i n d i v i d ua l c r i m i na l r e s p o n s i b i l i t y
435
of 1949 recognised certain violations as crimes subject to universal juris-
diction. Traditionally, international humanitarian law has distinguished
between international and non-international armed conflicts, with le-
gal provision being relatively modest with regard to the latter. However,
common article 3 to the Geneva Conventions laid down certain minimum
standards which were elaborated in Additional Protocol II of 1977.
208
In
addition, since the conflict in Rwanda was clearly an internal one, the
ICTR Statute necessarily provided for individual responsibility for vio-
lations of the principles concerning non-international armed conflicts,
in effect recognising that common article 3 and Additional Protocol II
formed the basis of criminal liability.
The key modern decision has been the
Tadi´c
case before the ICTY.
The Appeals Chamber in the jurisdictional phase of the case noted that
an armed conflict existed whenever there was a resort to armed force
between states or protracted armed violence between governmental au-
thorities and organised armed groups or between such groups within a
state. International humanitarian law applied from the initiation of such
armed conflicts and extended beyond the cessation of hostilities until a
general conclusion of peace was reached; or, in the case of internal con-
flicts, a peaceful settlement achieved. Until that moment, international
humanitarian law continued to apply in the whole territory of the warring
states or, in the case of internal conflicts, the whole territory under the
control of a party, whether or not actual combat takes place there.
209
The
distinction between international and non-international armed conflicts
was thus minimised. Although it was noted that international law did not
regulate internal conflict in all aspects, it was held to ‘cover such areas
as protection of civilians from hostilities, in particular from indiscrimi-
nate attacks, protection of civilian objects, in particular cultural property,
protection of all those who do not (or no longer) take active part in hostili-
ties, as well as prohibition of means of warfare proscribed in international
armed conflicts and ban of certain methods of conducting hostilities’.
210
Further, it was held that individual criminal responsibility existed with
regard to violations laid down in customary and treaty law, irrespective
of whether the conflict was an international or an internal one.
211
It was
concluded that in order for article 3 of the ICTY Statute to be applicable,
the violation had to be ‘serious’, which meant that it had to constitute a
208
See below, chapter 21, p. 1194.
209
IT-94-1-T, Decision of 2 October 1995, para. 70, 105 ILR, pp. 453, 486.
210
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