Internationalization of War Crimes Prosecutions: Correcting the International Criminal Tribunal for the Former Yugoslavia's Folly in Tadic

Abstract:     
To date, courts have had few opportunities to address the question of when an armed conflict becomes international for the purpose of war crimes prosecutions. Unfortunately, the most recent court to address the question, the International Criminal Tribunal for the Former Yugoslavia (ICTY), criticized the effective control standard adopted by the International Court of Justice (ICJ) and adopted a lower overall control standard for determining state responsibility in determining when conflicts become international for the purpose of war crimes prosecutions. In so ruling, the ICTY confused its own inquiry, muddied up the inquiry on state responsibility, and failed to develop a useful test for determining when a conflict becomes international for the purpose of war crimes prosecutions. The drafters of the Articles on State Responsibility have not sufficiently clarified the ICTY's error. In many cases, the scholarly community has compounded the error by applauding the ICTY's lower state responsibility standard.

Although the Tadic overall control standard is settled jurisprudence in the ICTY, the International Criminal Court (ICC) will soon confront the same issue, assuming it brings charges pursuant to its investigation of the Ituri Conflict in the Democratic Republic of Congo (DRC). Because the ICC will have to decide on a standard for determining whether the Ituri conflict has become international for the purposes of prosecuting war criminals, an opportunity exists to clarify this area of international law. In furtherance of that goal, this paper proposes a new standard for the internationalization of conflicts for the purpose of war crimes prosecutions. It then discusses five hypothetical scenarios drawn from the Ituri conflict and shows why the standard proposed in this paper is superior to the standard used by the ICTY.

Number of Pages in PDF File: 114

Keywords: International Law, International Humanitarian Law, Tadic, Nicaragua, state responsibility, internationalization of conflicts, International Criminal Tribunal for the former Yugoslavia, ICTY, International Criminal Court, ICC, Ituri Conflict, Democratic Republic of Congo, DRC

Accepted Paper Series