36
legal standard finds support in the provisions of the Geneva Conventions, the jurisprudence
of the trials that followed the Second World War, the Tribunal’s decisions, the writings of
leading publicists, and other authorities.” 110
89.
The Prosecution also contends that the determination of the conditions for
considering whether Article 2 of the Statute is applicable must be made in accordance with
the provisions of the Geneva Conventions and the relevant principles of international
humanitarian law. By contrast, in its opinion the international law of State responsibility
has no bearing on the requirements on grave breaches laid down in the relevant Geneva
provisions. According to the Prosecution “?igt would lead to absurd results to apply the
rules relating to State responsibility to assist in determining such a question” (i.e. whether
certain armed forces are sufficiently related to a High Contracting Party). 111
90.
Admittedly, the legal solution to the question under discussion might be found in the
body of law that is more directly relevant to the question, namely, international
humanitarian law. This corpus of rules and principles may indeed contain legal criteria for
determining when armed forces fighting in an armed conflict which is prima facie internal
may be regarded as acting on behalf of a foreign Power even if they do not formally possess
the status of its organs. These criteria may differ from the standards laid down in general
international law, that is in the law of State responsibility, for evaluating acts of individuals
not having the status of State officials, but which are performed on behalf of a certain State.
91.
The Appeals Chamber will therefore discuss the question at issue first from the
viewpoint of international humanitarian law.
In particular, the Appeals Chamber will
consider the conditions under which armed forces fighting against the central authorities
of the same State in which they live and operate may be deemed to act on behalf of another
State. In other words, the Appeals Chamber will identify the conditions under which those
forces may be assimilated to organs of a State other than that on whose territory they live
and operate.
109
Ibid., para. 2.30.
Ibid.
111
Ibid., paras. 2.21-2.23.
110
Case No.: -94-1-A
15 July 1999