International judicial lawmaking: the Yugoslav Tribunal and the laws of war.

Author:Danner, Allison Marston
Position:New Voices: International Law and War - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

In the past ten years, international criminal law has effected a large-scale reorientation of the laws of war. The ICTY has been at the forefront of these developments. The establishment of the ICTY and that court's ensuing jurisprudence have altered the jurisdictional and enforcement structure of the 1949 Geneva Conventions in ways that were specifically rejected during their negotiation in 1949 and their subsequent revision between 1974 and 1977. In these diplomatic conferences, state delegates considering the Geneva Conventions debated whether the laws of war should apply to civil wars. States opposing the application of the rules to civil wars largely won the day in 1949 and in 1977. The possibility of enforcing the laws of war in an international court was unanimously rejected by the delegates.

These conclusions, however, were both effectively erased in the 1990s as a consequence of the United Nations Security Council's decision to create the ICTY. These developments became apparent in the first full case adjudicated by the ICTY, Prosecutor v. Tadic. In Tadic the court considered whether the Security Council had limited the ICTY's jurisdiction to international armed conflicts or whether its jurisdiction extended to civil wars. (1) The court found that it had jurisdiction over offences committed in civil wars under Article 3 of the ICTY Statute, that the Security Council intended for the Tribunal to prosecute these offences, and that there was individual criminal responsibility, as a matter of customary law, for violations of the laws of war committed in civil wars. This understanding represented a wholesale change from the limited enforcement scheme embodied in the texts of the 1949 Geneva Conventions and their Additional Protocols.

The Tadic court also resolved another key jurisdictional question: the definition of "armed conflict." The text of the 1949 Conventions did not address this seminal issue at all, and it was only partially resolved by the Additional Protocols. The Appeals Chamber stated that "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." (2) This definition, which implicitly applies both to international conflicts and civil wars, was broader than either of those provided in the Additional Protocols. The Appeals Chamber thus tacitly rejected the language...

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