The Contribution of the ICTY to the Grave Breaches Regime

The Contribution of the ICTY to the Grave Breaches Regime Ken Roberts*

Abstract This article considers the contribution of the International Criminal Tribunal for the former Yugoslavia (ICTY) to the grave breaches regime as the first body to systematically apply these provisions, and argues that the jurisprudence has breathed life into the regime. It has clarified when grave breaches may apply, through the elucidation of the ‘overall control’ test in establishing the internationality of a conflict; how the regime may be applied in a practice, through the operation of a nexus requirement; and who may benefit from the protection of the regime, through a modern interpretation of ‘protected person’. It is argued that the ICTY has significantly contributed to the definition of underlying grave breaches.With respect to torture, the contribution has been both with respect to the identification of comprised acts, such as rape and other abuses of a sexual nature, as well as in distinguishing the definition from that applied under the Torture Convention. Concerning unlawful confinement, the contribution has focused on interpreting the interaction of different provisions of Geneva Convention IV to bring the breach to life. Ironically, some of these positive contributions may have had the unintended consequence of reducing the role of grave breaches in the charging practices of the Prosecution.

1. Introduction Nearly 45 years after the appearance of the Geneva Conventions in 1949, the International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international court or tribunal given the express jurisdiction to apply the provisions of the grave breaches regime.1 Article 2 of the ICTY Statute formally *

Senior Legal Officer, ICTY Appeals Chamber. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations. The author would like to thank Norman Farrell, Magda Karagiannakis, Catherine Marchi-Uhel, Gabriela Salgado Go¤mez and James Stewart for their assistance and comments on an earlier draft of this paper. [[email protected]] 1 The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by the United Nations (UN) Security Council pursuant to the Chapter VII powers of the UN Charter: Report of the Secretary-General, Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993 (Secretary-General’s Report), at x 22.

............................................................................ Journal of International Criminal Justice 7 (2009), 743^761 doi:10.1093/jicj/mqp052 ß Oxford University Press, 2009, All rights reserved. For permissions, please email: [email protected]

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adopted grave breaches within the Tribunal’s jurisdictional competence.2 Against a factually complex backdrop of the disintegration of Yugoslavia, the ICTY has systematically applied the law with respect to grave breaches and in so doing has brought new clarity to different aspects of the regime, ranging from the general requirements for its application to the specific underlying crimes. In effect, the ICTY was the first body, domestic or international, to interpret and apply the grave breaches enshrined in the Geneva Conventions. This brief study focuses on a few of the most important contributions that ICTY has made to the grave breaches regime. Some of these relate to ‘general’ or ‘chapeau’ requirements ç those pre-conditions required in order for the underlying offences to amount to grave breaches. In particular, in affirming the requirement that grave breaches must be committed in an international armed conflict, the Tribunal has examined the conditions under which a conflict may be established to be international, has articulated the contours of a necessary nexus between this international armed conflict and the grave breaches and has offered a new definition of a ‘protected person’ that ensures that the grave breaches regime remains relevant in modern warfare. The ICTY’s contribution has by no means been restricted to its interpretation of the general requirements applicable to grave breaches. Indeed, a review of the ICTY experience with respect to certain individual grave breaches, notably torture and unlawful confinement, demonstrates the progress made by the Tribunal in interpreting and applying such crimes in practice. Finally, in order to put these contributions into perspective, it is useful to examine the practical effect on charging practices that has flowed from the clarity brought by the Tribunal to the grave breaches regime. In all of these respects, there is little doubt that the ICTY has breathed new life into a grave breaches regime that previously was limited to a short list of largely inoperative prohibitions at the end of the Geneva Conventions.

2 Art. 2 ICTYSt. reads as follows: The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: a. b. c. d. e. f. g. h.

wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or a civilian to serve in the forces of a hostile power; wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement of a civilian; and taking civilians as hostages.

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2. Defining International Armed Conflict for the Purposes of Grave Breaches The necessity of an international armed conflict for the application of the grave breaches regime was addressed in the Tribunal’s first case concerning the accused Dus› ko Tadic¤, a Bosnian Serb from Kozarac Village in the Municipality of Prijedor, Bosnia and Herzegovina. Tadic¤, originally arrested in Germany, was transferred by the German authorities to the ICTY on 24 April 1995. The judgment at first instance in his case was characterized by the Trial Chamber as ‘the first determination of individual guilt or innocence in connection with serious violations of international humanitarian law by a truly international tribunal, the International Tribunal being the first such tribunal to be established by the United Nations.’3 Tadic¤ was a cafe¤ owner in the period leading up to the conflict and a lowlevel figure in the overall picture of those accused by the ICTY. Had he been arrested at a later stage in the Tribunal’s existence, it is quite likely that his case would have been referred back to a court in the region pursuant to Rule 11bis of the Rules of Procedure and Evidence (RPE). As it was, given the paucity of detainees available for trial in the early years, Tadic¤’s trial went forward with 31 counts brought against him, including grave breaches, war crimes and crimes against humanity. Although the charges were geographically limited in scope to Prijedor Municipality, the facts of the case, concerning crimes allegedly committed by Tadic¤ against Bosnian Muslims in the context of ethnic cleansing, provided the platform for an examination of the limits of the Tribunal’s jurisdiction with respect to grave breaches of the Geneva Conventions. In a first, relatively minor contribution, the Appeals Chamber confirmed for the first time in the Tadic¤ Jurisdiction Decision that the application of grave breaches was limited to armed conflicts qualified as international.4 After determining that the Geneva Conventions in effect established a ‘two-fold system’, including the enumeration of serious offences that amount to grave breaches together with a mandatory enforcement mechanism for contracting states, it found that: The international armed conflict element generally attributed to the grave breaches provisions of the Geneva Conventions is merely a function of the system of universal mandatory jurisdiction that those provisions create. The international armed conflict requirement was a necessary limitation on the grave breaches system in light of the intrusion on State sovereignty that such mandatory universal jurisdiction represents. State parties to the 1949 Geneva Conventions did not want to give other States jurisdiction over 3 Opinion and Judgement, Tadic¤ (IT-94-1-T), Trial Chamber, 7 May 1997 (Tadic¤ Trial Judgement), at x 1. While the Trial Chamber acknowledged the prior operation of the international military tribunals at Nuremburg and Tokyo, it differentiated these as being ‘multinational in nature, representing only part of the world community’. 4 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadic¤ (IT_94-1-A), Appeals Chamber, 2 October 1995 (Tadic¤ Jurisdiction Decision).

