The Tremors ofTadić

Abstract

This Article considers the impact, or tremors, of paragraph 70 of the decision on interlocutory appeal on jurisdiction of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia inProsecutor v. Tadić,which was delivered in October 1995. It establishes, and seeks to make clear, that the commitment of the Appeals Chamber in paragraph 70 of that decision was to provide definitions for both of the concepts of international and non-international armed conflicts, even though some impressions might be that the Appeals Chamber tended to run together these different concepts in order to provide a singular and overarching definition of “armed conflict.” In separate and successive turns, the Article explores the specific components of each concept as identified by the Appeals Chamber—first, for international armed conflicts, and, then, for non-international armed conflicts—before testing them against particular facts from practice as well as hypothetical examples, but the Article also makes use of a comparative investigation as to what the Appeals Chamber said for each form of armed conflict when contrasted with each other. We examine the extent to which these components have threaded themselves through subsequent practice—specifically the relationship of the 1998 Rome Statute of the International Criminal Court with the concept of non-international armed conflict—so as to chart the full progress of the jurisprudence of the Appeals Chamber in the afterlife ofTadić:hence the designation of the “tremors” ofTadić.