Individual Crimes. The ICTY has often relied, not always accurately, on the NMT judgments or on Law No. 10 when addressing specific war crimes. In some cases, the Tribunal has used those sources to establish the criminality of a particular act under customary international law. In Blaškić, for example, the Appeals Chamber relied on High Command to hold that forcing POWs to perform dangerous work qualifies as a war crime.69 Similarly, in Furundžija, the Appeals Chamber held that “the international community has long recognized rape as a war crime” based in part on the fact that “rape was prosecuted as a war crime under Control Council Law No. 10”70 – an erroneous claim, given that Law No. 10 only prohibited rape as a crime against humanity and that none of the defendants in the trials were ever charged with rape.71 In other cases, the ICTY has relied on the judgments or Law No. 10 to establish the definition of a particular war crime. In Naletilić & Martinović, Trial Chamber I cited Xxxxx for the idea that plunder applies not only to “acts of appropriation committed by individual soldiers for their private gain,” but also to “large-scale seizures of property within the framework of systematic economic exploitations of occupied territory.”72 And in Kordić & Čerkez, the Appeals Chamber justified not limiting the war crime of plunder to occupied territory by pointing out that Law No. 10 did not contain such a requirement. 73 That was a questionable citation: as discussed in Chapter 9, the Farben, Xxxxx, and Ministries tribunals each dismissed plunder charges on the ground that the acts in question took place outside of occupied territory.74 63 Id. at 1251-52. 64 XX XX, art. 34. 65 Id., art. 33. 66 XXXXXX, FINAL REPORT, 108. 67 Xxxx Xxxxxx, Killing of Hostages, 309. 68 PICTET, COMMENTARY ON GC III, 229. 69 Prosecutor x. Xxxxxxx, IT-95-14-A, Judgment, para. 589 (29 July 2004). 70 Prosecutor v. Furundžija, IT-95-17/1-A, Judgment, para. 210 (21 July 2000). 71 The Čelebići trial judgment made a similar error, wrongly claiming that the London Charter prohibited rape as a crime against humanity. Čelebići, Trial Judgment, para. 476. Rape made its first appearance as a crime against humanity in Law No. 10. 72 Prosecutor x. Xxxxxxxxx and Xxxxxxxxxx, IT-98-34-T, Judgment, para. 619 (31 Mar. 2003). 73 Xxxxxx & Xxxxxx, Appeals Judgment, para. 78. 74 See Chapter 9. The NMTs’ most important contribution to war-crimes jurisprudence concerns medical experimentation. The Medical tribunal’s articu...
Individual Crimes. Courts have consistently cited the NMTs when addressing specific crimes against humanity. In some cases, they have relied on the tribunals to interpret an element common to all such crimes. In Tadić, for example, the Appeals Chamber relied, inter alia, on the text of Article II(c) of Law No. 10 to reverse the Trial Chamber’s holding that all crimes against humanity have to be committed with discriminatory intent.98 More often, though, courts have relied on the tribunals to establish the customary existence or customary definition of a specific crime against humanity.
