Unlawful Attacks in Combat Situations: From the ICTY's Case Law to the Rome Statute 9789047431596, 9047431596

Table of contents :
Table of Contents
Foreword
Chapter I Introduction
Chapter II Principle of Distinction in the Conduct of Hostilities
II.1 First Approach to the Principle of Distinction in International Humanitarian Law
II.2 The Principle of Distinction in International Humanitarian Law before the Additional Protocols to the Geneva Conventions
II.3 The Principle of Distinction in the AP I applicable to International Armed Conflicts
II.4 The Principle of Distinction in the AP II applicable to Non-International Armed Conflicts
II.5 Evolution of the Principle of Distinction after the Additional Protocols to the Geneva Conventions
Chapter III Material Contextual Elements
III.1 The Objective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks. The Distiction between Material Contextual Elements, Jurisdictional Contextual Elements and Specific Objective Elements
III.2 The Existence of an Armed Conflict and Link between the Forbidden Behaviour and the Armed Conflict
III.2.1 The Notion of Armed Conflict
III.2.1.1 Introduction to the Problems Posed by the Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions, including Those Caused by Acts of Terrorism
III.2.1.2 From the Geneva Conventions to the ICTY's Case Law: The Evolution of the Notion of Armed Conflict in International Humanitarian Law
III.2.1.3 The Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions Caused by Repeated Acts of Terrorism in light of the ICTY's Case Law
III.2.1.4 Overcoming the Vagueness Introduced by the ICTY's Case Law on the Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions Resulting from Repeated Acts of Terrorism
III.2.1.5 The Notion of Armed Conflict in the RS
III.2.2 Geographical and Temporal Scope of an Armed Conflict
III.2.3 Link between the Forbidden Behaviour and the Armed Conflict
III.3 International or Non-International Character of the Armed Conflict
III.4 The Protected Status of the Persons or Objects Subject to the Forbidden Behaviour
Chapter IV Specific Objective Elements
IV.1 Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the ICTY's Case Law
IV.1.1 Non-Applicability of the Crimes Defined in Art. 2 ICTYS to Behaviours Taking Place during the Conduct of Hostilities
IV.1.2 Limited Scope of Application of the Crimes Expressly Provided for in Art. 3 ICTYS during the Conduct of Hostilities. Special Reference to the Crimes of Attacking Undefended Localities and Wanton Destruction Not Justified by Military Necessity, and to the Problems Posed by the Joint Evaluation of the Damage Occasioned in the Different Phases of the Same Military Operation
IV.1.3 The Residual Clause Provided for in Art. 3 ICTYS as the Core Element of the Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the ICTY's Case Law. Special Reference to the Lack of an Autonomous Treatment of the Disproportionate Attacks
IV.2 Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the RS
IV.2.1 The Autonomous Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in International Armed Conflicts. Special Reference to the Autonomous Treatment of Disproportionate Attacks
IV.2.2 Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in Non-International Armed Conflicts
IV.2.3 The Relationship between Attacks Directed at Civilians or Civilian Objects and Disproportionate Attacks, and Those Other Crimes Consisting of the Damage Brought about by such Attacks. Special Reference to the War Crime of Destruction of Enemy's Property not Justified by Imperative Military Necessity and the Need for a Separate Assessment of the Damage Occasioned in Each Phase of a Military Operation
IV.2.4 Other Serious Violations of International Humanitarian Law Committed during Conduct of Hostilities Included in the RS
IV.2.4.1 Crimes Committed against Persons Entitled to Special Protection
IV.2.4.2 Crimes on the Use of Prohibited Methods of Warfare
IV.2.4.3 Crimes on the Use of Prohibited Weapons or Munitions
Chapter V Practical Issues on the Application of the Notion of Military Objective
V.1 Preliminary Remarks
V.2 Persons who Are Military Objectives
V.2.1 Persons Entitled to Combatant Status
V.2.2 Persons without Combatant Status who Take Active Part in the Hostilities
V.2.2.1 Active Participation in the Hostilities versus Actions Taken in Self-defence
V.2.2.2 Active Participation versus Indirect Participation in the Hostilities. Special Reference to Enforced Active Participation
V.2.2.3 Conclusion of Active Participation in the Hostilities
V.2.3 Presumption of Civilian Status
V.2.4 Equating the Existence of a Weak Defence with the Non-existence of Defence
V.2.5 The Notion of Civilian Population
V.3 Objects which Are Military Objectives
V.3.1 Categories of Objects Included within the Notion of Military Objective
V.3.2 Cases on the Application of the Notion of Military Objective in relation to Objects: Particular Attention to Aerial Attacks
V.3.2.1 The NATO Attack against the SRT in Belgrade on 23 April 1999
V.3.2.2 The SRK Attack against the Oslobodilaca Sarajeva Street and a Nearby Park on 4 February 1999
V.3.2.3 The HVO Attack against the Village of Gačice in Central Bosnia on 20 April 1993
V.3.2.4 The HVO Attack against the Village of Grbavica in Central Bosnia on 7 September 1993
V.3.3 The Relationship between the Notions of Military Objective and Military Advantage: Possible Variations in the Lists of Military Objectives according to the Political-Strategic Goals of the Military Campaigns of the Parties to the Conflict
V.4 Practical Aspects of the Lawfulness Analysis of Artillery and Sniper Attacks
V.4.1 The JNA Attack against the Old City of Dubrovnik on 6 December 1991
V.4.2 The SRK Attack against a Well in the C-5 Area of the Dobrinja Neighbourhood in Sarajevo on 12 July 1993
V.4.3 The SRK Attack against the Markale Market in Sarajevo on 5 February 1994
V.4.4 The SRK Sniper Attack against Witness E in Sarajevo
V.4.5 The SRK Sniper Attack against Mejra Jusović in Sarajevo on 24 June 1993
Chapter VI Practical Issues concerning the Application of the Proportionality Rule
VI.1 The Proportionality Rule: Incidental Civilian Damage versus Anticipated Military Advantage
VI.1.1 The Growing Emphasis on the Application of the Proportionality Rule versus the Continuous Reluctance to Investigate and Prosecute its Serious Violations
VI.1.1.1 The ICTY OTP Analysis of the NATO Attack against the Leskovac Railway Bridge on 12 April 1999 as a Paradigmatic Example of the Reluctance to Investigate and Prosecute Serious Violations of the Proportionality Rule
VI.1.2 The Principle of Economy in the Use of Force and the Proportionality Rule
VI.1.3 Assessment of Incidental Civilian Damage
VI.1.3.1 General Questions
VI.1.3.2 Should Long Term Indirect Damage Be Counted as Civilian Incidental Damage?
VI.1.3.3 Should Damage Derived from Unlawful Enemy Actions Be Counted as Incidental Civilian Damage?
VI.2 Geographical and Temporal Context in which the Proportionality Rule Must Be Applied
VI.2.1 The Proportionality Analysis at the Operational Level. Special Reference to the HVO Attack against Donja Večeriska in Central Bosnia on 16 April 1993 and the JNA Attack against the Old Town of Dubrovnik on 6 December 1991
VI.2.2 The Proportionality Analysis at the Tactical Level
VI.2.2.1 The 1 June 1993 SRK Attack against a Parking Lot Located in the Area of Dobrinja in Sarajevo where a Football Tournament Was Underway
VI.2.3 The Proportionality Analysis at the Strategic Level. Special Reference to the ICTY OTP's Report on the NATO Campaign in Kosovo in 1999
Chapter VII Omissions. Special Reference to the Responsibility of Military Commanders
Chapter VIII Preparatory Acts, Attempt and Completion of the Crime
Chapter IX Modes of Liability
Chapter X Subjective Elements
X.1 First Approach to the Subjective Elements of the Crimes in the RS
X.1.1 Dolus as the General Subjective Element
X.1.2 Criminal Responsibility Arising from Negligence: The Criminal Liability of Military Commanders for Failure to Prevent or Punish
X.1.3 General Subjective Element and Material Contextual Elements
X.1.4 The Treatment of Mistake of Fact in the RS
X.2 The Subjective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks
X.2.1 Attacks Directed at Civilians or Civilian Objects
X.2.1.1 The Meaning of the Expression "Intentionally"
X.2.1.2 The Different Treatment of Reckless Conduct in the RS and in the ICTY's Case Law
X.2.1.3 Practical Analysis of the Determination of the Subjective Elements in Land Operations Supported by Artillery Fire
X.2.2 Disproportionate Attacks
X.2.2.1 The Military Commander's Application of the Proportionality Rule on the basis of the Expected Incidental Civilian Damage and the Concrete and Direct Overall Military Advantage Anticipated
X.2.2.2 The Different Treatment of the Reckless Launch of a Disproportionate Attack in the RS and in the ICTY's Case Law
Chapter XI Grounds for Justification and the Scope of Self-Defence in Combat Situations
Chapter XII Grounds for Excuse. Special Reference to Superior Orders
Chapter XIII Objective Requisites for Punishment, and Objective Requisites to Proceed
XIII.1 Objective Requisites for Punishment and the International or Non-International Character of the Armed Conflict
XIII.2 Exemptions from Punishment. Special Attention to the Attempt to Turn Military Necessity into a Ground for Exemption from Punishment
XIII.3 Jurisdictional Contextual Elements relating to the Gravity Threshold as Objective Requisites to Proceed
Chapter XIV Final Remarks
Table of Cases
Bibliography

Citation preview

Unlawful Attacks in Combat Situations

International Humanitarian Law Series VOLUME 18 Editors-in-Chief Professor Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor Antonio Cassese Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser Professor Leslie C. Green H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare –

questions of application of the various legal regimes for the conduct of armed conflict

–

issues relating to the implementation of International Humanitarian Law obligations

–

national and international approaches to the enforcement of the law and

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the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law.

The titles in this series are listed at the end of this volume.

Unlawful Attacks in Combat Situations From the ICTY’s Case Law to the Rome Statute

by

Héctor Olásolo

LEIDEN • BOSTON 2008

Printed on acid-free paper. A C.I.P. record for this book is available from the Library of Congress.

:      ©  by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center,  Rosewood Drive, Suite , Danvers MA , USA. Fees are subject to change. This is a revised and updated version of Ataques contra Personas y Bienes Civiles y Ataques Desproporcionados ©  Tirant lo Blanch, Valencia, Spain The views presented herein are those of the author alone and do not necessarily reflect the views of the ICC, the ICTY the United Nations in General or the Spanish Government. Cover photograph © ANP, The Netherlands Printed and bound in The Netherlands.

To my parents and siblings, and to those who have made this book book possible, particularly Judge Sylvia Steiner, Aleksandra Bojovic, Mathew Heaphy, Enrique CarneroRojo, Sonia Robla, Edwin Koopman, Julián Guerrero, Julieta Solano and Teresa Gálvez.

Héctor Olásolo - 978-90-47-43159-6

The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy –Martin Luther King Jr.

Héctor Olásolo - 978-90-47-43159-6

Table of Contents

Foreword Chapter I

xiii Introduction



Chapter II Principle of Distinction in the Conduct of Hostilities II. First Approach to the Principle of Distinction in International Humanitarian Law II. The Principle of Distinction in International Humanitarian Law before the Additional Protocols to the Geneva Conventions II. The Principle of Distinction in the AP I applicable to International Armed Conflicts II. The Principle of Distinction in the AP II applicable to Non-International Armed Conflicts II. Evolution of the Principle of Distinction after the Additional Protocols to the Geneva Conventions Chapter III Material Contextual Elements III. The Objective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks. The Distiction between Material Contextual Elements, Jurisdictional Contextual Elements and Specific Objective Elements III. The Existence of an Armed Conflict and Link between the Forbidden Behaviour and the Armed Conflict III.. The Notion of Armed Conflict III... Introduction to the Problems Posed by the Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions, including Those Caused by Acts of Terrorism

      

  



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viii

Table of Contents III... III...

III...

III... III.. III.. III. III. Chapter IV IV.

From the Geneva Conventions to the ICTY’s Case Law: The Evolution of the Notion of Armed Conflict in International Humanitarian Law The Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions Caused by Repeated Acts of Terrorism in light of the ICTY’s Case Law Overcoming the Vagueness Introduced by the ICTY’s Case Law on the Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions Resulting from Repeated Acts of Terrorism The Notion of Armed Conflict in the RS Geographical and Temporal Scope of an Armed Conflict Link between the Forbidden Behaviour and the Armed Conflict International or Non-International Character of the Armed Conflict The Protected Status of the Persons or Objects Subject to the Forbidden Behaviour

Specific Objective Elements Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the ICTY’s Case Law IV.. Non-Applicability of the Crimes Defined in Art.  ICTYS to Behaviours Taking Place during the Conduct of Hostilities IV.. Limited Scope of Application of the Crimes Expressly Provided for in Art.  ICTYS during the Conduct of Hostilities. Special Reference to the Crimes of Attacking Undefended Localities and Wanton Destruction Not Justified by Military Necessity, and to the Problems Posed by the Joint Evaluation of the Damage Occasioned in the Different Phases of the Same Military Operation IV.. The Residual Clause Provided for in Art.  ICTYS as the Core Element of the Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the ICTY’s Case Law. Special Reference to the Lack of an Autonomous Treatment of the Disproportionate Attacks





        





Héctor Olásolo - 978-90-47-43159-6

Table of Contents IV. IV..

IV.. IV..

IV.. IV... IV... IV... Chapter V V. V. V.. V.. V... V... V... V..

Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the RS The Autonomous Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in International Armed Conflicts. Special Reference to the Autonomous Treatment of Disproportionate Attacks Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in Non-International Armed Conflicts The Relationship between Attacks Directed at Civilians or Civilian Objects and Disproportionate Attacks, and Those Other Crimes Consisting of the Damage Brought about by such Attacks. Special Reference to the War Crime of Destruction of Enemy’s Property not Justified by Imperative Military Necessity and the Need for a Separate Assessment of the Damage Occasioned in Each Phase of a Military Operation Other Serious Violations of International Humanitarian Law Committed during Conduct of Hostilities Included in the RS Crimes Committed against Persons Entitled to Special Protection Crimes on the Use of Prohibited Methods of Warfare Crimes on the Use of Prohibited Weapons or Munitions Practical Issues on the Application of the Notion of Military Objective Preliminary Remarks Persons who Are Military Objectives Persons Entitled to Combatant Status Persons without Combatant Status who Take Active Part in the Hostilities Active Participation in the Hostilities versus Actions Taken in Self-defence Active Participation versus Indirect Participation in the Hostilities. Special Reference to Enforced Active Participation Conclusion of Active Participation in the Hostilities Presumption of Civilian Status

ix



 

             

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x

Table of Contents V.. V.. V. V.. V.. V... V... V... V... V..

V. V.. V.. V.. V.. V.. Chapter VI VI. VI..

Equating the Existence of a Weak Defence with the Non-existence of Defence The Notion of Civilian Population Objects which Are Military Objectives Categories of Objects Included within the Notion of Military Objective Cases on the Application of the Notion of Military Objective in relation to Objects: Particular Attention to Aerial Attacks The NATO Attack against the SRT in Belgrade on  April  The SRK Attack against the Oslobodilaca Sarajeva Street and a Nearby Park on  February  The HVO Attack against the Village of Gačice in Central Bosnia on  April  The HVO Attack against the Village of Grbavica in Central Bosnia on  September  The Relationship between the Notions of Military Objective and Military Advantage: Possible Variations in the Lists of Military Objectives according to the Political-Strategic Goals of the Military Campaigns of the Parties to the Conflict Practical Aspects of the Lawfulness Analysis of Artillery and Sniper Attacks The JNA Attack against the Old City of Dubrovnik on  December  The SRK Attack against a Well in the C- Area of the Dobrinja Neighbourhood in Sarajevo on  July  The SRK Attack against the Markale Market in Sarajevo on  February  The SRK Sniper Attack against Witness E in Sarajevo The SRK Sniper Attack against Mejra Jusović in Sarajevo on  June  Practical Issues concerning the Application of the Proportionality Rule The Proportionality Rule: Incidental Civilian Damage versus Anticipated Military Advantage The Growing Emphasis on the Application of the Proportionality Rule versus the Continuous Reluctance to Investigate and Prosecute its Serious Violations

        

        



Héctor Olásolo - 978-90-47-43159-6

Table of Contents VI...

VI.. VI.. VI... VI... VI... VI. VI..

VI.. VI... VI..

The ICTY OTP Analysis of the NATO Attack against the Leskovac Railway Bridge on  April  as a Paradigmatic Example of the Reluctance to Investigate and Prosecute Serious Violations of the Proportionality Rule The Principle of Economy in the Use of Force and the Proportionality Rule Assessment of Incidental Civilian Damage General Questions Should Long Term Indirect Damage Be Counted as Civilian Incidental Damage? Should Damage Derived from Unlawful Enemy Actions Be Counted as Incidental Civilian Damage? Geographical and Temporal Context in which the Proportionality Rule Must Be Applied The Proportionality Analysis at the Operational Level. Special Reference to the HVO Attack against Donja Večeriska in Central Bosnia on  April  and the JNA Attack against the Old Town of Dubrovnik on  December  The Proportionality Analysis at the Tactical Level The  June  SRK Attack against a Parking Lot Located in the Area of Dobrinja in Sarajevo where a Football Tournament Was Underway The Proportionality Analysis at the Strategic Level. Special Reference to the ICTY OTP’s Report on the NATO Campaign in Kosovo in 

Chapter VII Omissions. Special Reference to the Responsibility of Military Commanders Chapter VIII

Preparatory Acts, Attempt and Completion of the Crime

Chapter IX Modes of Liability Chapter X X.

xi

      

      

Subjective Elements First Approach to the Subjective Elements of the Crimes in the RS X.. Dolus as the General Subjective Element X.. Criminal Responsibility Arising from Negligence: The Criminal Liability of Military Commanders for Failure to Prevent or Punish

   

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xii

Table of Contents X.. X.. X. X.. X... X... X... X.. X...

X... Chapter XI Chapter XII Chapter XIII XIII. XIII. XIII. Chapter XIV

General Subjective Element and Material Contextual Elements The Treatment of Mistake of Fact in the RS The Subjective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks Attacks Directed at Civilians or Civilian Objects The Meaning of the Expression “Intentionally” The Different Treatment of Reckless Conduct in the RS and in the ICTY’s Case Law Practical Analysis of the Determination of the Subjective Elements in Land Operations Supported by Artillery Fire Disproportionate Attacks The Military Commander’s Application of the Proportionality Rule on the basis of the Expected Incidental Civilian Damage and the Concrete and Direct Overall Military Advantage Anticipated The Different Treatment of the Reckless Launch of a Disproportionate Attack in the RS and in the ICTY’s Case Law

       

 

Grounds for Justification and the Scope of SelfDefence in Combat Situations



Grounds for Excuse. Special Reference to Superior Orders



Objective Requisites for Punishment, and Objective Requisites to Proceed Objective Requisites for Punishment and the International or Non-International Character of the Armed Conflict Exemptions from Punishment. Special Attention to the Attempt to Turn Military Necessity into a Ground for Exemption from Punishment Jurisdictional Contextual Elements relating to the Gravity Threshold as Objective Requisites to Proceed Final Remarks

    

Table of Cases



Bibliography



Héctor Olásolo - 978-90-47-43159-6

Foreword

I am delighted to give a short introduction to the new book by Héctor Olásolo written in the English language. It is a revised and updated version of the work published by Tirant lo Blanch and the Spanish Red Cross in  entitled “Ataques contra Personas y Bienes Civiles y Ataques Desproporcionados.” Héctor Olásolo has long been working on issues related to international criminal law. As a member of the Spanish Delegation to the PREPCOM of the International Criminal Court in early , Héctor participated in the Working Group on Rules of Procedure and Evidence and made an important contribution to the drafting of those Rules. Considering that Héctor was only  years old at the time, his achievements were notable. In August , shortly after the completion of PREPCOM, Héctor began at the International Criminal Tribunal for the former Yugoslavia (ICTY). He worked there with great enthusiasm and diligence, initially at the Legal Advisory Section and subsequently at the Appeals Section of the Office of the Prosecutor. I first met Héctor shortly after I commenced my term as a Judge at the International Criminal Court in . He had been recently hired to work with my colleague Judge Sylvia Steiner in the Pre-Trial Division. Since then, I have had the opportunity to follow his diligent work on substantial and procedural issues concerning international criminal law. After many years of study at the Universities of Salamanca, Columbia, Harvard and Bologna (where he earned his Bachelors, Masters and PhD degrees), he was also appointed senior honorary lecturer at the department of criminal law and criminal procedure of the University of Utrecht in . Hector thus combines years of practical experience in proceedings before international criminal tribunals with a deep theoretical knowledge of international criminal law. This, along with his extensive teaching experience in PhD and LL.M. programmes (Utrecht, Salamanca, Alcalá de Henares and Andalucía Universities), and his work as a fellow at the Human Rights Clinic of the Institute of Human Rights at Columbia University, as well as in a number of training programmes for police, prosecutors, judges and defence lawyers in Spain, Canada, the Netherlands and Latin America, has resulted in an extensive list of excellent publications in both English and Spanish.

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xiv

Erkki Kourula

This book, entitled “Unlawful Attacks in Combat Operations”, constitutes Héctor’s latest publication, in which he brings together the fruits of his experience. The book sheds light on different factors to be applied when analysing the lawfulness of military operations in combat situations. Special emphasis is given to the deterrent effect of the unlawful attacks’ provisions contained in the Rome Statute. These will require the application of appropriate standards by the ICC, and should compel de facto military commanders to take into account the deaths, injuries and damage caused to civilians or civilian objects, along with the tactical and logistical costs, in deciding upon the appropriateness of an attack. The book starts with an analysis on how the prohibition of attacks on civilians or civilian objects, as well as the issue of disproportionate attacks. These constitute core components of the principle of distinction in the conduct of hostilities in international humanitarian law. It then focuses on the objective contextual elements of the war crime of unlawful attacks, and in particular on the distinction between non-international armed conflicts and situations of internal disturbances and tensions caused by repeated acts of terrorism. The second part of the book deals with the specific objective elements of the war crimes of launching attacks against civilians or civilian objects and launching disproportionate attacks. At the centre of the analysis are those issues related to the definition of military objective (which is used to define what persons and objects have civilian status) and the rule of proportionality. The analysis involves a comparative study of the Rome Statute and ICTY case law, with consideration given to issues as complex as the scope of self-defence by non-combatants, the practice of equating a weak defence to the absence of defence, the civilian or military status of dual-use infrastructure, the determination of whether indirect long-term damage (including damage to economic infrastructure and the environment) must be taken into consideration when applying the rule of proportionality, and the determination of whether damage caused to civilians or civilian objects as a result of violations of international humanitarian law must be regarded as incidental civilian damage. The last part of the book focuses on the subjective elements of the war crime of launching attacks against civilians or civilian objects and disproportionate attacks. Moreover, in Chapters VII to XIII of the book, the general principles of criminal law provided for in Part III of the Rome Statute are applied to these war crimes. Of course, not all comments and recommendations made by Hector in the book may reflect the approach of the various Chambers of the International Criminal Court. However, it will, undoubtedly, be a source of research and reflection, which in and of itself underlines the importance of the ideas presented. Moreover, the book highlights several areas for potential reforms, which deserve to be examined in the future by the Assembly of States Parties.

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Foreword

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The author is to be congratulated on the book. I highly recommend this important contribution and believe that it will serve as a source of inspiration and interpretation to both academics and practitioners in the field of international criminal law. I trust also that it will provide a valuable reference to all those who engage in the analysis of the lawfulness of military operations in combat situations. The Hague, Erkki Kourula Judge International Criminal Court

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List of Abbreviations

ABiH

Army of the Republic of Bosnia and Herzegovina (also referred to as Bosnian-Muslim Armed Forces)

AP I

First Additional Protocol to the Geneva Conventions

AP II

Second Additional Protocol to the Geneva Conventions

art./arts.

Article/s

BiH

Bosnia and Herzegovina

EC

Elements of the Crimes

ed./eds.

Editor/s

et al

And others

et seq

And the following

FAR

Rwandan Armed Forces

FRY

Federal Republic of Yugoslavia

GC I

First Geneva Convention

GC II

Second Geneva Convention

GC III

Third Geneva Convention

GC IV

Fourth Geneva Convention

HVO

Croatian Defence Council (also referred to as BosnianCroat Armed Forces)

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xviii List of Abbreviations IACHR

Inter-American Commission on Human Rights

ICC

International Criminal Court

ICJ

International Court of Justice

ICRC

International Committee of the Red Cross

ICTR

International Criminal Tribunal for Rwanda

ICTRS

Statute of the International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the former Yugoslavia

ICTY OTP

Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia

ICTYS

Statute of the International Criminal Tribunal for the former Yugoslavia

IMT

International Military Tribunal (also referred to as Nuremberg Tribunal)

IMTFE

International Military Tribunal for the Far East (also referred to as Tokyo Tribunal)

KLA

Kosovo Liberation Army

JNA

Former SFRY Armed Forces (also referred to as Yugoslav People’s Army)

mm

Millimetres

Mtbr

Motorized Brigade

MUP

Special Forces of Serb Ministry of Interior

NATO

North Atlantic Treaty Organization

No.

Number

p/pp

Page/s

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List of Abbreviations

xix

RPE

Rules of Procedure and Evidence

RPF

Rwandan Patriotic Front

RS

Rome Statute

SFRY

Socialist Federal Republic of Yugoslavia

SpCC

Spanish Criminal Code

SRT

Serb Radio Television

SRK

Sarajevo Romanija Korps (part of the VRS)

UN

United Nations

UNESCO

United Nations Educational, Scientific and Cultural Organization

UNMO

United Nations Military Observer

UNPROFOR

United Nations Protection Force

US

United States of America

VJ

Armed Forces of the Federal Republic of Yugoslavia

VRS

Armed Forces of the Republic of Srpska (also referred to as Bosnian-Serb Armed Forces)

WW II

Second World War

Héctor Olásolo - 978-90-47-43159-6

Chapter I Introduction

Death and destruction are unavoidable effects of war and combat situations. The fact that people have been killed or injured or property has been destroyed should not cause anyone to rush to the conclusion that war crimes have been committed. On the contrary, before reaching such a conclusion, it is necessary to carefully analyze the conduct of the person causing death, injury or damage in order to ascertain whether such conduct is consistent with international humanitarian law. International humanitarian law, also known as the international law of armed conflict or jus in bello, is comprised of a set of rules that States’ armed forces and organized armed groups must follow during any armed conflict in order to limit the damage and suffering caused by them. It constitutes a second level of protection that only comes into play when the jus ad bellum – which prevents States, unless acting in individual or collective self-defence or within the framework of the collective security system provided for in the UN Charter, from resorting to armed force to solve their disputes – cannot prevent the commencement of an armed conflict. International humanitarian law has two main components. The first one, traditionally referred to as “Geneva Law”, is comprised of the legal regime for the protection of victims of armed conflict, in particular those who reside in areas under the control of a party to the conflict to which they are not affiliated. The second, referred to as “Hague Law”, deals with the way in which the hostilities must be conducted and regulates the use of means and methods of warfare. International humanitarian law is one of the areas of international public law which has been codified more broadly. Before World War I, an important part of the legal regime concerning means and methods of combat had already been codified in the Hague Conventions and its Annexed Regulations. Subsequently, the so-called Geneva Law has been codified in the four Geneva Conventions 

Particularly relevant for the purpose of this book are: (i) the Convention with respect to the Laws and Customs of War on Land (Hague Convention II) and its Annexed Regulations respecting the Laws and Customs of War on Land of  July  and (ii) the Convention respecting the Laws and Customs of War on Land (Hague Convention IV) and its Annexed Regulations respecting the Laws and Customs of War on Land of  October .

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

Chapter I

of  and its two Additional Protocols of  – although the Additional Protocols also complement the Hague Law insofar as they elaborate on the legal regime relating to the principle of distinction, including the prohibition against attacks which do not aim at military objectives or are expected to cause excessive collateral damage. States have traditionally shown a stronger interest in the development of Geneva Law because they have less difficulty in accepting limitations on the manner in which persons who have fallen under their control must be treated than in accepting limitations on the manner in which they can utilize their military power to defeat the enemy. Likewise, States have always been more inclined to develop the legal regime applicable to international armed conflicts, i.e. conflicts among States, than to elaborate on the legal regime applicable to noninternational armed conflicts. The reason behind this approach is that States have lesser concerns in accepting limitations on the mechanisms to react against external threats than in accepting limitations on the mechanisms to deal with internal threats arising in their own territory. International humanitarian law is binding on all parties to an armed conflict regardless of the lawfulness or unlawfulness of the resort to armed violence by the party which initiated the conflict. Indeed, the claim that all military operations of the party which starts an aggressive war are unlawful was rejected by the Tribunals established after WW II as shown by the hostage case and the justice case. By the same token, the claim that all military operations of the Bosnian-Serbs in the 







Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Convention I) of  August ; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces (Convention II) of  August ; Convention relative to the Treatment of Prisoners of War (Convention III) of  August  and Convention relative to the Protection of Civilian Persons in Time of War (Convention IV) of  August . Protocol Additional to the Geneva Conventions of  August , and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of  June  and Protocol Additional to the Geneva Conventions of  August , and relating to Victims of Non-International Armed Conflicts (Protocol II) of  June . See The Hostage Case, United States v. Wilhelm List et al.,  Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. , pp.  et seq (), also printed in  United Nations War Crimes Commission, Law Reports of Trial of War Criminals , - () [hereinafter the Hostage Case], where it is stated that the lawfulness or unlawfulness of an armed conflict does not have any impact on the rules of international law that regulate the relationships between the belligerents and between the latter and neutral States. See the Justice Case, United States v. Alstotter et al.,  Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. , pp.  et seq () [hereinafter the Justice Case].

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Introduction



armed conflict that occurred in Bosnia and Herzegovina between  and  are unlawful because they waged an aggressive war cannot be accepted. For international humanitarian law, the guilt or innocence of the parties to an armed conflict in the initiation of such conflict is irrelevant. Thus, the alleged violations of international humanitarian law must only be analyzed in light of the standards embraced by it. The principle that all parties to an armed conflict are equal before international humanitarian law is closely related to its ultimate goal, which consists of limiting as much as possible the death, suffering and destruction caused by armed conflicts. As the armed forces of a party to an armed conflict which has started an aggressive war have the duty to conduct themselves in accordance with, and enjoy the protection of, international humanitarian law, those armed forces undertaking military operations under the UN auspices are also bound by, and enjoy the protection of, international humanitarian law. This is the result of the humanitarian considerations that are at the root of the international law of armed conflict. These considerations make the existence of an armed conflict the only requisite for the application of international humanitarian law. Therefore, the determination of which party to an armed conflict resorted first to armed violence, and the reasons why it so did, play no role in analyzing whether the parties to the conflict conduct themselves in accordance with international humanitarian law during the conflict. Once an armed conflict begins, the parties to the conflict can at any time seize control over the enemy’s territory. Moreover, the members of their armed forces have the right to carry out acts of violence against those persons and objects affiliated to the adverse party that are military objectives (combatants, non-combatants who actively participate in the hostilities and some objects and infrastructures). Accordingly, no crime is committed by attacking first. Furthermore, enemy combatants – and non-combatants who actively participate in the hostilities – are lawful targets  hours per day regardless of whether or not they are armed at the time they are attacked. Thus, the main difference between combat situations in an armed conflict and policing in peace time is that in the former,





See inter alia  L. Oppenheim’s International Law - (H. Lauterpacht ed., th ed. ); D.W. Bowett, United Nations Forces - (Praeger ) and L.C. Green, The Contemporary Law of Armed Conflict  (nd ed. ) [hereinafter Green, Armed Conflict ]. As Green (Green, Armed Conflict ) has pointed out, since the UN Charter entered into force, some commentators have argued that: (i) armed conflict which is contrary to the UN Charter cannot be lawful and (ii) military operations carried out under the UN auspices have only an executive or police character and, thus, cannot stricto sensu amount to an armed conflict. However, according to Green, international humanitarian law is applicable to both types of situations and all parties to the conflict are equal before it.

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

Chapter I

combatants are entitled to shoot before making any inquiry and to continue shooting until the enemy is put hors de combat. Not every violation of international humanitarian law gives rise to individual criminal responsibility. The first known limitations on the way in which hostilities can be conducted date back to the Chinese warrior Sun Tzu in the VI century BC, whereas the first comprehensive treatment of the notion of war crimes can only be found in the Indian Code of Manu written in  BC, which was subsequently incorporated into Roman Law. Only the gravest violations of international humanitarian law, commonly referred to as war crimes, give rise to the individual criminal responsibility of the persons who committed them and contributed to their commission. Any other breach of international humanitarian law gives rise, at most, to administrative or disciplinary liability. Moreover, in many instances, such breaches only trigger the obligation of the relevant States to take the necessary legislative measures to put an end to them. The scope of war crimes is far broader than what appears prima facie because it includes grave breaches of the legal regimes for the protection of the victims of armed conflicts and the lawful use of means and methods of warfare. This book  



R. Ratner, Crímenes de Guerra, Clases de, Crímenes de Guerra. Lo que Debemos Saber  (Gutman & Rieff eds., Debates ). See the grave breaches scheme of the Geneva Conventions and AP I provided for in arts.  GC I,  GC II,  GC III,  GC IV and  AP I. However, due to the traditional reticence of States to define those behaviours which most seriously undermine the values of the international community by means of international treaties, international customary law has traditionally played a particularly relevant role as a source of law in international criminal law. Therefore, unlike in a number of national criminal justice systems where customary law is not a source of criminal law, one has to analyze international customary law to ascertain the range of behaviours which gives rise to criminal responsibility under international criminal law. See on this matter the following decisions of the Appeals Chamber of the Ad hoc Tribunals: Prosecutor v. Duško Tadić, Case No. IT---AR, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction ¶ , , ,  and  (Oct. , ) [Tadić Jurisdiction Decision]; Prosecutor v. Pavle Strugar, Case No. IT---AR, Decision on Interlocutory Appeal ¶ ,  and  (Nov. , ) [hereinafter Strugar Interlocutory Decision]; Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić, Case No. IT---AR., Decision on Interlocutory Appeal ¶  (May , ) [hereinafter Ojdanić Decision] and Prosecutor v. Enver Hadžihasanović, Mehmed Alagić and Amir Kubura, Case No. IT---AR, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility ¶  ( July , ) [hereinafter Hadžihasanović Case]. Nevertheless, some criminal justice systems, such as the Spanish one, have gone further by criminalizing the commission of, or the issue of an order to commit, any violation of conventional international humanitarian law. On the scope of art.  of the Spanish Criminal Code, see Pignatelli y F. Meca, La Sanción de los Crímenes de Guerra en el Derecho Español. Consideraciones sobre el Capítulo III del Título XXIV del Libro II del Código Penal - (Ministerio de Defensa ) [hereinafter Pignatelli y Meca, La Sanción].

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Introduction



focuses on that unlawful conduct which takes place at the time in which international humanitarian law is the most vulnerable, i.e. in combat situations where combatants face the enemy with limited resources and bear a high risk of getting killed. This choice of topic is also justified by the growing public outcry and increasing press attention given to collateral civilian damages resulting from military operations. Moreover, the limited case law on the matter as a result of the traditional reluctance to investigate and prosecute conduct of hostilities crimes grants further support to this choice. Military operations in combat situations can be considered unlawful based on either general grounds or specific grounds. Among the latter, one finds the use of means and methods of combat which are expressly prohibited by international humanitarian law – including the use of asphyxiating gases, the declaration that no quarter will be given or the improper use of a flag of truce or flags or distinctive emblems internationally recognized as those of the UN, the ICRC or those included in the Geneva Conventions. Save for these specific cases, the key factor in determining the lawfulness of an attack is whether it has been conducted in full respect of the rules which elaborate on the principle of distinction between military objectives and civilian persons and objects. Those attacks launched against military objectives – no matter whether the target consists of objects, members of the adverse party’s armed forces or civilians who actively participate in the hostilities – which are not expected to cause excessive incidental civilian damage are lawful. However, the same cannot be said of the attacks directed against civilians or civilian objects, indiscriminate attacks (which do not distinguish between military objectives and civilians or civilian objects) and attacks launched against military objectives that are expected to cause excessive incidental civilian damage (hereinafter referred to as “disproportionate attacks”). The core of this book is comprised of the analysis of the RS penal norms which criminalize the attacks directed against the civilian population as such or against individual civilians who are not actively participating in hostilities, the attacks directed against civilian objects and disproportionate attacks. However, 

   

Rodríguez-Villasante y J.L. Prieto ed., Limitaciones al Empleo de Medios y Métodos de Combate: Armas Convencionales Excesivamente Dañinas o de Efectos Indiscriminados, Derecho Internacional Humanitario  (Rodríguez-Villasante y J.L. Prieto ed., Cruz Roja Española/Tirant lo Blanch ); F. Alonso Pérez, La Protección de la Población Civil, Derecho International Humanitario - (Rodríguez-Villasante & J.L. Prieto eds., Tirant lo Blanch/Cruz Roja Española ). Rome Statute of the International Criminal Court, U.N. Doc. A/Conf. / () (United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court, July , ) [hereinafter RS]. Art. ()(b)(i) and ()(e)(i) RS. At art. ()(b)(ii) RS. At art. ()(b)(iv) RS.

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

Chapter I

this will not preclude the study, where necessary, of those other RS penal norms which criminalize the attacks affected by one of the above-mentioned specific grounds causing a military operation to become unlawful. Furthermore, the contextual elements of the war crimes provided for in art.  RS, insofar as they are applicable to unlawful attacks, will also be analyzed. Additionally, the general principles of criminal law embraced by arts.  to  RS will also be dealt with in order to properly analyze, in terms of scope and content, whether individual criminal responsibility arises from cases such as the NATO forces’ bombardment of the premises of the Serb Radio Television in Belgrade on  April . Moreover, the case law of the ICTY is considered throughout this book as it is the only international judicial body that has investigated and prosecuted crimes committed during the conduct of hostilities since WW II. There are several reasons to justify the adoption of this approach. Firstly, the RS is the international treaty which, to date, deals most comprehensively with war crimes committed in international and non-international armed conflicts. Secondly, the principle of complementarity of the ICC vis-à-vis national jurisdictions has made the RS a necessary reference for the national implementation of war crimes definitions included in the RS. Thirdly, at a time in which the press and public opinion are paying increasing attention to the manner in which hostilities are conducted, a practical analysis of the treatment of unlawful attacks by international jurisdictional bodies is of the utmost relevance. Finally, the ICTY’s case law, insofar as it has interpreted arts.  to  AP I and  AP II and has looked at their respective development by international customary law, constitutes, according to art. ()(b) RS, a relevant tool for the interpretation of the RS penal norms as long as it is consistent with internationally recognized human rights standards. Strengthening the deterrent effect of the RS penal norms is a key consideration in the overall analysis carried out in this book. The applicable standards must take into account the special circumstances in which military operations in combat situations are carried out in order to avoid that the ultimate addressees of 





Art.  RS provides in its first paragraph for the principle of non-retroactivity of criminal norms, so that in the criminal justice system of the RS no criminal responsibility may arise for conduct previous to the entry into force of the RS on  July . Hence, according to the RS, no criminal liability can arise from the NATO bombardment of the RTS in Belgrade because it took place on  April . According to the principle of complementarity of the ICC, the Court’s activities are subject to the inaction, the unwillingness or the unavailability of national jurisdictions (arts.  and  RS). See on this principle, inter alia, C. Escobar Hernández, La Progresiva Institucionalización de la Jurisdicción Penal Internacional in Crimen Internacional y Jurisdicción Universal. El Caso Pinochet - (M. García Arán & D. López Garrido eds., Tirant lo Blanch ); H. Olásolo, Reflexiones sobre el Principio de Complementariedad en el Estatuto de Roma,  Revista Española de Derecho Militar - ( July-Dec. ) [hereinafter Olásolo, Reflexiones]. Art. () RS.

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Introduction



the RS penal norms – the members of the armed forces of the parties to an armed conflict – reach the conclusion that the applicable standards are unreasonably high and are only the result of their drafters’ lack of knowledge on how hostilities are conducted. Otherwise, one runs the risk that – in spite of the description of the applicable standards in the rules of engagement given by each party to the conflict to the members of their armed forces serving on the front lines – such standards will become dead letter and the RS penal norms criminalizing their grave breaches will no longer have any deterrent effect. In the author’s view, this would be the ultimate result of jumping to the conclusion that military operations are unlawful because civilians are killed or civilian objects are destroyed during such operations. In this regard, the practice of considering as crimes against humanity – or even as ordinary crimes – those attacks which, despite being fully respectful of international humanitarian law, cause civilian deaths or damage is not only an infringement of the principles that regulate the conduct of hostilities, but it also endorses standards which cannot be complied with and, thus, eliminate any incentive to act according to them. Unfortunately, these considerations have not always been taken into account by the ICTY’s case law. The Kordić case constitutes a paradigmatic example of how the analysis of the lawfulness of an attack against a village can be influenced by the broader persecutory context in which such an attack has allegedly taken place. According to the Trial Chamber, the attacks referred to in the indictment were carried out against the backdrop of the ethnic cleansing campaign undertaken by the HVO against the Bosnian-Muslim population residing in the territory of the self-proclaimed Croatian Community of Herzeg Bosna (and particularly in Central Bosnia) from November  to March . This ethnic cleansing campaign was, for the most part, comprised of the burning and pillage of houses, the arrest and detention of all men of military age and the forcible transfer of the rest of the civilian population to the territory controlled by the ABiH. The goal of the campaign was to ensure the Bosnian-Croatian control over the territory of the municipalities of the Croatian Community of Herzeg Bosna. 

 

As L.C. Green, Comment, Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies  (A. Wall ed. ) [hereinafter Green, Comment] has pointed: “A reasonable man is the man on the downtown bus; that is not the reasonable soldier. One of the reasons that I don’t like civilian judges trying military offences is that they don’t know the circumstances that were prevailing at the time that led to the soldier’s actions. The question of what is reasonable in times of conflict depends on what is reasonable in the eyes of the man who is involved in that conflict. That would only be accepted by those who have similar background knowledge, not by one who has been securely moved up in some Inn of Court”. Prosecutor v. Dario Kordić and Mario Cerkez, Case No. IT--/-T, Judgement ¶  (Feb. , ) [hereinafter Kordić Judgement]. Id. at ¶ .

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

Chapter I

The Trial Chamber drew this conclusion from the following elements. Firstly, it analyzed how the HVO had seized control over the governmental institutions in the municipalities of Central Bosnia since May . According to the Chamber, this was fuelled by problems arising between Bosnian Croats and Bosnian-Muslims over the distribution of those weapons found in the former JNA’s barracks and by the alteration of the demographic balance in Central Bosnia as a result of the arrival of thousands of Bosnian-Muslim refugees who had fled the VJ advance. Secondly, the Chamber found that, once the negotiations on the Vance-Owen peace plan – which was based on a division of BiH that, to a great extent, met the Bosnian-Croatian demands – failed, the HVO tried to forcibly implement such a peace plan through an ethnic cleansing campaign aimed at subjugating the Bosnian-Muslim population. This campaign started in the municipality of Gornji Vakuf and became particularly harsh beginning in January  in the municipalities of the Lašva Valley. The Trial Chamber found that numerous civilians were expelled from their apartments, the Koranic rituals were forbidden and fire weapons were used to disperse the participants in several demonstrations in several localities in the municipality of Busovača. The Trial Chamber also found that in January , numerous civilians were arrested, Bosnian-Muslim shops were subject to pillage, Bosnian-Muslim businesses were damaged or destroyed and a number of civilians were expelled from their apartments in the municipality of Kiseljak. According to the Chamber, similar events took place in the municipality of Vitez, and in the municipality of Novi Travnik Bosnian-Muslims were also subjected to threats, physical violence and robbery. The Chamber analyzed against this backdrop the attacks launched by the HVO against  villages of Central Bosnia (Busovača, Merdani, Vitez, Stari Vitez, Večeriska-Donja Večeriska, Ahmići, Nadioci, Pirići, Šantići, Lončari, Putis, Očehnići, Rotilj, Zenica, Novi Travnik and Stupni Do) between January and October . The influence of this context on the Chamber’s analysis was such that it did not even take a close look at whether the elements of the crimes of directing attacks against civilians or civilian objects had been met. In this regard, it is noteworthy that the Chamber did not analyze the military or civilian nature of the targets of the attacks. Moreover, the Chamber, disregarding the approach previously taken by the Trial Chamber in the Blaškić case, did not distinguish between the first wave of     

Id. at ¶ - (Busovača municipality) and ¶  (Novi Travnik municipality). The same finding was made for the other municipality of Central Bosnia, except for Zenica which remained under the control of the ABiH throughout the conflict. Id. at ¶ . Id. Id. at ¶ . Id. at ¶ - (Vitez and Donja Večeriska), ¶ - (Rotilj) and ¶ - (Stupni Do).

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Introduction



the attacks (which takes place before the target has fallen under the control of the attacking forces and is the only time when unlawful attack offences can be committed) and the subsequent cleansing operations (which are undertaken after the attacking forces have gained control over the target and aim at consolidating such control). Cleansing operations often brought about the burning and pillage of houses and, thus, the commission of the crime of destruction of enemy property not justified by military necessity. As a consequence, the Chamber concluded that the large majority of the HVO attacks under scrutiny had been intentionally directed against civilians or civilian objects as such attacks were the means used by the HVO to carry out its ethnic cleaning campaign. The best example of the influence of the alleged ethnic cleansing campaign on the Chamber’s analysis of the lawfulness of those HVO attacks included in the indictment against Dario Kordić is found in the section dealing with the attack against Donja Večeriska; such influence becomes even more apparent if one has in mind the different approach taken by the Trial Chamber in the Blaškić case when analyzing the very same HVO attack against Donja Večeriska. The factual findings reached by the Chambers in the Kordić and Blaškić cases are not substantially different. Donja Večeriska was a village with a mixed ethnic composition ( of the population was Bosnian-Muslim) which, according to the Chamber in the Kordić case, did not have any military facilities – though the Chamber in the Blaškić case highlighted the fact that the Slobodan Princip Seljo (SPS), which was one of the most important explosive factories in Europe, was located approximately one kilometre from the village and had a considerable strategic importance for both parties to the conflict. In any event, the HVO had controlled the SPS since mid- and had positioned some troops in Donja Večeriska. On the evening of  April , the Bosnian-Croatian population, with the exception of the military age men, left the village. Despite the evacuation, the ABiH did not expect an attack because it was not the first time that the BosnianCroatian population had been evacuated from Donja Večeriska. The HVO attack started at about : in the morning with the shelling of the village from the HVO artillery positions around the SPS factory. The shelling was followed by a HVO infantry attack from different directions. Grenades were launched inside houses and some of the inhabitants of Donja Večeriska were arrested and beaten. The ABiH forces, comprised of approximately  to  men armed with hunting      

Id. at ¶ -. Id. at ¶  and . Prosecutor v. Blaškić, Case No. IT---T, Judgement ¶ - (Mar. , ) [hereinafter Blaškić Judgement]. Kordić Judgement, supra note , ¶ . Blaškić Judgement, supra note , ¶ . Kordić Judgement, supra note , ¶ .

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

Chapter I

rifles, organized the defence of the village and resisted the HVO attack for about  hours until they ran out of ammunition. At that point, they had to withdraw. Due to the intervention of UNPROFOR, the civilian population remaining in the village, around  persons, were evacuated around : on  April . On the basis of these factual findings – and despite the fact that several civilian persons lost their lives and several civilian houses were burnt down – the Trial Chamber in the Blaškić case concluded that no war crime had been committed before the withdrawal of the ABiH troops. In the Chamber’s view, until such withdrawal took place, Donja Večeriska was the scene of bloody clashes between HVO troops and other Croatian independent units on the one hand, and ABiH troops on the other. Therefore, one could not conclude that the incidental civilian damage caused during the HVO attack against the ABiH positions in Donja Večeriska was excessive. As a result, the Trial Chamber in the Blaškić case rejected the claim that an HVO attack against civilians or civilian objects had taken place. However, as the Chamber pointed out, a different matter was the commission by HVO troops of the crime of extensive destruction not justified by military necessity after the ABiH withdrew from Donja Večeriska and the HVO seized control of the village. The Trial Chamber in the Kordić case decided to undertake the analysis of the target’s military or civilian nature and the proportionality of the HVO attack against Donja Večeriska in light of the set of attacks launched by the HVO against the surrounding villages, such as Vitez, Stari Vitez, Ahmići, Nadioci, Pirići, Šantići (all of them within a range of  to  kilometres), on the morning of  April  at around : – the day after the expiration of the deadline given by the HVO to the members of the ABiH and the Bosnian-Muslim territorial defence to hand over their weapons or join the HVO. According to the Chamber, as a result of the overall HVO attack in the Lašva Valley on  April ,  Bosnian-Muslims were killed, , Bosnian-Muslims were forcibly transferred (, were detained for several days before being forcibly transferred) and  buildings were destroyed, including three mosques, two Muslim seminaries and two schools. On the basis of this overall analysis, the Chamber concluded that the HVO attack against Donja Večeriska had been directed against the civilian persons and the civilian objects located in the village.        

Id. Blaškić Judgement, supra note , ¶ . Id. Id. Id. at ¶ . Kordić Judgement, supra note , ¶ . Id. at ¶ . Id. at ¶ .

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Introduction



The most recent ICTY’s case law has abandoned this kind of analysis which brings about the artificial consideration of conduct permitted by international humanitarian law as crimes against humanity and the establishment of standards which cannot be complied with due to the special circumstances surrounding combat situations. In this regard, the ICTY OTP argued in the Galić case that, whenever there is an armed conflict, the previous determination of the unlawfulness of an attack in light of the conventional and customary rules which elaborate on the principle of distinction constitutes a condition sine qua non to proceed with the analysis of whether a widespread or systematic attack against a civilian population (contextual element applicable to all crimes against humanity) has taken place. Furthermore, the ICTY OTP has argued that those rules which elaborate on the principle of distinction must also be taken into account when examining the criminal conduct allegedly committed by the accused. Thus, an accused can only be convicted for a crime against humanity if the military operation in the course of which the accused killed or injured civilians or caused damage to civilian objects is: (i) unlawful according to international humanitarian law and (ii) part of a widespread or systematic attack against a civilian population. According to the ICTY OTP, if incidental civilian damage resulting from lawful attacks against military objectives can amount to crimes against humanity, it would hardly be possible to launch a military operation without becoming criminally liable. The Trial Chamber in the Galić case partially accepted the ICTY OTP’s claim by stating that the international law of armed conflict plays an important role in determining the lawfulness or unlawfulness of the military operations undertaken in an armed conflict and, thus, in deciding whether the civilian population as such has been subject to an attack. In this new context, when in an armed conflict civilians are killed or injured or civilian objects are damaged in the course of an artillery attack or a sniper attack, the unlawfulness of such an attack – regardless of whether the attack is unlawful because it was not directed against a military objective or because it caused excessive incidental civilian damage – is condition sine qua non to proceed with the analysis of any crime allegedly committed in such an attack. Therefore, if a cook’s death in an army barracks where enemy combatants are accommodated is caused by the shelling of the barracks at lunch time, such a death – no matter how unfortunate it might be – will not give rise to individual criminal liability because the attack was launched against a military objective (the    

Prosecutor v. Stanislav Galić, Case No. IT---T, Judgement ¶  (Dec. , ) [hereinafter Galić Judgement]. Id. Id. Id.

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

Chapter I

enemy’s army barracks where enemy combatants were about to have lunch) and the cook’s death cannot be considered an excessive incidental civilian damage in relation to the military advantage offered by the destruction of the barracks or, at the very least, by the placement of tens of enemy combatants hors de combat. The fact that the attacking party launched the attack with the intention of seizing the barracks in order to subsequently carry out an ethnic cleansing operation in a nearby village does not automatically make the attack unlawful. In this regard, it is important to highlight that the reasons behind a military campaign are wholly irrelevant in determining the lawfulness of the military operations carried out in such campaign. On this basis, the Trial Chamber in the Blaškić case concluded that the HVO attack against Donja Večeriska was lawful because it was launched against a military objective and did not cause excessive incidental civilian damage. The Chamber reached this conclusion despite having previously found that the ultimate motivation of the HVO military campaign in Central Bosnia in  was to ensure the Bosnian Croat’s control over such geographical area by forcibly transferring the Bosnian-Muslim population to ABiHcontrolled territory and by destroying their houses in order to prevent them from coming back. In the author’s opinion, this an important step in the right direction from previous approaches which notably limited the role of international humanitarian law – and particularly the role of the principle of distinction – in analyzing the alleged commission of crimes against humanity, above all the crime of persecution for religious, political or racial grounds, through military operations carried out in an armed conflict.



Blaškić Judgement, supra note , ¶ -.

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Chapter II The Prohibition of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks as the Core Component of the Principle of Distinction in the Conduct of Hostilities in International Humanitarian Law

II.

First Approach to the Principle of Distinction in International Humanitarian Law

Broadly speaking, violations of international humanitarian law can be classified into two main groups. Firstly, there are violations committed by a party to the conflict against those protected persons and objects that are under its control – usually against civilians and prisoners of war who are affiliated with the adverse party or against their property. Secondly, there are violations committed by a party to the conflict against protected persons and objects that are not under its control – mostly affecting civilians or civilian objects that are affiliated with the adverse party. Moreover, within the last group, it is possible to distinguish between: (i) general violations of the principle of distinction in the conduct of hostilities; (ii) violations committed against specially protected persons, objects or areas – such as violations against medical or religious personnel and equipment, personnel and equipment involved in humanitarian assistance or peacekeeping missions, journalists, safety zones, cultural property, works or installations containing dangerous forces or the natural environment; (iii) violations committed by using weapons or munitions which cause superfluous injury or unnecessary suffering or are inherently indiscriminate and (iv) violations committed by using certain methods of warfare – such as declaring that no quarter will be given, starving civilians, preventing humanitarian organizations from rendering assistance, acting with perfidy or violating the rules concerning communications with the enemy. The principle of distinction is the cornerstone of the set of rules of international humanitarian law regulating the manner in which hostilities must be conducted. According to this principle, in conducting hostilities, the parties to the 

The ICJ, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of  June , considered the principles of distinction and protection of the civilian population as the cornerstone of international humanitarian law (see ICJ Reports ¶  and  ()). The same position was taken in Prosecutor v. Stanislav Galić, Case No. IT---A, Appeal Judgement ¶  (Nov. , ) [hereinafter Galić Appeal] and in Galić Judgement, supra note , ¶ . According to the former: “The principles underlying the prohibition of attacks on civilians, namely the principles of distinction and protection, have a long-standing history in international

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

Chapter II

conflict must at all times distinguish between military objectives and persons and objects that do not have such a status (this is to say, civilian persons and civilian objects), and must direct the use of armed force to the total or partial destruction, capture or neutralisation of the former. This means that: (i) attacks must always be directed against military objectives; (ii) before launching an attack it is necessary to adopt precautionary measures in order to correctly identify the military nature of the targets and the risks for civilian persons and civilian objects and to minimise incidental civilian damage; (iii) attacks which may be expected to cause incidental civilian damage which is excessive in relation to the military advantage anticipated must be cancelled or, if they have already been initiated, suspended and (iv) no prohibited weaponry may be used in military operations, and any limitation in the use of weaponry must be complied with. However, this does not mean that civilian persons and civilian objects enjoy complete immunity. On the contrary, the Hague Convention IV of  and its Annexed Regulations only provided for the obligation to respect “as far as possible” those objects of a non-military character indicated therein. In turn, AP I, although imposing an absolute prohibition on attacking civilians or civilian objects, declares lawful any incidental civilian damage that is not excessive in relation to the military advantage anticipated from the successful execution of an attack. This legal regime acknowledges the fact that incidental civilian damage is almost unavoidable in the conduct of military operations when civilians or civilian objects are in the vicinity of the theatre of operations. Accordingly, the aim of the law is not to make impossible the conduct of hostilities by prohibiting any damage to civilians or civilian objects, but to oblige the parties to the conflict to carry out their military operations with the care necessary to minimise loss of civilian life, injuries to civilians and harm to civilian objects.

  

humanitarian law. These principles incontrovertibly form the basic foundation of international humanitarian law and constitute ‘intransgressible principles of international customary law’”. See also S. Oeter, Methods and Means of Combat, The Handbook of Humanitarian Law in Armed Conflicts  (D. Fleck ed., Oxford University Press ) [hereinafter Oeter, Methods and Means]. See A. Roberts & R. Guelff eds., Documents on the Laws of War - (rd ed. ) [hereinafter Roberts, Documents on the Laws of War]; Regulations Annexed to the Hague Convention IV of , art. . Arts. ()(b) and ()(b) AP I. Y. Dinstein, Comment, Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies  (A. Wall ed. ) [hereinafter Dinstein, Comment].

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The Principle of Distinction in the Conduct of Hostilities



II. The Principle of Distinction in International Humanitarian Law before the Additional Protocols to the Geneva Conventions Conventional international humanitarian law from the late th century and the early th century is mainly focused on preventing superfluous injuries and unnecessary suffering, without distinguishing between combatants – or those who, despite not having combatant status, take active part in the hostilities – and the rest of the population and, therefore, without developing the principle of distinction and the proportionality rule. Moreover, the few manifestations of the latter principle in the said texts refer only to damage to civilian infrastructures, without reference to civilian casualties incidental to attacks against military targets – be it because it was disregarded that important groups of civilians could be found around the battlefield, or because civilian casualties were considered to be a prize of war. 



 

See, for instance, the instructions given to the Serb armed forces in : “In time of war the depth of suffering and the extent of the losses inflicted upon the enemy should not be in excess of that which is necessary to defeat his forces and all persons should abstain from cruel and inhumane acts”. Reprinted in Rev. Int’l Comm. Red Cross  (). The principle of distinction and the proportionality rule were implicitly recognized in the Lieber Code of , which was binding on the Federal army during the US civil war. According to art. , the notion of military necessity accepts “direct destruction of life or limb of armed enemies, and of others persons whose destruction is incidentally unavoidable in the armed contests of the war”. Moreover, art.  highlighted that “the unarmed citizen is to be spared in person, property, and honour as much as the exigencies of war will admit” (General Orders, No. ,  Apr. . Reprinted in D. Schindler & J. Toman eds., The Laws of Armed Conflict - (rd ed. ) [hereinafter Schindler, Laws]. This perception might have been caused by the belief that future battles would take place in open spaces or in urban areas from where the civilian population would have previously fled. For instance, the Brussels Declaration of  forbids the destruction of enemy’s property unless imperatively demanded by the necessities of war (Project of an International Declaration concerning the Laws and Customs of War,  Aug. , known as the Brussels Declaration. Reprinted in Schindler, Laws at -). The Hague Conventions of  and  and their Annexed Regulations are similarly focused on the protection of property. Art. (g) of Regulations Annexed to the Hague Convention IV prohibited the destruction or seizure of the enemy’s property unless imperatively demanded by necessities of war. Likewise, art.  provides that “in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes”. The drafting used in the Hague Conventions of  and  and in their Annexed Regulations is almost the same than the drafting used in art.  of the Brussels Declaration. See on this matter, J.S. Risley, The Laws of War  (Innes & Co. ); J.R. Baker & H.G. Crocker, The Laws of Land Warfare  (Dep’t of State ).

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

Chapter II

Although the aerial bombing of urban areas during World War I had already shown the insufficiency of this legal regime, subsequently demonstrated by the massive number of civilian casualties incidental to military land operations during WW II, such as the sieges of Stalingrad and Leningrad, the principle of distinction was not developed in detail until , with the adoption of AP I regarding international armed conflicts. In fact, the problem of incidental civilian damage is not really addressed by the Geneva Conventions of , since the latter mainly intend to regulate the protection of civilians and persons hors de combat who fall into the hands of the enemy, and hardly refer to the conduct of hostilities. To a great extent this was due to the concerns of the former Allies regarding their strategic bombing of urban areas in Germany and Japan during WW II. As a result, art.  of Geneva Convention IV only forbids the destruction of private or public property in the hands of the party to the conflict to which the perpetrator of the destruction is affiliated (Occupying Power). Furthermore, art.  of the same Convention identifies as grave breaches of the Convention the wilful killing of persons and the wanton and extensive destruction of property not justified by military necessity affecting persons and objects protected by the Convention – this is to say, in 



After World War I, art.  of the Hague Rules of Air Warfare (which were never adopted by the concerned powers) provided that: “) Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent. ) Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centres engaged in the manufacture of arms, ammunition, or distinctively military supplies; lines of communication or transportation used for military purposes. ) The bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighbourhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph  are so situated that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment. ) In the immediate neighbourhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings, or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population. ) A belligerent State is liable to pay compensation for injuries to person or to property caused by the violation by any of its officers or forces of the provisions of this article”. On the interpretation of this provision see, inter alia, I. Detter, The Laws of War  (nd ed., Cambridge University Press ); C. Rosseau, Le Droit des Conflits Armés  (Pedone ); H.M. Hanke, The Hague Rules of Air Warfare, Rev. Int’l Comm. Red Cross - (); J.M. Spaight, Air Power and War Rights - (Longman ). Oeter, Methods and Means, supra note , pp. -.

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The Principle of Distinction in the Conduct of Hostilities



the hands of the party to the conflict to which the perpetrator of the killing or the destruction is affiliated. Subsequently, the international community treated the problem of incidental damage in an incidental way in UN General Assembly resolution  (), whereby the principle of distinction was reaffirmed and it was declared that the civilian population must be spared “as much as possible”. II. The Principle of Distinction in the AP I applicable to International Armed Conflicts The most elaborate definition of the principle of distinction can be found in art.  AP I, which under the heading of “basic rule” provides that “in order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”. In turn, the subsequent provisions develop the principle of distinction as follows. Firstly, art. () AP I reaffirms the obligation of the parties to the conflict to limit their attacks strictly against military objectives. Secondly, arts. , () and () AP I include in the notion of military objective: (i) those who are combatants pursuant to the definition of a combatant in art.  AP I; (ii) those who, without being entitled to combatant status, take active part in the hostilities and for such time as they do so and (iii) those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances at the time, offers a definite military advantage. Thirdly, art. (), (), () and () AP I determines that, on the one hand, the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations, and shall not be the objects of attack, of reprisals or of acts or threats of violence the primary purpose of which is to spread terror among them, and that, on the other hand, their presence or movements shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or 

 

Respect for Human Rights in Armed Conflicts, G.A. Res. , U.N. GAOR, rd Sess., Supp. No. , U.N. Doc. A/ () set out: “(a) That the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited; (b) That it is prohibited to launch attacks against the civilian populations as such; (c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible”. Art. () AP I. Art. () AP I.

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

Chapter II

to shield, favour or impede military operations. Moreover, art. () and () AP I provides that the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character, and that in case of doubt whether a person is a civilian, that person shall be considered to be a civilian. Fourthly, art. () and () provides that civilian objects, this is to say, all those objects which do not come within the definition of military objective in art. () AP I, shall not be the object of attack or of reprisals, and that in case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. Further, arts.  to  AP I elaborate on this provision by prohibiting attacks against specially protected objects: (i) Art.  AP I prohibits attacks against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, as well as the use of such objects in support of the military effort; (ii) Art. (), () and () AP I prohibits the starvation of civilians as a method of warfare, as well as the attack, destruction, removal or rendering useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying their sustenance value to the civilian population or to the adverse Party, provided that such objects are not used by the adverse Party solely as sustenance for the members of its armed forces or in direct support of military action; (iii) Art. () AP I prohibits the use of methods or means of warfare which are intended to cause widespread, long-term and severe damage to the natural environment or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population; (iv) Art. () AP I prohibits making works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, the object of attack, even where these objects are military objectives, as well as other military objectives located at or in the vicinity of these works or installations, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. However, art. () AP I excepts attacks against these works or installations and other military objectives located at or in the vicinity thereof if they are used for other than 

Nevertheless, art. () AP I permits any party to the conflict, in recognition of the vital requirements of any such party in the defence of its national territory against invasion, to derogate from the above-mentioned prohibitions (save for the prohibitions to starve civilians as a method of warfare and to take reprisals against objects indispensable to the survival of the civilian population) within the territory under its own control where required by imperative military necessity.

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The Principle of Distinction in the Conduct of Hostilities



its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support. Moreover, according to art. () AP I, the parties to the conflict shall endeavour to avoid locating any military objectives in the vicinity of works or installations containing dangerous forces except for those installations erected for the sole purpose of defending the protected works or installations from attack; and (v) Arts. , (), () and () AP I prohibit attacks against the objects mentioned above by way of reprisals. Fifthly, art. () and () AP I prohibits indiscriminate attacks, defined as those which may affect without distinction military objectives and civilians or civilian objects, such as: (i) those which are not directed against a specific military objective; (ii) those which employ methods or means of combat which cannot be directed against a specific military objective; (iii) those which employ methods or means of combat the effects of which cannot be limited as required by AP I; and (iv) those bombardments which treat as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. Sixthly, art. ()(b) AP I prohibits attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. In spite of the fact that, technically speaking, these are attacks against military objectives which may be expected to cause disproportionate incidental civilian damage, AP I does not consider them separately as “disproportionate attacks”, but as another sub-category of indiscriminate attacks. Seventhly, art. (), () and () AP I provides that, in the conduct of military operations, constant care shall be taken to spare the civilian population, individual civilians and civilian objects, and obliges the parties to the conflict to  Nevertheless, in the case of dams and dykes, this exception will only be applicable if they are used for other than their normal functions and in regular, significant and direct support of military operations. On the other hand, in the case of nuclear electrical generating stations, the exception will only be applicable if the stations provide electric power in regular, significant and direct support of military operations.  According to art. () AP I, the latter cannot be the object of an attack as long as they are not used in the hostilities – save for defensive actions necessary to respond to attacks against the protected works or installations – and their armament is limited to weapons capable only of repelling hostile action against the protected works or installations.

