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

   

    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.