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The development of the grave breaches regime and of individual criminal responsibility by the International Criminal Tribunal for the Former Yugoslavia

30-06-2003 Article, International Review of the Red Cross, No. 850, by Natalie Wagner

Two key developments of international humanitarian law by the International Criminal Tribunal for the former Yugoslavia are analysed in this article: the progressive interpretation of the grave breaches regime and the common purpose doctrine. It is argued that these developments are legally justified and have been consistently upheld in recent decisions, despite ongoing controversy.

   

Natalie Wagner,
B.A. (Queen’s University, Canada), B.A. Hons (Queen’s University, Canada), M.A. relations internationales (Université Laval, Canada), LL.M International Human Rights Law (National University of Ireland, Galway). The author is currently working in the International Organisations Division at the ICRC, Geneva. She would like to thank David Alonzo-Maizlish and Laura M. Olson for their comments on an earlier draft. 
   
Abstract 
This article analyses two key developments of international humanitarian law by the International Criminal Tribunal for the Former Yugoslavia. It focuses on the Tribunal's progressive interpretation of the grave breaches regime and on the common purpose doctrine currently being used to prosecute Slobodan Milosevic. To do so, this article describes the relevant jurisprudence since the Tribunal's 1999 Tadic Appeals Chamber Judgement. This jurisprudence demonstrates how the Tribunal's adoption of a functional approach to nationality has expanded the traditional grave breaches regime. Moreover, the Tribunal has re-conceptualised the law of individual criminal responsibility to incorporate the common purpose doctrine. 

However, such developments are not unanimously supported in the literature. One school of thought upholds a strict convention-based approach to international humanitarian law while another supports a teleological interpretation and application thereof. In contrast with the more skeptical viewpoint of the former, the author identifies a consistent legal pattern in the recent case law of the Tribunal in relation to the grave breaches regime and to the common purpose doctrine.

 
   
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