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Yugoslav Army, or VJ, as the Yugoslav portion of the old JNA was now known. The
VRS was engaged in carrying out the FRY's plan of ethnic cleansing and of carving out
territory of BH to be ultimately added to that of the FRY so as to realise the FRY's
ambition to create a "Greater Serbia".
14.
Thus, the FRY did more than provide general funds to the VR S. On the basis of
Nicaragua, I have no difficulty in concluding that the findings of the Trial Chamber
suffice to show that the FRY was using force through the VRS against BH, even if it is
supposed that the facts were not sufficient to fix the FRY with responsibility for any
delictual acts committed by the VRS. The FRY and BH were therefore in armed conflict
within the meaning of Article 2, first paragraph, of the Fourth Geneva Convention, with
the consequence that the Convention applied to that armed conflict.
3. The Position Taken by the Majority of the Trial Chamber
15.
Citing Nicaragua, the majority of the Trial Chamber (Judge Stephen and Judge
Vohrah) held that the test as to whether there was an international armed conflict was
whether the FRY had effective control over the VRS, which it considered meant
command and control. (Judgement of the Trial Chamber, paras. 598 and 600). It found
that the FRY did not have command and control over the VRS and so did not have
effective control over the VRS; in its opinion, the relationship between them was one of
coordination and cooperation as between allies (as to the legal implications of which I
reserve my opinion). Consequently, in the view of the majority, the FRY was not a party
to the armed conflict in BH after 19 May 1992. In effect, after that date, that conflict was
not international.
16.
With respect, it is too high a threshold to insist on proof of command and control
for the purpose of determining whether a state was using force through a foreign military
entity, as distinguished from whether the state was committing breaches of international
humanitarian law through that entity. In Nicaragua, the Court held that the United States
was using force through the contras by reason of the fact that, in the circumstances of
that case, it was arming and training the contras. The Court did not say that these facts
amounted to command and control; if they did, they should have given rise to state
responsibility for breaches by the contras of international humanitarian law, which the
Court said was not the case.
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