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

Chapter II

adopt the following precautions with respect to the preparation and execution of attacks: (i) Doing everything feasible to verify that the objectives to be attacked are military objectives and that it is not prohibited by the provisions of AP I to attack them; (ii) Refraining from deciding to launch any attack – or cancelling or suspending one if an attack has already been launched – if: (a) it becomes apparent that the objective is not a military one or, even being a military one, is subject to special protection, such as works containing dangerous forces; or (b) the attack may be expected to cause incidental loss of civilian life, injury to civilians, harm to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; and (iii) Taking all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and harm to civilian objects. These precautions include giving effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit, as well as selecting the objective the attack against which may be expected to cause the least danger to civilian lives and civilian objects when a choice is possible between several military objectives for obtaining a similar military advantage. Eighthly, art.  AP I obliges the party to the conflict subject to an attack to adopt, to the maximum extent feasible, precautions against the consequences of an attack, such as: (i) removing the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (ii) avoiding locating military objectives within or near densely populated areas and (iii) taking any other necessary precaution to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations. Finally, art. () and () AP I regards as grave breaches of the Protocol and war crimes the following violations of the provisions on the principle of distinction when committed wilfully, and causing death or serious injury to body or health: (i) Making the civilian population or individual civilians the object of attack; (ii) Launching an indiscriminate attack affecting the civilian population or civilian objects, or works or installations containing dangerous forces, in the knowledge that such attack will cause excessive loss of civilian life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated from the attack; (iii) Making non-defended localities and demilitarized zones the object of attack; and (iv) Making a person the object of attack in the knowledge that he is hors de combat.

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The Principle of Distinction in the Conduct of Hostilities



II. The Principle of Distinction in the AP II applicable to Non-International Armed Conflicts The conventional norms regulating non-international armed conflicts do not elaborate on the principle of distinction as much as those regulating international armed conflicts. Art. () AP II indicates that the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations, and art. () AP II obliges the parties to the conflict not to make the civilian population, as well as individual civilians, the object of attack, and not to commit acts or threats of violence the primary purpose of which is to spread terror among the civilian population. In turn, art. () AP II excludes those civilians who actively participate in hostilities from this protection for such time as they do so. Art.  AP II prohibits the starvation of civilians as a method of combat, and arts.  to  AP II prohibit attacks against: (i) objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works; (ii) works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population and (iii) historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples. Finally, art.  AP II expressly prohibits the use of historic monuments, works of art or places of worship in support of the military effort. Nevertheless, there is no equivalent to  () and () AP I in AP II. Hence, there is no provision in AP II on serious violations of the principle of distinction as embraced in AP I which may render them war crimes. II. Evolution of the Principle of Distinction after the Additional Protocols to the Geneva Conventions After the Additional Protocols of , some international instruments, applicable to both international and non-international armed conflicts, have developed the norms regulating the principle of distinction in the conduct of hostilities, including the proportionality rule. For example, the original version of Protocol II to the  Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, as well as its amended  version, expressly prohibits “in all circum  

Art.  AP II. Art.  AP II. Art.  AP II.

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Chapter II

stances, to direct weapons to which this Article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against individual civilians”. It also forbids the indiscriminate use of such weapons, which is defined as being “any placement of such weapons: (a) which is not on, or directed against, a military objective; or (b) which employs a method or means of delivery which cannot be directed at a specific military objective; or (c) which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” In its Decision on jurisdiction in the Tadić case, the Appeals Chamber of the Ad Hoc Tribunals indicated that there exists a basic core of principles and norms of international humanitarian law, including the different manifestations of the principle of distinction, that is applicable to international and non-international armed conflicts. Additionally, the Appeals Chamber reaffirmed that customary international law imposes criminal liability for serious violations of such basic core principles and norms. The subsequent decisions by the Appeals Chamber in the Strugar, Kordić and Galić cases have nevertheless been somehow more cautious. Although they indicate that international customary law at the time of the conflict in the former Yugoslavia imposes criminal responsibility for directing attacks against civilians or civilian objects, they do not deal in express terms with the question of whether criminal responsibility also arises pursuant to international custom from grave violations of the proportionality rule in any type of armed conflict. Finally, the ICRC, in its  study on customary international humanitarian law, indicates that pursuant to international custom, the following manifestations of the principle of distinction – in fact the backbone of this principle – are applicable both in international and non-international armed conflicts: (i) the parties to the conflict must at all times distinguish between civilians and combatants and may direct their attacks only against the latter – or against persons who,



See art. () of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as Amended on  May  (Protocol II as Amended on May ) Annexed to the Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects.  Id. at art. ().  Tadić Jurisdiction Decision, supra note , ¶ , , ,  and .  Strugar Interlocutory Decision, supra note , ¶ , and .  Prosecutor v. Dario Kordić and Mario Cerkez, Case No. IT--/-A, Appeal Judgement ¶  (Dec., ). [hereinafter Kordić Appeal].  Galić Appeal, supra note , ¶ , -.

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

in spite of not having combatant status, take active part in the hostilities; (ii) the parties to the conflict must at all times distinguish between civilian objects and military objectives and may direct their attacks only against the latter; (iii) indiscriminate attacks, which are at all times prohibited, are those which are not directed at a specific military objective, which employ a method or means of combat which cannot be directed at a specific military objective, or which employ a method or means of combat, the effects of which cannot be limited as required by international humanitarian law, and (iv) launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.

   

J.M. Henckaerts & L. Doswald-Beck eds., Customary International Humanitarian Law, ICRC, - (Cambridge University Press ) [hereinafter Henckaerts, Customary International Humanitarian Law]. Id. at pp. -. Id. at pp. -. Id. at pp. -.

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Chapter III Material Contextual Elements

III. The Objective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks. The Distiction between Material Contextual Elements, Jurisdictional Contextual Elements and Specific Objective Elements The objective elements of the war crimes provided for in art.  RS – including the attacks directed against civilians or civilian objects and the disproportionate attacks – can be classified into: (i) contextual elements which are applicable to all war crimes included in art.  RS (known as “material contextual elements”) and (ii) the specific elements of any given war crime. The material contextual elements, which must be met for any conduct to constitute a war crime under the RS, can be distinguished from those other circumstances which do not affect the qualification of a behaviour as a war crime and are only required for the Court’s exercise of its subject matter jurisdiction over war crimes (known as “jurisdictional contextual elements”). Among the material contextual elements, one can distinguish between the elements concerning the relationship between the forbidden behaviour and the armed conflict in which it takes place and those elements relating to the protected status of the person or object subject to the forbidden behaviour. The jurisdictional contextual elements provided for in arts. () and ()(d) RS – which are true requisites to proceed and will be analyzed in the section of this book dealing with the objective requisites for punishment, the exemptions from punishment and the objective requisites to proceed – are those relating to the gravity threshold that must be met for the Court to exercise its subject matter jurisdiction over war crimes. The material contextual elements include numerous normative elements, such as the existence of a crisis situation which can be legally qualified as an armed conflict or the protected status granted by international humanitarian law to the persons or objects subject to the forbidden conduct. This, along with the reference in art. ()(b) and (e) RS to the “established framework of international law” and the reference in art. ()(b) RS to “the established principles of the international law of armed conflict”, make international humanitarian law a 

See infra section XIII..

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Chapter III

key tool in the interpretation of such normative elements – particularly if one considers that the EC, despite being a relevant source for interpretation, are not binding on the Chambers of the Court. As a result, the conventional instruments of international humanitarian law, and in particular the Hague Conventions on the Laws and Customs of War on Land of  and  and their Annexed Regulations and the Geneva Conventions of  and their two Additional Protocols of , will play a central role in the interpretation of the material contextual elements. Likewise, customary international humanitarian law, as it has been reflected in the case law of the Ad hoc Tribunals, will also play an important role. However, one should not forget that the interpretation of the material contextual elements will have to be consistent with “internationally recognized human rights” without any distinction based on any of the grounds provided for in art. () RS. The material contextual elements, insofar as they are part of the objective elements of all war crimes and, thus, must be met for any given behaviour to become a war crime pursuant to the RS, must be covered by the general subjective element of the relevant crime. However, for individual criminal responsibility to arise the perpetrator does not need to make the value judgements inherent to the numerous normative elements included in the material contextual elements. On the contrary, it is sufficient for the perpetrator to be aware of the factual circumstances on which such value judgements are based. Therefore, neither the RS nor the EC require for the perpetrator to be aware that a given crisis situation legally amounts to an armed conflict or that the persons or objects subject to the forbidden behaviour have a protected status under international humanitarian law. It is sufficient for the perpetrator to be aware of the factual circumstances justifying the qualification of a crisis situation as an armed conflict or the granting of a protected status to the persons or objects against which the forbidden behaviour is directed. On the other hand, as the    



Art. ()(b) RS provides that the Court shall apply “in the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict”. Art. () RS. Art. () RS includes the following grounds: “gender as defined in article , paragraph , age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status”. For A. Eser, Mental Element-Mistake of Fact and Mistake of Law, The Rome Statute of the International Criminal Court: A Commentary  (A. Cassese, P. Gaeta, & J.R.W.D Jones eds., Oxford University Press ) [hereinafter Eser, Mental Element-Mistake of Fact and Mistake of Law], the perpetrator must also be aware of the social meaning of such factual circumstances for the average man. See EC, Introduction to the Elements of War Crimes [hereinafter EC]. See also K. Ambos, Elementos del Crimen así como Reglas de Procedimiento y Prueba de la Corte Penal Internacional, La Nueva Justicia Penal Supranacional. Desarrollos post-Roma  (Tirant lo Blanch ).

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Material Contextual Elements



jurisdictional contextual elements are objective requisites to proceed, they do not need to be covered by the general subjective element of the relevant crime. The international or non-international character of the armed conflict in which the forbidden behaviour takes place constitutes an additional contextual element whose legal nature is not completely clear. A number of arguments appear to provide prima facie support to the view that this is a jurisdictional contextual element – although it would be configured as an objective requisite for punishment as opposed to an objective requisite to proceed. Firstly, the EC not only establish that the perpetrator does not need to be aware of the legal qualification of the armed conflict but they also state that “there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international.” Secondly, the case law of the Appeals Chamber of the Ad hoc Tribunals has consistently upheld the existence of a core part of international humanitarian law which is applicable in any kind of armed conflict. This, along with the careful selection process on gravity grounds of the war crimes included in the RS, support the view that any conduct included in art. () RS is unlawful and gives rise to individual criminal responsibility no matter the type of armed conflict in which it takes place – and, thus, the international or non-international character of the armed conflict can only be a mere objective requisite for punishment. However, in the author’s view, one cannot get around the drafters’ decision not to define the war crimes provided for in the RS according to the societal value protected by them. The drafters made this decision despite being aware that such a decision would likely bring about the same evidentiary problems concerning the international or non-international character of the armed conflict already faced by the ICTY. As some have highlighted, the drafters made this choice because they intended to criminalize a broader range of conduct in relation to international armed conflicts given the higher degree of protection that international humani-

      

See infra section XIII.. The existence of an international armed conflict is required by those war crimes provided for in art. ()(a) and (b) RS. The existence of an armed conflict not of an international character is required by to those war crimes provided for in art. ()(c) and (e) RS. See EC, supra note . Tadić Jurisdiction Decision, supra note , ¶ , , ,  and ; Strugar Interlocutory Decision, supra note , ¶ ,  and . H. Von Hebel & D. Robinson, Crimes within the Jurisdiction of the Court, The International Criminal Court: The Making of the Rome Statute. Issues-NegotiationsResults - (R.S. Lee ed., Kluwer L. Int’l ) [hereinafter Von Hebel, Crimes]. See infra section III..

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Chapter III

tarian law grants in this kind of armed conflict. In this scenario, the international or non-international character of the armed conflict becomes a key factor in determining whether a given behaviour amounts to a war crime. For instance, under the RS, directing an attack against civilian objects or launching a disproportionate attack only constitutes a war crime in international armed conflicts (in non-international armed conflicts criminal liability only arises if the damage caused by the attack amounts to a crime under art. ()(c) and (e) RS). As a consequence, in spite of the ambiguity of the RS and the EC on this matter, it is the author’s view that the international or non-international character of the armed conflict constitutes a material contextual element insofar as it is required for any given conduct to amount to a war crime under the RS. As a result, it must be covered by the general subjective element of the relevant crime and, thus, the perpetrator must be aware “of the facts that established the character of the conflict as international or non-international.” Hence, in the author’s view, that part of EC which states otherwise will have to be rejected by the ICC’s case law. In this regard, the Decision on the confirmation of the charges in the Lubanga case expressly finds the existence of sufficient evidence to establish sufficient grounds to believe that Thomas Lubanga Dyilo was aware of the factual circumstances that established the international or non-international character of the armed conflict.



According to Von Hebel, Crimes, supra note , at p. : “In general, one may conclude that the definition of war crimes is consistent with two important trends of the last few years, namely, the gradual blurring of the fundamental differences between international and internal armed conflicts, and the recognition of individual criminal responsibility for violations of fundamental provisions of relevant international humanitarian law instruments. As described above, many of the provisions relating to internal armed conflicts were drawn from provisions relating to international armed conflicts. This result is consistent with the view that differences in the regulation of the two forms of conflict must be reduced. Although it was suggested that the Conference should do away completely with that distinction, that suggestion clearly was a ‘bridge too far’ for most of delegations”.  Concurring, K. Ambos, La Parte General del Derecho Penal Internacional. Bases para una Elaboración Dogmática - (Ezequiel Malarino trans., Adenauer Foundation/ Temis, Duncker & Humblot ) [hereinafter Ambos, La Parte General del Derecho Penal Internacional].  According to art.  RS, the EC are not binding on the Chambers of the Court.  Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-/-/, Decision on the Confirmation of the Charges ¶  ( Jan. , ) [hereinafter Lubanga Confirmation of Charges].

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Material Contextual Elements



III. The Existence of an Armed Conflict and Link between the Forbidden Behaviour and the Armed Conflict III.. The Notion of Armed Conflict III...

Introduction to the Problems Posed by the Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions, including Those Caused by Acts of Terrorism

The notion of armed conflict is the true cornerstone of international humanitarian law because it sets forth the boundaries of its scope of application. It distinguishes the phenomenon of armed conflict from other phenomena which are regulated by national legislation as opposed to international humanitarian law, including the phenomemon of terrorism which is caracterized by the use of terror in order to obtain political gains and can take place both in situations of peace and during an armed conflict.. This distinction is particularly relevant given the States’ tendency to qualify as “terrorists” those organized armed groups which, after a more careful analysis, seem to meet the conditions set forth by international law – including its case law – for their confrontations with governmental armed forces to be legally qualified as armed conflicts. This tendency exists not only in relation to noninternational armed conflicts that take place within the territory of a State, but also with regard to international armed conflicts resulting from third States’ over



 

In this regard, it is important to highlight that, in addition to the various national and regional definitions of the phenomenon of terrorism, paragraph  of the Measures to Eliminate International Terrorism, G.A. Res. /, U.N. GAOR, st Sess., U.N. Doc. A/RES// (), “Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.” Subsequently, in November , a UN panel defined the phenomenon of terrorism as any act “intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act” (see the report “Larger Freedom” presented by UN Secretary General Kofi Annan at the Security Council Meeting on  Mar. ”). The customary nature of the war crime of “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” in both international and non-international armed conflicts have recently been upheld in the Galić Appeal, supra note , ¶  to , which also spells out the objective and subjective elements of such a crime, ¶  to . Particularly in arts.  AP II and RS. Particularly in the definition of the notion of armed conflict provided for in the Tadić Jurisdiction Decision, supra note .

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Chapter III

all control – but not necessarily effective control – over such organized armed groups. Leaving aside the legal and political implications of conferring the status of belligerent to organized armed groups, States have traditionally shown no interest in acknowledging the existence of an armed conflict within their own borders because it would prevent them from applying to members of organized armed groups that part of their national antiterrorist legislation which is contrary to international humanitarian law. The clearest manifestation of this phenomenon is perhaps the fact that attacks against members of governmental armed forces – and against members of security forces playing an active role in the so-called fight against terrorism – could not be considered any longer as acts of terrorism because they would be authorized by international humanitarian law insofar as they are directed against military objectives. But the implications of qualifying a given crisis situation as an armed conflict are not just confined to those considerations that prompt States to resist it. For example, that part of national criminal procedure – and the safeguards offered by it to those who have allegedly committed a crime – which is not consistent with international humanitarian law is no longer applicable after the commencement of an armed conflict. As a result, governmental armed forces – or security forces actively involved in the so-called fight against terrorism – are entitled to shoot without previous questioning or warning at members of the organized armed groups involved in an armed conflict because they are actively participating in the hostilities. Given that the existence of an armed conflict is a condition sine qua non for the application of international humanitarian law and, thus, for the commission of war crimes resulting from their graves breaches (and considering that the notion of an armed conflict encompasses not only situations where States resort to armed force to solve their disputes but also confrontations between governmental authorities and organized armed groups or between such groups), the determination of the criteria to distinguish between situations of armed conflict and situations “of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature” – in which international humanitarian law is not applicable and no war crime can be committed – is of the greatest importance. The determination of these criteria is closely related to the question of whether the RS provides for only one kind of non-international armed con   

See infra section III.. See C. Van de Wyngaert & B. De Schutter, Coping with Non-International Armed Conflicts: The Borderline between National and International Law,  GA. J. Int’l & Comp. L. - (). Tadić Jurisdiction Decision, supra note , ¶ . See also art. ()(f ) RS. Art. ()(d) and (f ) RS.

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flicts – in connection to which those war crimes that are serious violations of art.  common to the Geneva Conventions, and those other war crimes that are serious violations of other laws and customs of the war applicable in non-international armed conflicts, could take place. Or whether, on the contrary, the RS provides for two kinds of non-international armed conflicts and each of the above-mentioned groups of war crimes could only be committed in connection with one of them. For some legal writers, the existence of two types of non-international armed conflicts results from the fact that the protracted character of an armed conflict is not a requisite for the application of common art.  to the Geneva Conventions and, thus, for individual criminal responsibility to arise from serious violations of this provision pursuant to art. ()(c) RS. For these legal writers, the protracted character of an armed conflict is only a condition sine qua non for the application of the other laws and customs of war applicable to non-international armed conflicts and, thus, for criminal responsibility to arise from serious violations of such provisions pursuant to art. ()(e) RS. This distinction is based on the difference between establishing as a requisite for the existence of an armed conflict that the parties to such conflict resort to armed violence during a certain period of time and setting forth an additional requisite consisting of the “protracted character” of the armed conflict. In the author’s view, this is an important distinction because, for an armed conflict to have a protracted character, it is necessary for the parties to the conflict to have the necessary degree of organization and logistical and operational capabilities in order to be in a position to maintain the armed conflict for a given period of time. For a second group of legal writers, the existence of two types of non-international armed conflicts results from the fact that common art.  to the Geneva Conventions is only applicable to those armed conflicts between governmental forces and organised armed groups. As a result, those war crimes provided for in art. ()(c) RS cannot be committed in armed conflicts between organized armed groups as such. For these legal writers, only the war crimes provided for in art. ()(f ) RS can be committed in those conflicts where there is no involvement of governmental forces. This distinction is based on an understanding of art. ()(f ) RS as extending the notion of armed conflict to encompass confrontations between organized armed groups as such without any governmental involvement. For these legal  Art. ()(c) RS.  Art. ()(e) RS.  A. Cassese, International Criminal Law  (Oxford University Press ) [hereinafter Cassese, International Criminal Law].  Tadić Jurisdiction Decision, supra note , ¶ .  Pignatelli y Meca, La Sanción, supra note , p. .

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Chapter III

writers, this new feature of art. ()(f ) RS can only be previously found in the case law of the Ad hoc Tribunals. Therefore, they argue that, absent any express reference to such a new feature in art. ()(c) and (d) RS, the traditional requisite of governmental involvement should be maintained in relation to the scope of application of those war crimes provided for in art. ()(c) RS (serious violations of common art.  to the Geneva Conventions). Although the recent Decision on the confirmation of the charges in the Lubanga case does not address the issue of whether art.  () (c) to (f ) RS provides for two types of non-international armed conflicts, it underscores that art.  () (f ) places a particular emphasis on the protracted nature of the armed conflict. On the other hand, it is important to highlight the distinction between the notions of armed conflict and reprisals, which under no circumstance can consist of resorting to armed violence to force a third State to act in accordance with international law. Reprisals have been defined as coercive measures – which do not follow ordinary rules of international law – taken by a State that has been harmed by the unlawful conduct of a third State in order to force the latter, by causing it a harm, to conduct itself according to international law. Only those States that have been harmed as a result of the unlawful conduct of a third State are lawfully permitted to carry out reprisals. Their adoption is subject to the nonexecution of a previous request for reparation and the absence of any other way to obtain reparation. Their content must always be proportional to the initial unlawful conduct.

 See Tadić Jurisdiction Decision, supra note , ¶ . As shown supra in section III..., the ICTR’s case law has been sometimes hesitant concerning the question of whether the evolution of international customary law since the approval of the AP I has eliminated the territorial control requisite from the definition of the notions of organized armed group and non-international armed conflict (see, for instance, Prosecutor v. Akayesu, Case No. ICTR---T, Judgement ¶  (Sept. , ) [hereinafter Akayesu case]. However, the ICTR’s case law has not expressed the same doubts on the existence of an armed conflict without the intervention of governmental forces.  According to these legal writers, neither common art.  to the Geneva Conventions nor art. () AP II provide for the existence of an armed conflict without the involvement of governmental forces. For instance, art. () AP II expressly refers to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups”.  Lubanga Confirmation of Charges, supra note , ¶ .  Art.  of the Reglamento sobre el Régimen de las Represalias en Tiempos de Paz, Institut de Droit International,  (Annuaire ).  P. Bastid, Cours de Droit International Public  (Paris -).

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From the Geneva Conventions to the ICTY ’s Case Law: The Evolution of the Notion of Armed Conflict in International Humanitarian Law

In order to ascertain which is the minimum standard that must be met for an armed conflict to exist and international humanitarian law to be applicable, it is important to analyze the notion of armed conflict since WW II. Although common art.  to the Geneva Conventions describes the duties of the parties to a conflict “in the case of armed conflict not of an international character occurring in the territory of one of the high Contracting Parties”, it does not elaborate on the notion of armed conflict. The ICRC commentary highlights that the drafters of this provision did not intend for it to be applicable in the context of any act of armed violence, such as riots, acts of anarchy or ordinary criminal activities. On the contrary, they intended for common art.  to only be applicable in the context of armed conflicts between the armed forces of two or more sides – i.e. conflicts which, regardless of the international legal personality of the parties involved, have a nature similar to that of international wars, although they take place within the territory of only one State. AP II elaborates on the rules contained in common art.  for non-international armed conflicts and provides for a set of criteria to distinguish between situations of armed conflict and situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. In this regard, art. () AP II limits the scope of application of AP II to those situations of armed conflict “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. Therefore, it requires for the concerned armed groups to have some degree of internal organization, including a hierarchical structure which ensures that a responsible commander has: (i) operational control over the activities of the group and (ii) disciplinary powers over the members of the group (which allows him to implement the  J. Pictet, Commentary on II Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, ICRC  (). See also, J. Pictet, Commentary on I Geneva Convention of the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC  (), where it is stated that, for the existence of a non-international armed conflict in which common art.  to the Geneva Conventions is applicable, it is required that “the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention”. Concurring, Hadžihasanović Case, supra note , ¶ .

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Chapter III

provisions of AP II). Moreover, it also requires for the organized armed groups to have the capabilities to plan and carry out protracted military operations as a result of their control over a part of the territory of the concerned State. The ICTR’s case law, in spite of hinting that the territorial control requisite might have been eliminated by the evolution of international customary law, has found that all requisites of the notion of armed conflict provided for in art. () AP II are met by the crisis situation that occurred in Rwanda between April and June . According to the ICTR’s case law, an armed conflict between the RPF commanded by General Kagame on the one side and FAR on the other side took place at this time. By mid-May , the RPF had gained control over half of the territory of Rwanda, which exceeded by far what had originally been agreed upon in the Arusha Agreement. The RPF continued, however, carrying out sustained and concerted military operations until the conclusion of the ceasefire on  July  which eventually ended the armed conflict. The RPF troops were well disciplined and had a command and control structure which enabled them to act under the direction of a responsible commander. In addition, the RPF acknowledged at the time the conflict was ongoing that it was legally bound by international humanitarian law. In November , the Decision on jurisdiction in the Tadić case put forward the notion of armed conflict that, according to this decision, better fit the evolution of international humanitarian law since the approval of AP II. This definition, consistently applied by the ICTY’s case law, affirms the existence 

Y. Sandoz, C. Swinarski, B. Zimmerman & J. Pictet eds., Commentary on the Additional Protocols of  June  to the Geneva Conventions of  August , ICRC - (Martinus Nijhoff Publishers ) [hereinafter Sandoz, Commentary]; Hadžihasanović Case, supra note , ¶ ; Lubanga Confirmation of Charges, supra note , ¶ .  See the discussion contained in the Akayesu case, supra note , ¶  et seq.  Id.  See inter alia Prosecutor v. Duško Tadić, Case No. IT---T, Opinion and Judgement ¶  and  (May , ) [hereinafter Tadić Judgement]; Prosecutor v. Zejnil Delalić et al., Case No. IT---T, Judgement ¶  (Nov. , ) [hereinafter Delalić Judgement]; Prosecutor v. Anto Furundžija, Case No. IT--/-T, Judgement, Case No. IT--/-T ¶  (Dec. , ) [hereinafter Furundžija Judgement]; Prosecutor v. Zlatko Aleksovski, Case No. IT--/-T, Judgement ¶  ( June , ) [hereinafter Aleksovski Judgement]; Prosecutor v. Goran Jelisić, Case No. IT--T, Judgement ¶  (Dec. , ) [hereinafter Jelisić Judgement] and Blaškić Judgement, supra note , ¶ . For instance, the recent Decision concerning rule  bis in Prosecutor v. Slobodan Milošević, Case No. IT---T, Decision on Motion for Judgement for Acquittal ¶  ( June , ) [hereinafter Milošević Decision] reads as follows: “The test for determining the existence of an armed conflict was set out in the Tadić Jurisdiction Appeals Decision (“Tadić test”) as follows: ‘[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’”. For the Trial Chamber (¶ ), the test set out

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

of an armed conflict whenever two or more States resort to armed violence to resolve their disputes or protracted armed violence takes place within the territory of a State between governmental authorities and organized armed groups or between such groups. Apart from stating that situations in which there is no involvement of governmental forces can be qualified as armed conflict, the most important element of this definition is the elimination of the territorial control requisite set forth in art. () AP I. As a result, the range of situations that can be qualified as armed conflict is extended and, thus, the scope of application of international humanitarian law becomes broader. However, at the same time, the boundaries between situations of armed conflict and situations of internal disturbances and tensions become far less clear. In this regard, as seen below in further detail with regard to the KLA, the question arises as to the boundaries between situations of armed conflict – defined as protracted armed violence between governmental forces and organized armed groups or between such groups – and situations of repeated terrorist attacks by organized armed groups. The application of international humanitarian law – and the inapplicability of that part of national procedural and antiterrorist legislation which is inconsistent with international humanitarian law – in some crisis situations (such the one which took place in Kosovo after the Dayton Agreements, and particularly since mid- when the KLA increased its activities) depend on the answer to this question. To answer such a question it is first necessary to analyze the two main elements of the notion of armed conflict embraced by the Decision on jurisdiction in the Tadić case: (i) The concerned armed groups must have a sufficient degree of internal organization as a result of a hierarchical structure which ensures a responsible commander operational control and disciplinary powers. (ii) The concerned armed groups must resort to armed violence which is of a sufficient level of intensity and lasts during a sufficiently long period of time (“protracted armed violence”).

in the Tadić Jurisdiction Decision, supra note , is not inconsistent with the ICRC Commentary to common art.  to the Geneva Conventions. Although the list of criteria for the determination of the existence of an armed conflict set out in the ICRC commentary is broader than the one contained in the Tadić text, the former is not, according to the ICRC, binding. Furthermore, as the ICRC has also pointed out, common art.  should be applied as broadly as possible. The Trial Chamber (¶ ) found the Tadić test to be also consistent with art. () AP II, although it did not elaborate on the reasons for this finding.  Tadić Jurisdiction Decision, supra note , ¶ .  Lubanga Confirmation of Charges, supra note , ¶ .

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The requisite that the concerned armed groups have a sufficient degree of internal organization is also included in art. () AP II. The first draft of this provision did not refer to “organized armed groups”. It referred to “armed forces” that were capable of undertaking concerted military operations. The expression “organized armed groups” was introduced during the negotiation process in order to distinguish between “armed forces” – which referred to governmental armed forces – and “organized armed groups” acting under responsible command. In principle, this distinction did not entail any difference in the degree of organization required from the “armed forces” and the “organized armed groups” – which consisted of an internal structure, including an internal disciplinary system, functioning according to the principles of division of functions and command and control. However, during subsequent negotiations, the text was modified to make clear that the requisite of “a responsible command”, although it implied some degree of internal organization of the relevant armed groups, was not equivalent to the hierarchical system used in military organizations such as the governmental armed forces. In the final analysis, the notion of armed conflict embraced by art. () AP II refers to a collective confrontation, where the involvement of a group of persons with little coordination is not sufficient, requiring the relevant armed group to have a sufficient degree of organization to plan and implement sustained and concerted military operations and to impose discipline on behalf of a de facto authority. The Appeal Judgement in the Tadić case – although it does not provide for a general definition of the notion of organized armed group – offers some examples of the distinction between organized and non-organized armed groups. According to this judgement, organized armed groups are distinct from nonorganized groups in that they have an internal structure, a chain of command, a set of written or oral rules and a set of symbols showing the authority of their members. Furthermore, the members of organized armed groups do not act on their own, but they act according to the standards adopted by their respective groups and are subject to the authority of their leaders. In sum, it can be concluded that, according to the ICTY’s case law, an armed conflict is a collective confrontation in which the concerned armed groups must have an internal organization comprised of the following three elements: (i) they must act under a responsible command; (ii) they must have a disciplinary system which enables them to impose the application of international humanitarian law on their members and (iii) they must have an internal structure which enables  See Document CDDH/I/SR, viii, ,  Feb. .  H.S. Levie ed., The Law of Non-International Armed Conflict – Protocol II to the  Geneva Conventions  (Martinus Nijhoff Publishers ).  Sandoz, Commentary, supra note , p. .  Id. at ¶ .  Tadić Judgement, supra note , ¶ .

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them to plan and implement concerted military operations during a given period of time. Concerning the requirement of a sufficient degree of intensity and duration of the armed violence resorted to by the concerned armed groups, the ICTY’s case law – unlike art. () AP I – does not require armed groups to carry out continuous military operations during a given period of time (“sustained military operations”). It only requires armed groups’ military operations to take place throughout an extended period of time, regardless of their frequency (“protracted armed violence”). On this basis, the Trial Chamber in the Blaškić case pointed out a set of factors to consider, including the degree of preparation of military operations, the kind of weaponry used (light or heavy), the degree of openness in carrying out military operations and the units involved in the implementation of military operations. Likewise, the Trial Chamber in the Furundžija case – in distinguishing between the first instances of armed violence in the Vitez area (Central Bosnia) in May  and the commencement of the armed conflict in April  – stated that the large scale deployment of HVO troops fully equipped for combat marked the commencement of the armed conflict. In other words, in spite of the fact that between May  and April  the HVO had seized the city hall, the police station and the premises of the Ministry of Defence in Vitez, the Trial Chamber considered that the armed conflict only began when the HVO showed its military power, which was also a sign of the imminent execution of military operations on a larger scale. The degree of the deployment of governmental armed forces is an important factor in determining whether a crisis situation amounts to an armed conflict. However, it must be assessed along with other factors such as the degree of organization and the operational and logistical capabilities of the relevant armed groups and the number of their members who actively participate in the confrontation. In this regard, the fact that , British soldiers were deployed in Northern Ireland as a result of the crisis situation between the British government and the IRA was, for most legal writers, insufficient to find the existence of an armed conflict given the disparity between the deployed British forces and the limited number of IRA active members; as a result, the IRA was qualified as a terrorist group. However, leaving aside this specific crisis situation, the adoption by a Government of extraordinary measures, which can only be objectively justified by the existence of a military confrontation, constitutes a relevant factor for the determination of the existence of an armed conflict. From this perspective, the protracted deployment of a number of military units to control the operations of an organized armed group – as it happened in Kosovo in  – constitutes an important factor, although not necessarily definitive, to show that what initially  Blaškić Judgement, supra note , ¶ .  Furundžija Judgement, supra note , ¶ -.

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was a situation of internal disturbances and tensions may have become an armed conflict. III...

The Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions Caused by Repeated Acts of Terrorism in light of the ICTY ’s Case Law

The question arises as to whether, according to the notion of armed conflict embraced by the ICTY’s case law, any confrontation between governmental armed forces and organized armed groups – or among such groups – amounts to an armed conflict if the concerned armed groups: (i) Have a sufficient degree of internal organization which is comprised of the following three elements: (a) they act under a responsible command; (b) they have a disciplinary system which enables them to impose the application of international humanitarian law on their members; and (c) they have an internal structure which enables them to plan and implement concerted military operations during a given period of time; (ii) Have the necessary logistic and operational capabilities – besides the structural ones – to effectively resort to a given degree (intensity) of armed violence during a given period of time. An affirmative answer would mean, for instance, that the crisis situation which existed in Kosovo before the initiation of the NATO aerial campaign on  March  would amount to an armed conflict if it were shown that the KLA had by then an emerging structure which was used to launch concerted military operations and constituted a challenge for the VJ. Alternatively, such a situation would not amount to an armed conflict if, before March , the KLA was comprised of a network of groups of persons linked by family ties that attacked VJ convoys from time to time and the members of such groups were not investigated and prosecuted as members of an organized armed group which controlled the tempo and modus operandi of the attacks. On the other hand, the fact that international bodies such as the UN Security Council may have qualified the relevant armed group as a terrorist organization does not exclude the finding of the existence of an armed conflict if the abovementioned requirements are met. In this regard, it is important to highlight that the UN Security Council, in its Resolution  of  March , referred to the KLA as a terrorist organization and called for the immediate cessation of all acts of terrorism in Kosovo. However, a few months thereafter, the UN Security  UN Security Council Resolution  on the Letters of the United Kingdom (S//) and the United States (S//), S.C. Res. , U.N. SCOR, rd Sess., th mtg., U.N. Doc. S/RES/ ().

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Council in its Resolution , besides taking note of the ICTY OTP’s view that an armed conflict existed in Kosovo, demonstrated its concern for the intense ongoing fighting in Kosovo, expressly condemned any act of terrorism occurring in Kosovo and called upon the parties to the conflict to immediately put an end to the hostilities and reach a cease-fire. The Trial Chamber in the Milošević case appears to have provided an affirmative answer for the above-mentioned question by stating at the end of the Prosecution’s case, that the latter had presented enough evidence on the question of the existence of an armed conflict in Kosovo at least since  January  – and thus before the initiation of the NATO aerial campaign in Kosovo on  March . In deciding whether or not the protracted armed violence requisite had been met in the crisis situation between the FRY and the KLA, the Trial Chamber only analyzed two main issues: (i) the internal organization of the parties to the conflict and (ii) the intensity of the armed conflict. Concerning the first requisite, the Trial Chamber found that the Prosecution had presented enough evidence on the organization of the KLA as a military force with an official chain of command, headquarters, designated areas of operation and the capability to obtain, transport and distribute weapons. Among the evidence referred to by the Trial Chamber to support its finding, one finds the testimony of Lord Ashdown who, during his visit to the region in , had been able to observe from the Albanian border the scope of the KLA’s operations and the dimensions of the arms trade at the border – particularly in the village of Tropolje in Albania, which he described as a supermarket of weapons from which the KLA procured its supplies. For Lord Ashdown, the KLA was by then well organized, had a regular supply of weapons, had adequate transportation for the weaponry, had the support of the local population and its activities were visible. The Trial Chamber also referred to the testimony of witness Kula, who learnt about the KLA in  and joined it in . He stated that from the moment he joined the KLA in , the KLA already had an official structure and issued instructions from its headquarters. The Trial Chamber referred to the testimony of several additional witnesses – among them, Ibrahim Rugova, former  UN Security Resolution  on the Situation in Kosovo, S.C. Res. , U.N. SCOR, rd Sess., th mtg., U.N. Doc. S/RES/ (). In any event, one can also find in this resolution an express condemnation of any terrorist activity in Kosovo.  Milošević Decision, supra note , ¶ .  Id. at ¶ .  Id. at ¶  and .  Id. at ¶ .  Id. at ¶ .  Id.

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president of the autonomous region of Kosovo – who stated that, although at the beginning the KLA had been comprised of small isolated groups, by the end of  they all acted under one unified command. Finally, the Trial Chamber also relied on the testimony of witness Abrahams, who testified that the KLA became an organized armed group in  when, after the killing of fifty members of the Jashari family in the village of Prekaz, the population of Albanian origin became more radical. The Trial Chamber also found that the Prosecution had put forward enough evidence on the intensity of the confrontation between the FRY’s armed forces and the KLA before  March . Concerning the protracted character of the conflict and the progressive increase in its degree of intensity, the Trial Chamber relied on several witnesses who had given testimony about the evolution of the conflict. Witness K stated that, between  and , the KLA had killed approximately  persons who were police officers or were cooperating with the police. Witness Buja referred in his testimony to a large scale VJ offensive against the villages of Racak, Petrova and Mullopolc on  August , whereas witness Elshani mentioned the confrontation around the cities of Nagaf and Rahovec from  until March . Finally, General Drewienkiewicz, member of the OSCE Security Department in Sarajevo, stated that in the summer of  there had been intense violence in the areas of Dečani and Malisevo to the west of Kosovo and Podujevo to the North of Priština. In relation to the territorial scope of the confrontation, the Trial Chamber stated that several witnesses had testified about the KLA’s operations in  in different areas of Kosovo, including Junik, Dečani, Drénica, Mališevo, Orahovac, Istok, Obilić, and Alska Bajgora. Likewise, the Chamber mentioned the evidence put forward by the Prosecution concerning the increased number of members of the FRY’s armed forces and police deployed in Kosovo, and in particular the offensive launched by them in the municipalities of Timlje, Suva Reka and Uro Ševac between  September and  October . Finally, the Chamber highlighted that several witnesses had testified about the weaponry used by both parties to the conflict, and in particular about the fact that the KLA, in addition to light weapons, had also used mortars.         

Id. Id. at ¶ . Id. Id. Id. Id. at ¶ . Id. Id. Id. at ¶ .

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On the other hand, the Trial Chamber restated that, according to the definition of armed conflict adopted in the Tadić case, it was not necessary for the KLA to have acted under a civilian authority or to have held control over a part of the territory of Kosovo. Moreover, the Trial Chamber pointed out that the Prosecution had put forward enough evidence concerning the KLA’s compliance with both elements. In this regard, the Trial Chamber recalled that Lord Ashdown testified that in September , Mr. Rugova controlled the urban areas – though not necessarily the rural areas – through his party (the KLA), whereas according to witness Barani, Mr. Adem Demači was in  the true political representative of the KLA and the person with whom he had negotiated the release of two Serbs. Finally, the Trial Chamber also relied on several additional witnesses who stated that during , the KLA had maintained the control of several localities and even of some municipalities of Kosovo. In conclusion, according to the ICTY’s case law, the notion of armed conflict covers all those crisis situations between governmental forces and organized armed groups (or between such groups) which act under a responsible command, have a disciplinary system and have the necessary internal structure and logistical and operational capabilities to sustain some degree of armed violence during a given period of time through the execution of concerted military operations. In the author’s view, the problem posed by this definition of armed conflict is the absence of clear boundaries between those situations of armed conflict and those other situations of internal disturbances and tensions resulting from repeated acts of terrorism. This is the consequence of eliminating the territorial control requisite provided for in art. () AP I without replacing it with another criterion. This lack of clarity is evident if one looks at the important role played by indefinite adjectives – such as “sufficient” or “given” – in the interpretation of the content of the notion of armed conflict embraced by the ICTY’s case law (sufficient degree of organization, given period of time and so on). However, in the author’s opinion, the distinction between situations of armed conflict and situations of internal disturbances and tensions plays such an important role that one cannot afford the degree of vagueness introduced by the ICTY’s case law. In the final analysis, the application of international humanitarian law and the nonapplication of that part of national legislation which is inconsistent with international humanitarian law are at stake.

 Id. at ¶  and .  Id. at ¶ .  Id. at ¶ .

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Chapter III III... Overcoming the Vagueness Introduced by the ICTY ’s Case Law on the Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions Resulting from Repeated Acts of Terrorism

There are several criteria which have been proposed in different contexts and could be helpful to overcome the uncertainty created by the ICTY’s case law on the notion of armed conflict. The first criterion is the ultimate purpose of the organized armed group. According to this criterion, if the ultimate purpose of the group is to subvert the existing constitutional order, the crisis situation in which such group is involved – normally against the governmental armed forces – will not be considered an armed conflict. However, this criterion is likely to exclude from the notion of armed conflict most of the confrontations between governmental armed groups and organized armed groups, limiting de facto the application of international humanitarian law to international armed conflicts. Furthermore, as shown above, the reasons why an armed conflict is initiated – jus ad bellum – are totally irrelevant for the application of international humanitarian law once the conflict has started – jus in bellum. The second criterion is the openness with which military operations are carried out by the organized armed group – normally against members of the governmental armed forces. This criterion is closely related to that of the identification of the members of the organized armed group – normally by using a uniform or an insignia – or, at minimum, the visibility of the group members’ weapons while military operations are executed. However, international humanitarian law has traditionally applied this criterion for the recognition of the status of prisoner of war in the framework of international armed conflicts. Therefore, it would be at odds with international humanitarian law to use such a criterion to decide on the

 Arts.  et seq of the Spanish Criminal Code define as terrorist any armed group or organization whose purpose is to subvert the existing constitutional order or to gravely alter a situation of public peace. The definition of terrorist act adopted by the European Union is also based on the purpose of the group that carries it out. According to this definition, terrorist acts are those intentional acts “which given their nature or context, may seriously damage a country or an international organization where committed with the aim of: (i) seriously intimidating a population, or (ii) unduly compelling a Government or international organization to perform or abstain from performing any act; or (iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization”(Council of the European Union, Framework Decision on Combating Terrorism, Doc. //JHA ¶  ( June , )).  See supra section I.

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existence of an armed conflict not of international character – and on the application of international humanitarian law to a given crisis situation. In this regard, it is important to highlight that the fact that members of an organized armed group do not carry their weapons openly while they are engaged in an attack or in a military operation preparatory to an attack has been traditionally punished with the loss of prisoner of war status – at least when they are entitled to such an status according to arts. () and () AP I as members of national liberation groups fighting against colonial domination, alien occupation or racist regimes in the exercise of their right of self-determination – and individual criminal liability arising from the commission of a war crime. However, under no circumstance has international humanitarian law provided for a collective penalty consisting of rejecting to qualify an ongoing confrontation between an organized armed group and the governmental armed forces as an armed con Art. .A() CG III sets out that “prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:... () members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.” Furthermore, art. () AP I provides that “in order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate”. It should be also borne in mind that these provisions were adopted for international armed conflicts and there is no equivalent for non-international armed conflicts.  Art. () AP I sets out that “a combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph  shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.” Furthermore, art. () AP I adds that “any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities”.

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flict, and by so doing, preventing international humanitarian law from being applicable to such confrontation. The third criterion is the nature of the targets attacked by the organized armed group. According to this criterion, if the group’s operations are consistently directed against persons or objects which are not military objectives, the underlying crisis situation between such organized armed group and the governmental armed forces cannot be qualified as an armed conflict.  In this regard, it is important to highlight that the US, in spite of denying prisoner of war status to members of Al-Qaeda and the Taliban army, acknowledged the existence of an armed conflict. According to US authorities, Al-Qaeda members were not entitled to prisoner of war status because the Geneva Conventions were not applicable. As the White House spokesman stated: “Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the Treaty ” (A. Fleischer, White House spokesman, Press Conference, Feb. , , at http://www.whitehouse.gov/news/releases/// -.html [hereinafter Fleischer]). Several weeks later the US Ambassador for war crimes claimed that “these aggressors initiated a war that under international law they have no legal right to wage (…) The members of Al-Qaeda fail to meet the criteria to be lawful combatants under the law of war. In choosing to violate these laws and customs of war and engage in hostilities, they become unlawful combatants. And their conduct, in intentionally targeting and killing civilians in a time of international armed conflict, constitute war crimes” (P.R. Prosper, US Ambassador for war crimes, Status and Treatment of Taliban and Al-Qaida Detainees, Statement given at the Chatham House in London, Feb. , ). Likewise, the US Defence Secretary pointed out: “The convention created, in effect, an incentive system, and it was an extremely important part of the conventions, that soldiers who play by the rules get the privileges of prisoner-of-war status. To give a POW status to people who did not respect the rules clearly would undermine the conventions’ incentive system and would have the non-intuitive effect of increasing the danger to civilians in other conflicts” (D.H. Rumsfeld, US Defence Secretary, News Briefing, Feb. , , at http:// www.defencelink.mil/transcripts//t_tsd.html). On the other hand, the US denied prisoner of war status to the members of the Taliban army because “the national security team, as you know, has always said that these detainees should not be treated as prisoners of war, because they don’t conform to the requirements of Article  of the Geneva Convention, which detailed what type of treatment would be given to people in accordance with POW standards. That’s a very easily understood legal doctrine of Article . For example, the detainees in Guantanamo did not wear uniforms. They’re not visibly identifiable. They don’t belong to a military hierarchy. All of those are prerequisites under Article  of the Geneva Convention, which will be required in order to determine somebody is a POW” (Fleischer).  This criterion is closely related, for instance, with the criterion provided for in art. ()(b) of the International Convention for the Suppression of the Financing of Terrorism of Dec. , , where it is provided that “any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in

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However, international humanitarian law has traditionally not taken into consideration this criterion for the determination of the existence of an armed order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. This criterion has also been used in some national jurisdictions to reject asylum petitions because the terrorist nature of the acts allegedly committed by the petitioners (and ultimate reason why they were sought by their States of nationality) eliminated the political character of such acts. As a result, the petitioners could not be said to be persecuted on political grounds. In the US one can cite as a paradigmatic example the case Quinn v. Robinson,  F.d  (th Cir.), where it is stated: “[] … The premise of the analyses performed by modern courts favouring the adoption of new restrictions on the use of the exception is either that the objectives of revolutionary violence undertaken by dispersed forces and directed at civilians are by definition, not political, see, e.g., Eain,  F.d at  (“Terrorist activity seeks to promote social chaos”), or that, regardless of the actors’ objectives, the conduct is not politically legitimate because it “is inconsistent with international standards of civilized conduct,” Doherty,  F.Supp. at . Both assumptions are subject to debate. [] Politically motivated violence, carried out by dispersed forces and directed at private sector institutions, structures, or civilians, is often undertaken – like the more organized, better disciplined violence of preceding revolutions – as part of an effort to gain the right to self-government. See Politics of Extradition, supra p. , at -. We believe the tactics that are used in such internal political struggles are simply irrelevant to the question whether the political offence exception is applicable. [] We now explain the reasons for our conclusion that the traditional United States incidence test by its terms (a) protects acts of domestic violence in connection with a struggle for political self-determination, but (b) was not intended to and does not protect acts of international terrorism. [] We do not question whether the IRA sought to coerce the appropriate sovereign. Nor do we pass judgment on the use of violence as a form of political coercion or the efficacy of the violent attacks in England. But, as we have already said, see supra pp. -, the word “uprising” means exactly that: it refers to a people rising up, in their own land, against the government of that land. It does not cover terrorism or other criminal conduct exported to other locations. Nor can the existence of an uprising be based on violence committed by persons who do not reside in the country or territory in which the violence occurs … Because the incidence test is not met, neither the bombing conspiracy nor the murder of Police Constable Tibble is a non-extraditable offence under the political offence exception to the extradition treaty between the United States and the United Kingdom. In the United Kingdom, one can see inter alia the case T v. Secretary of State for the Home Department []  All ER  (HL).”

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conflict. On the contrary, directing attacks against civilians or civilian objects has traditionally been considered as a grave breach of international humanitarian law which gives rise to the individual criminal responsibility of those ordering and executing such attacks. In this regard, a second aspect of the relationship between terrorism and armed conflict is the use of terror as a method of warfare. In this regard, it is important to highlight that the phenomenon of terrorism, which is characterized by the use of terror in order to obtain political gains, can take place both in situations of peace and during an armed conflict. Indeed, a second aspect of the relationship between terrorism and armed conflict is the use of terror as a method of warfare. It is often the case that the parties to an armed conflict, after having resorted to armed violence to solve their differences, decide to use terror as a method of warfare in order to gain important political and military advantages. The use of terror in an armed conflict, unlike in peace situations, is not completely prohibited by international humanitarian law. Combatants and other persons that actively participate in hostilities must bear the psychological trauma of the terror caused by the enemy through the use of lawful means and methods of warfare against which there is no possible protection. However, although not wholly forbidden, the use of terror as a method of warfare during armed conflict is subject to strict limitations, the infringement of which gives rise to individual criminal liability. In this regard, there is an absolute prohibition – in particular if such attacks aim at terrorizing a civilian population – against directing attacks against civilian persons or civilian objects, launching indiscriminate attacks and launching attacks against military objectives when it is expected that they will cause excessive incidental civilian damages in relation to the anticipated military advantage. Therefore, individual criminal responsibility arises when – as the Trial Chamber in the Galić case found occurred in the siege of Sarajevo between   As seen above, the US did not deny the existence of an armed conflict, although the US claimed that neither Al-Qaeda nor the Taliban army complied with international humanitarian law. A different matter was the US denial of prisoner of war status to the member of Al-Qaeda and the Taliban army because such organizations (more than the specific individuals who were members of them) did not operate in accordance with international humanitarian law. See on this point, G.H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants,  Am. J. of Int’l L.  ().  Art. ()(a) to (f ) AP I qualifies these attacks as grave breaches of the AP I. The are also provided for in art ()(b)(i), (ii) and (iv) and ()(e)(i) RS.  Logically, as long as such weapons do not cause superfluous injury or unnecessary suffering, they are indiscriminate because they cannot be directed against concrete military targets or limit their effects.  See on this point, R. Arnold, The ICC as New Instrument for Repressing Terrorism  (Transnational Publishers ).  Galić Appeal, supra note , ¶ .

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and  – the civilian population becomes the main target of a terror campaign, executed through selective shelling and sniping, which aims at increasing the pressure on the besieged armed forces for them to surrender. The use of terror as method of warfare against combatants and other persons who actively participate in the hostilities and are affiliated with the adverse party is also subject to important limitations. The most relevant limitation is the criminalization of the issuance of any order or declaration indicating that no quarter shall be given. According to the EC, this crime requires the issuance of an order or a declaration by a person in a position of effective command or control over the subordinate forces to which the order or the declaration is directed stating that there shall be no survivors in order to threaten an adversary or to conduct the hostilities in such a way. Furthermore, the indirect use of terror during armed conflict is also subject to important limitations due to the prohibition to use a number of means and methods of warfare. This includes, for instance, employing bullets which expand or flatten easily in the human body – such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions – and cause superfluous injury or unnecessary suffering. The fourth criterion is the continuous violation of international humanitarian law by the relevant organized armed group. However, as shown above, the requisite of putting in place a disciplinary system is limited to ensuring that the organized armed group has at its disposal the necessary mechanisms to enable it to impose on its members full respect for international humanitarian law. Moreover, the fact that members of the relevant organized armed group do not conduct themselves in accordance with international humanitarian law cannot be equated with the absence of a disciplinary system and, thus, it does not automatically exclude either the existence of an armed conflict or the application of international humanitarian law in the crisis situation at hand. Such breaches of international humanitarian law bring about a sanction for the persons committing them, which can range from the loss of prisoner of war status to the finding of individual criminal responsibility. In the author’s view, none of the above-mentioned four criteria have traditionally had any relevance in the definition of the notion of armed conflict or  Galić Judgement, supra note , ¶ -. Art. () of the Spanish Criminal Code goes further because it criminalizes the commission, or the issuance of an order to commit, acts of terror against, or threats intended to terrorize, the civilian population.  This finding was upheld by the Galić Appeal, supra note , ¶ -.  See art. ()(b)(xii) and (e)(x) RS and the elements of the war crime of declaring that no quarter shall be given.  Art. ()(b)(xix).  See, for instance, art. .A() CG III and art. () and () AP I.

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in the determination of the scope of application of international humanitarian law. Furthermore, considering that international humanitarian law aims at limiting the suffering and damage caused by armed conflicts (in particular to those persons who are not combatants and do not actively participate in the hostilities), one should have reservations on the legal appropriateness and the political opportunity of limiting the notion of armed conflict and the scope of application of international humanitarian law through the use of any such criteria. A different question is whether the control of a part of the territory of the relevant State by the opposing organized armed group is still a requisite for a given crisis situation to amount to an armed conflict. This requisite is part of the traditional notion of armed conflict, at least as defined by art. () AP II. Moreover, in the author’s view, the best way to overcome the vagueness of the notion of armed conflict embraced by the ICTY’s case law is to maintain the territorial control requisite – at least as long as there is no general agreement on any other alternative criterion that would allow for a clear distinction between situations of armed conflict and situations of internal disturbances and tensions resulting from repeated acts of terrorism. However, one must concede that the statements in ICTY’s case law that the territorial control requisite has been eliminated by the evolution of customary international law since  raises some doubts about its current applicability. III...

The Notion of Armed Conflict in the RS

Art. ()(d) and (f ) RS contains a negative definition of the notion of armed conflict, according to which “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of similar nature” are not part of this notion. Furthermore, art. () RS adds that “nothing in paragraph (c) and (e) shall affect the responsibility of a Government to maintain or reestablish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means”. Moreover, art. ()(f ) RS, at least in relation to those crimes provided for in art. ()(e) RS, removes any doubt about the inclusion of confrontations between organized armed groups as such within the notion of armed conflict and adds as a new requisite the “protracted” character of the armed conflict. Some legal writers, as well as the Trial Chamber in the Milošević case, have seen in the new requisite of the “protracted” character of the armed conflict,  M. Cottier, W.J. Fenrick, P.V. Sellers & A. Zimmerman, Article . War Crimes, Commentary on the Rome Statute of the International Criminal Court  (O. Triffterer ed., Nomos, Baden-Baden, ) [hereinafter Cottier, Article ].  For the Trial Chamber in the Milošević case, the Tadić test is consistent with the treatment of war crimes committed in non-international armed conflicts in art.  RS. Moreover, according to the Chamber, art.  RS expressly embraces, at least partially, the Tadić test by referring to protracted armed conflicts between governmen-

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

evidence of the implicit adoption by the RS of the definition of armed conflict embraced by ICTY’s case law. However, in the author’s view, this comparison is far from evident because it is one thing to require the existence of a crisis situation in which the concerned parties resort to armed violence to solve their disputes during a given period of time; it is another thing to require for the armed conflict itself to have a “protracted” character. The EC offer no guidance on this matter because they do not provide for a definition of armed conflict or an enumeration of the criteria with which a given crisis situation must comply in order to legally constitute an armed conflict. Therefore, it will be left to the ICC’s case law to provide for a clear definition of the notion of armed conflict. To carry out this task, the ICC will have as the main tool for interpretation the above-mentioned legislative and case law precedents. However, according to art. () RS, the use of international humanitarian law as a tool for interpretation is subject to the consistency between the interpretations derived from it and “internationally recognized human rights”. It is precisely in this ambit where decisions such as those taken by the IACHR in the Tablada case could be relevant to differentiate between situations of armed conflict and situations of internal disturbances and tensions caused by repeated acts of terrorism. In that case, the Inter-American Commission held that situations of internal disturbances and tensions may include large scale violent demonstrations, the throwing of stones by students, the taking of hostages by ordinary criminals or even the assassination of State functionaries or members of the Government for reasons related to governmental management or policies. For the Inter-American Commission, what distinguishes situations of internal disturbances and tensions from situations such as the seizure of the military barracks at La Tablada and the confrontation that occurred during the following  hours between those who had seized the barracks and the Argentinean armed forces is: (i) the concerted nature of the military operations carried out by the attackers; (ii) the direct involvement of the governmental armed forces and (iii) the nature and intensity of the armed violence used during the confrontation. Therefore, in spite of the brief duration of the confrontation, the Commission considered that those seizing the barracks had carefully planned and executed in a concerted manner an attack against a military objective and, thus, the applica-

tal authorities and organized armed groups or between such groups (see Milošević Decision, supra note , ¶ ).  Tadić Jurisdiction Decision, supra note , ¶ .  See the references to international humanitarian law as a tool for interpretation in arts. ()(b) and (e) and () RS.  Juan Carlos Abella v. Argentina, Case ., Inter-Am. C.H.R., Report No. / ¶ - ().

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tion of international humanitarian law had been triggered during the time the confrontation lasted. Needless to say, the decision of the Inter-American Commission in the Tablada case embraces a notion of armed conflict which is substantively different than the one provided for in art. () AP II. Indeed, for the Inter-American Commission, the territorial control requisite is no longer applicable. Moreover, its definition of armed conflict, although closer to the one embraced by the ICTY’s case law, is considerably less demanding. In any event, it is important to highlight that the recent Decision on the confirmation of the charges in the Lubanga case, after analysing the different notions of armed conflict embraced by the AP II and the ICTY’s case law, implicitly acknowledges the difference between the use of armed violence during a giving period of time to solve a dispute and the existence of an armed conflict of a “protracted” character. Indeed, such a decision first highlights the “protracted” character that an armed conflict must have in order for the offences under art.  ()(e) RS to be applicable and subsequently finds that the relevant organised armed groups controlled a part of the territory of Ituri at the time relevant to the Prosecution Charging Document. III..

Geographical and Temporal Scope of an Armed Conflict

Although the EC of any of the war crimes provided for in the RS expressly set forth the requisite that the forbidden behaviour must take place “in the context of ” an armed conflict, they do not define the geographical and temporal scope of the notion of armed conflict. This issue has been addressed by the case law of the Appeals Chamber of the Ad hoc Tribunals. According to its case law, international humanitarian law applies from the initiation of an armed conflict and extends beyond the cessation of hostilities until a general conclusion of peace is reached (international armed conflicts) or, in the case of non-international armed conflicts, a peace    

Lubanga Confirmation of Charges, supra note , ¶ -. Id. at ¶ . Id. Id. at ¶ ,  and . See the elements of each war crime provided for in the RS, including the attacks directed against civilians or civilian objects (art. ()(b)(i) and (ii) and (e)(i) RS) and the disproportionate attacks (art. ()(b)(iv) RS).  On the ways in which armed conflicts may end, and especially on peace treaties, see Y. Dinstein, The Initiation, Suspension and Termination of War, International Law across the Spectrum of Conflict: Essays in Honour of Professor L.C. Green on the Occasion of His Eightieth Birthday - (M.N. Schmitt ed., Naval War College ).

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

ful settlement is achieved. Furthermore, the temporal scope of application of international humanitarian law extends beyond the end of an armed conflict until prisoners of war and civilians detained in relation to the armed conflict are repatriated or released, as the case may be. As a consequence, the determination of the starting date of an armed conflict is a key factor in determining whether war crimes have taken place in any given crisis situation. Concerning international armed conflicts, the ICTY’s case law and State practice have made it clear that the starting date of the conflict coincides with the initial use of armed violence by one of the parties to the conflict, regardless of the issue of a declaration of war. Concerning non-interna Tadić Jurisdiction Decision, supra note , ¶ . Therefore, some of the most horrendous atrocities committed in the th century, such as the liquidation of the kulaks in the Soviet Union or the main phases of the Khmer Rouge’s terror campaign, do not constitute war crimes because they took place after the end of the armed conflicts.  The case of General Noriega, detained in the US since , is a good example. In spite of being finally convicted for drug trafficking in the US, General Noriega maintains his prisoner of war status – officially acknowledged by both the US and the ICRC – insofar as he was captured and brought to the US during the US military operations in Panama in . Nevertheless, this has not prevented Panama and the US from normalizing relations some time ago.  Tadić Jurisdiction Decision, supra note , ¶ . See also the Tadić Judgement, supra note , ¶  and ; Čelebići Judgement, supra note , ¶ ; Furundžija Judgement, supra note , ¶ ; Aleksovski Judgement, supra note , ¶ ; Jelisić Judgement, supra note , ¶ ; and Blaškić Judgement, supra note , ¶ .  For instance, in , when Syrian antiaircraft batteries shot down a US aircraft in Lebanon and captured the pilot, the US considered that the resort to armed force by Syria in this incident had generated a situation of armed conflict between Syria and the US. Therefore, the application of international humanitarian law had been triggered (see M.N. Leich ed., Digest of United States Practice in International Law (-)  (Dep’t of State ).) Nevertheless, the isolated use of armed force in self-defence by participants in peacekeeping missions established pursuant to Chapter VI of the UN Charter could constitute an exception to the above-mentioned rule. This exception would be justified by the comparison, as far as possible, between the status of those participating in Chapter VI peacekeeping missions and the status of the civil protection personnel of the parties to the conflict. As a result, in case of provocation by the armed forces of any of the parties to the conflict, participants in Chapter VI peacekeeping missions, despite not having combatant status, could use armed force in self-defence. However, this exception would not be applicable in case of use of armed force by participants in peace-enforcing missions under Chapter VII of the UN Charter. This position is held, inter alia, by W.G. Sharp, Sr., Protecting the Avatars of International Peace and Security,  Mich. J. Int’l L. - (-). The opposite position is held by C. Greenwood, International Humanitarian Law and United Nations Military Operations,  Y.B. Int’l Humanitarian L. - (). In any event, it will be up the ICC’s case law to decide on the applicability of the abovementioned exception, considering that current art. ()(b)(iii) and (e)(iii) RS does not offer a clear answer insofar as the criminal nature of the attacks against “personnel, installations, material, units or vehicles involved in a humanitarian assistance

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tional armed conflicts, the starting date of the conflict is the moment when a crisis situations within a State turns from an issue of public order – insofar as it constituted a situation of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature – into an armed conflict regulated by international humanitarian law. During the above-mentioned time period, international humanitarian law is applicable in the whole territory of the warring States (international armed conflicts) or, in the case of non-international armed conflicts, in the whole territory under the control of any of the parties to the conflict, whether or not actual combat takes place there at a given moment. For this reason, war crimes, insofar as they are serious violations of international humanitarian law, can in principle be committed in areas which are far away from the places where military operations are taking place. or peacekeeping mission in accordance with the Charter of the United Nations” is subject to their being “entitled to the protection given to civilians or civilian objects under the international law of armed conflict”.  Art. ()(d) and ()(f ) RS.  Although the Geneva Conventions do not address the issue of the territorial scope of application of international armed conflicts, the Tadić Jurisdiction Decision, supra note , ¶  underscored that “at least some of the provisions of the Conventions apply to the entire territory of the Parties to the Conflict not just to the vicinity of actual hostilities … With respect to prisoners of war, the Convention applies to combatants in the power of the enemy; it makes no difference whether they are kept in the vicinity of hostilities. In the same vein, Geneva Convention IV protects civilians anywhere in the territory of the Parties”. This position has been consistently followed by the ICTY’s case law. For instance, the Čelebići Judgement, supra note , ¶ ,  and  stated that “whether or not the conflict is deemed to be international or internal, there does not have to be actual combat activities in a particular location for the norms of international humanitarian law to be applicable. Thus, the Trial Chamber is not required to find that there existed an ‘armed conflict’ in the Konjić municipality itself but, rather, in the larger territory of which it forms part … There need not have been actual armed hostilities in the Konjić municipality in order for the norms of international humanitarian law to have been applicable. Nor is it required that fighting was taking place in the exact time-period when the acts alleged in the Indictment occurred.” Likewise, the Kordić Judgement, supra note , ¶  pointed out that “in this regard the Trial Chamber observes that, in order for norms of international humanitarian law to apply in relation to a particular location, there need not be actual combat activities in that location. All that is required is a showing that a state of armed conflict existed in the larger territory of which a given location forms a part”. See also the Prosecutor v. Milorad Kunarac, Case No. IT-- and /-A, Appeal Judgement ¶  ( June , ) [hereinafter Kunarac Appeal].  Nevertheless, there are some war crimes, such as the attacks directed at civilians or civilian objects and the disproportionate attacks, which, insofar as they are serious violations of the rules developing the principle of distinction in the conduct of hostilities, can be only committed in those areas where military operations take place. Blaškić Judgement, supra note , ¶ - has expressly affirmed that there is no need

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Material Contextual Elements III..



