CYIL vol. 8 (2017)

TAMÁS LATTMANN CYIL 8 ȍ2017Ȏ 3.2 Convergence of Applicable Norms – Does Qualification Really Matter? Concerning the latest development of IHL, it is possible to find arguments for the set of legal rules applicable to international or non-international conflicts merging together so quickly that distinction between them is no longer justified. As a matter of fact, there has been a very important and to some extent useful merging of the two fields, especially related to individual criminal responsibility. 16 Theoretically, this question had been raised earlier, as well, for example by the International Court of Justice in the Nicaragua case, 17 where it has found that a situation may draw more qualification at the same time, but it did not deal with detailed IHL-related consequences of it. The most important step was the Tadic judgment by the International Tribunal for the former Yugoslavia, 18 in which the tribunal – struggling with the qualification of the situation in the former Yugoslavia – took the position that “grave breaches” can be considered as war crimes not only in the case of international but also of non-international armed conflicts, while neither the provisions of Common Article 3, nor of the 2 nd Additional Protocol have even used this term. 19 The judgment was an extensive interpretation of revolutionary relevance – not even the International Committee of the Red Cross had this interpretation ever before, the ICRC had also stated earlier that war crimes is a category for international conflicts only. 20 The tribunal has decided that the conflict shows all the signs of international and non-international conflicts, meaning that provisions of both of these legal regimes shall be applicable, thus rendering the category of “war crimes” into the system of internal conflicts as well, 21 which has later been reaffirmed by the International Tribunal for Rwanda as well. 22 The final step of this process is the text of the Rome Statute of the International Criminal Court, 23 where both crimes against humanity and war crimes are enumerated, the latter separated to ones which are applicable to international and to ones applicable to non-international conflicts. 24 This development has given an international treaty-based legal foundation to the earlier judicial interpretations. Of course the two lists are not completely the same, as there still are some important differences between the two areas of IHL, but as the most important crimes are the same, the rules are the same as well, which have to be respected by any parties, including any states who decide to start a military operation against the organisation. Concluding this part of the analysis, we can argue that the qualification of conflict is still relevant in the situation of a foreign involvement, even if the applicable legal norms are present and binding under both areas of IHL. 16 CASSESE, Antonio, ACQUAVIVA, Guido, FAN, Mary, WHITING, Alex, International Criminal Law, Cases & Commentary, Oxford University Press, 2011, p. 118. 17 ICJ, Nicaragua Case, op. cit. p. 3. 18 The Prosecutor v. Dusko Tadic. Case No. IT-94-1-AR72 (2 October 1995). 19 WATSON, Geoffrey R., The Humanitarian Law Of The Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadic, 36 Va. J. Int’l L. 687. 20 GREENWOOD, Christopher, International Humanitarian Law and the Tadic Case, European Journal of International Law , Vol. 7 (1996), p. 280. footnote 52. 21 CRYER, Robert, FRIMAN, Håkan, ROBINSON, Darryl, WILMSHURST, Elizabeth, An Introduction to International Criminal Law and Procedure (2 nd ed.), Cambridge University Press, 2010, p. 126. 22 Prosecutor v. Kanyabashi. Judgment. Case No. ICTR-96-15-T (18 June 1997), para. 8. 23 Rome Statute of the International Criminal Court. Rome, 17 July 1998, UNTS vol. 2187, p. 3. (Rome Statute) 24 Rome Statute. Art. 8.

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