The law

401. On its face, Article 3 is based on the 1907 Hague Convention and the Regulations annexed to that Convention.¹⁰⁵⁷ However, the Appeals Chamber in the Tadi} case, in the Jurisdiction Decision, interpreted Article 3 to encompass other violations of international humanitarian law as well:

[I]t can be held that Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5 [of the Statute of the Tribunal], more specifically: (i) violations of the Hague law on international conflicts;

(ii) infringements of provisions of the Geneva Conventions other than those classified as

“grave breaches” by those Conventions; (iii) violations of common Article 3 [of the Geneva Conventions] and other customary rules on internal conflicts; (iv) violations of

shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property.”

1051 Count 21 against Dragoljub Kunarac (Indictment IT-96-23) andCount25 against Radomir Kova~ (ibid).

1052 Counts 4, 8, 10, 12, 20 against Dragoljub Kunarac (Indictment IT-96-23),Count24 against Radomir Kova~ (ibid) and Counts 24 and 36 against Zoran Vukovi} (Indictment IT-96-23/1).

1053 Counts 3, 7, 11 against Dragoljub Kunarac (Indictment IT-96-23) and Counts 23 and 35 against Zoran Vukovi} (Indictment IT-96-23/1).

1054 The Prosecutor formulated those charges in these terms: “Torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal and recognised by Common Article 3(1) (a) (torture) of the Geneva Conventions.” The Prosecutor’s Pre-Trial Brief I essentially repeats the formulation of Indictment IT-96-23 (par 141).

1055 Prosecutor’s Pre-Trial Brief I, par 154.

1056 Ibid, pars 114-119.

1057 The 1907 Hague Convention IV Respecting the Laws and Customs of War on Land and Annexed Regulations Respecting the Laws and Customs of War on Land.

agreements binding upon the parties to the conflict, considered qua treaty law, i.e., agreements which have not turned into customary international law […].¹⁰⁵⁸

In the view of the Appeals Chamber, Article 3 therefore “functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal.”¹⁰⁵⁹

(b) General requirements for the application of Article 3

402. The Appeals Chamber in the Jurisdiction Decision identified two preliminary requirements for the application of certain Articles of the Statute, including Article 3.¹⁰⁶⁰ That Chamber held, first, that for there to be a violation of Article 3, there must be an armed conflict.¹⁰⁶¹ An “armed conflict” was defined to “[exist] 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.”¹⁰⁶² The Appeals Chamber held that Article 3 applies to both internal and international armed conflicts.¹⁰⁶³ The second preliminary requirement is that of a close nexus between the alleged offence and the armed conflict.¹⁰⁶⁴ The Appeals Chamber deemed the “required relationship” to be satisfied where the alleged crimes were “closely related to the hostilities”.¹⁰⁶⁵

1058 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 89 (“Jurisdiction Decision”); confirmed in Prosecutor v Delali} and Others, Case IT-96-21-A, Judgement, 20 Feb 2001, pars 125 and 136.

1059 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 91.

1060 Ibid, pars 65 and 67.

1061 Ibid, par 67.

1062 Ibid, par 70.

1063 Ibid, par 137; confirmed in Prosecutor v Delali} and Others, Case IT-96-21-A, Judgement, 20 Feb 2001, pars 140 and 150. Also see Prosecutor v Delali} and Others, Case IT-96-21-T, Judgement, 16 Nov 1998, par 184; Prosecutor v Furund`ija, Case IT-95-17/1-T, Judgement, 10 Dec 1998, par 132;

Prosecutor v Bla{ki}, Case IT-95-14-T, Judgement, 3 Mar 2000, par 161.

1064 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 70; Prosecutor’s Pre-Trial Brief I, pars 98-101; Prosecutor’s Final Trial Brief, pars 690-696. Also see Prosecutor v Delali} and Others, Case IT-96-21-T, Judgement, 16 Nov 1998, par 193; and Prosecutor v Bla{ki}, Case IT-95-14-T, Judgement, 3 Mar 2000, pars 65 and 69.

1065 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 70. The Trial Chamber in the Delali} case, required “an obvious link”

(Prosecutor v Delali} and Others, Case IT-96-21-T, Judgement, 16 Nov 1998, par 193), “a clear nexus”

(Prosecutor v Delali} and Others, Case IT-96-21-T, Judgement, 16 Nov 1998, par 197) between the alleged crimes and the armed conflict. The Trial Chamber in the Bla{ki} case, referred to this requirement as finding an “evident nexus between the alleged crimes and the armed conflict as a whole.”

(Prosecutor v Bla{ki}, Case IT-95-14-T, Judgement, 3 Mar 2000, par 69).

