ICTY The Prosecutor v. Bokoski Case Brief
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
ICTY The Prosecutor v. Bokoski Case Brief
I. Material Field
1. (Para. 175) What is the twofold test used by the Tribunal to determine the existence of an armed conflict? Are those criteria cumulative? Are those criteria also applicable to international armed conflicts? (GC I-IV, Arts 2 and 3)
II. Intensity
2. Does the required level of intensity vary between non-international armed conflicts to which common Art. 3 applies and those to which Protocol II applies? How do you assess the level of intensity for both of them? Which is the decisive criterion for the customary IHL of non-international armed conflicts, as identified by the ICRC Study on Customary International Humanitarian Law? [See ICRC, Customary International Humanitarian Law]
3. (Para. 178) Does the way in which armed force is used and how persons are detained depend on whether an armed conflict exists or not? Are there indicators of whether an armed conflict exists? Or rather, does not the existence or not of an armed conflict indicate which methods may be used?
4. (Paras 184-190)
a. Are terrorist activities necessarily excluded from the scope of IHL? If not, when does IHL apply to acts of terrorism?When determining whether IHL applies to a given act, should this act be considered on its own or within the broader framework in which it occurs?
b. May a terrorist act be taken into account when assessing the intensity of violence? May the repeated occurrence of acts of terrorism be sufficient to conclude that there is an armed conflict? Conversely, may the existence of an armed
conflict render IHL applicable to any terrorist act perpetrated on the territory where that conflict is taking place?
c. Is the protracted character of violence in the sense of temporal duration decisive for the qualification of a situation as a (non-international) armed conflict? Is it an indicator? Must IHL be respected from the very beginning of an armed
conflict or only from the time when it turns out to be protracted? Is it foreseeable at the outset of a conflict how long the conflict will last?
5. (Paras 244-249) What are the Tribunals main arguments for concluding that the necessary level of intensity was reached in FYROM? Is it sufficient that violence carries on, or even escalates, over a long period of time for the situation
to be deemed to have reached the level of an armed conflict? Is it sufficient that the combat methods used, and the legal terms employed by the parties, are related to warfare rather than law enforcement?
III. Organization6.
a. (Paras 195-196 and 199-203) What is required of an armed group for it to be considered as sufficiently organized forthe purpose of common Art. 3? Is it sufficient for it to be hierarchically structured? Does it need to reach the same level
of organization as that of the State? Would it be realistic to require such a level of organization from an armed group?
b. (Para. 196) What do you think of the Limaj Defences argument that an armed group must possess a method of
sanctioning breaches of common Art. 3 or fulfil the conditions of Additional Protocol II in order to qualify as a party to a
non-international armed conflict?
c. (Paras 199-203) What are the categories identified by the Tribunal in order to attest to the degree of organization ofan armed group? Are they all relevant? Is any of them, if taken individually, sufficient to indicate the level of
organization?
7. (Para. 197) What is the difference, if any, between the degree of organization required for common Art. 3 to apply and
that for Protocol II to apply? What might the reasoning behind this difference be? Is there a difference between
protracted violence and sustained and concerted military operations?
8. (Para. 205) Does the fact that an armed group systematically commits violations of IHL necessarily indicate a lack of
organization and/or control over its members? When assessing the level of organization of an armed group and its
ability to respect IHL, what should be taken into account: theoretical ability to comply with IHL rules, or actual
compliance? If the criterion were actual compliance with IHL rules, could IHL ever be violated?
9. (Paras 267-291)
a. Does the NLA seem to qualify for any of the five categories listed by the Tribunal in paragraphs 199-203? On which
factors does the Tribunal base its conclusion that the NLA was sufficiently organized?
b. Does the Tribunal assess the possible applicability of Protocol II? According to you, could Protocol II apply to the
situation in FYROM? From the information given by the Tribunal, do you think that the NLA could qualify as a party to a
Protocol II armed conflict? Which elements required by P II, Art. 1, could be problematic here?
IV. Conclusion
10. (Paras 1, 239-291)a. Do you think it was obvious, at the beginning of 2001, that violence would reach the level of an armed conflict? Was it clear that the NLA was sufficiently organized for common Art. 3 to apply? May we conclude that IHL became applicable as early as January 2001, although these two elements could not be foreseen at that time by the parties to the conflict?
Or do you think that IHL only started to apply in August 2001?
b. In such conditions, is it realistic to expect the parties to the conflict to apply IHL as soon as violence breaks out?
What are the difficulties for the parties forces on the ground if they do not know the legal qualification of the situation?
Would it be fair to conclude that IHL started to apply in January 2001, only because it has now become clear that the
situation did amount to an armed conflict?
ICTY The Prosecutor v. Bokoski Case Brief
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
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