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serious violations of international humanitarian law committed in their internal armed conflicts ç at least not the mandatory universal jurisdiction involved in the grave breaches system.5

The Appeals Chamber found support for this view in the Secretary-General’s Report in which reference to the grave breaches regime is tied to international armed conflicts,6 and stated that in any case this view was the only one ‘warranted by the text of the Statute and the relevant provisions of the Geneva Conventions, as well as by a logical construction of their interplay as dictated by Article 2’.7 The decision concluded that the state of the law at the time of the conflict did not yet allow the grave breaches regime to be applied in internal armed conflict, though it did acknowledge that a change in customary law might be occurring such that the grave breaches system might eventually operate regardless of whether the armed conflict is international or internal.8 Although the latter idea was not followed, it was noted again in later jurisprudence,9 relying on Judge Abi-Saab’s dissenting opinion in the Tadic¤ Jurisdiction Decision.10 With the confirmation of the requirement of internationality for the application of the grave breaches regime, comprehensive analysis as to the involvement of foreign actors was necessitated. This set the stage for a much more important contribution of the ICTY, concerning the means by which it may be

5 Ibid., x80. See also x 78: ‘As previously noted, although Art. 2 does not explicitly refer to the nature of the conflicts, its reference to the grave breaches provisions suggest that it is limited to international armed conflicts.’ 6 Ibid., x82, referring to Secretary-General’s Report, at x 37. 7 Ibid., x83. 8 Ibid., xx83^84. 9 The theme of an emerging change in this area was picked up again in the Delalic¤ et al. Trial Judgement (Judgment, Delalic¤ et al. (IT-96-21-T), Trial Chamber, 16 November 1998), which expressed the view at x 202, that it was possible that customary law had ‘developed the provisions of the Geneva Conventions since 1949 to constitute an extension of the system of ‘‘grave breaches’’ to internal armed conflicts’, and in the Kordic¤ and C› erkez case (Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Arts 2 and 3, Kordic¤ and C› erkez (IT-95-14/2-T), Trial Chamber, 2 March 1999, x15). 10 Separate Opinion of Judge Abi-Saab, Tadic¤ Jurisdiction Decision, supra note 4, at 6. It is worth noting that the Appeals Chamber decision on the issue provoked differing reactions with some finding the decision to amount to a ‘conservative’ approach to Art. 2 ICTYSt. (see e.g. W.J. Fenrick, ‘The Application of the Geneva Conventions by the International Criminal Tribunal for the Former Yugoslavia’, 834 International Review of the Red Cross (IRRC) (1999) 317^329, at 320; A. Marston Danner, ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’, 59 Vanderbilt Law Review (2006) 1^65, at 30), while others found this to be the correct interpretation of the grave breaches system (see e.g. M. Sasso'li and L. Olson, ‘The Judgment of the ICTY Appeals Chamber on the Merits in the Tadic Case’, 839 IRRC (2000) 733^769, at 736). Traditionally, leaving aside common Art. 3, the 1949 Geneva Conventions have not been considered relevant to internal armed conflict: S. Boelaert-Suominen, ‘Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?’ 5 Journal of Conflict and Security Law (2000) 63^103, at 68.

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established that a conflict is international for the purposes of determining individual criminal responsibility. In this regard, the Trial Chamber in the Tadic¤ case relied on the test established by the International Court of Justice (ICJ) in Nicaragua, and in particular the conclusion that the legal responsibility of a state would arise only where it is proved that the state in question had ‘effective control’ of the military or paramilitary operations in the course of which the alleged violations were committed.11 The Trial Chamber considered that it: must consider the essence of the test of the relationship between a de facto organ or agent, as a rebel force, and its controlling entity or principal, as a foreign Power, namely the more general question whether, even if there had been a relationship of great dependency on the one side, there was such a relationship of control on the other that, on the facts of the case, the acts of the [army of the Republika Srpska], including its occupation of ops› tina Prijedor, can be imputed to the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro).12

On the facts of the case before it, the Trial Chamber found that it must be shown that the Federal Republic of Yugoslavia (Serbia and Montenegro) (FRY) and its army (the VJ), exercised the potential for control over the army of the Republika Srpska (the VRS), or that the VRS had otherwise placed itself under the control of the Government of the FRY.13 Following a review of the evidence, the Trial Chamber found that it was insufficient to base a conclusion that the FRY made use of the potential for control inherent in the dependence of the VRS on the VJ, or otherwise exercised effective control over the VRS.14 As a result, the Trial Chamber dismissed the charges of grave breaches. In a ruling that was to have great practical significance in terms of the Tribunal’s ability to exercise jurisdiction over grave breaches, the Appeals Chamber in the Tadic¤ Appeal Judgement began its analysis by setting out parameters for establishing that a conflict is in fact international: It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.15

In the context of the Trial Chamber’s findings on the relationship between the FRY and the VRS, the Tadic¤ Appeals Chamber had occasion to determine the legal criteria for establishing when, in an armed conflict which is prima facie

11 Tadic¤ Trial Judgement, supra note 3, at x 585, citing Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US), 1986 ICJ Reports, 14 (Nicaragua), x115. 12 Tadic¤ Trial Judgement, supra note 3, at x 588. 13 Ibid. 14 Ibid., x 605. 15 Judgment, Tadic¤ (IT-94-1-A), Appeals Chamber, 15 July 1999 (Tadic¤ Appeal Judgement), x84.

