ICTY, The Prosecutor v. Tadi Case Study
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
Discussion A – Establishment of the ICTY
1. (Jurisdiction, paras 11-12) Is it inherent in the nature of a tribunal that it has incidental jurisdiction to examine whether it was lawfully established? Must an accused, who invokes before a criminal tribunal his or her human right to be tried by a court established by law, at least have the right that the court examines whether its own establishment was lawful?
2. (Jurisdiction, paras 30-39)
a. Were the various armed conflicts in the former Yugoslavia a threat to international peace (justifying measures under Chapter VII of the UN Charter [available on http://www.un.org])? Does an affirmative answer depend on the qualification of the conflicts as international armed conflicts? Can a non-international armed conflict be a threat to international peace? Is the establishment of the ICTY a suitable measure to re-establish international peace? Do violations of IHL as such threaten international peace?
b. Is it possible to say that the ICTY has contributed to re-establishing peace in the former Yugoslavia? In diminishing the number of war crimes committed? Is this final result essential to judge the legality of the ICTYs establishment in regard to the UN Charter? Does not the prosecution of the leaders render them less likely to compromise during peace negotiations?
3. (Jurisdiction, paras 41-48) When is an international tribunal established by law? Does the Security Council have the ability to legislate, or is its role restricted to the application of norms? Is there a strict differentiation between the creation of rules and their application in international law? Can a tribunal established by an institution that cannot create rules be established by law?
Discussion B – Qualification of the conflict and applicable law
4. (Jurisdiction, paras 67-70) What are the geographical and temporal scopes of application of IHL? Do IHL rules apply to the whole territory of the State confronted with an international conflict? Non-international? Does the IHL of international armed conflicts apply until the general conclusion of peace (para. 70)? (GC III, Art. 5; GC IV, Art. 6; P I, Art. 3(b)) Does the law of non-international armed conflicts apply until a peaceful settlement is achieved (para. 70)? (P II, Art. 2(2))
5. (Haradinaj, paras 37-100) When does a non-international armed conflict begin? Which conditions must be fulfilled for a situation to be qualified as a non-international armed conflict? What difficulties could arise from a qualification of the conflict based on its duration rather than on its intensity? Is it necessary for a rebel group to control the territory in order for common Art. 3 to apply? In order to determine whether the group is sufficiently organized? In order to determine whether the group is a party to the conflict? Once the requisite level of intensity has been reached, does IHL apply until a peaceful settlement is achieved? Even if the level of intensity and the rebel groups degree of organization go down below that threshold? (P II, Art. 2(2))
6.
a. (Jurisdiction, paras 72 and 73) Which armed conflicts in the former Yugoslavia can be qualified as international? As non-international? Did the participation of the Yugoslav Peoples Army internationalize the conflict in Croatia? From which point on? Since Croatias declaration of independence? Its recognition by other States? Its admission to the UN? Did the Yugoslav army become an occupying force in the regions of Croatia where it remained? (GC I-IV, Art. 2) What could have internationalized the conflict in Bosnia-Herzegovina? Before 19 May 1992? After that date?
b. (Trial Chamber, Merits, para. 569; Appeals Chamber, Merits, para. 87) Why was the conflict in Bosnia-Herzegovina international from the beginning of 1992 until 19 May 1992? Was that the case even before its declaration of independence of April 1992? Did the Yugoslav Peoples Army become an occupying power the day of the declaration of independence?
c. (Jurisdiction, paras 76 and 136; Trial Chamber, Merits, paras 564-569; Appeals Chamber, Merits, paras 87-162) Why was the conflict in Bosnia-Herzegovina international after 19 May 1992?
