Characterisation of the armed conflict
|Appeal Judgement - 17.12.2004||
KORDIĆ & ČERKEZ
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311. The nullum crimen sine lege principle does not require that an accused knew the specific legal definition of each element of a crime he committed. It suffices that he was aware of the factual circumstances, e.g. that a foreign state was involved in the armed conflict. It is thus not required that Kordić could make a correct legal evaluation as to the international character of the armed conflict. Consequently, it is irrelevant whether Kordić believed that the effective control test constituted international customary law.
|Appeal Judgement - 12.11.2009||
23. The Appeals Chamber notes that the Trial Chamber did not establish the nature of the armed conflict concerned by the Indictment. Given that the Indictment charged Milošević under Article 51(2) of Additional Protocol I and, in the alternative, Article 13(2) of Additional Protocol II, the Trial Judgement cites to both Protocols without specifying which of them applies to the conflict at issue. Although the Appeals Chamber considers that the Trial Chamber should have made a clear finding as to the nature of the armed conflict or the applicability of the Additional Protocols, the Appeals Chamber finds the references to the relevant provisions of both Additional Protocols permissible given that they form part of customary international law and apply both in international and internal armed conflicts. The Appeals Chamber further notes that the Trial Chamber referred to Additional Protocol I, notably in defining the notion of “civilians”. It recalls in this respect that the definition of civilians contained in Article 50 of Additional Protocol I applies to crimes under both Article 3 and Article 5 of the Statute, and finds that, provided that the direct participation in hostilities is adequately taken into account, the application of this definition is appropriate in this case. Additionally, the Appeals Chamber notes that Additional Protocol I was incorporated into Yugoslavia’s Armed Forces Regulations on the Application of the International Laws of War.
 Trial Judgement, paras 870-872.
 Cf. Galić Trial Judgement, paras 22-25.
 Galić Appeal Judgement, paras 86-87.
 Trial Judgement, paras 921-924.
Martić Appeal Judgement, paras 299, 302.
 See infra, Section III.C.1.(b)(iii), paras 57-58.
 Cf. Strugar Appeal Judgement, para. 187, where the Appeals Chamber found that because the Trial Chamber had not concluded on the nature of the armed conflict (thus not limiting the applicability of the international humanitarian law), it was necessary to analyse whether the alleged victims of the war crimes, although not actively participating in the hostilities, could not have been otherwise constituted lawful targets, such as being combatants or being injured as a result of a proportionate attack.
 Agreed Facts [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Prosecution’s Catalogue of Facts Agreed Between the Prosecution and Defence, with Annex A thereto, 28 February 2007], para. 24.
Additional Protocol I: Article 50; 51(2).
Additional Protocol II: Article 13(2).