403. The Appeals Chamber in the Jurisdiction Decision further identified four requirements specific to Article 3:¹⁰⁶⁶

(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […]; (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. […]; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.¹⁰⁶⁷

404. It is apparent from these requirements that the general requirements for the application of Article 3 will differ, depending on the specific basis of the relevant charges brought under Article 3. For example, a specific charge based on treaty law would not have the same requirements as customary law relevant to violations of common Article 3, Hague law or violations of the Geneva Conventions other than common Article 3 and the grave breaches provisions. Such a charge would necessitate that two additional requirements be met, namely, that the agreements (i) were unquestionably binding on the parties at the time of the alleged offence and (ii) are not in conflict with or derogate from peremptory norms of international law.¹⁰⁶⁸

(c) General requirements for the application of Article 3 based on common Article 3

405. As explained above, the Prosecutor has based the Article 3 charges of torture and outrages upon personal dignity on common Article 3, with the rape charges based in part on common Article 3. Common Article 3 of the Geneva Conventions provides in relevant part that:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment; (d) The passing of

1066 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 94.

1067 Ibid, par 94. The Appeals Chamber in Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 20, endorsed these requirements.

1068 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 143.

sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples. (2) The wounded and the sick shall be collected and cared for. […].

406. It is well established in the jurisprudence of the Tribunal that common Article 3 as set out in the Geneva Conventions has acquired the status of customary international law.¹⁰⁶⁹ As the application of common Article 3 would be the same under treaty law as it is under customary international law, and as there are no binding agreements between the relevant parties which purport to vary common Article 3 for the purposes of this case, the Chamber considers it sufficient to focus on the general requirements for the application of common Article 3 under customary international law. The Chamber further considers that it is unnecessary to discuss any additional requirements for the application of rape charges based on treaty law, since common Article 3 alone is sufficient in principle to form the basis of these charges under Article 3, as is observed below.¹⁰⁷⁰

407. In summary, the general requirements for both the application of common Article 3 and the specific offences charged under common Article 3 are as follows:

(i) The violation must constitute an infringement of a rule of international humanitarian law.

(ii) The rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met.

(iii) The violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim.

(iv) The violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

(v) There must be a close nexus between the violations and the armed conflict.

1069 Ibid, pars 98 and 134; Prosecutor v Delali} and Others, Case IT-96-21-A, Judgement, 20 Feb 2001, par 143.

1070 At par 407-408 and 436.

(vi) The violations must be committed against persons taking no active part in the hostilities.¹⁰⁷¹

It would appear to the Trial Chamber that common Article 3 may also require some relationship to exist between a perpetrator and a party to the conflict. Since, in the present case, the three accused fought on behalf of one of the parties to the conflict, the Trial Chamber does not need to determine whether such a relationship is required, and if so, what the required relationship should be.¹⁰⁷²

408. The Trial Chamber is satisfied that common Article 3 and the specific offences charged on that basis comply with the first four general requirements set out above. In particular, with respect to the second general requirement, the Appeals Chamber in the Jurisdiction Decision held that common Article 3 is part of customary international law.¹⁰⁷³ As to the third general requirement, it is not clear from the Appeals Chamber’s Jurisdiction Decision in the Tadi} case whether all violations of common Article 3 would be serious. It stated that “customary international law imposes criminal liability for serious violations of common Article 3 […]”.¹⁰⁷⁴ However, there can be no doubt whatsoever that rape, torture and outrages upon personal dignity, as charged in the present case, are serious offences. As to the fourth general requirement, the Appeals Chamber in the Jurisdiction Decision in the Tadi} case held that “customary international law imposes criminal liability for serious violations of common Article 3 […]”.¹⁰⁷⁵ In particular, rape, torture and outrages upon

1071 Prosecutor v Delali} and Others, Case IT-96-21-A, Judgement, 20 Feb 2001, par 420.

1072 See pars 567-569.

1073 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 98; confirmed in Prosecutor v Delali} and Others, Case IT-96-21-A, Judgement, 20 Feb 2001, pars 143 and 150. Also see Prosecutor v Bla{ki}, Case IT-95-14-T, Judgement, 3 Mar 2000, par 166; and the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, S/25704, par 35. Yugoslavia ratified both Additional Protocols (Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (“Additional Protocol I”) and Geneva Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (“Additional Protocol II”)) on 11 June 1979 and Bosnia and Herzegovina succeeded to both Additional Protocols on 31 December 1992. Yugoslavia ratified the four Geneva Conventions (including Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 1949 of 12 Aug 1949, which is most relevant to the present case) on 21 April 1950 and Bosnia and Herzegovina succeeded to the Geneva Conventions on 31 December 1992.

1074 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 134 (emphasis added). Also see Prosecutor v Bla{ki}, Case IT-95-14-T, Judgement, 3 Mar 2000, par 134.

1075 Prosecutor v Tadi}, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 134; confirmed in Prosecutor v Delali} and Others, Case IT-96-21-A, Judgement, 20 Feb 2001, par 174. Also see Prosecutor v Bla{ki}, Case IT-95-14-T, Judgement, 3 Mar 2000, par 134.

personal dignity, no doubt constituting serious violations of common Article 3, entail criminal responsibility under customary international law.

409. The Trial Chamber considers whether the last three requirements have been met later in this judgement when the evidence is assessed.