1. The existence of an armed conflict and nexus (a) Law
83. In order for the Tribunal to have jurisdiction over crimes punishable under Article 3 of the Statute, two preliminary requirements must be satisfied. There must be an armed conflict, whether international or internal, at the time material to the Indictment, and, the acts of the accused must be closely related to this armed conflict.293
84. The test for determining the existence of an armed conflict was set out in the Tadi}
Jurisdiction Decision and has been applied consistently by the Tribunal since:
An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.294
Under this test, in establishing the existence of an armed conflict of an internal character the Chamber must assess two criteria: (i) the intensity of the conflict and (ii) the organisation of the parties.295 These criteria are used “solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.”296 The geographic and temporal framework of this test is also settled jurisprudence: crimes committed anywhere in the territory under the control of a party to a conflict, until a peaceful settlement of the conflict is achieved, fall within the jurisdiction of the Tribunal.297
85. The Defence submit that in determining the existence of an armed conflict for the purposes of the Tribunal’s jurisdiction the Chamber may consider the insurgents’ control over a determinate territory, the government’s use of army against the insurgents, the insurgents’ status as belligerents, and whether the insurgents have a State-like organisation and authority to observe the rules of
293 Tadi} Jurisdiction Decision, paras 67, 70; Tadi} Trial Judgement, paras 562, 572; Kunarac Appeals Judgement, para 55. See also ^elebi}i Trial Judgement, paras 184-185; Krnojelac Trial Judgement, para 51; Naletili} Trial Judgement, para 225.
294 Tadi} Jurisdiction Decision, para 70. See also Tadić Trial Judgement, paras 561-571; Aleksovski Trial Judgement, paras 43-44; ^elebići Trial Judgement, paras 182-192; Furundžija Trial Judgement, para 59; Blaškić Trial Judgement, paras 63-64; Kordić Judgement, para 24; Krstić Judgement, para 481; Staki} Trial Judgement, para 568.
295 See Tadi} Trial Judgement, para 562.
296 Tadi} Trial Judgement, para 562.
297 Tadi} Jurisdiction Decision, para 70; Kunarac Appeals Judgement, para 57.
war.298 This submission draws on the International Committee of the Red Cross (“ICRC”) Commentary to Common Article 3 of the Geneva Conventions, which is the basis for the charges brought under Article 3 of the Statute. In the relevant part, the Commentary lists different conditions for the application of Common Article 3 which were discussed at the Diplomatic Conference for the Geneva Conventions. The Commentary explicitly clarifies, however, that this list is “in no way obligatory” and is suggested merely as “convenient criteria” to distinguish a genuine armed conflict from an act of banditry or an unauthorised or short-lived insurrection.299 It further states:
Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfil any of the above conditions (which are not obligatory and are only mentioned as an indication)? We do not subscribe to this view. We think, on the contrary, that the Article should be applied as widely as possible.300
86. The drafting history of Common Article 3 provides further guidance. Several proposed drafts of what later became known as Common Article 3 sought to make its application dependant, inter alia, on conditions such as an explicit recognition of the insurgents by the de jure government, the admission of the dispute to the agenda of the Security Council or the General Assembly of the United Nations, the existence of the insurgents’ State-like organisation, and civil authority exercising de facto authority over persons in determinate territory.301 However, none of these conditions was included in the final version of Common Article 3, which was actually agreed by the States Parties at the Diplomatic Conference. This provides a clear indication that no such explicit requirements for the application of Common Article 3 were intended by the drafters of the Geneva Conventions.
87. The Chamber is also conscious of Article 8 of the Statute of the International Criminal Court (ICC) which, inter alia, defines, for its purposes, war crimes committed in an armed conflict not of an international character. Article 8, paragraph 2(f) of the ICC Statute adopts a test similar to the
