8

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Trial Chamber II, in its Judgement in the Delalic et al. case, further confirmed that violations of common article 3 must be considered as within the jurisdiction of the International Tribunal by virtue of Article 3 of the Statute, absent the above-mentioned development which would bring violations of common article 3 within the "grave breaches" regime of the Geneva Conventions and thus within Article 2 of the Statute.

Bearing this in mind, the evidence discussed below points to violations of international humanitarian law within the scope of Article 3 of the Statute. However, in order to satisfy all of the jurisdictional prerequisites for the applicability of this Article, it is indeed necessary to confirm the actual existence of an "armed conflict" as such and the link between the acts alleged and this armed conflict. This is discussed further below.

(iii) Article 4

In addition, Article 4 of the Statute, respecting genocide, is not discussed in relation to the events in Kosovo with which the present report is concerned. Once again, a cautious approach is here adopted, which does not involve an analysis of the legal definition of genocide and the factual circumstances which may or may not fit within that definition. The developing jurisprudence of the International Tribunal, as well as the International Criminal Tribunal for Rwanda ("ICTR"), will further elaborate the extent of the requirement that the acts enumerated in Article 4 be committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, and further investigations by the Prosecutor may lead to the conclusion that such is the case in Kosovo. Nonetheless, the research conducted for the preparation of the present report does not reveal sufficient evidence of this intent requirement to construct an argument for the applicability of Article 4.

(iv) Article 5

While isolated acts in the course of an armed conflict may constitute violations of the laws or customs of war, the concept of crimes against humanity entails an added dimension. The United Nations Secretary-General, in his Report pursuant to Security Council Resolution 808 that contains the Statute of the International Tribunal⁴, described crimes against humanity thus:

"47. Crimes against humanity were first recognized in the Charter and Judgement of the Nürnberg Tribunal, as well as in Law No. 10 of the

4. Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, S/25704.