Prohibition of hostage-taking

Notion(s) Filing Case
Decision on Denial of Judgement of Acquittal - 11.12.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR73.9)

16. As a preliminary matter, the Appeals Chamber recalls that under Common Article 3, detention of a combatant during an armed conflict automatically renders him or her hors de combat, and that taking any individual hostage is among the acts which “are and shall remain prohibited at any time and in any place whatsoever”.[1] The plain text of Common Article 3 thus indicates that the prohibition on hostage-taking is both absolute and without exception. The Appeals Chamber further recalls that “any conduct of hostage-taking involving [Prisoners of War]] could not but be in violation of the Third Geneva Convention” and that “[t]]he main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of [C]]ommon Article 3, which expresses the shared principles which govern the Conventions”.[2]

[1] Common Article 3 [Common Article 3(1)(b) of the Geneva Conventions of 1949]], para. 1. See also Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgement, 17 July 2008, para. 179 n. 460 (“if a victim was found to be detained by an adverse party at the time of the alleged offence against him, his status as either a civilian or combatant would no longer be relevant because a detained person cannot, by definition, directly participate in hostilities.”).

[2] 2009 Hostage Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.5, Decision on Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 of the Indictment, 9 July 2009]], para. 21. See also Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 […]], para. 70 (“Common Article 3 […] reflects the same spirit of the duty to protect members of armed forces who have laid down their arms and are detained as the specific protections afforded to prisoners of war in Geneva Convention III as a whole, particularly in its Article 13”). Cf. Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135, Article 13 (“Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.”).

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Notion(s) Filing Case
Decision on Hostage-Taking - 09.07.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.5)

Count 11 of the operative Indictment in this case charges the Appellant with hostage taking of UN personnel as a war crime under common Article 3 of the Geneva Conventions of 1949.[1] The Appellant requested that Count 11 be dismissed as defective. He claimed that the allegations in Count 11 relate to Prisoners of War (“POWs”) while the scope of application of common Article 3 to international armed conflicts is limited to the hostage-taking of civilians. In particular, the Appellant observed that the Third Geneva Convention does not include an express prohibition of hostage taking of POWs. He argued that this lacuna could not be fulfilled by considering that common Article 3 is also applicable to international armed conflicts. In the Appellant’s view, the Third Geneva Convention should be considered as lex specialis to common Article 3, thus excluding the applicability of the crime of hostage-taking to POWs. The Appeals Chamber dismissed the Appeal in light of the following considerations.

21. First, the Appeals Chamber considers that the prohibition of hostage-taking cannot be considered as extraneous to the Third Geneva Convention. As the Prosecution correctly points out, the protection of POWs is covered by an extensive net of provisions within the Third Geneva Convention which, read together, lead to the conclusion that any conduct of hostage-taking involving POWs could not but be in violation of the Third Geneva Convention. Although not per se conclusive, the analysis of the drafting of the Geneva Conventions further substantiates this consideration.[2] The main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of common Article 3, which expresses the shared principles which govern the Conventions and establishes a minimum set of mandatory rules in non-international armed conflict.[3]

22. Common Article 3 clearly states that the conduct listed in subparagraphs (a) to (d) of paragraph 1, including in subparagraph (b) the “taking of hostages”, is prohibited “with respect to the above-mentioned persons”, that is “[p]ersons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed ‘hors de combat’ [...]”. In light of the clear definition of the reach of this paragraph, which according to its plain wording applies without exception to all of the prohibitions listed in subparagraphs (a) to (d) of paragraph 1, the Appeals Chamber considers that the Appellant’s argument that the prohibition of hostage-taking in common Article 3 “is no other than the prohibition of civilian hostage-taking in the Fourth Geneva Convention”[4] is unsubstantiated. Conversely, common Article 3 clearly refers the prohibition on taking hostage of any person taking no active part in the hostilities.[5]  

25. In any event, the Appeals Chamber recalls that the well-established jurisprudence of the Tribunal confirms that, under customary international law, the protections enshrined in common Article 3 apply in both international and non-international armed conflicts.[6] The Appeals Chamber considers that the Appellant fails to provide any sensible argument suggesting an exception to, or limitation on, the prohibition on hostage-taking for a particular category of persons in a particular type of conflict. Specifically, the Appeals Chamber considers the Applicant’s attempt to read the Tadić Decision on Jurisdiction as only justifying the extension of protections from the framework of international armed conflicts to the context of non-international armed conflict, and not vice versa, as without merit.[7] The Applicant only focuses on one part of the reasoning in the Tadić Decision on Jurisdiction, unduly disregarding its ultimate conclusion. In particular, of the entire Appeals Chamber’s discussion on the existence of customary rules of international law governing armed conflicts, the Appellant fixates on the Appeals Chamber’s observation of a tendency towards the blurring of the distinction between international and non-international armed conflicts in a certain historical moment. However, the Appellant fails to appreciate the full meaning of the Appeals Chamber’s conclusive finding that “at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant”,[8] which unequivocally refers to all of the rules contained in common Article 3, including the prohibition of hostage-taking. 

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s Third Amended Indictment, 27 February 2009 (“Indictment”), paras 25-29, 83-87.

[2] See [Final Record of the Diplomatic Conference of Geneva of 1949, Volume II, Section A, (Federal Political Department Berne, W.S. Hein & Co., Reprint, 2004)], pp. 399-400:

“The Coordination Committee drew attention to the fact that Article 31 of the Civilians Convention: ‘The taking of hostages is prohibited’, had no counterpart in the Prisoners of War Convention.

Mr. GARDNER (United Kingdom) said that the treatment of prisoners of war was so completely covered in the Prisoners of War Convention, that it was impossible to imagine circumstances in which hostages could be taken without infringing one or more of the existing Articles. The suggested addition would therefore have no practical justification.

The Committee decided to take no action on the observation of the Coordination Committee”.

[3] ICRC Commentary [Jean de Preux et al., III Geneva Convention Relative to the Treatment of Prisoners of War: Commentary, 3 Commentary on the Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red Cross, 1960)], pp. 34-35.

[4] Reply [Reply Brief: Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 for Lack of Jurisdiction, 29 May 2009], para. 11.

[5] See ICRC Commentary, p. 40.

[6] See, e.g., Prosecutor v. Mile Mrkšić and Veselin [ljivančanin , Case No. IT-95-13/1-A, Judgement, 5 May 2009, (“Mrkšić Appeal Judgement”), para. 70; Prosecutor v. Dragoljub Kunarac et al, Case No. IT-96-23&IT-96-23/1-A, Judgement, 12 June 2002, (“Kunarac Appeal Judgement”), para. 68; [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”)], paras 143, 147, 150; Tadić Decision on Jurisdiction [Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras 89, 98, 102.  See also International Court of Justice, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), 27 June 1986, para. 219.

[7] See Appeal [Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 for Lack of Jurisdiction], paras 22-25.

[8] Tadić Decision on Jurisdiction, para. 102.

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ICTY Statute Article 3 Other instruments Geneva Convention: common Article 3