In amongst the various roles involved in putting into effect the operating justice system envisaged in the Statute of the ICTY adopted by the UN Security Council,1 following the recommendations of the UN SecretaryGeneral’s report,2 the judges had to decide on a procedural framework in drafting the Rules of Procedure and Evidence and then, together with the Office of the Prosecutor (OTP) and defence teams, to apply the law covering the acts identified as crimes by the Secretary-General over which they were given jurisdiction. The outlines of these crimes, set out in Articles 2-5 of the Statute, make the role of applying the law seem deceptively simple. The law over which the ICTY was given jurisdiction, however, had not been considered in a comparable context since the Second World War. The procedural framework adopted was untested.3 There was no preexisting criminal code or accumulated case law precedent which could be applied directly, which meant that details of what frame of mind and physical acts were required to commit the crimes that were found to exist in international law at the time of the conflict were not crystallised in any easily identifiable form. The provisions of treaties, such as the Geneva Conventions and their Additional Protocols,4 were not drafted as a criminal law or to be applied by an ad hoc international criminal tribunal. Prohibition of certain acts in international law does not automatically mean that their breach attracts individual criminal liability.5 Questions regarding the detailed content of the legal rules that were to be applied had to be debated and decided on within the conduct of the cases themselves, and the approaches taken by the judges in this process have not necessarily been consistent.6 The only limitation given was that the principle of nullum crimen sine lege should not be violated, which was seen to require that they apply only ‘rules of international humanitarian law which are beyond any doubt part of customary law’7 (in itself a far from straightforward concept). This chapter will consider the implications of this situation for the development of the law of armed conflict (LOAC) or international humanitarian law (IHL). It will do this through the consideration of examples of the application of LOAC by the ICTY arising from some of its key

cases dealing with crimes committed as part of an armed conflict, namely Blaškic´,8 Galic´9 and Gotovina et al.10 These cases present a range of the complex legal issues faced by those asked to judge certain conduct that has taken place during an armed conflict, including questions of the form of legal responsibility, evidential requirements and the existence of particular criminal offences. They consider charges going to the heart of the manner in which warfare is conducted, accusing those in military command of going beyond what was legally permitted in a conflict. They are notable for particularly highlighting the difficulty of establishing whether the law has been broken in this situation and, if so, under what form of liability those involved are to be held responsible. This chapter seeks to highlight how the ICTY handled the difficulties inherent in the application of international criminal law within the complicated factual and legal scenarios facing the Tribunal. It has been stated in general about judgments produced by the ICTY that they ‘sometimes seem stilted, bureaucratic, and insufficiently reasoned, making them largely inaccessible to the reader and frustrating to the press and even legal scholars who try to analyze them’.11 This chapter will question whether, although they have created a functioning judicial system for these crimes and helped in defining the circumstances under which a commander will be criminally responsible for his actions or of those under his command, the judges have been convincing in their judgments in demonstrating that they have fully appreciated or applied the complexities of LOAC in the more difficult cases. After briefly discussing the ICTY’s overall approach to its jurisdiction over war crimes and giving a summary of the cases by way of background, the discussion in this chapter is divided into two parts, the first discussing command responsibility and the second the treatment of certain elements of LOAC.