Filling in the Gaps of ICTY Jurisprudence: The Notion of Combatants Hors De Combat as Victims of Crimes Against Humanity

Abstract

This Comment will discuss the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) relating to the question of whether a combatant hors de combat can be considered a victim of crimes against humanity. It will focus on the Appeals Judgment in the case of Prosecutor v. Martic as well as the ongoing appeal in the case of Prosecutor v. Mrksic. Before the trials against Mrksic and Martic, the ICTY had not been called upon to pronounce whether the notion of crimes against humanity can apply to crimes committed against victims who are not civilians. That question was recently answered by both the Trial Chamber in Mrksic and the Appeals Chamber in Martic. Unfortunately, and to the detriment of the ICTY jurisprudence’s clarity and consistency, the Chambers came to different conclusions as to whether victims of crimes against humanity must be civilians. This Comment will address the confusion within ICTY jurisprudence. It will address how the Trial Chamber in Mrksic left a gap in its analysis of this issue. It will then review the holding of the Appeals Chamber in Martic and suggest that the reasoning in the Martic Appeals Judgment should be the proper interpretation of victimhood under crimes against humanity. Finally, this Comment will suggest that even though the Martic Appeals Judgment offers the best legal reasoning for victim status under crimes against humanity, a key argument needs to be addressed so this area of ICTY jurisprudence can be more sufficiently resolved. Before the problem and solution are presented, this Comment will present an in-depth review of the history of crimes against humanity. It will start by reviewing the introduction of crimes against humanity in international jurisprudence. In order to understand the differences between crimes against humanity and war crimes, a history of war crimes will be presented with an emphasis on the connection to an armed conflict. That emphasis on an armed conflict will be important to understand the Statute of the ICTY (the “Statute”) and its jurisdiction over crimes against humanity. From there, this Comment will review the relationship of crimes against humanity and war crimes and the subsequent split between to the two crimes. From there, the relevant articles of the Statute of the ICTY Statute will be discussed, followed by the other international texts that are important to the discussion of determining if combatants hors de combat can be victims of crimes against humanity under the ICTY Statute.