WAR CRIMES

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WAR CRIMES

• Case Law at the ICTY

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Palace of Justice in Nuremberg
The International Criminal Tribunal for the
former Yugoslavia in the Hague
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(No Transcript)
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ART. 2 - GRAVE BREACHES

• wilful killing
• torture or inhuman treatment, including
  biological experiments
• wilfully causing great suffering or serious
  injury to body or health
• extensive destruction and appropriation of
  property, not justified by military necessity and
  carried out unlawfully and wantonly
• compelling a prisoner of war or a civilian to
  serve in the forces of a hostile power
• wilfully depriving a prisoner of war or a
  civilian of the rights of fair and regular trial
• unlawful deportation or transfer or unlawful
  confinement of a civilian
• taking civilians as hostages.

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ART. 3 VIOLATIONS OF LAWS OR CUSTOMS OR WAR,
INCLUDING

• employment of poisonous weapons or other weapons
  calculated to cause unnecessary suffering
• wanton destruction of cities, towns or villages,
  or devastation not justified by military
  necessity
• attack, or bombardment, by whatever means, of
  undefended towns, villages, dwellings, or
  buildings
• 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
• plunder of public or private property.

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Nexus with the armed conflict

• a war crime is shaped by or dependent upon the
  environment the armed conflict in which it is
  committed 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 substantial part in the
  perpetrators ability to commit it, his decision
  to commit it, the manner or the purpose
  (Kunarac AJ)

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Nexus with the armed conflict

• Tribunale Santa Maria Capua Vetere (Lehnigk and
  Schuster, 25.10.1994)
• War crime must have been causally linked to
  military activities
• In the instant case, motives went beyond war and
  could be traced in intollerance and hatred
  towards the Italian people
• No nexus with the armed conflict!?

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International or non-international armed conflict

• Grave breaches (art. 2) only in intl armed
  conflicts
• Violations of the laws or customs of war (art.
  3) intl and non-intl armed conflicts
• Distinction confirmed by later practice and
  military manuals

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Dubrovnik - Destruction of cultural property,
under art. 3 (d) of the Statute

• Miodrag Jokic
• Sentencing Judgement,
• 18 Mar 2004
• (conf. on 30 Aug, 2005)

• Pavle Strugar
• Trial Judgement,
• 31 Jan 2005

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Destruction of cultural property

• Article 3(d) of the Statute is a rule of
  international humanitarian law which not only
  reflects customary intl law but is applicable to
  both international and non-international armed
  conflicts
• (Strugar TJ, para. 230)

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Destruction of cultural property

• The conduct is criminal if
• it has caused damage to property which
  constitutes the cultural or spiritual heritage of
  peoples
• the damaged property was not used for military
  purposes at the time when the acts of hostility
  took place
• it is carried out with the intent to damage the
  property in question

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Destruction of cultural property

• The special protection awarded to cultural
  property itself may not be lost simply because of
  military activities or military installations in
  the immediate vicinity of the cultural property
• (Strugar TJ, para. 310)

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Destruction of cultural property

• The shelling attack on the Old Town was an attack
  not only against the history and heritage of the
  region, but also against the cultural heritage of
  humankind
• Restoration of buildings of this kind, when
  possible, can never return the buildings to their
  state prior to the attack
• (Jokic SJ, paras 51-52)

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Stanislav Galic

• Trial Judgement, 5 Dec. 2005
• Appeal Judgement, 30 Nov. 2006
• Crimes (under art. 3 of the Statute)
• - Attack against the civilian population
• - Campaign of terror

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Attack against the civilian population

• Civilian population as such, as well as
  individual civilians, shall not be the object of
  attack (art. 51 AP1)
• Criminalized under customary international law
• Both in international and non-international armed
  conflicts

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Terror as a war crime

• Custom
• Additional Protocol 1 (Art. 51), rendered
  applicable by agreement inter partes

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Terror as a war crime

• Under customary intl law
• Acts or threats of violence
• Wilfully directed against civilians (not taking
  active part in hostilities)
• With the primary purpose of spreading terror

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Terror as a war crime

• How did Prosecutor prove it?
• Campaign of attacks (shelling and sniping)
• Thousands of casualties (dead or wounded)
• No military necessity
• It appeared to create terror
• It appeared to put pressure
• UN observers (8) and journalists (3)