298 Defence Final Brief, paras 205-207.
299 ICRC Commentary to Geneva Convention I, pp 49-50.
300 ICRC Commentary to Geneva Convention I, p 50.
301 Thus the Australian amendment tended to apply the relevant provision only if “(a) the de jure government had recognized the insurgents as belligerents; or (b) the de jure government had claimed for itself the rights of a belligerent; (c) the de jure government has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or (d) the dispute had been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression.” The Delegation of the United States of America made the following proposal with respect to the applicability of what latter became Common Article 3: “- that the insurgents must have an organization purporting to have the characteristics of a State; - that the insurgent civil authority must exercise de facto authority over persons within a determinate territory; - that the armed force must act under the direction of the organized civil authority and be prepared to observe the ordinary laws of war; - that the insurgent civil authority must agree to be bound by the provisions of the Convention.” Final Record of the Diplomatic Conference Convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims and Held at Geneva from April 21st to August 12th, 1949 (“Final Record of the Diplomatic Conference”), Vol. II, Section B, p 121. See also First
test formulated in the Tadi} Decision on Jurisdiction. It defines an internal armed conflict by the same two characteristics, “protracted armed conflict” and “organised armed groups,” without including further conditions.302 As in the Tribunal’s jurisprudence, Article 8(2)(d) of the ICC Statute further clarifies that the ICC Statute does not apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”
A commentary on the ICC Statute further suggests that additional factors, such as the involvement of government forces on one side or the exercise of territorial control by the rebel forces, are not indispensable for the determination of an armed conflict.303
88. The Defence submit even further that the extent of organisation of the parties required for establishing an armed conflict, as well as, generally, the level of its intensity, have not yet been defined by the jurisprudence of the Tribunal.304 They submit that the law does not require the impossible and that, in order to be bound by international humanitarian law, a party to a conflict must be able to implement international humanitarian law and, at the bare minimum, must possess:
a basic understanding of the principles laid down in Common Article 3, a capacity to disseminate rules, and a method of sanctioning breaches.305 They also refer to Additional Protocol II to the Geneva Conventions, which requires a higher standard for establishment of an armed conflict, and submit that in order for Additional Protocol II to apply it must be established that the insurgent party (in the present case, the KLA) was sufficiently organised to carry out continuous and persistent military operations and to impose discipline on its troops, that it exercised some degree of stability in the territories it was able to control and had the minimum infrastructure to implement the provisions of Additional Protocol II.306
89. The Chamber does not share this view. The two determinative elements of an armed conflict, intensity of the conflict and level of organisation of the parties, are used “solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian
and Second Draft drawn up by the First Working Party, Annexes A and B to the 7th Report of the Joint Committee, Final Record of the Diplomatic Conference, Vol. II-B, pp 124-125.
302 Article 8, paragraph 2(f) of the ICC Statute reads: “Paragraph 2(e) applies to armed conflicts not of an international character and thus not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organised armed groups or between such groups.”
303 Knut Dormann, “Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary,” Cambridge University Press, 2002, pp 386-387 referring to G. Abi-Saab, “Non-international Armed Conflicts” in UNESCO/Henry Dunant Institute (eds.), International Dimensions of Humanitarian Law (Martinus, Nijhoff, Geneva, Paris and Dordrecht, 1988), p 237; C. Greenwood, “Scope of Application of Humanitarian Law” in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict (Oxford University Press, Oxford, 1995), p 48.
304 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict, para 37; Closing Arguments, T 7371.
305 Defence Skeleton Argument on the Jurisdictional Issue of Armed Conflict, para 38.
law.”307 Therefore, some degree of organisation by the parties will suffice to establish the existence of an armed conflict. This degree need not be the same as that required for establishing the responsibility of superiors for the acts of their subordinates within the organisation, as no determination of individual criminal responsibility is intended under this provision of the Statute.
This position is consistent with other persuasive commentaries on the matter. A study by the ICRC submitted as a reference document to the Preparatory Commission for the establishment of the elements of crimes for the ICC noted that:
The ascertainment whether there is a non-international armed conflict does not depend on the subjective judgment of the parties to the conflict; it must be determined on the basis of objective criteria; the term ‘armed conflict’ presupposes the existence of hostilities between armed forces organised to a greater or lesser extent; there must be the opposition of armed forces and a certain intensity of the fighting.308
90. For these reasons the Chamber will apply the test enumerated in the Tadi} Jurisdiction Decision to determine whether the existence of an armed conflict has been established.
