The tadic decision and its implications for the law of war crimes. a study of judicial and prosecutorial method.

Abstract

This thesis focuses on the criminalisation in international law of violations of international humanitarian law committed in internal armed conflict. The ICTY Appeals Chamber Decision on Jurisdiction in the Tadic case is analysed. The Decision confirms the customary development of the law of war crimes to include the criminality in international law of offences committed in internal armed conflict. Thus the emphasis is on proceedings before the Ad Hoc International Tribunals. The thesis describes the customary development of the law of war crimes by highlighting the method employed by Judges and the Prosecutor to allow for the maximum reach of the law. A major limitation they have encountered is that, though offences in internal conflict now entail individual criminal responsibility in international law, the disparate treatment of violations in internal conflicts versus violations in international conflicts has not been superseded. This treatment has consequences for the elements of the definition of war crimes: the character of the conflict remains an element of the crime even though it is indifferent to moral fault. In this connection, the strategies employed by the Prosecutor to avoid engaging in contentious and lengthy conflict classification are reviewed. The disparate treatment of violations in internal and international conflicts is traced to the 'two-box' approach to international humanitarian law, which in turn stems from states' choice to be less restricted in their conduct in an internal armed conflict than they would be in an international conflict. This work recognises the limits posed by the law as it stands today: the recurrent theme throughout the thesis is the paramount importance of the principle of non retroactive application of criminal law.