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pursuant to Article 2 of the Statute has not been contested by the parties". That point is
not being considered.
5.
As to the points which are being considered, I agree with the Appeals Chamber,
and with Judge McDonald, that there was an international armed conflict in this case. I
also appreciate the general direction taken by the judgement of the Appeals Chamber,
but, so far as this case is concerned, I am unclear about the necessity to challenge
Nicaragua (I.C.J Reports 1986, p. 14). I am not certain whether it is being said that that
much debated case does not show that there was an international armed conflict in this
case. I think it does, and that on this point it was both right and adequate.
1. The Issue
6.
The issue in this branch of the case is whether, after 19 May 1992, there was an
"armed conflict" between the Federal Republic of Yugoslavia (Serbia and Montenegro)
(“FRY”) and Bosnia and Herzegovina (“BH”) within the meaning of Article 2, first
paragraph, of the Geneva Convention relative to the Protection of Civilian Persons in
Time of War ("Fourth Geneva Convention"). The provision states that "... the present
Convention shall apply to all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties ...". There was no state
of declared war. If also there was no "armed conflict" as between the FRY and BH (as
the majority of the Trial Chamber seemingly thought), the Fourth Geneva Convention
did not apply, and the question whether victims were protected persons within the
meaning of Article 4, first paragraph, of the Convention did not arise, a question which
the majority nevertheless answered. Persons could only be protected by the Convention
if the Convention in the first instance applied to the armed conflict by which they were
affected.
2. Nicaragua Shows That There Was an Armed Conflict Between the FRY, Acting
Through the VRS, and BH
7.
Ex hypothesi, an armed conflict involves a use of force. Thus, the question
whether there was an armed conflict between the FRY and BH depended on whether the
FRY was using force against BH through the Bosnian Serbian Army of the Republika
Srpska ("VRS"). So, I turn to this question.
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