Link between the Forbidden Behaviour and the Armed Conflict

The objective elements of any of the war crimes included in the RS require not only that “the conduct took place in the context of ” an armed conflict but that it also “was associated with such armed conflict”. Therefore, carrying out the forbidden behaviour in the context of an armed conflict is not sufficient for the commission of a war crime. It is necessary for the forbidden behaviour to be associated with such armed conflict. This requisite derives from the conception of war crimes as grave breaches of those norms which regulate the way in which the parties to the conflict must conduct themselves during an armed conflict. Therefore, absent any relationship between the forbidden behaviour and the ongoing armed conflict, one can only qualify such behaviour as an ordinary crime committed in wartime. Neither the RS nor the EC define the nature of the required link. The Appeals Chamber of the Ad hoc Tribunals has said on this matter that it is not necessary for a direct link between the forbidden conduct and the armed conflict to exist – in the sense that the forbidden behaviour does not need to take place in the midst of the combat. According to the Appeals Chamber, it is sufficient for the forbidden behaviour to be closely related to the hostilities which take place in any part of the territory controlled by any of the parties to the conflict. In other words, it suffices to show that the existence of the armed conflict has had some influence in the implementation of the forbidden conduct. The Decision on the confirmation of the charges in the Lubanga case, in addition to endorse the above-mentioned case law of the Appeals Chamber of

 



 

to prove the existence of an armed conflict in each of the municipalities where the crimes included in the indictment have been allegedly committed. See the elements of each war crime provided for in the RS, including the attacks directed against civilians or civilian persons (art. ()(b)(i) and (ii) and (e)(i) ) RS and the disproportionate attacks (art. ()(b)(iv) RS). As the Čelebići Judgement, supra note , ¶  has pointed out: “It is axiomatic that not every serious crime committed during the armed conflict in Bosnia and Herzegovina can be regarded as a violation of international humanitarian law. There must be an obvious link between the criminal act and the armed conflict. Clearly, if a relevant crime was committed in the course of fighting or the take-over of a town during an armed conflict, for example, this would be sufficient to render the offence a violation of international humanitarian law. Such a direct connection to actual hostilities is not, however, required in every situation.” K. Dörmann, Crímenes de Guerra en los Elementos de los Crímenes, La Nueva Justicia Penal Supranacional. Desarrollos Post-Roma  (K. Ambos ed., Tirant lo Blanch ). For instance, this would be the case where a jealous soldier murdered a former neighbour who, due to his nationality, is affiliated with the adverse party. Tadić Jurisdiction Decision, supra note , ¶ . Kunarac Appeal, supra note , ¶  and Prosecutor v. Rutaganda, Case No. ICTR--A, Appeal Judgement ¶ - (May , ) [hereinafter Rutaganda Appeal].

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the Ad Hoc Tribunals, highlighted that the armed conflict, although it does not need to be the ultimate cause of the forbidden behaviour, must have played a substantial role in the perpetrator’s decision to carry it out, in the perpetrator’s ability to execute it or in the way in which the forbidden behaviour was finally carried out.This does not mean, however, that the perpetrator must be part of the armed forces of any of the parties to the conflict because, as some legal writers have rightly pointed out, war crimes can also be committed by persons who are not combatants and do not actively participate in the hostilities. III.

International or Non-International Character of the Armed Conflict

The RS follows the traditional distinction between conduct that gives rise to individual criminal responsibility in international armed conflicts and conduct that gives rise to criminal liability in non-international armed conflicts. As a result, art. () RS criminalizes in paragraphs (a) and (b) the grave breaches of the Geneva Conventions and other serious violations of the laws and customs of war applicable in international armed conflicts. On the other hand, paragraphs (c) and (e) of art. () RS criminalize serious violations of common art.  to the Geneva Conventions and other laws and customs of war applicable in non-international armed conflicts.

 Lubanga Confirmation of Charges, supra note , ¶ . In the same sense the Kunarac Appeal, supra note , ¶  and the Rutaganda Appeal, supra note , ¶ -. For instance, this would occur in those cases in which the perpetrator carries out the forbidden behaviour under the auspicies of armed conflict. Furundžija Judgement, supra note , ¶  and - found that the mistreatment of victims as part of a military unit’s questioning process constituted a sufficient connection with the armed conflict.  As K. Dörmann, E. La Haye, & H. Von Hebel, The Context of War Crimes, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed. ), have pointed out, during the negotiation process that led to the approval of the EC “there was a consensus among delegations that a wide interpretation should be given to the concept of ‘perpetrator’. Depending on the character of the conflict, a perpetrator could, inter alia, be a member of the armed forces, of an armed group or rebel group or a civilian. It was finally considered unnecessary to introduce an element defining the perpetrator”. The same position had already been adopted in several judgements pronounced after WW II, such as the The Tokyo Judgement, The International Military Tribunal for the Far East, Apr. .  – Nov. ,  (B. Roling & C. Ruter eds., ) or the judgements in the Essen Lynching, Robert Wagner, Flick, I.G. Farben or Krupp (United States v. Alfred Krupp,  United Nations War Crimes Commission, Law Reports of Trial of War Criminals  ()) cases. In the last case, the judgement underlined that “the laws and customs of war are binding no less upon private individuals than upon government officials and military personnel. In case they are violated there may be a difference in the degree of guilt, depending upon the circumstances, but none in the fact of guilt”.

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The ultimate reason for this choice is that the drafters of the RS intended to criminalize a broader range of conduct in relation to international armed conflicts given the higher degree of protection granted by international humanitarian law during this type of armed conflict. As a result, as seen above, the international or non-international character of the armed conflict has become a material contextual element of all war crimes provided for in the RS. The adoption of this traditional approach – as opposed to recent approaches that try to overcome the dichotomy between conduct criminalized in international and non-international armed conflicts by emphasizing the existence of a core part of international humanitarian law applicable to all types of armed conflicts – will likely reproduce the same evidentiary problems faced by the ICTY. In this regard, it is important to highlight that – save for the legal qualification of the crisis situation in Kosovo after the signature of the Dayton Agreements in  – the existence of an armed conflict in the territory of the former SFRY since  has never been particularly contentious. However, the international or non-international character of such armed conflict has been the subject of neverending disputes due to its important political implications. For the authorities of the FRY, the Republics which proclaimed their independence in  (Slovenia, Croatia, BiH and Macedonia) unilaterally broke away from the former SFRY, whose legal personality was not affected. On the other hand, for the authorities of Slovenia, Croatia, BiH and Macedonia, the former SFRY was dissolved because the majority of the Republics that were part of it so decided – and, thus, none of them unilaterally broke away from the former SFRY. As a result, the international legal personality of the SFRY would have become extinct and all six Republics that were part of SFRY should be considered as equal successors. This controversy is, for the most part, the result of political and economic problems because it has a direct repercussion on the distribution of property and other immaterial rights which belonged to the SFRY at the beginning of  Von Hebel, Crimes, supra note , at p. .  See supra section III..  This distinction has been criticized by J. Urbina, La Protección de las Víctimas de los Conflictos Armados, Naciones Unidas y Derecho Internacional Humanitario: Desarrollo y Aplicación del Principio de Distinción entre Objetivos Miltiares y Bienes de Carácter Civil  (Tirant lo Blanch/Cruz Roja Española ).  Some decision of the Appeals Chamber of the Ad hoc Tribunals seem to go in this direction. See particularly, Tadić Jurisdiction Decision, supra note , ¶ , , ,  and  and Strugar Interlocutory Decision, supra note , ¶ ,  and .  Dissolution of SFRY, European Community Arbitration Commission, Opinion No. , printed in  Int’l Legal Materials  ().  Id.  M.C.R. Craven, The European Community Arbitration Commission on Yugoslavia,  British Y.B. Int’l L.  ().

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. Unfortunately, this dispute very much complicated the determination of the international or non-international character of the armed conflict that took place in the territory of the former SFRY since . For instance, the qualification of the conflict that took place in the territory of present-day Croatia during the second half of  as an international armed conflict was subject to the compliance by the Republic of Croatia – at least since  October  (the date on which the independence of Croatia became effective) – with the requisites provided for in public international law for the acquisition of statehood. However, the requisites for statehood are not the same if Croatia unilaterally broke away from the former SFRY than if Croatia is considered to be a successor State of the extinct SFRY. Indeed, the requisites for the acquisition of statehood are applied far more strictly in cases of unilateral secession than in cases of territorial devolution or dissolution of the pre-existing political entity. In cases of unilateral secession, the new political entity must show a far higher degree of effective control over its territory in order to defeat the presumption that public international law sets forth in favour of the integrity and effectiveness of the predecessor State. Therefore, if the crisis situation that occurred in the former SFRY in  is considered to be an attempt by Croatia and other Republics to unilaterally break away from the SFRY, there will exist an strong presumption against the statehood of Croatia in  – and, thus, against the international character of the armed conflict that took place in present-day Croatia in the second half of . On the other hand, if the crisis situation in the former SFRY is seen as a case of dissolution of the pre-existing political entity, the above-mentioned presumption will not be applicable insofar as the pre-existing political entity would have disappeared and, thus, it could no longer be in a  D.P. O’Connell, State Succession in Municipal and International Law - (Cambridge University Press ); R.Y. Jennings & A. Watts eds., Oppenheim’s International Law - (th ed., Longman ).  This option is not applicable in the crisis situation in the former SFRY because the former SFRY political institutions repeatedly opposed the independence of the different Republics, including Croatia. For instance, in a statement made on  June , the then-Prime Minister of the former SFRY stated that the federal government would use all means within its power to prevent some of the Republics from continuing on their unilateral path towards independence (statement cited by M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia,  Am. J. Int’l L.  ().  As J.W. Crawford, State Practice and International Law in Relation to Secession,  British J. Int’l L. - () [hereinafter Crawford, State Practice] has pointed out: “Since  the international community has been extremely reluctant to accept unilateral secession of parts of independent States in situations where the secession is opposed by the government of that State. In such cases the principle of territorial integrity has been a significant limitation”. Concurring, M.C.R. Craven, The European Community Arbitration Commission on Yugoslavia,  British Y.B. Int’l L.  ().

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position to consent to territorial secession. Moreover, one has to bear in mind that it is particularly difficult to distinguish cases of dissolution of a pre-existing political entity from cases of unilateral secession when what started as a unilateral secession results in the dissolution of the pre-existing State. In any event, regardless of the solution finally chosen by the ICTY’s case law, it is important to highlight that the question of the international or non-international character of the armed conflict in the former SFRY unexpectedly became the subject of an intense litigation before the ICTY – a sort of additional chapter to the broader political and economic dispute on the nature of the crisis situation in the former SFRY. The drafters of the RS squandered the opportunity to prevent this kind of problem from arising in the future by deciding on the range of behaviours to be criminalized in light of the societal value undermined by them. The loss of this opportunity is striking if one considers the careful selection process based on gravity of the war crimes included in the RS on the one hand, and the case law of the Appeals Chamber of the Ad hoc Tribunals which has consistently affirmed the existence of a core part of international humanitarian law that is common to any kind of armed conflict. Neither the RS nor the EC establish criteria to determine when an armed conflict is of an international character apart from saying that “the term ‘international armed conflict’ includes military occupation”. As a result, the definition contained in common art.  to the Geneva Conventions and its interpretation by the Appeals Chamber of the Ad hoc Tribunals have become essential tools for the interpretation of the content of expression “international armed conflict” in the RS. Common art.  of the Geneva Conventions establishes that all Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. Subsequently, it adds that all Conventions “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.  Crawford, State Practice at p. .  As Crawford, State Practice at p. , has pointed out: “The dissolution of a State may be initially triggered by the secession or attempted secession of one part of that State. If [however] the process goes beyond that and involves a general withdrawal of all or most of the territories concerned, and no substantial central or federal component remains behind, it may be evident that the predecessor State as a whole has ceased to exist”.  See Tadić Jurisdiction Decision, supra note , ¶ , , ,  and  and the Strugar Interlocutory Decision, supra note , ¶ ,  and .  See footnote  of the EC.

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According to the ICRC, this provision means that any dispute between two or more States which brings about the intervention of their respective armed forces must be considered an international armed conflict regardless of the duration of the conflict and the number of victims impacted; the fact that the concerned States deny the existence of a state of war is wholly irrelevant for this purpose. The ICTY’s case law has also followed this interpretation. As a consequence, it can be stated that an armed conflict starts any time two or more States resort to armed violence in order to solve a dispute, which also includes cases of occupation of all or part of the territory of a third State, regardless of whether or not such occupation encounters military resistance. Conversely, armed conflicts which are not initially of an international character may, under some circumstances, become international. In this regard, the Trial Chamber in the Tadić case stated that those armed conflicts which arise within the territory of a State may become international if: (i) the armed forces of a third State directly participate in such conflict (direct intervention) or (ii) any of the parties to the conflict acts on behalf of a third State (indirect intervention). The ICTY’s case law has found, for instance, that Croatia directly intervened in the armed conflict between the ABiH and the HVO in BiH due to the significant and protracted support given by the Croatian armed forces to the HVO. The ICTY’s case law has also considered confrontations in which there was not such a direct link as international armed conflicts. For instance, the Trial Chamber in the Kordić case found that Croatia directly intervened in the conflict between the HVO and the ABiH in Central Bosnia due to the deployment of the Croatian armed forces in that region to support the HVO in its con O. Uhler & H. Coursier, Commentary on IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC  () [hereinafter Uhler, Commentary].  See, for instance, the Tadić Judgement, supra note , ¶ - and  and the Čelebići Judgement, supra note , ¶ . See also the Prosecutor v. Duško Tadić, Case No. IT---A, Appeal Judgement ¶  ( July , ) [hereinafter Tadić Appeal].  Tadić Jurisdiction Decision, supra note , ¶ .  As M. Bothe, War Crimes, The Rome Statute of the International Criminal Court: A Commentary  (A. Cassese, P. Gaeta, & J.R.W.D Jones eds., Oxford University Press ) has underscored: “The Conventions, according to Article , apply ‘to all cases of declared war or of other armed conflict between two or more High Contracting Parties’. Practically all States ( as of Dec. ) are parties to the Geneva Conventions. Thus, the question of the relationship between a party and a non-party arises only in cases where there is an entity claiming the status of a state, although it is not generally recognised as such”.  Tadić Judgement, supra note , ¶ .  Prosecutor v. Ivica Rajić, Case No. IT---T, Review of the Indictment Pursuant to Rule  of the Rules of Procedure and Evidence ¶  (Sept. , ).

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frontation with the VRS. According to the Trial Chamber, the deployment of the Croatian armed forces allowed the HVO to use more human and logistical resources in its confrontation with its former allies of the ABiH. Far more complex is the issue concerning the requisites that must be met for a third State to indirectly intervene in an armed conflict which does not take place within its territory. The ICJ, in the Nicaragua case, used the notion of effective control to decide on the Nicaraguan claim that State responsibility had arisen from the alleged US indirect intervention in favour of the organized armed group (called the Contra Nicaraguense) which was fighting against the Nicaraguan governmental armed forces. According to the ICJ, the US had effective control over the Contra Nicaraguense and, thus, was responsible for unlawfully interfering in the internal affairs of Nicaragua. However, the Appeal Judgement in the Tadić case rejected the effective control requisite and put forward the overall control requisite – which has been consistently applied by the ICTY’s case law and is currently supported by a  Kordić Judgement, supra note , ¶ .  Id.  Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.),  I.C.J Rep. , - ( June ).  Tadić Appeal, supra note , ¶ .  Prosecutor v. Zlatko Aleksovski, Case No. IT--/-A, Appeal Judgement ¶  (March , ) [hereinafter Aleksovski Appeal] pointed out in relation to the overall control requisite that “to the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure ‘protection of civilians to the maximum extent possible’”. Subsequently, Prosecutor v. Zejnil Delalić et al., Case No. IT---A, Appeal Judgement (Feb. , ) [hereinafter Čelebići Appeal] rejected again the effective control requisite set out by the ICJ in the Nicaragua case and reaffirmed the overall control requisite. As the Appeals Chamber put it at paragraph G: “It is unable to find cogent reasons in the interests of justice to depart from the law as identified in the Tadić Judgement, supra note . The ‘overall control’ test set forth in the Tadić Appeal, supra note , is thus the applicable criteria for determining the existence of an international armed conflict”. Also in the Čelebići Appeal, paragraph , the Appeals Chamber noted that the rejection of the effective control requisite in favour of the overall control requisite “may be indicative of a trend simply to rely on the international law on the use of force, jus ad bellum, when characterising the conflict. The situation in which a State, the FRY, resorted to the indirect use of force against another State, Bosnia and Herzegovina, by supporting one of the parties involved in the conflict, the Bosnian Serb forces, may indeed be also characterised as a proxy war of an international character. In this context, the ‘overall control’ test is utilised to ascertain the foreign intervention, and subsequently, to conclude that a conflict which was prima facie internal is internationalized”.

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number of legal writers. According to the overall control requisite, an indirect intervention by a third State takes place – and, thus, an armed conflict becomes an international armed conflict – when such a third State, in addition to financing, training, equipping and providing logistical support to one of the parties to the conflict, plays a role in the organization, coordination or planning of its military operations. The overall control requisite is only applicable in those cases in which the party to the conflict under the alleged overall control of a third State is an organized armed group, i.e. a group with a sufficient degree of internal organization so as to: (i) act under a responsible command; (ii) have a disciplinary system which enables the group to impose respect for international humanitarian law on its members and (iii) have an internal structure which enables the group to plan and execute concerted military operations for a given period of time. In those other cases in which a third State has control over isolated individuals or armed groups which do not meet the above-mentioned criteria, one can only state that a third State has directly intervened in the conflict if such individuals or armed groups can be assimilated to organs of that third State or receive instructions from it. The recent Decision on the confirmation of the charges in the Lubanga case has relied on Common article  to the Geneva Conventions and the ICTY’s case law to establish the criteria to determine when an armed conflict is of an international character. As a result, it has declared that (i) an armed conflict is of an international character when two or more states resort to armed violence in order to solve a dispute, which includes cases of occupation of all or part of the territory of a third State, no matter whether such occupation encounters military resistance and (ii) an armed conflict which is not initially of an international character becomes international as a result of either the direct intervention of a third State

 See, among others, M. Sassoli & L.M. Olson, The Judgment of the ICTY Appeals Chamber on the Merits in the Tadić Case, Rev. Int’l Comm. Red Cross  (); T. Meron, Classification of Armed Conflict in the former Yugoslavia: Nicaragua’s Fallout,  Am. J. Int’l L.  ().  Tadić Appeal, supra note , ¶ ; The Čelebići Judgement, supra note , ¶  found that this requisite had been met as a result of the FRY’s overall control over the VRS during the armed conflict in which the VRS was involved in BiH: “The purported withdrawal of the JNA and severance of involvement of the FRY in the conflict after  May  was merely a smokescreen and that there can be no doubt of their continued influence. There was a clear common purpose between the FRY and the Bosnian Serbs to execute a project conceived of in Belgrade – that of an expanded Serbian State – and it is, therefore, possible to regard the Bosnian Serbs as acting on behalf of the FRY in its continuing armed conflict against the authorities of Bosnia and Herzegovina”.  Tadić Appeal, supra note , ¶ .

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or its indirect intervention in light of the overall control test set out in the Appeal Judgement in the Tadić case.  III. The Protected Status of the Persons or Objects Subject to the Forbidden Behaviour The second material contextual element is the protected status that the persons or objects subject to the forbidden behaviour have according to international humanitarian law. Any action or omission which does not affect a person or object protected by international humanitarian law does not amount to a serious violation of international humanitarian law and, thus, it cannot constitute a war crime. The war crimes provided for in the RS can be classified into three main groups according to the status of the persons and objects subject to the forbidden behaviour. The first group includes those war crimes included in art. ()(a) RS which can only be committed against persons or objects protected by the Geneva Conventions of . In general, the Geneva Conventions give protection to the following categories of persons: (i) sick, wounded, shipwrecked and religious and medical personnel of the armed forces of a party to the conflict who are in the hands of the adverse party; (ii) prisoners of war who are in the hands of the adverse party and (iii) the civilian population and civilian persons who are in the hands of a party to the conflict, or an occupying power, of which they are not nationals or to which they are not affiliated – save for the case of nationals of neutral or co-belligerent States with diplomatic representation in the State in which they reside. Therefore, it can be stated that the Geneva Conventions only grant protection after the relevant persons have fallen into the hands of an adverse party to the conflict. In the case of combatants or persons who, despite not being combatants, directly participate in the hostilities, this will only occur from the moment when they are detained by the adverse party – unless they have clearly surren    

Lubanga Confirmation of Charges, supra note , ¶ -. Arts. , ,  and  GC I, and arts. ,  and  GC II. See art.  GC III. See arts.  and  GC IV. Tadić Appeal, supra note , ¶ -, Čelebići Appeal, supra note , ¶ - and the Prosecutor v. Mladen Naletilić (aka “Tuta”) and Vinko Martinović (aka “Štela”), Case No. IT---T, Judgement ¶  and  (Mar. , ) [hereinafter Tuta and Štela Case], replaced the nationality link with the affiliation or alliance between the individual and the relevant party to the conflict. This new case law has emerged in the context of an armed conflict such the one occurred in the former SFRY in which the ethnic and religious ties were far stronger than the nationality ties.  See arts.  and  GC IV.

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dered and put down their weapons or they are unable to defend themselves any longer due to their injuries. In the case of civilians, this will take place from the moment when the adverse party seizes effective control over the area in which they reside.As a result, the protection offered by the Geneva Conventions does not extend to those persons located in combat areas which have not yet fallen into the hands of the attacking party. Consequently, such protection has no impact on the execution of military operations in combat situations. Concerning crimes provided for in art. ()(a) RS, the Geneva Conventions give protection to the following categories of objects: (i) medical units, establishments and vehicles – no matter whether they are mobile or fixed or whether they have a civilian or a military character – as well as any object belonging to aid societies such as the ICRC and (ii) any other public or private property located in an area under occupation.  See the Tadić Judgement, supra note , ¶  and the Čelebići Judgement, supra note , ¶ .  The only exception to this rule refers to medical and religious personnel of the armed forces in charge of assisting ill and wounded persons. Art.  GC I provides that “medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances”. And art.  GC I adds that “members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands”. See also arts.  and  GC I and art.  GC II.  G. Schwarzenberger, International Law as Applied by International Courts and Tribunals - (Stevens and Sons ), partially referring to the Geneva Conventions, has stated that the rule on belligerent occupation “applies only to invaded territory, but not to the whole of such territory. It does not extend to invaded enemy territory in which fighting still takes place or to those parts of it which the territorial sovereign may have abandoned, but in which the invader has not yet established his own authority…. In invaded territory which is not yet effectively occupied, the invader is bound merely by the limitations which the rules of warfare stricto sensu impose. The protection which the civilian population in such areas may claim under international customary law rests on the continued application in their favour of the standard of civilization in all matters in which this does not run counter to the necessities of war”.  The Geneva Conventions grant also protection to other types of objects such as those in the possession of individuals belonging to any of the above-mentioned categories of protected persons. However, in principle, causing harm or unlawfully seizing those objects constitutes neither a grave breach of the Geneva Conventions nor a crime under art. ()(a) RS.  See arts. , , ,  and  to  GC I and arts. ,  to , ,  and  GC II.  See arts. , , , , , , ,  and  GC IV.

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Medical objects are protected at any time during the armed conflict, including during the execution of military operations in combat situations. They only lose their protection if they are used for military purposes and exclusively while they are actually being used for such purposes. Furthermore, in this last scenario, medical objects only lose their protection after the expiration of the deadline which the attacking party must give before attacking them in order for the adverse party to stop using such objects for military purposes. Only under these exceptional circumstances can an attack be launched against medical units, establishments or vehicles, no matter whether military necessity might call for their attack under different circumstances. On the other hand, those objects located in an area under occupation – in addition to not having protection in combat situations in which the disputed areas are not in the hands of the attacking party – can be subject to lawful destruction or appropriation if military necessity so requires. Therefore, save for attacks against medical units, establishments or vehicles, those war crimes provided for in art. ()(a) RS do not cover conduct carried out during the conduct of hostilities. The second group of war crimes includes those provided for in art. ()(c) RS. They can be committed against persons “taking no active part in the hostilities, including members of armed forces who have laid down their arms and  See, for instance, art.  GC IV.  See on this point, K. Dörmann, Preparatory Commission for the International Criminal Court: The Elements of War Crimes,  Rev. Int’l Comm. Red Cross - ().  The RS, the EC and the CG give no definition of the expression “occupied territory”. Hence, as the Kordić Judgement, supra note , ¶  pointed out, it is necessary to resort to the definition provided for in art.  of the Regulations Annexed to the Hague Convention IV. According to this provision, “territory is considered occupied when it is actually placed under the authority of the hostile army”. Besides, “the occupation extends only to the territory where such authority has been established and can be exercised”. On this basis, the Blaškić Judgement, supra note , ¶  has stated that occupied territory is the territory under the overall control of an adverse party. This would include situations where persons allegedly affiliated to the occupying party act without the knowledge of the occupying authorities. In this way, emphasis is put on the obligation of the occupying party to effectively exercise its control over the occupied territory.  Uhler, Commentary, supra note , at p. , has stated that “the Fourth Geneva Convention forbids the destruction of civilian hospitals and their property or damage to ambulances or medical aircraft. Furthermore, the Occupying Power may not destroy in occupied territory (Article ) real or personal property except where such destruction is rendered absolutely necessary by military operations. On the other hand, the destruction of property on enemy territory is not covered by the provision. In other words, if an air force bombs factories in an enemy country, such destruction is not covered either by Article  or by Article ”.  The same interpretation has been adopted by the Blaškić Judgement, supra note , ¶  and the Kordić Judgement, supra note , ¶ .

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those placed hors de combat by sickness, wounds, detention or any cause”. As the EC point out, it is necessary for the concerned persons to be hors de combat or to be civilians, medical personnel or religious personnel taking no active part in the hostilities. It is not, however, necessary for the concerned persons to be in the hands of the adverse party. Therefore, those war crimes provided for in art. ()(c) RS can be committed during military operations carried out in combat situations against protected persons who reside in disputed areas – which are not under the control of any of the parties to the conflict – or in the territory under the control of the adverse party. However, as seen below, killing or injuring civilians in this scenario can only give rise to individual criminal liability pursuant to art. ()(c) RS if the attack is unlawful under international humanitarian law. The third group of war crimes includes those provided for in art. ()()(b) and (e) RS. They can only be committed against those persons and objects protected by the specific norm of international humanitarian law whose serious violation amounts to the war crime in question. All three war crimes on which this book is focused belong to this third group. They can only be committed, as shown below in further detail, against those persons and objects that are not military objectives. Some of the sections below also analyze the group of relevant persons and objects for the purpose of the commission of other war crimes provided for in art. ()()(b) and (e) RS in combat situations. Concerning the rest, their analysis exceeds the scope of this book.

 See art. ()(c) RS and common art.  to the Geneva Conventions.  Tadić Judgement, supra note , ¶ - pointed out that it is not necessary to provide a definition of the content and temporal scope of the notion of active participation in the hostilities. For the Chamber, it suffices to analyze on a case-by-case basis the personal circumstances of the victim to ascertain whether he was actively participating in the hostilities at the time he was attacked. Subsequent case law of the ICTY has followed this approach (see, for instance, Prosecutor v. Miroslav Kvočka et al., Case No. IT--/-T, Judgement ¶  (Nov. , ) [hereinafter Kvočka Case]). As a result, the ICTY’s case law has often concluded that the victims could not be actively participating in the hostilities at the time they were attacked because they were hors de combat or in detention camps (see for instance the Tadić Judgement, supra note , ¶  and the Kvočka Case, ¶ ).  Čelebići Appeal, supra note , ¶ .  Although disproportionate attacks are directed against concrete military objectives, criminal liability arises from the fact that it is expected that such attacks will bring about excessive incidental civilian damage.

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Chapter IV Specific Objective Elements

IV.

Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the ICTY’s Case Law

The ICTY has been the first international judicial body since WW II to investigate and adjudicate attacks violating the principle of distinction. The legal treatment of these attacks by the ICTY has been conditioned by the limitations of its subject matter jurisdiction under arts.  and  ICTYS – the other two articles granting ratione materiae jurisdiction to the ICTY are not relevant to this analysis, since they refer to genocide and crimes against humanity. Concerning these limitations, it is important to notice that unlike the ICC, the ICTY and the ICTR were established after the commission of most of the alleged crimes over which they have jurisdiction, and that as a consequence, their respective statutes do not contain criminal norms criminalizing certain behaviours, but only procedural norms granting the tribunals subject matter jurisdiction over conducts criminalized by pre-existing international law. IV..

Non-Applicability of the Crimes Defined in Art.  ICTYS to Behaviours Taking Place during the Conduct of Hostilities

Art.  ICTYS grants the ICTY jurisdiction over those behaviours from which criminal responsibility arose under the Geneva Conventions at the moment when the conflict in the former SRFY broke out () due to their inclusion in the grave breaches scheme provided for in arts.  GC I,  GC II,  GC III and  GC IV. However, as explained above, such behaviours can only affect persons or objects in the hands of the party to a conflict to which the perpetrator of the  See S.C. Res. , U.N. SCOR, th Sess., th mtg., U.N. Doc. S/RES/ (), whereby the ICTY is established and the ICTYS is approved. See also S.C. Res. , U.N. SCOR, rd mtg., U.N. Doc. S/RES/ (), whereby the ICTR is established and the ICTYR is approved.  See also H. Olásolo, Del Estatuto de los Tribunales Ad Hoc al Estatuto de Roma de la Corte Penal Internacional: Reflexiones sobre la Evolución del Principio Nullum Crimen Sine Lege en el Derecho Penal Internacional,  Iustel Penal (May ) [hereinafter Olásolo, Del Estatuto].

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crime is affiliated. Accordingly, these crimes cannot be committed during the conduct of hostilities against persons or objects that are not in the hands of the party to the conflict which executes the relevant military operation – regardless of the offensive or defensive character of such operation. IV..

Limited Scope of Application of the Crimes Expressly Provided for in Art.  ICTYS during the Conduct of Hostilities. Special Reference to the Crimes of Attacking Undefended Localities and Wanton Destruction Not Justified by Military Necessity, and to the Problems Posed by the Joint Evaluation of the Damage Occasioned in the Different Phases of the Same Military Operation

Art.  ICTYS grants the ICTY jurisdiction over the following war crimes: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; and (e) plunder of public or private property. The first problem that arises in relation to those crimes expressly provided for in art.  ICTYS is that the origin of such crimes is found in treaties applicable to international armed conflicts only. Accordingly, the consideration of such crimes in relation to non-international armed conflicts is dependant on the extension of their scope of application to this type of conflict by customary international law existing before the occurrence of the facts contained in the indictment. Moreover, those crimes expressly provided for in art.  ICTYS have a limited scope of application with respect to conduct taking place during the conduct of hostilities. With the exception of the crime of employing poisonous weapons or other weapons calculated to cause unnecessary suffering, only the crimes of wanton destruction not justified by military necessity and of destruction of institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science could be committed during the conduct of hostilities – and always provided that the attack at hand is previously found to be unlawful in light of the rules that develop the principle of distinction in the Additional Protocols.

 Art.  GC III and art.  GC IV. See supra sections II. and III..  Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia ¶  ( June , ), at http://www.un.org/icty/pressreal/nato.htm (hereinafter ICTY OTP’s Report on the NATO campaign in Kosovo in ).

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

In this regard, it must be firstly noted that the crime of plunder of public or private property can only affect objects which are in zones under the control of the party to the conflict to which the perpetrator of the crime is affiliated, and accordingly can only be committed once the attacking party has obtained control of the locality or area subject to attack. Secondly, according to the ICTY OTP, the existence of an absolute prohibition on the use of certain weapons and ammunition – including nuclear weapons and other weapons of mass destruction, which cause the most severe environmental damage expected from any existing weaponry – is not entirely clear. Consequently, up to now, the ICTY OTP has not indicted anyone for crimes related to the use of forbidden weapons, focusing instead on the personal and material damage caused by the parties to the conflict, regardless of the means used. Thirdly, up to now, there has been no indictment for attacking or bombarding, by whatever means, undefended towns, villages, dwellings or buildings. This crime, whose origin is art.  of the Regulations Annexed to the Hague Convention IV of , has a very limited scope of application because the attacked localities must be lacking any internal or external defence in a way that makes it possible for the enemy to take control of them without fighting and with no risk for its troops. In this regard, art.  AP I, which develops the rules contained in the Hague Convention IV of  and its Annexed Regulations, provides that any locality behind the battlefront cannot be considered as a non-defended locality because the attacking party must cross over enemy lines in order to be in a position to occupy it. As a result, such localities could in principle be the target of a lawful attack by the artillery or air force of the enemy. In addition to being near to the battlefront, a locality must fulfil the following conditions in order to be declared as a non-defended locality: (i) “all combatants, as well as mobile weapons and mobile military equipment must have been evacuated”; (ii) “no hostile use shall be made of fixed military installations or establishments”; (iii) “no acts of hostility shall be committed by the authorities or by the population” and (iv) “no activities in support of military operations shall be undertaken”. In sum, in localities declared as non-defended by the competent authorities, only the presence of persons specially protected and of police forces retained for the sole purpose of maintaining law and order is permissible.  Id. See also the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of  June , ICJ Reports, , ¶ .  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  Art. () AP I.  H. Lauterpacht , British Manual on the Law of Land Warfare  ().  Art. () AP I.  Art. () AP I.

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One can easily see the difficulty in fulfilling all these conditions in cases such as that of the city of Dubrovnik. There were no Croatian troops nor mobile artillery positioned in the old town of Dubrovnik, but the old town could not be considered as a non-defended locality in the traditional sense because the Croatian troops in other parts of Dubrovnik managed to contain the JNA offensive against the city for months. Moreover, it is not possible to speak about non-defended localities in cases where the defending forces are weak and cannot contain the attacks of the enemy. Furthermore, since aviation was invented and targets can thereby be reached far behind enemy lines, international humanitarian law applicable in the conduct of hostilities has focused more on the concept of military objective and the proportionality rule rather than on the notion of non-defended locality. For this reason, art. (c) ICTYS has proved inapplicable to almost all unlawful military operations carried out in the conduct of hostilities in the former SFRY. Fourthly, the application of the crime of wanton destruction of cities, towns or villages not justified by military necessity to conduct taking place during the conduct of hostilities is problematic because of the incompatibility of the rules regulating the principle of distinction in the Additional Protocols – based on the notion of military objective and the proportionality rule – and the rules contained in the Hague Convention IV of  and its Annexed Regulations – which are based on the broad and undefined notion of “military necessity”. This is the reason why the application of this crime to behaviour taking place in combat situations is subject to the unlawful character of the attack to which such behaviour pertains under the rules that elaborate on the principle of distinction in the Additional Protocols. Furthermore, the application of this crime requires distinguishing between the analysis of the damage caused by the first wave of the attack – which takes place against persons or objects which are not in the hands of the attacking party – and the analysis of the damage caused by the second wave of the attack – which takes place once the attacking party has gained control over the locality or area subject to attack. This distinction is particularly important when one intends to analyze the destruction produced by offensive military operations which have two clearly differentiated phases: (i) the attack against the locality or area which is not in the hands of the attacking party and is meant to be occupied by assault and (ii) the destruction of objects belonging to persons affiliated with the enemy – be they civilians or prisoners of war – once the attacking party has gained control of the locality or area subject to attack. This is precisely the case in an important part of the military operations conducted in a conflict such as the one in the former SFRY, where ethnic cleansing operations (e.g. arrest and deportation of civilians and torching of their houses) were often carried out immediately after taking control of a given locality or area. Moreover, as evidenced by the conflict in the former SFRY, each of these phases is usually carried out by different units of the armed forces of the attacking party.

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

Whereas the initial attack is usually executed by specialised assault commandos with artillery and, where appropriate, aircraft support, the so-called ethnic cleansing operations carried out after occupying the locality or area attacked are usually entrusted to regular army units, military police or even non-military police units in charge of maintaining law and order. Due to the fact that attacks against civilians or civilian objects or disproportionate attacks are not expressly included in art.  ICTYS and that the ICTY subject matter jurisdiction over such crimes is, in principle, conditioned on the crimes being part of international customary law at the time of the conflict in the former SFRY, the first ICTY judgements regarding behaviours taking place during the conduct of hostilities have improperly resorted to the crime of wanton destruction not justified by military necessity provided for in art. (d) ICTYS. The abusive use of this particular crime is especially remarkable in the Trial Judgements in the Blaškić and Kordić cases. In these cases, the said abusive use can be seen, first, in the fact that the accused persons are convicted for the damage resulting from certain military operations without previously declaring the unlawfulness of such attacks pursuant to the rules of the Additional Protocols on the principle of distinction. For example, the Trial Chamber in the Kordić case, when analyzing the HVO attack against Očehnići on  April , remarked that the ICTY OTP had presented evidence in relation to the following facts: (i) masked HVO soldiers attacked the village in the afternoon by firing incendiary bullets into the houses; (ii) the villagers were unarmed and did not put up any resistance; (iii) one resident heard from someone else that Pasko Ljubicić was the leader of the unit that had attacked the village and that he had been ordered to do so by the HVO Zrinski Brigade commander in order to “cleanse” Muslims from the area and (iv) the damage to Očehnići was clearly shown on the video taken during a helicopter flight over the area in May , once the conflict had ended. On the basis of these facts, the Chamber held that, although there was prima facie evidence of an unlawful attack against the village, there was insufficient evidence on which to base a conviction beyond reasonable doubt that the attack had been directed against civilians or civilian objects. However, although the Chamber did not declare that the attack was unlawful beyond reasonable doubt, the Chamber went on to hold that there was sufficient evidence on which to convict the accused for the crime of wanton destruction not justified by military necessity. The abusive use of the crime of wanton destruction not justified by military necessity can also be appreciated in the joint analysis of the damage caused by the first and second waves of certain military operations made by the Trial Chambers in the Blaškić and Kordić cases. For example, in the Blaškić case, the Chamber,  Kordić Judgement, supra note , ¶ .  Id. at ¶ .

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when analyzing the damage caused during the first HVO attack on the village of Rotilj (Kiseljak municipality in Central Bosnia), only mentioned that on  April  HVO soldiers attacked the village once the leaders of the village had agreed to surrender the few weapons in the possession of the inhabitants. The attack commenced with artillery fire and, once the infantry gained control over the village, HVO soldiers searched the houses for weapons, killed several civilians, rounded up most of the remaining population in an open space, pillaged the houses and eventually torched them. Similarly, the same Chamber, when analyzing the damage caused during the HVO attack on Očehnići (Busovača municipality in Central Bosnia), limited itself to find that on the afternoon of  April , soldiers of the Fourth Battalion of the HVO Military Police entered the village, fired shots and systematically set fire to the houses and farms belonging to the Bosnian-Muslims, killing approximately five civilians (including some women) and wounding several people. Similarly, when analyzing the HVO attacks against the villages of Gomionica, Hercezi, Svinjarevo, Višnjica, Grahovci and Han Ploča (all of them in Kiseljak municipality in Central Bosnia) in June , the Trial Chamber in the Blaškić case concluded that even in those villages, which were close to the Serbian front lines and where the ABiH was present, the nature and the scale of the crimes perpetrated by HVO soldiers evidenced that the latter were not only fighting in order to overcome the ABiH armed resistance, but were also seeking to force the Bosnian-Muslim civilian populations to flee the municipality and to ensure that they did not return. In order to achieve this goal, the HVO soldiers: (i) terrorised the civilians by intensive shelling, murders and sheer violence; (ii) systematically torched and destroyed their private homes and places of worship, usually after looting them; (iii) slaughtered the livestock and seized agricultural reserves and (iv) arrested and detained in camps and finally exchanged or expelled Bosnian-Muslim civilians towards territories under the control of the ABiH. A similar analysis of the same attacks was undertaken by the Trial Chamber in the Kordić case. In any event, perhaps the best evidence of this tendency to abusively use the crime of wanton destruction not justified by military necessity is the fact that, regarding the definition of the crime of attacking attacking civilians or civilian objects, the Trial Chambers in the Blaškić and Kordić cases found that targeting civilians or civilian property is only a crime “when not justified by military necessity.”      

Blaškić Judgement, supra note , ¶ . Id. at ¶ -. Id. at ¶ -. Id. at ¶ . Kordić Judgement, supra note , ¶ -, - and -. As the Blaškić Judgement, supra note , ¶  states: “As proposed by the Prosecution, the Trial Chamber deems that the attack must have caused deaths and/or serious

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This tendency has been corrected by the recent Appeal Judgements in the the Blaškić, Kordić and Galić cases whereby the Appeals Chamber has stated that international customary law imposes an absolute prohibition on directing attacks against civilians or civilian objects and, thus, such attacks can at no time be justified by military necessity. In applying this new case law, the Trial Chamber in the Strugar case has found the accused criminally liable for the destruction done on  December  to the old town of Dubrovnik (which had previously been recognized by UNESCO as a World Heritage site) after rejecting the defence claim that the old town was a military objective because of the absence of Croatian artillery positions in it or in its surroundings. Besides, the Chamber underscored that, had the old town been a military objective, it would have been necessary to carry out a proportionality analysis between the incidental civilian damage caused to the old town and the military advantage anticipated from the attack before finding the accused criminally liable for the destruction of the old town. Fifthly, the crime of seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science has a limited reach because it only covers specific objects. As this crime derives from the Regulations Annexed to the Hague Convention IV of , its definition does not take into consideration the rules developing the principle of distinction in the Additional Protocols – in particular the notion of military objective and the proportionality rule. Additionally, as a result of the absence of any reference to military necessity as a ground for justification in the definition of the crime, the possible loss of protection of such objects as a result of their use for military purposes seems to have been obviated – one should bear in mind that in the conflict in the former SFRY bodily injury within the civilian population or damage to civilian property. The parties to the conflict are obliged to attempt to distinguish between military targets and civilian persons or property. Targeting civilians or civilian property is an offence when not justified by military necessity. Civilians within the meaning of Article  are persons who are not, or no longer, members of the armed forces. Civilian property covers any property that could not be legitimately considered a military objective. Such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity”. Similarly, the Kordić Judgement, supra note , paragraph  states: “In short, prohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity”.  Prosecutor v. Blaškić, Case No. IT---A, Appeal Judgement ¶  ( July , ) [hereinafter Blaškić Appeal]; Kordić Appeal, supra note , ¶ ; Galić Appeal, supra note , ¶ ; Galić Judgement, supra note , ¶ ; Prosecutor v. Pavle Strugar, Case No. IT---T, Judgement ¶  ( Jan. , ) [hereinafter Strugar Judgement].  Strugar Judgment, ¶ .  Id. at ¶ - and .

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it was often the case that schools were turned into supply warehouses or into military barracks and mosques, churches, monasteries or seminars were used to accommodate combatants or persons who actively participated in the hostilities. In these cases, the above-mentioned objects would lose their protection, in the same way that a hospital would lose its protected status if it were used to protect combatants or persons actively participating in the hostilities under the false pretence that they are injured. Moreover, this crime, as a result of its origins and the lack of any reference to the notion of military necessity in its definition, does not take into account either the possible reduction in the protection of the above-mentioned objects due to the deployment of persons or objects that are military objectives in their vicinity. For instance, if a munitions depot is located in a building next to an elementary school and the enemy incidentally destroys the courtyard of the school during the execution of an attack directed at the munitions depot, the attack will not be necessarily unlawful, despite having damaged the school. On the contrary, the damage caused to the school will have to be considered as incidental civilian damage. The attack will only be considered unlawful, in spite of being directed at a military objective, if the said damage is excessive in relation to the military advantage anticipated from the destruction of the munitions depot. In conclusion, apart from the reasons offered by the ICTY OTP not to prosecute the employment of poisonous weapons or other weapons calculated to cause unnecessary suffering, any conviction for any of the other two war crimes expressly provided for in art.  ICTYS that can be committed during the conduct of hostilities requires a previous finding of the unlawfulness of the relevant attack in light of the rules that elaborate on the principle of distinction in the Additional Protocols. IV.. The Residual Clause Provided for in Art.  ICTYS as the Core Element of the Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the ICTY’s Case Law. Special Reference to the Lack of an Autonomous Treatment of the Disproportionate Attacks Art.  ICTYS also grants the ICTY jurisdiction over all those other serious violations of international humanitarian law which, under international customary  A.P.V. Rogers, Law on the Battlefield  (nd ed., Manchester University Press ) [hereinafter Rogers, Law].  Concerning the loss of protection in these cases see, inter alia, Rogers, Law, pp. ; F. Kalshoven, Reaffirmation and Development of International Humanitarian Law, Neth. Y.B. Int’l L.  () [hereinafter Kalshoven]; M.N. Schmitt, Book Review: Law on the Battlefield,  A.F. J. Legal Studies  ().  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .

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

law, give rise to the individual criminal responsibility of the perpetrator at the time when the acts referred to in the indictment took place. As a result, art.  ICTYS constitutes a residual clause designed to ensure that no serious violation of international humanitarian law escapes the jurisdiction of the ICTY. Contrary to what one might assume, the need to determine the unlawfulness of the attack causing the damage charged in the indictment under the rules on the principle of distinction contained in the Additional Protocols does not appear to be the main reason why the ICTY’s case law has resorted to war crimes not expressly provided for in art.  ICTYS – but already part of international customary law at the outset of the conflict in the former SFRY – in order to prosecute serious violations of international humanitarian law committed in the conduct of hostilities. The reason why the ICTY OTP first and the ICTY Chambers later have resorted to art.  ICTYS is that the crime of wanton destruction not justified by military necessity does not allow for the prosecution of civilian deaths and injuries resulting from unlawful military operations whenever they are justified by military necessity. This would explain the emphasis placed by the Trial Chambers in the the Blaškić and Kordić cases on the crime of intentionally directing attacks against the civilian population or civilian persons as a serious violation of the principle of distinction contained in art. () AP I and in art. () AP II. And this, at the same time that the same Trial Chambers have abusively resorted to the crime of wanton destruction not justified by military necessity in order to: (i) convict the accused for damage inflicted during certain military operations that had not been previously declared unlawful pursuant to the rules on the prin The Appeals Chamber in its Tadić Jurisdiction Decision, supra note , ¶  also affirmed that the ICTY had jurisdiction over serious violation of international humanitarian law which, pursuant to international treaties that have been ratified, accepted, adhered or acceded by the parties to the conflict in the former SFRY, gave rise to the individual criminal responsibility of the perpetrator at the time the acts referred to in the indictment took place. However, the most recent case law of the Appeals Chamber has changed this approach by limiting the subject matter jurisdiction of the ICTY to serious violations of international humanitarian law that, at the relevant time, gave rise to individual criminal liability under customary international law. See the Strugar Interlocutory Decision, supra note , ¶ ,  and ; Ojdanić Decision, supra note , ¶ ; Hadžihasanović Case, supra note , ¶ . See also Olásolo, Del Estatuto, supra note .  Galić Appeal, supra note , ¶ ; Kordić Appeal, supra note , ¶  -; Kunarac Appeal, supra note , ¶ -; Čelebići Appeal, supra note , ¶ ; and Tadić Jurisdiction Decision, supra note , ¶ .  Regarding international armed conflicts, art. () AP I provides that “the civilian population as such, as well as individual civilians, shall not be the object of attack”.  Regarding non-international armed conflict, art. () AP II establishes that “the civilian population as such, as well as individual civilians, shall not be the object of attack”.

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ciple of distinction in the Additional Protocols and (ii) avoid any differentiation in the consideration of the damage inflicted during the two different waves of which the said military operations consisted. A second reason why the ICTY has placed more emphasis on the crime of intentionally directing attacks against the civilian population or individual civilians is related to the lesser development of the principle of distinction in AP II. Whereas attacks directed at objects which are not military objectives and attacks directed at military objectives which cause disproportionate incidental civilian damage are beyond any doubt serious violations of AP I applicable in international armed conflicts, a literal interpretation of arts.  to  AP II does not allow the definitive conclusion that such attacks are also serious violations of AP II in the context of non-international armed conflicts. If there are doubts about the conventional criminalization of these attacks in non-international armed conflicts, it is only logical that there are also doubts about their criminalization under customary international law. Nonetheless, already in , the Appeals Chamber had indicated the existence of a basic core of principles and norms of international humanitarian law – including the different manifestations of the principle of distinction – which are of a customary nature and are applicable in any armed conflict. In any event, the Trial Judgements in the Blaškić and Kordić cases established that in order for an attack directed against the civilian population or individual civilians to give rise to criminal responsibility, such an attack must have caused death or serious injuries to civilians. This interpretation, derived from art. () AP I, has also been subsequently adopted by the Appeals Chamber in the Kordić case and by the Trial Chamber in the Strugar case. It has  Tadić Jurisdiction Decision, supra note , ¶ , , ,  and .  Blaškić Judgement, supra note , ¶  and the Kordić Judgement, supra note , ¶ .  Kordić Appeal, supra note , ¶ .  Strugar Judgement, supra note , ¶ . However, the following excerpt of the recent Stugar Judgement, ¶ , could be seen as a first step towards the redefinition of this crime as a crime of mere action: “As regards the third Tadić requirement, the prohibition of attacks on civilians is one of the elementary rules governing the conduct of war and undoubtedly protects ‘important values’. The Chamber considers that any breach of this prohibition encroaches upon the fundamental principle of the distinction between combatants and non-combatants. This principle has developed throughout the history of armed conflict with the purpose of keeping civilians from the danger arising from hostilities. The Chamber points out that attacks on civilians jeopardise the lives or health of persons who do not take active part in combat. It is of the view that the imminent risk of falling victim of an unlawful attack is in itself an acute experience for civilians, who, unarmed and defenceless, find themselves facing an army that has chosen them as its target. The Chamber emphasises that the categorical nature of the prohibition of such attacks and its prominent place among the rules of international humanitarian law make it evident that the purpose of this pro-

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also been embraced by the Appeal Judgement and the Trial Judgement in the Galić case,  although in this last case the Trial Chamber and the Appeals Chamber reserved their view as to whether attacks directed against the civilian population or individual civilians which do not result in death or serious injuries to civilians entail individual criminal responsibility. Therefore, unlike art. ()(b)(i) and (e)(i) RS, which defines this crime as a crime of mere action which is committed by unlawfully using violence against the civilian population or individual civilians regardless of the damaging result, the ICTY’s case law has considered this crime as a crime causing a result which only occurs when the unlawful use of violence against the civilian population or individual civilians brings about death or serious injuries to civilians. Regarding the crime of directing attacks against civilian objects – this is to say, objects which are not military objectives – the Interlocutory Decision of the Appeals Chamber in the Strugar case confirmed the criminalization of this conduct by international customary law before the date of the attack against the old town of Dubrovnik on  December . Subsequently, the Trial Chamber in the Strugar case confirmed that civilian objects enjoy the same degree of protection as civilian persons, despite the different degree of development, at least literally, of the principle of distinction in arts.  to  AP II and in arts. ,  and  AP I. In any event, the Trial Judgements in the Blaškić and Kordić cases had already confirmed the existence of this crime, although, as it has been already noted, the respective Trial Chambers did not limit the scope of application of this crime in relation to the scope of application of the crime of wanton destruction not justified by military necessity, a circumstance that resulted in the abusive application of the latter crime by the Trial Chambers. It is important to remark that the crime of directing attacks against civilian objects appears in the ICTY’s case law as a crime causing a result that requires the total or partial destruction of, or the causation of extensive damage to, civil-

      

hibition is not only to save lives of civilians, but also to spare them from the risk of being subjected to war atrocities. The Chamber is of the opinion that the experiencing of such a risk by a civilian is in itself a grave consequence of an unlawful attack, even if he or she, luckily, survives the attack with no physical injury. Accordingly, the third requirement for the applicability of Article  of the Statute is fulfilled”. Galić Appeal, supra note , ¶ . Galić Judgement, supra note , ¶  and . Id. at ¶ . Galić Appeal, supra note , ¶ . Strugar Interlocutory Decision, supra note , ¶ ,  and . Prosecutor v. Pavle Strugar, Case No. IT---T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule  Bis ¶  ( June , ). Blaškić Judgement, supra note , ¶ ; Kordić Judgement, supra note , ¶ .

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ian objects as a result of the attack. From this point of view, this crime is different from the one in art. (b)()(ii) RS, which is configured as a crime of mere action. When it comes to the interpretation of “civilian population,” “civilians” and “civilian objects” in the ICTY’s case law, it suffices to indicate now that such persons and objects are defined as persons who are not “combatants” and do not take active part in hostilities and as objects which do not have a military vlue. In short, these expressions refer to all those persons and objects that are not included in the concept of “military objective” analyzed in detail in subsequent sections. It is also important to note that the ICTY’s case law has not found that launching indiscriminate attacks or attacks which cause disproportionate incidental civilian damage was a behaviour criminalized as such by international customary law at the time of the conflict in the former SFRY. As a consequence, the ICTY has considered these attacks as evidence of the crime of directing an attack against civilians or civilian objects. In the Trial Judgements in the Blaškić and Kordić cases, the Trial Chambers considered that the crime of directing an attack against civilians or civilian objects can be proven in the following ways: (i) by proving that only civilians have died or civilian objects have been destroyed as a result of the attack – the difficulty in proving this element is obvious given the fact that, frequently in modern armed conflicts, combatants and non-combatants who actively take part in hostilities, as well as objects of a military value, are present intermingle with civilians and civilian objects; (ii) by proving that either because of the inaccuracy of the weapon used or the impossibility of limiting its effects (such as home-made mortars of small calibre or cluster bombs used in urban areas) or because of the characteristics of the method of combat used (such as the bombing techniques used by the Allies against the German cities of Hamburg and Dresden at the end of WW  Kordić Appeal, supra note , ¶  to , particularly ¶ ; Blaškić Judgement, supra note , ¶ ; Kordić Judgement, supra note , ¶ ; Galić Judgement, supra note , ¶  and ; Strugar Judgement, supra note , ¶ .  As stated above, Strugar Judgement, ¶  could constitute a first step towards the redefinition of this crime as a crime of mere action.  Tadić Judgement, supra note , ¶ - stated: “‘Civilian’ includes, at a minimum, all non-combatants within the meaning of common Article (), e.g. ‘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…’”. See also Blaškić Appeal, supra note , ¶ -; Blaškić Judgement, supra note , ¶  and Galić Judgement, supra note , ¶ .  Kordić Appeal, supra note , ¶ ; Galić Judgement, supra note , ¶  and Strugar Judgement, supra note , ¶ .  Kordić Appeal, supra note , ¶ -; Galić Judgement, supra note , ¶  and Strugar Judgement, supra note , ¶ -.

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II), the attack was directed at combatants (or non-combatants taking active part in the hostilities) and civilians without distinction or (iii) by proving that the attack, although directed against a concrete military objective, was disproportionate because it caused excessive incidental civilian damage in relation to the concrete and direct military advantage anticipated. The reasons why indiscriminate attacks and disproportionate attacks are not considered as separate crimes in the Blaškić and Kordić cases can be traced back to the particular development of the principle of distinction in AP I and AP II – and in particular, to the fact that AP II does not contain any express reference to the notions of “indiscriminate attacks” or “disproportionate attacks”. Moreover, the Trial Chambers understood from the very beginning that acts of violence not specifically directed against military objectives (indiscriminate attacks) or that caused excessive incidental damage to civilians or civilian objects could be in fact considered as attacks directed against civilians or civilian objects. More recently, the Trial Judgement in the Galić case has noted that indiscriminate attacks – this is to say, those attacks which strike civilians or civilian objects and military objectives without distinction – may qualify as direct attacks against civilians or civilian objects. Furthermore, regarding disproportionate attacks, the Trial Chamber affirmed that certain manifestly disproportionate attacks may give rise to the inference that civilians were actually the object of attack, depending on the circumstances of the case. The same Chamber also remarked that the failure of the enemy to abide by its obligation under international humanitarian law to remove civilians and civilian objects, to the maximum extent feasible, from the vicinity of military objectives does not relieve the attacking party of its duty to abide by the principles of distinction and proportionality. In turn, the Trial Chamber in the Strugar case did not find it necessary to determine whether attacks incidentally causing excessive civilian damage may qualify in the circumstances at hand as attacks directed against civilians or civilian objects. The recent Appeal Judgement in the Galić case has it made clear that one cannot “conflate” the crime of attacks directed against civilians with neither indis In this regard, see the discussion contained in the Kordić Judgement, supra note , ¶  to .  For instance, the proportionality analysis of the attack against Donja Večeriska before the withdrawal of the ABiH troops was carried out for the purpose of determining whether the attack had been directed against civilians or civilian persons (Blaškić Judgement, supra note , ¶ ).  Galić Judgement, supra note , ¶ .  Id. at ¶ .  Id. at ¶ .  Strugar Judgement, supra note , ¶ .

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criminate nor disproportionate attacks. However, at the same time, the Appeals Chamber acknowledged that: (i) the indiscriminate character of an attack can assist in determining whether the attack was directed against the civilians and, therefore, depending on the circumstances of the case, the existence of an attack directed against civilians can be inferred from the indiscriminate character of the weapons used; and (ii) the Trial Chamber’s finding that certain manifestly disproportionate attacks may, depending on the circumstances of the case, give rise to the inference that civilians were actually the object of attack is a “justified pronouncement on the evidentiary effect of certain findings”. The concept that launching indiscriminate attacks gives rise to criminal responsibility because such attacks amount to attacks directed against civilians or civilian objects seems reasonable if one takes into account that in the ICTY’s case law such crimes are crimes causing a result which, as explained when discussing below the subjective elements of the crimes, can be committed with dolus eventualis – this is to say, without intending that the attack causes deaths or injuries among the civilians or destroys civilian objects, but knowing the probability that the attack will bring about such a damaging result and accepting such a result. Accordingly, a person who directs an attack against an enemy communications centre adjacent to a retirement home, knowing the absolute inaccuracy of the weapon used, must be considered to have accepted the total or partial destruction of the retirement home. This conclusion derives from the fact that the person proceeds to launch the attack despite being conscious of the impossibility to direct the attack against the communications centre only, as well as from the high probability that the projectiles will impact on the retirement home instead of on the communications centre. However, the same conclusion is not valid in relation to the consideration of attacks directed against military objectives that incidentally cause excessive civilian damage as evidence of the crime of directing attacks against civilians or civilian objects. It is submitted that such treatment disregards the difference between the serious violations of the two most important manifestations of the principle of distinction: (i) failures of the parties to the conflict to abide by their duty to direct their attacks against military objectives and by the consequent prohibition to make civilians or civilian objects the object of attack and (ii) failures of the parties to the conflict to abide by the prohibition to launch an attack against mili   

Galić Appeal, supra note , ¶ . Id. Id. at ¶ . See the definition of dolus eventualis given by the Prosecutor v. Milomir Stakić, Case No. IT---T, Judgement ¶  ( July , ) [hereinafter Stakić Judgement].

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tary objectives which may be expected to cause incidental civilian damage which would be excessive in relation to the concrete and direct military advantage anticipated. Accordingly, it is submitted that, as it is the case in art. ()(b)(iv) RS, the ICTY’s case law should have considered serious violations of the proportionality principle as a crime unto itself. In this regard it must be noted that the  Decision on jurisdiction in the Tadić case seemed to open the door to the recognition of the customary character of the crime of launching disproportionate attacks when it indicated that: (i) certain basic principles for the protection of the civilian population, including those contained in UN General Assembly Resolution  (), apply in armed conflicts of all kinds; (ii) certain rules of international customary law also apply in non-international armed conflicts, such as those that cover such areas as protection of civilians from hostilities (in particular from indiscriminate attacks); protection of civilian objects (in particular cultural property); protection of all those who do not (or no longer) take active part in hostilities; as well as prohibition of means and methods of warfare proscribed in international armed conflicts and (iii) customary international law imposes criminal liability for serious violations of the law applicable in non-international armed conflicts, including certain principles concerning means and methods of warfare. However, subsequent case law has been notably more cautious in this regard, considering the different levels of development of the principle of distinction in AP I and AP II, and, in particular, the absence of any reference to the notion of “disproportionate attacks” in AP II. Accordingly, the Interlocutory Decision in

 Basic Principles for the Protection of Civilian Populations in Armed Conflicts, G.A. Res. , U.N. GAOR, th Sess., Supp. No. , U.N. Doc. A/ () [hereinafter UN General Assembly Resolution ] points out inter alia that: . In the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations. . In the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian population. . Civilian populations as such should not be the object of military operations. . Dwellings and other installations that are used only by civilian populations should not be the object of the military operations. . Places or areas designated for the sole protection of civilians should not be the object of military operations.  Tadić Jurisdiction Decision, supra note , ¶ .  Id. at ¶ .  Id. at ¶ .  Id. at ¶ .

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the Strugar case and the Appeal Judgements in the Kordić and Galić cases, though confirming that directing attacks against civilians or civilian objects was a crime under international customary law at the moment of the conflict in the former SFRY, do not expressly deal with the question whether launching attacks against military objectives which incidentally cause excessive civilian damage, also give rise to criminal liability under international customary law. As a result, one may fear that the decisions of the ICTY in the matter of unlawful attacks, and in particular, its application of the notion of military objective and of the rule of proportionality, will have a more limited value as precedents than one would presume. However, since the ICTY is the only international jurisdictional organ since WW II to investigate and prosecute crimes committed in the conduct of hostilities and to apply these concepts, it is relevant in any event to analyze the problems it has faced and the solutions it has found when doing so. IV.

Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the RS

IV.. The Autonomous Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in International Armed Conflicts. Special Reference to the Autonomous Treatment of Disproportionate Attacks As already noted, not all violations of international humanitarian law give rise to criminal responsibility, and only serious violations amount to war crimes. Moreover, from the mere reading of the crimes contained in the RS, one can observe that the RS does not even include all serious violations of international humanitarian law that give rise to criminal responsibility under international criminal law. It can therefore be affirmed that the drafters of the RS undertook    

Strugar Interlocutory Decision, supra note , ¶ ,  and . Kordić Appeal, supra note , ¶ . Galić Appeal, supra note , ¶  and -. W.J. Fenrick, Prosecuting Violations of Combat Limitations, Protecting Civilians in st Century Warfare: Target Selection, Proportionality and Precautionary Measures in Law and Practice - (H. Mireille & Martine, J. eds., ICRC/Wolf Legal Productions ).  See supra sections I, II.. and II...  One example is the exclusion of the “unjustifiable delay in the repatriation of prisoners of war or civilians”, which according to art. ()(b) AP I constitutes a grave breach of AP I. See Von Hebel, Crimes, supra note , at p. ; and Cassese, International Criminal Law, supra note , pp. -. The importance of this exclusion is evident if one takes into account the events at the end of WW II. According to H. Fischer, Protection of Prisoners of War, The Handbook of Humanitarian Law in Armed Conflicts - (D. Fleck ed., Oxford University

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a selection process of serious violations of international humanitarian law on the basis of gravity in order to ensure that the subject matter jurisdiction of the Court is limited to “the most serious crimes of concern to the international community as a whole”. Three criteria were used by the drafters of the RS to determine a priori which violations of international humanitarian law deserved inclusion in the RS and which others should be excluded. These criteria were the following: (i) that regardless of its possible conventional origin, the applicable rule had become part of international customary law and was therefore binding on all the States of the international community; (ii) that regardless the consequences foreseen in the international instruments containing the rule, the violation of the rule gave rise to individual criminal responsibility under international customary law and (iii) that such violation was a priori sufficiently serious. As a result, the RS includes as separate crimes those attacks which most seriously violate the basic core of norms elaborating on the principle of distinction in the conduct of hostilities, this is to say: (i) attacks against the civilian population as such or against non-combatants not taking active part in the hostilities; (ii) attacks against civilian objects, that is, objects which are not military objectives and (iii) disproportionate attacks against military objectives, this is to say, those attacks which are expected to incidentally cause civilian damage clearly excessive in relation to the concrete and direct overall military advantage anticipated. Furthermore, the first case before the ICC – resulting from the arrest warrants issued on  July  against Mr. Joseph Kony (leader of the Lord Resistance Army) and other four high ranking members of this movement for crimes against humanity and war crimes allegedly committed in the crisis



  

Press ): “From  to , the unresolved question concerning the repatriation of prisoners of war proved to be a major stumbling block in the restoration of a peaceful relationship between Germany and the Soviet Union. In  the Soviet Union stated that , German prisoners of war were held in captivity. Of these, , were regarded as criminals. In contrast to the American repatriation policy, which led to the termination of prisoner of war exchange in July , it took until  to resolve the German-Soviet prisoner of war problem. Among the numerous reasons why the Soviet Union held prisoners of war for so long, the labour provided by the prisoners for post-war reconstruction played a crucial role. Other wartime adversaries of Germany also used German prisoners for reconstruction work. For example, in  there were still , German prisoners of war being held in France, many of whom were so employed”. See RS, supra note , ¶  and  of the Preamble and art. (). See also H. Olásolo, Apuntes Prácticos sobre el Tratamiento de los Crímenes de Guerra en el Estatuto de Roma sobre la Corte Penal Internacional,  Revista Española de Derecho Militar - ( June-Dec. ). Von Hebel, Crimes, supra note , at pp. -. RS, supra note , art. ()(b)(i) and (ii) and ()(e)(i). Id. at art. ()(b)(iv).

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situation occurred in northern Uganda since  July  – includes inter alia the alleged unlawful attack against the civilian population residing in some of the camps for internal displaced persons located in northern Uganda. Regarding the definition of these crimes, it is important to remark that although neither the RS nor the EC provides a definition of the notion of “attack”, the Appeal Judgements in the Kordić and Galić cases have affirmed the definition contained in art. () AP I, whereby “‘attacks’ means acts of violence against the adversary, whether in offence or in defence”. Moreover, a detailed analysis of the notion of “military objective” is provided in the following section in order to determine the group of persons (in principle all those non-combatants who do not take active part in the hostilities) and of objects (in principle those which do not make an effective contribution to military action or whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, does not offer a definite military advantage) against whom intentionally directing an attack entails criminal liability under art. ()(b)(i) and (ii) and (e)(i) RS. Now it is important to stress the separate criminalization of serious violations of the rule of proportionality in art. ()(b)(iv) RS. Under this provision, the need identified in the ICTY’s case law to consider the disproportionate use of force against military objectives as attacks launched against civilians or civilian objects does not arise. Pursuant to this provision, criminal responsibility arises from “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”. The result of this provision is a recognition of the different nature of the unlawful attacks directed against persons or objects which are not military objectives from that of those other attacks which, although they  See “Warrant of Arrest for Joseph Kony as amended on  Sept. ”, public redacted version filed by PTC II on  Oct. , paragraph ; “Warrant of Arrest for Vincent Otti”, public redacted version filed by PTC II on  Oct. , paragraph ; “Warrant of Arrest for Laska Lukwiya”, public redacted version filed by PTC II on  Oct. , paragraph ; “Warrant of Arrest for Okot Odhiambo”, public redacted version filed by PTC II on  Oct. , paragraph ; and “Warrant of Arrest for Dominic Ongwen”, public redacted version filed by PTC II on  Oct. , paragraph , at http://www.icc-cpi.int/cases/current_situations/Uganda.html.  Kordić Appeal, supra note , ¶ ; Galić Appeal, supra note , ¶ . Furthermore, the Trial Chamber in the Galić Appeal, ¶  has pointed out: “‘Attack’ is defined in Article  of Additional Protocol I as ‘acts of violence against the adversary, whether in offence or in defence.’ The Commentary makes the point that ‘attack’ is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence. The case law of the Tribunal has defined ‘attack’ as a course of conduct involving the commission of acts of violence”. See also the discussion on the content of the notion of attack contained infra in sections VI.. and VI...

