcenter.org/international-criminal law/icty/case-summaries/tadic/ [accessed January 26, 2023]

How does law protect in war, “International armed conflict’, available at https://casebook.icrc.org/glossary/international-armed-conflict# [accessed 26 January 2023]

United Nation Office on Drugs and Crime, “categories of armed conflict”, available at https://www.unodc.org/e4j/zh/terrorism/module-6/key-issues/categorization-of-armed-conflict.html [accessed 26th January].

 

 

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[1] The Prosecutor v. Dusko Tadić, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995.

[2] International Justice Resource Center, “tadic”, available at https://ijrcenter.org/international-criminal law/icty/case-summaries/tadic/ [accessed January 26, 2023]

[3] Rulac Geneva Academy, “category of armed conflict”, available at https://www.rulac.org/classification [January 26, 2023]

[4] United Nation Office on Drugs and Crime, “categories of armed conflict”, available at https://www.unodc.org/e4j/zh/terrorism/module-6/key-issues/categorization-of-armed-conflict.html [accessed 26th January].

[5] ibid

[6] How does law protect in war, “International armed conflict’, available at https://casebook.icrc.org/glossary/international-armed-conflict# [accessed 26 January 2023]

[7] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: https://www.refworld.org/docid/3ae6b36d2.html [accessed 26 January 2023]

[8]United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 26 January 2023]

[9] Para 70

[10] Ibid

[11] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135, available at: https://www.refworld.org/docid/3ae6b36c8.html [accessed 26 January 2023]