Case Notes: 1. Review of Recent Decisions of the Ad Hoc International War Crimes Tribunals 2. The Fine Line Between Policy and Custom: Prosecutor v. Tadic and the Customary International Law of Internal Armed Conflict 3. Duress as a Defense to War Crimes and Crimes Against Humanity - Prosecutor v. Drazen Erdemovic 4. Prosecutor v. Zejnil Delalic (The Celebici Case)

• Author: Major Ian G. Corey
• Pages: 06

142 MILITARY LAW REVIEW [Vol. 166

REVIEW OF RECENT DECISIONS OF THE AD HOC INTERNATIONAL WAR CRIMES TRIBUNALS

Since the creation of the International Criminal Tribunal for the Former Yugoslavia in 1993,1 cases involving significant law of war issues have been the subject of international judicial resolution. These cases represent perhaps the most significant judicial analysis of the law of war to occur since the close of the post-World War II war crimes trials. Although decisions of these tribunals do not have any binding legal effect on the international community, they do have an undeniable and important impact on the development of the customary international law of war. Many of these cases have involved offenses alleged to have been committed during the course of a non-international armed conflict.2 As a result, the impact of these cases on customary international law is perhaps most profound when assessing the contours of the law of war applicable to such conflicts-an area with minimal conventional legal regulation but a growing body of customary legal regulation.

While the extent of the significance of these decisions is subject to debate, the fact that they have an impact is not. Judicial decisions of international tribunals are an accepted source of evidence of customary international law.3 Because the analysis contained within these decisions may have an immediate or future impact on what is considered a binding international obligation under the law of war, it is obvious that those involved in the practice of operational law should become familiar with them. The

case comments in the following pages are intended to facilitate this pr

cess.

The following case comments are intended to provide a brief summary of several significant decisions from these tribunals. Each was written by a student enrolled in the Advanced Law of War Graduate Course elective during the 48th Graduate Course at The Judge Advocate General's School. Each comment focuses on a specific opinion from one of the tribunals, and how that opinion resolved a specific issue related to the law of war. They are not intended to offer in-depth analysis of the decisions, but merely as a review of opinions from the tribunals. They represent what is hoped will be a continuing effort to provide such reviews in the Military Law Review of future decisions from these tribunals.

THE FINE LINE BETWEEN POLICY AND CUSTOM: PROSECUTOR v. TADIC AND THE CUSTOMARY INTERNATIONAL LAW OF INTERNAL ARMED

CONFLICT

MAJOR IAN G. COREY1

1. Introduction

   On 2 October 1995, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia2 (the Tribunal) rendered a decision in the case of Dusko Tadic3 that potentially has serious implications for United States participation in internal armed conflicts.4 In Tadic, the Appeals Chamber concluded that certain rules and principles governing the conduct of international armed conflicts now apply to internal armed conflicts as a matter of customary international law.5

   The United States has long maintained a policy of compliance with the law of war6 during all armed conflicts, however such conflicts are characterized.7 Yet the U.S. policy is characterized as nothing more than a pronouncement of policy, rather than the pronouncement of state practice premised on a legal obligation.8 Regardless of how the United States characterizes this pronouncement, however, the Tadic decision may indeed raise it to the level of customary law.

2. Facts

   In February 1994, German officials arrested Dusko Tadic in Munich after Bosnian exiles recognized him as one of the Bosnian Serbs who had participated in a number of atrocities committed against Bosnian Mu

   lims.9 Germany charged Tadic with crimes against humanity, including aggravated assault and murder, as well as genocide.10

   Pursuant to Article 9 of the Tribunal's statute,11 the Trial Chamber formally requested that Germany defer to the Tribunal's jurisdiction.12

   Germany acceded.13 Subsequently, the Tribunal's prosecutor prepared an indictment charging Tadic with grave breaches of the Geneva Conventions of 1949,14 violations of the laws and customs of war, and crimes against humanity, pursuant to Articles 2, 3, and 5 of the International Criminal Tr

   bunal for the Former Yugoslavia (ICTY) Statute, respectively.15 The

   indictment alleged that between May and August 1992, Tadic had, inter alia, murdered, raped, and assaulted numerous victims, many of them at the Omarska detention facility used by the Bosnian Serbs to intern Muslims and Croats.16