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internal, armed forces may be regarded as acting on behalf of a foreign power. In so doing, it established a test of control,16 determining that: humanitarian law holds accountable not only those having formal positions of authority but also those who wield de facto power as well as those who exercise control over perpetrators of serious violations of international humanitarian law. Hence, in cases such as that currently under discussion, what is required for criminal responsibility to arise is some measure of control by a Party to the conflict over the perpetrators.17

The issue for determination was thus identified as the degree of authority or control that must be wielded by a foreign state over armed forces fighting on its behalf in order to render international an armed conflict which is prima facie internal.18 The Appeals Chamber examined the notion of control set out by the ICJ in the Nicaragua case, but rejected the effective control test established therein as unpersuasive on two grounds. First, it found that the level of control was not consonant with the logic of the law of state responsibility. Upon examination of a number of different scenarios ranging from a private individual engaged by a state to perform unlawful acts, to organized military groups, it concluded that the degree of control required may vary according to the factual circumstances of the case.19 Second, the Appeals Chamber found the Nicaragua test to be at variance with judicial and state practice, particularly with respect to factual situations involving military or paramilitary groups.20 Instead, the Appeals Chamber found three different standards of control pursuant to which an entity could be considered as acting on behalf of another state or as a de facto organ of that state, depending on the nature of the entity involved. First, with respect to subordinate armed forces, militias or paramilitary units, a state must exercise ‘overall control’, which may be deemed to exist when the state or party to the conflict ‘has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.’21 There is no requirement for any specific instruction by the controlling state concerning the commission of the acts in question by the group or members thereof. The overall control threshold may be easier to meet where the controlling state has territorial designs on the adjacent state where the conflict is taking place.22 Conversely, more compelling evidence of directing or planning may be necessary where the controlling state is not the territorial state and is

16 17 18 19 20 21 22

Based on the Geneva Convention III, Art. 4 requirement of ‘belonging to a party to the conflict’. Tadic¤ Appeal Judgement, supra note 14, at xx 95^96. Ibid., x97. Ibid., xx116^123. Ibid., xx124^136. Ibid., x137. (emphasis omitted) Ibid., x140.

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not seen to have territorial designs,23 or where the general situation is one of civil strife and weakened state authority.24 Concerning a single private individual or group that is not militarily organized, control must be established either by specific instructions issued by the state to the individual or group in question concerning the commission of the particular act, or by public endorsement or approved ex post facto by the state at issue.25 The third test provides that private individuals acting ‘within the framework of, or in connection with, armed forces, or in collusion with state authorities’ may be regarded as de facto state organs.26 It was these tests that the Appeals Chamber applied to the factual situation in the Tadic¤ case before concluding that the VJ exercised overall control in 1992 over the VRS.27 In so doing, it stressed the need to avoid placing undue emphasis on ‘ostensible structures and overt declarations of the belligerents, as opposed to a nuanced analysis of the reality of their relationship’.28 The Tadic¤ Appeal Judgement interpretation of how conflicts may be rendered international was hugely significant, having the practical effect of broadening the scope of application of grave breaches to include situations which might otherwise have been interpreted to amount only to civil wars.29 While there is debate over the pertinence of the overall control test to questions of state responsibility,30 it is clear that in terms of defining international armed conflict for the purposes of the application of the grave breaches regime, the test has since been uniformly followed in the jurisprudence of the ICTY and a new path has been charted for international criminal jurisdictions. A related contribution concerns an accused’s knowledge of the international armed conflict. Although the grave breaches regime itself is silent on these issues, the Appeals Chamber concluded in the Naletilic¤ and Martinovic¤ Appeal Judgement that the Prosecution obligation to prove intent also encompasses an accused’s knowledge of the facts pertinent to the internationality of an armed conflict.31 In developing this idea in detail for the first time, the Appeals 23 24 25 26 27 28 29 30

Ibid., x138. Ibid., x139. Ibid., x137. Ibid., xx141, 144. Ibid, xx147, 162. Ibid., x154. Marston Danner, supra note 10, at 31^32. See e.g. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, at xx 402^406, in which the ICJ observed that, while the overall control test may be applicable and suitable to a determination of the nature of a conflict, a point on which the ICJ took no position, it was not suitable for making determinations of state responsibility, a question outside the jurisdiction of the Tribunal. For a differing view, see A. Cassese, ‘The Nicaragua and Tadic¤ Tests Revisited in Light of the ICJ Judgement on Genocide in Bosnia’, 18 EJIL (2007) 649^668. 31 Judgment, Naletilic¤ and Martinovic¤ (IT-98-34-A), Appeals Chamber, 3 May 2006 (Naletilic¤ and Martinovic¤ Appeal Judgement), xx112^116, 121. See also Judgment, Kordic¤ and C› erkez (IT-95-14/ 2-A), Appeals Chamber, 17 December 2004 (Kordic¤ and C› erkez Appeal Judgement), x311.

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Chamber reasoned that the principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime and that ‘it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal.’ Pursuing this line of reasoning, the Appeals Chamber questioned whether the conduct constituting a grave breach was restricted to the underlying act (such as, e.g. wilful killing), or whether it encompassed the commission of such acts on the basis that they were committed in the course of an international armed conflict. It concluded that the existence and international character of an armed conflict are both jurisdictional prerequisites as well as substantive elements of the crime charged, and that accordingly the Prosecution is obliged to prove the accused’s knowledge of the facts pertinent to the internationality of an armed conflict.