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could in principle be considered as lawful for targeting military objectives, are nonetheless unlawful because they seriously violate the rule of proportionality. As specified in the EC, the crime contained in art. ()(b)(iv) RS is limited to punishing serious violations of the proportionality rule during military operations in international armed conflicts. The lawful or unlawful character of the armed conflict is immaterial when determining whether a concrete military operation is consistent with the proportionality rule. Therefore, when describing the criminal conduct, art. ()(b)(iv) RS “does not address justifications for war or other rules related to jus ad bellum”. On first examination, art. ()(b)(iv) RS appears to establish a more stringent requirement than art. ()(b) AP I in the number of civilian casualties and the extent of civilian damage that must be incidentally caused by an attack in order for such attack, in principle lawful as directed against a military objective, to give rise to criminal responsibility. Firstly, art. ()(b)(iv) RS demands that the incidental civilian damage be “clearly excessive” instead of simply “excessive”, as required by art. ()(b) AP I, although for Dörmann,  there is no substantial difference between the two standards. Secondly, art. ()(b)(iv) RS adds the word “overall” to the part of the equation of proportionality relative to the concrete and direct military advantage anticipated, and thereby seems to require greater attention to the context in which the attack takes place when considering the concrete and direct military advantage anticipated from the destruction, capture or neutralization of the attacked military objective. Art. ()(b)(iv) RS incorporates another important development in that it provides for the environmental crime when it refers to “widespread, long-term  A different position is held by J.G. Gardam, Proportionality and Force in International Law,  Am. J. Int’l L. - () [hereinafter Gardam, Proportionality and Force]; J.F. Murphy, Some Legal (And A Few Ethical) Dimensions Of The Collateral Damage Resulting From NATO’s Kosovo Campaign, Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies -,  (A. Wall ed. ) [hereinafter Murphy].  See footnote  of the EC.  Id.  Art. . (b) AP I provides that “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. See also D. Pfirter, Excessive Incidental Death, Injury or Damage, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational Publishers ) [hereinafter Pfirter, Excessive Incidental Death].  K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary - (Cambridge University Press/ICRC ) [hereinafter Dörmann, Elements of War Crimes].

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and severe damage to the natural environment” in the description of the proportionality rule. However, unlike the regulation contained in art.  AP I, art. ()(b)(iv) RS introduces a component of proportionality in the objective element of the crime. Accordingly, intentionally launching an attack with the knowledge that such an attack will cause incidental widespread, long-term and severe damage to the natural environment is only a crime if such damage “would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”. In this regard, the ICTY OTP, in its analysis of the environmental damage produced by the NATO aerial campaign in Kosovo in , has indicated that art. ()(b)(iv) RS is an important indicator of evolving customary international law on this point in the sense that it gives greater consideration to the operational context of the armed forces on the ground when defining the environmental crime. In the opinion of the ICTY OTP, even if the NATO aerial campaign had caused some damage to the environment in Kosovo (not an environmental catastrophe affecting the Balkans region as a whole, but at least an increase in pollution that posed a threat to human health in areas such as Pancevo, Kragujevac, Novi Sad and Bor), and even if such damage could be considered to be widespread, long-term and severe, which was not the case, it is necessary to take into account that such damage was the result of striking military objectives such as stores of fuel, petrochemical industries and other industry plants of fundamental importance for the conduct of war or for the manufacture of supplies and materials of a military character. As a consequence, before determining the unlawfulness of the attack, it is necessary to carry out a proportionality assessment. When doing so, the ICTY OTP indicated that the more important the target, the greater the degree of risk to the environment that may be justified. However, the ICTY OTP also recognised that the need to avoid excessive long-term damage to the economic infrastructure and natural environment with a consequential adverse effect on the civilian population cannot be  According to art. () AP I: “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”.  Von Hebel, Crimes, supra note , at p. ; Dörmann, Elements of War Crimes, supra note , p. .  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  Id. at ¶ .  Id. at ¶ .  Id. at ¶ .  Id. at ¶ .

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obviated. Consequently, for the ICTY OTP, where the foreseeable incidental effect of an attack upon a civilian infrastructure is widespread, grave and longterm, the military advantage conferred by the destruction of the military objective would need to be decisive. Finally, regarding the subjective element of this crime, as it will be explained later in greater detail, art. ()(b)(iv) RS requires that the perpetrator decides to launch an attack against a concrete military objective: (i) with the intent to incidentally cause excessive civilian damage (dolus directus in the first degree); (ii) in the knowledge that the attack will incidentally cause excessive civilian damage (dolus directus in the second degree) or (iii) in the knowledge that it is probable that the attack will incidentally cause excessive civilian damage and accepting such a result (dolus eventualis). The subjective element of the crime contained in art. ()(b)(iv) RS is therefore more stringent than the “may be expected” standard in art. ()(b) of AP I, since the expression “may be expected” seems to accept the reckless commission of the crime as a result of the perpetrator’s manifest lack of due diligence in complying with the duty to obtain and analyze the available information prior to the launch of the attack. IV.. Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in Non-International Armed Conflicts It is important to remark that attacks against civilian objects, or attacks against military objectives which are expected to incidentally cause excessive civilian damage, are not criminalized in the RS in relation to all kinds of armed conflict. The RS makes a very important distinction between international armed conflicts, in the context of which the three crimes identified above are applicable – attacks directed against the civilian population or civilian persons, attacks directed against civilian objects and disproportionate attacks – and non-international armed conflicts, in the context of which only attacks directed against the civilian population or civilian persons are expressly criminalized. Therefore, it can be affirmed that the attempt of the drafters of the RS to criminalize those attacks which most seriously violate the principle of distinction  A.P.V. Rogers, Zero Casualty Warfare,  Rev. Int’l Comm. Red Cross - () [hereinafter Rogers, Zero Casualty Warfare].  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  See infra sections X.... and X....  As footnote  EC expressly provides, “the expression ‘concrete and direct overall military advantage’ refers to a military advantage that is foreseeable by the perpetrator at the relevant time”. See Pfirter, Excessive Incidental Death, supra note , p. .  See infra section X....  Art. ()(e)(i) RS.

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has not been completely successful. This fact is particularly striking taking into account that the Appeals Chamber of the Ad hoc Tribunals in its Decision on jurisdiction in the Tadić case, and more recently in the Strugar and Kordić cases, at least in relation to attacks directed against civilian objects, has pointed out that current international humanitarian law does not allow for attacks prohibited in international armed conflicts for violating the most basic protection rendered to civilians and civilian objects by the principle of distinction to be considered lawful when taking place in the context of non-international armed conflicts. As a result, some might think that the ICC’s case law, following that of the ICTY, cannot but extend, in the context of non-international armed conflicts, the crime of directing attacks against the civilian population or civilian persons in order to encompass, at least, disproportionate attacks directed against military objectives and, very possibly as well, attacks directed against civilian objects. However, it is submitted that in the context of the RS, it is not possible to extend the scope of the crime of directing attacks against the civilian population or civilian persons as the ICTY has done – regardless of whether such interpretation, as the ICTY’s case law has stated, is in conformity with international customary law. Firstly, there are important differences between the definition of the crime of directing attacks against the civilian population or civilian persons in the RS and in the ICTY’s case law – differences which are otherwise also applicable to the crime of directing attacks against civilian objects provided for in art. ()(b)(ii) RS. An important difference is that neither the RS nor the EC requires any kind of damaging result from the attack in order for the crime to have been committed. Accordingly, in the RS, this crime is a crime of mere action that takes place by simply launching the attack – an act of violence – with the intention to impact the civilian population or civilian persons who are not under the control of the

 As the Tadić Jurisdiction Decision, supra note , ¶  has pointed out: “It cannot be denied that customary rules have developed to govern internal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities”. See also, Tadić Jurisdiction Decision, ¶ .  Strugar Interlocutory Decision, supra note , ¶ ,  and .  Kordić Appeal, supra note , ¶ .  Concurring Henckaerts, Customary International Humanitarian Law, supra note , pp- - (attacks directed against the civilian population or civilian persons), pp. - (attacks directed against civilian objects), pp. - (indiscriminate attacks) and pp. - (disproportionate attacks).

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party to the conflict to which the perpetrator of the attack is affiliated. Hence, it is submitted that the RS’s definition of the crime of directing attacks against the civilian population or civilian persons prevents extending its scope to cover instances of disproportionate attacks which are characterised by the intention to attack a concrete military objective. Secondly, art. () RS, insofar as it is a manifestation of the principle nullum crimen sine lege, expressly obliges – unlike the ICTYS – to a “strict” construction of the elements of the crime without the possibility of extending the crime by analogy. Moreover, pursuant to this provision, in case of ambiguity, the definition of the crime shall be interpreted in favour of the person being investigated, prosecuted or convicted. Thirdly, an extensive interpretation of the crime of directing attacks against the civilian population or civilian persons in order to include disproportionate attacks or even attacks directed against civilian objects would run contrary to one of the most positive elements of the RS for many commentators, namely the separate criminalization, at least in relation to international armed conflicts, of those attacks that most seriously violate the basic core of norms elaborating on the principle of distinction in the conduct of hostilities, thereby avoiding any confusion between: (i) the obligation of the parties to the conflict to direct their attacks against military objectives, and the consequent prohibition to direct attacks against civilians or civilian objects and (ii) the prohibition to launch attacks against military objectives when it may be expected that such attacks will incidentally cause excessive civilian damage in relation to the concrete and direct overall military advantage anticipated. For these reasons, it is submitted that the ICTY’s case law on this matter cannot be followed. A different matter is the possible inclusion of indiscriminate attacks in the crime of directing attacks against the civilian population or civilian persons and in the crime of directing attacks against civilian objects. In this regard, it is submitted that art. ()(b)(i) and (ii) and (e)(i) RS allows for the interpretation adopted in the ICTY’s case law because the crimes provided for in this provision can also be committed with dolus directus in the second degree and dolus eventualis, provided that the attack has not been specifically directed at a concrete military objective. As a consequence, the person who fires a wholly inaccurate home-made mortar against an enemy’s storehouse adjacent to a primary school may not have intended the eventual damage to the school, but if it is proven that the person had knowledge of the absolute inaccuracy of the mortar used, it can only be con Concurring, D. Frank, Attacking Civilians, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational Publishers ) [hereinafter Frank, Attacking Civilians]; Dörmann, Elements of War Crimes, supra note , p. .  See infra section X....

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cluded that the person: (i) knew about the impossibility to direct the attack only against the storehouse; (ii) knew about the high probability that the projectiles fired could impact on the primary school instead of on the storehouse and (iii) accepted this result and thus the potential total or partial destruction of the primary school. The fact that directing attacks against civilian objects and launching disproportionate attacks have not been criminalized on their own in relation to non- international armed conflicts, and the fact that the RS does not allow for an extensive interpretation of the crime of directing attacks against the civilian population or civilian persons to cover them, does not necessarily mean that launching such attacks does not give rise to criminal responsibility under the RS when they take place in the context of a non-international armed conflict. In this regard, it is important to take into account that the crime of directing attacks against civilian objects in international armed conflicts is defined in the RS as a crime of mere action – which is committed by the mere exercise of armed violence with the intent that “such civilian objects … be the object of the attack” and without the need for any resulting damage. Therefore, the only conduct that, pursuant to the RS, does not give rise to criminal responsibility in noninternational armed conflicts is the launch of an attack against civilian objects which causes no damage to the targeted civilian objects. This submission is based on the fact that all those attacks directed against civilian objects in non-international armed conflicts that result in damage to such objects may give rise to criminal responsibility for the war crime of “destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict”. Similarly, the latter provision will also cover incidental damage caused to civilian objects as a result of disproportionate attacks against military objectives, whereas the deaths of or injuries caused to civilians by disproportionate attacks directed against military objectives will be considered a war crime of murder or cruel treatment. Therefore, despite the fact that directing attacks against civilian objects and launching disproportionate attacks are not themselves criminalized if they take place in the context of non-international armed conflicts, any civilian damage arising from them may give rise to criminal liability under the RS.

 See the elements of the war crime of intentionally directing attacks against civilian objects provided for in art. ()(b)(ii) RS.  Art. ()(e)(xii) RS.  Art. ()(c)(i) RS.  Art. ()(c)(i) RS.

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IV.. The Relationship between Attacks Directed at Civilians or Civilian Objects and Disproportionate Attacks, and Those Other Crimes Consisting of the Damage Brought about by such Attacks. Special Reference to the War Crime of Destruction of Enemy’s Property not Justified by Imperative Military Necessity and the Need for a Separate Assessment of the Damage Occasioned in Each Phase of a Military Operation It is submitted that the RS goes even further than the conclusion reached in the previous section and, in principle, criminalizes as murder, cruel treatment or destruction of enemy’s property any damage to persons or civilian objects that results from an attack which under international humanitarian law is unlawful because the attack: (i) violated the rules elaborating on the principle of distinction in the conduct of hostilities; (ii) was directed against specially protected persons, objects or areas; (iii) was carried out by methods of combat prohibited by international humanitarian law or (iv) was carried out by using weapons that cause superfluous injury or unnecessary suffering to the enemy or that have an indiscriminate effect. This is the case in relation to non-international armed conflicts. However, in the case of international armed conflicts, the distinction between grave breaches of the Geneva Conventions and other serious violations of the laws and customs of war applicable in international armed conflicts may cause some serious, unintended problems. For instance, the crimes of “wilful killing”, “inhumane treatment” or “wilfully causing great suffering, including biological experiments” are only included in art. ()(a) RS as grave breaches of the Geneva Conventions, what, in principle, limits their scope of application to cases in which the victim is under the control of a party to the conflict to which he is not affiliated. In any event, in those instances where the attack has not been directed against specially protected persons, objects or areas, nor has the attack been carried out by means or methods of combat prohibited by international humanitarian law, it will be necessary to determine that the use of armed violence was directed against civilian persons or civilian objects, or, in the case of the attack being directed against a military objective, that the incidental civilian damage expected from the attack was excessive in relation to the anticipated military advantage. Only then can the deaths, injury or damage be charged as a crime against life (murder), against physical integrity (cruel treatment) or against property (destruction of enemy property). Otherwise, the resulting deaths, injury or damage, though unfortunate, will be lawful pursuant to international humanitarian law and therefore will not give rise to criminal liability under the RS. A different matter is the death, injury and damage caused by one party to the conflict to the protected persons and property under its control. In such a scenario, the general rule is that such acts can be charged against those who produced them as crimes against life, physical integrity or property, unless they can be exceptionally justified, such as when the destruction of the property of

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the protected persons affiliated with the enemy is imperatively demanded by the necessities of war. The crime of “destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” and the scope of application of the ground for justification incorporated in its definition are particularly relevant to our study. This is a war crime applicable both during the conduct of hostilities and when the relevant object is under the control of the party to the conflict to which the author of the crime is affiliated. However, during the conduct of hostilities, the damage inflicted on the enemy can only give rise to criminal responsibility if it results from an attack that is unlawful under international humanitarian law. Therefore, if the attack at hand is directed against a military objective, and no means or methods of warfare prohibited by international humanitarian law are employed, it will be necessary to prove that the incidental civilian damage expected from the attack was excessive in relation to the concrete and direct military advantaged expected from it. Only then can it be analyzed whether the destruction of the enemy’s property caused by the attack – be that property of a military or non-military character – was imperatively demanded by the necessities of war. If one does not conduct the analysis in this way, it could be found that incidental civilian damage that is not excessive in relation to the military advantage anticipated from the attack is, however, not imperatively demanded by the necessities of war and gives rise to criminal responsibility – despite the fact that the attack had been directed against a military objective and was in compliance with the rule of proportionality. This conclusion would amount to imposing criminal responsibility on the persons who launch attacks which, although complying with the rules on the principle of distinction contained in the Additional Protocols, seem to infringe on the earlier regulation contained in the Hague Convention IV of  and its Annexed Regulations. As explained above, this earlier regulation did not distinguish between military objectives – those that make an effective contribution to military action and whose total or partial destruction, capture or neutralization offers a definite military advantage – and civilians and civilian objects, nor did it contain any reference to the proportionality rule. On the contrary, the whole analysis was based on the broad and undetermined notion of “necessities of war” (military necessity). Pursuant to this earlier regulation, some attacks which are unlawful within the scheme of the Additional Protocols – such as attacks directed against objects which do not make an effective contribution to the enemy’s military effort or whose destruction, capture or neutralisation does not offer any definite military advantage – could be considered lawful under the scheme of the Hague Convention IV and its Annexed Regulations in that they could be found to be justified by the undetermined notion of military necessity. At the same time,  Art. ()(b)(xiii) and ()(e)(xii) RS.

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some attacks considered lawful within the scheme of the Additional Protocols – such as attacks directed against military objectives which do not cause excessive incidental civilian damage – could be considered unlawful under the scheme of the Hague Convention IV and its Annexed Regulations in that the damage to the enemy’s property considered as a whole (regardless the military or non-military value of such property) could be not justified by military necessity. It is submitted that the incompatibility between the scheme of the Additional Protocols and that of the Hague Convention IV and its Annexed Regulations prevents their simultaneous application. Therefore, the new regulation of the principle of distinction contained in the Additional Protocols of , and which as explained above is also part of international customary law, is preferred and should be applied. Otherwise, one would be back to a scheme conceived in  where all the property of the enemy, be it military or non-military property, is included in only one category and where the destruction caused to such property as a whole is measured according to the broad and undetermined notion of military necessity. Moreover, the RS clearly adopts the proposed solution in that it contains as separate crimes serious violations of the basic core of norms elaborating on the principle of distinction in the Additional Protocols. As noted throughout this section, art. ()(b)(i), (ii) and (iv) RS criminalizes in relation to international armed conflicts attacks directed against civilians or civilian objects and disproportionate attacks. But even in relation to non-international armed conflicts, the RS also opts for the scheme of the Additional Protocols by separately criminalizing in art. ()(e)(i) attacks directed against the civilian population or civilian persons without making any reference to the notion of military necessity. As a consequence, it can be stated that the damage resulting from a military operation can only give rise to criminal liability under the RS if the attack in question is unlawful pursuant to the rules elaborating on the principle of distinction in the Additional Protocols. It is therefore submitted that this is the manner in which the crime of destroying the enemy’s property, without such destruction being imperatively demanded by the necessities of war provided for in art. ()(b)(xiii) and (e)(xii) RS, should be interpreted, at least when such destruction takes place in the conduct of hostilities. Logically, when the destruction of the enemy’s property takes place when the affected property is under the control of the party to the conflict with which the perpetrator is affiliated, there is no attack whose legality must be analyzed before discussing whether such destruction of property is justified by military necessity. As a result of the important differences between the application of the crime of destroying enemy’s property in the conduct of hostilities and its application in  The RS, the EC, and the Hague Convention IV and its Annexed Regulations are not clear on the scope of application and limits of this ground for justification.

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situations where the affected property is found within the areas under the control of the party to the conflict that destroys it, a separate analysis of the criminal relevance of the destruction produced in both contexts is required. This concept is particularly relevant in analyzing the destruction resulting from offensive military operations composed of two clearly-differentiated phases: (i) the attack against the a locality or area which is not under the control of the attacking party and whose control is intended to be gained by force and (ii) the destruction of the property of the persons affiliated with the adverse party (be they civilians or prisoners of war) once the attacking party has gained control of the locality or area subject to the attack. Moreover, as evidenced by the conflict in the former SFRY, each of these phases is usually carried out by different units of the armed forces of the attacking party. Unfortunately, as explained above, the case law of the ICTY on this matter has not always followed the separate analysis proposed in this book. IV..

Other Serious Violations of International Humanitarian Law Committed during Conduct of Hostilities Included in the RS

In addition to the serious violations of the principle of distinction described above, the RS criminalizes other serious violations of international humanitarian law committed in the conduct of hostilities by one party to the conflict against protected persons or objects that are not under its control. These crimes can be divided into the following three categories: (i) war crimes committed against specially protected persons; (ii) war crimes related to the use of prohibited methods of warfare and (iii) war crimes committed by using prohibited weaponry or ammunition. IV...

Crimes Committed against Persons Entitled to Special Protection

The first crime included within this category is the war crime of intentionally directing attacks against personnel, installations, matériel, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. This crime, which originated in the Convention on the Safety of United Nations and Associated Personnel, adopted in  and in force since  January , requires that the personnel, installations, matériel, units or vehicles under attack be entitled to the protection    

See supra section IV.I.. Id. Art. ()(b)(iii) and ()(e)(iii) RS. This crime is also included in the Draft Code of Crimes against the Peace and Security of Mankind of .

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given to civilians or civilian objects under the international law of armed conflict. Therefore, instances where those participating in humanitarian assistance or peacekeeping missions act as combatants on the basis of a resolution adopted by the UN Security Council under chapter VII of the UN Charter are excluded from this provision. Secondly, the crime of attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives is also included in this category. The definition of this crime, which originated in art.  of the Regulations Annexed to the Hague Convention IV of  and art.  AP I, and which was later included in art. (c) ICTYS, adds to its original wording a ground for justification when the undefended town, village, dwelling or building targeted is a military objective. The scope of application of this ground for justification is not at all clear, since towns, villages, dwellings or buildings protected by this provision, in addition to being in or near the front line and to being open for occupation by an adverse party, must fulfil the following requirements: (i) all combatants, as well as mobile weapons and mobile military equipment must have been evacuated; (ii) no hostile use can be made of fixed military installations or establishments; (iii) no acts of hostility can be committed by the authorities or by the population and (iv) no activities in support of military operations can be undertaken. Thirdly, this category of crimes also includes the war crime of intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. This crime originates in arts.  and  of the Regulations Annexed to the Hague Convention IV, arts.  to  GC I, arts. , ,  and  GC II, arts. ,  and  GC IV and arts.  and () AP I, as well as in the Convention for the Protection of Cultural Property in the Event of Armed Conflict of . Moreover, as seen above, art. (d) ICTYS contains a similar provision. The ground for justification included at the end of the definition of the crime applies to those instances where the above-mentioned objects are used for military purposes, which would happen  This crime was included in the RS as a result of a proposal by Spain. See Pignatelli y Meca, La Sanción, supra note , pp. -.  Art. ()(b)(v) RS.  Art. (c) ICTYS refers to “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings”.  On the introduction of this additional expression see D. Pfirter, Attacking Undefended Places, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational Publishers ) [hereinafter Pfirter, Attacking Undefended Places].  See art.  of the Regulations Annexed to the Hague Convention IV of  and art. () and () AP I.  Art. ()(b)(ix) and ()(e)(iv) RS.

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if, for example, a monastery is used as an observation post, or if a school is used as a storehouse. Moreover, footnote  of the EC clarifies that the presence of persons specially protected under the Geneva Conventions in places where the sick and wounded are collected – such as medical or religious personnel of the armed forces or police forces retained for the sole purpose of maintaining law and order – does not by itself render the locality a military objective. Fourthly, the war crime of intentionally directing attacks against buildings, matériel, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law also forms part of this category. This crime originates in arts.  to ,  and  to  GC I, arts.  to  GC II, arts.  to  GC IV and arts. , , , , ,  and  AP I. The EC extend the scope of the objective elements of the crime to instances where the person or object subject to attack does not use the distinctive emblem provided for in the Geneva Conventions but uses any other method of identification – such as flashing blue lights in the case of ambulances, special radio signals, radar identification signals or acoustic signals for submarines – indicating protection under the Geneva Conventions, in conformity with Annex I to AP I. However, given the non-binding character of the EC and the obligation in art. () RS to strictly construe the definition of the crimes, not to extend them by analogy and to interpret them in favour of the person being investigated, prosecuted or convicted in case of ambiguity, the ICC, in the author’s view, should reject the extension of the objective elements of the crime proposed in the EC. Finally, also belonging to this category is the war crime of killing or wounding a combatant who, having laid down his arms or no longer having means of defence, has surrendered at discretion. This crime originates in art. (c) of the Regulations Annexed to the Hague Convention IV of . The main debate around the definition of this crime and the subsequent elaboration of its elements revolved around the inclusion of the text contained in art. () AP I, which reads as follows: “A person is hors de combat if (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape”. As a result of this debate, whereas the Rome Conference opted for excluding the text in art. () AP I because of the strong opposition of the States not Party to AP I, the expression  Pfirter, Attacking Undefended Places, supra note , p. .  Art.  ()(b)(xxiv) and ()(e)(ii) RS.  Pfirter, Attacking Undefended Places, supra note , p. , where the author points out: “The deliberate extension in element  was adopted by consensus after an extensive discussion”.  Art. ()(b)(vi) RS.

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“hors de combat” was included in the EC, although it was decided not to expressly elaborate on it as provided for in art. () AP I. IV...

Crimes on the Use of Prohibited Methods of Warfare

This category of crimes is comprised, first, of the crime of making improper use of a flag of truce, of the flag or military insignia and uniform of the enemy or the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury. This crime originates in the combination of art. (f ) of the Regulations Annexed to the Hague Convention IV of  and arts. ,  and  AP I. Its most remarkable characteristic is that the commission of this crime requires a causal link between the improper use of the above-mentioned insignia or emblems and the result of death or serious personal injury. In this regard, some authors have argued that despite its exclusion from the RS, the improper use of such insignia or emblems amount as such to a serious violation of international humanitarian law which, outside the framework of the RS, gives rise to individual criminal responsibility (amounting then to a crime of mere action). Secondly, the crime of killing or wounding treacherously individuals belonging to the hostile nation or army also belongs to this category. This crime is based on art. (b) of the Regulations Annexed to the Hague Convention IV of . It requires both the intention (ulterior intent/dolus specialis) to betray the victim’s confidence and the result of death or injury. Art. ()(e)(ix) RS also criminalizes this conduct in non-international armed conflicts, although in a more restrictive fashion because it uses the expression “combatant adversary” to define the group of potential victims of this crime. Thirdly, this category of crimes includes the crime of declaring that no quarter will be given, which originates in art. (d) of the Regulations annexed to the Hague Convention IV of  and art.  AP I. This is a crime of mere action which is committed by the mere declaration – which can also take the form of an order – that there shall be no survivors. The EC also require that the perpetrator be in a position of effective command or control over the subordinate forces to which the declaration or order was directed and that he or she has the intention (ulterior intent/dolus specialis) to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors when the declaration is made.  Art. ()(b)(vii) RS.  C. Garraway, Improper Use of a Flag of Truce, or Other Flags, Military Insignia, Uniforms or Distinctive Emblems, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational Publishers ).  Art. ()(b)(xi) RS.  C. Garraway, Denying Quarter, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational

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Fourthly, the crime of destroying or seizing the enemy’s property, unless such destruction or seizure is imperatively demanded by the necessities of war, already explained, also belongs to this category. Fifthly, the crime of utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations also forms part of this category. This crime originates in art.  GC III, art.  GC IV and art. () AP I and is characterised by the requirement that the perpetrator has the intention (ulterior intent/dolus specialis) to shield a military objective from attack or to shield, favour or impede military operations. Finally, this category of crimes includes the crime of intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions. This crime, originating in art.  AP I, requires that the conduct – depriving civilians of objects indispensable to their survival – is carried out with the intention (ulterior intent/dolus specialis) to “starve civilians as a method of warfare.” IV...

Crimes on the Use of Prohibited Weapons or Munitions

This category of crimes is comprised of crimes that punish the use of weapons or ammunition of a nature to cause superfluous injury or unnecessary suffering Publishers ). See also Dörmann, Elements of War Crimes, supra note , p. .  Art. ()(b)(xiii) and (e)(xii) RS.  Art. ()(b)(xxiii) RS.  See the elements of the crime of using protected persons as human shields provided for in art. ()(b)(xxiii) RS. Id. See also D. Frank, Using Protected Persons as Shields, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational Publishers ). Although stricto sensu this crime can only be committed against persons who are in the hands of the party to the conflict with which the perpetrator is affiliated, it has been included in this section because it is closely related to the application of the proportionality rule. Indeed, given the frequency with which soldiers, weaponry, or other kind of military material are deployed – or military infrastructures are built – in the vicinity of areas where civilians reside or civilian objects are located, the question of whether the damage derived from unlawful enemy actions should be counted as incidental civilian damage has become particularly important. In any event, and regardless of the answer to this question (see infra section VI...), it is important to highlight that, according to the RS, individual criminal responsibility arises for those who unlawfully put at risk the life and physical integrity of civilians and civilian persons.  Art. ()(b)(xxv) RS.  See the elements of the crime of using starvation as a method of warfare provided for in art. ()(b)(xxv) RS. See also D. Frank, Starvation as a Method of Warfare, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational Publishers ).

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or to have an indiscriminate effect, such as employing poison or poisoned weapons, employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, or employing bullets which expand or flatten easily in the human body. However, missing in the RS is a general crime expressly referring to the use of weapons, projectiles, matériel and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. The unsatisfactory nature of the solution adopted in art. ()(b)(xx) RS must be stressed. According to a general criminalization is rejected and the particular criminalization of each weapon, projectile, matériel or method of warfare is conditioned to: (i) a “comprehensive prohibition” in international humanitarian law and (ii) its inclusion “in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles  and ”. Although the RS also criminalizes, in non-international armed conflicts, serious violations committed against specially protected persons who are not under the control of the party to which the perpetrator of the crime is affiliated, this is not the case with the use of means and methods of warfare prohibited under international humanitarian law. Except for the crimes of declaring that no quarter will be given, killing or wounding treacherously a combatant adversary and taking hostages, paragraphs (c) and (e) of art.  RS do not provide for a separate crime of using weapons, projectiles and means of warfare the use of which is otherwise criminalized in relation to international armed conflicts.

 Art. ()(b)(xvii) RS. The prohibition against the use of poisonous weapons is one of the oldest principles of customary international law; it was codified in art. (a) of the Regulations Annexed to the Hague Convention IV of .  Art. ()(b)(xviii) RS. This crime originated in the Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of  June .  Art. ()(b)(xix) RS. The prohibition of this type of ammunition originated in the Hague Convention II of , which forbids the use of bullets which expand or flatten easily in the human body.  Concurring Cassese, International Criminal Law, supra note , p. .  Some commentators such as W.A. Schabas, Introduction to the International Criminal Court  (nd ed., Cambridge University Press ), have referred to this situation as “a shameful situation where poisoned arrows and hollow bullets are forbidden yet nuclear, biological and chemical weapons, as well as anti-personnel land mines, are not”.  Art. ()(e)(x) RS.  Art. ()(e)(ix) RS.  Art. ()(c)(iii) RS.  Cassese, International Criminal Law, supra note , p. .

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This exclusion is particularly remarkable because the Appeals Chamber of the Ad hoc Tribunals in its Decision on jurisdiction in the Tadić case has indicated that current international humanitarian law does not allow for those means or methods of warfare prohibited in international armed conflicts because they are inherently indiscriminate or cause superfluous injury or unnecessary suffering to be considered lawful when they are used in the context of non-international armed conflicts. However, the fact that the use of a particular kind of weapon, projectile or method of warfare is not included in a separate crime does not necessarily mean that such use, at least in certain circumstances, cannot be included within other crimes contained in the RS. For example, the use of certain weapons which, because of their inaccuracy or the impossibility to limit their effects spatially or temporally after they have reached their objective, do not comply with the rules elaborating on the principle of distinction may qualify as an attack against civilians or civilian objects – or even as a disproportionate attack against a military objective. This is the view of the ICTY OTP in its report on the NATO aerial campaign in Kosovo in , where it is stated that, despite the absence of any conventional or customary ban on the use of depleted uranium projectiles or of cluster bombs, their use must always be respectful of the general principles of international humanitarian law – including the principle of proportionality as a manifestation of the principle of distinction. In this regard, the ICRC has indicated that there exists national and international practices considering as indiscriminate, either generally or in relation to a specific set of circumstances, the use of the following types of weapons: chemical weapons, bacteriological weapons, nuclear weapons, anti-personnel land mines, mines, poison, explosives launched from balloons, V- and V- projectiles, cluster bombs, booby-traps, Scud missiles, Katyusha rockets, incendiary weapons and environmental modification techniques.

    

See Tadić Jurisdiction Decision, supra note , ¶  and . Art. ()(b)(i) and ()(e)(i) RS. Art ()(b)(ii) RS. Art ()(b)(iv) RS. ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ . The ICRC has also not reached a final conclusion on its unlawfulness. See ICRC, Depleted Uranium Munition, Int’l Rev. Red Cross - ().  ICTY OTP’s Report on the NATO campaign in Kosovo in , ¶ . See also Protocol V on Explosive Remnants of War to the  UN Convention on Conventional Weapons (Nov. , ).  ICTY OTP’s Report on the NATO campaign in Kosovo in , ¶  and .  Henckaerts, Customary International Humanitarian Law, supra note , pp. -.

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The Trial Chamber in the Blaškić case, when analyzing the HVO attack against Vitez and Stari Vitez on  July  with hand-made mortars (the socalled “baby-bombs”), qualified these kinds of weapons as “blind weapons” without any kind of accuracy. This fact, together with the circumstance that most of the resulting victims were civilians and most of the damage was done to civilian objects, led the Chamber to conclude that this was an indiscriminate attack. In this regard, Human Rights Watch, in analyzing the launching by Hezbollah of up to  rockets between  and  July  into Israel, reached the conclusion that, when directed towards civilian areas, particularly cities, without any guidance system for accurate targeting, the launching of rockets is inherently indiscriminate. According to Human Rights Watch, this is particularly so when such rockets “are packed with thousands of metal ball-bearings, which spray more than  meters from the blast and compound the harm to civilians”. The Trial Chamber in the Martić case stressed that there was no formal provision forbidding the use of cluster bombs as such, but regarded the use of an Orkan rocket with a cluster bomb warhead on Zagreb in this particular case as evidence of the intent of the accused to deliberately attack the civilian population. The question of the legality of the use of cluster bombs has also been addressed by the ICTY OTP in its report on the NATO aerial campaign in Kosovo in . In this report, the ICTY OTP mentioned that Human Rights Watch had condemned the use of cluster bombs alleging that the high “dud” or failure rate of the submunitions (bomblets) contained inside cluster bombs converted these submunitions into anti-personnel landmines which are now prohibited under customary international law. However, according to the ICTY OTP, neither the customary character of the prohibition on the use of anti-personnel  Blaškić Judgement, supra note , ¶ . As seen in section IV.. supra, the ICTY’s case law has considered indiscriminate attacks as attacks directed against civilian population.  Human Rights Watch, Fatal Strikes: Israel’s Indiscrimate Attacks against Civilians in Lebanon,  Hum. Rts. Watch (E) () at http://hrw.org/reports//lebanon/lebanonweb.pdf, p.  [hereinafter HRW, Fatal Strikes].  Id.  Prosecutor v. Milan Martić, Case No. IT---T, Rule  Hearing Decision ¶  (Mar. , ) [hereinafter Martić Decision].  The Chamber also took into account the fact that the missile struck an area where there was no military objective, that the missile was used as a sort of anti-personnel weapon against the city of Zagreb and that the accused himself had indicated that he intended to attack the city as such by launching the missile (Martić Decision, ¶ ).  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ . See also the following reports of Human Rights Watch: Ticking Time Bombs: NATO Use of Cluster Munitions in Yugoslavia (); Fatally Flawed: Cluster Bombs and Their

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landmines is beyond doubt (although there is a tendency in this direction) nor is there general legal consensus that cluster bombs are, in legal terms, equivalent to anti-personnel landmines. Accordingly, the ICTY OTP concluded, referring as well to the Decision concerning Rule  in the Martić case, that it was not necessary to commence an investigation into the use of cluster bombs by NATO during its air campaign in Kosovo. Subsequently, a new report of Human Rights Watch on the conduct of hostilities in the conflict between Israel and Lebanon in the summer of , found that the Israel Defence Forces used artillery-fired cluster munitions against populated areas in Souther Lebanon, including in the village of Blida on  July , causing civilian casualties,  and highlighted that: There is no specific international prohibition on the use of cluster munitions (unlike, for example, blinding lasers or chemical weapons). However, their use in or near civilian areas violates the international humanitarian law prohibition on indiscriminate attacks because they cannot be directed in a way that distinguishes between military targets and civilians. In addition, cluster bomblets have a high initial failure rate – the munitions used by Israel in Lebanon have an initial failure rate of up to  percent – which results in numerous unexploded but highly volatile “duds” scattered about the landscape. These pose similar risks to civilians as antipersonnel landmines.

Regarding the use of depleted uranium, the ICTY OTP, although admitting the possibility that, in the future, there might be international consensus that the use of such projectiles violates general principles of international humanitarian law, concluded that there is currently no conventional ban on its use and it cannot be sustained that there is anything more than a developing scientific debate and concern about the effects of the use of these projectiles. Moreover, the ICTY OTP affirmed that even in the case of nuclear weapons and other weapons of mass destruction, which are universally acknowledged to have the most deleterious environmental consequences, it is difficult to argue that the prohibition

    

Use by the United States in Afghanistan (); Off Target: The Conduct of the War and Civilian Casualties in Iraq (). ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ . Id. HRW, Fatal Strikes, supra note , pp. ,  and . Id. at p. . See also p. . ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .

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Specific Objective Elements



of their use in all cases is absolute. In fact, the uncertainty regarding the content of the legal standards applicable to this matter has resulted in the fact that the ICTY OTP has not brought charges for war crimes based on the unlawful use of weapons and ammunition by the parties to the conflict in the former Yugoslavia.

 Id. See also the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion),  I.C.J. Rep. , ¶  ( July ).  See supra section IV...

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Chapter V Practical Issues on the Application of the Notion of Military Objective

V. Preliminary Remarks In order to decide on the lawfulness of a given attack, a number of issues relating to the preparation and execution of military operations must be taken into consideration. Firstly, projectiles do not hit targets with the degree of precision that one could have expected. If even professional snipers using rifles with telescopic sight have a small margin of error, such margin of error is far higher when persons with a lower level of training use less sophisticated weapons. Secondly, whenever possible, armed forces must try to avoid combat in urban areas because: (i) it usually brings about a higher toll of casualties among their own troops; (ii) it eliminates any technological advantage that they could have over the enemy and (iii) it increases the risk of causing serious incidental civilian damage.  For instance, every bomb and missile delivered from the air has a circular error probable (CEP). The CEP is a circle within which  of the bombs directed at a given point will eventually impact; thus, it is expected that the other  will impact outside such circle. During WW II, most of the bombs fell miles away from their targets. Since then, and particularly since the development of projectiles guided by remote control, the precision of the bombardiers has exponentially increased. Nevertheless, not even the use of this type of guided bombs and missiles can guarantee that the target will be hit. Different factors such as mechanical errors, human mistakes, defensive measures of the party under attack or the weather have a great influence in the trajectory of a bomb or a missile. Moreover, as shown by the conflict in former SFRY, most modern-day bombs are still not guided by remote control. Indeed, in that armed conflict, technological evolution in this field scarcely played a role and the vast majority of the operations involved the use of artillery – namely cannons, howitzers ands mortars – in support of land operations. Needless to say that all artillery weapons have margins of error previously identified by the party using them, including a reach probable error and a direction probable error. There are also tables that show through an ellipse around the targeted impact point the probable error of every weapon from any given distance.  For instance, , Japanese soldiers, , US soldiers and some , Filipino civilians lost their lives in the campaign that led US forces to take over Manila in . Most civilian casualties took place during cross-fire between the US and Japanese soldiers.

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Chapter V

Thirdly, although in some cases military doctrine may be tempted to put aside those legal duties with which armed forces must comply during the conduct of hostilities, this does not mean that such obligations no longer exist. On the contrary, these obligations are always binding on the armed forces because military doctrine is only comprised of a set of military practices which indicate the way in which the armed forces are expected to conduct themselves in combat situations. These and other practical issues relating to the application of the notion of military objective and the proportionality rule are the subject of the following chapters. In addressing these issues, special attention will be placed on the ICTY’s case law because the ICTY is the only international judicial body which has undertaken the difficult task of applying these principles after WW II. V.

Persons who Are Military Objectives

The notion of military objective is the cornerstone of the principle of distinction and the rules which elaborate on this principle. According to art.  AP I, “in order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”. Many other provisions of the Additional Protocols, such as arts. () and () AP I and art. () AP II, elaborate on the obligation to only attack military objectives and the prohibition on launching attacks against civilians or civilian objects. Serious breaches of this prohibition are criminalized in paragraphs ()(b)(i) and (ii) and ()(e)(i) of art.  RS. However, the RS, the EC, the ICTY’s case law and the Additional Protocols do not contain a definition of the notions of civilian population, civilians or civilian objects. Indeed, they refer to such notions by stating that they include those persons and objects that do not fall within the category of military objectives. Therefore, the only way to determine the group of persons and objects that can be subject to the crimes of directing attacks against civilians or civilian objects is to analyze the content of the notion of military objective and to interpret it a contrario.  For instance, although military doctrine recommends the use of mortars for combat operations in urban areas because the usual high trajectory followed by mortar shells allows them to go over the buildings, this does not mean that they can be used without taking into account the incidental civilian damage that they might cause. Military personnel are always bound to apply the proportionality rule and to cancel or suspend those operations which are expected to cause excessive incidental civilian damage.  The military doctrine of some armies puts the stress on mobility whilst in other armies the emphasis is put on the use of artillery to solve the problem.

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Practical Issues on the Application of the Notion of Military Objective



The notion of military objective includes both persons and objects. There are two kinds of persons who are military objectives: (i) combatants and (ii) those other persons who, in spite of not having combatant status, take active part in the hostilities. The latter are only military objectives for the duration of their active participation in the hostilities. V..

Persons Entitled to Combatant Status

Combatants are those persons who, according to the international law of armed conflict, are entitled to participate in the hostilities and, thus, to launch attacks against military objectives of the other parties to the conflict. They are not criminally liable for the deaths, injuries or damage caused by their attacks as long as such attacks are lawful under international humanitarian law. Furthermore, whenever they are captured by an adverse party, they are entitled to prisoner of war status. Save for the exceptions shown below, combatant status is granted to the members of the armed forces of any State. They consist of all organized armed forces, groups and units which: (i) are under a command responsible to the party to the conflict to which such command is affiliated for the conduct of its subordinates – even if such party is represented by a government or an authority not recognized by an adverse party and (ii) have an internal disciplinary system which, inter alia, is charged with enforcing compliance with the rules of international law applicable in armed conflict. As it has been rightly pointed out, this definition applies to all armed forces and, thus, it does not make any distinction between regular and irregular armed forces. In principle, members of state organs in charge of maintaining public order – such as the Spanish national, regional or local police – are not part of the armed forces. Therefore, as members of these state organs are not entitled to combatant status, they do not have the right to actively participate in the hostilities and they cannot be the object of a lawful attack. Nevertheless, the party to the conflict to which those state organs are affiliated can always incorporate them into its armed forces during an armed conflict; the adverse party must, in any event, be notified

 Art. () AP I.  K. Ipsen, Combatants and Non-Combatants, The Handbook of Humanitarian Law in Armed Conflicts  (D. Fleck eds., Oxford University Press ).  Art. () and () AP I.  Henckaerts, Customary International Humanitarian Law, supra note , p. .  J.L. Doménech Omedas, Los Sujetos Combatientes in Derecho Internacional Humanitario  (Rodríguez-Villasante y J.L. Prieto ed., Cruz Roja Española/Tirant lo Blanch ).  A contrario interpretation of art. () AP I.

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

Chapter V

of the incorporation. In this scenario, the members of such state organs will be automatically granted combatant status. Some military personnel of the armed forces, such as medical personnel, religious personnel and military personnel assigned to civil protection agencies, are not entitled to combatant status. Therefore, they do not have the right to actively participate in the hostilities and they cannot be the object of a lawful attack. Those members of the armed forces who are hors de combat are also in the same situation. However, those members who are temporarily on leave keep their combatant status and are military objectives at all times. From the moment that members of the armed forces attain the status of wounded, sick, shipwrecked or prisoner of war, they are no longer combatants; that is to say, they have no right to actively participate in the hostilities and they cannot be the objects of a lawful attack. Nevertheless, as soon as they return to their positions after having been released or after having recovered from their wounds or illnesses, they regain combatant status. It is not always easy to determine when a combatant becomes a person placed hors de combat, particularly in those cases in which, as a result of an initial attack, enemy combatants are wounded but they do not surrender. In this scenario, those who have been so badly wounded that cannot defend themselves any longer are no longer military objectives. On the other hand, those ,who despite their wounds, continue resisting the enemy’s attack keep their combatant status and are military objectives. Save for phenomenon of levée en masse, any other person who does not fall within any of the above-mentioned categories and, thus, cannot be considered a member of the armed forces of a party to the conflict according to the extensive definition of armed forces provided for in art.  AP I does not have combatant status – regardless of the special protection to which such person might be entitled (i.e. medical, religious and civil protection personnel who are not part of the armed forces, aid society personnel and journalists who either accom-

    

   

Art. () AP I. Art. () AP I. Id. Art. () AP I. According to art. (A)() CG III, combatant status is also granted to “inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war”. Art.  AP I. Id. Art.  AP I. Art. () AP I.

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

pany the armed forces of a party to the conflict or are engaged in dangerous professional missions in areas of armed conflict). As a result, any such person is not entitled to actively participate in the hostilities and, in principle, cannot be the object of a lawful attack. V..

Persons without Combatant Status who Take Active Part in the Hostilities V...

Active Participation in the Hostilities versus Actions Taken in Self-defence

If those persons who do not have combatant status decide to actively participate in the hostilities, they automatically become military objectives. However, this situation must be distinguished from the use of armed violence in self-defence in combat situations. This occurs when persons who do not have combatant status decide to take up arms against the enemy’s armed forces which are unlawfully attacking them, or are about to do so, in order to save their own lives or those of third persons. It should be borne in mind that, since they are non-combatants who do not take active part in the hostilities, they cannot, in principle, be the object of a lawful attack. Arts. ()(a), () and ()(d) AP I establish that medical, religious and civil protection personnel, no matter whether they are part of the armed forces, do not become military objectives as a result of bearing light individual weapons for their own self-defence or for the defence of the people under their responsibility (such as wounded or sick people). The Additional Protocols do not expressly provide for the use of armed violence in self-defence by any other person who is not a member of the armed forces of a party to the conflict. Thus, the question arises as to whether those villagers who decide to shoot with their hunting rifles at the members of the enemy’s armed forces, who are reducing their village to ashes, become military objectives; a similar question arises with regard to a group of Rwandan Hutus who decided to throw stones and knifes at those members of the Interahamwe militia who are approaching them with machetes and sticks to kill them. As shown below in the section on the grounds for justification provided for in art.  RS, situations (such as the ones referred to above) in which persons who are not military objectives decide to take up arms to resist the enemy amount to cases of self- defence pursuant to art. ()(c) RS as long as the use of armed violence is confined to isolated instances in which there is an imminent threat to their own lives or those of third persons. As a consequence, those who, under  Art.  () GC III and art.  () AP I.  Art. () AP I.  Art. () AP I.

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Chapter V

these circumstances, take up arms in self-defence act lawfully and do not become military objectives. In any event, it is important to underscore that the members of those organized armed groups which are parties to non-international armed conflicts fall within this category of persons who actively participate in the hostilities. Therefore, regardless of the exact content of their status, they are military objectives as long as they continue to actively participate in the hostilities. V...

Active Participation versus Indirect Participation in the Hostilities. Special Reference to Enforced Active Participation

The issue of which kind of activities are included within the notion of active participation in the hostilities has been examined at length. It is generally accepted that the use of arms or any other means to carry out acts of violence against personnel or matériel of the armed forces of the adverse party constitutes an active participation in the hostilities. The problem arises when defining which other activities also constitute active participation in the hostilities. In this regard, the IACHR has pointed out that the expression “take active part in the hostilities” usually includes acts which by their own nature or purpose are intended to cause damage to enemy’s personnel or matériel. Moreover, the IACHR has made a distinction between cases of active participation in the hostilities which turn the participant into a military objective and cases of indirect participation in support of one of the parties to the conflict – namely selling goods, showing sympathy for its cause or omitting any act in order to prevent its military operations. According to the IACHR, cases of indirect participation, insofar as they involve activities which do not amount to

 The notion of combatant has only been used in relation to members of organized armed groups which are a party to a non-international armed conflict for the purpose of underscoring that they do not enjoy the same protection as civilians against attacks launched by the adverse party. This does not mean, however, that members of such organized armed groups are entitled to prisoner of war status. See, for instance, the Preamble and section  of UN General Assembly Resolution , supra note , as well as sections ,  and  of the Cairo Declaration and Plan of Action, Adopted at the Euro-African Summit, Held in Cairo on  and  Apr.  under the Auspices of the Organization of African Unity/African Union.  Id. at p. .  Henckaerts, Customary International Humanitarian Law, supra note , p. .  IACHR, Tercer Informe sobre Derechos Humanos en Colombia, Chapter IV on Violence and Violations of International Law of Human Rights and International Humanitarian Law, ¶  (), at http://www.cidh.oas.org/countryrep/Colomsp/ indice.htm.

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Practical Issues on the Application of the Notion of Military Objective



acts of violence that entail an immediate threat to the adverse party, do not turn the participant into a military objective according to art. () AP I. Some military manuals include the following amongst the activities that constitute an active participation in the hostilities: (i) acting as an intelligence agent, as an explorer or as a messenger; (ii) being on guard duty and (iii) spying on a party to the conflict. Nevertheless, most military manuals only mention that the question of whether a given activity amounts to active participation in the hostilities should be answered on a case-by-case basis. Working in military factories or in industries which play an important role in supporting the military effort – such as ammunition factories or petrochemical industries – does not amount by itself to active participation in the hostilities. Therefore, workers do not become military objectives, although they assume the risk of incidentally losing their lives as a result of an attack against their workplaces, which do constitute military objectives. In this scenario, it would be necessary to apply the proportionality rule to decide on the lawfulness of the attack A particularly complicated situation arises when persons are forced to contribute to the military effort of one of the parties to the conflict. This is the case, for instance, of persons who are not members of the armed forces and who are forced to act as messengers, informants or transporters of military equipment. In these cases, one should analyze first whether the type of forced contribution amounts to active participation in the hostilities; there is a difference between being forced to: (i) cook for the troops; (ii) act as an explorer in a unit that tries to infiltrate the enemy’s territory in order to commit sabotage and (iii) act as a sniper from a hill which overlooks the enemy’s lines. Only if the forced contribution amounts to active participation in the hostilities, will one then determine whether the non-voluntary character of the contribution has any impact on the status of the concerned persons as military objectives. The recent Decision on the confirmation of the charges in the Lubanga case has pointed out that, in relation to the crime of using children under the age of fifteen to actively participate in the hostilities, cases of active participation are not confined to active involvement in combat operations (be it of a defensive or of an offensive nature). On the contrary, they also include situations in which children are used as explorers, messangers or spies, or are given tasks such to commit sabotage or to be on guard duty.  Id. at ¶ .  See the military manual of the US Navy, section  and the military manual of the Ecuadorian armed forces, section . See also the report on the practice in the Philippines (section ) referred by Henckaerts, Customary International Humanitarian Law, supra note , p. , footnote .  See the military manuals mentioned by Henckaerts, Customary International Humanitarian Law, p. , footnote .  Lubanga Confirmation of Charges, supra note , ¶ .

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

Chapter V

In the author’s view, whenever a person actively participates in the hostilities, it is irrelevant whether he does so voluntarily or forcibly because in both scenarios his acts bring about an immediate threat to the adverse party. Nevertheless, the praxis of some States draws some limits on this principle. Such praxis, in spite of not being currently legally binding, they may become binding in the near future. The praxis of the Rwandan army is of particular interest: it does not consider as military objectives those persons who are obliged to provide food, transport ammunition or act as messengers in non-international armed conflicts. The reason for this praxis is that in this kind of armed conflict, the parties to the conflict usually force those persons who are under their control to carry out these types of activities. In any event, it is important to highglight that, in addition to the disputes about the range of activities which are included within the notion of active participation in the hostilities, it is often the case that the parties to the conflict have different views on whether the activities carried out by certain categories of noncombatants amount to active participation in the hostilities. A paradigmatic example can be found in the conflict between Israel and Lebanon in the summer of . For instance, on  July , between  and  pm, the Israeli Defence Forces stroke twice against a building located in Tyre, causing the death of eleven persons. According to the spokesman of the Israeli Defence Forces, they hit the headquarters of Hezbollah in Tyre. However, according to Human Rights Watch (i) the said building housed the offices of the civil defence forces of Tyree; (ii) Lebanese civil defence forces carried out for the most part activities such as firefighting or providing medical and humanitarian assistance during crises and there was no evidence that they took active part in the hostilities and (iii) there was no evidence that Hezbollah was storing equipment there or that Hezbollah fighters were in the building. At a more general level, the Israeli Defence Forces started from mid-July  to warn villagers from Southern Lebanon to evacuate immediately and to go north of the Litani River. In order to transmit the warning, the Israeli Defence Forces called the village leaders on their mobile phones, made radio-broadcasts and dropped leaflets. As a result, Israeli officials, on the premise that Israel had given sufficient time to leave the area below the Litani River, alleged (i) that all those remaining in such area should be considered as Hezbollah supporters or as related in some way to Hezbollah and that, in any event, (ii) they were    

Henckaerts, Customary International Humanitarian Law, supra note , p. . Summary of IDF operations in Lebanon on July , . HRW, Fatal Strikes, supra note , p. . Anthony Shadid, Residents of Besieged City Feel ‘Just Left to Die’, The Washington Post, July , ; Israeli Defence Forces, IDF Issues Warning to residents of Southern Lebanon to Vacate their homes and Move Northwards, July , .  See, for instance, the statement of Israeli Justice Minister Haim Ramon, in BBC News Online, Israel says world backs offensive, July , .

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

trying to minimize hurting civilians or damaging civilian objects despite the fact that Hezbollah fighters were using those remaining in the said area as human shields. On the other hand, according to Human Rights Watch: “While some villagers residing south of the Litani River have chosen to remain in their villages—because they provide essential civil services or for other reasons—others are unable to flee because they have family members who are elderly or infirm, because the family lacks the means to pay exorbitant taxi fares, or because it fears the abovedescribed dangers of Israeli attacks on the roads. As a result, tens of thousands of civilians remain trapped in their villages, most hiding in basements, mosques or makeshift shelters, with depleted supplies of food, water, medicine and basic supplies.”Moreover, according to Human Rights Watch, only in limited occasions, Hezbollah fighters attempted to store weapons near civilian homes and fired rockets from areas where civilians lived. As a result, Human Rights Watch concluded that it seemed that the IDF either considered all people in the area of hostilities open to attack or, at least, blurred the distinction between civilians and combatants and was willing to strike at targets it considers even vaguely connected to the latter. V...

Conclusion of Active Participation in the Hostilities

From the very moment when a non-combatant commences to actively participate in the hostilities, he becomes a military objective and can thus be the object of a lawful attack. This situation will continue until he ends his active participation in the hostilities. The question therefore arises as to when it can be considered that a non-combatant has ceased his active participation in the hostilities and, thus, can no longer be the object of a lawful attack. This situation has very often arisen in the rural areas located in the vicinity of the front lines during the armed conflict in the former SFRY. The villages and hamlets alongside the valley of the river Lašva in Central Bosnia in  constitute a paradigmatic case. The combat situation in the Lašva valley can roughly be defined as follows. The valley and the road alongside the river were under HVO  Statement of the Israeli ambassador to the United Nations, in CNN, The Situation Room, July ,  [hereinafter, CNN, The Situation Room].  HRW, Fatal Strikes, supra note , p. .  Id. at pp. -.  Id. at pp. -.  Art. () AP I and art. () AP II.  As it has been rightly pointed out, this question, as well as the one concerning the moment at which non-combatants actively start participating in the hostilities, are often rather complex. See in this respect, E. David, Principes de Droit des Conflits Armés, Bruylant  (rd ed. ).

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Chapter V

control – which also had a logistical advantage and possessed more sophisticated weaponry. The control of the main means of transportation across the valley allowed the HVO to maximize the use of its better weaponry. The upper sides of the hills on both sides of the valley were mainly under the control of the ABiH, which, in spite of its poorer logistics and weaponry, possessed a net superiority in terms of infantry soldiers. In , the population of the Lašva valley was mixed. In some of the villages and hamlets of the valley, the population was mainly Bosnian-Croat, whereas in others, the population was mainly Bosnian-Muslim. Moreover, in many of the villages and hamlets, there was a similar percentage of Bosnian-Croats and Bosnian-Muslims inhabitants. In addition to the armed forces of the parties to the conflict (HVO and ABiH), every village had a defensive system which was comprised of: (i) men between the ages of  to  years old who were neither members of the ABiH nor the HVO and who had undertaken their mandatory military service – they were part of what was known as the territorial defence system and (ii) those HVO and ABiH soldiers who were on leave at home. Depending on their composition, the defence system of each village was aligned with one of the parties to the conflict – although some villages with a mixed population had two different defence systems, one Bosnian-Croatian and another Bosnian-Muslim. The members of the defence systems were poorly equipped, as they typically only had hunting rifles and lacked uniforms. They usually carried out duty guards and gathered information from the surroundings of their village, which included, whenever necessary, shooting at enemy forces approaching the village.  The system of Total National Defence was included for the first time in the Constitution of the former SFRY in , which was adopted a year after the invasion of Czechoslovakia by the Soviet Union. This system is described as follows by M.C. Bassiouni, Final Report of the United Nations Commission of Experts Established pursuant to Security Council Resolution (), Annex III: The Military Structure, Strategy and Tactics of the Warring Factions, U.N. SCOR, th Sess., Annexes, U.N. Doc. S///Add. ¶ - (): “B. Total National Defence (TDF) . While national defence was a federal responsibility, the former Yugoslavia had a decentralized system of command and control. In part, it reflected the political trends towards regionalization and eventual separatism, as discussed above. However, it was, in part, based on a particular military doctrine. Reasoning that Belgrade was indefensible, and that national command, control, and communications facilities would thus be vulnerable, the Yugoslav military planners concluded that the federal government would be unable to control military forces throughout Yugoslavia. Thus, the governments of the various Republics were to cooperate with federal military authorities for regional defence. . TND required universal military service to ensure cadres of trained soldiers throughout the country. Based on their perception of the threat, and fuelled by their World War II experience, Yugoslav military training

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In light of this situation, it can be stated, although the ICTY’s case law has not always taken this approach, that those ABiH and HVO soldiers who joined the defence systems of their own villages while being temporarily on leave continued to be military objectives. On the other hand, if undertaking duty guards emphasized guerrilla tactics in the rough terrain that makes up the bulk of the country. Decentralized training and mobilization further required dispersed military training facilities throughout the country. . Weapons caches and supply stores, like training and facilities, were dispersed throughout the former Yugoslavia to ensure ready access to weapons in the event of invasion. The Yugoslav practice of putting premilitary training in schools and of organizing its reserve units (Territorial Defence Force) around workplaces further ensured the wide distribution of weapons stores. . As a matter of national defensive strategy, then, TND ensured the widest possible distribution of trained soldiers, weapons, and ammunition. Further, the structure of the military itself supported the decentralized concept of TND”. Subsequently, the Čelebići Judgement, supra note , ¶ - defined the system of Total National Defence in the former SFRY as follows: “B. The Concept of All People’s Defence (Total National Defence) . After the invasion of Czechoslovakia in  by the USSR and due to the poor relations between the SFRY and the Soviet Union, a defence system known as ‘All People’s Defence’ (or ‘Total National Defence’) was devised to protect the SFRY from external attack. This system integrated all citizens in the defence of the federation and aimed to utilise all resources. The right of all Yugoslav citizens to participate in the defence of the SFRY was enshrined in the  Constitution, which provided for compulsory military service, compulsory labour service, civil defence and material contributions. . The centre of this defence system was the Yugoslav People’s Army (hereafter ‘JNA’), which was the SFRY’s regular, standing army, controlled by the Federal Ministry of Defence. As an institution, it possessed a right of representation on the central committee of the League of Communists. The JNA comprised ,-, regular officers and soldiers along with ,-, conscripts who served on a more short-term basis and was equipped with modern conventional weapons and equipment. In the event of an armed conflict, the JNA was to be supported by the Territorial Defence forces (hereafter ‘TO’), which had a base in each of the Republics. Each of the TOs were responsible to the Presidency of the Republic in which they were based, and also to the General Staff of the JNA. The TO was made up of part-time soldiers who had been conscripts in the JNA and who received periodical further training. Its equipment was less sophisticated and lighter than that of the JNA. . In addition, the Federal Ministry of Interior controlled intelligence and State security forces, as well as the People’s Police. These were also integrated into the overall system of All People’s Defence”. The Decision concerning adjudicated facts in the Milošević case admits as an adjudicated fact the existence of the Total National Defence system in the SFRY.

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Chapter V

and information gathering activities is considered to amount to active participation in the hostilities, the question arises as to the status of the other members of the defence systems of the villages of the Lašva valley when they were not on duty – i.e. when they spent the night at home or worked on their farms. In other words, is it possible that the same person who is a military objective in the morning while being on guard on the outskirts of his village: (i) becomes a civilian person in the afternoon while growing vegetables on his farm and at night while resting at home with his family and (ii) the next morning reassumes the status of a military objective when taking up a new guard shift? The answer to this question will have to be in the affirmative if one considers that non-combatants only participate in the hostilities while they are performing their contributions to the military effort of one of the parties to the conflict. Nevertheless, this interpretation only makes sense in those cases in which active participation in the hostilities is confined to an isolated action. In those other cases in which – as in the above-mentioned example concerning the members of the defence systems of the Lašva valley villages – active participation in the hostilities is comprised of a set of successive actions (such as gathering information on the enemy’s positions every morning), one cannot but conclude that the concerned non-combatants actively participate in the hostilities from the moment they join the defence system of the village to the moment they definitely leave it. It is only then that they cease posing an immediate threat to enemy’s personnel and matériel.  This very same conclusion was eventually reached by the Kordić Appeal, supra note , ¶  regarding the members of the territorial defence of several towns and villages of Central Bosnia. As the Appeal Chamber explained: “Particular attention has to be paid to the situation of members of a Territorial Defence (TO) and as to whether they are to be considered as combatants at all times during the conflict or only when they directly take part in hostilities, that is, when they participate in acts of war which by nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy’s armed forces. The Commentary on the Additional Protocols is instructive on this point and states: The Conference considered that all ambiguity should be removed and that it should be explicitly stated that all members of the armed forces (with the two above-mentioned exceptions [medical and religious personnel]) can participate directly in hostilities, i.e., attack and be attacked. The general distinction made in Article  of the Hague Regulations, when it provides that armed forces consist of combatants and non-combatants, is therefore no longer used. In fact, in any army there are numerous important categories of soldiers whose foremost or normal task has little to do with firing weapons. These include auxiliary services, administrative services, the military legal service and others. Whether they actually engage in firing weapons is not important. They are entitled to do so, which does not apply to either medical or religious personnel, despite their status as members of the armed forces, or to civilians, as they are not members of the armed forces. All members of the armed forces are

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This is why it is of the utmost importance for non-combatants who have been actively participating in the hostilities for an extended period of time to declare their decision to put an end to such participation – for instance by handing over any weapon that they received. Otherwise, it is likely that, despite the duty to consider all persons whose status raises doubts as civilians,the adverse party would have no doubt as to their status as military objectives in light of their previous active and continuous participation in the hostilities. As a result, persons who are no longer military objectives could be attacked because of the mistaken belief that they are still military objectives. According to art. () RS, such attacks would not be punishable under the RS because the perpetrator’s mistake of fact negates the general subjective element (referred to in art.  RS as “mental element”) of the crimes of directing attacks against civilians or civilian objects. Moreover, as long as the mandatory precautionary measures provided for in art.  AP I are taken, those attacks would not be unlawful under international humanitarian law.

combatants, and only members of the armed forces are combatants. This should therefore dispense with the concept of quasi-combatants, which has sometimes been used on the basis of activities related more or less directly with the war effort. Similarly, any concept of a part-time status, a semi-civilian, semi-military status, a soldier by night and peaceful citizen by day, also disappears. A civilian who is incorporated in an armed organization such as that mentioned in paragraph , becomes a member of the military and a combatant throughout the duration of the hostilities (or in any case, until he is permanently demobilized by the responsible command referred to in paragraph ), whether or not he is in combat, or for the time being armed. If he is wounded, sick or shipwrecked, he is entitled to the protection of the First and Second Conventions (Article , ¶ ), and, if he is captured, he is entitled to the protection of the Third Convention (Article , ¶ ). In light of the above the Appeals Chamber considers that members of the armed forces resting in their homes in the area of the conflict, as well as members of the TO residing in their homes, remain combatants whether or not they are in combat, or for the time being armed”.  The ICTY’s case law has consistently stated that as a result of the conclusion of any active participation in the hostilities by any person who is not a member of the armed forces such person is no longer a military objective. See in this respect the Tadić Judgement, supra note , ¶ ; Prosecutor v. Kupreškić et al., Case No. IT--T, Judgement ¶ - ( Jan. , ) [hereinafter Kupreškić Judgement]; Blaškić Judgement, supra note , ¶ -; Prosecutor v. Milorad Krnojelac, Case No. IT--T, Judgement ¶  (Mar. , ) [hereinafter Krnojelac Judgement].  Art.  () AP I.  See infra sections X... and X....

