The impact of control over armed forces on conflict classification in war crimes cases
Military operations and the notion of control under international law
The Hague : Asser Press, 2021
This contribution analyses how the two different notions of control over armed forces that have been developed in the international case law (namely, “effective control”, as set out by the International Court of Justice, and the “overall control” standard, as set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY)) impact on the classification of a conflict by international criminal courts and tribunals as either an international or a non-international armed conflict; and concomitantly on the fair trial rights of the accused. The Taylor case at the Special Court for Sierra Leone is discussed as an example where application of the overall control standard—if correctly applied—would have impacted on the classification of the conflict, and thereby on the Special Court’s jurisdiction over the crimes committed by the accused. Subsequently, the practice of the International Criminal Court (ICC), where the overall control standard was adopted without any explicit consideration, is analysed, as well as the consequential impact of adopting this lower standard on rights of the accused. In the last section, the author discusses two recent developments in the international case law, namely, the ICTY’s ruling that effective control over (part of) a territory by an armed group under overall control amounts to occupation-by-proxy, and the ICC’s finding that control over territory by an organised armed group may fulfil the intensity requirement for the existence of a non-international armed conflict, even in the absence of any clashes or fighting between the parties.
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