Prosecutor v. Ramush Haradinaj et al.: The International Criminal Tribunal for the Former Yugoslavia and the Threshold of Non-International Armed Conflict in International Humanitarian Law

On April 3, 2008, Trial Chamber I (Trial Chamber) of the International Criminal Tribunal for the former Yugoslavia (ICTY) delivered the judgment in Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj (Haradinaj et al.).[1] The ICTY Prosecutor had charged the accused, former members of the Kosovo Liberation Army (KLA), with war crimes and crimes against humanity allegedly committed in Western Kosovo/Kosova[2] between March 1 and September 30, 1998.[3] The Trial Chamber had to decide whether an armed conflict existed in Kosovo/Kosova between the KLA and Serbian forces. The situation on the ground in the early part of the indictment period was close to the threshold that distinguishes internal disturbances from non-international armed conflict. This Insight analyzes the Trial Chamber's findings on the existence of non-international armed conflict and, thus, the applicability of international humanitarian law to this type of conflict.

Prior ICTY Rulings on the Existence of an Armed Conflict

The ICTY Appeals Chamber established the test for determining the existence of an armed conflict in the Tadic case: "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State."[4] In keeping with earlier ICTY case law, the Trial Chamber in Haradinaj et al. interpreted the Tadic test as focusing on two criteria: "protracted armed violence" and "organization."

The Trial Chamber examined how other ICTY chambers had interpreted the Tadic criteria. It did not explain why it relied on certain cases but not others, although the selection may have been based on how extensively other chambers had examined the matter. Notably, the Trial Chamber did not rely on the travaux préparatoires of the four Geneva Conventions of 1949, the Commentary on Common Article 3 of the Geneva Conventions by the International Committee of the Red Cross,[5] or the criteria in Article 1(1) of Additional Protocol II.[6] It also did not refer to cases outside the ICTY.[7]

Ruling on the "Protracted Armed Violence" Criterion

The Trial Chamber concluded that "protracted armed violence" had "been interpreted in practice, including by the Tadic Trial Chamber itself, as referring more to the intensity of the armed violence than to its duration" (¶49). If duration was the key factor, international humanitarian law might not apply to the early stages of hostilities, irrespective of the degree of armed violence or the number of armed confrontations. The Trial Chamber's review of ICTY practice led it to conclude:

Trial Chambers have relied on indicative factors relevant for assessing the "intensity" criterion, none of which are, in themselves, essential to establish that the criterion is satisfied. These indicative factors include the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict. (¶49)

The Trial Chamber used these "indicative factors" to identify, classify and analyze the facts relevant to the intensity of the conflict, and found:

The attacks on the Ahmeti, Jashari, and Haradinaj compounds between late February and late March 1998 marked a significant escalation in the conflict between the KLA and the Serbian forces. However, they were isolated events followed by periods of relative calm. The conflict intensified on 22 April 1998. Considering in particular the frequent shelling in Decani/Deçan municipality, the flight of civilians from the countryside, the daily clashes between the KLA and the Serbian forces, and the unprecedented scale of deployment of VJ [Yugoslav Army] forces on the ground and their participation in combat, the Trial Chamber finds, on the basis of the evidence before it, that the conflict came to meet the intensity requirement of the Tadic test on 22 April 1998. (¶99)

The Trial Chamber based this finding on a detailed review of the evidence, which showed numerous developments on and around April 22, 1998 (see ¶¶91-98, especially ¶¶96-98). Prior to that date, the Trial Chamber found insufficient evidence of a level of intensity capable of amounting to armed conflict.

This holding had practical repercussions for Counts 3 and 4 of the Indictment, which related to events occurring on April 18, 1998.[8] Consequently, (1) the Trial Chamber had no jurisdiction over the alleged crimes against humanity in Count 3, and (2) an element of the war crimes alleged in Count 4 was missing. More broadly, the Trial Chamber's finding sets a precedent for what falls short of non-international armed conflict. In particular, the three violent clashes between the KLA and Serbian forces between late February and late March 1998, followed by periods of relative calm, qualified as internal disturbances, to which international humanitarian law did not apply.