Discussion C – Qualification of the persons Protected Persons
7. (Jurisdiction, para. 76; Appeals Chamber, Merits, paras 163-169) Is the reductio ad absurdum of the ICTY in para. 76 of the Decision on Jurisdiction convincing? If the conflict in Bosnia-Herzegovina is international because the Bosnian Serbs are Yugoslav agents, is the murder of a Muslim by a Serb a grave breach and the murder of a Serb by a Muslim not? In the light of the law of international armed conflicts is this an absurd conclusion? How does the Appeals Chamber avoid this result in its decision on the Merits? (GC IV, Arts 4 and 147)
8. (Jurisdiction, para. 76; Appeals Chamber, Merits, paras 163-169)
a. According to GC IV, Art. 4, who is a protected person? According to the Appeals Chamber? Did it change its opinion between its decision on jurisdiction and its ruling on the merits?
b. Does the protection of refugees and neutral nationals depend on their nationality or their actual need for protection? (GC IV, Arts 4(2), 44 and 70(2)) If the protection of refugees and neutral nationals depends on their actual need for protection, can we conclude that IHL gives the status of protected person to all those who have an actual need for protection? To protect, does IHL always look to the substance of relations, not to their legal characterization as such? (Appeals Chamber, Merits, para. 168)
c. Does the allegiance criterion, taken as a factor defining the status of protected person, apply only in the former Yugoslavia? Only to inter-ethnic conflicts? To all international conflicts? Even to non-international conflicts?
d. For the fighting factions and the humanitarian actors who have to apply IHL, is it easier and more practical to apply the criterion of allegiance or that of nationality? If you were a civilian detainee, would you claim non-allegiance to your captor in order to gain treatment as a protected person?
e. Does a government that forcibly enrols a person who has broken his allegiance or assigns him to military duties commit a grave breach in doing so? (GC III, Arts 50 and 130; GC IV, Arts 40, 51 and 147)
f. Does the Appeals Chamber mention precedents from practice in favour of its interpretation? Is it obliged to do so? In an international armed conflict, do States give their own citizens extended legal protection as soon as their allegiance shifts to the enemy?
g. Does the fact that the Appeals Chamber applies its new interpretation of Art. 4 of GC IV to Tadi?s past actions violate the principle nullum crimen sine lege? Is it necessary to qualify Tadi?s victims as protected persons in order to punish his acts? As grave breaches of the Geneva Conventions? As violations of the laws and customs of war?
Discussion D – Violations of IHL Grave breaches
9. (Jurisdiction, paras 79-84)
a. Why is it important to know if an act can be qualified as a grave breach? (GC I-IV, Arts 49/50/129/146 respectively; P I, Art. 85(1))
b. Are there grave breaches of IHL in non-international conflicts? According to the Appeals Chamber? According to the United States? Does the opinion of the US apply to conflicts outside the former Yugoslavia? What are the practical consequences for the US of its interpretation as to its obligations regarding certain conflicts, e.g. those in Central America? (GC I-IV, Arts 49/50/129/146 respectively; P I, Art. 85(1))
c. In non-international armed conflicts, are civilians not protected persons? Is an atrocity committed against a civilian in a non-international conflict not committed against a protected person, and therefore not a grave breach? (GC I-IV, Arts 50/51/130/147 respectively; P I, Art. 85)
d. In international armed conflicts, are all murders of civilians grave breaches? Must civilians as such be protected? Who is a protected civilian? Which civilians are not protected civilians? (GC IV, Arts 4 and 147)
10. (Appeals Chamber, Merits, paras 68-171) Which conditions are necessary for Tadi?s acts to be qualified as grave breaches under Art. 2 of the ICTY Statute? Identify the differences of opinion on the law and the facts between the Appeals Chamber and the Trial Chamber. Is it necessary to qualify the conflict as international in order to punish Tadi?s acts?