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Chapter V V..

Presumption of Civilian Status

As pointed out above, the question of whether a person is a military objective does not always have a clear answer because of the following two factors. Firstly, there are a number of persons who are not military objectives despite carrying weapons in the vicinity of the front line. Among them, one can cite medical, religious and civil protection personnel – who, in spite of being non-combatants, are authorized to bear light weapons for their own defence and for the defence of those under their responsibility – and members of state organs in charge of keeping public order who are not incorporated into the armed forces of a party to the conflict. This is the reason why it is very important for those launching an attack to take the mandatory precautionary measures provided for in art. () AP I to verify that the attack is not directed against any of the above-mentioned groups of persons. Secondly, the application of the notion of direct participation in the hostilities is usually difficult and it is the reason why art. () AP I requires the parties to the conflict to presume the civilian status of any person in case of doubt. Moreover, the ICTY’s case law has highlighted the importance of this presumption when applying the notion of active participation in the hostilities. However, as the ICRC has pointed out, this presumption is not absolute and is mainly comprised of the duties of the attacking party to: (i) take all possible measures under the circumstances ruling at the relevant time to dispel any doubt as to the status of the targeted person and (ii) make an honest determination of the status of the targeted person on the basis of the information gathered – namely, the information about his activities, location and apparel. V..

Equating the Existence of a Weak Defence with the Non-existence of Defence

It is one thing for the inhabitants of a village, hamlet or apartment building not to have combatant status and not to actively participate in the hostilities; it is a completely different thing for them to be so poorly equipped and instructed as to prevent them from mounting an effective defence against the enemy. In the first scenario, they are not military objectives and cannot be attacked. Concerning the second scenario, any organized defence against the attack of the armed forces of a party to the conflict, no matter how weak and ineffective it might be, amounts to an active participation in the hostilities unless it constitutes an isolated act of selfdefence. As a result, those participants in such an organized defence become mil Prosecutor v. Milorad Kunarac, Case No. IT-- and /-T, Judgement ¶  (Feb. , ) [hereinafter Kunarac Judgement].  Henckaerts, Customary International Humanitarian Law, supra note , p. . See also in that respect section  of the military manual of the US Navy.

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itary objectives and can be attacked. Furthermore, any deaths or injuries caused to civilians or civilian objects as a result of an attack against such participants will have to be considered as incidental civilian damage and the lawfulness of the attack will have to be analyzed in light of the proportionality rule. However, the ICTY’s case law has not taken this distinction sufficiently into account and has chosen an approach according to which a weak defence against an enemy attack is equated with no defence at all. For instance, the Trial Chamber in the Blaškić case affirmed the civilian status of the inhabitants of Ahmići due to the inexistence of an effective defence at the time of the indictment because: (i) only initial steps had been taken to organize a territorial defence; (ii) the territorial defence was only comprised of  men whose main task was to guard the village during night shifts; (iii) the participation in territorial defence was voluntary; (iv) there was no disciplinary sanction for those not reporting from duty; (v) the members of the territorial defence wore civilian clothes and were not considered soldiers; (vi) there were no barracks in Ahmići and (vii) the territorial defence was more of a civil protection agency rather than a true territorial defence. The Trial Chamber’s analysis in the Blaškić and Kordić cases of the HVO attack against Vitez and Stari Vitez (the Muslim neighbourhood) on the  April  is another good example of the tendency to equate a weak defence with the inexistence of any defence. Interestingly, both judgements reached the same result, despite the fact that in the Kordić case the attack on Vitez and Stari Vitez was analyzed at a strategic level (i.e. in light of the overall HVO campaign against the Bosnian-Muslim villages of the Lašva Valley in mid-April of ), whereas in the Blaškić case, the attack was analyzed at the operational level (the overall campaign of which the attack against Vitez and Stari Vitez was part did not play any role in such analysis). In the Blaškić case, the Chamber acknowledged the presence of numerous ABiH soldiers (around ) – particularly in Stari Vitez – which prevented the HVO from seizing control of Stari Vitez. However, despite the ABiH presence in Stari Vitez, the Chamber found that the attacks had been directed against civilians or civilian objects for the following reasons: (i) no casualties were reported among the ABiH soldiers in Stari Vitez; (ii) the great majority of the victims were civilians ( Bosnian-Muslims and five Bosnian-Croats); (iii) the BosnianMuslim areas of the city were shelled and subject to infantry fire, whereas the Croatian areas remained untouched and (iv) the buildings owed by civilian Bosnian-Muslims were pillaged and subsequently burned out. Furthermore, the Chamber could not find any strategic or military reason that could justify the attack to Vitez and Stari Vitez on  April . But even in the case that such a reason existed, the extension of the damage was such that the attack could only be considered as wholly disproportionate in relation to the military necessity. On  Blaškić Judgement, supra note , ¶ .

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Chapter V

the other hand, in the Chamber’s view, the attack was designed to implement a plan of expulsion of the Bosnian-Muslim population, which foresaw, whenever necessary, the killing of Bosnian-Muslims and the destruction of their possessions. The same conclusion was reached by the Trial Chamber in the Kordić case, although it analyzed the attack against Stari Vitez as part of an overall campaign conducted by the HVO against a number of localities of the Lašva Valley – including Vitez, Stari Vitez, Ahmići, Nadioci, Pirići and Šantići, all of them within  to  kilometres – beginning on the morning of  April . According to the Chamber, the campaign was initiated immediately after the expiration of the deadline given to the members of the ABiH and the Bosnian-Muslim territorial defence to either hand over their weapons to the HVO or join the HVO. This campaign was estimated by the Chamber – which did not make any distinction whatsoever between the initial attack and the cleansing operations undertaken by the HVO after seizing control of the attacked localities – to have resulted in the death of  Bosnian-Muslims, the expulsion of approximately , (of whom , were first imprisoned for a few days) and the destruction of  buildings (including three mosques, two Muslim seminaries and two schools). This, along with the fact that the great majority of the destruction and casualties in Vitez and Stari Vitez were on the Bosnian-Muslim side, led the Chamber to conclude that the HVO attack against Vitez and Stari Vitez had been directed against the civilian persons and civilian objects located there. The Chamber reached this conclusion in spite of having acknowledged the presence of  to  ABiH soldiers in Stari Vitez, who prevented the HVO from seizing control over Stari Vitez. Equating a weak defence with the lack of any defence has also played an important role, for instance, in the Trial Chamber’s analysis in the Blaškić case of the attacks against the villages and hamlets in the municipality of Kiseljak-Rotilj ( April ) and Gomionica, Hercezi, Svinjarevo, Višnjica, Grahovci and Han Ploča ( June ) – and against the village of Očehnići in the municipality of Busovača on  April . In analyzing whether these localities constituted a military target, the Chamber did not consider relevant the activities of some villagers who were members of the Bosnian-Muslim territorial defence. According to the Chamber, they were poorly equipped and instructed and acted as a sort of part-time soldiers in the defence of their villages. In this regard, the Chamber underscored that the ABiH soldiers who resisted the HVO attacks had trivial weaponry in comparison with the heavy artillery – ,  and  mm mortars and handheld    

Id. at ¶ -. Kordić Judgement, supra note , ¶ . Id. at ¶ . Id. at ¶ -.

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grenade launchers (RPG) – used by the HVO. This led the Chamber to conclude that the attacks had been directed against Bosnian-Muslims civilians and their belongings. V.. The Notion of Civilian Population To conclude this section, it is important to analyze the criminalization in art. ()(b)(i) and (e)(i) RS of attacks intentionally directed against the civilian population. The most important feature of this kind of attack is that under exceptional circumstances some deaths, wounds and damage caused to military targets can be legally qualified as incidental damage resulting from attacks mainly directed against a civilian population. The case law of the Ad hoc Tribunals, although in the context of the material contextual elements of crimes against humanity, has defined the notion of population as a sizable group of people who have some distinctive features that signal them as the targets of the attack – regardless of any geographical area or demographic percentage. According to art. () AP I, “the civilian population comprises all persons who are civilians”. This definition has been embraced by the Appeals Chamber in the Kordić and Galić cases, whereas in the Blaškić case the Appeals Chamber defined the civilian population as comprised of all persons who have never been or who are no longer members of the armed forces. In any event, what distinguishes an attack intentionally directed against a civilian population from an attack directed against civilian persons is that the number of affected individuals, or the method used in the attack, is such that one cannot but conclude that the attack was launched against the civilian population as a whole and not against a limited number of civilian persons. In an armed conflict, it is inevitable that individuals who are legally entitled to combatant status, or who actively participate in the hostilities, are intermingled with the civilian population. In this scenario, it is first necessary to determine whether the presence of soldiers within a civilian population deprives the        

Id. at ¶ . Blaškić Judgement, supra note , ¶ . Kunarac Judgement, supra note , ¶ . Tadić Judgement, supra note , ¶ . See also Prosecutor v. Bagilishema, Case No. ICTR--A-T, Judgement, ¶  ( June , ) [hereinafter Bagilishema Judgement]. Kordić Appeal, supra note , ¶  and . Galić Appeal, supra note , ¶ . Blaškić Appeal, supra note , ¶ -. See also Blaškić Judgement, supra note , ¶  and Galić Judgement, supra note , ¶ . Kunarac Appeal, supra note , ¶ . See also Stakić Judgement, supra note , ¶ .

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Chapter V

population of its civilian character. According to the Appeals Chamber in the Blaškić and Galić cases, the number of soldiers, as well as whether they are on leave, must be examined to make such a determination because the presence of soldiers does not change the civilian character of a population unless there are regular units with a fairly large number of soldiers. Once a population is found to have a civilian character, the presence within the civilian population of some individuals who are legally entitled to combatant status, or who actively participate in the hostilities, does not change the civilan character of the population. Moreover, it is necessary to prove beyond a reasonable doubt that the civilian population as such was attacked and, thus, the civilian persons killed and the civilian objects destroyed are not incidental civilian damage resulting from an attack against a military objective. In deciding whether a given attack has been primarily directed against a civilian population, the case law of the Ad hoc Tribunals has stated that the following factors must be taken into account: (i) the means and methods of combat used during the attack; (ii) the status of the victims; (iii) the number of victims; (iv) whether or not the attack has a discriminatory purpose; (v) the type of crimes committed in the course of the attack; (vi) the type of resistance staged against the attacking party and (vii) the extent to which the attacking party has complied with the mandatory precautionary measures provided for in art.  AP I. The analysis of whether an attack has been primarily directed against a civilian population is particularly relevant in those situations in which crimes against humanity – i.e. crimes committed as part of a widespread or systematic attack  Blaškić Appeal, supra note , ¶ .  Galić Appeal, supra note , ¶ .  As the Galić Appeal, ¶ , has put it, “the presence of individual combatants within the population attacked does not necessarily change the fact that the ultimate character of the population remains, for legal purposes, a civilian one. If the population is indeed “a civilian population”, then the presence of combatants within that population does not change that characterisation”. See also Kordić Judgement, supra note , ¶ ; Kupreškić Judgement, supra note , ¶ ; Kunarac Judgement, supra note , ¶ ; Krnojelac Judgement, supra note , ¶ ; Bagilishema Judgement, supra note , ¶ ; Tuta and Štela Case, supra note , ¶ ; Prosecutor v. Blagoje Simić et al., Case No. IT---T, Judgement ¶  (Oct. , ) [hereinafter Simić Judgement].  Kunarac Appeal, supra note , ¶ , where the Appeals Chamber confirmed the conclusion reached in the Kunarac Judgement, supra note , ¶ . See also the Tuta and Štela Case, supra note . The same position is held by G. Mettraux, Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda,  Harv. Int’l L.J. - ().  Kunarac Appeal, supra note , ¶ . See also Simić Judgement, supra note , ¶ .  Art. () RS.

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against a civilian population – seem to have been committed in the course of an armed conflict. Nevertheless, even if a specific attack does not give rise to individual criminal responsibility pursuant to art. ()(b)(i) and (e)(i) RS due to an error of fact on the civilian status of the persons against whom the attack was launched, it would be possible to analyze whether the deaths, injuries or damage resulting from such attack amount to crimes against humanity, provided the attack is unlawful under international humanitarian law. V.

Objects which Are Military Objectives

V..

Categories of Objects Included within the Notion of Military Objective

As seen above, art. ()(b)(ii) RS provides for the crime of “intentionally directing attacks against civilian objects, that is, objects which are not military objectives”. According to the EC, this crime requires that “the object of the attack was civilian objects, that is, objects which are not military objectives” and that “the perpetrator intended such civilian objects to be the object of the attack”. Apart from the general reference to those objects not constituting military objectives, it is not possible to find in the RS or in the EC a definition of the set of objects against which an attack must be carried out in order to give rise to individual criminal liability. Therefore, given the normative character of the expression “military objective”, and considering the reference in art. ()(b) and (e) RS to the “established framework of international law” and the reference in art. ()(b) RS to the “appropriate principles of the international law of armed conflict”, the ICC’s case law will have to resort to those provisions which elaborate on the principle of distinction (and in particular to art. () AP I) in order to: (i) ascertain the meaning of the expression “military objective” and (ii) determine a contrario the set of objects against which an attack must be carried out in order to give rise to individual criminal liability under art. ()(b)(ii) RS. In carrying out this task, the ICTY’s case law – as the main international judicial body to apply the notion of “military objective” in art.  AP I after WW II – is meant to play a key role as long as the solutions offered by it are consistent with international human rights standards and contain no adverse distinction founded in any of the grounds set forth in art. () RS. The ICRC already recognized in  the military significance of the following nine categories of persons or objects:

 Kunarac Appeal, supra note , ¶ . See also Simić Judgement, supra note , ¶ .  Sandoz, Commentary, supra note , pp. -. See also Schindler, D./Toman, J., The Laws of Armed Conflicts p.  (rd ed., ).

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() Armed forces, including auxiliary or complementary organizations, and persons who, though not belonging to the above-mentioned formations, nevertheless take part in the fighting; () Positions, installations or constructions occupied by the forces indicated in sub-paragraph  above, as well as combat objectives (that is to say, those objectives which are directly contested in battle between land or sea forces including airborne forces); () Installations, constructions and other works of a military nature, such as barracks, fortifications, War Ministries (e.g. Ministries of Army, Navy, Air Force, National Defence, Supply) and other organs for the direction and administration of military operations; () Stores of arms or military supplies, such as munitions dumps, stores of equipment or fuel and vehicles parks; () Airfields, rocket launching ramps and naval base installations; () Those lines and means of communication (railway lines, roads, bridges, tunnels and canals) which are of fundamental military importance; () The installations of broadcasting, television stations and telephone and telegraph exchanges of fundamental military importance; () Industries of fundamental importance for the conduct of the war such as: (a) industries for the manufacture of armaments (such as weapons, munitions, rockets, armoured vehicles, military aircraft and fighting ships), including the manufacture of accessories and all other war material. (b) industries for the manufacture of supplies and material of a military character, such as transport and communications material and equipment for the armed forces; (c) factories or plants constituting other production and manufacturing centres of fundamental importance for the conduct of war, such as the metallurgical, engineering and chemical industries, whose nature or purpose is essentially military; (d) storage and transport installations whose basic function it is to serve the industries referred to in (a)-(c); and (e) installations providing energy mainly for national defence, e.g. coal, other fuels or atomic energy, and plants producing gas or electricity mainly for military consumption; and () Installations constituting experimental, research centres for experiments on and the development of weapons and war material.  Some legal writers such as Rosenblad, E., Area Bombing and International Law, in Military Law and Law of War Review, , p. , would have preferred for the definition of the notion of military objective provided for in art. () AP I to be complemented by a list (even if it were non-exhaustive) of objects included in this definition. Concurring, H. Meyrowitz, Buts de Guerre et Objectifs Militaires, in Military Law and Law of War Review p.  ().

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Practical Issues on the Application of the Notion of Military Objective



The ICRC expressly excluded from its list those persons, constructions, installations and transports protected by GC I, GC II and GC III, and those members of the armed forces who, as seen above, do not have combatant status – such as medical and religious personnel. In , art.  AP I established the definition most broadly accepted for the notion of military objective. According to this provision, “insofar as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. The first requisite refers to the nature, location, purpose or use of the object under examination. Objects which effectively contribute to the military effort as a result of their nature are, inter alia, weapons, munitions and any other military equipment, warehouses where such materials are kept, communication centres, fortifications, depots, staff headquarters, barracks and other buildings occupied by the armed forces. On the other hand, objects which effectively contribute to the military effort as a result of their location are, inter alia, bridges, footbridges, tunnels, hills, narrow passes, and other areas whose control facilitates the execution of military operations, makes it more difficult for the enemy to launch attacks or forces the enemy to retreat. Finally, art. () AP I refers to objects which, due to their current or future dual use also make an effective contribution to the enemy’s military effort. There  See supra section V...  Sandoz, Commentary, supra note , p. .  Rogers, Law, supra note , p. . It is important to highlight, however, that the Spanish version of this definition contains a significant translation error because it uses the conjunction “o” (or) and gives the impression that any object that meets one of the following two alternative conditions is included within the definition of the notion of military objective: (i) those objects which by their nature, location, purpose or use make an effective contribution to military action; or (ii) those objects whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offer a definite military advantage. However, the English and French versions use the conjunction “and”/“et” so that both requisites must be met for an object to become a military objective. The cumulative – as opposed to the alternative – character of both requisites is also highlighted by Sandoz, Commentary, supra note , p. , where it is stated that: “The definition comprises two elements: (a) the nature, location, purpose or use which makes an effective contribution to military action; (b) the total or partial destruction, capture or neutralization which in the circumstances ruling at the time offers a definitive military advantage. Whenever these two elements are simultaneously present, there is a military objective in the sense of the Protocol”.  H.P. Gasser, Some Legal Issues Concerning Ratification of the  Geneva Protocols, Armed Conflict and the New Law, British Institute of International and Comparative Law  ().

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are a number of objects which, despite being used normally for civilian purposes, can also be used for military purposes during armed conflict. This is, for instance, the case with schools, hotels or churches which are used to accommodate troops or store military equipment during armed conflict. Likewise, some industrial plants or power stations can also be used for military purposes during armed conflict. The second requisite of the definition of military objective provided for in art. () AP I consists of the definitive military advantage which is expected to be obtained, according to the circumstances ruling at the time, from the total or partial destruction, capture or neutralization of the object under analysis. Therefore, it is not sufficient if the destruction, capture or neutralization of the object at hand could potentially offer a military advantage to the attacking force. It is necessary for the attacking force to expect a concrete military advantage. Concerning this second requisite, several States (Australia, Canada, France, Mexico, the Netherlands, the United Kingdom and the US) have made interpretative declarations in which they state that a specific area may by itself constitute a military objective depending on its location and the circumstances ruling at the time. However, the ICTY’s case law has not always followed this interpretation as shown by the Trial Chamber’s lawfulness analysis of the HVO attack against the village of Stupni Do in the Kordić case. According to the Chamber, the village of Stupni Do – where in October  almost all its  inhabitants were Bosnian-Muslims – was on a hill which overlooked the town of Vareš. Stupni Do was also on the main supply route to Vareš. For the Chamber, the military significance of Stupni Do derived from the fact that it was located in the broader area of Vareš, which was controlled by the HVO – although it was isolated from the rest of HVO controlled territory – and was closed to both ABiH and VRS positions (which turned Stupni Do into an ideal place for arms trafficking among the parties).  See in this sense, Kalshoven, supra note , pp. -; R. Barras & S. Erman, Forces Armées et Developpement du Droit de la Guerre, Mil. L. and Law War Rev.  ().  Id. at p. .  Some commentators have pointed out that the use of the adjective “definite” (as opposed to other adjectives such as “relative”) excludes the proportionality rule as a criterion for the determination of what constitutes a military objective because an attack may be expected to offer a definite military advantage in spite of the excessive incidental civilian damage that it is likely to cause. Hence, the proportionality rule should only be applied after the previous verification that the object of the attack constitutes a military objective (E. Raunch, Conduct of Combat and Risks Run by the Civilian Population, Mil. L. and Law War Rev.  ()).  Id.  Kordić Judgement, supra note , ¶ .

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

Stupni Do was defended by a unit of the Bosnian-Muslim territorial defence which was comprised of approximately  men without military training, who were armed with hunting rifles, a handful of automatic and semi-automatic weapons, a mortar, a hand-held grenade launcher and a limited amount of ammunition. The HVO attack against Stupni Do was launched on  October  and caused the death of  persons, including five or six soldiers. In spite of the military significance of the locality and the presence of approximately  armed members of the Bosnian-Muslim territorial defence, the Chamber found that there had been no military justification for the attack. The Chamber also found that the attack was unlawful and that the HVO carried it out in a coordinated manner with the aim of expelling the Bosnian-Muslim civilian population from the village. For the Chamber, the attack was part of the overall HVO campaign against the Bosnian-Muslim population of Central Bosnia. On the basis of the AP I definition of “military objective” and its own practice, A.P.V. Rogers has prepared the following tentative list of military objectives: “() military personnel and persons who take part in the fighting without being members of the armed forces; () military facilities, military equipment, including military vehicles, weapons, munitions and stores and fuel, military works, including defensive works and fortifications, military depots and establishments, including defence and military supply ministries; () works producing or developing military supplies and other supplies of military value, including metallurgical, engineering and chemical industries supporting the war effort; () areas of land of military significance such as hills, defiles and bridgeheads; () railways, ports, airfields, bridges, roads, tunnels, and canals used for troops movement or military logistic purposes; () oil and other power installations; and () communications installations, including broadcasting, television, telephone and telegraph facilities, used for military communications”. The AP I definition of military objective has been criticised by some American legal writers for focusing too much on the notion of definitive military advantage and putting insufficient attention on infrastructures which are important to maintain the military effort, such as the so-called economic targets which include the export industries. However, in spite of both these critics and the fact that the US is not part of the AP I, the definition of military objective provided for in art. () AP I is generally accepted as part of customary international law. It constitutes, thus, the     

Id. at ¶ . Id. at ¶ . Id. at ¶ . Rogers, Law, supra note , pp. -. W.H. Park, Air War and the Law of War,  A.F. L. Rev. - ().

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backdrop against which to rule on the lawfulness of those military operations launched against specific objects. The AP I definition intends to provide the necessary guidance for those responsible for the targeting process to determine whether a given target constitutes a military objective. In simple cases it complies with this function insofar as no one will dispute the fact that an ammunition factory is a military objective or that an empty school does not carry such status. Nevertheless, the issue becomes more complicated when the AP I definition must be applied to dualuse objects, such as communication systems, transport networks, petrochemical plants or other industrial plants, which are normally used for civilian purposes but can also be used for military purposes during armed conflict. Moreover, as seen below, the inclusion of a given object within such a definition can also vary depending on the scope and goals of an armed conflict. According to art. () AP I, “in case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used”. This provision imposes on the parties to the conflict the duty to presume the civilian status of all those buildings which are normally used for civilian purposes and are located in the vicinity of the front line. Therefore, they can only be attacked after the commander of the attacking forces is convinced that they are being used to accommodate enemy troops or to contribute to the enemy’s military effort in any other way. To reach such a conclusion, it will usually be necessary to take the precautionary measures provided for in art. () AP I. Furthermore, art. () AP I constitutes an essential safeguard for the civilian population who reside in combat areas because it forbids the practice of first shooting and only subsequently inquiring. V..

Cases on the Application of the Notion of Military Objective in relation to Objects: Particular Attention to Aerial Attacks

The general principles examined in the previous section with regard to the content of the notion of military objective have been applied by the Chambers of the ICTY and the ICTY OTP in determining the lawfulness of a number of attacks launched in the armed conflict in the territory of the former SFRY and in the NATO aerial campaign in Kosovo. The following four attacks constitute a representative selection: (i) the NATO attack against the SRT in Belgrade on  April ; (ii) the SRK attack against the Oslobodilaca Sarajeva Street and a nearby park on  February ; (iii) the HVO attack against the village of Gačice in Central Bosnia on  April  and (iv) the HVO attack against the village of Grbavica in Central Bosnia on  September .  Sandoz, Commentary, supra note , p. .  Id. at p. .

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

Nevertheless, prior to looking at the manner in which the Chambers of the ICTY and the ICTY OTP have applied the notion of military objective in determining the lawfulness of the said attacks, a brief look at the history of the evolution of the notion of military objective with regard to aerial attacks will assist to better understand the contours of such a notion. During WW II, at a time when AP I did not yet exist, the lack of precision of the weaponry used for aerial bombardments was such that it was hardly possible to hit small targets because the probable margin of error was about , square metres. The main targets of the Allied Powers’ aerial campaign in Germany were the German shipyards and bases where the submarines were built, the aeronautics industry, the oil refineries and the plants of synthetic plastic, tires and military vehicles. However, the ultimate goals of the campaign were the progressive isolation and destruction of the different units of the German army, the destruction of the industrial and economic infrastructures that were supporting the German army, and the erosion of the German people’s moral in order to seriously weaken their capability to resist the enemy. The accomplishment of these goals would create the necessary conditions to undertake military land operations in Western Europe. As a result, despite more specific goals and the occasional attempt to focus the attacks on concrete targets, the great majority of the Allied Powers’ aerial operations during WW II had geographical areas as objectives and aimed, directly or indirectly, at undermining the morale of the enemy’s civilian population. No matter whether such attacks could have been justified by the context of a full-scale war in which they took place, the fact of the matter is that the bombardments of Tokyo, Dresden and Hamburg aimed at terrorizing the civilian population and undermining their morale. Therefore, by no means could they have been considered as lawful had the new standards of the AP I been applicable at that time. Technology, law and public opinion on what is acceptable – at least with regard to armed conflicts of limited reach – had greatly evolved by the time the first Gulf War took place in . The new Coalition’s technology, which included laser-guided bombs, combined with the weak Iraqi opposition to the Coalition’s control over the aerial space in combat areas, made it possible to hit specific military targets with greater precision. Nevertheless, the Coalition’s target list during this armed conflict was still notably broad and included, inter alia, persons in leadership positions in the Iraqi army’s command, control and communications system, aerial defences, airports, centres of the investigation and development of chemical, bacteriological and nuclear weapons, Iraqi naval forces and ports used by such forces, military plants  A. Verrier, The Bomber Offensive  ().  Id.

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and warehouses, railroads, bridges, power stations, the oil refineries and infrastructures for power and oil distribution. The Republican Guard was included as a second category of target. Finally, the Iraqi’s Scud missiles, the places where these missiles were deployed and the areas where the Coalition forces intended to break the Iraqi defence lines by undertaking land operations also ended up being included in the target list. The ICTY OTP’s report on the NATO aerial campaign in Kosovo in  found that the ultimate goal of the campaign was to weaken the Serbs both tactically and strategically. The destruction of tactical targets as well as the destruction of the artillery weapons and barracks of the Serb army aimed at putting an end to the Serb ethnic cleansing campaign in Kosovo. The destruction of strategic targets, such as governmental Ministries and oil refineries, had a far broader and longer-term impact on the Serb military. The majority of tactical objectives attacked by NATO forces were comprised of military infrastructures, heavy weapons, military vehicles and military units located in Kosovo and the south of Serbia. On the other hand, the strategic targets included the aerial defences, the VJ command, control and communications system, the VJ and MUP staff headquarters and the supply routes. Moreover, at the NATO summit held on  April  in Washington, the political leaders of the Coalition decided to intensify the aerial campaign by extending the strategic targets to, inter alia, the military industry and the media facilities. According to the ICTY OTP, the great majority of the targets attacked by NATO fell within the definition of military objective provided for in art. () AP I. However, the ICTY OTP’s report repeatedly raises doubts on the lawfulness of some targets, such governmental ministries, oil refineries, infrastructures used by the military industry and media facilities. For the ICTY OTP, it is necessary to analyze on a case-by-case basis whether, under the circumstances at the time of the attack, an industrial plant or a governmental ministry: (i) effectively contributed to the Serb’s military effort and (ii) whether its total or partial destruction, capture or neutralization offered a definitive military advantage. Furthermore, the ICTY OTP underscored that, although oil refineries have traditionally been considered as military objectives, it is necessary to analyze the incidental environmental damage that might be brought about by their destruction before deciding on the lawfulness of the attack.  W. Murray, Air War in the Persian Gulf  ().  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  Cohen & Shelton, Joint Statement on Kosovo After Action Review, Statement before the US Senate, Oct. , , at http://www.usembassy.it/file/alia/.htm.  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  Id.

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Practical Issues on the Application of the Notion of Military Objective



On the other hand, the report of the ICTY OTP also analyzes the issue of whether the media facilities can qualify as military objectives. The ICTY OTP acknowledged that media facilities have not traditionally been considered military objectives. However, insofar as some media facilities are part of the enemy’s command, control and communications system, they constitute military objectives. Furthermore, the ICTY OTP pointed out that, even if they are not part of such system, the consideration of media facilities as military objectives will depend on their use. If the media simply reinforces the morale of the civilian population to boost support for the military effort, it will fall outside the AP I definition of military objective. However, when a media facility is used to publicly incite the commission of crimes – as was the case in Rwanda with the Radio Télévision Libre des Mille Collines – it automatically becomes a military objective. Finally, where the media is the key element with which a warlord sustains his power and, thus, plays a major role in perpetuating the armed conflict, it could also become a military objective. V...

The NATO Attack against the SRT in Belgrade on  April 

On  April , at : hours, two NATO aircrafts bombarded the SRT in Belgrade causing the death of at least ten people who were working in the building at that time. NATO sources indicated that the SRT in Belgrade was being used, to an important extent, to strengthen the VJ command, control and communications system; the SRT building had a multiple-use parabolic antenna. Furthermore, they explained that the attack against the SRT also intended to dismantle the propagandist machinery which had played a key role in maintaining President Milošević’s power. For the ICTY OTP, the bombardment of the SRT was, in principle, a lawful attack because the SRT in Belgrade was part of the overall VJ command, control and communications system. For the ICTY OTP, the destruction of the VJ propaganda machinery had only been a secondary goal of the attack. In this regard, according to the ICTY OTP, the “definitive” military advantage requisite is only met if the military advantage derived from the total or partial destruction, capture or neutralization of the target is substantial and is obtained in a relative short time. Disrupting the enemy’s propagandist machinery may undermine the morale of the enemy’s armed forces and the civilian population, but it does not offer the kind of “defini     

Id. Id. at ¶ . Id. at ¶ . Id. at ¶ . Id. Id. at ¶ .

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tive” military advantage that is legally required under art.  AP I. Besides, the ICTY OTP could not see any criminal activity in the use of the SRT to spread propaganda in support of the Serb military effort, which is very different from inciting the commission of crimes. Concerning the issue of whether NATO had taken the mandatory precautionary measures provided for in art.  AP I – and, in particular, whether NATO had complied with its obligation to give effective advance warning of the attack – the ICTY OTP found that, despite the lack of a clear warning of an imminent attack, western journalists had been warned about the possibility of such an attack by suggesting that they be away from the SRT building. Therefore, this should have put the Serb authorities on notice about the imminence of the attack. With regard to some NATO practices which aimed at minimizing the risk of casualties to NATO forces, such as flying above the maximum reach of the VJ anti-aircraft batteries, the ICTY OTP found them lawful, although it could prima facie appear that such practices made it more difficult to distinguish between military objectives and civilian persons and objects. According to the ICTY OTP, NATO forces complied with their duty to distinguish between military objectives and civilian persons and objects in the vast majority of NATO aerial attacks by using the latest technology – this conclusion was reached despite the inability of NATO pilots to distinguish the targets without the use of such technology. The ICTY OTP also concluded that the civilian deaths caused by the bombardment of the SRT, despite being unfortunate, were not manifestly excessive. According to the ICTY OTP, the mere destruction, capture or neutralization of one of the multiple targets – such as the SRT in Belgrade – in the NATO attack against the VJ command, control and communications system could not have disrupted the system as a whole and, thus, would have offered a very limited military advantage. Therefore, the proper application of the proportionality rule required for the bombardment of the SRT not to be analyzed in isolation, but as  Id. at ¶ .  Id. Hans Fritzsche had been a high-ranking officer in the Ministry of Propaganda during the Nazi regime and was accused of incitement to commit war crimes and crimes against humanity before the International Military Tribunal. Nevertheless, the judgement of the International Military Tribunal concluded that, although Fritzsche had made propagandists statements in support of Hitler and the German war effort, such statements did not intend to incite the German population to commit atrocities ( Am. J. Int’l L.  ()).  Art. ()(c) AP I.  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  Id. at ¶ .  Id. at ¶  and .

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

part of the overall attack against the VJ command, control and communications system. For the ICTY OTP, the incidental civilian damage caused during the bombardment of all targets – including the SRT – of the overall attack against the VJ command, control and communications system did not appear to be manifestly excessive in relation to the key military advantage expected from the disruption of the communications network on which the VJ command and control system was based. V...

The SRK Attack against the Oslobodilaca Sarajeva Street and a Nearby Park on  February 

On  February , at around : hours, three mortar projectiles landed in the residential neighbourhood of Dobrinja in Sarajevo killing at least eight civilians, including a child, and injuring  other civilians. The first mortar shell impacted the east side of the façade of an apartment block in Oslobodilaca Sarajeva Street. According to the Trial Chamber in the Galić case, the SRK positions were not more than  metres from the point of impact, whereas the SRK staff headquarters in Lukavica were located approximately two kilometres to the south. For Chamber, the evidence introduced at trial was insufficient to find that the mortar shell had hit the building located in Oslobodilaca Sarajeva Street number , where a number of people were distributing humanitarian aid and attending religious classes at the time of the impact. A second projectile landed soon after the first one in the northwest area of a nearby park, which was surrounded by buildings and was being used at that time to trade basic goods. After the first impact on Oslobodilaca Sarajeva Street, the people who were in the park ran for cover. When they came back to pick up their goods a few minutes later, the second mortar shell landed, causing numerous civilian casualties. Soon afterwards, a third projectile landed at the entrance of an apartment block to the south of the park. According to the Chamber, the following evidence was introduced at trial in relation to the alleged military activities and military targets in the impact area. Several witnesses testified about the absence of ABiH soldiers where the humanitarian aid was being distributed and in the nearby park. However, one witness acknowledged to have encountered two ABiH soldiers five minutes before he       

Id. at ¶ . Id. Galić Judgement, supra note , ¶ . Id. at ¶ . Id. at ¶ . Id. at ¶ . Id.

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arrived at Oslobodilaca Sarajeva Street, who had warned him not to continue his route because of the intense fire exchange at that moment in Dobrinja. On the other hand, two witnesses testified about the existence of a small ABiH office which was identified by one of them as a small warehouse that was being used by ABiH soldiers to protect the inhabitants of the area during the armed conflict. Likewise, some witnesses testified to the existence of a nuclear shelter, although they acknowledged that it was flooded and not in use at the time of the attack. Finally, some witnesses affirmed that the command post of the fifth motorized brigade, which was assigned to the Dobrinja neighbourhood, should have been located somewhere in Dobrinja although they knew neither its exact location nor the distance from there to the point of impact, whereas other witnesses explained that the ABiH had only small units in the Dobrinja neighbourhood and that there were no ABiH barracks or command post in the neighbourhood. In the final analysis, the Chamber concluded that mortar shells had hit civilians who were engaged in peaceful activities and that no ABiH member was in the vicinity of the points of impact when the attack took place. Furthermore, according to the Chamber, the small ABiH warehouse was not the target of the attack because the points of impact were progressively further away from it. As a consequence, the Chamber found that the mortar shelling constituted an indiscriminate attack because it was mainly directed against a residential neighbourhood and it was very likely that it would bring about the death of civilians.. V...

The HVO Attack against the Village of Gačice in Central Bosnia on  April 

Gačice is a village which, before the HVO attack on  April , had a mixed Bosnian-Croatian and Bosnian-Muslim population and was located near the Slobodan Princip Seljo factory (SPS) – one of the biggest explosive factories in Europe with an unquestionable military value for both the HVO and the ABiH which was controlled by the HVO since mid-. On  April , when the conflict broke up in Donja Večeriska and in the other villages of the Lašva valley, the Bosnian-Croatian and the Bosnian-Muslim authorities of Gačice unsuccessfully attempted to find a peaceful solution. The day before the attack, the Bosnian-Croatian residents of the Bosnian-Muslim part of Gačice were evacuated from the village. On  April , at : hours,      

Id. at ¶ . Id. Id. at ¶ . Blaškić Judgement, supra note , ¶ . Id. Id. at ¶ .

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the HVO started its attack against Gačice with mortar fire followed by an infantry attack from three different directions. The defence was organized by  members of the Bosnian-Muslim territorial defence who were armed with hunting rifles and a few hand grenades. The defenders soon took shelter in a few houses from which they subsequently fled to the woods. Women and children remained in the basements of their homes. Once the attack was over, the  Bosnian-Muslims who remained in Gačice – mostly women and children – were forced to leave their houses by HVO troops and some independent Croatian units, which subsequently burned the houses. They were then forced by HVO soldiers to go by foot to Vitez. Once there, they were forced to sit as human shields in front of the Hotel Vitez – the location of the HVO Central Bosnian Operational Zone headquarters. Later, they were brought back to Gačice where they were forced to live in seven houses until HVO soldiers put them in trucks and drove them away from the village. As a result of the operation, four Bosnian-Muslims were killed, including a person who was burnt alive in his home, and severe damage was done to the BosnianMuslim part of Gačice. On the basis of these factual findings, the Chamber concluded that, even if the attack against Gačice was lawful and the village was defended by BosnianMuslim members of the territorial defence, there was no doubt that the burning of Bosnian-Muslim houses by HVO troops had continued long after the HVO had seized control over the village. Therefore, the war crime of extensive destruction not justified by military necessity had been committed, in addition to the war crime of forcible transfer of civilian persons. V...

The HVO Attack against the Village of Grbavica in Central Bosnia on  September 

At the time of the HVO attack against the village of Grbavica, the village had a mixed Bosnian-Croatian and Bosnian-Muslim population. Grbavica was strategically valuable because the ABiH could cut off from it the main HVO supply and transportation route alongside the Lašva Valley. On  September , the HVO attacked the village of Grbavica. The attack started with artillery fire, including home-made mortar shells (commonly known        

Id. at ¶ . Id. Id. Id. at ¶ . Id. Id. at ¶ . Id. at ¶  and . Id. at ¶ .

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as “baby bombs”). The night of  September, the ABiH obtained reinforcements and UNPROFOR evacuated the civilians living in the houses atop Grbavica hill. On the morning of  September , the HVO infantry carried out its final assault and forced the ABiH soldiers to flee from the houses where they resisted the HVO attack. The Trial Chamber in the Blaškić case found that, given the location and military value of Grbavica, the attack had been directed against a military objective and, thus, was in principle a lawful attack. Once the HVO seized control of the village, some units of the HVO civilian police arrived in Grabavica to maintain public order. According to the Chamber, the arson of the Bosnian-Muslim houses continued after the HVO civilian police arrived in order to prevent Bosnian-Muslims from returning to Grbavica. Although some ABiH units occupied some private houses during the defence of the village, thus becoming military objectives, the Chamber found that the destruction suffered by Grbavica was much greater than was justified by the presence of a handful of occupied houses. This led to the Chamber’s conclusion that a crime of extensive destruction not justified by military necessity had been committed because the houses were no longer military objectives once combat activities were over. V.. The Relationship between the Notions of Military Objective and Military Advantage: Possible Variations in the Lists of Military Objectives according to the Political-Strategic Goals of the Military Campaigns of the Parties to the Conflict The military advantage derived from an attack include the deaths and injuries caused to combatants – or to non-combatants who actively participate in the hostilities and are affiliated to the adverse party – and the destruction and harm caused to the enemy’s equipment and infrastructure. Additionally, there is a variable military advantage derived from an attack which depends on the circumstances at the time of the attack. Logically, the neutralization of certain persons such as Slobodan Milošević can confer a much greater military advantage than placing hundreds of soldiers hors de combat. Hence, it can be asserted that the rank of the person who is the object of the attack and his or her special abilities are variables that should be taken into consideration in determining the military advantage that can be obtained from such an attack.     

Id. at ¶ . Id. at ¶  and . Id. at ¶ . Id. at ¶ . Id.

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In the same way, the control over certain strategic areas also constitutes a military objective, as does ensuring control over certain areas during a particularly relevant period of time. For example, seizing control of the fortress on Mount Srdj – the mountain dominating the city of Dubrovnik – on  December  would have signified an important military advantage for the JNA, which had been trying to take over the city for months. Additionally, reducing the number of a party’s own casualties and the harm to its armament, ammunition, infrastructure and other military materials also has a military value. Hence, the sooner the JNA seized control of the fortress on Mount Srdj, the greater its military advantage because, in seizing the fortress, the JNA’s own risk of casualties resulting from the attack would be reduced. As a consequence, the threat posed to the attacker at the time of the attack by the target it is trying to neutralize, as well as whether the attack takes place in the midst of combat or in a period of calm, are also factors that must be borne in mind in assessing the definitive military advantage expected from a given military operation. The question thus arises whether the flexible notion of military objective provided for in art. () AP I can depend on the magnitude of the military advantage expected from the destruction or neutralization of the target. According to one view, the list of military objectives should be extended or reduced in accordance with the political-strategic goals of the military campaign pursued by the parties to the conflict. In the same way, when there is a great technological disparity between the parties to an armed conflict, the duty to minimize incidental civilian damage, although it exists for both parties, is more stringent for the party with the more sophisticated technology. For instance, if one analyzes the first Gulf War, the Coalition forces’ unprecedented capacity to find and destroy important military objectives without fearing a response by the enemy made more stringent the Coalition troops’ legal duty to take precautionary measures to avoid incidental damage to Iraqi civilian persons and objects as much as possible. A similar scenario took place in the  Israeli/Lebanese conflict due to the control held by the Israeli Defence Forces of the aerial space in Southern Lebanon. The origins of this view are to be found in the criticism received by the US stemming from its aerial campaigns in North Vietnam during the seventies. This criticism was based on a fluctuating conception of the notion of military objective which expanded and shrank according to the participants’ equipment and the intensity, the duration and the location of the armed conflict. Thus, while the bombing of a big industrial complex could be perfectly appropriate in a conflict with the dimensions of WW II, the same could not be said of the destruction of  S.W. Belt, Missiles Over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas,  Naval L. Rev.  ().  S.G. Brown (former US Chief of Staff ), cited by R. Normand & C.A.F. Jochnick, The Legitimation of Violence: A Critical Analysis of the Laws of War,  Harv. Int’l L.J.  ().

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a city, a part of a city or even a big industrial complex in conflicts of lesser dimensions, such as the conflicts that took place in the Falkland Islands in  or in Panama in December . As a consequence, according to this position, the parties to the conflict must analyze the characteristics of the conflict to determine which persons, assets and infrastructures are military objectives. Logically, this view has the potential to increase the protection conferred to civilian persons and civilian objects, particularly in short-term armed conflicts in which the strategic and political goals of one or both parties to the conflict are limited. As a result, those who take this view argue that the lack of precision in the current codification of the rule of proportionality should not favour the interests of the army over those of the civilian population. A second view, espoused by a number of US commentators, argues that linking the notion of military objective to that of military advantage, and defining military advantage in light of the goals of the military campaigns of the parties to the conflict, reduce the scope of the notion of military objective in a way that is contrary to its definition in art. () AP I. For these legal writers, this attempt to limit the content of the notion of military objective is problematic because officials and soldiers, especially those in the field, will face grave difficulties in analyzing the scope of the threat they believe they face in light of the broader operational, tactical and strategic context of the armed conflict. Thus, it cannot be expected that, except for a small group of high-ranking officials, commanders and soldiers in the field will be able to distinguish between a high-intensity and a low-intensity armed conflict, particularly in the case of infantry forces for which the existence of a lowintensity and limited-reach armed conflict does not necessarily mean an absence of casualties – especially those produced by so-called “friendly fire”. For the defenders of this second view, it is difficult to think, for instance, that the commander of the US forces often ambushed on the road to the Baghdag airport (one of the country’s most dangerous routes since the fall of the regime of Saddam Hussein in March ) would dedicate much time to analyzing whether his men are in a total war scenario or in a peacekeeping mission.  Statement by H. De Saussure, found in M. Matheson, et al., The United States Position on the Relation of Customary International Law to the  Protocols Additional to the  Geneva Conventions,  Am. U. Int’l L. Rev.  (formerly titled American University Journal of International Law and Policy, ). Others, such as Gardam, have stated with regard to the NATO campaign in Kosovo that the laws and customs of war are to be applied even more strictly in those armed conflicts initiated in the name of peace and humanity (Gardam, Proportionality and Force, supra note , p. ). Nevertheless, in the author’s view, this argument, which is related to the just war doctrine, confuses jus ad bellum and jus in bello, with a view to strengthening the protection granted to civilians and civilian objects.  Gardam, Proportionality and Force, p. .  It is also interesting on this point the work of W.H. Willey, Prospects for the Application of the Rule of Proportionality by International Prosecutors, Master Thesis, Unpublished  (Leiden University ) [hereinafter Willey, Prospects].

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Likewise, it is difficult to see the influence that the response to such questions would have in determining the objectives to be attacked and the level of force to be used in order to obtain the wanted military advantage – that is, safely retrieving the troops ambushed on the road to the Baghdag airport. In other words, the infantry forces, which – unlike the air forces, which nowadays only act against targets that are carefully predetermined through a careful selection process – act at the tactical-operational level, tend to carry out military operations that aim at destroying, capturing or neutralizing favourable targets according to the general instructions provided by the rules of engagement. On the other hand, the legal writers who espouse this second position assert that the theories about the existence of low-intensity and limited-reach conflicts have not yet been accepted by the armed forces of non-Western countries, as shown, for instance, by the conflicts in Chechnya or Nepal. Furthermore, if those theories were finally accepted universally, a conflict such as the Vietnam War would be a limited-reach conflict for the US while it could be seen as a total war by North and South Vietnam. Finally, according to these commentators, the lawfulness or unlawfulness of a military operation is not subject to any type of equity doctrine, and international humanitarian law does not impose any legal or moral duty on a nation to sacrifice men, armament or technological superiority to the enemy. Therefore, for supporters of this second position, any a posteriori limitation of the choice of targets attacked in the conflicts of which the US has recently been part is only due to political pressures and strategic considerations. The example of the second Gulf War (), in which strategic considerations prevailed and resulted in a reduction of the intensity and reach of the bombing of public infrastructures, is revealing because it was thought that the reconstruction effort following the defeat of the Hussein regime would be facilitated. In any event, the broad definition of the notion of military objective in art. () AP I and the absence of judicial precedents offering interpretative criteria for its application cannot, in the author’s opinion, be equated with the assertion that any limits to the reach of the notion of military objective can only derive from the so-called principle of economy in the use of force – which requires  W.H. Parks, Air War and the Law of War,  A.F. L. Rev.  () [hereinafter Parks, Air War].  B.M. Carnahan, ‘Linebacker II’ and Protocol I: The Convergence of Law and Professionalism,  Am. U. L. Rev.  () [hereinafter Carnahan, Linebacker II].  Parks, Air War, supra note , pp. -. Other commentators who reject the adjustment of the notion of military objective in light of the strategic-political goals of the campaigns of the parties to the conflict are inter alia: M.N. Schmitt, The Principle of Distinction in st Century Warfare,  Yale Hum. Rts. & Dev. L.J. - (); F.J. Hampson, Means and Methods of Warfare in the Conflict in the Gulf, The Gulf War - in International and English Law  (Peter Rowe ed., Routledge ) [hereinafter Hampson, Means and Methods].

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all military commanders to assess their resources in light of current needs and expected future needs and to use the minimum level of force (soldiers, weapons, ammunition and any other type of military equipment) that is necessary to hit the target with as few casualties as possible. On the contrary, faced with the inexistence of more precise limits, those humanitarian considerations on which the principle of distinction are rooted must be a necessary complement to the principle of economy in the use of force as a key criterion in the interpretation of the notion of military objective. Hence, it can be asserted that the object and purpose of AP I, that is to say, limiting the suffering and harm caused by armed conflicts to those not taking active part in hostilities, require that the determination of what constitutes a military objective be based on what offers a “definitive military advantage” in the circumstances at the time. As a consequence, the group of persons and objects that may be included within the definition of military objective in a given moment is variable and may, thus, be expanded and contracted depending on the concrete characteristics of a given armed conflict – such as the intensity and duration of the conflict, the technological capacity and the political-strategic goals of the parties to the conflict and the geographical location of the combat areas in which the hostilities actually take place. V.

Practical Aspects of the Lawfulness Analysis of Artillery and Sniper Attacks

Despite technological progress, artillery weapons continue to have significant margins of error that are even more evident when shooting at distant targets. For this reason, any analysis of the lawfulness of an artillery attack requires prior knowledge of the context in which it took place, given that the mere fact of verifying that it caused deaths, injuries or damage to civilians or civilian objects is not enough to conclude that it was an unlawful attack. For example, it is important to know whether there were military objectives in the immediate surroundings of the point of impact. Likewise, in the cases in which several projectiles have been shot, it is important to look at whether the points of impact progressively approach the military objective, in which case it could be thought that the latter was the object of the attack given that the observer would have progressively corrected the fire coordinates. Also, it is often necessary to clarify whether the damage produced was caused by a projectile that went astray, fell short or went beyond its target or even by the same party to the conflict whose civilian population was harmed by the attack.  The difficulties in verifying whether the damage was caused by a stray bullet are clearly shown in the analysis of the attack against the Mukanovic family in Sarajevo on  January  (Sniping Incident No. ) included in the Galić Judgement, supra note . On that date, Akif Mukanovic returned to his house, where his wife Hatema,

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In this regard, the Appeal Judgement in the Galić case has endorsed the approach taken by the Trial Chamber in relation to the need to consider questions such as (i) distance between the victim and the most probable source of fire; (ii) distance between the location where the victim was hit and the confrontation line; (iii) combat activity going on at the time and location of the incident, as well as relevant nearby presence of military activities or facilities; (iv) appearance of the victim as to age, gender and clothing; (v) the activity the victim could appear

his two sons and a neighbour were around the dining room table. The blinds were unfolded but they were not covered with a blanket as usual. The apartment was illuminated with a candle because there was no electricity. Outside everything appeared to be calm and there were no combat activities or shootings at that time. Suddenly, two bullets came through the window, mortally injuring Hatema (Galić Judgement, supra note , ¶ -). The defence claimed that it was not possible to determine the point from which the shots were fired because the Prosecution was not able to show the entrance angles of the bullets. Nevertheless, the Chamber rejected the defence claim because of the following three arguments: (i) Akif Muskanovic had testified that the shooting originated from the SRK positions in Hrasno Brdo; (ii) the local police that investigated the incident reached the same conclusion after explaining that they had been able to figure out the entrance angles of the bullets on the basis of the entrance and exist marks left by the bullets in the victim’s body; (iii) there existed a direct line of fire from the SRK positions in Hrasno Brdo to the victim’s apartment, which was at a distance of approximately  metres (Galić Judgement, ¶ ). The defence also claimed that the victim had probably been hit by a stray bullet fired during combat operations. The Majority rejected this argument for the following reasons: (i) two bullets, and not just one, had hit the window of the victim’s apartment; (ii) it was a calm day and there had been no shooting or combat operations in the area; (iii) there were no military personnel or equipment in the building or in its surroundings; (iv) SRK snipers had often shot at civilians from their positions in Hrasno Brdo and (v) no blanket covered the unfolded blinds, the room was illuminated with a candle and SRK snipers often used rifles with telescopic sight. As a consequence, the Majority concluded that Hatema Mukanovic had been deliberately attacked by an SRK sniper (Galić Judgement, ¶ -). In his Separate and Partially Dissenting opinion, Judge Nieto-Navia underscored that the possibility that the victim had not been attacked deliberately could not be discounted. Firstly, the visibility was insufficient because the bullets had been shot at night from a distance of approximately  metres and the victim’s apartment had the blinds unfolded and was only illuminated by a candle. Secondly, the testimony on the number of bullets shot at the victim’s apartment was contradictory (it was not clear that two bullets, as opposed to only one, had been shot), and therefore one could not discount the possibility that the victim was hit by a stray bullet. Thirdly, this last hypothesis was further supported by the fact that several ABiH positions were located between the SRK positions in Hrasno Brdo and the victim’s apartment (Separate and Partially Dissenting Opinion of Judge Nieto-Navia in the Galić Judgement, ¶ -).

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to be engaged in and (vi) visibility of the victim due to weather, unobstructed line of sight or daylight. Among the difficulties in analyzing the legality of artillery attacks and of those carried out by snipers, it must be underscored the frequent inclusion of false information in reports and other contemporaneous documents about those attacks with a view to giving an appearance of lawfulness to military operations that in reality amounted to war crimes. Moreover, one can also point out a number of additional difficulties, such as: ) The fact that certain types of weapons, including those used by infantry forces in urban combat situations, are not designed to reach a concrete target, but are rather designed to reach, at the most, a point close to the target, with the aim that the target itself will be destroyed by the shrapnel spread out at the point of impact; moreover, there are certain weapons that are only designed to shoot the projectile in a more or less broad area around the objective; ) The margin of error of all types of ammunition, even those which are directed against the target by remote control; ) The tendency of defending forces to locate their troops, armaments and military material in areas which are in reality civilian, but whose civilian charac Galić Appeal, supra note , ¶ , endorsing the approach taking by the Galić Judgement, supra note , ¶ .  As the Strugar Judgement, supra note , ¶ , points out: “The Chamber now turns to consider in greater detail the evidence dealing with these events. This aspect of the evidence is particularly characterised by conflict and confusion. No doubt the many years that have passed since these events have affected the accuracy and reliability of the memories of witnesses. The Chamber is persuaded, however, that some evidence it has heard, in particular concerning the JNA, was not truthful. Further, the Chamber is satisfied that a number of contemporary reports and records are misleading, deliberately so, and do not reflect the truth. In the face of these difficulties, it is not possible for the Chamber to be satisfied where the truth lies in respect of a number of issues. Some matters, therefore, have had to be left without findings”.  See the investigative checklists for shelling incidents and for sniping incidents proposed by W.J. Fenrick, International Humanitarian Law and Combat Casualties,  Eur. J. Int’l Population  () [hereinafter Fenrick, International Humanitarian Law and Combat Casualties]. It is also interesting on this point the work of Willey, Prospects, supra note , p. -. See also the summary of the Defence Appeal Brief in Galić Appeal, supra note , ¶ . Among the issues that the Defence claimed the Trial Chamber did not properly analysed were: (i) the lack of due consideration to the fact that ABiH military targets were spread all over Sarajevo; (ii) the fact that may witnesses did not know of the location of ABiH military targets and therefore they were incapable of testifying about the civilians targeted or about the indiscriminate nature of the sniping and shelling incidents; and (iii) the fact that the whole theatre of operations in Sarajevo resembled to the case of the Old Brewery of Bistrik, which appeared prima facie not to be a military objective, but it was a legitimate military target because the ABiH had a repair and production workshop for their weapons in the complex.

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ter is often unknown to the members of the attacking party who take part in the targeting process; and The imperfections of the processes of gathering information about the civilian or military nature of the targets – as it happened, for example, in the attack on the Al-Firdus bunker in Baghdad in  – or about their coordinates; the latter was the cause of the NATO bombing of the Chinese embassy in Belgrade in .

In any event, it is important to underscore that, although these factors must be taken into account in the a posteriori investigation of the lawfulness of a given attack in order to determine whether it constitutes a war crime, in the author’s view, they are not relevant in answering the question of whether the proportionality analysis must be carried out at the tactical level or at the operational level. The best example of the practical importance of these factors in the a posteriori unlawfulness analysis of artillery attacks and sniper attacks is to be found in the Trial Judgments in the Galić and Strugar cases, from which the following attacks have been selected because of the representativeness of their analyses: (i) the JNA attack against the old city of Dubrovnik on  December ; (ii) the SRK attack against a well in the C- area of the Dobrinja neighbourhood in Sarajevo on  July ; (iii) the SRK attack against the Markale market in

 On  May , a NATO aircraft launched several missiles which hit the Chinese embassy in Belgrade, killing three Chinese citizens, injuring  more and causing extensive damage to the embassy and the nearby buildings. According to the ICTY OTP, the target was a civilian object and, thus, did not constitute a lawful target. The bombing was the result of the confusion by an intelligence officer regarding the coordinates of the Yugoslav Federal Directorate for Supply and Procurement with those of the Chinese embassy in Belgrade. This confusion was the result of the employment of those techniques known as “intersection” and “resection” in order to pinpoint the location of the Yugoslav Federal Directorate for Supply and Procurement in Belgrade. Although these methods only allow for obtaining a rough estimation of the coordinates of the target and, thus, are only appropriate to ascertain the coordinates of targets that are in isolated or distant places, none of the participants in the targeting process raised any objection or revised the way in which such techniques had been used. Besides, the fact that there was an error in the coordinates of the Chinese embassy in Belgrade that appeared in the databases of the US General Staff and its intelligence service prevented the problem from being discovered in the subsequent stages of the targeting process. As a consequence, in the ICTY OTP’s view, the NATO attack against the Chinese embassy in Belgrade, in spite of being unlawful, did not give rise to criminal liability because the aircraft crew was given wrong coordinates and the crew’s superiors involved in the targeting process operated on the basis of incorrect information provided for by another state agency (ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ -).

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Sarajevo on  February ; (iv) the SRK sniper attack against witness E and (v) the SRK sniper attack against Mejra Jusović in Sarajevo on  July . V.. The JNA Attack against the Old City of Dubrovnik on  December  For the Trial Chamber in the Strugar case, the attack against the fortress on Mount Srdj, which ultimately led to the bombing of the old town of Dubrovnik, was planned for the afternoon of  December  with the intention of capturing the fortress before noon the following day, by which time it was expected that the ceasefire between the JNA and the Croatian authorities would enter into force. The original plan included the use of heavy artillery in support of the infantry units of the third battalion of the  motorized brigade (/ Mtbr) which would have the mission of assaulting the fortress. The heavy artillery that was going to be used in the operation included a  mm Howitzer located at the Čilipi airport,  mm mortars located in Uskoplje and Osojnik, cannons and Maljutka grenade launchers located in Žarkovića – from where the operation was going to be coordinated – and  mm mortars that each company of the / Mtbr had. Between : and : in the morning on  December , two light infantry units comprising no more than  soldiers belonging to the / Mtbr initiated the assault on Mount Srdj. As they ascended the mountain, the JNA’s artillery began to fire at the Croatian positions on the Mount Srdj fortress so that the defending troops were unable to prevent the advance of the JNA’s infantry units. While the latter were still ascending Mount Srdj, the Croatian  mm mortars and antiaircraft batteries located in the city of Dubrovnik started shelling the attacking forces, causing several casualties. As soon as the JNA identified the sources of Croatian fire, it directed its artillery against them. At approximately : in the morning, once the attacking infantry units were close enough to the summit of Mount Srdj, the JNA’s artillery stopped shelling the fortress. Immediately afterwards, the attacking infantry forces assaulted the fortress and the Croatian defenders, who were out-

       

Sniping Incident No.  in the Galić Case. Sniping Incident No.  in the Galić Case. Strugar Judgement, supra note , ¶  and . Id. at ¶ . Id. at ¶ . Id. at ¶ . Id. Id. at ¶ .

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numbered, had to take shelter in the basement of the fortress where they resisted until the JNA’s infantry was forced to retreat at approximately : hours. Once the JNA’s infantry reached the summit and forced the Croatian defenders to retreat to the fortress basement, the attacking force became completely exposed to the Croatian mortar fire from the city of Dubrovnik, which resulted in numerous casualties and eventually forced them to retreat. When the JNA’s artillery stopped shelling Mount Srdj at approximately : in the morning, it focused its shelling on the city of Dubrovnik, including its old town which had been recognized as a World Heritage site by UNESCO in . The shelling was particularly intense from between : and : hours until approximately : hours, when attempts by JNA’s infantry to break the Croatian defence on Mount Srdj grew more intense. As a consequence of the ten and a half hours of shelling of the old town of Dubrovnik, significant parts of it suffered substantial, large-scale damage, and at least two civilians lost their lives and two more were wounded. Although the defence alleged that the old town was out of the reach of the JNA’s cannons located in Žarkovica, the Chamber found that these cannons could, at least, hit part of the old town. This conclusion was based on the fact that the Croatian forces did not have tanks or other armoured vehicles in the areas surrounding Dubrovnik and, thus, Mount Srdj and the city of Dubrovnik (including its old town) were the only possible targets of the JNA’s cannons located in Žarkovica. Because Žarkovica was at the same distance from Mount Srdj as from the old town, it would not have made sense to locate the cannons in Žarkovica if both Mount Srdj and the old town were out of their reach. In spite of the defence’s claim, the Chamber also found that the  mm JNA mortars of the three companies of the / Mtbr, which had the old town within their reach, were intermittently used during the attack on  December . The defence also alleged that at least part of the damage caused to the old town was brought about by the Croatian forces which attacked the buildings and businesses owned by Serbs or by persons with ties to Serbia. Nevertheless, the Chamber found that this claim was not supported by evidence introduced at trial. Furthermore, it did not appear plausible in light of the persuasive evidence indicating that the damage had been caused by the JNA shelling.        

Id. Id. at ¶  and  Id. at ¶ . Id. Id. at ¶ . Id. at ¶ . Id. at ¶ . Id. at ¶ .

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Alternatively, the defence argued that any damage caused to the old town, despite being unfortunate, was incidental and lawful because it resulted from the JNA’s shelling of the Croatian mortars and other artillery weapons located in the vicinity of the old town, which were being used to shell the JNA’s infantry on Mount Srdj. In addressing this issue, the Chamber started by rejecting any claim that located the Croatian artillery in the old town. This conclusion was based on a number of factors. Firstly, the European Community observers, the UNESCO representative and numerous international journalists accredited in Dubrovnik did not see Croatian mortars or antiaircraft batteries in the old town. Secondly, some witnesses, all of them JNA members, testified to have seen Croatian artillery weapons in the old town. However, each of them placed such weapons in different locations – although most of the JNA witnesses were in the same position in Žarkovica during the attack. Thirdly, mortars need to be installed over a surface that can absorb the vibration from the firing or otherwise their crews can be at grave risk. Hence, mortars would have had to have been installed over sand bags in the old town. However, none of the JNA officers who testified witnessed this kind of preparation. Finally, the narrowness of the streets and the height of the houses in the old town disrupted the line of fire against the JNA’s positions, which made the old town an inappropriate area to install artillery weapons. Nevertheless, the Chamber found that a number of Croatian artillery weapons were located in the following locations of the city of Dubrovnik: (i) two  mm mortars were placed in Lazareti, approximately  to  metres away from the wall of the old town; (ii) an antiaircraft battery was placed at the base of the cable car that ascends to the fortress on Mount Srdj and is located approximately  metres from the wall of the old town; (iii) an antiaircraft battery was placed to the east of the old town in Zlatni Potok (Ploče area); (iv) a platoon of  to  Croatian soldiers were in Gradac park where an antiaircraft battery was also located; (v) a  mm cannon was placed in Mla Petka; (vi) three  mm mortars and three  mm mortars were placed further north next to the Solitudo campground; (vii) a multipleuse cannon was located next to           

Id. at ¶ . Id. at ¶ . Id. at ¶  and . Id. at ¶ . Id. at ¶ -. Id. at ¶ . Id. Id. Id. Id. Id.

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the Solitudo campground to the south of Orsan (Lazareti area); (viii) a  mm mobile cannon was placed next to the Lapac Hotel; (ix) a  mm grenade launcher was located on an small hill approximately  metres away from the Libertas Hotel; (x) several mortars were placed in the tennis courts behind the Libertas Hotel; (xi) two  mm mortars were located in the SDK building; (xii) a  mm cannon was placed below the bridge on Iva Vojnovica Street; (xiii) a Maljutka was placed in the President Hotel and (xiv) four  mm mortars were placed in Bogisica Park. Moreover, military positions could also be found in Kantafig, Gruž, Nuncijata, Sustjepan and next to the Argentina and Belvedere hotels. The Chamber found that all these locations were outside of the old town. Some of them were so far away from the old town that any JNA attempt to destroy or neutralize them could not have damaged the old town no matter the level of precision of the artillery weapons used in the attack. Concerning those other locations that were in the vicinity of the wall of the old town, the defence’s expert pointed out that, given the weather conditions on  December , any JNA mortar attack launched against any Croatian position located less than  metres away from the wall of the old town risked damaging the old town. On the other hand, the ICTY OTP’s expert stated that, assuming that the JNA shelling attacks were launched from Žarkovica, Bosanka, Uskoplje and Srdj with  mm and  mm mortars and that the targets included the areas of Ploče, Bogišića Park Gradac Park and the base of the cable car (which was located approximately  to  metres away from the old town), only the shelling of this last position could have caused incidental damage to the old town. On the basis of these reports, the Chamber found that only the shelling against the antiaircraft battery located at the base of the cable car could have caused incidental damage to the old town, particularly in light of the fact that the JNA did not shell the Croatian mobile mortar (Flying Charlie) that had been            

Id. Id. Id. Id. at ¶ . Id. at ¶ . Id. Id. Id. at ¶ . Id. at ¶ . Ibid, ¶ . Id. at ¶ . Id. at ¶ .

