## Facts

- The International Criminal Tribunal for the Former Yugoslavia (ICTY) accused Duško Tadić of war crimes and related atrocities, including repeated beating and torture of detainees in a prison camp.
- Tadić was apprehended while visiting Germany and was transferred to the ICTY for trial.
- Before trial, Tadić filed an interlocutory appeal challenging the ICTY’s jurisdiction on the ground that international humanitarian law (IHL) did not apply because no “armed conflict” existed at the relevant time and place.
- He argued that events in the area were better characterized as a political takeover rather than armed combat, and therefore the charged conduct could not be treated as violations of IHL.
- The Appeals Chamber addressed what circumstances amount to an “armed conflict” under international law for purposes of applying the ICTY’s subject-matter jurisdiction.

## Issues

1. What circumstances constitute an “armed conflict” under international law for purposes of applying IHL and triggering the ICTY’s jurisdiction over alleged war crimes?
2. Must an accused show that there was no active fighting at the specific location of the alleged crimes to defeat IHL-based jurisdiction, or can IHL apply more broadly once an armed conflict exists?

## Decision

- The Appeals Chamber held that an “armed conflict” exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups (or between such groups) within a State.
- The Appeals Chamber rejected the view that IHL applies only at places and times of active battlefield combat; once an armed conflict exists, IHL applies to the conflict as a whole, including conduct occurring away from immediate fighting, so long as the alleged acts are sufficiently connected to the conflict.
- On that basis, the Appeals Chamber concluded that the jurisdictional objection failed and the case could proceed before the ICTY.

## Legal Principles

- An “armed conflict” for IHL purposes is not limited to formal declarations of war or traditional interstate wars; it includes both international armed conflict and certain non-international armed conflict.
- For non-international armed conflict, the threshold is met where there is protracted armed violence involving organized armed actors (including conflicts between State forces and organized armed groups, or between such groups).
- IHL is not confined to the front line; once the armed conflict threshold is met, IHL applies throughout the territory under the control of the parties to the conflict, and for the period in which the conflict continues.
- A jurisdictional challenge based on the absence of armed conflict fails where the legal definition of armed conflict is satisfied, even if the charged acts occurred in detention settings or other locations away from active combat.

## Conclusion

The Appeals Chamber defined “armed conflict” broadly enough to cover both interstate hostilities and certain sustained internal violence involving organized armed actors, and it held that IHL can govern conduct beyond immediate battlefield engagements once that threshold is met; accordingly, Tadić’s argument that no armed conflict existed to support ICTY jurisdiction was rejected and proceedings were allowed to continue.


Prosecutor v. Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), Case No. IT-94-1-I (1995)