UNITED NATIONS Case No.: IT-96-21-A Date: 20 February ... - ICTY

C. Whether Bosnia and Herzegovina was a Party to the Geneva Conventions at the Time
of the Events Alleged in the Indictment
107. Delic challenges the Trial Chamber’s findings of guilt based on Article 2 of the Statute,
which vests the Tribunal with the jurisdiction to prosecute grave breaches of the 1949 Geneva
Conventions. Deli} contends that because Bosnia and Herzegovina did not “accede” to the
Geneva Conventions until 31 December 1992, i.e., after the events alleged in the Indictment, his
acts committed before that date cannot be prosecuted under the treaty regime of grave
breaches. 128 Delic also argues that the Geneva Conventions do not constitute customary law.
Therefore, in his opinion, the application of the Geneva Conventions to acts which occurred
before the date of Bosnia and Herzegovina’s “accession” to them would violate the principle of
legality or nullem crimen sine lege. 129 All counts based on Article 2 of the Statute in the
Indictment should, he argues, thus be dismissed.
108. The Prosecution contends that regardless of whether or not Bosnia and Herzegovina was
bound by the Geneva Conventions qua treaty obligations at the relevant time, the grave
breaches provisions of the Geneva Conventions reflected customary international law at all
material times. 130 Further, Bosnia and Herzegovina was bound by the Geneva Conventions as a
result of their instrument of succession deposited on 31 December 1992, which took effect on
the date on which Bosnia and Herzegovina became independent, 6 March 1992. 131
109. The Appeals Chamber first takes note of the “declaration of succession” deposited by
Bosnia and Herzegovina on 31 December 1992 with the Swiss Federal Council in its capacity as
depositary of the 1949 Geneva Conventions.
110. Bosnia and Herzegovina’s declaration of succession may be regarded as a “notification
of succession” which is now defined by the 1978 Vienna Convention on Succession of States in
Respect of Treaties as “any notification, however phrased or named, made by a successor State
expressing its consent to be considered as bound by the treaty”. 132 Thus, in the case of the
128 Deli}’s Issue 3 as set out in the Appellant-Cross Appellee Hazim Deli}’s Designation of the Issues on Appeal,
17 May 2000, reads: Whether Deli} can be convicted of grave breaches of the Geneva Conventions of 12 August
1949 in that at the time of the acts alleged in the indictment the Republic of Bosnia and Herzegovina was not a
party to the Geneva Conventions of 12 August 1949.
129 Deli} Brief, pp 19-21. Appeal Transcript, pp 338-345.
130 Prosecution Response, pp 37-40.
131 Appeal Transcript pp 367–370.
132 17 ILM 1488. The Vienna Convention on Succession of States in Respect of Treaties was adopted on 22 August
1978 and entered into force on 6 November 1996. Bosnia and Herzegovina succeeded as a party to the
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Case No.: IT-96-21-A 20 February 2001