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identified. As a result, considering that the shelling of the old town lasted for around ten and a half hours, that large-scale damage had been caused and that the JNA seemed to have focused on military objectives which were so far away from the old town that it was impossible for the latter to have been incidentally damaged as a result of attacking them, the Chamber concluded that the largescale destruction of the old town could not have been the incidental result of a JNA attack against the Croatian military objectives located in the area surrounding the old town. The Chamber also rejected the defence claim that at least a part of the damage caused to the old town was due to errors in the coordinates used by Croatian mortars. In this regard, the Chamber found that the line of fire between the Croatian positions and Mount Srdj did not cross through the old town. Finally, the Chamber also rejected the defence claim that the JNA shelled the old town because it mistakenly believed that the mortars and anti-aircraft batteries that were being used to shell the JNA’s infantry on Mount Srdj were located in the old town. The Chamber gave the following three reasons: (i) the lack of evidence supporting the defence’s claim on this point; (ii) the secondary role played by the hypothetical threats posed by the Croatian mortars and antiaircraft batteries allegedly located in the old town and (iii) the lack of proportionality between this hypothetical threat and the large scale destruction of the old town. As a consequence, the Chamber concluded that the JNA had deliberately shelled the old town – which had been recognized as a World Heritage site by UNESCO and where no Croatian military position was located – for ten and a half hours, causing large scale damage, killing two civilians and wounding two others. V.. The SRK Attack against a Well in the C- Area of the Dobrinja Neighbourhood in Sarajevo on  July  On  July , the inhabitants of the C- area of the Dobrinja neighbourhood in Sarajevo were receiving water at the designated emergency distribution points. One of these emergency distribution points was located in the main courtyard of the house of the sister of an ABiH soldier who was on leave. At approximately : hours, between  and  people, mostly elderly, were standing in line with buckets and bottles in front of the wrought-iron gate of the house. At that time,      

Id. at ¶ -. Id. at ¶ ,  and . Id. at ¶  and . Id. at ¶  and . Id. at ¶ -. Id. at ¶ .

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an  mm mortar shell landed next to the well killing ten people and wounding another ten. The defence claimed that the attack was probably directed against a military objective because in the vicinity of the point of impact there were: (i) some trenches which were being built by the ABiH approximately  metres away from the point of impact, and that were intended to join Butmir with the Dobrinja tunnel; (ii) the command post of the second battalion of the ABiH in Dobrinja, which was located approximately  metres to the northeast of the point of impact and (iii) the front line between the ABiH and the SRK, which was approximately only  metres away from the point of impact. The Majority of the Trial Chamber in the Galić case rejected the defence claim because it found that there was no military objective in the vicinity of the point of impact which could have justified the attack (the closest military objective was approximately  metres away). This, along with the fact that the area around the well was repeatedly shelled after  July , led the Majority to conclude that the  July  attack had not been directed against the trenches under construction, the command post of the ABiH troops in the area or the ABiH positions on the front line. On the contrary, according to the Majority, the attack had been directed against the well, where civilians could be expected to be present. In his Separate and Partially Dissenting Opinion, Judge Nieto-Navia pointed out that, despite agreeing with the Majority that on  July  a  mm mortar projectile had landed in the C- area of Dobrinja killing and wounding a number of civilians, he was not convinced that the attack had been launched from SRK positions. He was not convinced either that the attack had deliberately been directed against the well, where numerous civilians were standing in line waiting to receive water. Judge Nieto-Navia came to this conclusion after analyzing a number of factors. First, the  mm mortar projectile had exploded while in the air as a result of crashing against one the victims and, thus, had left no crater but only some prints on the ground. Although on the basis of these prints a local police officer and a UN representative had both concluded that the mortar shell had most probably come from a west-northwest direction, the absence of a crater prevented the determination of the distance from which the mortar had been fired – which,  Galić Judgement, supra note , ¶ ,  and .  Id. at ¶ .  Id. at ¶ -. This findind has been explicitly upheld by the Galić Appeal, supra note , ¶  because, according to the Appeals Chamber, the Majority did consider military targets, including the tunnel and the post, and found that either they were not operational or were too far away from the impact to have been the true objective.  Separate and Partially Dissenting Opinion of Judge Nieto-Navia in the Galić Judgement, supra note , ¶ .

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according to Judge Nieto-Navia, would have been the only way to dispel any doubt as to whether the projectile had been fired by SRK from approximately  to  metres away from the point of impact. Secondly, for Judge Nieto-Navia, the evidence did not permit the conclusion that the attack had been deliberately directed at civilians. The commander of the ABiH brigade in Dobrinja testified that, at the time of the attack, the ABiH was building a tunnel between Dobrinja and Butmir, which would be opened three weeks later and the main entrance to which was approximately  to  metres away from the point of impact. Moreover, for Judge Nieto-Navia, the evidence indicated that the SRK knew of the location of the exit to the tunnel in Butmir. However, the evidence was insufficient to find that the SRK also knew where the entrance to the tunnel in Dobrinja was located. Furthermore, according to Judge Nieto-Navia, an ABiH command post was located approximately  metres from the well, and several witnesses testified that the closest confrontation line between the ABiH and the SRK was approximately  metres from the well – the same distance at which the ABiH trenches were located. There were also witnesses who testified about the warnings given by the police, that very same morning, not to go to the well because it was dangerous, and a UN representative testified that the SRK fire in the area was directed against the ABiH positions in the vicinity of the airport. On this basis, Judge Nieto-Navia concluded that it was perfectly possible for the mortar shell which landed next to the well to have been shot against any of the several military objectives located in its vicinity. V.. The SRK Attack against the Markale Market in Sarajevo on  February  On  February , at around noon, a mortar shell landed in the Markale market in Sarajevo killing  civilians and wounding another . On the basis of the reports made by the UN investigation team and local authorities after having inspected the tailfin, the recovered shrapnel and the traces left on the ground, the Trial Chamber found that the explosion was caused by a  mm mortar shell. For the Majority, enough evidence was introduced at trial to accept the hypothesis that had the coordinates of the Markele market been pre-recorded,      

Id. at ¶ . Id. at ¶ . Id. at ¶ -. Id. at ¶ . Id. at ¶ . Galić Judgement, supra note , ¶ . The Majority’s fndings on this matter have been explicitly upheld by the Galić Appeal, supra note , ¶ -.

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the market could have been hit by the first mortar shell shot from a long distance. The Majority relied on testimony which confirmed that, in the previous four months,  to  mortar projectiles (primarily  mm mortar shells) had landed in the vicinity of the market – most of them having been fired from the direction north-northeast of Sedrenik. Furthermore, the Majority underscored that the SRK had denied UNMO access to the northeast area of Sarajevo. Only subsequently UNMO had the opportunity to visit a SRK representative, who confirmed that the SRK had deployed a number of  mm mortars in the direction which the mortar shell that hit the market was estimated to have come from. In concluding that the SRK deliberately directed an attack against civilians by shelling the market from its positions in Sedrenik, the Majority also took into account the following factors: (i) the market was always full; (ii) the market was not a military objective; (iii) it was unclear whether the military uniform factory located in the building known as the  of December was still open in February  and (iv) it was unreasonable to qualify the workers of the factory as military objectives. In his Separate and Partially Dissenting Opinion, Judge Nieto-Navia concluded that it had not been proven beyond a reasonable doubt that the mortar shell had been fired from SRK positions or that the attack was deliberately directed at the market. The market had a surface of  metres by  metres and the Majority had concluded that the evidence showed that an area of such dimensions could be hit from a long distance by a single mortar shell if the coordinates had been pre-recorded. Nevertheless, according to Judge Nieto-Navia, this conclusion was based exclusively on only one expert report, which also stated that: (i) the weather conditions could affect the precision of a mortar in a very important manner and  Galić Judgement, ¶ .  Galić Judgement, ¶ -. Galić Appeal, supra note , ¶  did not overturn the finding of the Trial Chamber with regard to the fact that the attack was deliberately aimed at civilians. However, the Appeals Chamber pointed out: “Witness Hamill, relied on by Galić, testified both to the limited time in which prerecorded data could be used and to the difficulty of hitting a relatively small target such as the market from a great distance. However, Hamill also testified that an experienced mortar crew could reach to within  m or  m of their target on the very first shot. The Trial Chamber heard evidence that the closest military target to the market was  m away. Therefore, whether the SRK was aiming for the market itself or for some other target within the surrounding  m, it was aiming for a target within a civilian area, and this shelling incident was thus an example of shelling that deliberately targeted civilians. The Trial Chamber was incorrect to find that the shell was deliberately aimed at the Markale market, but correct to find that it was deliberately aimed at civilians, and its conclusions will not be overturned”.  Separate and Partially Dissenting Opinion of Judge Nieto-Navia in the Galić Judgement, ¶ .

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(ii) if the target coordinates are not recorded the previous day or night, the mortar precision is limited to a range of  metres. Furthermore, for this expert, this would have been the case had the market not been shelled the day or night before the attack under analysis. Judge Nieto-Navia also pointed out that other experts had expressed strong reservations concerning the possibility that the Markele market had been deliberately targeted and hit from a considerably distance by a single mortar shell. These factors, along with the fact that the trajectory of a small mortar shell would be necessarily affected by the weather conditions (and particularly by the variations on the wind), led Judge Nieto-Navia to conclude that it was extremely unlikely that the Markele market could have been deliberately hit by a single mortar shell even if the coordinates of the market had been pre-recorded. Judge Nieto-Navia also pointed out that the Majority had relied on a second argument raised by witness Afzall, a UN representative, who testified that during the previous four months,  to  mortar shells had landed in the vicinity of the Markele market. However, according to Judge Nieto-Navia, witness Alzall’s testimony referred to mortar shells which had landed approximately  metres from the market. Furthermore, the fact that the market might have been hit in the past does not necessarily mean that it could be deliberately hit by a single mortar shell fired from a long distance on the particular day of the attack. Finally, for Judge Nieto-Navia, the value given by the Majority to the SRK’s lack of cooperation with UNMO was inappropriate. Although it was true that the SRK denied the UN observers access to the SRK positions to the northeast of Sarajevo (where the SRK had deployed several  mm mortars), the ABiH did not fully cooperate with UNMO either because it only allowed UN observers to visit two of the ABiH positions where  mm mortars had been deployed. Moreover, neither of the two positions were in the estimated direction of fire. V.. The SRK Sniper Attack against Witness E in Sarajevo According to the Majority of the Trial Chamber in the Galić case, witness E was nine years old and approximately  centimetres tall when, on a sunny day, she was hit by a single bullet while she was on her knees playing in the garden of her house in Sedrenik. At the moment of the shooting, witness E was facing the Špicasta Stijena hill, which was under the control of the SRK. Besides, while

   

Id. Id. at ¶ . Id. at ¶ -. Galić Judgement, ¶ .

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witness E was being brought to the hospital, another bullet hit the back of the car while that part of the car was facing the Špicasta Stijena hill. According to the Majority, the fact that witness E was on her knees would explain why – as the medical report indicated – the bullet entered through the upper back part of her body and left through the lower front part. Furthermore, the photographs presented by the ICTY OTP made clear that there was a direct line of fire from the upper part of the Špicasta Stijena hill to the courtyard where witness E was playing. Moreover, several witnesses, including a UN representative, testified that the ABiH-controlled territory around Špicasta Stijena was attacked regularly by SRK snipers. Although the Majority acknowledged that the , metres between the Špicasta Stijena hill and witness E’s courtyard in Sedrenik was a considerable distance, it concluded that witness E had been deliberately attacked by a SRK sniper because there was no ABiH soldier or ABiH position in the surroundings of witness E’s courtyard when she was hit. Furthermore, according to the Majority, witness E had not been hit by a stray bullet because – apart from the fact that the car which was bringing her to the hospital was also attacked from the Špicasta Stijena hill on that very same day – the exposure surface was very limited due to the fact that she was on her knees at the time of the shooting. In his Separate and Partially Dissenting opinion, Judge Nieto-Navia concluded that the existence of a direct line of fire from the Špicasta Stijena hill to witness E was unclear because the photographs put forward by the ICTY OTP had been taken by someone standing up – as opposed to being on his knees – in witness E’s courtyard. For Judge Nieto-Navia, this was particularly relevant because witness E’s courtyard was surrounded by houses. Besides, according to Judge Nieto-Navia, it was not clear how, if witness E’s back was against the wall of her house at the time of the shooting, a bullet fired from the Špicasta Stijena hill could have entered through the upper part of her back. Furthermore, for Judge Nieto-Navia, the Majority had underestimated the importance of the evidence on the ongoing hostilities in the vicinity of witness E’s courtyard. According to this evidence: (i) there were ABiH trenches next to her house; (ii) ABiH soldiers used to pass close to her apartment when going towards the confrontation line on the hill; (iii) witness E had seen a couple of     

Id. at ¶ -. Id. at ¶ . Id. Id. Id. at ¶ -. This finding has been explicitly upheld by the Galić Appeal, supra note , ¶ .  Separate and Partially Dissenting Opinion of Judge Nieto-Navia in the Galić Judgement, supra note , ¶ .  Id. at ¶ .

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ABiH soldiers passing next to her house the very same morning of the shooting and (iv) remains of projectiles that had fallen from the roof were found in witness E’s courtyard. For all these reasons, together with the long distance (, metres) between witness E’s courtyard and the SRK positions on the Špicasta Stijena hill, Judge Nieto-Navia concluded that it was not proven beyond a reasonable doubt that the attack had been deliberately directed against witness E. V.. The SRK Sniper Attack against Mejra Jusović in Sarajevo on  June  According to the Majority of the Trial Chamber in the Galić case, on  July , at : hours, Mejra Jusović was returning alone to her house with the wood she retrieved that night in a nearby forest. It was cloudy and she was not wearing a military uniform. When she was approximately  metres from her house, she heard two shots and immediately threw herself to the ground in order to protect herself. While she was lying on the ground, a third shot penetrated her left thigh. Half an hour later, her son, who had been alerted by a neighbour, came to assist her. Mejra Jusović testified that, in her view, the shooting had originated from SRK positions on the upper part of the Špicasta Stijena hill. The Majority concluded that, in spite of the nearby ABiH trenches (the ABiH had built trenches only approximately  metres from the place were Mejra Jusović was hit), no combat was ongoing between ABiH and SRK units at the time Mejra Jusović was hit because she had only heard two shots before being hit by a third shot. Moreover, according to the Majority, she became an easy target for the SRK snipers on the Špicasta Stijena hill – which was approximately  metres away, and from which there was a direct line of fire – insofar as she remained motionless on the ground. The Majority also relied on the evidence showing that the upper part of the Špicasta Stijena hill was under SRK control and it was regularly used to shoot at ABiH-controlled territory. The Majority could not exclude the possibility that the sniper who shot at Mejra Jusović did not realize that the target was a middle-aged woman transporting wood because, although in July there is normally sunlight at : hours in Sarajevo, there was no testimony on the amount of daylight at the time the attack took place. But even in the case of a mistake, the Majority found that, con      

Id. at ¶ . Id. at ¶ . Galić Judgement, ¶ . Id. at ¶ . Id. at ¶ -. Id. Id. at ¶ .

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sidering that the victim was in an open space where there were only three houses, the sniper should have taken additional precautionary measures to confirm the military nature of the target. As a consequence, the majority concluded that Mejra Jusović had been shot at from SRK positions without taking into consideration the possibility that she could be a civilian. In his Separate and Partially Dissenting Opinion, Judge Nieto-Navia highlighted that at the time of the shooting, the sun had not yet risen and that it was cloudy. Hence, it was, at the very least, doubtful that someone could deliberately have hit Mejra Jusović from the SRK positions in the Špicasta Stijena hill (which was approximately  metres away). According to Judge Nieto-Navia, although the Majority tried to dispel such doubts by relying on the higher position at which the sniper was located (which allegedly made the victim an easy target), there was no evidence as to the difference in height between both points. On the other hand, as there was frequent combat between the ABiH and the SRK in the area of the shooting (and even the victim had testified that the day of the shooting there had been intense fighting between the ABiH and the SRK in addition to an intense SRK bombing of the area), Judge Nieto-Navia considered that one could not exclude the possibility that Mejra Jusović could have been hit by a stray bullet from ongoing combat activities. In addition to this, there were ABiH trenches only  metres away from the place where the victim was shot. As a consequence, Judge Nieto-Navia concluded that the fact that Mejra Jusović had been deliberately attacked from SRK positions in the Špicasta Stijena hill on  June  had not been proven beyond a reasonable doubt.

 Id. at ¶ .  Id. at ¶ .  Separate and Partially Dissenting Opinion of Judge Nieto-Navia in the Galić Judgement, ¶ .  Id. at ¶ -.  Id. at ¶   Id. at ¶ .

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Chapter VI Practical Issues concerning the Application of the Proportionality Rule

VI. The Proportionality Rule: Incidental Civilian Damage versus Anticipated Military Advantage VI.. The Growing Emphasis on the Application of the Proportionality Rule versus the Continuous Reluctance to Investigate and Prosecute its Serious Violations Concern for incidental civilian damage caused to the enemy is a relatively recent phenomenon which has progressively increased since the Vietnam war. However, the issue of incidental civilian damage has only become an important topic in public opinion since Operation Dessert Storm in . A number of legal writers then strongly criticised the excessive incidental damage caused by Coalition forces on the Iraqi economic infrastructure – particularly in light of its long-term negative effects on the Iraqi civilian population – as a result of the bombardment of targets which, according to art. () AP I, could be considered a military objective. Public pressure to limit incidental civilian damage has notably increased following the NATO aerial campaign in Kosovo and the subsequent conflicts in Afghanistan in  and Iraq in . As a result, during its aerial campaign in  W.H. Parks, The Protection of Civilians from Air Warfare,  Israeli Y.B. Hum. Rts.  () [hereinafter Parks, The Protection of Civilians].  Human Rights Watch, Needless Deaths in the Gulf War: Civilian Casualties during the Air Campaign and Violations of the Laws of War () [hereinafter HRW, Needless Deaths]. See also Gardam, Proportionality and Force, supra note , pp. -.  Some commentators, such as Hampson, Means and Methods, supra note , pp.  et seq, p. , have proposed an amendment to the current rules developing the principle of distinction in order to introduce one of the following two measures: (i) that the proportionality rule expressly imposes on the parties to the conflict the duty to take into account the cumulative and long-term negative effects on the civilian population of the incidental damage brought about by an attack, particularly when the target is an economic infrastructure; or (ii) that the definition of the notion of military objective requires that the destruction, capture or neutralization of the targeted objects offer a definite military advantage in light of the political-strategic goals of the campaign of the attacking party.

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Kosovo, NATO forces took unusual measures to reduce the incidental civilian damage as much as possible. However, in some US military circles, there is a growing concern that the standards which have been applied recently are neither realistic nor required by international humanitarian law. This would be the case, for instance, with the new procedures for selecting the targets of aerial attacks which have been used in the more recent campaigns in Kosovo, Afghanistan and Iraq by both NATO and the US military. The growing concern in public opinion about incidental civilian damage caused to the enemy has come at the same time as the first investigations and prosecutions of unlawful attacks (including those based on serious violations of the proportionality rule) have been undertaken by an international judicial body (the ICTY) since the end of WW II. The absence of case law in this field is the result of the traditional trend to only consider as criminally relevant those attacks in which the incidental civilian damage was so excessive that one could qualify them as attacks deliberately directed against civilians or civilian objects. As seen above, the special way in which unlawful attacks have been addressed by the ICTY’s case law is mainly due to fact that, in principle, the ICTY subject matter jurisdiction is limited to grave breaches of those norms of international humanitarian law that, at the time of the conflict in the former SFRY (-),  W.H. Parks, Comment, Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies  (A. Wall ed. ).  Id.  As the United Nations War Crimes Commission underscored in its analysis of the investigations and prosecutions carried out during the aftermath of WW II, serious violations of the rules of international humanitarian law that regulated the conduct of hostilities had seldom been investigated and prosecuted until  ( United Nations War Crimes Commission, Law Reports of the Trials of War Criminals  ()). However, some precedents can be found in the investigations and prosecutions conducted after WW II, such as the Hostage case (Hostage Case, supra note , pp.  et seq, and particularly pp. -) which declares the lawfulness of destroying certain civilian objects during the execution of military operations. Besides, in the Shimoda case (Ryuichi Shimoda et al. v. The State,  Int’l L. Reports  ( Japan Dist. Ct. of Tokyo ) [hereinafter the Shimoda case]) one of the District Courts of Tokyo condemned the respondents (it was a civil lawsuit) because it found that the military objectives in Nagasaki and Hiroshima were insufficient to justify the incidental civilian damage caused by the two atomic bombs.  W.H. Parks, Linebacker and the Law of War,  Air U. Rev.  (). For an overview on the case law on the application of the proportionality rule to date, see W.J. Fenrick, The Law Applicable to Targeting and Proportionality after Operational Allied Force: A View from the Outside,  Y.B. Int’l Humanitarian L.  (). See also W.J. Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare,  Mil. L. Rev.  () [hereinafter Fenrick, The Rule of Proportionality].

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had reached, beyond any doubt, the status of customary law. As a consequence, the ICTY’s case law has not considered that serious violations of the proportionality rule (attacks directed against military objectives which cause excessive incidental civilian damage) constitute a separate crime. On the contrary, within the ICTY’s case law, such serious violations of the proportionality rule constitute mere evidence of attacks directed against civilians or civilian objects. Unlike the ICTY’s case law, art. ()(b)(iv) RS makes serious violations of the proportionality rule a separate crime. By doing so, the need to portray the disproportionate use of force against a military objective as if it were an attack directed against civilians or civilian objects no longer exists. Hence, it is acknowledged that those attacks directed against persons or objects that are not military objectives are distinct from those other attacks which – although in principle they could be lawful because they are launched against a military objective – end up being unlawful due to the excessive incidental civilian damage that is expected from them. In deciding whether there has been a serious breach of the proportionality rule, the question arises as to the manner in which such rule must be applied in any given case. For instance, in order to assess the overall incidental civilian  Tadić Jurisdiction Decision, supra note , ¶ , , ,  and ; Strugar Interlocutory Decision, supra; note , ¶ ,  and ; Ojdanić Decision, supra note , ¶ ; Hadžihasanović Case, supra note , ¶ .  See, for instance, Galić Judgement, supra note , ¶ -.  Although for a different reasons, the autonomous treatment of the serious breaches of the proportionality rule was the general rule before the approval of the two Additional Protocols of . As the judgement in the Einsatzgruppen case underscored: “A city is bombed for tactical purposes: communications are to be destroyed, railroads wrecked, ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it inevitably happens that non-military persons are killed. This is an incident, a grave incident to be sure, but an unavoidable corollary of battle action. The civilians are not individualised. The bomb falls, it is aimed at the railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting thereon, dragging out the men, women and children and shooting them” (United States v. Otto Ohlendorf et al.,  Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. , pp.  et seq, p.  ()). A different view is held by Oeter, Methods and Means, supra note , p. , where it is stated that “blatant violations of the principle of proportionality are traditionally considered to be unlawful indiscriminate attacks resulting in international responsibility”.  A different view is held by Gardam, Proportionality and Force, supra note , p. , when she equates negligent behaviour in ascertaining the nature of a target or in conduction the attack itself with the direct targeting of civilians. See also Murphy, supra note , pp. - and .  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .

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damage, one wonders whether civilian casualties must be jointly counted with the harm caused to civilian objects or which other criteria should be used to quantify the incidental civilian damage. Likewise, the question arises as to which elements must be taken into consideration to assess the anticipated military advantage. Most importantly, the question arises as to which criteria should be used to compare the incidental civilian damage and the anticipated military advantage, particularly if one attempts to avoid a mere numerical comparison between the number of civilians dead and wounded and the number of enemy soldiers that are expected to be placed hors de combat as a result of the attack. Closely related to this last question are those relating to which relative values should be assigned to the incidental civilian damage and the anticipated military advantage, and to what extent a military commander has the duty to put his troops at risk in order to minimize the incidental civilian damage caused to enemy civilians or civilian objects. In the author’s view, the most difficult problem in analyzing whether there has been a serious breach of the proportionality rule is that art. ()(b)(iv) RS requires comparing two elements which have hardly anything in common: (i) “the concrete and direct overall military advantage anticipated” and (ii) the “incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment” which is expected from the attack. Moreover, a number of other questions arise in the application of the proportionality rule, such as inter alia must the incidental civilian damage due to the unlawful deployment of enemy soldiers, weapons, ammunition or other kinds of military equipment (for instance, the placement of a mortar in the courtyard of an elementary school) be taken into consideration when applying the proportionality rule? And, in what temporal and geographical framework must the proportionality rule be applied? The answer to the last question is key in deciding, for instance, whether any distinction has to be made between the incidental civilian damage caused during the initial attack against a locality under enemy control, and the damage caused during subsequent “cleansing operations” which take place after the attacking forces have gained control over the locality. The answer to this question is also important in deciding whether the proportionality rule should be applied at the  Nevertheless, this numerical comparison may be of some use in undertaking a preliminary proportionality analysis. This method has been used, for instance, in the ICTY OTP’s Report on the NATO campaign in Kosovo in . The proportionality analysis in the report (¶ ) starts with the following analysis at the strategic level: “During the bombing campaign, NATO aircraft flew , sorties, including , strike sorties. During these sorties, , air munitions were released (figures from NATO). As indicated in the preceding paragraph, it appears that approximately  civilians were killed during the campaign. These figures do not indicate that NATO may have conducted a campaign aimed at causing substantial civilian casualties either directly or incidentally”.

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tactical (incident-by-incident), operational (attack-by-attack) or strategic (overall military campaign) level. Regardless of whether this phenomenon is due to a legal obligation or public pressure, the undeniable fact is that during the last years, some western armed forces have implemented new procedures for the selection of targets which require the application of the proportionality rule. This is reflected, for instance, in the rules of engagement used by NATO in its most recent campaigns, as well as in some military manuals – in particular those of the US army – which require the presence of military lawyers in operational units. However, this growing emphasis on the application of the proportionality rule has not been followed by a significant increase of the number of investigations and prosecutions of unlawful attacks at either the national or international level. In this regard, the ICTY OTP’s analysis of the NATO attack against the railway bridge in Leskovac – which caused the death of at least ten passengers on a train – is a revealing example of the reluctance to investigate and prosecute serious violations of the proportionality rule that one can still find today. VI...

The ICTY OTP Analysis of the NATO Attack against the Leskovac Railway Bridge on  April  as a Paradigmatic Example of the Reluctance to Investigate and Prosecute Serious Violations of the Proportionality Rule

On  April , at approximately : hours, a NATO aircraft fired two laserguided bombs at the Leskovac railway bridge in the Grdelica Pass over the Južna Morava River in eastern Serbia. A passenger train crossing the bridge was hit twice and, at least  people were killed and  more were injured. The ICTY OTP, for the reasons explained below, concluded that the attack had not been deliberately directed against the passenger train. On the contrary, it had been directed against the Leskovac railway bridge which was part of the VJ supply network.

 On NATO targeting procedures, see for instance T. Montgomery, Legal Perspective from the EUCOM Targeting Cell,  Int’l L. Studies - (A. Wall ed. ) [hereinafter Montgomery, Legal Perspective].  T. Boyle, Proportionality in Decision Making and Combat Actions, in Protecting Civilians in st Century Warfare: Target Selection, Proportionality and Precautionary Measures in Law and Practice  (H. Mireille & J. Martine eds., ICRC/Wolf Legal Productions ).  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  Id. at ¶ .

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Firstly, the laser-guided bombs were launched from a distance of thousands of metres and were directed by remote control through a small screen of approximately  square centimetres. Secondly, the aircraft screen film showed that the “x” marking the point of impact had always been over the bridge. The film also showed that the approach of the passenger train towards the bridge could only be seen after the first bomb had already been launched and only six or seven seconds before the bomb hit the target. Only at this point, could one observe a small change in the position of the “x” insofar as it moved one metre downwards. Thirdly, it was not clear if the aircraft crew was comprised of one or two persons. Nevertheless, even if the aircraft crew was comprised of two members (which would mean that a specialised officer in charge of guiding the bomb by remote control was on board), the reaction time (six to seven seconds) was too short to deviate the bomb to an area without civilians – particularly if one takes into account that the aircraft was flying at a very high speed and, at the same time, the crew members had to undertake other tasks such as securing the safety of the aircraft in a combat area. Therefore, according to the ICTY OTP, the crew had not acted with such a lack of due diligence so as to be criminally liable. After the first impact, the crew realized that the railway bridge, which was approximately  metres long, had not been destroyed. Since the aircraft had a second laser-guided bomb, the crew decided to reattempt the mission and the aircraft returned towards the bridge. This second time, the “x” was on the opposite side of the bridge from where the passenger train, which had already been hit, was located. However, when the second bomb hit the bridge, the immediate area was surrounded by smoke and it was not possible to see on the screen whether the passenger train had moved forward towards the opposite end of the bridge – which was about to be hit by the second bomb. In any event, as a result of the second impact, the passenger train suffered additional damage. Concerning this second impact, the members of the ICTY OTP who wrote the report agreed that the crew members had acted with such a lack of due diligence that they might have been criminally liable. However, they did not see any indicia of criminal conduct by their military commanders. The question that arises is why, if the ICTY OTP reached the conclusion that the attack had been directed against the Leskovac railway bridge, a military objective, it did not undertake any proportionality analysis – particularly consid      

Id. at ¶ . Id. Id. Id. at ¶ . Id. at ¶ . Id. at ¶ . Id.

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ering that, at the time the second bomb was launched, the likelihood of causing incidental civilian damage was high because there was a passenger train on that side of the attacked bridge. VI.. The Principle of Economy in the Use of Force and the Proportionality Rule As pointed out throughout the text, it is far easier to define the proportionality rule than to apply it to a specific case because of the complexities of comparing such different variables as the value of innocent human lives and the military advantage expected from the total or partial destruction, capture or neutralization of a given military objective in a combat situation. Among the principles that must be taken into account in undertaking such a comparison, the principle of economy in the use of force is particularly relevant because it constitutes a universally-accepted military principle which is applied at all times by any armed force or organized armed group regardless of any change in the combat situation. The principle of economy in the use of force requires that all military commanders use the minimum level of force – soldiers, weapons, ammunition and any other type of military equipment – that is necessary to hit the target with as few casualties as possible. Hence, the effort and means that must be allocated to any given task must be confined to what is strictly necessary to carry it out successfully. This requires a careful selection process of weapons and ammunition, the preservation of artillery weapons and aircraft and a balanced allocation of tasks. As a result, any military commander shall, in principle, abstain from any action which does not facilitate the accomplishment of the mission. Furthermore, he shall assess at any time his resources in light of current needs and expected future needs. The application of this principle will result for instance in the rejection of requests for artillery or air support to capture an apartment building or village without strategic value, where, apart from the civilian population, a handful of enemy soldiers on leave (who do not constitute any immediate threat for the attacking forces) are present. The rejection of these kinds of requests is justified by the inefficient use of the limited resources at the disposal of the relevant unit for combat operations; there will surely be numerous enemy targets which will offer a far higher military advantage.  Id. at ¶ .  US Dep’t of the Navy, The Commander’s Handbook on the Law of Naval Operations -, footnote  ().  Parks, Air War, supra note , p. .

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Some legal writers have highlighted the close relationship between the principle of economy in the use of force and the proportionality rule. This relationship would be the result of the interaction in art. () AP I between the principle of immunity of civilian persons and civilian objects and the principle of economy in the use of force. This provision first establishes that “attacks shall be limited strictly to military objectives” and subsequently it adds that for this purpose “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action” and “whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. However, it is one thing to underscore the close relationship between the above-mentioned two principles and a very different thing to equate the two principles. In the author’s view, this comparison is not possible because attacks which do not entail any risk of causing incidental civilian damage – and, thus, are perfectly lawful in light of the proportionality rule – may end up being aborted because they are not consistent with the principle of economy in the use of force insofar as the anticipated military advantage is insufficient in light of the resources that must be allocated for its successful execution. Thus, in the above-mentioned example, even if all civilians are evacuated from the apartment building or village under consideration for attack (and, thus, any potential breach of the proportionality rule is no longer a relevant factor in deciding whether to proceed with the attack), it is most likely that the attack would be aborted because the military advantage anticipated from placing a handful of soldiers on leave hors de combat is insufficient to justify the use of a part of the unit’s limited artillery resources to support the infantry assault. The principle of economy in the use of force would require from the military commander to pay particular attention to the high cost and limited supply of artillery ammunition – particularly if his unit is far from the rearguard – as well as to the difficulties of replacing the soldiers fallen during the operation. The differences between the demands of the principle of economy in the use of force and those of the proportionality rule are evident if one considers that the proportionality rule intends, at a very minimum, to make military commanders aware that: (i) any incidental civilian damage has a high cost for the overall military campaign as well as for the professional career of the relevant military commander and (ii) such costs must be taken into account, along with the tactical and logistical costs, in deciding upon the suitability of an attack in light of the principle of economy in the use of force. Logically, the more intense the pressure of the media and public opinion concerning the adequate application of the proportionality rule (and the more numerous the national and international investigations and prosecutions of serious breaches of the proportionality rule), the greater the motivation for military commanders to take the expected incidental  Montgomery, Legal Perspective, supra note , p. .

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civilian damage into consideration in the targeting process and during the preparation and execution of attacks. Otherwise, if one accepts the sophism according to which the proportionality rule does nothing but restate the principle of economy in the use of force, the risk arises for the penal norm that criminalizes the serious violations of the proportionality rule to end up losing its preventive efficacy, and for humanitarian considerations to become, at best, secondary – always subject to tactical and logistical considerations. VI..

Assessment of Incidental Civilian Damage VI...

General Questions

To assess the scope of incidental civilian damage, it is important to bear in mind that not only enemy combatants but also persons who actively participate in the hostilities are military objectives. As seen above, members of the armed forces of the adverse party and members of other state organs which are incorporated into the armed forces of the adverse party during an armed conflict (for instance, the police special forces and some fire-fighting units) are entitled to combatant status. Therefore, the death of, or the injuries caused to, such persons, as well as any damage caused to their equipment and infrastructure, cannot be counted as incidental civilian damage unless the affected persons are medical or religious personnel or persons who are hors de combat (such as wounded members of the enemy’s armed forces who are recovering in a hospital or prisoners of war detained in a detention camp). On the other hand, the death of, or the injuries caused to, members of the security forces or other state organs, including civil protection personnel, who have not been incorporated into the armed forces of the adverse party (such as the members of the traffic police), and the damage caused to their equipment and infrastructure, must be counted as incidental civilian damage.

 S.G. Brown, (former US Chief of Staff ), cited by C.A.F. Jocknick & R. Normand, The Legitimation of Violence: A Critical History of the Laws of War,  Harv. Int’l L.J.  ().  Some legal writers, such as E.L. Gonsalves, Armed Forces and the Development of the Law of War, Mil. L. and Law War Rev.  (), have highlighted that distinguishing between military objectives and civilians and civilian objects and applying the proportionality rule involve an important effort, which logistically requires the employment of more personnel and ammunition for the execution of military operations and tactically entails the loss of time in the execution of such operations. As a consequence, military superiors, particularly those at the lowest levels such as platoon commanders, company commanders or ever battalion commanders, will pay less attention to compliance with such obligations.

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Combatant status is held  hours a day until the relevant person leaves the armed forces of the adverse party or any of the other above-mentioned units. Therefore, the death of, or the injuries caused to, enemy combatants who are sleeping or are on leave cannot be counted as incidental civilian damage. Non-combatants who actively participate in the hostilities are military objectives as long as their participation lasts because putting them hors de combat gives the enemy a tangible military advantage. Thus, the death of, or the injuries caused, to these persons, as well as any damage caused to their equipment and infrastructure, cannot be counted as incidental civilian damage. As seen below in further detail, those non-combatants who only take up arms against the enemy’s armed forces in self-defence in order to save their own lives or the lives of third persons who are at risk as a result of an unlawful enemy attack do not take active part in the hostilities. Thus, any death, injury or damage caused to these persons or to their property must be counted as incidental civilian damage. The damage caused to the so-called dual infrastructures – i.e. those infrastructures which are normally used for non-military purposes, but which are also used for military purposes when an armed conflict arises (such as power stations, communications installations, industrial plants turned into weapon and ammunition factories and so on) – cannot be counted as incidental civilian damage. As a consequence, in a combat situation such as the one that occurred in Dubrovnik at the end of  – where there was no power station or industrial plant which could have been used for military purposes and where the bridges had no military value given the positions of the parties to the conflict and the static character of the confrontation – any damage caused to any building or infrastructure which was not used by the armed forces of the parties to the conflict must be counted as incidental civilian damage. VI...

Should Long Term Indirect Damage Be Counted as Civilian Incidental Damage?

The question arises as to whether indirect damage – the negative effects of which take place primarily in the mid- and long-term – and damage caused by unlawful enemy actions should be considered as incidental civilian damage. Concerning the first question, after Operation Desert Storm, a number of legal writers emphasized the need to adequately assess mid and long-term incidental civilian damage, such as the damage caused to the Iraqi population as a result of the destruction of the Iraqi economic infrastructure by the Coalition

 See supra section V....  See infra section XI.

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forces. These legal writers expressed the need for incidental civilian damage to include not only short-term direct damage but also mid and long-term indirect damage. This seems to be the main effect of the definition of the environmental crime as a serious violation of the proportionality rule in art. ()(b)(iv) RS. According to this provision, “widespread, long-term and severe damage to the natural environment” must be taken into consideration when assessing the incidental civilian damage caused by any given military operation. However, in the author’s view, this provision only partially addresses the concerns expressed by the above-mentioned legal writers because the long-term damage caused to key infrastructures for the development of civilian life – which in situations of armed conflict are also used for military purposes and, thus, their destruction offers a concrete and direct military advantage – cannot always be qualified as environmental damage. In any event, the fact that art. ()(b)(iv) RS expressly declares that, at the very least, some long-term indirect damage must be counted as incidental civilian damage opens the door for an interpretation of this provision that requires considering other long-term indirect damage which does not stricto sensu affect the natural environment as incidental civilian damage. VI...

Should Damage Derived from Unlawful Enemy Actions Be Counted as Incidental Civilian Damage?

The question which is the subject of this subsection is particularly relevant given the frequency with which soldiers and weaponry are deployed and military infrastructures are built in the vicinity of areas where civilians reside or civilian objects are located. Likewise, it is not wholly unusual for civilians to voluntarily or forcibly assemble inside or around a military objective.  For instance, J.W. Crawford, The Law of Non-Combatant Immunity and the Targeting of National Electrical Power Systems,  Fletcher Forum of World Affairs  (), points out that it is difficult “to reconcile the virtual total destruction of the Iraqi civilian life-support system with the prophylactic requirements of non-combatant immunity”.  Id. at pp. -.  Art. ()(iv) RS differs from art.  AP I because, according to the former provision, causing widespread, long-term and severe damage to the natural environment only gives rise to criminal liability if such damage is “clearly excessive in relation to the concrete and direct overall military advantage anticipated”. In this regard, one should bear in mind that art.  AP I provides that “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”. In addition, art. () AP I prohibits attacks against the natural environment by way of reprisals.

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This practice has been the source of never-ending disputes in the  Israeli/ Lebanese conflict. According to Human Rights Watch, Hezbollah occasionally stored weapons in or near civilian homes and fighters placed rocket launchers within populated areas or close to UN observer posts. Moreover, the Israeli Defence Forces repeatedly claim that Hezbollah fighters were using civilians as shields to protect military objectives from attack. Neither art. ()(b)(iv) RS nor the EC provide an express answer to the question of whether the damage derived from unlawful enemy actions must be counted as incidental civilian damage because such provisions only refer to “incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment”. In order to answer this question, one has to analyze the rules which elaborate on the principle of distinction in the Additional Protocols. In any event, it is remarkable that art. ()(b)(xxiii) RS criminalizes, though only in the context of international armed conflicts, the use of “the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operation”. By doing so, the RS makes criminally liable, at the very minimum, those persons who unlawfully put at risk the life or physical integrity of civilians or other protected persons. Art.  AP I, in order to protect the civilian population, imposes on the parties to the conflict, as far as feasible, the following duties: (i) to endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (ii) to avoid locating military objectives within or near densely populated areas and (iii) to take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations. On the other hand, art. () AP I establishes that “the presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations”. This same provision adds that “the Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations”. Finally, art. () AP I prescribes that “any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and individual civilians, including the obligation to take the precautionary measures provided for in Article ”.  HRW, Fatal Strikes, supra note , p. .  For instance, on July , , the Israeli ambassador to the United Nations told CNN: “We are trying to minimize hurting civilians, but when Hezbollah uses civilians as human shields, sometimes civilians will get hurt.” (CNN, The Situation Room, supra note ).

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As a consequence, as the ICRC has pointed out, AP I seems to require assessing the damage expected to be caused to civilian persons and civilian objects put at risk by unlawful enemy action as incidental civilian damage. Therefore, had Coalition forces been aware in  that numerous Iraqi civilians were in the same building as the Iraqi command and control post in the Al-Firdus bunker, they would have had to take into consideration the numerous civilian casualties which could be expected to be brought about by an attack to such a bunker in deciding whether to include the Al-Firdus bunker within their target list. Some legal writers have openly criticized the principle of making the attacker responsible for the incidental civilian damage resulting from unlawful enemy actions. They have underscored the following problems. Firstly, any military  As Sandoz, Commentary, supra note , p. , where it is stated: “[…] even if civilians were intentionally brought or kept in the vicinity of military objectives, the attacker should take the measures provided for in Article  (Precautions in attack), especially those set out in paragraph (a)(ii) and (iii) and (c). It is clear that in such cases a warning to the population is particularly appropriate as civilians are themselves rarely capable of assessing the danger in which they are placed”.  As Y. Sandoz, Comment, Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies  (A. Wall ed. ), has recently stated, the attacking party cannot simply disregard the fact that civilians are being used as human shields. Likewise, HRW, Needless Deaths, supra note , p. , has argued that the deliberate use of civilians by the defending party in order to obtain an unauthorized military advantage does not affect the attacking party’s duty to take the mandatory precautionary measures intended to prevent or, at least, minimize civilian casualties. The same position is held by H.P. Gasser, Protection of the Civilian Population, The Handbook of Humanitarian Law in Armed Conflicts  (D. Fleck ed., Oxford University Press ), where he has stated that the presence of a soldier in a civilian infrastructure does not turn the latter into a military objective. On the contrary, the soldier continues being the only military objective, and any damage caused to the civilian infrastructure must be part of the proportionality analysis.  Concurring, W.J. Fenrick, Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia,  Eur. J. Int’l L.  ().  Parks, Air War, supra note , p. , has harshly criticized the manner in which the responsibility for the protection of the civilian population has evolved, such that a system of shared responsibility has turned into a system of exclusive responsibility of the attacking party. In his opinion, while the Geneva Conventions provided for a system of shared responsibility because experienced military personnel took part in their drafting process, this approach was unfortunately abandoned during the negotiations that led to the approval of the two Additional Protocols of . According to Dinstein, Comment, supra note , p. , a party to the conflict who uses civilians to protect a military objective is fully responsible for the incidental civilian damage brought about as a result of the attack against such a military objective. For T. Taylor, The Concept of Justice and the Laws of War,  Colum. J. Transnat’l L.  (), it does not make sense to continue counting the damage derived from unlawful enemy actions as incidental civilian damage because this is a rule which is not accepted by its addressees – the military personnel in charge of making the target lists and planning the attacks.

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commander making the target list encounters serious difficulties in determining exactly where civilian persons who reside in enemy territory are located. Thus, in those cases where the defending forces are mixed with the civilian population, the average military commander must decide whether to suspend the attack and accept the risk of higher casualties among his own troops or to launch the attack on the basis of insufficient information and, thus, accept the possibility of causing higher incidental civilian damage than expected. Secondly, any military commander encounters serious difficulties if he wishes to effectively counteract the movements of enemy forces and at the same time does not allow for a higher level of incidental civilian damage in those cases in which enemy forces are mixed with the civilian population. Thirdly, these legal writers state that a regulation which is too strict could deprive the proportionality rule of any efficacy because the members of the armed forces will oppose its application. This will happen if the members of the armed forces get the impression that the application of the proportionality rule gives important tactical advantages to the party to the conflict which does not comply with it. A reasonable military commander will try to minimize the risk for the life of his men, although he will have to accept the possibility of some of them getting killed or injured in combat situations. In this context, the commander will be willing to assume the risk of having some casualties in order to avoid manifestly excessive incidental civilian damage. However, the acceptance of such risk will certainly be subject to: (i) the preservation of the efficacy of his unit in the conduct of the hostilities, which could be undermined in case of numerous casualties and (ii) the preservation of internal unity within his own unit, which could be eroded if his subordinates consider that he is assuming unnecessary risks. Moreover, the higher the proportion of incidental civilian damage derived  Parks, Air War, supra note , p. .  In this regard, Parks, Air War, p. , has highlighted that the laws of the war are not the result of a suicidal agreement. Thus, the attacking party is not obliged to take excessive risks to minimize the incidental civilian damage.  In this context, Rogers, Zero Casualty Warfare, supra note , p. , has pointed out that, in light of the current international humanitarian law, it is not clear what is the level of care that is required from the attacking party and what is the level of risk that the attacking party must be willing to assume. Rogers is also of the view that, in analyzing any alleged violation of the proportionality rule, any competent tribunal should consider any unlawful activity undertaken by the defending forces in favour of the attacking party (Rogers, Zero Casualty Warfare, p. ).  As Oeter, Methods and Means, supra note , p. , has pointed out, due to the current structure of the applicable international humanitarian law, “the attacker will face extreme difficulties of justification, without having the alternative of accepting a higher level of collateral damage, if he wants effectively to counter the moves of the other side”.  Parks, Air War, supra note , p. .

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from unlawful enemy actions, the lesser the level of risk that a reasonable military commander will be willing to assume in order to avoid such damage.  A similar position has been officially taken by the US which claims that defensive forces should be considered responsible for the incidental civilian damage caused by the deployment of military personnel, weaponry and military materials in the vicinity of those areas in which civilian persons reside or civilian objects are located. Thus, once the enemy decides to locate military objectives such as surface-to-air missiles, anti-aircraft batteries, tanks or weapons of mass destruction in an area protected by international humanitarian law, such an area loses its protection. As a result, instead of labelling an attack against such an area as an unlawful attack against a protected area, one should label it as a lawful attack against a military objective located in such an area; although, one should attempt to minimize the damage caused by the attack as much as possible. In the author’s view, the elimination of the protection offered by the proportionality rule to those civilian persons and civilian objects that might suffer incidental damage as a result of unlawful actions of defending forces is not consistent with the ultimate purpose of the principle of distinction, which aims at limiting the suffering and damage caused by armed conflicts, in particular to those persons who are not combatants and do not actively participate in the hostilities. Thus, the ICC’s case law should follow the position embraced by AP I on this point. Furthermore, in order to minimize some of the above-mentioned problems, it is also necessary for the ICC’s case law to take a number of additional measures, including: (i) the effective investigation and prosecution of those persons ultimately responsible for the use of human shields – and by so doing, put an end to the appearance that those who breach the duties imposed by interna-

 Willey, Prospects, supra note , pp. -.  During the negotiations that led to the approval of the AP I, the US delegation made clear that States should be responsible if they use their civilian population to protect military objectives from enemy attack. On the other hand, in the US Defence Department, Report to Congress on the Conduct of the Persian Gulf War – Appendix on the Role of the Law of War, US Defence Department, printed in  Int’l L. Materials  () [hereinafter US, Report to Congress on the Conduct of the Persian Gulf War], the US Defence Department put forward this position to attribute the responsibility for the numerous civilian deaths brought about by the attack to the Al-Firdus bunker to the Iraqi authorities.  This position has been embraced by the US Air Force Manual (pp. -), which states that “a party to a conflict which places its own citizens in positions of danger by failing to carry out the separation of military activities from civilian activities necessarily accepts, under international law, the results of otherwise lawful attacks upon valid military objectives in their territory” (US Dep’t A.F., AFP -, International Law – The Conduct of Armed Conflict and Air Operations ()).

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tional humanitarian law gain a tactical advantage; (ii) the consideration of the decrease of the level of risk for one’s own troops, material, weaponry and military material, as well as the preservation of combat effectiveness and internal unity, as part of the anticipated military advantage and (iii) the effective investigation and prosecution of those persons who commit serious violations of the proportionality rule – and by so doing, demonstrate to military commanders that any incidental civilian damage bears a high cost for the overall military campaign and for their own professional careers. VI.

Geographical and Temporal Context in which the Proportionality Rule Must Be Applied

One of the issues that raised more interest among the delegations during the negotiations that lead to the approval of the AP I was the geographical and temporal context in which the anticipated military advantage and the expected incidental civilian damage must be assessed. There are three main positions which respectively favour the assessment of proportionality at the tactical (incident-byincident), operational (attack-by-attack) and strategic (overall campaign) levels. At first look, the definition of the proportionality rule embraced by the AP I and the RS seems to require for the proportionality analysis to be carried out in a context broader than that of specific military operations against isolated military targets. Indeed, such a definition presupposes the existence of the necessary military personnel to carefully select the military targets and prepare the attacks – which is unusual to find at the level of a platoon or a company. In this regard, some NATO States made interpretative declarations stating that the expression “military advantage” refers to the military advantage anticipated from the overall attack and not from its isolated parts. However, for some legal writers the rule of proportionality must be applied in a more limited context, as indeed was the case during the targeting process in the most recent aerial campaigns in Kosovo, Afghanistan and Iraq. This position seems to have been recently embraced by the Trial Chamber in the Galić case, which has undertaken the proportionality analysis at the tactical level with  This appearance has been underlined by M. Newton, Comment, Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies  (A. Wall ed. ).  Sandoz, Commentary, supra note , pp. - and -.  This type of personnel can usually only be found at the division level.  For instance, the Statement of Understanding of Canada says as follows: “It is the understanding of the Government of Canada in relation to subparagraph (b) of Article , paragraph  of Article , and clause (a)(iii) of Article  that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack”. See also Dörmann, Elements of War Crimes, supra note , pp. -, footnotes  and ; Roberts, Documents on the Laws of War, supra note , p. .

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regard to specific targets. At the same time, the Chamber expressly rejected the application of the proportionality rule at the strategic level, i.e. by comparing the overall incidental civilian damage which is expected to be caused during a given military campaign – in the case at hand, the VRS siege of Sarajevo between  and  – with the overall military advantage which is anticipated from the successful execution of such a military campaign. VI.. The Proportionality Analysis at the Operational Level. Special Reference to the HVO Attack against Donja Večeriska in Central Bosnia on  April  and the JNA Attack against the Old Town of Dubrovnik on  December  Art. ()(b) AP I defines the proportionality rule and art. ()(b)(iv) RS criminalizes serious violations of this rule by using the expression “attack”, as opposed to the expressions “incident”, “campaign” or “armed conflict”. Therefore, the literal interpretation of these provisions seems to require the application of the proportionality rule at the operational level with regard to the attacks launched during an armed conflict. At the same time, it seems to reject the application of the proportionality rule either at the tactical level, with regard to any of the specific incidents of which an attack may be comprised, or at the strategic level, in relation to military campaigns or even overall armed conflicts. However, if one analyzes in further detail the definition of the term “attack” in art. () AP I, the question arises as to whether the proportionality rule must be applied at the tactical level (incident-by-incident) or at the operational level (attack-by-attack). According to this provision, “‘Attacks’ means acts of violence against the adversary, whether in offence or in defence”. Besides, according to the ICRC commentary, the term “attack” could be equated with the expression “act of combat” because it refers to the use of armed force in executing any kind of military operation regardless of its offensive or defensive nature. Furthermore, art. ()(a) AP I qualifies as indiscriminate “an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects”. One could read this provision as embracing a notion of attack which includes operations carried out by a company or even by a single platoon.  The Galić Appeal, supra note , ¶  endorsed the Trial Chamber’s approach by highlighting that it was not accurate to say that the Trial Chamber did not properly consider the principle of distinction and the proportionality rule because the Trial Chamber carefully analysed whether the civilian victims were the unintended victims of combat in relation to each of the scheduled sniping and shelling incidents.  Galić Judgement, supra note , ¶ - and .  Sandoz, Commentary, supra note , p. .

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However, given the contextual interpretation of the term “attack” and the proportionality rule in light of those other provisions of AP I relating to the precautionary measures that must be taken during the preparation and execution of military operations, one can only conclude that the proportionality rule must be applied at the operational level. The obligations imposed on those who prepare and decide on the execution of an attack – such as verifying the military nature of a target, selecting the means and methods of warfare with a view to minimizing the incidental civilian damage, cancelling an attack when it is expected to cause excessive incidental civilian damage and suspending an ongoing attack when it becomes clear that it will cause excessive incidental civilian damage – show that the term “attack” is understood as meaning something other than merely resorting to armed violence. In this context, the term “attack” seems to refer to a kind of military operation which requires some degree of planning and preparation that can only take place at a level higher than that of a commander of a small unit – particularly if the latter is focused on carrying out the mission assigned to his unit under enemy fire while trying to avoid as many casualties as possible. This meaning of the term “attack” seems to have been also embraced by art. () AP I, which states that “when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects”. Logically, this obligation can only be imposed on military commanders who are at the operational level because only at this level is it possible to choose among several alternative targets which can yield a similar military advantage. In any event, in order to dispel any doubt about the application of the proportionality rule at the operational level (attack-by-attack), several States such as Australia, Belgium, Canada, Germany, Italy, Spain, Holland, New Zealand and the United Kingdom have made statements of understanding or declarations at the time of ratification stating that, in their view, the term “anticipated military      

Art. AP I. Art. ()(a)(i)AP I. Art. ()(a)(ii)AP I. Art. ()(a)(iii)AP I. Id. This interpretation was also embraced by the Swiss in their reservation to art. () AP I which states as follows: “These provisions only create obligations for commanders at the level of battalions or groups, and at higher levels. The information available to the commanders at the moment of their decision is the determining factor”. The text of this reservation can be found in Roberts, Documents on the Laws of War, supra note , p. . However, on  June , Switzerland withdrew its two reservations to arts.  and  AP I.

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advantage” in arts.  and  AP I encompasses the military advantage anticipated from the overall attack. This interpretation is supported by a number of legal writers. For Dörmann, the military advantage anticipated from the total or partial destruction, capture or neutralization of a military objective should be assessed in light of the ultimate purpose of the military operation of which it is part; such military operations could be comprised of a plurality of targets and military actions. Likewise, Doswald-Beck has pointed out that a military operation may require, for instance, the destruction of several military objectives, one of which may be so difficult to hit that the use of armed force against it may cause more incidental civilian damage than the rest of the operation. In this scenario, the military advantage anticipated from the destruction of the most difficult target may not be very important if assessed in isolation, but it might be of vital importance if assessed in the context of the overall operation. Therefore, in this type of situation, the total incidental civilian damage expected to be caused by the overall military operation should be compared with the concrete and direct military advantage expected to be obtained from the successful implementation of the overall military operation. Similarly, Oeter has pointed out that in the new context of integrated military operations, those actions taken by any given military unit do not constitute goals in and of themselves. Therefore, the military advantage that is expected from those actions can only be properly understood if it is analyzed in the operational context within which the actions are taken. However, Oeter seems to take a step forward when stating that the military value of the total or partial destruction, capture or neutralization of a military objective can only be adequately measured in light of the overall military campaign of the relevant party to the conflict. Indeed, in so stating, Oeter gives support to the application of the proportionality rule at the strategic level as opposed to the operational level. This last position, which is supported by many within the US military, is not new and, for some legal writers, it is implicit in the expression “overall attack” which is used in the above-mentioned declarative interpretations of AP I and now in art. ()(b)(iv) RS – the latter using the formula “concrete and direct overall military advantage”. Indeed, to date, none of the States that made one of the above-mentioned declarative interpretations of AP I has attempted to put an  See Dörmann, Elements of War Crimes, supra note , pp. -, footnotes  and ; Roberts, Documents on the Laws of War, p. .  Dörmann, Elements of War Crimes, supra note , p. .  Cited by W.J. Fenrick, Attacking the Enemy Civilian as a Punishable Offense, Duke J. Comp. & Int’l L.  () [hereinafter Fenrick, Attacking the Enemy Civilian].  Oeter, Methods and Means, supra note , p. .  Id.

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end to their vagueness by giving an official explanation of what they understand by the term “overall attack”. The application of the proportionality rule at the strategic level finds some support in the ICTY OTP’s report on the NATO aerial campaign in Kosovo in . In this report, the ICTY OTP, after stating that the proportionality rule must be applied at the operational level, ends up conducting a proportionality analysis at the strategic level insofar as the incidental civilian damage caused by attacks such as the one launched against the SRT in Belgrade is compared with the military advantage anticipated from the achievement of goals as broad as the partial or total disruption of the VJ command, control and communications system. However, the application of the proportionality rule at the strategic level – i.e. against the backdrop of an overall military campaign or even an armed conflict – risks the implicit elimination of the requisite of a proportional use of force in any offensive and defensive combat action (jus in bellum). This may, indeed, end up being the result of equating such a requisite with the lawful resort to armed force in self-defence (jus ad bellum). Furthermore, as shown below, the application of the proportionality rule at the strategic level notably increases the volume of lawful incidental civilian damage and decreases the protection granted to civilian persons and civilian objects by the principle of distinction. It is precisely for this reason that the ICRC rejects the idea that, no matter the gravity of the incidental civilian damage caused, such damage could be acceptable if the anticipated military advantage is of great importance. According to the ICRC, this idea is contrary to art. ()(b) AP I. On the other hand, the application of the proportionality rule at the strategic level is likely to limit its personal scope of application to the highest military commanders insofar as they are the only persons who are fully aware of the political and military goals of the overall military campaign. Moreover, although some could affirm the suitability of the proportionality analysis at the strategic level for short term aerial campaigns (such as the one carried out by NATO in Kosovo in the spring of ), the same can by no means be stated in relation to land campaigns (such as the conflict in the former SFRY in the s or the second Gulf War in ) which have a broader territorial and temporal scope and in which the number of soldiers deployed, the attacks launched and the weaponry and ammunition used is far greater. In any event – at least in relation to the criminalization of the serious violations of the proportionality rule in the RS – the use of the adjectives “concrete  Dörmann, Elements of War Crimes, supra note , p. .  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  Concurring Dörmann, Elements of War Crimes, supra note , p. .  Sandoz, Commentary, supra note , p. .

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and direct” in art. ()(b)(iv) RS (which also qualify the noun “military advantage”) does not seem to be compatible with a proportionality analysis at the strategic level. The majority of the limited case law existing to date has embraced the proportionality analysis at the operational level. In the Shimoda case, the military advantage anticipated from the launch of the atomic bomb against Hiroshima and Nagasaki was not assessed in light of the overall ongoing armed conflict in the Pacific. As a result, the respondant’s argument that the ultimate goal of the US was to force the surrender of Japan in order to avoid the hundreds of thousands of US and Japanese casualties that could be expected from short-range combat for the control of the main islands of the Japanese archipelago was dismissed. The proportionality analysis at the operational level has also been the position most often embraced by the ICTY’s case law. Indeed, although the Trial Chamber in the Galić case and the ICTY OTP in its report on NATO’s aerial campaign in Kosovo assessed proportionality at the tactical and strategic levels, the Trial Chambers in the Blaškić and Strugar cases analyzed proportionality at the operational level. As seen above, the Trial Chamber in the Blaškić case assessed the military advantage that the HVO could expect from the attack against any of the Bosnian-Muslim villages located in the Lašva Valley. In so doing, the Blaškić Chamber only took into consideration the specific attack against any such villages. The Chamber implicitly rejected carrying out the proportionality analysis at the tactical level because it would have entailed focusing the analysis on the damage caused to specific mosques or schools. Likewise, the Chamber implicitly rejected undertaking the proportionality analysis at the strategic level in light of the broader ongoing military operations in the Lašva Valley in mid-April  and the broader overall armed conflict in Central Bosnia. The Chamber’s conclusion that the attack against Donja Večeriska before the withdrawal of the ABiH was lawful because it was directed against a military  Dörmann, Elements of War Crimes, supra note , p. .  B.L. Brown, The Proportionality Principle in the Humanitarian Law of Warfare: Recent Efforts at Codification,  Cornell Int’l L.J  () [hereinafter Brown, The Proportionality Principle], has stated that , US casualties were expected from the final assault to the Japanese islands.  The Shimoda case, supra note , pp.  et seq.  The Kordić Judgement, supra note , combined the analysis of specific HVO attacks against certain localities, such as Busovača in January  and Stupni Do on  October , with the analysis of the overall HVO campaign in the Lasva Valley in mid-April . This campaign included the attacks against the villages of Vitez, Stari Vitez, Donja Večeriska, Ahmići, Nadioci, Pirići and Šantići on  April . As a result,  Bosnian-Muslims were killed, , Bosnian-Muslims were forcibly transferred – , of which were detained for several days before being forcibly transferred – and  buildings were destroyed, including three mosques, two Muslim seminars and two schools (Kordić Judgement, ¶ -, - and -).

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objective and did not cause excessive incidental civilian damage is particularly revealing on this point. The Trial Chamber in the Strugar case did not undertake the proportionality analysis of the JNA’s shelling of the old town of Dubrovnik (which was recognized as a World Heritage site by UNESCO in ) during the operation aimed at capturing the fortress on Mount Srdj – the highest location around Dubrovnik – on  December . According to the Trial Chamber, any military objective that the JNA could have shelled that day in the city of Dubrovnik was located too far from the old town. Thus, the damage caused to the old town could not be counted as incidental civilian damage resulting from an attack against a military objective. However, the Trial Judgement contains enough elements to state that, had it been necessary, the Chamber would have undertaken the proportionality analysis at the operational level by comparing the overall damage caused to the old town with the military advantage anticipated from the destruction of the Croatian artillery which was shelling the JNA’s infantry on Mount Srdj. Firstly, the Chamber – in rejecting the Defence’s submissions that the JNA had attacked the old town because it believed that the Croatian artillery shelling the JNA’s infantry on Mount Srdj was located in the old town – affirmed that, even if the Croatian artillery had been located in the old town and had constituted a real threat to the JNA’s forces on Mount Srdj, one could only conclude that the large-scale damage caused to the old town during the ten and a half hours of shelling was excessive in relation to the threat. Secondly, the Chamber, in spite of describing in detail the overall context in which the  December  attack took place, did not consider this context to be a relevant factor in deciding the lawfulness of the  December  attack. For the Trial Chamber, the attack against Mount Srdj on  December  took place in the context of the JNA’s naval and land blockade of Dubrovnik which  As seen above, the attack on Donja Večeriska started on  April  at around : hours by the HVO shelling of the village from the HVO artillery positioned in the SPS factory. The Bosnian-Muslim territorial defence was comprised of  to  members. They resisted the HVO attack for  hours until they ran out of ammunition and had to withdraw (Blaškić Judgement, supra note , ¶ - and Kordić Judgement, supra note , ¶ ). Although several civilians were killed and several houses were burned down during the HVO attack on Donja Večeriska, Blaškić Judgement, supra note , ¶  concluded that no war crime had been committed before the withdrawal of the members of Bosnian-Muslim territorial defence. According to the Chamber (¶ ), before this withdrawal, a combat situation had taken place in Donja Večeriska and it was not possible to conclude that the incidental civilian damage resulting from the HVO attack against the positions of the BosnianMuslim territorial defence was excessive.  Strugar Judgement, supra note , ¶  and .  Id. at ¶ .  Id. at ¶ -.

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began in September . The city of Dubrovnik had been shelled several times in October , although the old town was only hit for the first time during the attack launched on  and  October  against the areas of Lapad, Gruž, Ploče and the old town. Moreover, in November , the city of Dubrovnik, including the old town, had been shelled again, and, by December , the JNA had made important gains in the area surrounding Dubrovnik, enabling the JNA to tighten its blockade against Dubrovnik. The Chamber also highlighted the fact that a meeting had taken place between JNA Admiral Jokić and several Croatian ministers on  December  in order to negotiate a cease-fire, and eventually to put an end to the blockade of Dubrovnik. According to the Chamber, given the progress made, it was expected that a cease-fire agreement would be concluded the following morning. This cease-fire was expected to enter into force by noon on  December . Indeed, in the Chamber’s view, the attack against the fortress on Mount Srdj, which ultimately triggered the shelling of the old town, was planned in the evening of  December in order to capture the fortress before noon the next morning. As a consequence, had the Chamber been required to undertake a proportionality analysis of the  December  attack by the JNA, it is very likely that it would have rejected carrying it out at the strategic level, i.e. at the level of the JNA’s overall campaign against Dubrovnik. Moreover, given the Chamber’s overall assessment of the damage caused to the old town during the JNA shelling on  December , it is also likely that the Chamber would have rejected applying the proportionality rule at the tactical level in relation to any of the buildings damaged during the JNA attack.  According to the Strugar Judgement, ¶ , the naval and land blockade of Dubrovnik was the result of an order issued by the JNA General Staff on  September  that read as follows: “Using most of the forces, to go on the attack from the current sectors, deploying main forces on these axes: Ljubinje – Zavala – Slano; Ljubovo village – Ivanica – Cibaci and Grab – Dubravka – Molunat; while auxiliary forces will secure features and the Mostar airport and in the Neretva valley with the following objective: with air, artillery and naval support, operating simultaneously and forcefully to defeat forces along the attack axes and reaching the coastline, to cut off the Adriatic highway at several points along the Slano – Prevlaka section, to seal off Dubrovnik, Čilipi Airport and Prevlaka from the land and sea, and to prevent enemy forces from manoeuvring; then, providing support from the direction of Ploče, to engage in destroying and disarming the surrounded enemy forces, and to be in a state of readiness for further offensive operations in western Herzegovina”.  Id. at ¶ .  Id. at ¶ .  Id. at ¶ .  Id. at ¶ .  Id. at ¶  and .  Id. at ¶ , ,  and .

