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

their provisions. The offences enumerated in common Article 3 may be considered as falling
into the category of other serious violations of the Geneva Conventions, and are thus included
within the general clause of Article 3. There is thus no apparent inconsistency in not including
them in the scope of Article 2 of the Statute. This approach based on a distinction between the
grave breaches of the Geneva Conventions and other serious violations of the Conventions, has
also later been followed in the ICC Statute. 171
135. As will be discussed below, the appellants’ argument that the Security Council viewed
the conflict as international, even if correct, would not be determinative of the issue, as the
prohibitions listed under common Article 3 are also applicable to international conflicts. It is,
however, appropriate to note here that the Appeals Chamber does not share the view of the
appellants that the Security Council and the Secretary-General determined that the conflict in
the former Yugoslavia at the time of the creation of the Tribunal was international. In the
Appeals Chamber’s view, the Secretary-General’s Report does not take a position as to whether
the various conflicts within the former Yugoslavia were international in character for purposes
of the applicable law as of a particular date. The Statute was worded neutrally. Article 1 of the
Statute entitled “Competence of the International Tribunal” vests the Tribunal with the power to
prosecute “serious violations of international humanitarian law committed in the territory of the
former Yugoslavia since 1991”, making no reference to the nature of the conflict. 172 This
supports the interpretation that the Security Council in adopting the Statute was of the view that
the question of the nature of the conflict should be judicially determined by the Tribunal itself,
the issue involving factual and legal questions.
136. The Appeals Chamber thus finds no cogent reasons in the interests of justice to depart
from its previous jurisprudence concerning the question of whether common Article 3 of the
Geneva Conventions is included in the scope of Article 3 of the Statute.
2. Did the Trial Chamber Follow the Tadi} Jurisdiction Decision?
137. The Trial Chamber generally relied on the Tadi} Jurisdiction Decision as it found “no
reason to depart” from it. 173 That the Trial Chamber accepted that common Article 3 is
incorporated in Article 3 of the Statute appears clearly from the following findings. The Trial
Chamber referred to paragraphs 87 and 91 of the Tadi} Jurisdiction Decision to describe the
171 ICC Statute, Article 8.
172 Article 8 of the Statute sets out, in relation to the temporal jurisdiction of the Tribunal, the neutral date of
1 January 1991. Article 5 of the Statute, which, in relation to crimes against humanity, vests the Tribunal with
the power to prosecute them in internal as well as international conflicts.
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Case No.: IT-96-21-A 20 February 2001