3. Developing Standards to ‘Operationalize’ the Grave Breaches Regime Not all crimes committed during armed conflicts are subject to international humanitarian law. Purely domestic crimes will continue to be committed, and these must necessarily be distinguished from crimes such as grave breaches. Although this is a rather basic observation, it is worth noting that no clear guidance is provided in the Geneva Conventions with respect to the manner in which such a distinction should be made. This very practical need to ‘operationalize’ the grave breaches regime (as well as other war crimes) led to the jurisprudential development at the ICTY of a requirement of a nexus between the alleged crimes and the armed conflict, serving to distinguish crimes within the jurisdiction of the tribunal from purely domestic crimes.32 The issue was raised in the first case to come to trial and the guidelines were set out by the Trial Chamber in the Tadic¤ Trial Judgement:33 For an offence to be a violation of international humanitarian law, therefore, this Trial Chamber needs to be satisfied that each of the alleged acts was in fact closely related to the hostilities. It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties. It is not, however, necessary to show that armed conflict was occurring at the exact time and place of the proscribed acts alleged to have occurred, as the Appeals Chamber has indicated, nor is it necessary that the crime alleged takes place during combat, that it be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict; the obligations of individuals under international humanitarian law are independent and apply without prejudice to any questions of the responsibility of States under international law. The only question, to be 32 G. Mettraux, International Crimes and the ad hoc Tribunals (Oxford: Oxford University Press, 2005), at 38^39. 33 Tadic¤ Trial Judgement, supra note 3, at x 573.

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determined in the circumstances of each individual case, is whether the offences were closely related to the armed conflict as a whole.34

As demonstrated in the jurisprudence of the ICTY, the nexus requirement is far from academic. A brief consideration of one particular case is illustrative of this point. In April 1992, Bosnian Serb forces took over the city and municipality of Foc›a in Bosnia and Herzegovina. In this context, civilian Bosnian Muslims were rounded up and detained, women and children separated from the men. The Kunarac et al. case focused on three individuals accused of crimes related to the rape and sexual assault of girls and women detained at different locations, including the Partizan Sports Hall.35 Kunarac, the commander of a special reconnaissance unit incorporated into the VRS, was accused of removing several Muslim women from their places of detention and bringing them to private houses where he either raped them personally or gave them to his soldiers, who in turn sexually assaulted them. Both he and his co-accused Kovac were alleged to have kept young women segregated for months for personal sexual use or to be made available to other soldiers. Kovac was further accused of selling three of these women to other soldiers, including a 12-year-old girl. The third accused, Vukovic¤, was alleged to have raped at least two women on several occasions. At trial, on the basis of the evidence before it, the Trial Chamber concluded that the underlying crimes were closely related to the armed conflict that had been established, concluding that ‘[n]ot only were the many underlying crimes made possible by the armed conflict, but they were very much a part of it. Muslim civilians were killed, raped or otherwise abused as a direct result of the armed conflict and because the armed conflict apparently offered blanket impunity to the perpetrators.’36 The Trial Chamber found that the nexus requirement does not demand a strict geographical or temporal link between acts of accused and armed conflict,37 and the fact that the crimes in question took place in the aftermath of the fighting in Foc›a was sufficient to fulfil the nexus requirement, given that they were in furtherance of or taking advantage of the situation created by the fighting.38 On appeal, convictions under Article 3 were challenged on the basis that they were not closely related to the armed conflict, and more specifically because this nexus requirement ‘implies that the crimes could not have been 34 Ibid. See also Delalic¤ et al. Trial Judgement, supra note 8, at xx193, 195; Judgment, Brd~anin (IT-99-36-T), Trial Chamber, 1 September 2004 (Brd~anin Trial Judgement), xx121, 123; Judgment, Kordic¤ and C› erkez (IT-95-14/2-T), Trial Chamber, 26 February 2001 (Kordic¤ and C› erkez Trial Judgement), x32; Judgment, Blas› kic¤ (IT-95-14), Trial Chamber, 3 March 2000. 35 While the crimes in the case were brought under Arts 3 and 5 of the Statute, rather than as grave breaches, the case remains illustrative of the value of the nexus requirement as Art. 3 violations of the laws and customs of war also require the same nexus to be demonstrated. 36 Judgment, Kunarac et al. (IT-96-23), Trial Chamber, 22 February 2001 (Kunarac Trial Judgement), x 568. 37 Ibid. 38 Ibid.

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committed but for the existence of an armed conflict’.39 The Appeals Chamber categorically rejected any suggestion that the nexus requirement functions in such a way as to mean that only those acts which are specific to a wartime situation are prohibited.40 Instead, the armed conflict must have played a substantial part in the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.41 In other words, the perpetrator must have acted ‘in furtherance of or under the guise of’ the armed conflict.42 In making the determination of whether the nexus requirement is met, the Appeals Chamber set out numerous factors that may be considered: ‘the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.’43 In practice, the Kunarac et al. case presented a reality that will almost certainly be reflected in future conflicts, where crimes at issue might in other circumstances be properly considered to be domestic crimes. In Kunarac et al., they took place in the aftermath of the conflict, following the success of the Bosnian Serbs in gaining control over Foc›a. A stricter nexus requirement might have resulted in the exclusion of such crimes from the jurisdiction of the Tribunal. However, the nexus requirement developed by the Tribunal provided sufficient flexibility to the triers of fact to determine, on the facts of the case, that the crimes were properly considered as closely related to the hostilities and therefore within the jurisdiction of the Tribunal. The nexus requirement developed by the ICTY has since been adopted by the ICC, finding its way into the elements of various grave breaches as a requirement that the ‘conduct took place in the context of and was associated with an international armed conflict’. Already, the initial decisions of the ICC express a willingness to follow the ICTY’s jurisprudence on these issues.44 This formal integration of a nexus requirement into the law governing war crimes in other contexts is a demonstrable and clear recognition of the ICTY contribution in this regard.

