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Despite these indications of a nascent development in the law, the current report does not consider the applicability of Article 2 of the Statute to the Kosovo conflict. As will be discussed further below, there has been some dispute about the actual existence of an "armed conflict" in Kosovo and, while it is here contended that such a view is entirely unsupported in law and fact, it is not argued that the armed conflict was or is international in nature.

(ii) Article 3

Even a cursory glance at the description of the military campaign conducted by the Serbian/FRY authorities in Kosovo, laid out below, suffices to raise the applicability of Article 3 of the Statute – particularly paragraphs (b), (c) and (e). The Appeals Chamber, in its Decision on Jurisdiction in the Tadic case, held that Article 3 is applicable in situations of armed conflict, whether international or internal. In addition, the Appeals Chamber described Article 3 as a catch-all provision designed to ensure that the jurisdiction of the International Tribunal is "watertight". In its view, therefore, violations of common article 3 of the Geneva Conventions, concerning internal armed conflicts, also fall squarely within the ambit of Article 3 of the Statute, whose enumerated provisions are illustrative rather than exhaustive. Common article 3 of the Geneva Conventions states as follows:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.