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Chapter VI VI.. The Proportionality Analysis at the Tactical Level

Although, as seen above, there are a number of arguments which militate against undertaking the proportionality analysis at the tactical level (incident-by-incident), some legal writers continue to suggest the need for the proportionality rule to be applied in relation to any of the incidents of which an attack is comprised. For Benvenuti, limiting the proportionality analysis to the specific circumstances of a given incident is the only possible way to determine whether all precautionary measures have been taken and whether, according to international humanitarian law, the use of armed force in such an incident is lawful. This position has also been embraced by, inter alia, Americas Watch in its analysis of the destruction of El Chorrillo neighbourhood in the City of Panama during Operation Just Cause in , Human Rights Watch in its analysis of the incidental civilian damage caused during Operation Desert Storm in  and Amnesty International in its analysis of the Israeli operation in Lebanon in  known as the Grapes of Wrath. More recently, this position has been embraced by Eric David who, on the basis of a proportionality analysis at the tactical level, has concluded that the destruction of the SRT in Belgrade by NATO was clearly a war crime. Furthermore, numerous critics of NATO’s aerial campaign in Kosovo in  have favoured the proportionality analysis at the tactical level (incidentby-incident) and have stated that the broader goals of the overall campaign or part thereof should not be taken into account when applying the proportionality rule. The proportionality analysis at the tactical level finds some support in the vagueness of the term “attack” in arts.  and ()(b) AP I. Besides, the ICRC commentary, although emphasizing the application of the proportionality rule at the operational level, leaves the door open for its application at the tactical level. Furthermore, some legal writers have pointed out that during the diplomatic conference that led to the approval of the Additional Protocols, the major P. Benvenuti, The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia,  Eur. J. of Int’l L.  ().  HRW, Needless Deaths, supra note ; Amnesty International, Israel/Lebanon: Unlawful Killings during Operation ‘Grapes of Wrath’ ().  E. David, Respect for the Principle of Distinction in the Kosovo War,  Y.B. Int’l Humanitarian L.  ().  See, for instance, T. Voon, Pointing the Finger: Civilian Casualties of NATO Bombing in the Kosovo Conflict,  Am. U. Int’l L. Rev.  et seq (); Human Rights Watch, Civilian Deaths in the NATO Air Campaign (Feb. ); Amnesty Internacional, Article . Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force ().  Sandoz, Commentary, supra note , p. .

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ity of delegates favoured the application of the proportionality rule at the tactical level. The best argument in support of this position can be found in the recent Trial Judgement in the Galić case, which has recently been upheld by the Appeal Chamber. There, the Trial Chamber applied the proportionality rule in relation to  different incidents which took place during the siege of Sarajevo between  and . According to the Chamber, the proportionality rule must be applied at the tactical level even in cases in which the military campaign is not a short-term campaign with limited targets, such as the US bombardment of selected military targets in Tripoli and Benghazi on  April  or the attack against what turned out to be a pharmaceutical plant in Khartoum in August . In the author’s view, the fact that the position favouring the proportionality analysis at the tactical level has gained support in recent years does not mean that international humanitarian law currently requires application of the proportionality rule at this level. On the contrary, for the reasons mentioned in the previous subsection, it can be stated that international humanitarian law currently requires application of the proportionality rule at the operational level. The use of the expression “concrete and direct overall military advantage” in art. ()(b)(iv) RS, which at the very least sets the threshold for the application of the proportionality rule at the operational level, reinforces this conclusion. This reflects the belief expressed by many that, in modern armed conflicts, isolated actions of specific military units do not constitute goals in and of themselves and thus they must be assessed in light of their operational context. Nevertheless, if the evolution experienced in the last few years favouring the application of the proportionality rule at the tactical level continues, a time may come when the tactical level will become the preferred level at which to assess proportionality. However, even in this last scenario, and considering that international humanitarian law is only a tool for the interpretation of the definition of the crimes included in the RS when neither the Statute nor its complementary instruments can fulfil that role, in the author’s view, it will be necessary to amend art. ()(b)(iv) RS in order for the ICC’s case law to follow this new tend. In any event, in order to better illustrate the special features of the proportionality analysis at the tactical level, it is helpful to briefly examine how this  Brown, The Proportionality Principle, supra note , pp. -.  The Trial Chamber’s approach was endorsed by the Galić Appeal, supra note , ¶ . There, the Appeal Chamber underscored that it was not accurate to say that the Trial Chamber did not properly consider the principles of distinction and the proportionality rule because the Trial Chamber carefully analysed whether the civilian victims were the unintended victims of combat in relation to each of the scheduled sniping and shelling incidents.  Oeter, Methods and Means, supra note , p. .  Art. () RS.

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analysis has been carried out by the Trial Chamber in the Galić case with regard to the SRK attack on  June  against a parking lot located in the neighbourhood of Dobrinja in Sarajevo where a football tournament was being played. VI...

The  June  SRK Attack against a Parking Lot Located in the Area of Dobrinja in Sarajevo where a Football Tournament Was Underway

On  June , some residents of the neighbourhood of Dobrinja in Sarajevo, which was surrounded by SRK troops, decided to organize a football tournament. They chose as football field a parking lot facing the Mohmilo Hill on one side and surrounded by six-story buildings on the other three sides. The parking lot was not visible from the SRK positions which were located approximately  metres away. As it was a sunny day, approximately  people, including women and children, attended the football tournament. The first game started at : hours whereas the second game started an hour later. At approximately : hours, the first mortar projectile hit the parking lot next to the penalty sign, where numerous players were standing because a penalty was about to be kicked. A few seconds later, a second projectile hit the same location. As a result, at least ten people died and approximately another  were injured. The Defence claimed that the projectiles had come from ABiH positions. However, the Majority of the Chamber accepted the report made by UNPROFOR’s representative after his visit to the scene of the crime. According to the Majority, the conclusions reached in this report were not inconsistent with the conclusions reached in two additional reports made by other investigators. The report stated that the depth, width and shape of the marks left by the impact could have only been made by mortar shells of at least  mm. Furthermore, the report concluded that the mortar shells had been shot from a direction of  to  degrees. The report also explained that, as the projectiles dropped at a minimum angle of ’ degrees, the shortest distance from which they could have been shot was approximately  metres away from the point of impact. Therefore, according to the report, the mortar shells could only have been launched from SRK-controlled territory. The Majority further relied on testimony regarding the frequency with which the neighbourhood of Dobrinja was shelled by the SRK. Although the Majority found that a nuclear shelter was located within  metres from the parking lot where the two mortar shells landed, it pointed out     

Galić Judgement, supra note , ¶ . Id. at ¶ -. Id. at ¶ . Id. at ¶ . Id. at ¶ .

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that there was conflicting testimony concerning the use of this shelter. In any event, the Majority found that, regardless of whether the nuclear shelter was being used for military purposes, it was unreasonable to believe that the shelter was targeted because a mortar attack cannot cause substantial damage to this kind of structure. According to the Majority, this conclusion was reinforced by the fact that both mortar shells landed within a few seconds of each other and hit the same place. The second projectile, thus, did not hit any closer to the nuclear shelter. The Majority also acknowledged the existence of conflicting testimony concerning the use of the trenches located in the vicinity of the parking lot by ABiH members. According to the Majority, although one could not rule out the use of the trenches by ABiH members, the fact that both mortar shells landed almost simultaneously and that the second projectile hit no closer to the trenches than the first one, supported the conclusion that the trenches were not the target of the attack. In the Majority’s opinion, there was no other military objective around the area where the two mortar projectiles landed. On the basis of a report made by the commander of the Fifth Dobrinja Motorized Brigade – according to which six ABiH soldiers and five civilians were killed and  ABiH soldiers and  civilians were injured in the attack against the parking lot – the Majority acknowledged the presence of ABiH soldiers in the parking lot when the shelling took place. Nevertheless, the Majority found that such ABiH soldiers were on leave and were engaged in civilian activities such as playing football. The Defence also claimed that the chosen football field was very close to the front line – in a place where nobody would expect civilians to get together. Thus, after hearing the shouts and other noise, SKR troops could have presumed that the ABiH was preparing an attack after hearing. However, the Majority found that the shelling took place long after the football tournament had commenced. Furthermore, it was unlikely for the SRK to think that the ABiH was preparing an infantry attack because, had that been the case, the ABiH would have tried to be as discreet as possible in order to benefit from the element of surprise. The Majority underscored the lack of evidence showing that the SRK had been informed in advance of the football tournament. Therefore, had the SRK shelled a residential area without having taken into account the mandatory precautionary measures to verify the military character of the target, the SRK attack would have been unlawful. On the other hand, had the SRK been aware of the     

Id. at ¶ . Id. at ¶ . Id. at ¶ . Id. at ¶ . Id.

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the participation of ABiH soldiers in the tournament, the attack also would have been unlawful because, in spite of the presence of a significant number of ABiH soldiers, it was clearly foreseeable that an attack against  persons, including women and children, would cause excessive incidental civilian damage in relation to the anticipated military advantage. As a consequence, in light of the Majority’s findings on the source and direction of the shelling, and considering how often the neighbourhood of Dobrinja was shelled from SRK positions, the Majority concluded that the incident under analysis constituted an indiscriminate attack against a civilian area. In his Separate and Partially Dissenting Opinion, Judge Nieto-Navia explained that, although he agreed with the Majority in that two mortar projectiles had hit a parking lot in Dobrinja on  July , the ICTY OTP could not prove beyond a reasonable doubt that this incident was the result of a deliberate or indiscriminate SRK attack against the civilian persons present in the parking at the relevant time. Even assuming that the shelling originated from SRKcontrolled territory, it was undeniable that a significant number of ABiH soldiers were in or around the parking lot when the shelling took place. According to Judge Nieto-Navia, the Majority had conceded that: (i) ABiH soldiers – some on leave and some in uniform – were in the parking lot at the relevant time; (ii) half of the spectators of the football tournament were ABiH soldiers and (iii) the majority of persons who were killed or injured were ABiH soldiers. Furthermore, for Judge Nieto-Navia, the Majority had accepted the existence of a system of trenches in the vicinity of the parking lot which could have explained why that area of Dobrinja was often shelled from SRK positions. Finally, Judge Nieto-Navia highlighted that the evidence also showed the existence of a nuclear shelter approximately  metres away from the parking lot where the two mortar shells landed which, according to some witnesses, was being used by the ABiH. VI.. The Proportionality Analysis at the Strategic Level. Special Reference to the ICTY OTP’s Report on the NATO Campaign in Kosovo in  For the US military, the expected incidental civilian damage and the anticipated military advantage must be analyzed in light of the strategic needs of the relevant  Id. at ¶ .  Id.  Separate and Partially Dissenting Opinion of Judge Nieto-Navia in the Galić Judgement, ¶ .  Id. at ¶ .  Id.  Id.  Id.

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armed conflict. This means that any incidental civilian damage caused during all military operations carried out in the course of a military campaign – or even in the course of an overall armed conflict – should be compared with the military advantage anticipated from the successful completion of the overall campaign or armed conflict. It is easy to understand how the volume of incidental civilian damage which is not manifestly excessive is far higher when it is compared with the strategic military advantage anticipated from the destruction of the VJ command, control and communications system – or with the political and military advantage anticipated from a regime change in Iraq. Logically, at the same time that the volume of incidental civilian damage which is considered acceptable increases, the level of protection offered to civilian persons and civilian objects by the proportionality rule decreases. This situation is perfectly reflected in the ICTY OTP report on the NATO aerial campaign in Kosovo in . As seen above, when analyzing the bombardment of the SRT in Belgrade, the ICTY OTP proffered the following reasons to support its conclusion that the deaths and injuries caused by it, although unfortunate, did not amount to excessive incidental civilian damage. Firstly, the ICTY OTP acknowledged that a proportionality analysis at the tactical level would have likely led to a very different result because the destruction of any of the NATO multiple targets – the SRT was just one of them – during the NATO attack against the VJ command, control and communications system would not have affected the overall system and, thus, would have offered a very limited military advantage. Secondly, the ICTY OTP considered that the proper application of the proportionality rule required for the NATO bombardment of the SRT to be analyzed not as an isolated incident but as part of NATO’s overall attack against the VJ command, control and communications system. Thirdly, according to the ICTY OTP, the overall incidental civilian damage caused by the bombardment of all NATO military targets, (including the SRT) which were part of the overall attack, did not appear to be excessive in relation to the key military advantage anticipated from the total or partial disruption of the network of communications on which the VJ command and control system was based.  W.H. Parks, Rolling Thunder and the Law of War,  Air U. Rev.  () [hereinafter Parks, Rolling Thunder]. See also Parks, Air War, supra note , p. ; Carnahan, Linebacker II, supra note , pp. -.  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶  and .  Id. at ¶ .  Id.  Id.

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The numerous references made by the ICTY OTP to the term “attack” could give the impression that the proportionality rule was applied at the operational level. Nevertheless, it is difficult to qualify as a mere attack the bombardment of hundreds of targets during an important part of the armed conflict with a view to disrupting the single most important element for the defence of a territory: the internal coordination of the defending armed forces which is ensured through their system of command, control and communications. Therefore, in the author’s view, the ICTY OTP applied the term “attack” to what in reality was a military campaign and, thus, conducted its proportionality analysis at the strategic level. This conclusion is reinforced by the fact that the ICTY OTP only undertook a proportionality analysis of the bombardment of specific targets – such the SRT in Belgrade – after having concluded that the overall incidental civilian damage caused by NATO’s overall aerial campaign in Kosovo could not be considered excessive. In this regard, the ICTY OTP affirmed that, according to NATO figures, NATO aircrafts flew , sorties (including , strike sorties) and , air munitions were released during the armed conflict in Kosovo in the spring of . Furthermore, although the ICTY OTP acknowledged that some NATO targets were dual-use objects (such as some infrastructures used by the military industry, some ministries, oil refineries and the press), it concluded that, on the basis of the incidents analyzed, NATO had only attacked lawful military objectives. Moreover, the ICTY OTP underscored that the total number of incidental civilian deaths caused by NATO’s aerial operations was about . As a consequence, according to the ICTY OTP, it did not appear that NATO had conducted its aerial campaign in Kosovo with the purpose of causing, directly or incidentally, substantial civilian damage. It is surprising that while the ICTY OTP’s report on the NATO aerial campaign in Kosovo undertook the proportionality analysis at the strategic level, the Trial Chamber in the Galić case applied the proportionality rule at the tactical level. In this regard, it is important to underscore that the main problems faced by the ICTY OTP in the Galić case were the inexistence of orders directly issued by the accused (General Galić who, at the time of the indictment, was the commanderin-chief of the SRK) to attack the civilian population of Sarajevo and the practical impossibility of introducing evidence concerning every mortar and sniper attack launched by the SRK troops deployed around Sarajevo (approximately , soldiers) during the -month siege of the city referred to in the indictment. In order to avoid this problem, the ICTY OTP tried to prove the existence of a campaign of deliberate attacks against the civilian population of Sarajevo to  Id. at ¶ .  Id. at ¶ .  Id. at ¶ .

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terrorize it by: (i) introducing evidence of  sniper incidents and five shelling incidents, which were used as examples of the overall campaign and (ii) producing additional evidence of a general character – such as statistics, demographic studies and reports of international staff serving in Sarajevo at that time – about the -month siege of Sarajevo. In this context, the Majority applied the proportionality rule at the tactical level with regard to the  specific incidents included in the annex to the indictment. It rejected undertaking a proportionality analysis at the strategic level by comparing the overall incidental civilian damage caused during the siege of Sarajevo with the overall military advantage anticipated by the SRK from the fall of Sarajevo. Alternatively, Judge Nieto-Navia, in his is Separate and Partially Dissenting Opinion, expressed his surprise at the Majority’s lack of effort to quantify which percentage of the overall casualties and damage caused during the siege of Sarajevo could be considered as incidental civilian damage derived from SRK attacks against military objectives – particularly in light of the presence of , ABiH soldiers inside the city.  The Majority of the Trial Chamber in the Galić case concluded for the reasons set out below that, during the siege of Sarajevo between  and , the SRK deliberately conducted a shelling and sniping campaign against the civilian population of Sarajevo with an aim to terrorizing it. Firstly, a number of witnesses who resided in Sarajevo at that time testified that no civilian activity or ABiH-controlled area had been protected against SRK attacks. In this regard, the Majority pointed out that the incidents under analysis showed that civilians were killed or wounded while in ambulances, buildings, trams or buses, attending burials, returning home by car or bike, taking care of their gardens or retreiving water. Secondly, the urban topography of Sarajevo, which included several hills and tall buildings, facilitated shooting at civilians in the streets. Thirdly, in spite of the measures taken by the civilian population of Sarajevo to decrease the level of risk (such as closing down schools, leaving home as little as possible and never during day time and building up barricades as protection from SRK snipers), there was no area in the city where civilians could feel safe. Fourthly, international staff in Sarajevo testified that civilians were continuously the object of SRK shelling and sniping attacks. Fifthly, the Majority acknowledged that both international staff and Bosnian civilians had had difficulties in identifying the sources of fire and that there was evidence indicating that the ABiH had some times attacked its own civilian population in Sarajevo in order to call attention to the international community the negative effects of the SRK siege. However, according to the Majority, this only accounted for a small part of the attacks against civilians in Sarajevo. Likewise, for the Majority, lost projectiles and errors as to the civilian status of the attacked persons could only account for a small part of the civilian casualties. Sixthly, the Majority considered that SRK shelling and sniping attacks against ABiH-controlled areas followed a temporal pattern. Seventhly, for the Majority, in a static combat situation, such as the one in Sarajevo between  and , systematic and widespread attacks against civilians could not offer the attacking party any military advantage. Finally, according to the Majority, the kind of activities victims were carrying out when they were attacked, the manner in which the attacks took place, the temporal framework of the attacks and the duration of the attacks showed that

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In any event, it is important to highlight that in recent years even the US military has occasionally undertaken the proportionality analysis at a level other than the strategic one. In this regard, the US State Department’s report on the compliance by the US military with international humanitarian law in the first Gulf War stated that, had the presence of civilian persons in the Al-Firdus bunker been known at the relevant time, the attack could have been delayed until such civilians would have been evacuated. Particularly telling is the directive issued by the commander of the aerial component of the integrated NATO forces after the attack against the Djakovica Convoy on  April  in which approximately  civilians were killed and the main goal of the campaign was to terrorize the civilian population by preventing civilians from feeling safe at any time or in any area of the city (Galić Judgement, supra note , ¶  and ). In his Separate and Partially Dissenting opinion, Judge Nieto-Navia pointed out that , persons lived in Sarajevo between  and , and that , of them were ABiH soldiers. Besides, the three demographic experts of the Prosecution had agreed in that, during the -month siege referred to in the indictment, at least , civilians had been killed and , more had been wounded. However, according to Judge Nieto-Navia, if an army of the competence and professionalism attributed to the SRK by the Prosecution had actually carried out a -month campaign against the civilian population of Sarajevo, one would have expected the number of casualties to be far greater – particularly considering that the Prosecution had not distinguished between the civilian casualties resulting from the SRK’s deliberate attacks against civilians and the civilian casualties incidental to the SRK’s attacks against military objectives. For Judge Nieto-Navia, this should have been taken into account along with a number of additional factors such as: (i) the gradual decrease in the number of monthly civilian casualties; (ii) the SRK’s voluntary transfer of control over the airport; (iii) the SRK’s authorisation to set out “blue routes” to distribute humanitarian assistance in Sarajevo; (iv) the anti-sniping agreements concluded by the SRK; (v) the approval by the SRK for the establishment of a Total Exclusion Zone and (vi) the two agreements concluded by the SRK – and the two additional declarations issued by the SRK – reinstating the SRK compromise to respect international humanitarian law. For all these reasons, Judge Nieto-Navia concluded that the evidence presented at trial was not sufficient to prove beyond a reasonable doubt that the SRK deliberately conducted a -month artillery and sniping campaign against the civilian population of Sarajevo in order to terrorize it (Separate and Partially Dissenting Opinion of Judge Nieto-Navia in the Galić Judgement, ¶ -).  See US, Report to Congress on the Conduct of the Persian Gulf War, supra note , p. . See also Parks, Rolling Thunder, supra note , pp.  et seq.  On  April , NATO aircrafts flying at an elevation of approximately , metres in order to avoid the VJ antiaircraft batteries attacked two convoys that were in the Djakovica-Prizren road, killing between  and  civilians and injuring another . The reconstruction of the events shows that at approximately : hours the pilot of a NATO F- aircraft saw a convoy comprised of three dark green vehicles, which appeared to transport soldiers, in the vicinity of a house which had just been set on fire. As a consequence, the pilot believed that the convoy was transporting MUP and VJ forces that were burning down houses on their way to Djakovica. At approximately : hours, the NATO F- aircraft bombed the vehicle that was

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Practical Issues concerning the Application of the Proportionality Rule

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another  were injured. According to this directive, when military vehicles and civilians were part of the same convoy, the former should not be attacked in order to avoid any incidental civilian damage to the latter. Some have pointed out that the increasing application of the proportionality rule at the operational level by the US military is not the result of a different understanding of the duties imposed by international humanitarian law on the parties to an armed conflict, but rather is the result of political motivations – whether they are of a political-strategic nature, such as the reconstruction of Iraq after the fall of Saddam Hussein, or the result of pressure put by public opinion leading the convoy. Subsequently, the pilot transmitted a new report on the threat posed by the convoy as well as the coordinates of the target and returned to the airbase to refuel. At approximately : hours, a second F- aircraft arrived to the area and the pilot confirmed with the naked eye that the target was comprised of large vehicles which were located near a building. Then, at : hours, he dropped a GBU- bomb. Meanwhile, a third F- aircraft identified a large convoy in one of the main roads to the Southeast of Djakovica and proceeded to verify the target. The pilot identified the target with the naked eye as a VJ convoy. He then dropped a number of bombs at : hours. Within the following  minutes, the same aircraft destroyed an additional vehicle, whereas two Jaguar aircraft dropped an additional GBU- bomb which did not hit its intended target. Between : and : hours, the first F- aircraft dropped three more bombs, of which at least one missed its target. After the incident, NATO sources claimed that it had identified MUP and VJ forces while these forces were carrying out ethnic cleaning operations in that area in previous days. They also claimed that the road between Prizren and Djakovica was an important supply route for the MUP and the VJ. Furthermore, according to NATO sources, the pilots had identified their targets with the naked eye and from their positions (at an elevation of , metres) the targets appeared to be military vehicles because of their size, form, colour, distance between themselves, rapid speed and manner of circulating. Moreover, after the Djakovica incident, the commander of the aerial component of the integrated NATO forces issued a directive by which any attack against convoys comprised of military and civilian vehicles was forbidden so as to avoid causing any incidental damage to civilian vehicles (ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ -). The ICTY OTP concluded that the NATO aircraft had not deliberately attacked civilians. According to the ICTY OTP, it is difficult for any aircraft crew which flies at hundreds of miles per hour and at an elevation of more than , metres to distinguish between the military and the civilian vehicles of a convoy – particularly in the case of F- aircraft crews which are comprised of only one person. Furthermore, for the ICTY OTP, the crews suspended the attack as soon as they realized that they were targeting civilians. Although flying over the maximum reach of the enemy’s anti-aircraft batteries is not unlawful per se, the ICTY OTP pointed out that the crews would have undoubtedly been in a better position to identify the targets had they been flying lower. However, for the ICTY OTP, the crew members or their superiors had not acted in such a negligent manner in the adoption of the mandatory precautionary measures provided for in art.  AP I so as to be criminally liable (ICTY OTP’s Report on the NATO campaign in Kosovo in , ¶ -).  ICTY OTP’s Report on the NATO campaign in Kosovo in , ¶ .

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

Chapter VI

and the press as a result of their belief that only a lower level of incidental civilian damage is acceptable. For these legal writers, this would be the only reason why the US State Department has declared that the proportionality rule can be applied in relation to both specific military targets and an overall military campaign. In other words, the exclusion of some military objectives from the target list due to the excessive incidental civilian damage that an attack was expected to cause in relation to the military advantage anticipated from such an attack has been done for reasons other than complying with a legal obligation under international humanitarian law. However, in the author’s view, it is not possible to deny the legal relevance of the fact that, since the end of the Vietnam war, the US military – which, in addition to not having ratified the AP I, is the main supporter of undertaking the proportionality analysis at the strategic level – has been progressively adjusting its practice to apply the proportionality rule at the operational level. The legal relevance of this latest practice of the US military is reinforced by the prohibition to extensively interpret the provisions of international humanitarian law if doing so undermines its ultimate goal, which consists of limiting the suffering and damage caused by armed conflicts (particularly to those persons who are not combatants and do not take active part in the hostilities). In any event, as far as the RS is concerned, the use of the adjectives “concrete and direct” as qualifiers of the noun “military advantage” in ()(b)(iv) RS does not seem to be compatible with the application of the proportionality rule at the strategic level.

 US, Report to Congress on the Conduct of the Persian Gulf War, supra note , p. .  As Sandoz, Commentary, supra note , p. , has pointed out: “The idea has also been put forward that even if they are very high, civilian losses and damages may be justified if the military advantage at stake is of great importance. This idea is contrary to the fundamental rules of the Protocol; in particular it conflicts with Article  (Basic rule) and with paragraphs  and  of present Article . The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive”.

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Chapter VII Omissions. Special Reference to the Responsibility of Military Commanders

Omissions are one fact of human conduct and, thus, can give rise to individual criminal responsibility. This is why criminal law is not only comprised of norms which prohibit certain actions, but it is also comprised of norms which mandate performing certain actions – for instance, preventing subordinates from launching attacks against civilians or civilian objects or disproportionate attacks, or punishing subordinates for having launched such attacks. Such norms are violated by the failure to undertake the prescribed actions, which may bring about a socially harmful result. Nevertheless, for an omission to give rise to individual criminal liability, it is necessary that the person who fails to carry out the required action is in a position that enables him to undertake such action. Furthermore, it is necessary that such a person has a duty to carry out the required action and, thus, the action is expected from him. In criminal law, there are two types of offences of omission. On the one hand, offences of mere omission are those in which criminal liability arises from a breach of the duty to undertake a certain action – for instance, the duty to assist a person whose life is at risk. The structure of these offences is similar to that of the offences of mere action – as opposed to the offences causing a result – in which criminal liability arises from carrying out the forbidden action. In the offences of mere omission, criminal responsibility arises from omitting an expected action in a situation in which the duty to undertake such an action has been triggered. On the other hand, in the offences of omission causing a result, an omission only gives rise to individual criminal responsibility if it is causally linked to a for-

 G.P. Fletcher, Rethinking Criminal Law  (Oxford University Press ) [hereinafter Fletcher, Rethinking Criminal Law]; P. Gillies, Criminal Law, LBC Information Services - (th ed. ) [hereinafter Gillies, Criminal Law].  F. Muñoz Conde & M. García Arán, Derecho Penal: Parte General  (rd ed., Tirant lo Blanch ) [hereinafter Muñoz Conde, Derecho Penal].  J.C. Smith, Smith & Hogan: Criminal Law  (th ed., LexisNexis Butterworths ) [hereinafter Smith, Smith & Hogan: Criminal Law]. .  Muñoz Conde, Derecho Penal, supra note , pp. -.

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Chapter VII

bidden result. In this second type of offences of omission, one can distinguish between those cases in which the expected action and the forbidden result are expressly referred to in the relevant penal norm – such as the norm mandating a record keeper to take all action within his power to prevent third parties from accessing confidential documents – and those other cases (traditionally referred to as commission by omission) in which the expected action and the forbidden result are not mentioned by the relevant penal norm – for instance, the norm criminalizing the killing of a person does not expressly refer to a specific scenario in which a person causes the death of a newborn by not feeding him. In this last group of cases, criminal liability only arises if: (i) the person who failed to take action had a duty to act in order to prevent the forbidden result (for instance, the death of the newborn) because he was the guarantor of the societal value undermined by the result and (ii) there is a causal link between the omission and the forbidden result such that the expected action would have likely avoided the forbidden result. The RS regulates omissions in art.  RS where it deals with the criminal liability of military commanders and other superiors for war crimes actually committed by their subordinates, including the launch of attacks against civilians or civilian objects and disproportionate attacks. Military commanders are only criminally liable if there is a superior-subordinate relationship between them and the actual perpetrators of the crimes. Regardless of the specific term used to describe this superior-subordinate relationship (be it “command” or “authority”), such relationship is based on the effective control that the military commander must have over the actual perpetrators of an unlawful attack. The question arises as to the content of the notion of effective control and, in particular, as to whether this notion requires operational control (power to prevent), disciplinary control (power to punish) or both operational and disciplinary control. Furthermore, the question arises as to the level of operational and/ or disciplinary control required (total or partial) and the criteria to distinguish it from a mere ability to influence the behaviour of the actual perpetrators of an unlawful attack. Given the lack of definition of the notion of effective control in the RS, the case law of the Ad hoc Tribunals becomes a useful tool for its interpretation. The  Smith, Smith & Hogan: Criminal Law, supra note , p. .  Fletcher, Rethinking Criminal Law, supra note , pp.  et seq. See particularly the arguments in favour and against the notion of commission by omission at pp. .  J. Silva Sánchez, El Nuevo Código Penal: Cinco Cuestiones Fundamentales  (). Concerning the necessary causal link, see Smith, Smith & Hogan: Criminal Law, supra note , p. .  Art. (a) RS refers to “forces under his or her effective command and control, or effective authority and control”.

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Omissions. Special Reference to the Responsibility of Military Commanders



Appeal Judgements in the Čelebići and Blaškić cases have stated the sufficiency of a partial control of an operational or a disciplinary nature for effective control to exist. As a consequence, the mere power to report to the competent authorities – no matter whether they are military or ordinary prosecutors or investigative judges – the crimes allegedly committed by subordinates has been declared sufficient to affirm the existence of effective control. According to art. (a) RS, military commanders are only liable if they do not comply with their duty to take all necessary and reasonable measures within their power: (i) to prevent their subordinates from launching attacks against civilians or civilian objects or disproportionate attacks and (ii) to punish those subordinates who have launched these kinds of attacks – or to report them to the competent authorities if this is the only measure available to the relevant military commander. Moreover, according to the ICTY’s case law in the Blaškić, Kordić and Stakić cases, military commanders’ breaches of their duty to prevent subordi As it is stated in the Čelebići Appeal, supra note , ¶ : “As long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control”.  As pointed out in the Blaškić Appeal, supra note , ¶ -: “. The Appeals Chamber takes note that the Trial Chamber concurred with the Čelebići Judgement, supra note , which endorsed the view that a superior must have effective control over ‘the persons committing the underlying violations of international humanitarian law’. The Trial Chamber also stated that ‘a commander may incur criminal responsibility for crimes committed by persons who are not formally his (direct) subordinates, insofar as he exercises effective control over them’. Both conclusions of the Trial Chamber fall within the terms of Article () of the Statute, and both are not challenged by the Appellant. . With regard to the position of the Trial Chamber that superior responsibility ‘may entail’ the submission of reports to the competent authorities, the Appeals Chamber deems this to be correct. The Trial Chamber only referred to the action of submitting reports as an example of the exercise of the material ability possessed by a superior. . The Appeals Chamber also notes that the duty of commanders to report to competent authorities is specifically provided for under Article () of Additional Protocol I, and that the duty may also be deduced from the provision of Article () of Additional Protocol I. The Appeals Chamber also notes the Appellant’s argument that to establish that effective control existed at the time of the commission of subordinates’ crimes, proof is required that the accused was not only able to issue orders but that the orders were actually followed. The Appeals Chamber considers that this provides another example of effective control exercised by the commander. The indicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate. The appeal in this regard is therefore rejected”.

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

Chapter VII

nates from launching unlawful attacks cannot be made up for through the adoption of the necessary measures to subsequently punish them. Concerning the legal nature of the military commanders’ criminal liability, the failure to punish subordinates can only constitute, in the author’s view, an offence of mere omission insofar as there is no causal link between the military commanders’ failure to punish and the unlawful attack that has been previously launched by their subordinates. Indeed, a military commander’s duty to punish is only triggered after his subordinates have launched an unlawful attack. Hence, military commanders can only be criminally liable for breaching their duty to punish and not for the unlawful attacks launched by their subordinates. Furthermore, according to the principle of proportionality between the scope of the wrongdoing caused by the failure to punish and punishment, military commanders who fail to punish should receive, in principle, a lower sentence than those imposed on their subordinates for launching an unlawful attack. Nevertheless, the case law of the Ad hoc Tribunals has adopted a different approach insofar as it makes military commanders criminally liable for the unlawful attacks launched by their subordinates. According to the traditional notions of criminal law, this would only be possible in the so-called offences of omission causing a result, where there is a causal link between the military commanders’ failure to act and the forbidden result (the launch of unlawful attacks by their subordinates). Therefore, it is the author’s view that the case law of the Ad hoc Tribunals has created a sort of tertium genus, which is perfectly distinguishable from the traditional categories of offences of mere omission and offences of omission causing a result. However, in the author’s opinion, this tertium genus is, at the very minimum, questionable in light of the requirements of the principle of culpability – and, in particular, in light of the need to determine, to the greatest extent possible, the exact nature of the wrongdoing caused by the military commanders’ failure to punish and to ensure that the severity of punishment is proportional to the wrongdoing. Hence, it will be left to the case law of the ICC to ultimately bring  See Blaškić Judgement, supra note , ¶ ; Kordić Judgement, supra note , ¶  and ; Stakić Judgement, supra note , ¶ .  Fletcher, Rethinking Criminal Law, supra note , pp. - and .  This is the position embraced by art. () of the German Code of Crimes against International Law, which provides as follows: “A military commander or a civilian superior who omits immediately to draw the attention of the agency responsible for the investigation or prosecution of any offence pursuant to this Act to such an offence committed by a subordinate, shall be punished with imprisonment for not more than five years”.  For instance, this approach has been taken inter alia in the dispositive part of the Trial and Appeal Judgements in the Aleksovski, Čelebići, Blaškić, Kordić and Krnojelac cases.  Smith, Smith & Hogan: Criminal Law, supra note , p. .  Fletcher, Rethinking Criminal Law, supra note , pp. - and .

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Omissions. Special Reference to the Responsibility of Military Commanders



some clarity to the legal nature of the military commanders’ breach of their duty to punish subordinates for the launch of unlawful attacks pursuant to art. (a) RS. Art. (a) RS defines the legal nature of military commander’s breach of their duty to take all necessary and reasonable measures within his power to prevent subordinates from launching unlawful attacks as cases of commission by omission. In this regard, art. (a) RS constitutes a sort of general clause of commission by omission of any of the war crimes provided for in art.  RS, including unlawful attacks. As a result of their hierarchical position, military commanders have the duty to take all necessary and reasonable measures to prevent subordinates from undermining those societal values protected by the penal norms criminalizing the launch of attacks against civilians or civilian objects or disproportionate attacks (position of guarantor). Furthermore, art. (a) RS requires the existence of a causal link between the military commander’s failure to prevent and the launch by his subordinates of an unlawful attack by expressly providing that a military commander will be criminally liable for those crimes committed by his subordinates “as a result of his or her failure to exercise control properly” over them. Although the exact content of this causal link is not set out in the RS, it is the author’s view that it should be comprised of the likelihood that those measures within the power of the military commander (expected action) would have prevented his subordinates from launching an unlawful attack. By doing so, the RS overcomes the problems derived from the case law of the Ad hoc Tribunals that defines the military commanders’ failure to prevent as a sort of tertium genus according to which military commanders are made criminally liable for the unlawful attacks launched by their subordinates, although no causal link is required. Finally, it is important to highlight that art. (b) RS includes some special features in cases of non-military superiors. As a result, they are only criminally liable for breaches of their duties to prevent and punish if the unlawful attacks launched by their subordinates constitute “activities that were within the effective responsibility and control of the superior”.

 As the Blaškić Appeal, supra note , ¶  pointed out: “The Appeals Chamber is therefore not persuaded by the Appellant’s submission that the existence of causality link between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes, is an element of command responsibility that requires proof by the Prosecution in all circumstances of a case. Once again, it is more a question of fact to be established on a case by case basis, than a question of law in general”.  See on this matter, W.J. Fenrick, Article . Responsibility of Commanders and Other Superiors, Commentary on the Rome Statute of the International Criminal Court - (O. Triffterer ed., Nomos ) [hereinafter Fenrick, Article ]; K. Ambos, Superior Responsibility, The Rome Statute of the International Criminal Court: A Commentary - (A. Cassese, P. Gaeta, & J.R.W.D Jones eds., Oxford University Press ) [hereinafter Ambos, Superior Responsibility].

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Chapter VIII Preparatory Acts, Attempt and Completion of the Crime

In the iter criminis, understood as the process starting with the adoption of the decision by one or more persons to launch an unlawful attack and continuing until the unlawful attack is completed, one can distinguish between the preparatory acts and the execution stage. The mere adoption of a decision to launch an unlawful attack does not give rise to criminal liability unless such a decision is manifested by conduct that aims at implementing it, although when the decision is taken by a plurality of persons criminal liability may arise at common law from the mere agreement to commit the crime. The expression “preparatory acts” refers to a set of activities that give rise to criminal liability although they take place before the commencement of the execution of the objective elements of the crime (which in principle marks the initiation of the execution stage). The determination of which specific acts undertaken after deciding to commit a crime and before the commencement of the execution stage give rise to criminal liability is a matter of policy and it is closely linked to the safeguard of fundamental freedoms. Unlike national systems where criminal liability arises from undertaking certain preparatory acts (such as conspiracy or inducement) regardless of whether the crimes are finally committed (in some national systems there is a general clause criminalizing certain preparatory acts of any crime, whereas in others only certain preparatory acts of specific crimes are criminalized), according to the RS no criminal responsibility arises from the preparatory acts of any war crime, including unlawful attacks. Although the use of the term “solicits” in art. ()(b) RS could give the impression that criminal responsibility arises from the mere invitation to launch an unlawful attack, regardless of whether the invitee subsequently attempted to  G. Quintero Olivares, Manual de Derecho Penal: Parte General  (rd ed., Aranzadi ) [hereianfter Quintero Olivares, Manual de Derecho Penal].  Gillies, Criminal Law, supra note , p. .  Quintero Olivares, Manual de Derecho Penal, supra note , p. .  See for instance, arts.  and  SpCC.  Rodríguez-Villasante y J.L. Prieto, Los Principios Generales del Derecho Penal en el Estatuto de Roma de la Corte Penal Internacional,  Revista Española de Derecho

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Chapter VIII

launch the attack, in the author’s view, there are a number of reasons that support a different interpretation. Firstly, for criminal liability to arise, art. ()(b) RS requires that, after the invitation, the unlawful attack “in fact occurs or is attempted”. Secondly, paragraphs (a) to (d) of art. () RS set out the modes of liability for the commission or attempted commission of an unlawful attack, starting with direct perpetration, indirect perpetration (also known as perpetration by means) and co-perpetration; followed by those forms of participation in the launch or attempted launch by a third person of an unlawful attack that intend to create or strengthen the perpetrator’s decision to launch the attack (such as ordering, soliciting and inducing); and finally with the rest of the punishable forms of participation in the launch or attempted launch by a third person of an unlawful attack (such as aiding, abetting, assisting or purposefully or knowingly making a non-substantial contribution to the launch or attempted launch of an unlawful attack by a group of people acting with a common purpose). Only subsequently does the RS deal with attempt and direct and public incitement to commit genocide – the latter being the only act prior to the commencement of the execution stage that gives rise to criminal liability under the RS. Thirdly, the drafters’ decision not to criminalize the preparatory acts of crimes against humanity and war crimes is not a novel element of the RS. On this point, the RS follows the solution chosen by arts. () ICTYS and () ICTRS. Indeed, the drafters of the ICTYS and the ICTRS only granted to the Ad hoc Tribunals jurisdiction over those preparatory acts of the crime of genocide that had been criminalized by art.  of the Genocide Convention of . Art. () RS does



       

Militar  ( Jan.-June ) [hereinafter Rodríguez-Villasante, Los Principios Generales del Derecho Penal]. Art. ()(a) RS refers to the person who commits the crime “whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”. See Lubanga Confirmation of Charges, supra note , ¶ , and Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-/-/, Decision on the Prosecutor’s Application for a Warrant of Arrest, Art.  ¶  (Feb. , ) [hereinafter Lubanga Decision for a Warrant of Arrest]. Art. ()(b) RS refers to the person who “orders, solicits or induces”. See Lubanga Confirmation of Charges, ¶ ; and Lubanga Decision for a Warrant of Arrest, ¶ . Art. ()(c) RS. Id. Id. Art. ()(d) RS. See Lubanga Confirmation of Charges, supra note , ¶  and  to ; and Lubanga Decision for a Warrant of Arrest, supra note , ¶ . Art. ()(f ) RS. Art. ()(e) RS. Arts. () ICTYS and () ICTRS.

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Preparatory Acts, Attempt and Completion of the Crime



not even include all of the preparatory acts contained in art.  of the Genocide Convention and provided for in arts. () ICTYS and () ICTRS. Fourthly, the exclusion of preparatory acts from the realm of art. () RS is a natural consequence of the ultimate goal of the RS to focus the activities of the ICC on those behaviours which undermine more acutely the highest values of the international community. Although no criminal responsibility arises from the preparatory acts of an unlawful attack pursuant to the RS, art. ()(f ) RS embraces a broad interpretation of the doctrine of unity of action between the execution of the objective elements of the crime and the performance of those other acts which immediately prepare for the execution. As a result, the execution stage starts by carrying out any action or omission that constitutes a “substantial step” for the execution of an unlawful attack. Once the execution stage is reached, criminal liability arises both in cases in which the unlawful attack is completed and in cases of attempt where some of the objective elements of the crime are not fulfilled “because of circumstances independent of the person’s intentions”. Nevertheless, the voluntary abandonment of the effort to launch an unlawful attack constitutes a ground for exemption of punishment as long as it meets the requisites provided for in art. ()(f ) RS. According to this provision, for abandonment to exempt a perpetrator from criminal liability, it is necessary that, once the execution stage of the unlawful attack is reached, the perpetrator abandons his effort to launch the unlawful attack before carrying out all objective elements of the crime. As both attacks directed at civilians or civilian objects and disproportionate attacks are crimes of mere action which are completed regardless of the result of the attack, abandonment is not possible after the attacks have been launched. On the other hand, from a subjective perspective, abandonment only exempts the perpetrator from criminal liability if he “completely and voluntarily gave up the criminal purpose”.  Preamble and arts.  and  RS. See also Von Hebel, Crimes, supra note , at pp. .  C. Roxin, Autoría y Dominio del Hecho en Derecho Penal  (th ed., J. Cuello Contreras & J.L. Serrano González de Murillo trans., Marcial Pons ) [hereinafter Roxin, Autoría y Dominio del Hecho en Derecho Penal].  Art. ()(f ) RS.  Art. ()(f ) RS.  K. Ambos, Article . Individual Criminal Responsibility, Commentary on the Rome Statute of the International Criminal Court - (O. Triffterer ed., Nomos ) [hereinafter Ambos, Article ].  Id. at p. .  A. Eser, Individual Criminal Responsibility, The Rome Statute of the International Criminal Court: A Commentary  (A. Cassese, P. Gaeta and J.R.W.D. Jones eds., Oxford University Press .

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

Chapter VIII

The application of abandonment is particularly complicated in those cases in which an unlawful attack is launched by a plurality of persons acting pursuant to a common plan. Given the absence of criminal liability for preparatory acts prior to the commencement of the execution stage, it does not seem necessary to resort to the notion of abandonment when a person manifests his intention to withdraw from the common plan before the execution stage is reached. Furthermore, as long as this stage has not yet started, it is irrelevant whether the abandoning person has made his contribution to the implementation of the common plan. However, the ICC’s case law will have to specify the manner in which a person must manifest his intention to withdraw from a common plan in order for such a withdrawal to be effective. Once the execution stage of an unlawful attack is reached, the manifestation of the intention to withdraw from the common plan only exempts the relevant person from criminal liability if he has not yet made any contribution to the implementation of the common plan. When the relevant person has already made his contribution, he will only be exempted from criminal liability, according to art. ()(f ) RS, if he prevents the launch of the unlawful attack. In this regard, the ICC’s case law will have to decide whether the adoption of all measures within the power of the relevant person to prevent the launch of the unlawful attack could be sufficient to exempt the perpetrator from criminal liability – even if, in the end, he cannot stop the attack. A crime is completed when all its objective elements have occurred. In the case of crimes of mere action (such as attacks directed at civilians or civilian objects or disproportionate attacks) or of mere omission (such as military commanders’ breaches of their duty to punish those subordinates who launch an unlawful attacks), the offence is completed when the forbidden action is carried out or the expected action is omitted. On the other hand, those crimes consisting of acts or omission causing a forbidden result (such as the war crimes of wilful killing and destruction of the enemy’s property) are only completed when the forbidden result takes place. Some commentators also distinguish between the formal completion of the crime – which takes place once all objective elements of an unlawful attack have occurred – and the material completion of the crime – which requires the perpetrator to achieve what he intended to obtain by launching the unlawful attack. Nevertheless, insofar as the satisfaction of the perpetrator’s goals is not expressly required by the penal norm, the material completion of the crime is irrelevant.

   

This last position is taken for instance by art. () SpCC. See art. ()(a)(i) and (c)(i) RS and the EC of wilful killing. Art. ()(b)(xiii) and (e)(xii) RS and the EC of destruction of enemy’s property. Muñoz Conde, Derecho Penal, supra note , p. .

Héctor Olásolo - 978-90-47-43159-6

Preparatory Acts, Attempt and Completion of the Crime



In some instances, such as in the war crime of hostage taking (intent to force somebody to take a given action or to refrain from taking a given action) and in the war crime of using human shields (intent to protect a military objective from the enemy’s attack or to protect or facilitate the performance of military operations), certain goals of the perpetrator are relevant because they constitute an ulterior intent or dolus specialis that must play a role in the perpetrator’s decision to commit the crime. But even in these cases, the actual satisfaction of such goals is irrelevant. In continuous crimes, which are characterized by the existence of a plurality of actions undertaken at different moments that violate the same or a closely-related societal value in a similar manner – they must be distinguished from the so-called permanent crimes, such as the war crimes of enlistment and conscription into a natonal force or into an organised armed group of children under the age of fifteen – each action in itself constitutes a completed crime, although all of them are jointly analyzed as if they were only one crime. Hence, the member of an army unit who, each time his unit sieges a town or a village, launches mortar attacks against apartment buildings occupied only by civilians, carries out a plurality of unlawful attacks. However, they will be jointly analyzed as only one crime. In cases in which continuous crimes are committed by a plurality of persons acting pursuant to a common plan (this would be the case if a plurality of attacks against civilian objects are launched in a coordinated manner by the members of a military unit under the supervision of the military commander of the unit), the ICC’s case law will have to decide: (i) the conditions under which a person may withdraw from the common plan once the first unlawful attack has been completed and (ii) the effectiveness of such a withdrawal, if any, with regard to the future launch of other unlawful attacks by the other participants in the implementation of the common plan.  See art. ()(a)(viii) and (c)(iii) RS and the EC of hostage taking.  See art. ()(b)(xxiii) RS and the EC of use of human shields.  Lubanga Confirmation of Charges, supra note , ¶ ; and Lubanga Decision for a Warrant of Arrest, supra note , ¶ . Furthermore, this practice has been consistent in the case law of the ad hoc tribunals. On the notion of continuous crimes, see Muñoz Conde, Derecho Penal, supra note , p. .  This is the approach taken by the Decisions on the arrret warrant and on the confirmation of the charges in the Lubanga case in relation to the multiple instances of enlistment, conscription and active use in hostilities of children under the age of fifteen. See, in particular, Lubanga Decision for a Warrant of Arrest, ¶ ; and Lubanga Confirmation of Charges, ¶ .  The Decision on the confirmation of the charges in the Lubanga case endorsed this possibility by declining to confirm the charges against Thomas Lubanga Dyilo from  August  to the end of that year, although it found that the other co-perpetrator continued with the implementation of the campaign of enlistment, conscription and active use in military operations of children under the age of fifteen. See Lubanga Confirmation of Charges, ¶ , ,  and .

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

Chapter VIII

Finally, in relation to permanent crimes, such as the war crime of hostage taking and the war crimes of enlistment and conscription into a national army or into an organised armed group of children under the age of fifteen, the completion of the crime presents no special feature apart from the fact that its completion phase can be extended for quite some time. As a result, the question arises as to whether it is possible to participate in the commission of a crime after such a crime has been initially completed.

 RS, supra note , art. ()(a)(viii) and (c)(iii) and the EC of hostage taking. See in relation to the war crime of enlistment and conscription in a national army or an organised armed group of children under the age of fifteen, the Lubanga Confirmation of Charges, supra note , ¶ .

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Chapter IX Modes of Liability

Not every person involved in the launch of an unlawful attack carries out an objective element of the crime. The persons who order, induce, or assist by providing the weapons or ammunition do not undertake any violent action against civilians or civilian objects. However, this does not mean that such persons are not criminally liable or that they necessarily deserve a lower sentence than the direct perpetrator. The penal norms dealing with modes of liability set out those types of involvement in the launch of an unlawful attack which give rise to criminal responsibility. In so doing, they determine a contrario which other forms of participation in the launch of an unlawful attack are not significant enough to give rise to criminal liability. Although the person who launches an unlawful attack is as criminally liable for the attack as the person who instigates the attack or assists the perpetrator, one cannot ignore the fact that the contributions of the different persons involved in the launch of an unlawful attack are of different nature and scope. On the one hand, the person who directly carries out a violent action against civilians or civilian objects makes an essential contribution in the sense that without such an action there is no unlawful attack. Hence, he can be considered a principal to the crime (a perpetrator). On the other hand, the person who instigates or assists can only be said to contribute to the commission of a crime by a third person. Hence, in principle, he can only be considered an accessory to the crime (a participant in the commission of a crime by a third person). As a result, the distinction between those contributions that give rise to principal liability and those other contributions that give rise to accessory liability are particularly relevant.  Smith, Smith & Hogan: Criminal Law, supra note , pp. -; Gillies, Criminal Law, supra note , pp. -.  Id.  The distinction between principals and accessories to the crime has been explicitly adopted by the Lubanga Decision for a Warrant of Arrest, supra note , ¶ ; and Lubanga Confirmation of Charges, supra note , ¶ - and -. For the reasons why the distinction between principals and accessories to the crime is particularly relevant even in the case that the different nature and scope of the contributions to the commission of the crime are not considered a relevant factor for sentencing,

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

Chapter IX

Traditionally, there have been several criteria for distinguishing between the notions of perpetration and participation in the commission of a crime by a third person. Firstly, the doctrine of the unitary notion of perpetration and participation eliminates any distinction between perpetrators and participants insofar as it considers anyone who has contributed to the commission of the crime as a perpetrator no matter the nature and the scope of his contribution. Secondly, from a subjective approach, no matter the nature and scope of the contribution, perpetrators are those persons who make a contribution to the commission of the crime with the intent not to be just accessories but to be principals to the crime. Thirdly, from a formally objective approach, perpetrators are only those persons who carry out an objective element of the crime, whereas participants are those other persons who contribute in any other way to the crime. Finally, from a materially objective approach, perpetrators are those who have control of the crime, meaning that they have the last word on its commission. Art. () RS distinguishes between perpetration and participation in the commission or attempted commission of a crime by a third person. Therefore, it rejects the doctrine of the unitary notion of perpetration and participation embraced by some national systems such as those of Italy and Austria. Moreover, as was recently affirmed by the Decision on the confirmation of the charges in the Lubanga case, art. () (a) RS, when referring to the person who “commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”, adopts a notion of perpetration based on the theory of control of the crime, which has been previously applied by the ICTY in the Stakić Trial

      

see Gillies, Criminal Law, supra note , p. ; Fletcher, Rethinking Criminal Law, supra note , pp. -. This criteria are referred to in the Lubanga Confirmation of Charges, ¶ -. Quintero Olivares, Manual de Derecho Penal, supra note , p. . Muñoz Conde, Derecho Penal, supra note , p. . Art.  of the Italian Penal Code. Section  of the Austrian Penal Code. Lubanga Confirmation of Charges, supra note , ¶ -. An analysis of the notion of control of the crime which includes ample references to the application of this notion in common law and civil law systems can be found in H. Olásolo & A. Pérez Cepeda, The Notion of Control of the Crime in the Jurisprudence of the ICTY: The Stakić Case, Int’l Crim. L. Rev. - () [hereinafter Olásolo, The Notion of Control]. Many Spanish legal writers have embraced the notion of control of the crime, including: E. Bacigalupo Zapater, La Distinción entre Autoría y Participación en la Jurisprudencia de los Tribunales y el Nuevo Código Penal Alemán, Libro homenaje a Antón Oneca  (Estudios Penales ); I. Berdugo Gómez de la Torre, L. Arroyo Zapatero, N. García Rivas, J.C. Ferré Olivé & J.R. Serrano Piedecasas, Lecciones de Derecho Penal Parte General  (); J. Bustos Ramírez, Derecho Penal. Parte General  (th ed. ); J. Cerezo Mir, Problemas Fundamentales del Derecho Penal  (); J.M. Gómez Benítez, El Dominio del Hecho en la Autoría

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Modes of Liability



Judgement. Hence, perpetrators are only those persons who ultimately have control over the execution of the objective elements of the crime, no matter whether they actually execute them (direct perpetrator) or use a third person as an instrument in the commission of the crime (indirect perpetrator). As some commentators have already pointed out, the notion of indirect perpetration embraced by the RS includes cases of unlawful attacks launched through organized structures of powers – such as army units, military police, civilian police or some organized armed groups – where, in spite of the criminal liability of the direct perpetrators, the person who uses his command position in an organization to secure the launch of an unlawful attack becomes an indirect perpetrator. This type of indirect perpetrator is known as the “perpetrator behind the perpetrator/actor”. Indirect perpetration through the use of organized structures of power occurs quite often in relation to the launch of attacks against civilians or civilian objects or disproportionate attacks because the selection of the targets and the preparation of the attack are normally carried out at the battalion level or higher. Art. ()(a) RS not only distinguishes between principals and accessories to the crime on the basis of the theory of control of the crime, but it also resorts to this theory to define the notion of co-perpetration. Hence, in those cases in which a plurality of persons are involved in the launch of an unlawful attack, only those who share the functional control of the crime as a result of the essential character of their contributions to the launch of the unlawful attack are co-perpetrators. The rationale behind this notion of co-perpetration is that only those persons who must perform an essential contribution for the launch of an unlaw-

      



(Validez y Límites), Anuario de Derecho Penal y de las Ciencias penales  (); S. Mir Puig, Derecho Penal: Parte General  (th ed. ); Muñoz Conde, Derecho Penal, supra note , pp.  et seq; Quintero Olivares, Manual de Derecho Penal, supra note , pp.  et seq. Stakić Judgement, supra note , ¶ -, , ,  and . Art. ()(a) RS. See also the Lubanga Confirmation of Charges, supra note , ¶ . Ambos, Article , supra note , p. . See also, Olásolo, The Notion of Control, supra note , p. , footnote . See also the Lubanga Confirmation of Charges, supra note , ¶ . Roxin, Autoría y Dominio del Hecho en Derecho Penal, supra note , pp. -. On the application of indirect perpetration by the Stakić Trial Chamber, see Olásolo, The Notion of Control, pp. -. Stakić Judgement, supra note , ¶ ,  and . See supra section VI.. Lubanga Confirmation of Charges, supra note , ¶  and . See also, Ambos, Article , supra note , p. ; J.M. Gómez Benítez, Elementos Comunes de los Crímenes contra la Humanidad en el Estatuto de la Corte Penal Internacional,  Actualidad Penal - (). Lubanga Confirmation of Charges, supra note , ¶ -.

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

Chapter IX

ful attack are in control of the attack and thus can avoid its launch by not carrying out their part of the common plan. The RS has, thus, rejected the formally objective approach to the notion of co-perpetration, which excludes anyone who has not carried out an objective element of the crime from the group of co-perpetrators no matter how important his contribution may have been. Likewise, it has also rejected the subjective approach to the notion of co-perpetration, according to which anyone who carries out his contribution with the intention of implementing a common criminal purpose – for instance the launch of an unlawful attack – is a co-perpetrator, regardless of the nature and scope of his contribution. According to art. ()(b) and (d) RS, participants in the launch of an unlawful attack by a third person are only criminally liable if the stage of attempt is reached, regardless of whether the attack is finally completed. On this basis, art. ()(b) RS provides that a person who “orders, solicits or induces” the launch of an attack against civilians or civilian objects or the launch of a disproportionate attack will be criminally liable. In the author’s view, ordering the launch of an unlawful attack is a mode of liability particularly relevant for those cases in which, due to the small size of the organization (for instance a small paramilitary group) used by the person who orders the attack, one cannot qualify it as an organized structure of power, and thus the notion of indirect perpetration is not applicable. Pursuant to art. ()(c) RS, criminal liability arises for any person who, for the purpose of facilitating the launch of an unlawful attack, “aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”. The Appeals Chamber of the Ad hoc Tribunals in, inter alia, the Tadić, Aleksovski, Čelebići and Kupreškić cases, has required that the assistance has a substantial effect on the launch of an unlawful attack or on the consolidation of its effects. The interpretation of art. () RS in this sense is also supported by the fact that according to art. ()(d) RS criminal responsibility arises for any person who “in any other way contributes” (non-substantial contribution) to the launch or attempted launch of an unlawful attack by a group of persons acting with a common purpose.

 Id. at ¶ . See also, Roxin, Autoría y Dominio del Hecho en Derecho Penal, supra note , pp. -; Olásolo, The Notion of Control, supra note , pp. -.  Lubanga Confirmation of Charges, supra note , ¶  and .  Id. at ¶ -.  Tadić Appeal, supra note , ¶ ; Aleksovski Appeal, supra note , ¶ ; Čelebići Appeal, supra note , ¶ ; Prosecutor v. Kupreškić et al., Case No. IT--A, Appeal Judgement ¶  (Oct. , ) [hereinafter Kupreškić Appeal].  Concurring Ambos, Article , supra note , pp.  and . See also Lubanga Confirmation of Charges, supra note , ¶  and .

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Modes of Liability



Hence, art. ()(d) RS constitutes a subcategory of complicity according to which criminal liability arises from those non-substantial contributions that are carried out either with the intent to further the criminal purpose of a group of persons or, at the very minimum, with the knowledge that such a contribution facilitates the implementation of the criminal purpose of the group. As the Decision on the confirmation of the charges in the Lubanga case has recently pointed out, this marks an important difference with the case law of the Ad hoc Tribunals, particularly that of the ICTY, which has consistently endorsed a subjective approach to the notion of co-perpetration, according to which any person who contributes to the commission of a crime with the intent to implement a common criminal purpose is a co-perpetrator regardless of the nature and scope of his contribution.

 Lubanga Confirmation of Charges, ¶ -. See also Ambos, Article , pp. -.  Lubanga Confirmation of Charges, ¶ .  Olásolo, The Notion of Control, supra note , pp. -, footnote . See the Tadić Appeal, supra note , ¶ -; Prosecutor v. Anto Furundžija, Case No. IT--/A, Appeal Judgement ¶  ( July , ); Kupreškić Appeal, supra note , ¶ ; Čelebići Appeal, supra note , ¶ -; and the Prosecutor v. Milorad Krnojelac, Case No. IT---A, Appeal Judgement ¶  (Sept. , ) [hereinafter Krnojelac Appeal]. See also inter alia the Kordić Judgement, supra note , ¶ ; Prosecutor v. Radislav Krstić, Case No. IT---T, Judgement ¶  (Aug. , ); Kvočka Case, supra note , ¶ ; Krnojelac Judgement, supra note , ¶ ; Prosecutor v. Mitar Vasiljević, Case No. IT---T, Judgement ¶  (Nov. , ); Stakić Judgement, supra note , ¶ ; and the Simić Judgement, supra note , ¶ . Furthermore, see the Ojdanić Decision, supra note , ¶  et seq. and the Lubanga Confirmation of Charges, supra note , ¶ -.

Héctor Olásolo - 978-90-47-43159-6

Chapter X Subjective Elements

X.

First Approach to the Subjective Elements of the Crimes in the RS X..

Dolus as the General Subjective Element

The definition of a crime not only contains a set of contextual and specific objective elements, but also includes certain subjective elements which can be classified into (i) a general subjective element consisting of the state of mind that must drive the execution of the objective elements of a crime and (ii) additional subjective elements (usually referred to as dolus specialis or ulterior intent) which are comprised of specific purposes that must motivate the commission of a crime. The general subjective element is not the same for all crimes. Sometimes criminal law only criminalizes certain behaviour when the perpetrator’s purpose is precisely to cause the forbidden result; this scenario has been referred to as a conscious rebellion against the societal value protected by the penal norm. Other times, criminal law also criminalizes the means used to achieve a lawful purpose. In this scenario, it may very well happen that the perpetrator acts without due diligence and is unaware of the likelihood that his conduct may undermine the societal value protected by the penal norm. In any event, as it has been rightly pointed out, the general subjective element of a crime is far more vague and difficult to prove than the objective elements because it consists of a state of mind that can be deduced but not observed.  Fletcher, Rethinking Criminal Law, supra note , pp. -.  Id. See also, Smith, Smith & Hogan: Criminal Law, supra note , p. .  See the excellent explanation of the notion of ulterior intent given by Smith, Smith & Hogan: Criminal Law, supra note , pp. -. Particular attention must be paid not to confuse the common law notions of specific intent (which refers to the general subjective element and its equivalent to the civil law notion of dolus directus in the first degree) and ulterior intent (which refers to an additional subjective element consisting of a specific purpose that must motivate the commission of the crime and its equivalent to the civil law notion of dolus specialis). See also Lubanga Confirmation of Charges, supra note , ¶ -.  Muñoz Conde, Derecho Penal, supra note , p. .  Id.

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Chapter X

The RS rejects both strict liability and liability for the result. As a consequence, according to art.  RS, criminal liability only arises if all objective elements (action or omission, result and other contextual or specific circumstances of the crime) are covered by the general subjective element of the crime (referred to in art.  RS as the “mental element”). Art. () RS requires that “the material elements of the crime are committed with intent and knowledge” whereby it makes dolus the general subjective element of those war crimes provided for in art.  RS. This includes the dolus directus in the first degree, understood as the intent to specifically cause the forbidden result or the intent to specifically carry out the forbidden action (crimes of mere action) or fail to take the expected action (crimes of mere omission). It also includes the dolus directus in the second degree, where the perpetrator does not wish to cause the forbidden result but accepts its occurrence as a necessary consequence of the achievement of his main purpose. In the author’s view, the general subjective element provided for in art.  RS also includes the so-called dolus eventualis which usually requires the perpetrator: (i) to be aware that his conduct will likely bring about the forbidden result and (ii) to accept or be reconciled with the occurrence of such a forbidden result. This conclusion, which has also been reached by the Decision on the confirmation of the charges in the Lubanga case, is supported by the fact that art. () RS defines intent as including cases in which the perpetrator is aware that the forbidden result “will occur in the ordinary course of events”. This definition contains a presumption whereby a perpetrator is presumed to have accepted the production of the forbidden result when he decided to proceed with his conduct in spite of being aware of the likelihood of bringing about the forbidden result through the performance of his conduct. Moreover, the Decision on the confirmation of the charges in the Lubanga case has pointed out that not only the general subjective element provided for in art.  RS includes dolus eventualis, but that the notion of dolus eventualis would also encompass those cases in which, despite the fact that the risk to cause the

 Lubanga Confirmation of Charges, supra note , ¶ .  Id. at ¶  (i).  Concurring Rodríguez-Villasante, Los Principios Generales del Derecho Penal, supra note , p. ; D.K. Piragoff, Article . Mental Element, Commentary on the Rome Statute of the International Criminal Court  (O. Triffterer ed., Nomos ).  See also the definition of dolus eventualis provided for by the Lubanga Confirmation of Charges, supra note , ¶ -. See also Stakić Judgement, supra note , ¶ .  Lubanga Confirmation of Charges, ¶  (ii) and .  Id. at ¶ .

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Subjective Elements

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forbidden result is low, the perpetrator manifestly or expressly accepts the production of such a result as a consequence of his actions or omissions. Nevertheless, in the author’s view, art.  RS does not include the common law category of recklessness – whether it is subjective recklessness or objective recklessness – nor negligence. This is also the approach taken by the Decision on the confirmation of the charges in the Lubanga case. Subjective recklessness usually requires the perpetrator to be aware of the risk of causing the forbidden result as a consequence of carrying out certain conduct. The required level of risk varies between national systems and it goes from mere “possibility” to “probability”. Subjective recklessness also requires the perpetrator to accept the risk, which is usually considered to be inherent in the decision to proceed with his conduct. Unlike dolus eventualis (which requires acceptance or being reconciled with the occurrence of the forbidden result), subjective recklessness does not include any element of intent because the perpetrator is only required to accept the risk of his conduct but is not required to accept or be reconciled with the occurrence of the forbidden result. This is demonstrated by the fact that a person can perfectly carry out dangerous conduct while trusting his skills to avoid the forbidden result. This would be the case if an artillery officer, despite being aware of the likelihood of hitting an apartment building occupied only by civilians due to his mortar’s lack of precision, is confident that his skills will allow him to ensure that the projectile hits the small munitions warehouse located near the apartment building. In this regard, subjective recklessness is closely related to the civil law category of conscious culpability which in civil law systems is included within the notion of negligence. Therefore, the requirement under art.  RS that “material  Id. at ¶ .  Id. at ¶ . See in particular foonote .  As Fletcher, Rethinking Criminal Law, supra note , p. , has pointed out: “Recklessness is a form of culpa- equivalent to what German scholars call ‘conscious negligence’. The problem of distinguishing ‘intention’ and ‘recklessness’ arises because in both cases the actor is aware that his conduct might generate a specific result”.  The perpetrator’s awareness of the mere possibility of causing the forbidden result is sufficient, at least in relation to the crime of homicide, in countries such as South Africa (see C.R. Snyman, Criminal Law  (rd ed. )).  The perpetrator’s awareness of the likelihood of causing the forbidden result is required, at least with regard to the crime of homicide, in Australia (The Queen v. Crabbe ()  C.L.R. ; See also B. Fisse, Howard’s Criminal Law  (th ed. ); the Bahamas (sections  and () of the Penal Code of ); Kenya (sections  and (b) of the Penal Code of ); Malawi (sections  and (b) of the Penal Code); Sierra Leone (see B. Thompson, The Criminal Law of Sierra Leone  (); and Zambia (sections  and (b) of the Penal Code).  K.W. Simosns, Rethinking Mental States, B.U. L. Rev.  (May ).  Lubanga Confirmation of Charges, supra note , ¶ , footnote .