39 Judgment, Kunarac et al. (IT-96-23), Appeals Chamber, 12 June 2002 (Kunarac Appeal Judgement), x 50. 40 Ibid., x60. 41 Ibid., x58. 42 Ibid., x58. The notion of acting under the guise of the armed conflict was further developed by the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber: see Judgment, Rutaganda (ICTR-96-3), Appeals Chamber, 26 May 2003, x570. 43 Kunarac Appeal Judgement, supra note 39, at x 59. In the context of analysis of an ICTY Art. 3 crime, but nonetheless relevant here. 44 Confirmation Decision, Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, 29 January 2007 (Lubanga Confirmation Decision), x287; Confirmation Decision, Katanga (ICC-01/04-01/07), Pre-Trial Chamber I, 26 September 2008 (Katanga Confirmation Decision), x380.

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4. Modernizing Grave Breaches The disintegration of the former Yugoslavia has provided a factually challenging background for the application of the grave breaches regime. This is particularly evident with respect to the requirement that grave breaches must be perpetrated against persons defined as ‘protected’ by any of the four Geneva Conventions. In this regard, the jurisprudence of the ICTY has been concerned primarily with whether civilians could be considered to be protected persons. This has required the interpretation of Article 4(1) of Geneva Convention IV, which defines ‘protected persons’ as those ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. The interpretation of the first aspect of this definition proved to be relatively uncontroversial. The Trial Chamber in Tadic¤ , following closely the ICRC Commentary on Geneva Convention IV, clarified that the expression ‘in the hands of’ is not to be understood merely as being physically held prisoner, but indicates that the person in question is in territory that is under the control of an opposing party to the conflict.45 By way of contrast, the interpretation of the phrase ‘of which they are not nationals’ was subject to numerous challenges by parties and comprehensive analysis by the Chambers. Once again, the Tadic¤ case provided the vehicle for the first comprehensive evaluation of this question. As set out above, Tadic¤ was charged with grave breaches committed in connection with a Bosnian Serb campaign of ethnic cleansing in the Prijedor Municipality, directed against non-Serbs. In its judgment, the Trial Chamber in the case found that after 19 May 1992, the JNA withdrew and was replaced by the VRS, a legally distinct entity. In view of a subsequent finding that the VRS could not be considered as a de facto organ or agent of the Government of the FRY, the Trial Chamber found by majority that the conflict was not of an international nature and as a necessary consequence that the protection of the grave breaches regime was not applicable.46 This ruling, while perhaps understandable on a very formalistic level, threatened to render the grave breaches regime inapplicable to the majority of cases that were to be brought before the Tribunal. Not surprisingly, it was challenged on appeal by the Prosecution. After first considering and finding that the conflict in question was indeed international, the Appeals Chamber in the Tadic¤ Appeal Judgement took a purposive approach in establishing that the scope of protection intended by the provision was broad: Article 4 of Geneva Convention IV, if interpreted in the light of its object and purpose, is directed to the protection of civilians to the maximum extent possible. It therefore does not make its applicability dependent on formal bonds and purely legal relations. Its primary purpose is to ensure the safeguards afforded by the Convention to those civilians who do not enjoy the diplomatic protection, and correlatively are not subject to the allegiance and 45 Tadic¤ Trial Judgement, supra note 3, at x 579 (referring to J.S. Pictet (ed.), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: ICRC, 1958), at 47). 46 Ibid., x 607.

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control, of the State in whose hands they may find themselves. In granting its protection, Article 4 intends to look to the substance of relations, not to their legal characterisations as such.47

Accordingly, the Appeals Chamber found that the phrase ‘of which they are not nationals’ should not be defined strictly by the formal requirement of nationality, concluding that already in 1949 ‘the legal bond of nationality was not regarded as crucial’.48 Instead, protected status should be seen as ‘hinging on substantial relations more than on formal bonds’,49 that is whether the person in question benefited from the diplomatic protection of their state.50 This was a highly significant decision given that, as recognized by the Chamber, modern international conflicts are more likely to be inter-ethnic conflicts as in the former Yugoslavia rather than conflicts between well-established states. On this basis, the Appeals Chamber recognized that where ethnicity rather than formal nationality could in effect be determinative of national allegiance, allegiance to a party to the conflict and, correspondingly, control by this party over persons in a given territory may be regarded as the crucial test.51 On the facts of the Tadic¤ case, the Appeals Chamber accordingly found that the Bosnian Muslim victims were in the hands of armed forces of a state of which they were not nationals, despite sharing the same formal nationality.52 The ICTY has also had occasion to interpret Article 4(2) of Geneva Convention IV, which states in relevant part as follows: ‘nationals of a cobelligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.’ The issue arose in the Blas› kic¤ case in which Blas› kic¤ submitted that Croatia and Bosnia and Herzegovina were co-belligerents, united 47 48 49 50

Tadic¤ Appeal Judgement, supra note 12, at x168. Ibid., x165. Ibid., x166. Ibid., x165. See also x164: ‘In addition, as is apparent from the preparatory work, the Convention also intends to protect those civilians in occupied territory who, while having the nationality of the Party to the conflict in whose hands they find themselves, are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection . . .’. 51 Ibid., x166; Brd~anin Trial Judgement, supra note 34, at x125; Judgment, Blas› kic¤ (IT-95-14), Appeals Chamber, 29 July 2004 (Blas› kic¤ Appeal Judgement), x634. This approach was confirmed in the Delalic¤ et al. Appeal Judgement (Judgment, Delalic¤ et al. (IT-96-21), Appeals Chamber, 20 February 2001), at x 79: ‘The purpose of Geneva Convention IV in providing for universal jurisdiction only in relation to the grave breaches provisions was to avoid interference by domestic courts of other States in situations which concern only the relationship between a State and its own nationals. The ICRC Commentary (GC IV), referred to by the appellants, thus stated that Geneva Convention IV is ‘‘faithful to a recognised principle of international law: it does not interfere in a State’s relations with its own nationals’’. The Commentary did not envisage the situation of an internationalised conflict where a foreign State supports one of the parties to the conflict, and where the victims are detained because of their ethnicity, and because they are regarded by their captors as operating on behalf of the enemy. In these circumstances, the formal national link with Bosnia and Herzegovina cannot be raised before an international tribunal to deny the victims the protection of humanitarian law.’ (footnotes omitted). 52 Tadic¤ Appeal Judgement, supra note 12, at x167.