Ruling on the "Organization" Criterion

After reviewing how ICTY chambers had interpreted the "organization" criterion, the Trial Chamber concluded that "an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means" (¶60). In keeping with Tadic, the Trial Chamber distinguished between governmental authorities and armed groups. The Trial Chamber noted that governmental authorities had, in ICTY practice, "been presumed to dispose of armed forces that satisfy this criterion" (¶60). Regarding armed groups, the Trial Chamber found that:

Trial Chambers have relied on several indicative factors, none of which are, in themselves, essential to establish whether the "organization" criterion is fulfilled. Such indicative factors include the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords. (¶60)

The Trial Chamber again resorted to "indicative factors" as a tool for classifying and analyzing the facts of Haradinaj et al. and found:

[I]n addition to many hundreds if not thousands of full-fledged KLA soldiers in early 1998, the months of March and April saw a surge in the number of KLA volunteers. This contributed to the development of a mainly spontaneous and rudimentary military organization at the village level. The evidence shows, in April, the initial phases of a centralized command structure above the various village commands, in particular through the efforts of Ramush Haradinaj, who was consolidating de facto authority. By this time, the KLA also controlled, by the presence of checkpoints and armed soldiers, a considerable amount of territory in the Dukagjin area. It had established logistics that provided access to considerable numbers of weapons, although they may not have been sufficient to arm all the new recruits. Furthermore, the evidence establishes that KLA soldiers received at least rudimentary military training and used guerrilla tactics. Finally, the KLA issued communiqués in its name. On the basis of this evidence, [...] the Trial Chamber is satisfied that by 22 April 1998 the KLA qualified as an "organized armed group" under the Tadic test. (¶89)

By finding that the KLA qualified as an organized armed group "by 22 April 1998," the Trial Chamber did not determine at what moment the KLA first satisfied the "organization" criterion. However, the evidence reviewed by the Trial Chamber shows significant developments around April 21-22, 1998 (see ¶¶65-88, especially ¶¶72-75, 85). The Trial Chamber took a flexible approach to the level of organization required, in particular regarding the "existence of a command structure" (¶¶60, 89).

The Trial Chamber did not address whether Serbian government forces fulfilled the "organization" criterion. The Trial Chamber probably followed preceding chambers in presuming that governmental authorities possessed sufficiently organized military forces. In any event, the evidence reviewed by the Trial Chamber shows that the Serbian forces were highly organized (see ¶¶92-94, 98). The Trial Chamber concluded, on the basis of the evidence, "that an armed conflict existed in Kosovo/Kosova from and including 22 April 1998 onwards" (¶100).

Importance of the Case to Determining the Threshold of Non-International Armed Conflict

The significance of the Haradinaj et al. judgment with regard to determining the threshold of non-international armed conflict is that it:

1. provided a factual example of when internal disturbances transform into non-international armed conflict;
2. took a flexible approach to the attributes required to qualify as an "organized armed group";
3. confirmed the shift of emphasis from the duration of hostilities to their intensity in the "protracted armed violence" criterion; and
4. provided examples of indicators that may be used to classify and analyze the two criteria of armed conflict set forth by the Appeals Chamber in Tadic.

The Trial Chamber's exclusive reliance on ICTY case law may, however, limit the value of these findings as an international legal precedent. Whether either or both sides in Haradinaj et al. appeal the Trial Chamber's findings on armed conflict remains to be seen. Meanwhile, the forthcoming ICTY judgement in the Bo'koski and Tarculovski case, in which the existence of an armed conflict is in dispute, is likely to provide further interesting developments with regard to the determination of the threshold of armed conflict.[9]

About the Authors
Anthony Cullen, an ASIL member, is a Researcher on the BRCS/ICRC Customary International Humanitarian Law Project at the Lauterpacht Centre for International Law, University of Cambridge, Cambridge, United Kingdom (atc30@cam.ac.uk). Marko Divac Öberg, an ASIL member, is an Associate Legal Officer in Chambers at the ICTY, The Hague, Netherlands (obergm@un.org). The opinions herein are those of the authors alone and do not necessarily correspond to those of the British Red Cross Society, the International Committee of the Red Cross, the ICTY, or the United Nations in general.

Footnotes