Discussion E – Interpretation of Article 3 of the ICTY Statute Laws and customs of war
11. (Jurisdiction, paras 86-136)
a. When does a violation of IHL come under Art. 3 of the ICTY Statute? Is a serious violation of customary IHL sufficient for this? Of the IHL of non-international armed conflicts? Of the customary IHL of non-international armed conflicts?
b. Considering the interpretation the Court has given to Art. 3 of the ICTY Statute, why does the decision contain such a detailed analysis of the customary IHL of non-international armed conflicts (Jurisdiction, paras 96-136)? Is this analysis necessary to establish the jurisdiction of the ICTY to judge Tadi? for the rape, torture and murder of prisoners? Could the ICTY not simply have applied Art. 3 common to the Geneva Conventions and Protocol II? Why are Protocols I and II not mentioned in the ICTY Statute? Was the fear of breaching the principle of nullum crimen sine lege (Jurisdiction, para. 143) justified in the light of the fact that the former Yugoslavia and its successor States were party to Protocols I and II?
c. (Jurisdiction, paras 99 and 109) What are the specific difficulties of ascertaining customary rules of IHL? How can the ICRC contribute to the development of the customary rules? Can its practice contribute to the formation of the material element of custom? Opinio juris? Both? Neither?
d. Did the Court decide which rules of IHL customarily apply to non-international armed conflicts? Which of these customary laws set out individual penal responsibility for those who violate them? May we deduce from para. 89 of the Decision on Jurisdiction that serious violations of the Hague Regulations on international armed conflicts fall under Art. 3 of the ICTY Statute, even if they were committed during a non-international armed conflict?
e. (Jurisdiction, para. 97) Does the distinction between international and non-international armed conflicts lose significance as far as human beings are concerned? Are there IHL rules protecting interests other than those of human beings? Is it logically or morally conceivable for States to claim that they are allowed to use, in non-international conflicts, weapons that are banned in international ones (Jurisdiction, paras 119-126)? In other areas of IHL, such as the protection and status of persons, is a distinction logically or even morally conceivable?
f. Do paragraphs 128-136 of the Decision on Jurisdiction simply mean that the acts of Tadi? fall under the competence of the ICTY, or do they also mean that third States have the obligation or the right to prosecute such acts committed during non-international armed conflicts elsewhere in the world? How would you formulate the rule established by the ICTY? Does it correspond to State practice? In 1992? In 1995? In 2010?
g. (Jurisdiction, paras 89, 94 and 143) Must a rule from the Geneva Conventions be customary for the ICTY to be able to judge if Tadi? violated it?
h. (Jurisdiction, para. 135) If we consider, contrary to the ICTY, that State practice in pursuing violations of the IHL of non-international conflicts does not permit a claim of a customary rule entailing individual penal responsibility, is Tadi? necessarily a victim of a violation of the nullum crimen sine lege principle?
Discussion F – Article 3 common to the Geneva Conventions
12. (Trial Chamber, Merits, paras 562-568) What differentiates non-international armed conflict from banditry or terrorism? Is there a minimum level beneath which Art. 3 common to the Conventions does not apply?
13. (Trial Chamber, Merits, paras 573-575) During a non-international armed conflict in a given State, do all murders of civilians in that State constitute a violation of common Art. 3? Must there be a link between the conflict and the murder? Must there be a link between the offender and a party to the conflict?
14. (Trial Chamber, Merits, para. 615) Which persons does common Art. 3 protect? Is this the same category of people as protected persons under the IHL of international armed conflict?
Discussion G – State responsibility effective control v. overall control
15. (Appeals Chamber, Merits, paras 99-145; ICJ, Bosnia and Herzegovina v. Serbia and Montenegro,
paras 402-405) Does the Appeals Chamber believe that it must answer the same question as the ICJ in Nicaragua v. United States? Does it give the same ruling? Is it admissible for the ICTY to deliberately not follow the case-law of the ICJ even though, according to Art. 92 of the UN Charter, the latter is the principal judicial organ of the United Nations? In the Bosnia and Herzegovina v. Serbia and Montenegro case, does the ICJ believe that it must answer the same question as the ICTY in Tadi?? Does it give the same ruling? In your opinion, is it possible that the criteria for attributing an act to a third State and for the qualification of a conflict as international are different? What difficulties does different case-law produce? Did the decision of the ICJ in the Bosnia and Herzegovina v. Serbia and Montenegro modify the standard set by the ICTY?