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against the Bosnian Serbs at the relevant time, with normal diplomatic relations and that they could therefore not be regarded as protected persons for the purposes of the grave breaches regime.53 The Prosecution responded inter alia that, contrary to the suggestion of the appellant, the conflict in question was not that against the Bosnian Serbs but rather that between the Army of Bosnia and Herzegovina and the Croatian Defence Council.54 The Appeals Chamber again took a very practical approach to the issue. Referring to the Commentary on the Geneva Convention IV, it stressed that it is assumed that co-belligerents with normal diplomatic relations do not need protection under the Convention, and that for diplomatic relations to be considered as ‘normal’, it is essential that ‘representations made by the diplomatic representative will be followed by results and that satisfactory replies will be given to him’.55 It accordingly clarified that for Article 4(2) to apply, it must be demonstrated that the states were allies with effective and satisfactory diplomatic representation with each other. Formal diplomatic representation would not be relevant where the states were clearly belligerents.56 In so doing, the Appeals Chamber endorsed the approach of the Trial Chamber in skirting ‘formal and superficial elements’ in order to examine evidence of the ‘true situation’, which included the sheer number of casualties they inflicted on each other.57

5. Defining the Substance of Grave Breaches for the First Time The extent to which the jurisprudence of the ICTY has had the opportunity to address individual grave breaches has varied widely, largely due to the factual nature of the cases brought and the charging practices of the Prosecution. While some grave breaches have not been touched upon,58 others have been fleshed out in great detail. Two of these may be useful viewed as illustrative of the contributions of the ICTY in this respect: torture and unlawful confinement.

A. Torture There are a number of ‘mistreatment’ offences within the jurisdiction of the ICTY, of which torture under Article 2(b) is the most serious. The jurisprudence has adopted a definition of torture which remains the same regardless of whether it is being charged as a grave breach of the 53 54 55 56 57 58

Blas› kic¤ Appeal Judgement, supra note 51, at x183. Ibid., x184. Ibid., x185, citing Commentary to Geneva Convention IV, at 49. Ibid., xx183^187. Ibid., x188. Notably Art. 2(e) Compelling a Prisoner of War or a Civilian to Serve in the Forces of a Hostile Power; and 2(f) Wilfully Depriving a Prisoner of War or a Civilian of the Rights of Fair and Regular Trial.

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Geneva Conventions, a violation of the laws and customs of war (under common Article 3 of the Geneva Conventions) or as a crime against humanity (as an underlying act of persecution).59 The definition is intended to reflect the constitutive elements of the crime as set out in the 1984 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment and Punishment (‘Torture Convention’), a prohibition that the Tribunal considers has attained jus cogens status under international law.60 In practice, many of the charges of torture brought before the ICTY have been in the context of camps or detention centres. For example, in one of the earliest cases dealing with torture, four accused were charged with the grave breach of torture in relation to events at a detention facility in the village of C› elebic¤i in central Bosnia and Herzegovina. In the Kunarac et al. case mentioned above, two of the accused were charged with torture in respect to rapes alleged to have been perpetrated against girls and women detained at Partizan Sports Hall and other locations in Foc›a. Two considerations set the crime of torture apart from other forms of mistreatment. The first is the requirement of a ‘prohibited purpose’: Torture as a criminal offence is not a gratuitous act of violence; it aims, through the infliction of severe mental or physical pain, to attain a certain result or purpose. Thus, in the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture pursuant to Article 3 or Article 5 of the Tribunal’s Statute.61

There is no requirement that this prohibited purpose be the sole or predominant purpose. However, the presence of a non-prohibited purpose does not legitimize conduct where a prohibited purpose is established. The jurisprudence has expressly stated that there is no exhaustive list of prohibited purposes.62 This conclusion is based on the wording of the customary definition of torture, which speaks of committing acts ‘for such purposes as’ the enumerated examples.63 While in practice the prohibited purposes referred to have been the ones enumerated in the definition set out above, the non-exhaustive nature of the list could prove significant in an eventual factual scenario not yet foreseen. Although stated in a different context, the observation by the Trial Chamber in the Kupres› kic¤ et al. case that an ‘exhaustive categorization would merely create opportunities for the evasion of the letter of the prohibition’64 would appear apt in this regard. 59 Brd~anin Trial Judgement, supra note 34, at x 482; Delalic¤ et al. Trial Judgement, supra note 9, at x 443; Judgment, Limaj et al. (IT-03-66), Trial Chamber (Limaj Trial Judgement), x235, fn 723; Judgment, Krnojelac (IT-97-25), Trial Chamber, 15 March 2002 (Krnojelac Trial Judgement), x178. 60 Delalic¤ et al. Trial Judgement, supra note 9, at x 454; Judgment, Furundz› ija (IT-95-17/1), Trial Chamber, 10 December 1998 (Furundz› ija Trial Judgement), x144; S. Boelaert-Suominen, supra note 10, at 79. 61 Krnojelac Trial Judgement, supra note 59, at x180. 62 Delalic¤ et al. Trial Judgement, supra note 9, at xx 470, 472; Brd~anin Trial Judgement, supra note 34, at xx 486^487; Kunarac Appeal Judgement, supra note 39, at x155. 63 Delalic¤ et al. Trial Judgement, supra note 8, at x 470. 64 Judgment, Kupres› kic¤ et al. (IT-95-16), Trial Chamber, 14 January 2000 (Kupres› kic¤ et al. Trial Judgement), x563.