   Tadic made his first appearance before the Tribunal on 26 April 1995, entering a plea of not guilty to all charges.17 Subsequently, Tadic filed a motion attacking the Tribunal's jurisdiction on three grounds: (1) the Security Council lacked the power to establish the Tribunal, such that its establishment was unlawful;18 (2) the primacy jurisdiction conferred upon the Tribunal had no basis in international law;19 and (3) the Tribunal lacked subject-matter jurisdiction because the crimes alleged-grave breaches, violations of the laws or customs of war, and crimes against

   humanity-apply only to international armed conflict, whereas the conflict at issue was internal.20

   The Trial Chamber dismissed Tadic's motion as it related to primacy and subject-matter jurisdiction, but concluded it lacked the competence to rule on the validity of the Tribunal's establishment.21 As to the primacy of the Tribunal over national courts, the Trial Chamber held that Tadic, not being a state, lacked standing to raise the issue,22 and that the Tribunal's establishment by the Security Council pursuant to Chapter VII of the United Nations (U.N.) Charter eviscerated any alleged right to be tried by national courts pursuant to national laws.23

   The Trial Chamber also dismissed Tadic's claim that the Tribunal's jurisdiction under Articles 2, 3, and 5 of the ICTY Statute was limited to crimes committed in the context of an international armed conflict, that the conflict at issue was internal, and that the Tribunal therefore lacked subject-matter jurisdiction.24 In disposing of this claim, the Trial Chamber determined that the crimes covered by all three articles were applicable in both internal and international armed conflicts.25 Consequently, the Trial Chamber concluded that it had jurisdiction regardless of the nature of the conflict.26

   Following the Trial Chamber's dismissal of Tadic's motion challenging the Tribunal's jurisdiction, the Appeals Chamber granted Tadic's motion for an interlocutory appeal on the issue of jurisdiction.27

3. Holding of the Appeals Chamber

   Whereas the Trial Chamber had declined to rule on the validity of the Tribunal's establishment,28 the Appeals Chamber held that the Security Council had properly established the Tribunal.29 In reaching this conclusion, the court found that the Security Council established the Tribunal pursuant to its wide discretionary powers under Chapter VII of the U.N. Charter.30 Additionally, the Appeals Chamber decided that the Tribunal was established in accordance with the rule of law, that is, in accordance with international standards of procedural fairness.31

   As to the primacy of the Tribunal, the Appeals Chamber rejected the Trial Chamber's disposition of the issue on the basis that Tadic lacked standing.32 However, the court rejected Tadic's challenge on the grounds that the crimes alleged were internationally significant, and that the absence of primacy could result in forum shopping and potentially a wind-fall to the accused.33

   The Appeals Chamber next tackled Tadic's claim that the Tribunal's subject-matter jurisdiction under Articles 2, 3, and 5 of the ICTY Statute was limited to crimes committed during an international armed conflict.34

   Upon concluding that the crimes alleged were committed in the context of an armed conflict,35 the court further concluded that the conflicts in the former Yugoslavia had both internal and international aspects36 and that the Security Council intended that the Tribunal's subject-matter jurisdi

   tion extend to both types of conflicts.37 With respect to the specific articles in question the Appeals Chamber held, contrary to the Trial Chamber's decision, that Article 2 of the ICTY Statute applied only to offenses committed during international armed conflicts.38 However, the Appeals Chamber upheld the Trial Chamber's decision that Articles 3 and 5 of the

   ICTY Statute applied to offenses committed during both internal and international armed conflicts.39

   In the process, the Appeals Chamber took a very expansive view of Article 3 of the ICTY Statute, holding:

   Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5, 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 and other customary rules on internal conflicts; (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, [that is], agreements which have not turned into customary international law.40

   The court then engaged in a lengthy discussion of the development of customary law in the field of internal armed conflict, maintaining that various principles of the law of war now apply in the context of such conflicts.41

   Indeed, the Appeals Chamber concluded, "it cannot be denied that customary rules have developed to govern internal strife."42

4. Analysis

   For the military practitioner, the most significant aspect of the Appeals Chamber's decision is its conclusion that some of the rules and principles governing international armed conflict now apply to internal armed conflict as a matter of customary law. Prior to Tadic, the law of war applicable to internal armed conflict consisted almost entirely of Common...