Significantly, the parties refrained from making any mention of common Article 3 of the Geneva Conventions, concerning non-international armed conflicts. Is there a strict differentiation between the creation of rules and their application in international law? 48 Naletilić Trial Judgment, supra note 30, § 217. See also Judgment, Rajić (IT-95-12-R61), Trial Chamber, 8 May 2006, §§ 164–166. 160. 116. The article tries to identify the advantages of such an application from an international criminal law perspective and suggests adjustments and modifications required to enhance the protection of victims and ensure responsibility for violations of international humanitarian law in such circumstances. 210, UN, Statute of the ICTY]. This examination is also appropriate because of the paucity of authoritative judicial pronouncements and legal literature on this matter. In the morning of 24 April 1998, unidentified persons attacked a police checkpoint in Turicevac/Turiceve, Srbica/Skenderaj municipality, killing one policeman and seriously wounding another. When she arrived at the police station she saw two Muslim men whom she knew, covered in blood. Was the fear of breaching the principle of nullum crimen sine lege (Jurisdiction, para. Appellant’s argument does not bear close scrutiny, for it is based on an unnecessarily narrow reading of the Statute. 204, Former Yugoslavia, Special Agreements Between the Parties to the Conflicts [Part B.]] 153, ICJ, Nicaragua v. United States] Article 1 of the four Geneva Conventions, whereby the contracting parties “undertake to respect and ensure respect” for the Conventions “in all circumstances”, has become a “general principle [...] of humanitarian law to which the Conventions merely give specific expression.” (Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicar. The Court also held that the broader overall control test enunciated by the International Criminal Court for the former Yugoslavia (ICTY) in Tadi did not apply, on two grounds. 78. It is therefore clear that, whether or not Iraq really used chemical weapons against its own Kurdish nationals – a matter on which this Chamber obviously cannot and does not express any opinion – there undisputedly emerged a general consensus in the international community on the principle that the use of those weapons is also prohibited in internal armed conflicts. The injured state has to take into account the level of involvement of the host state in the action of the private armed group when choosing the means and methods of retaliation. As is well known, that article … It is suggested that the obligations and responsibilities of the non-state armed group under the relevant rules of Geneva Convention IV, as a proxy of a third occupying state, will be derived from the amount of control it exercises over the relevant territory. [...], 126. 102. As both Agreements referred to in the above paragraphs were clearly intended to apply in the context of an internal armed conflict, the conclusion is warranted that the conflicting parties in Bosnia-Herzegovina had clearly agreed at the level of treaty law to make punishable breaches of international humanitarian law occurring within the framework of that conflict. *72 Although this relationship is not inconceivable, it is incompatible with the present rules of state responsibility covering complicity. 69. That is to say, there exists no corporate organ formally empowered to enact laws directly binding on international legal subjects. 123. The language of ‘adoption’, however, carries with it the idea that the conduct is acknowledged by the state as, in effect, its own conduct. Two points should be made in regard to this submission. Without going into details about the definition of the crime of aggression and its criticism, it seems that the crime itself will only apply to situations of IAC, as it is explicitly mentioned that an act of aggression is when one state exercises force against another state.111 The individual who can be held criminally responsible for the crime of aggression needs to be ‘a person in a position effectively to exercise control over or direct the political or military action of a State … ’.112 The elements of the crime do not rule-out the possibility of such person to be an individual who is not part of the de jure chain of command or political hierarchy.

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