Customary rules of international humanitarian law governing non-international armed conflicts

Notion(s)	Filing	Case
War crimes \| Customary rules of international humanitarian law governing non-international armed conflicts	Interlocutory Decision on Jurisdiction - 02.10.1995	TADIĆ Duško (IT-94-1-AR72)
99. […] When attempting to ascertain State practice with a view to establishing the existence of a customary rule or a general principle, it is difficult, if not impossible, to pinpoint the actual behaviour of the troops in the field for the purpose of establishing whether they in fact comply with, or disregard, certain standards of behaviour. This examination is rendered extremely difficult by the fact that not only is access to the theatre of military operations normally refused to independent observers (often even to the ICRC) but information on the actual conduct of hostilities is withheld by the parties to the conflict; what is worse, often recourse is had to misinformation with a view to misleading the enemy as well as public opinion and foreign Governments. In appraising the formation of customary rules or general principles one should therefore be aware that, on account of the inherent nature of this subject-matter, reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions. […] 126. The emergence of the aforementioned general rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts. […] 127. Notwithstanding these limitations, it cannot be denied that customary rules have developed to govern internal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities. Download full document		ICTY Statute Article 3
Notion(s)	Filing	Case
Customary rules of international humanitarian law governing non-international armed conflicts \| Non-international armed conflict \| Wanton destruction not justified by military necessity \| Devastation not justified by military necessity \| Attacks on civilian objects \| Individual criminal responsibility	Decision on Motions for Acquittal - 11.03.2005	HADŽIHASANOVIĆ & KUBURA (IT-01-47-AR73.3)
29. The wanton destruction of cities, towns or villages, an offence articulated in Article 3(b) of the Statute, reflects the customary international law prohibition on unlawful attacks against civilian objects which is found in conventional and customary international law applying to situations of international and non-international armed conflicts. Because this conduct is prohibited in customary international law that applies in international and non-international armed conflict, the proof of occupied territory is not required. The elements of this offence have been enunciated in several cases before the Trial Chambers, but none has considered the international nature of the armed conflict to be an element.[1] Devastation not justified by military necessity, an offence articulated in Article 3(b) of the Statute, includes the customary international law prohibition that destruction of the property of an adversary is prohibited, unless required by imperative military necessity. This rule applies in international and non-international armed conflict.[2] 30. The Appeals Chamber is satisfied that the conventional prohibition on attacks on civilian objects in non-international armed conflicts has attained the status of customary international law and that this covers “wanton destruction of cities, towns or villages not justified by military necessity” in international and non-international armed conflict. The Appeals Chamber is further satisfied that violations of this provision entail, in customary international law, the individual criminal responsibility of the person breaching the rule. The ICRC notes that this prohibition is contained in numerous military manuals that are applicable in or have been applied in international and non-international armed conflict,[3] and numerous states have adopted legislation making it an offence to attack civilian objects during any armed conflict.[4] See also paras 26-28 where the Appeals Chamber discusses legal sources including those referred to in the impugned Trial Chamber decision. show footnotes [1] See, e.g., Prosecutor v. Kordić and Čerkez, IT-95-14-T, Judgement, 26 February 2001 […], para. 346 (holding the elements to be: (i) the destruction of property occurs on a large scale, (ii) the destruction is not justified by military necessity; and (iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction); affirmed, Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Judgement, 17 December 2004, […], paras. 74-76. [2] This is a long-standing rule of international armed conflict. See Hague Regulations Article 23(g) (“In addition to the prohibitions provided by special Conventions, it is especially forbidden... [t]o destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war”). The ICRC study on customary international humanitarian law notes that “[t]his rule is included in military manuals which are applicable in or have been applied in non-international armed conflicts.” Jean-Marie Henckaerts and Louise Doswald-Beck (eds), ICRC Customary International Humanitarian Law, (Cambridge, 2005) (“ICRC Customary International Humanitarian Law”), vol. 1, page 28. There is an absolute prohibition on directing attacks against civilian objects, which may not be derogated from because of military necessity. See, e.g., Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Corrigendum to Judgement of 17 December 2004, page 2. [3] ICRC Customary International Humanitarian Law, vol. 1. pages 26 nn. 6-8, 28 nn. 21-22, 176 nn. 25-26, 177 nn. 30-31. [4] Ibid., page 28. Download full document		ICTY Statute Article 3(b)
Notion(s)	Filing	Case
Customary rules of international humanitarian law governing non-international armed conflicts \| Non-international armed conflict \| Plunder of public or private property \| Individual criminal responsibility	Decision on Motions for Acquittal - 11.03.2005	HADŽIHASANOVIĆ & KUBURA (IT-01-47-AR73.3)
37. […] The Appeals Chamber therefore finds that the customary international law rule embodied in Article 3(e) is applicable in all situations of armed conflict [international and non-international], and is not limited to occupied territory.[1] 38. The Appeals Chamber is satisfied that violations of the prohibition against “plunder of public or private property” under Rule 3(e) entail, under customary law, the individual criminal responsibility of the person breaching the rule. […] See also the omitted portions of paras 37-38 where the Appeals Chamber discusses legal sources. show footnotes [1] Kordić Appeals Judgement, para. 78 (“[t]he prohibition of plunder is general in its application and not limited to occupied territories only”). Download full document		ICTY Statute Article 3(e)
Notion(s)	Filing	Case
Customary rules of international humanitarian law governing non-international armed conflicts \| Non-international armed conflict \| Destruction or wilful damage done to institutions dedicated to religion \| Individual criminal responsibility	Decision on Motions for Acquittal - 11.03.2005	HADŽIHASANOVIĆ & KUBURA (IT-01-47-AR73.3)
47. The Appeals Chamber in the Tadić Jurisdiction Appeal found that the Article 3(d) prohibition against destruction or wilful damage to institutions dedicated to religion applied to both non-international and international armed conflict.[1] This Appeals Chamber affirms that conclusion. 48. The Appeals Chamber is satisfied that violations of the prohibition against “destruction or wilful damage done to institutions dedicated to religion” under Rule 3(d) entails, under customary law, the individual criminal responsibility of the person breaching the rule. […] See also the omitted portions of para. 48 where the Appeals Chamber discusses legal sources. show footnotes [1] Tadić Jurisdiction Decision, para. 86 (noting “this provision is based on the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, the Regulations annexed to that Convention, and the Nuremberg Tribunal's interpretation of those Regulations”); ibid., para. 87 (stating “the Hague Convention [is] considered qua customary law” applicable to international armed conflict); ibid., para. 98 (noting one rule of customary international law that applies to non-international armed conflict is Article 19 of the [1954] Hague Convention, which states that “[i]n the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property”, where respect for cultural property includes protection and safeguarding of “immovable property of great importance to the cultural heritage of every people, such as monuments of architecture... whether religious or secular”. See Articles 1, 2, 3, 4, and 19 1954 Hague Convention); ibid., para. 127 (noting the protection of cultural property as one of the “customary rules [that] have developed to govern internal strife”). Download full document		ICTY Statute Article 3(d)