Consistently with decisions of other Chambers of this Tribunal and of the ICTR, the determination of the intensity of a conflict and the organisation of the parties are factual matters which need to be decided in light of the particular evidence and on a case-by-case basis.309 By way of example, in assessing the intensity of a conflict, other Chambers have considered factors such as the seriousness of attacks and whether there has been an increase in armed clashes,310 the spread of clashes over territory and over a period of time,311 any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict,312 as well as whether the conflict has attracted the attention of the United Nations Security Council, and, whether any resolutions on the matter have been passed.313 With respect to the organisation of the parties to the conflict Chambers of the Tribunal have taken into account factors including the existence of headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms.314
91. Further, to meet the jurisdictional preconditions of Article 3 of the Statute, the Prosecution must establish not only the existence of an armed conflict but also a sufficient link between the
306 Defence Final Brief, paras 208-217.
307 Tadi} Trial Judgement, para 562 (emphasis added).
308 ICRC, Working Paper, 29 June 1999 (submitted by the ICRC as a reference document to assist the Preparatory Commission in its work to establish the elements of crimes for the ICC) (emphasis added).
309 “The definition of an armed conflict per se is termed in the abstract, and whether or not a situation can be described as an "armed conflict", meeting the criteria of Common Article 3, is to be decided upon on a case-by-case basis.”
Prosecutor v Rutaganda, Case No ICTR-96-3, Judgement, 6 December 1999, para 93.
310 Tadi} Trial Judgement, para 565; ^elebi}i Trial Judgement, para 189; Milo{evi} Rule 98bis Decision, para 28.
311 Tadi} Trial Judgement, para 566; Milo{evi} Rule 98bis Decision, para 29.
312 Milo{evi} Rule 98bis Decision, paras 30-31. See also ^elebi}i Trial Judgement, para 188.
313 Tadi} Trial Judgement, para 567; ^elebi}i Trial Judgement, para 190.
314 Milo{evi} Rule 98bis Decision, paras 23-24.
alleged acts of the accused and the armed conflict.315 The armed conflict need not have been causal to the commission of the crime charged, but it must have played a substantial part in the perpetrator’s ability to commit that crime.316 In determining whether such nexus exists the Chamber may take into account, inter alia, whether the perpetrator is a combatant, whether the victim is a non-combatant, whether the victim is a member of the opposing party, whether the act may be said to serve the ultimate goal of a military campaign, and whether the crime is committed as part of or in the context of the perpetrator’s official duties.317
92. There is also the further Defence submission that Additional Protocol II does not apply in the present case as “there is a compelling argument that the KLA were in actual fact an armed group fighting for self-determination against alien domination and a racist regime,” a situation covered by Article 1, paragraph 4 of Additional Protocol I.318 As has already been indicated the nature of the armed conflict is irrelevant to the application of Article 3 of the Statute.319 It is therefore, unnecessary to consider this submission any further.
(b) Findings
93. The Indictment alleges that an armed conflict between Serbian forces and the KLA existed in Kosovo not later than early 1998.320 The Chamber heard evidence and is satisfied that the Serbian forces involved in Kosovo in 1998 included substantial forces of the Army of Yugoslavia (“VJ”) and the Serbian Ministry of Internal Affairs (“MUP”),321 i.e. the police, and, therefore, constitute “governmental authorities” within the meaning of the Tadi} test. The Chamber will discuss below whether the Prosecution has established that the KLA possessed the characteristics of an organised armed group, within the meaning of the Tadi} test, and whether the acts of violence that occurred in Kosovo in the material time reached the level of intensity required by the jurisprudence of the Tribunal to establish the existence an armed conflict.
(i) Organisation of the KLA
94. The Chamber has discussed the creation of the KLA and the establishment of its General Staff earlier in this decision.322 It has accepted that at the material time there was a General Staff of the KLA and that its members included Azem Syla, Sokol Bashota, Rexhep Selimi, Llahib Rrahimi,
315 Tadi} Trial Judgement, paras 572-573.
316 Kunarac Appeals Judgement, para 58.
317 Kunarac Appeals Judgement, para 59.
318 Defence Final Brief, paras 184-197.
319 See supra, para 83.
320 Indictment, para 4.
321 Exhibit P230; Philip Coo, T 5697-5699, John Crosland, T 1910, 1877-1879, 1890, 1900; Exhibit P92, tabs 7 and 17.
See also, infra, paras 161-165.