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While the jurisprudence of the ICTY has not set out any definitive threshold of pain required for an act to amount to torture, it has provided some clarity with respect to the factors to be considered when establishing the presence of ‘severe pain or suffering, whether physical or mental’, which also sets this crime apart from other forms of mistreatment. An assessment of the gravity of any mistreatment should include consideration of both the objective severity of the harm inflicted, including the nature, purpose and consistency of the acts committed, and of relevant subjective criteria, including the physical or mental condition of the victim, the effect of the treatment, the victim’s age, sex, state of health and position of inferiority. There is clearly no requirement that suffering must be visible even long after the commission of the crime.65 Some acts, such as rape66 and the mutilation of body parts,67 necessarily imply the pain or suffering required by the definition of the crime of torture and thus severe pain and suffering is proved by the establishment of such acts. Recognizing that rape is a crime as severe as torture may be regarded as a positive development in international law.68 The Furundz› ija Trial Chamber went further, specifying that acts of torture embrace all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading and humiliating for the victim’s dignity.69 The Appeals Chamber in the same case confirmed this approach to the law, finding on the facts of the case that it is ‘inconceivable that [. . .] the rubbing of a knife against a woman’s inner thighs and stomach, coupled with a threat to insert the knife into her vagina, once proven, are not serious enough to amount to torture.’70 The definition of torture in the ICTY jurisprudence is particularly notable in that it excludes the requirement, found in Article 1 of the Torture Convention, that at least one of the persons involved in the torture process must be a public official or must at any rate act in an official capacity. Such a requirement was included by the Appeals Chamber in the Furundz› ija case, but was subsequently excluded by the Appeals Chamber in the Kunarac case, which drew a distinction between customary international law as it concerns the conduct of states and other instances of torture outside the framework of the Torture Convention.71 This distinction was drawn on the basis that international criminal law is more concerned with the nature of the act committed 65 Kunarac Appeal Judgement, supra note 39, at xx149^150; Brd~anin Trial Judgement, supra note 34, at xx 483^484. 66 Kunarac Appeal Judgement, supra note 39, at xx150^151. 67 Judgment, Kvoc› ka et al. (IT-98-30/1), Trial Chamber, 2 November 2001 (Kvoc› ka et al. Trial Judgement), x144. 68 C.B. Coan, ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the International Criminal Tribunal for the Former Yugoslavia’, 26 North Carolina Journal of International Law and Commerical Regulation (2000) 183^237, at 208. 69 Furundz› ija Trial Judgement, supra note 60, at x186. 70 Judgment, Furundz› ija (IT-95-17/1), Appeals Chamber, 21 July 2000 (Furundz› ija Appeal Judgement), x114. 71 Kunarac Appeal Judgement, supra note 39, at xx146^148, reaffirmed in Kvoc› ka et al. Appeal Judgement (Judgement, Kvoc› ka et al.), Appeals Chamber, 28 February 2005, x284.

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rather than the status of the person committing it.72 Thus, the crime of torture in the context of armed conflict does not require that the perpetrator of the crime of torture be a public official, nor does the torture need to have been committed in the presence of such an official.73 One of the most constructive contributions of the jurisprudence of the ICTY has been in the identification of specific acts which may amount to torture. As a preliminary observation, it is clear that while most cases of torture involve positive acts, omissions may also suffice, ‘provided that the mental or physical suffering caused meets the required level of severity and that the act or omission was intentional, that is an act which, judged objectively, is deliberate and not accidental.’74 In an early examination of this crime, the Delalic¤ et al. Trial Judgement took note of acts found to constitute torture by the UN Human Rights Committee, the European Court and European Commission of Human Rights and the Special Rapporteur on Torture for the UN Commission on Human Rights, including: beating; extraction of nails, teeth, etc.; burns; electric shocks; mock executions; suspension; suffocation; exposure to excessive light or noise; sexual aggression; administration of drugs in detention or psychiatric institutions; prolonged denial of rest or sleep; prolonged denial of food; prolonged denial of sufficient hygiene; prolonged denial of medical assistance; total isolation and sensory deprivation; being kept in constant uncertainty in terms of space and time; threats to torture or kill relatives; total abandonment; being held incommunicado; rape and being paraded naked in humiliating circumstances.75 With respect to the mens rea of the crime, there must be direct intent: the perpetrator must have intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental to his victim.76 Dolus eventualis or recklessness is not sufficient.77 As a result of the extensive jurisprudence on the subject, a clear definition of torture within the context of international criminal law has been established, with the following elements: (i) the infliction, by act or omission, of severe pain or suffering, whether physical or mental; (ii) the act or omission must be intentional and (iii) it must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.78 72 Kunarac Appeal Judgement, supra note 39, at xx142^148. 73 See also C. Burchard, ‘Torture in the Jurisprudence of the Ad Hoc Tribunals’, 6 Journal of International Criminal Justice (2008) 159^182, at 174 et seq. 74 Delalic¤ et al. Trial Judgement, supra note 9, at x 468. 75 Ibid., xx461^469, esp. xx467, 469. 76 Kunarac Appeal Judgement, supra note 39, at x153; Limaj et al. Trial Judgement, supra note 59, at x 238. 77 M.E. Badar, ‘Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, 6 International Criminal Law Review (2006) 313^348, at 321; Mettraux, supra note 32, at 116. 78 Kunarac Appeal Judgement, supra note 39, at xx142^148, clarifying the Furundz› ija Appeal Judgement, supra note 70, at x111.

