International Judicial Lawmaking: The Yugoslav Tribunal and the Laws of War

Abstract

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 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 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 exists whenever there is a resort to force between States or protracted violence between governmental authorities and organized 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 painstakingly negotiated by states in the Diplomatic Conference. These decisions were subsequently codified by the delegates at the Rome Conference negotiating the text of the treaty for the ICC. As a technical matter, the negotiators of the treaty were not bound by the law developed by the Tribunals. Despite the delegates' authority to disregard the Tribunals' jurisprudence, much of the Rome Statute follows the lines laid out by the ICTY in Tadic. The negotiators followed the Tadic court's decision that the rules governing international and noninternational conflicts are distinct. (3) Just as it had been in the negotiation of the Geneva Conventions and the Additional Protocols, the applicability of the laws of war to civil wars was controversial during the ICC negotiations. The debate over the civil war provisions replicated the debate in the earlier Diplomatic Conferences over how to distinguish international conflicts from civil wars. The delegates found their solution in the Tribunals' jurisprudence, particularly the Tadic decision. For its provision on war crimes, the Rome Statute adopts the definition of armed conflict articulated by the Appeals Chamber in Tadic. (4) With the replication of this definition and the decision to cover acts committed in civil war, the transformation of the laws of war that began with the Security Council's creation of the ICTY is now embodied in a permanent international criminal institution. …