Xhavid Zeka, Hashim Thaci, Kadri Veseli, and Jakup Krasniqi.323 While some evidence indicates that most of the regional commanders were represented in “the high command,” described as the body within the KLA that took decisions for the whole KLA,324 i.e. the General Staff, this evidence is insufficient to support a finding of the Chamber.
95. Further, as the Chamber has found earlier in this decision,325 progressively from late May to late August 1998 the territory of Kosovo was divided by the KLA into seven zones: Drenica, Dukagjin, Pastrik, Shala, Llap, Nerodime, and Karadak.326 Each zone had a commander and covered the territory of several municipalities.327 The level of organisation and development in each zone was fluid and developing and not all zones had the same level of organisation and development; this was significantly influenced by the existence and extent of the KLA’s presence in each zone before April 1998.328
96. The Chamber accepts from the evidence and finds that it was the General Staff of the KLA which appointed the zone commanders. As Sylejman Selimi testified, a meeting which took place at the end of May 1998 and which was attended by Rexhep Selimi, a representative of the General Staff, and individuals holding important positions in other units, nominated Sylejman Selimi to become the commander of the 1st Operational Zone. However, this proposal had to be approved by the General Staff and Sylejman Selimi was in fact appointed commander of the 1st Operational Zone by the General Staff.329 The Chamber’s finding is supported also by evidence that in mid June 1998 the General Staff began appointing zone commanders.330
97. In the Chamber’s finding, every leader of an operational unit had an obligation to inform the General Staff about all developments in their respective areas of responsibility.331 For example, the commander of the Drenica zone Sylejman Selimi, reported directly to the General Staff. There was no intermediate command level.332
98. While, not necessarily without fail, the Chamber accepts that, generally, zone commanders acted in accordance with directions from the General Staff. The “Provisional Regulations for the
322 See supra, paras 44 and 45.
323 See supra, para 46.
324 Peter Bouckaert, T 5513-5514.
325 See supra, para 63.
326 Initially the entire territory of Kosovo may have been referred to as Zone One and the other zones as sub-zones, Jakup Krasniqi, T 3322-3323. Jakup Krasniqi testified that the zones and the subzones were references to the same entities, T 3479-3482.
327 Jakup Krasniqi, T 3479-3482.
328 Jakup Krasniqi, T 3412-3415; T 3468-3470.
329 Sylejman Selimi, T 2070-2072; 2212. See also Rexhep Selimi, T 6691.
330 Shukri Buja, T 3797-3799.
331 See Jakup Krasniqi, T 3412-3413.
332 Sylejman Selimi, T 2072-2075; 2231-2232.
Organisation of the Army’s Internal Life” of the KLA (“Regulations”)333 were distributed to the various units by the General Staff.334 Sylejman Selimi testified that he started to create the zone and the military police upon a proposal from the General Staff.335
99. Further, the evidence indicates that the General Staff was active in making key individual appointments of importance for the development and functioning of the KLA. For example, after the arrival in Kosovo on 29 May 1998 of Bislim Zyrapi, the General Staff of the KLA appointed him to be responsible for the development and professionalisation of the KLA, a function he had from June to mid July 1998.336 On 11 June 1998 Jakup Krasniqi was appointed by the General Staff to be the spokesperson of the KLA.337 In July 1998 the General Staff appointed a civilian directorate in Malisheve/Malisevo.338
100. The General Staff was also active in organising issues of overall importance for the functioning of the KLA, such as the supply of weapons. So it was that in May 1998 Shukri Buja was ordered by the General Staff to organise the supply line of weapons from Albania to Kosovo and in particular to the municipalities of Kacanik/Kacanik, Lipjan/Lipljan, Shtime/Stimlje and Ferisaj/Urosevac.339 This order came from the General Staff and was communicated to Shukri Buja by Hashim Thaci.340
101. Further, it was the General Staff that issued political statements and communiqués which informed the general public in Kosovo and the international community of its objectives and its
101. Further, it was the General Staff that issued political statements and communiqués which informed the general public in Kosovo and the international community of its objectives and its