An Introduction To The International Criminal Court - Institute for ...

crimes prosecuted by the court 53
Both of these provisions do not by any extent cover the entire range of serious
violations of the laws of war. They extend only to the most severe atrocities,
and their victims must be, by and large, civilians or non-combatants. Moreover,
these provisions only contemplate armed conflicts of an international
nature.
Until the mid-1990s, there was considerable confusion about the scope
of international criminal responsibility for war crimes. Some considered
that the law of war crimes had been codified and that consequently, since
1949, the concept was limited to grave breaches of the Geneva Conventions.
But the Conventions only covered what is known as ‘Geneva law’, addressing
the protection of the victims of armed conflict. War crimes as conceived at
Nuremberg were derived from ‘Hague law’, which focused on the methods
and materials of warfare. In any case, beyond these two categories there
seemed to be little doubt that international criminal responsibility did not
extend to internal armed conflicts. Indeed, when the 1949 Geneva Conventions
were updated with two additional protocols in 1977, the drafters
quite explicitly excluded any suggestion that there could be ‘grave breaches’
during a non-international armed conflict.
This conception of the law of international criminal responsibility was
reflected in the Statute of the International Criminal Tribunal for the Former
Yugoslavia, adopted in May 1993. 104 At the time, the Secretary-General made
it clear that the Statute would not innovate and that it would confine itself
to crimes generally recognised by customary international law. Accordingly,
there were two separate provisions, Article 2, covering ‘grave breaches’ of the
Geneva Conventions, and Article 3, addressing the ‘Hague law’ violations of
the ‘laws and customs of war’. But movement was afoot, and a year later, when
it adopted the Statute of the International Criminal Tribunal for Rwanda,
the Security Council recognised the punishability of war crimes in internal
armed conflict. 105 A year later, in its first major judgment, the Appeals
Chamber of the ICTY stunned international lawyers by issuing a broad and
innovative reading of the two categories of war crimes in the ICTY Statute,
confirming the fact that international criminal responsibility included acts
committed during internal armed conflict. 106 In Tadic, the judges in effect
104 Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/RES/827,
Annex.
105 Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955, Annex, Art. 4.
106 Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October 1995.