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B. Unlawful Confinement of a Civilian The jurisprudence regarding the ‘Unlawful Confinement of a Civilian’ is an example of the Tribunal bringing to life a grave breach by interpreting the interaction between different provisions set out in the Geneva Conventions. Although the grave breaches regime does not define unlawful confinement explicitly, the ICTY has read the offences in light of Articles 5 and 42 of Geneva Convention IV. The former provides that where an individual protected person is definitely suspected of or engaged in activities hostile to the security of the state, involuntary confinement would be lawful. In all other situations where the security of the detaining power does not make confinement absolutely necessary, it will be unlawful.79 The ‘mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him.’80 The assessment regarding whether a civilian poses a security risk to the state must be carried out on an individual basis,81 but it is clear that there is no blanket power to detain the entire civilian population of a party to the conflict. Where the initial confinement of a civilian is lawful, it can nonetheless become unlawful ‘if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.’82 While a government is clearly entitled to a reasonable time to determine whether detainees may be a danger to the state’s security, this period must be the minimum time necessary to make enquiries in accordance with Article 43.83 The obligation to afford such procedural guarantees applies to all detainees whether initially lawfully detained or not.84 Thus the detention or confinement of civilians will be unlawful either (i) when a civilian or civilians have been detained in contravention of

79 80 81 82

Delalic¤ et al. Appeal Judgement, supra note 51, at xx 320^321. Ibid., x327, citing the Delalic¤ et al. Trial Judgement, x1134. Ibid., x327. Ibid., x320. Art. 43 states as follows: ‘A ny protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Art. shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.’ 83 Ibid., x328. 84 Ibid., x380.

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Article 42 of Geneva Convention IV, i.e. they are detained without reasonable grounds to believe that the security of the detaining power makes it absolutely necessary, or (ii) where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.85 Once again, the ICTY’s identification of the elements of this offence is significant, since little guidance was provided previously, either by the terms of the grave breaches regime itself or earlier case law.

6. Overcoming Grave Breaches? It should be noted that the clarity in the jurisprudence with respect to the requirement that the conflict be international in order for the grave breach regime to apply may have had the unintended consequence of reducing the number of grave breach charges brought by the prosecution, due to the heavy evidentiary burden of proving the international nature of the conflict. In the Krnojelac case, the Prosecution withdrew the grave breach counts before trial at the urging of the pre-trial Judge and with ‘due regard to reducing the amount of trial time needed to address the Defence denial of the international nature of the armed conflict’.86 In practice, this was reflected by the withdrawal of six of the 18 counts in the indictment, all of which were covered by other charges. For example, the factual allegations underpinning the alleged grave breaches of torture and wilfully causing serious injury to body health remained covered by charges of crimes against humanity (torture and inhumane acts), and violations of the laws and customs of war (torture and cruel treatment pursuant to Common Article 3). Similarly, the alleged grave breach of wilful killing was covered by the crime against humanity and violation of the laws and customs of war of murder. It seems likely that the Prosecution has avoided charging defendants in other cases with grave breaches to avoid the considerable time and expense involved in proving the existence of an international armed conflict.87 Indeed this has been expressly reflected by the Prosecution in the Karadz› ic¤ case, where it justified dropping the grave breach charge and pleading a

85 Kordic¤ and C› erkez Appeal Judgement, supra note 31, at x 73. 86 Motion to Withdraw Art. 2 Counts, Krnojelac, Prosecution, 27 October 2000, x2. Similarly, the prosecution declared in the Furundz› ija case that it would not pursue the grave breach charges listed in the initial indictment, with the Court subsequently granting leave to withdraw that count: Furundz› ija Trial Judgement, supra note 60, at xx 6^7. See also Coan, supra note 68, at 201^202; K.D. Askin, ‘Prosecuting Wartime Rape and Other Gender-Related crimes under International Law: Extraordinary Advances, Enduring Obstacles’, 21 Berkeley Journal of International Law (2003) 288^349, at 311. 87 M. Jarvis, ‘A n Emerging Gender Perspective on International Crimes’, in G. Boas and W.A. Schabas (eds), International Criminal Law Developments in the Case Law of the ICTY (Leiden: Martinus Nijhoff Publishers, 2003), at 170.

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charge pursuant to common Article 3 of the Geneva Conventions in the following terms: The Prosecution has charged a crime based on the breach of a provision which plainly forms part of customary law applicable to international armed conflicts as well as internal armed conflicts. Removing the twin count under Article 2 from the Indictment was a measure to expedite the proceedings by eliminating the need for conflict classification at trial.88

A decreased reliance on grave breaches has correspondingly seen an increased use of Common Article 3 as a minimum yardstick in both international and non-international armed conflict, in itself a major development at the ICTY. It reflects the reality of conducting international criminal prosecutions in which time and resources are an inevitable consideration. As such, it may be questioned whether this ‘contribution’ of the ICTY may in fact lead the ICC or other courts to prefer charges other than those brought under the grave breaches regime.

7. Conclusion The ICTY’s contribution to the development of the grave breaches regime has been critical. Through the adjudication of charges of individual criminal responsibility for such crimes on a regular basis, the Tribunal has fleshed out the relevant provisions of the Geneva Conventions by way of legal definitions and practical examples. The development in the jurisprudence of the overall control test has allowed for clear indications of when a conflict is rendered international and, correspondingly, the grave breaches regime applies. A purposive interpretation of ‘protected persons’ has ensured that the protection afforded by grave breaches has remained relevant in the context of modern warfare. At the same time, in affirming the limitation of the application of these provisions to international armed conflicts, the ICTY has been careful not to step beyond its remit by going further than warranted by customary international law. The development of the nexus requirement has provided a practical and flexible means of applying the grave breaches system in practice. The jurisprudence has provided clarity with respect to the definitions of specific crimes, and has significantly recognized rape (surprisingly not formally a grave breach within the Geneva Conventions) and other sexual violence as a form of torture. Where necessary, as with the crime of torture, the jurisprudence has drawn the line between international criminal law and international human rights law. While grave breaches will no doubt be developed further by other international courts and tribunals in the future, the jurisprudence of the ICTY will have served an important role in mapping the direction to be taken. 88 Prosecution’s Response to ‘Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 for Lack of Jurisdiction’, Prosecution, 25 May 2009, x14.