16.
a. (Appeals Chamber, Merits, paras 117-123) Is a State responsible for the acts committed by its agents in violation of their instructions? When does an individual become a de facto State agent? Is a State responsible for the acts committed by its de facto agents in violation of their instructions? In the case of individuals? If they are organized groups? Why is there stricter responsibility for organized groups than for individuals?
b. (Appeals Chamber, Merits, para. 131) What are the conditions for a third State to become responsible for acts committed by armed groups it supports?
c. (ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, paras 390-397) Does the ICJ give the same answers as the ICTY to questions 16 a. and b.? If not, what are its answers? According to the ICJ, may the acts of a group over which a third State exercises effective control be attributed to that third State?
d. If all the acts of the VRS can be attributed to the Federal Republic of Yugoslavia (FRY), do the members of those forces automatically become FRY combatants? (P I, Art. 43) If they are captured by the Bosnian armed forces, do they become prisoners of war? (GC III, Art. 4) At the end of the conflict must they be repatriated to the FRY? (GC III, Art. 118) Are Serb civilians also agents of the FRY?
17. (Appeals Chamber, Merits, paras 150-162) Which facts led the Appeals Chamber to conclude that the FRY had overall control over the VRS? Are they all convincing? Is the fact that the FRY signed the Dayton Agreement on behalf of the Bosnian Serbs an indication? Could the FRY have helped the VRS after Bosnia-Herzegovinas independence in the same way as the United States did for the contras in Nicaragua? How could it have done so without becoming responsible for all acts of the VRS? According to the case-law of the Appeals Chamber, would the United States have been responsible for all the acts of the contras?
Discussion H – Miscellaneous
18. (Trial Chamber, Merits, paras 540-553) What are the specific difficulties of assessing the credibility of witnesses in an inter-ethnic conflict? Of establishing the responsibility of the opposing parties? Of establishing the individual responsibility of someone from a different ethnic group than the witness?
19. (Trial Chamber, Merits, paras 239-241) When a prisoner was held in a camp where many others were killed, where he was mistreated and separated from his comrades, and has never been seen again even by his family, can one assume that he is dead? In order to issue a death certificate to his family? To convict those who took part in his detention and mistreatment?
20. What are the four most important statements in the present case for IHL? What do they mean for IHL? For the victims of war? What are the advantages and risks of these statements for the victims of future conflicts?
RUBRIC
Excellent Quality
95-100%
Introduction 45-41 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Literature Support
91-84 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Methodology
58-53 points
Content is well-organized with headings for each slide and bulleted lists to group related material as needed. Use of font, color, graphics, effects, etc. to enhance readability and presentation content is excellent. Length requirements of 10 slides/pages or less is met.
Average Score
50-85%
40-38 points
More depth/detail for the background and significance is needed, or the research detail is not clear. No search history information is provided.
83-76 points
Review of relevant theoretical literature is evident, but there is little integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are included. Summary of information presented is included. Conclusion may not contain a biblical integration.
52-49 points
Content is somewhat organized, but no structure is apparent. The use of font, color, graphics, effects, etc. is occasionally detracting to the presentation content. Length requirements may not be met.
Poor Quality
0-45%
37-1 points
The background and/or significance are missing. No search history information is provided.
75-1 points
Review of relevant theoretical literature is evident, but there is no integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are not included in the summary of information presented. Conclusion does not contain a biblical integration.
48-1 points
There is no clear or logical organizational structure. No logical sequence is apparent. The use of font, color, graphics, effects etc. is often detracting to the presentation content. Length requirements may not be met
You Can Also Place the Order at www.collegepaper.us/orders/ordernow or www.crucialessay.com/orders/ordernow ICTY, The Prosecutor v. Tadi Case Study
ICTY, The Prosecutor v. Tadi Case Study