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

64 introduction to the international criminal court
occupation and against racist regimes in the exercise of their right of selfdetermination’.
138
The two succeeding categories of war crimes in Article 8 apply to noninternational
armed conflict, a far more controversial area of international
law, at least in an historical sense. As early as 1949, and even before, States
were prepared to recognise international legal obligations, including international
criminal responsibility, arising between them. However, they were
far more hesitant when it came to internal conflict or civil war, which many
considered to be nobody’s business but their own. In the Tadic jurisdictional
decision, the Appeals Chamber of the International Criminal Tribunal for
the Former Yugoslavia pointed to evidence that atrocities committed in
internal armed conflict had been proscribed by international law as early as
the terror bombing of civilians during the Spanish Civil War. 139 The 1949
Geneva Conventions refer to non-international armed conflict in only one
provision,knownas‘commonArticle3’becauseitisidenticalinallfourConventions.
Attempts to expand the scope of common Article 3 in 1977, in the
adoption of Protocol Additional II, were only moderately successful. 140 The
Protocol elaborates somewhat on the laconic terms of common Article 3,
but does not extend the concept of ‘grave breaches’ to non-international
armed conflict, nor does it recognise prisoner of war status in such wars.
Therefore, subject to a few minor exceptions, paragraphs (c) and (d) of
Article 8 apply to non-international armed conflicts contemplated by common
Article 3 of the four Geneva Conventions, while paragraphs (e) and
(f) apply to non-international armed conflicts within the scope of Protocol
Additional II. The threshold of application of common Article 3 is somewhat
lower. The scope of both provisions is limited in a negative sense,
it being stated that they apply to armed conflicts not of an international
character, but not ‘to situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence or other acts of a similar
nature’. But the Protocol Additional II crimes listed in paragraph (e) apply
to ‘armed conflicts that take place in the territory of a State when there is
138 Protocol Additional I, Art. 1(4).
139 Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October 1995, paras. 100–1. See also Prosecutor v. Strugar et al. (Case
No. IT-01-42-PT), Decision on Defence Preliminary Motion Challenging Jurisdiction, 7 June
2002, para. 13.
140 Protocol Additional II to the 1949 Geneva Conventions and Relating to the Protection of Victims
of Non-International Armed Conflicts, (1979) 1125 UNTS 3.