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Chapter X

elements are committed with intent and knowledge” seems to exclude subjective recklessness. A fortiori it can be concluded that the general subjective element of art.  RS does not include the so-called objective recklessness, which usually occurs when the perpetrator, without being aware of the risk that is inherent in his conduct, proceeds with his conduct and, in so doing, unconsciously creates an objectively high risk which exceeds what is socially acceptable. Objective recklessness, thus, is closely related to the civil law category of gross negligence which in civil law systems is included within the notion of negligence. Likewise, the general subjective element of art.  RS does not include negligence, which is understood as the perpetrator’s breach of his duty to conduct himself with due diligence in carrying out conduct that ends up causing a forbidden result. The general subjective element provided for in art.  RS is not applicable to a handful of war crimes which include in their definition their own general subjective element. The definition of several war crimes appears to require the perpetrator to act with dolus directus in the first degree because of the use of expressions such as “intentionally” or “wilfully”. However, this is not always the case. For example, the expression “intentionally” in the crime of “intentionally directing attacks against buildings dedicated to religion, education, arts, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected” seems to have a broader meaning than dolus directus in the first degree. Hence, in order to ascertain the meaning of such expressions in the definition of a particular crime, it is necessary to analyze them in the context of the other elements of this definition. The definition of some crimes includes, in addition to the general subjective element provided for in art.  RS, an additional subjective element, under which the perpetrator must commit the crime with a view to achieving a specific purpose. In this regard, particular attention must be paid not to confuse the common law notions of specific intent (which refers to the general subjective element of a crime and is equivalent to the civil law notion of dolus directus in the first degree) and ulterior intent (which refers to an additional subjective element that requires a specific purpose to underlie the commission of the crime and is  Id.  Id.  The judgement of the House of Lords in Metropolitan Police Commissioner v. Caldwell () AC  established the inadvertent, objective or Caldwell recklessness as opposed to the advertent, subjective or Cunningham recklessness.  Lubanga Confirmation of Charges, supra note , ¶ , footnote .  Quintero Olivares, Manual de Derecho Penal, supra note , pp. -.  Lubanga Confirmation of Charges, supra note , ¶ .  Art. ()(b)(ix) and (e)(iv) RS and the respective EC.

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equivalent to the civil law notion of dolus specialis). This additional subjective element is introduced by using expressions such as “with intent to”, “for the purpose of ” and “by reason of ” in the definition of crimes such as hostage taking, torture, declaring that no quarter will be given, pillaging, enforced prostitution, use of human shields and use of starvation of civilians as a method of warfare. X..

Criminal Responsibility Arising from Negligence: The Criminal Liability of Military Commanders for Failure to Prevent or Punish

Exceptionally, the general subjective element of some of the war crimes provided for in the RS seem to include negligence. As the Decision on the confirmation of the charges in the Lubanga case has pointed out in relation to the crimes of enlisting and conscripting children under the age of  years into the national armed forces or into organised armed groups, or using them to actively participate in hostilities, it is sufficient that the perpetrator “should have known that such person or persons were under the age of  years”. Special attention is warranted in this context to the general subjective element provided for in art.  RS in relation to military commanders’ breach of duties to prevent and punish subordinates for the commission of war crimes, including unlawful attacks. Art. (a)(i) RS requires that a “military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”. As a result, this provision constitutes an exception to art.  RS and introduces its own general subjective element, according to which criminal liability arises from negligent behaviour (“should have known”). Hence, military commanders will be criminally liable for not meeting the standard of diligence required from an aver-

 Smith, Smith & Hogan: Criminal Law, supra note , pp. -. See also Lubanga Confirmation of Charges, supra note , ¶ .  See art. ()(a)(viii) and (c)(iii) RS and the EC of hostage taking.  See art. ()(a)(ii) and (c)(i) RS and the EC of torture.  See Id. at art. ()(b)(xii) and (e)(x)ER and the EC of denying quarter.  See art. ()(b)(xvi) and .(e)(v) RS and the EC of pillage.  See art. ()(b)(xxii) and (e)(vi) RS and the EC of enforced prostitution.  See art. ()(b)(xxiii) RS and the EC of using protected persons as human shields.  See art. ()(b)(xxv) RS and the EC of using starvation as a method of warfare.  Lubanga Confirmation of Charges, supra note , ¶  to . See also art. ()(b)(xxvi) and (e)(vii) RS and their respective EC of conscripting, enlisting or using children under the age of .  See Lubanga Confirmation of Charges, supra note , ¶ . See in particular foonote .

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Chapter X

age military commander in the circumstances ruling at that time in complying with their duties to prevent and punish. It is surprising to find a crime of mere omission – such as military commanders’ failures to punish subordinates for the commission of war crimes – among the handful of war crimes that can be committed by acting negligently. Negligence is not usually included within the general subjective element of crimes of mere omission. In any event, it is important to highlight that a military commander may be criminally liable if he does not act with due diligence in: (i) obtaining information about the commission of war crimes by his subordinates (negligence in learning about the situation that activates his duty to punish); (ii) assessing the measures within his power to punish his subordinates (negligence in the appreciation of the extent of his power to intervene) and (iii) applying of the measures within his power. Particularly striking is the fact that art. (a)(i) RS provides for the military commanders’ negligent commission by omission of any of the war crimes provided for in art.  RS as a result of their negligent failure to prevent subordinates from committing such crimes. This is significant given that, as a general rule, art.  RS excludes negligence from the realm of the general subjective element of the war crimes included in art.  RS. In the author’s view, it is difficult to understand how criminal liability can arise from the negligent failure to prevent a crime if the actual perpetrator of the crime must act with dolus in order to be criminally liable. Furthermore, in spite of the case law of the Ad hoc Tribunals, it is the author’s view that those war crimes requiring a dolus specialis or ulterior intent can  Ambos, Superior Responsibility, supra note , p. .  Muñoz Conde, Derecho Penal, supra note , p. .  As the Appeals Chamber pointed out in the Interlocutory Decision on the third category of joint criminal enterprise in Prosecutor v. Radoslav Brdjanin, Case No. IT--A, Decision on Interlocutory Appeal ¶ - (Mar. , ): “. The elements of a crime are those facts which the Prosecution must prove to establish that the conduct of the perpetrator constituted the crime alleged. However, participants other than the direct perpetrator of the criminal act may also incur liability for a crime, and in many cases different mental element standards may apply to direct perpetrators and other persons. The third category of joint criminal enterprise liability is, as with other forms of criminal liability, such as command responsibility or aiding and abetting, not an element of a particular crime. It is a mode of liability through which an accused may be individually criminally responsible despite not being the direct perpetrator of the offence. An accused convicted of a crime under the third category of joint criminal enterprise need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed. Rather, it is sufficient that that accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of that agreed upon crime made it

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only be said to have been committed by a military commander’s failure to prevent (commission by omission) if the omission of the relevant military commander was motivated by the required specific purpose. Not even the case law of the Ad hoc Tribunals, which in general has enlarged the scope of responsibility of military commanders provided for in arts.  and  AP I, support the choice made by the drafters of the RS. Indeed, the Appeals Chamber of the Ad hoc Tribunals in the Čelebići, Bagilishema, Krnojelac and Blaškić cases rejected the attempt of the Trial Chamber in the Blaškić case to give the same meaning to the expressions “had reason to know” and “should have known”. The Appeals Chamber stated that the standard “had reasons to know” reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise, and it was committed. . For example, an accused who enters into a joint criminal enterprise to commit the crime of forcible transfer shares the intent of the direct perpetrators to commit that crime. However, if the Prosecution can establish that the direct perpetrator in fact committed a different crime, and that the accused was aware that the different crime was a natural and foreseeable consequence of the agreement to forcibly transfer, then the accused can be convicted of that different offence. Where that different crime is the crime of genocide, the Prosecution will be required to establish that it was reasonably foreseeable to the accused that an act specified in Article () would be committed and that it would be committed with genocidal intent. . As a mode of liability, the third category of joint criminal enterprise is no different from other forms of criminal liability which do not require proof of intent to commit a crime on the part of an accused before criminal liability can attach. Aiding and abetting, which requires knowledge on the part of the accused and substantial contribution with that knowledge, is but one example. Command responsibility liability, which requires the Prosecution to establish that a Commander knew or had the reason to know of the criminality of subordinates, is another”.  The reasons given by the Blaškić Judgement, supra note , ¶  to give the same meaning to the standards “should have known” and “had reason to know” are the following: “If a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute”. The Čelebići Appeal, supra note , ¶  stated the following in rejecting the argument that the standards “should have known” and “had reasons to know” have the same meaning: “Article () of the Statute is concerned with superior liability arising from failure to act in spite of knowledge. Neglect of a duty to acquire such knowledge, however, does not feature in the provision as a separate offence, and a superior is not therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or to punish. The Appeals Chamber takes it that the Prosecution seeks a finding that ‘reason to know’ exists on the part

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Chapter X

is a higher standard than “should have known” because it does not criminalize the military commanders’ mere lack of due diligence in complying with their duty to be informed of their subordinates’ activities. According to the Appeals Chamber, the “had reason to know” standard provided for in arts. () ICTYS and () ICTRS requires military commanders to, at the very minimum, have had information available to them that should have put them on notice of the need to set in motion an investigation. Art. () RS sets out a higher general subjective element in relation to the failure of non-military superiors to prevent or punish crimes of their subordinates. This general subjective element – defined as “the superior either knew or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes” – is close to the dolus (at least to dolus eventualis) provided for in art.  RS. Finally, it remains to be seen whether the ICC’s case law will resort to the mode of liability of abetting provided for in art. ()(c) RS in those cases in which military or non-military superiors become aware of the commission of war crimes by their subordinates after the crimes have been completed; or whether, on the contrary, in spite of the prohibition provided for in art. () RS, the ICC’s case law will interpret extensively the current language of art. (a)(i) and (b)(i) RS in order to extend the scope of application of this provision to such cases. of a commander if the latter is seriously negligent in his duty to obtain the relevant information. The point here should not be that knowledge may be presumed if a person fails in his duty to obtain the relevant information of a crime, but that it may be presumed if he had the means to obtain the knowledge but deliberately refrained from doing so. The Prosecution’s argument that a breach of the duty of a superior to remain constantly informed of his subordinates actions will necessarily result in criminal liability comes close to the imposition of criminal liability on a strict or negligence basis. It is however noted that although a commander’s failure to remain apprised of his subordinates’ action, or to set up a monitoring system may constitute a neglect of duty which results in liability within the military disciplinary framework, it will not necessarily result in criminal liability”.  See the Čelebići Appeal, supra note , ¶ ; Prosecutor v. Bagilishema, Case No. ICTR--A-A, Appeal Judgement ¶  ( July , ); Krnojelac Appeal, supra note , ¶  and the Blaškić Appeal, supra note , ¶ . See also the Strugar Judgement, supra note , ¶  and the commentary to this judgement by E. Carnero Rojo & F. Lagos Polas, The Strugar Case before the International Criminal Tribunal for the Former Yugoslavia,  J. Int’l L. Peace & Armed Conflict - ().  Fenrick, Article , supra note , pp. -; Ambos, Superior Responsibility, supra note , pp. -.  In this regard, it is revealing how art. () ICTYS and art. () ICTRS require that the superior “knew or had reason to know that the subordinate was about to commit such acts or had done so”, whereas paragraph (a)(i) of art.  RS requires that the military commander “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”. Furthermore, paragraph (b)(i) of art.  RS requires that the non-military superior

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Subjective Elements X..

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General Subjective Element and Material Contextual Elements

The RS and EC do not require the international or non-international character of the armed conflict and the gravity threshold to be covered by the general subjective element of the crime. Indeed, the RS and EC do not even require the perpetrator to be aware of the factual circumstances that: (i) establish the character of the conflict as international or non-international and (ii) meet the gravity threshold provided for in art. () and ()(d) RS. In the author’s view, this approach is justified in the case of the gravity threshold because the legal nature of such a threshold is that of an objective requisite to proceed. However, this approach does not seem to be appropriate in the case of the international or non-international character of the armed conflict because the latter constitutes a material contextual element as opposed to an objective requisite for punishment. The general subjective element must cover all of the material contextual elements such as the existence of an armed conflict, the link between the armed conflict and the forbidden conduct and the protected status of the persons or objects subject to the forbidden conduct. As seen above, the material contextual elements are, for the most part, normative elements. Hence, it is not required for the perpetrator to make the value judgement inherent to their legal qualification, but it is sufficient, according to the EC, for the perpetrator to be aware of the factual circumstances establishing their existence. Moreover, the ICC’s case law will have to decide whether, in addition to being aware of these circumstances, the perpetrator must also be aware of the social meaning of such circumstances for the “average man” or, in the case of members of the armed forces, for the “average soldier” or the “average commander”. If the ICC’s case law decides to require the perpetrator’s awareness of the social meaning of the above-mentioned circumstances, it should also require, in the author’s view, the perpetrator to make the value judgement inherent to the

 

  

“either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes”. See infra section XIII.. See supra section II., and infra section XIII.. In this regard, it must be highlighted that the Lubanga Confirmation of Charges, supra note , ¶  expressly found that Thomas Lubanga Dyilo was aware of the factual circumstances that established the character of the conflict as international from the beginning of September  to  June , and as non-international from  June  to  August . See supra section III.. Id. Eser, Mental Element-Mistake of Fact and Mistake of Law, supra note , p. . The Lubanga Confirmation of Charges, supra note , gives an implicit affirmative answer to this question at paragraph .

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legal qualification of the material contextual elements insofar as the perpetrator has the technical skills to do so. X.. The Treatment of Mistake of Fact in the RS Those mistakes over any of the objective elements of the crime, such as the person or object subject to the forbidden conduct or the causal link, fall within the category of mistakes of fact provided for in art.  RS. The RS is reluctant to exempt perpetrators from criminal liability as a result of mistakes of fact or mistakes of law. This is due to the fact that there are important differences in the treatment of mistakes at the national level, on the one hand, and to the gravity of the war crimes provided for in art.  RS, on the other hand. As a result, art. () RS provides that mistakes of fact are only relevant if they negate the general subjective element (mental element) required by the relevant crime, which, as a general rule, is comprised of dolus (in the first degree, in the second degree and dolus eventualis). Hence, only mistakes over the existence of the objective elements of the crime which negate the perpetrator’s dolus are relevant under the RS. As a consequence, mistakes regarding the existence of factual circumstances for the application of a ground for justification (such as cases of subjective selfdefence) or of a ground for excuse are irrelevant under art. () RS. Therefore, as shown below, an accused could only rely on such grounds under the residual clause providing for other grounds for excluding criminal responsibility of art. () RS. Moreover, the fact that the mistake of the perpetrator could have been avoided had he acted with due diligence is, in principle, irrelevant because, apart from the few exceptions pointed out above, criminal liability does not arise from negligent behaviour under the RS. Any mistake of fact by the perpetrator negates his dolus regardless of whether the mistake was due to his lack of due diligence or any other reason. Finally, it is important to highlight that errors of identity, which are normally irrelevant in criminal law, have a particular relevance in the context of war crimes when the person who is the actual victim of the forbidden conduct does not have the same protected status as the intended victim of the crime.

 Eser, Mental Element-Mistake of Fact and Mistake of Law, supra note , at pp. .  Id.

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X. The Subjective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks As seen above, the RS, unlike the ICTY’s case law, defines attacks against civilians or civilian objects and disproportionate attacks as crimes of mere action which are completed with the mere launch of the attack – i.e. by carrying out an act of violence against protected persons or objects that are affiliated with the adverse party and are located in an area not under the control of the party to the conflict with which the perpetrator is affiliated. The result of the attack is not an element of the crime and therefore it is irrelevant for the completion of an unlawful attack under the RS. As a consequence, the subjective elements of the unlawful attacks become particularly important. X.. X...

Attacks Directed at Civilians or Civilian Objects The Meaning of the Expression “Intentionally”

Concerning attacks directed at civilians or civilian objects, the problem arises as to whether the expression “intentionally”, which is used both in the definition of the crimes and in the description of their elements, sets out a general subjective element different from the dolus provided for in art.  RS. In the author’s view, the literal interpretation of the expression “intentionally directing attacks” supports the view that the definition of the crimes of directing attacks at civilians or civilian objects in paragraphs ()(b)(i) and (ii) and ()(e)(i) of art.  RS provides for its own general subjective element. This position is also supported by the contextual interpretation of these provisions in light of art.  RS, which expressly states that the general subjective element thereby established is only applicable to those war crimes whose definitions do not contain a different general subjective element. Furthermore, this position is consistent with the intention of the drafters of the RS and the EC in setting out a general subjective element for attacks against civilians or civilian objects that would avoid any confusion with the crime of disproportionate attacks against a military objective, although some legal writers have pointed out that such a general subjective element is indeed very similar to the general subjective element provided for in art.  RS.  See art. ()(b)(i) and (ii) and (e)(i) RS and the EC of directing attacks at civilians and civilian objects.  Frank, Attacking Civilians, supra note , p. .  Id. at p. ; D. Frank, Attacking Civilian Objects, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational Publishers ) [hereinafter Frank, Attacking Civilian Objects]; Dörmann, Elements of War Crimes, supra note , pp.  and .

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Concerning its content, the question arises as to whether the expression “intentionally” requires dolus directus in the first degree – i.e. the perpetrator’s intention to launch an attack in order to hit civilians or civilian objects – or whether it merely requires the perpetrator’s dolus, which would also include dolus directus in the second degree and dolus eventualis. In the author’s view, the expression “intentionally” not only includes cases in which an attack is launched specifically against civilians or civilian objects but it also includes cases in which an attack is indiscriminate – i.e. cases in which: (i) the perpetrator does not direct the attack at a specific military objective or is aware that, due to the lack of precision of the weaponry used, the attack cannot be directed at a specific military objective and (ii) the perpetrator is aware that civilians or civilian objects will be necessarily hit (dolus directus in the second degree) or, at the very least, he is aware of the likelihood that, instead of hitting a military target, he will end up hitting civilians or civilian objects and he is reconciled with such a result. As seen above, this would be the case, for instance, of a person who: (i) uses a home-made mortar despite being aware of its absolute lack of precision – and thus the impossibility of directing the attack at a specific military target – to try to destroy a munitions depot located next to a primary school and (ii) accepts the fact that the mortar shell will probably end up hitting and destroying the school as opposed to the munitions depot. However, as soon as the perpetrator directs his attack specifically at a concrete military target, he can no longer be blamed for directing an attack at civilians or civilian objects. This would be so even in those cases in which the perpetrator is aware of the fact that civilians or civilian objects will be necessarily, or at least probably, incidentally killed, injured or damaged by his attack. Indeed, from the moment the perpetrator directs his attack at a specific military objective, the proportionality rule becomes applicable and the crimes of directing attacks at civilians or civilian objects are no longer applicable. Therefore, the lawfulness of an attack that intends to destroy a small munitions depot located in the basement of an apartment building occupied only by civilians – which will surely be totally or partially destroyed as a result of the attack – must be analyzed in light of the proportionality rule. Likewise, the proportionality rule will be the controlling criterion if the total or partial destruction of the apartment building is just a likely – as opposed to necessary – consequence  For Dörmann, Elements of War Crimes, pp.  and , the expression “intentionally” contained in paragraph ()(b)(i) and (ii) and (e)(i) of art.  RS and in their respective EC, simply restates the general subjective element provided for in art.  RS, which as seen above includes dolus directus in the first degree, dolus directus in the second degree and dolus eventualis. The same position is held by Frank, Attacking Civilians, supra note , p.  and Frank, Attacking Civilian Objects, p. .  See supra section IV...

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of the attack against the small munitions depot and the perpetrator is reconciled with the destruction. The proposed interpretation of the expression “intentionally” is consistent with the drafters’ intention of making a distinction between the attacks directed at civilians or civilian objects and the attacks directed at military targets that cause manifestly excessive incidental civilian damage. Moreover, it avoids an excessively restrictive interpretation of the general subjective element of the attacks against civilians or civilian objects (such as that limiting it to dolus directus in the first degree) which would exclude the indiscriminate attacks from their scope of application. This exclusion was never intended by the drafters of the RS and the EC, and it would result in a true paradox because, while the perpetrators of disproportionate attacks against military targets would be criminally liable, the perpetrators of indiscriminate attacks would not be criminally liable under the RS. X...

The Different Treatment of Reckless Conduct in the RS and in the ICTY ’s Case Law

The question arises as to whether criminal liability arises in those cases in which civilians or civilian objects are attacked as a result of non-compliance with the precautionary measures provided for in art. () AP I, and particularly with that requiring to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph  of Article  and that it is not prohibited by the provisions of this Protocol to attack them”. In the author’s view, these cases can only amount to a crime of directing an attack at civilians or civilian objects if, as a result of a flagrant breach of the above-mentioned precautionary measures, it can be stated that: (i) the perpetrator launched an indiscriminate attack which was not directed at any concrete military target and (ii) the perpetrator was aware that his attack would necessarily, or at least probably, end up hitting civilians or civilian objects instead of military targets (in cases of mere likelihood, the perpetrator would also need to be reconciled with such a result). Any other case in which the perpetrator launches an attack against civilians or civilian objects in the mistaken belief that he is attacking a military objective as a result of failing to take all mandatory precautionary measures pursuant to art. () AP I will have to be treated as a mistake of fact pursuant to art.  RS. According to this provision, any mistake regarding the factual circumstances that establish the civilian status of the person or object under attack – regardless of whether the perpetrator could have avoided the mistake by acting with due diligence or by taking all mandatory precautionary measures provided for in art. () AP I – negates the perpetrator’s dolus. As a consequence, considering that art. ()(b)(i) and (ii) and (e)(i) RS excludes the negligent commission of the

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crimes, one can only conclude that under the RS, no criminal liability arises from the launch of an attack under the above-mentioned circumstances. However, this does not mean that the perpetrator cannot be criminally liable for the damage caused by his attack. In the author’s opinion, in those cases in which an attack as such does not give rise to criminal liability because the perpetrator mistakenly believed that he was attacking a military target, the perpetrator could still be liable for the crime of destruction of the enemy’s property not justified by imperative military necessity if it is shown that his attack is unlawful under international humanitarian law. This would be the case where the following four conditions are met: (i) the initial attack, in spite of not giving rise to criminal liability pursuant to the RS, was unlawful because the perpetrator’s mistake over the civilian status of the object of his attack was due to his failure to take those precautionary measures required by art. () AP I; (ii) the perpetrator acted with dolus with respect to the destruction of the enemy’s property (he intended to cause such destruction or was reconciled with the fact that such destruction would be the probable result of his attack); (iii) the mistake over the civilian status of the object of the attack is irrelevant because the definition of the crime of destruction of the enemy’s property does not make a distinction between civilian objects and military targets and (iv) the destruction was not justified by imperative military necessity. There are important differences between the RS and ICTY’s case law on this matter. According to the ICTY’s case law, the general subjective element of the crime of launching an attack against a civilian population or against civilian persons not only includes dolus directus in the first and second degrees and dolus eventualis but it also includes subjective recklessness (closely related to the category of “conscious culpability” in civil law systems) and objective recklessness (closely related to the category of “gross negligence” in civil law systems) – both of them falling within the category of negligence in civil law systems. The reason for this broad interpretation of the general subjective element is the use of the expression “wilful” in art. () of AP I which, according to the ICTY’s case law, would be broad enough so as to include the common law category of recklessness.  Art. ()(b)(xiii) and (e)(xii) RS.  See supra section IV...  As the Galić Judgement, supra note , has pointed out: “. The Trial Chamber will now consider the mental element of the offence of attack on civilians, when it results in death or serious injury to body or health. Article  of Additional Protocol I explains the intent required for the application of the first part of Article (). It expressly qualifies as a grave breach the act of wilfully ‘making the civilian population or individual civilians the object of attack’. The Commentary to Article  of Additional Protocol I explains the term as follows:

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As a result, even in those cases in which the perpetrator did not intend to attack civilian persons, the perpetrator would be criminally liable if he recklessly (with conscious culpability or gross negligence) disregarded the possible civilian status of the persons against whom his attack was directed. Hence, the perpetrator is punished for manifestly acting without due diligence for not verifying the civilian status of the persons against whom his attack was directed. In this context, the perpetrator’s mistake regarding the civilian status of the persons and objects against whom his attack is directed does not per se exclude the perpetrator’s criminal liability unless it is shown that he could not have overcome his mistake by not manifestly acting without due diligence. The Trial Judgement in the Galić case gives several examples of the reckless (conscious culpability or gross negligence) commission of the crime of launching an attack against a civilian population or civilian persons. For instance, after analyzing sniping incident , the Majority of the Trial Chamber came to the conclusion that the shooter, or a reasonable person in the same circumstances, should not have ignored the possibility of the victim’s civilian status in light of the clothing worn by the victim (a long red or violet skirt, a shirt and a pullover) and the activity in which she was engaged at the time she was hit (she was returning home with a wilfully: the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them (‘criminal intent’ or ‘malice aforethought’); this encompasses the concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences. The Trial Chamber accepts this explanation, according to which the notion of ‘wilfully’ incorporates the concept of recklessness, whilst excluding mere negligence. The perpetrator who recklessly attacks civilians acts ‘wilfully’. . For the mental element recognized by Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant”. This legal finding of the Trial Chamber has been explicitly upheld by the Galić Appeal, supra note , ¶ . There, the Appeals Chamber, when dealing with the crime of attacks directed against civilians, refers with approval to the Trial Chamber’s finding that “the perpetrator must undertake the attack ‘wilfully’, which it defines as wrongful intent, or recklessness, and explicitly not ‘mere negligence’”. On the other hand, the Strugar Judgement, supra note , ¶ , stated that in the context of that case it was not necessary to rule on whether the crimes of directing an attack against civilians or civilian objects could be recklessly (with conscious culpability or gross negligence) committed.

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ten-litre bucket of drinking water). As a result, the Majority concluded that the perpetrator shot at her knowing that she was a civilian or, at the very least, being aware of the high likelihood that the person he shot at had a civilian status. In sniping incident , the Majority considered that the clothing worn by the victim (a skirt, a shirt and a pullover) and the activity in which she was engaged (she was returning home with drinking water from a well) at the time she was shot at clearly indicated her civilian status. Moreover, there was a considerable distance from the area where the victim was hit to the front line and there was no military objective or combat activity in the area. According to the Majority, the perpetrator should not have ignored the possibility of the victim’s civilian status. As a result, the Majority concluded that the perpetrator acted either with knowledge of the civilian status of the attacked person or, at the very least, with awareness of the high likelihood that the person shot at had civilian status. Finally, in sniping incident , the Majority found that – although there is usually sunlight at six o’clock in the morning in the month of July in Sarajevo – given the lack of evidence regarding the amount of sunlight at the time the victim was shot at, it could not exclude the possibility that the perpetrator was unaware of the fact that the victim was a middle-aged women carrying wood. Nevertheless, for the Majority, the absence of a military presence in the area where the victim was hit (it was an open space with only three houses in the vicinity) should have put the perpetrator on notice of the need to further verify whether the victim had military status before shooting at her. As a result, the Majority concluded that the victim had been shot at without any consideration being given by the perpetrator to her possible civilian status. The differences between the RS and the ICTY’s case law on the general subjective elements of the crimes of directing an attacks at civilians or civilian objects are closely related to the different ways in which the objective elements of these crimes are defined. On the one hand, the RS defines these crimes as crimes of mere action that are completed by the mere launch of the attack. Therefore, since the result of the attack is irrelevant, the general subjective elements of the crimes are more stringent. On the other hand, the ICTY’s case law has taken the opposite approach insofar as it requires death, injuries or damage to be caused as a result (causal link) of the attack and it provides for the reckless (with conscious culpability or gross negligence) commission of the crimes. In the author’s view, the RS defines in a more precise manner the boundaries between attacks directed at civilians or civilian objects and disproportionate attacks (i.e. attacks against a concrete military target which cause excessive incidental civilian damage).    

Galić Judgement, supra note , ¶ . Id. Id. at ¶ . Id. at ¶ -.

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However, for some this option could be too restrictive because: (i) there is no need to put forward definitions of these crimes that are more restrictive than the ones provided for in art. ()(a) AP I – which, according to the ICTY’s case law, uses the expression “wilful” to include not only dolus but also, at the very minimum, subjective and objective recklessness – and (ii) allows for the exclusion of the perpetrator’s individual criminal responsibility as a result of mistakes of fact resulting from his failure to take the mandatory precautionary measures provided for in art. () AP I. X...

Practical Analysis of the Determination of the Subjective Elements in Land Operations Supported by Artillery Fire

Both the more demanding general subjective element provided for in the RS and the less demanding one provided for by the AP I and the ICTY’s case law are particularly difficult to prove in relation to land operations where artillery support plays a major role. As seen above, this type of operation, and in particular the unlawful use of mortars and other artillery weaponry, has been the subject of most of the investigations and prosecutions undertaken after WW II of crimes which occurred during the conduct of hostilities. In the author’s view, this analysis should be based on a two-fold premise: (i) an attack does not become unlawful, much less criminal, by the mere fact that civilians are killed or civilian objects are destroyed and (ii) the starting point for any criminal investigation is not the damage caused but the reasons underlying the attack because, even in those cases in which several shells hit the same area, it might be difficult to determine the intended target given the lack of precision of the weaponry used. The best way to determine the reasons underlying an attack are the orders and intelligence reports produced by the attacking forces before and during an attack. This documentation constitutes the best way to decipher what the relevant military commander was thinking while the artillery attack was ongoing. In the absence of such documentation, and given the impossibility of inferring the com-

 As Parks, Air War, supra note , p. , has pointed out: “No belligerent should be required to forfeit the normal percentage of hits which might be expected on his target, simply because there will be a percentage of ‘misses’. The percentage of ‘hits’ is a military calculation. By his effective five per cent he may destroy his ‘military objective’ wherever the other ninety-five per cent may go. By it he may win the war. It is not a question of an intention to hit civilians instead of military depots, or an intention to terrorize generally. Like the actuary figuring expectant mortality for a life insurance company, he cannot foretell what will happen in any individual case, but he can tell what his average will be. His intent is to place ‘the maximum number of hits’ on his target according to his average accuracy”.

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mander’s state of mind from the death, injuries and damage caused by the attack, it is necessary to resort to other sources of information. Among them, the military doctrine of the attacking forces at the moment of the attack is of particular relevance because the doctrine usually limits, to an important extent, the discretion of military commanders in the selection of targets. For instance, military doctrine usually requires maintaining tight control of artillery weaponry and ammunition because of their tactical and operational importance and the logistical difficulties posed by the transportation of large amounts of ammunition supplies. The relevance of the attacking forces’ military doctrine to deduce the military commander’s state of mind is underscored by the following example. Division X defends an urban area where numerous civilians reside. It has distributed its units and weaponry throughout the city, including in the vicinity of areas were civilians and civilian objects are located. Division X has placed two mortars in a position which is protected from direct enemy fire and is approximately  metres away from a church which has a surface area of approximately  square metres. The two mortars sporadically hit enemy positions outside the city. Hence, both mortars and their respective crews are military objectives because they contribute to the military effort of Division X and their destruction will give a definitive military advantage to the attacking Division Y. Absent any previous attack that could indicate the intention of the military commander of Division Y, the first question to be analyzed relates to the selection of the weaponry and ammunition for the destruction of the two mortars of Division X. Mortars have a short range because their projectiles travel at a very high trajectory and, thus, they are extremely vulnerable to direct enemy fire, particularly from tanks. Therefore, mortars are usually located behind some sort of protection to prevent the enemy from having a direct line of fire against them. According to Division Y’s military doctrine, the most appropriate weapon to destroy a mortar against which there is no direct line of fire in an urban area is another mortar, given the high trajectory of their shells and their efficacy in destroying enemy units with insufficient protection such as vehicles or other military equipment which can be easily damaged by small explosions that disperse thousands of small metal pieces. However, using mortars in an urban area presents the problem that any person without protection within a given range of the point of impact can be killed or injured. As a consequence, from the mere fact that Division Y’s military commander decided to use mortars to neutralize the two Division X’s mortars, it is not possible to infer that Division Y’s military commander acted with the necessary dolus (RS) or recklessness (ICTY’s case law) for criminal responsibility to arise from the attack. If, on the contrary, Division Y’s military commander had decided to use any other kind of weaponry against Division X’s mortars – particularly heavy weaponry – it would be more plausible to infer his dolus or recklessness for the fol-

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lowing reasons. Firstly, the use of any other weaponry would mean that Division Y’s military commander did not follow the military doctrine of his own army. Secondly, the principle of economy in the use of force provides that in combat situations in urban areas heavy weaponry should only be used to destroy those military targets which are protected by solid infrastructures against which mortars are useless. Thirdly, mortar ammunition is relatively cheap, light and easy to transport in relation to the ammunition used by other kinds of artillery weapons such as the howitzers. On the other hand, according to Division Y’s military doctrine, an official must always act as an observer during an artillery attack. He must be located in a forward position from which he can clearly observe the points of impact and inform the mortar crew by phone or radio of the necessary adjustments to the target coordinates. As a matter of fact, in practically all cases mortar fire will need to be corrected. Indeed, it is extremely unusual that a mortar hits its target with its first shell because it is a weapon which causes destruction by dispersing thousands of small metal fragments as result of the impact of the shell in the proximity of military targets with inadequate protection. As a result, the use of mortars from hidden positions without the assistance of a forward observer could constitute important indicia of Division Y’s military commander’s dolus (or, at the very least, recklessness) because, in addition to the useless loss of ammunition, it would amount to a grave breach of the fire control procedure. Apart from the attacking forces’ military doctrine, others sources of information will be useful to deduce the military commander’s state of mind in the absence of orders and intelligence reports produced by the attacking forces before and during an attack. Such sources should provide enough information to answer a number of questions which are relevant for the determination of the military commander’s state of mind, including the following: (i) which kind of weaponry and ammunition were used during the attack?; (ii) which kind of weaponry and ammunition did the relevant military commander have at his disposal when the attack took place?; (iii) where were the firing points and the points of impact?; (iv) could the attacking forces observe the points of impact?; (v) what injuries or damage was caused to civilians and civilian objects by the attack?; (vi) if both military targets and civilian objects were hit during the attack, in which order were they hit?; (vii)  During the sieges of Sarajevo and Dubrovnik, the parties to the conflict used M-  mm mortars. Shooting from a distance of  kilometres and with the assistance of a forward observer, a well-trained crew could place  out of  projectiles within a rectangle of  metres (range probable error) by  metres (direction probable error) measured from the location of the target. The remainder would land outside such a rectangle. Logically, as the shooting distance decreases, the margin of error also decreases.

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what was the broader strategic and operational context in which the attack took place?; and (viii) did the attack take place in the context of an ongoing combat situation or after a period of calm? X.. X...

Disproportionate Attacks

The Military Commander’s Application of the Proportionality Rule on the basis of the Expected Incidental Civilian Damage and the Concrete and Direct Overall Military Advantage Anticipated

Art. ()(b)(iv) RS defines the general subjective element of the crime of launching disproportionate attacks by using the expressions “intentionally” (in relation to the launch of the attack) and “in the knowledge” (referring to the manifestly excessive incidental civilian damage expected from the attack). This is another situation in which the definition of the crime contains its own general subjective element which makes the general subjective element provided for in art.  RS inapplicable. Concerning its content, it must be first highlighted that this crime can only be committed if the perpetrator intends to direct the attack at a concrete military objective. Secondly, the perpetrator must be aware of the scope of the incidental civilian damage (“incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment”) that the attack will necessarily or, at the very least, will probably cause. This requisite was never questioned during the Rome Conference because, from the beginning, it was agreed that any alleged responsibility from an attack should only be analyzed on the basis of the perpetrator’s knowledge at the time he decided to launch the attack – and not on the basis of any subsequent information . It is notable that this type of analysis had already been used in the hostage case following WW II. In that case, in spite of the Prosecution’s allegations of  See the investigative checklists for shelling and sniping incidents included in Fenrick, International Humanitarian Law and Combat Casualties, supra note . A discussion of the relevance of these factors on the basis of a practical example is included in Willey, Prospects, supra note , pp. -.  Pfirter, Excessive Incidental Death, supra note , pp. -.  Id. at p. .  Fenrick, The Rule of Proportionality, supra note , p. .  As the Judgement in the Hostage Case stated: “The Hague Regulations prohibited ‘The destruction or seizure of enemy property except in cases where this destruction or seizure is urgently required by the necessities of war’”. Article (g). The Hague Regulations are mandatory provisions of International Law. The prohibitions therein contained control and are superior to military necessities of the most

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the unlawful character of the destruction caused as a result of the “scorched earth” policy in the Norwegian province of Finnmark carried out by the German troops in order to prevent the Russian forces from pursuing them while retreating from Norway, the accused Lothar Rendulić was acquitted. The reason for his acquittal was that, although the information introduced at trial indicated that there was no risk of pursuit by the Russian troops, the accused had reached the opposite conclusion on the basis of the information at his disposal at the time he decided to set in motion the “scorched earth” policy. As a consequence, for the purpose of the proportionality analysis, one has to take into consideration the perpetrator’s representation at the time of the attack as to the scope of the incidental civilian damage that such an attack will probably cause. This is so even in those cases in which the perpetrator’s representation of the probable incidental civilian damage is far lower than the real risk posed by the attack to civilians and civilian objects – regardless of whether the perpetrator’s error was caused: (i) by a breach of his duty to first verify and subsequently miniurgent nature except where the Regulations themselves specifically provide the contrary. The destruction of public and private property by retreating military forces which would give aid and comfort to the enemy, may constitute a situation coming within the exceptions contained in Article (g). We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finnmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered with his own military situation provided the facts or want thereof which furnished the basis for the defendant’s decision to carry out the ‘scorched earth’ policy in Finnmark as a precautionary measure against an attack by superior forces. It is our considered opinion that the conditions as they appeared to the defendant at the time were sufficient, upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act. We find the defendant not guilty of this portion of the charge”. See Hostage Case, supra note , pp.  et seq, p. .  In this sense, the Judgement in the Hostage case pointed out: “There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be held criminally responsible although when viewed in retrospect, the danger did not actually exist”. See Hostage Case, supra note , pp.  et seq, p. .

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mize as far as possible the magnitude of the incidental civilian damage caused by the attack or (ii) by the lack of due diligence in analyzing the information at his disposal. These are cases of error of fact (error over the scope of the incidental civilian damage that the attack is expected to cause) which negate the perpetrator’s dolus and exclude his criminal liability. In the author’s view, the only exception to this rule would be those cases in which the perpetrator decides not to take the mandatory precautionary measures provided for in art.  AP I – or he decides not to analyze the information at his disposal about the scope of the incidental civilian damage expected from the attack – in order to prevent cancelling the attack due to more complete knowledge of the scope of the incidental civilian damage expected from the attack. Thirdly, the perpetrator must be aware of the scope of the concrete and direct overall military advantage anticipated from the attack. As a consequence, for the purpose of the proportionality analysis, one has to also take into consideration the perpetrator’s representations as to the scope of the expected military advantage at the time of the attack. This is so even in those cases in which the perpetrator’s representation is greater than the military advantage that can be objectively anticipated form the successful completion of the attack, regardless of whether the perpetrator’s error was due to a breach of his duty to verify the nature of the attacked target or to an unreasonably optimistic analysis of the information at his disposal. These are cases of error of fact (error over the scope of the concrete and direct overall military advantage which could be objectively gained from the total or partial destruction, capture or neutralization of the target) which negate the perpetrator’s dolus and exclude his criminal liability. In the author’s view, the only exception to this rule would be those cases in which the perpetrator decides not to take the mandatory precautionary measures provided for in art. () AP I or decides not to analyze the information at his disposal in order to prevent the cancellation of the attack due to more complete knowledge of the scope of the military advantage that could be expected from the attack Fourthly, the question arises as to whether the perpetrator, after applying the proportionality rule, must have concluded that the expected incidental civilian damage was manifestly excessive in relation to the concrete and direct overall military advantage anticipated from the attack; or, whether, on the contrary, the perpetrator’s conclusion after applying the proportionality rule is irrelevant and  Art. () AP I.  As footnote  of the EC expressly states, “the expression ‘concrete and direct overall military advantage‘ refers to a military advantage that is foreseeable by the perpetrator at the relevant time”. See also Pfirter, Excessive Incidental Death, supra note , p. .

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thus it is left to the competent Chamber of the ICC to decide whether the incidental civilian damage expected by the perpetrator is manifestly excessive in relation to the military advantage anticipated by him. This was certainly the most controversial question regarding the definition of the crime of launching a disproportionate attacks provided for in art. ()(b)(iv) RS and its subsequent elements. For NATO States, the RS should criminalize the launch of an attack only if the perpetrator has knowledge of its disproportionate character. Hence, the perpetrator should only be criminally liable when it can be proven beyond reasonable doubt that, after applying the proportionality rule, he concluded that the expected incidental civilian damage was manifestly excessive. On the other hand, the rest of the delegations to the Rome Conference were of the view that the RS should criminalize the launch of any attack where the incidental civilian damage expected by the perpetrator is objectively “manifestly excessive” in relation to the concrete and direct overall military advantage anticipated by him. This debate was closely related to the question of the military or civilian status of the person who should have the last word in the application of the proportionality rule. In principle, there was no disagreement as to the standard for the application of the proportionality rule, which should be that of a “reasonable military commander” insofar as the decision to launch an attack is made at a certain level within the chain of command. Furthermore, the use of this standard would avoid controversies in the application of the proportionality rule because the great majority of reasonable military commanders would agree on the fact that the incidental civilian damage expected from an attack is, or is not, manifestly excessive. Moreover, if there is an issue on which military legal writers, professors of international humanitarian law, non-governmental organizations (such as

    

Dörmann, Elements of War Crimes, supra note , p. . Pfirter, Excessive Incidental Death, supra note , p. . Id. at p. . Fenrick, Attacking the Enemy Civilian, supra note , p. . See among others, J.E. Parkerson, Jr., United States Compliance with Humanitarian Law Respecting Civilians during Operation Just Cause,  Mil. L. Rev.  (); Parks, The Protection of Civilians, supra note , p. .  As Oeter, Methods and Means, supra note , p.  has pointed out, “one should not exaggerate demands for exact detail in such a rule. What is required is no more than a sincere effort to cope with the problem of collateral damage, and a proper application of common sense”.

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Chapter X

Human Rights Watch) and the ICRC agree, it is that the standard of the reasonable military commander is the most suitable for the application of the proportionality rule. The difference in approach arises because some military legal writers have emphasized the need for civilian judges to be trained on war-related matters in order to understand the competence of a reasonable military commander when applying the proportionality rule, whereas other legal writers have emphasized the need to define notions such as reasonable military commander in a more accessible way for those who do not have a military training in order to facilitate the understanding and application of the proportionality rule. In the author’s view, it is not clear whether the expression “in the knowledge” in art. ()(b)(iv) RS requires the perpetrator to be aware of the manifestly excessive character of the incidental civilian damage that he expects from the attack. However, footnote  to the EC clarifies this question by establishing that “as opposed to the general rule set forth in paragraph  of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein”. Furthermore, this interpretation is also supported by the mandate given by art. () RS to strictly construe the definition of the crimes and to interpret in favour of the accused any ambiguity that could be raised by the reference in footnote  to the EC to the fact that “an evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time”. As a consequence, if the perpetrator mistakenly believes that the incidental civilian damage that he expects from the attack is not manifestly excessive in relation to the concrete and direct overall military advantage that he anticipates from the attack, the perpetrator commits an error of fact that excludes his dolus. Hence, as the crime of launching disproportionate attacks cannot be negligently committed, such an attack will not give rise to criminal liability. A different question is whether, from a purely evidentiary perspective, in those cases in which the expected incidental civilian damage is so manifestly excessive that no reasonable military commander would have concluded other According to HRW, Needless Deaths, supra note , p. , “compliance with the rule of proportionality depends on the subjective judgment of military commanders in specific situations”.  For Sandoz, Commentary, supra note , pp. -: “Even if this system is based to some extent on a subjective evaluation, the interpretation must above all be a question of common sense and good faith for military commanders”.  C. Dunlap, Comment, Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies  (A. Wall ed. ); Concurring Green, Comment, supra note , pp. -.  M. Bothe, The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on the Report to the Prosecutor of the ICTY,  Eur. J. of Int’l L. - ().

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wise, a Chamber of the ICC could find that, in spite of the error claimed by the accused, he was aware of the manifestly excessive character of the incidental civilian damage that he expected from the attack. Fifthly, the expression “intentionally launching an attack” in art. ()(iv) RS reinforces the conclusion that the launch of a disproportionate attack only gives rise to individual criminal liability if the perpetrator acts with dolus. This is only the case in any of the three following scenarios: (i) the perpetrator decided to launch an attack against a concrete military objective aimed at causing manifestly excessive incidental civilian damage (dolus directus in the first degree); (ii) the perpetrator decided to launch an attack against a concrete military objective with knowledge that such attack would necessarily cause manifestly excessive incidental civilian damage or (iii) the perpetrator decided to launch an attack against a concrete military objective with knowledge of the likelihood that such attack would cause manifestly excessive incidental civilian damage and he accepted such a result. Nevertheless, the fact that the launch of an attack does not give rise to criminal liability pursuant to the RS does not necessarily mean that the deaths, injuries or damage caused by such an attack do not give rise to criminal liability. On the contrary, as long as the attack is unlawful pursuant to the set of rules which develop the principle of distinction in the Additional Protocols, the competent Chamber of the ICC may proceed with an analysis of whether the result of the attack gives rise to criminal liability for any of the other crimes provided for in the RS. Hence, if, as a result of the perpetrator’s breach of his duty to take the mandatory precautionary measures to verify to the greatest extent possible the scope of the incidental civilian damage that could be expected from his attack, the perpetrator mistakenly believes that the expected incidental civilian damage is substantially lower than it is in reality (and thus it is not manifestly excessive in relation to the concrete and direct overall military advantage anticipated), the competent Chamber will have to analyze whether the incidental damage finally caused to civilian objects amounts to the crime of destruction of the enemy’s property not imperatively demanded by the necessities of war. As a consequence, it may very well happen that the accused is acquitted of the crime of launching disproportionate attacks but is convicted for the crime of destruction of the enemy’s property.

 Art. () AP I.  Art. ()(b)(xiii) and (e)(xii) RS.

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Chapter X X...

The Different Treatment of the Reckless Launch of a Disproportionate Attack in the RS and in the ICTY ’s Case Law

The scenario that has been just described can take place because the RS, unlike the ICTY’s case law, defines the crime of launching disproportionate attacks as a crime of mere action which requires the dolus of the perpetrator. However, it is very unlikely that such scenario could take place in a context such as the one set forth by the ICTY’s case law where the incidental civilian damage caused by an attack is treated as evidence of the launch of an attack against civilians or civilian objects. Furthermore, as seen above, according to the ICTY’s case law, criminal liability arises from reckless (with conscious culpability or gross negligence) attacks against civilians or civilian objects. Hence, any mistake of fact that could have been avoided if the perpetrator had not manifestly acted without due diligence does not exclude the criminal liability of the perpetrator. As a result, in the above-mentioned example, the ICTY would use the fact that the attack – despite appearing prima facie to have been launched against a concrete military objective (a small ammunition warehouse) – ended up causing excessive incidental civilian damage (the destruction of the apartment block above the ammunition warehouse) as evidence showing that the attack was indeed directed at civilians or civilian objects. Moreover, if the perpetrator mistakenly undervalued the scope of the foreseeable incidental civilian damage due to his failure to take the mandatory precautionary measures provided for in art. () AP I, he could still be criminally liable for the reckless (with conscious culpability or gross negligence) commission of the crime of directing attacks at civilians or civilian objects. In such a situation, a reasonable military superior in the same circumstances should have verified to the greatest extent possible the scope of the foreseeable incidental civilian damage by taking the mandatory precautionary measures provided for in art. () AP I. In any event, it is important to highlight that the general subjective element provided for in art. ()(b)(iv) RS (“in the knowledge that such attack will cause… which would be clearly excessive”) is a more demanding standard than than the standard (“the attack may be expected to cause… which would be excessive”) provided for in arts. ()(b) ()(a)(iii) and art. ()(b) AP I. This last standard provides for the reckless (with conscious culpability or gross negligence) launch of a disproportionate attack resulting from the perpetrator’s manifest breach of his duty to act with due diligence in obtaining and analyzing the avail Galić Judgement, supra note , ¶ .  This last provision, after using the formula “in the knowledge”, expressly refers to art. ()(iii) AP I.

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able information before launching the attack. As it has been pointed out, what is relevant for the purpose of applying this standard is the information that was available to the perpetrator at the time of the attack and not only the information that was actually in his possession. The standard of the AP I has been embraced by the Trial Judgement in the Galić case. In this judgement, it is stated that for criminal liability to arise from a disproportionate attack – although, as seen above, such an attack must be previously qualified as an attack against civilians or civilian objects – it is necessary to prove beyond a reasonable doubt that the perpetrator was aware of those circumstances on the basis of which it was objectively foreseeable that the incidental civilian damage would be excessive. In this regard, the ICTY OTP, when analyzing whether the NATO aerial campaign in Kosovo in  had caused widespread, long-term and severe damage to the natural environment, stated that it was necessary to know: (i) the extent of the NATO forces’ knowledge of the nature of the Serb military industries that were attacked; (ii) the extent to which NATO forces could have reasonably expected to cause the environmental damage that was finally incurred (for instance, the extent to which NATO forces could have reasonably expected the storage of toxic substances next to the Serb military objectives that were attacked) and (iii) the extent to which NATO forces could have reasonably used other means or methods of warfare that would have allowed them to minimize the incidental civilian damage and still hit their targets. The analysis by the ICTY OTP of the NATO bombardment of the village of Koriša on  May  is particularly revealing on this point. On that day, NATO aircraft dropped ten bombs on the village of Koriša, which was located on the road between Prizren and Priština. As a result,  civilians – mostly refugees – were killed and  civilians were injured. NATO sources claimed subsequently that their intelligence services had identified a military camp and a command post in the outskirts of Koriša where an armoured vehicle and ten artillery  This formula is included in the following excerpt of the Statement of Understanding made by Canada in relation to AP I: “Military commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the basis of their assessment of the information reasonably available to them at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light”. See Roberts, Documents on the Laws of War, supra note , p. .  Galić Judgement, supra note , ¶ . The Galić Appeal, supra note , ¶  stated that manifest violations of the proportionality rule “may give rise to the inference of direct attacks on civilians”. Moreover, in relation to this last crime, the Appeals Chamber affirmed at ¶  that the Trial Chamber was correct in adopting the recklessness standard provided for AP I.  ICTY OTP’s Report on the NATO campaign in Kosovo in , supra note , ¶ .  Id. at ¶ .

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Chapter X

weapons that had been used throughout the conflict were positioned. As a result, for NATO, the attack was lawful because it was directed at a concrete military objective. NATO sources also claimed that NATO was not aware of the presence of civilians in the camp. According to these sources, before the attack (at approximately : hours) the pilot had identified the target as a military camp on the basis of the silhouettes of the vehicles that were just outside the camp, although the pilot could not identify the persons who were sleeping inside the camp because it was dark. Only at that time was the pilot of the first aircraft authorized to drop two laser-guided bombs on the objective. Ten minutes later, a second aircraft dropped several additional bombs on the target. Hence, according to NATO sources, all possible precautionary measures had been taken to verify whether civilians were present before launching the attack. On the basis of this information, the ICTY OTP found no indicia of any criminal conduct by the pilots or by their military commanders, regardless of whether the numerous civilians killed and injured in the attack were refugees returning to Kosovo or inhabitants of Koriša used by the VJ as human shields.

 Id. at ¶ .  Id. at ¶ .  Id.

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Chapter XI Grounds for Justification and the Scope of Self-Defence in Combat Situations

Grounds for justification are those circumstances that make attacks directed at civilians or civilian objects and disproportionate attacks lawful. They are the result of a number of political, social and legal considerations that render such attacks lawful when certain elements are fulfilled. As a consequence, unlike the grounds for excuse which, in spite of excluding the perpetrator’s criminal liability, do not affect the unlawfulness of the attack, the grounds for justification have inter alia the following effects: (i) preventing third persons from resorting to self-defence against the attack because the attack is not unlawful and (ii) excluding the criminal liability of any participant in the attack because, in the final analysis, the attack is lawful. The grounds for justification are comprised of objective and subjective elements. It is not sufficient if only the objective elements of a ground for justification are fulfilled; it is also necessary for the perpetrator to be aware of their existence. Although art.  RS includes under one heading all of the grounds for excluding criminal liability without making any distinction among grounds for justification, grounds for excuse and grounds for exemption of punishment, art. ()(c) RS includes some circumstances, such as acting in self-defence or in the defence of property, which are stricto sensu grounds for justification. The first ground for justification arises when there is an objectively imminent and unlawful use of force against the perpetrator or a third person. In that regard, the ICC’s case law will have to answer the question of whether the expression “unlawful use of force” encompasses only physical force or also includes psychological pressure resulting, for instance, from threats. Therefore, the response (in the case at hand, the launch of an attack against civilians or civilian objects or a

 Fletcher, Rethinking Criminal Law, supra note , pp. - and -. See also Muñoz Conde, Derecho Penal, supra note , p. .  A. Eser, Article . Grounds for Excluding Criminal Responsibility, Commentary on the Rome Statute of the International Criminal Court  (O. Triffterer ed., Nomos, ) [hereinafter Eser, Article ].  Art. ()(c) RS expressly provides that this ground for justification is only applicable in relation to war crimes.

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Chapter XI

disproportionate attack) must be carried out immediately before or during the enemy’s unlawful use of force. Furthermore, this ground for justification requires that the defensive action be reasonable in the sense that it is: (i) suitable and necessary to avoid the imminent risk or to repel the ongoing unlawful use of force and (ii) proportionate to the degree of danger to which the perpetrator or the third person is exposed as a result of the unlawful use of force. Moreover, this ground for justification requires the person responding to the enemy’s imminent and unlawful use of force to be aware of the fact that his attack is a suitable, necessary and proportionate response to the unlawful use of force by the enemy, although avoiding the imminent risk or repelling the enemy’s ongoing unlawful use of force does not need to be his main purpose. The question arises as to whether non-combatants who do not actively participate in the hostilities lose their protection – and therefore become military objectives – as a result of resorting to armed violence in order to save their lives or the lives of third persons (usually relatives) against members of the enemy’s armed forces who are attacking them – or are about to attack them – unlawfully. In other words, do Hutu civilians who do not actively participate in the hostilities lose their protected status as a result of throwing stones at the members of the Interahamwe militia who approach them armed with machetes with the intent to kill them? Likewise, do those villagers who do not actively participate in the hostilities lose their protected status because they decide to shoot with their hunting rifles at the members of the enemy’s armed forces who are attacking the village with the intent to exterminate all its inhabitants? The answer to these questions depends on the scope of application of selfdefence in combat situations. If one considers that self-defence is not applicable in this context, the Hutu civilians or the villagers in the above-mentioned examples would lose their protected status and become military objectives for as long as they resort to armed violence. Hence, they could be lawfully attacked – this result would not vary regardless of whether one considers that they lawfully resorted to armed force in accordance with art. () GC III or whether it appears that they unlawfully resorted to armed violence because they were civilians and did not have the right to participate in the hostilities. Nevertheless, art. ()(c) RS does not exclude the application of self-defence with regard to any of the war crimes provided for in art.  RS, including those that can only be committed in combat situations, such as the launch of attacks at  Rodríguez-Villasante, Los Principios Generales del Derecho Penal, supra note , p. .  This provision grants the status of prisoner of war to those who fall into enemy hands if they are “inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war”.

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Grounds for Justification and the Scope of Self-Defence



civilians or civilian objects or disproportionate attacks. Therefore, in the author’s view, the Hutu civilians and the villagers in the above-mentioned examples would not lose their civilian status and would not become military objectives as a result of resorting to armed violence to repel the enemy’s unlawful use of force and save their lives or the lives of third persons. However, the ICC’s case law will have to be particularly cautious in defining the scope of application of self-defence in combat situations. In the author’s view, it should be confined to those cases in which protected persons resort to armed violence in an isolated instance because of an imminent or an ongoing unlawful use of force by the enemy against them or third persons. Otherwise, in combat situations, any protected person against whom members of the enemy’s armed forces have used – or are about to use – force unlawfully will be entitled to shoot at his attackers both while he tries to repel the enemy’s unlawful attack and thereafter until the risk of additional unlawful use of force by the enemy is eliminated. In the meantime, the protected person would maintain his protected status and, hence, enemy forces could not shoot back at him. In other words, in a situation such as the siege of Sarajevo, an inappropriate extension of the scope of application of self-defence in combat situations could bring about the following scenario: Bosnian-Muslim civilians under siege in Sarajevo would be entitled for a period of several years to shoot in self-defence at SRK forces surrounding the city while it would be forbidden for the latter to shoot back at the Bosnian-Muslim civilians. The defence of property only constitutes a ground for justification when there is an imminent and unlawful use of force against property which is essential for the survival of the responding person or another person or is essential for the accomplishment of a military mission. The response (in the case at hand, the launch of an attack against civilians or civilian objects or a disproportionate attack) must be carried out immediately before or during the enemy’s unlawful use of force, and must be suitable and necessary to avoid the risk or repel the enemy’s unlawful use of force. Furthermore, the response must be proportionate to the enemy’s unlawful use of force. Moreover, the person responding must be aware of the fact that his attack is a suitable, necessary and proportionate response to the unlawful use of force by the enemy – although avoiding the imminent risk or repelling the enemy’s ongoing unlawful use of force does not need to be his main purpose. In order to avoid an inappropriate extension of the scope of application of the two above-mentioned grounds for justification, the last sentence of art. ()(c) RS provides that “the fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph”. In addition to the grounds for justification expressly provided for in art. () RS, several additional grounds for justification are also included in the definitions

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Chapter XI

of some war crimes provided for in art.  RS. Particularly relevant for the purpose of this study is the one included in the definition of the crime of “destroying or seizing the enemy’s property”, according to which such destruction or seizure is lawful when it is “imperatively demanded by the necessities of war”. The ICC’s case law will have to define the content and limits of this ground justification due to the vagueness of the notion of imperative military necessity both in the RS and in the Hague Convention IV of  and its Annexed Regulations. Moreover, the ICC’s case law will have to decide whether imperative military necessity constitutes a ground for justification or whether, as a result of its inclusion in the definition of the crime of destruction or seizure of enemy’s property in art. ()(b)(xiii) and (e)(xii) RS, it constitutes a negative objective element of the crime. Finally, art. () RS leaves the door open for consideration of any other circumstance which is accepted as a ground for justification in international humanitarian law, in the national law of the main legal systems of the world or in the national law of the States that would normally exercise jurisdiction over the relevant crimes.  Art. ()(b)(xiii) and (e)(xii) RS.  See supra sections IV.. and IV...  It is important to highlight the US proposal for configuring imperative military necessity and other circumstances that, under art.  RS, are true grounds for justification as negative objective elements of the crime that must be covered by the general subjective element of the crime. According to this proposal, and considering that art.  RS requires dolus as the general subjective element of most war crimes (and thus excludes their negligent or reckless commission), the perpetrator would only be criminally liable if he carries out the forbidden conduct with knowledge of the existence of the said circumstances (in other words, the perpetrator must be aware of the lack of consent of the victim or of the non-existence of imperative military necessity). See Proposal Submitted by the US: Draft Elements of the Crimes, U.N. Doc. PCNICC//DP. (), General Comments, paragraph , where it was affirmed: “Lawful justification or excuse means justification based on security, military or operational considerations or other imperative reasons of public welfare or other specific lawful authorization or requirement. For example, where authorized by the law of armed conflict, military necessity constitutes ‘lawful justification or excuse’. An element requiring an absence of lawful justification or excuse is included in situations where the actus reus of the offence is similar or identical to a lawful act. It is, in effect, a defence that is specific to certain offences, i.e. a lawful purpose for a particular act relieves the accused of criminal responsibility. The scienter requirement of knowledge of a justification’s inadequacy permits a defence, especially in the case of obedience to a directive or fulfilment of a duty, when an accused may have reasonably believed that the excuse or justification was lawful. For a justification or excuse to be lawful, the activity in question must be consistent with applicable treaties and the principles and rules of general international law, including the established principles of the law of armed conflict, or general principles of law derived by the Court from national laws of legal systems of the world, where those national laws are not inconsistent with the present Statute and with international law”.

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Grounds for Justification and the Scope of Self-Defence



Pursuant to art. () RS, the defence could, in principle, allege the perpetrator’s mistake of fact over the existence of the objective elements of a ground for justification (for instances cases in which the perpetrator mistakenly believes that he was acting in self-defence) which does not negate the general subjective element of the crime and thus does not exclude the criminal liability of the perpetrator pursuant to art. () RS. This is the result of the contextual interpretation of the absence of an express prohibition against the exclusion of criminal liability for this kind of factual error in light of the principle in dubbio pro reo provided for in art. () RS. However, it is important to underscore that art. () RS grants discretion to the competent Chamber of te ICCto determine the efficacy, if any, of any of the grounds for justification alleged under art. () RS.

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Chapter XII Grounds for Excuse. Special Reference to Superior Orders

The material notion of culpability, also referred to as the normative theory of attribution, is closely related to the deterrent effect of the penal norm and states that the suitability of the perpetrator to be motivated by the penal norm is a condition sine qua non for the attribution of criminal liability for the launch of an attack at civilians or civilian objects or a disproportionate attack. This requisite is only met when the perpetrator: (i) has a psychological maturity that enables him to be motivated by the penal norm (attributability or capability of culpability); (ii) is, broadly speaking, aware of the content of the violated penal norm because he can only be motivated by the penal norm if he knows that launching an attack against civilians or civilian persons or a disproportionate attack is prohibited (awareness of the unlawfulness of the attack) and (iii) is in a situation in which a different behaviour (regardless of whether it is more or less inconvenient) can be demanded from him because he will not be able to be motivated by the penal norm if, for example, he is in a position in which complying with the penal norm would amount to a heroic behaviour. Grounds for excuse are those circumstances which negate any of the three abovementioned elements and hence exclude the criminal liability of the perpetrator. Nevertheless, as these elements have a variable character, it is possible that such circumstances only partially negate any of the three elements. In this scenario, those circumstances will only have the effect of diminishing the criminal responsibility of the perpetrator as opposed to excluding it. The grounds for excuse, unlike the grounds for justification, do not affect the unlawfulness of an attack. As a result, third persons may resort to self-defence in response to an unlawful attack and those individuals who assisted the perpetrator to launch the unlawful attack will be criminally liable.  Fletcher, Rethinking Criminal Law, supra note , pp. - and .  Id. at pp. -. See also Muñoz Conde, Derecho Penal, supra note , p. .  Fletcher, Rethinking Criminal Law, supra note , pp. -. See also Muñoz Conde, Derecho Penal, p. .

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Chapter XII

Art.  RS, under the heading “grounds for excluding criminal responsibility”, provides for three grounds for excuse. The first is the perpetrator’s suffering from a mental disease or defect at the time he launches an attack against civilians or civilian objects or a disproportionate attack. According to art. ()(a) RS, the mental disease or defect suffered by the perpetrator must be such that his capacity to appreciate the nature or the unlawfulness of his attack or to control its launch must not exist. Therefore, physical deficiencies affecting the intellectual or volitive capacity of the perpetrator, temporary mental disorders and other situations of diminished psychological capacity would not, in principle, be included. Art. ()(b) RS provides for a second ground for excuse which is the perpetrator’s state of intoxication at the time the unlawful attack is launched as a result of consuming substances (such as drugs or alcohol) which deprive him of his capacity to appreciate the nature or the unlawfulness of his attack or to control its launch. The intoxication must be involuntary or the following two conditions must be met if the intoxication is voluntary: (i) the intoxication takes place without the perpetrator’s awareness of the risk that he would likely engage in the launch of an unlawful attack as a result of it and (ii) that risk is not sufficiently high so as to be socially unacceptable. Art. ()(d) RS provides for duress as a third ground for excuse. This ground for excuse requires the existence of threat of imminent death or of continuing or imminent serious bodily harm against the perpetrator or another person. The threat must come from a third person or from circumstances beyond the perpetrator’s control (such as natural forces). Therefore, those cases in which the threat is the result of a situation voluntarily provoked by the perpetrator are excluded from the scope of application of this ground for excuse. Moreover, the threat must bring about a real, imminent and serious risk and, unlike in situations of self-defence, it is irrelevant whether it results from the lawful or unlawful use of force. The key element of this ground for excuse is that the perpetrator must launch the unlawful attack acting under duress, i.e. giving in to the psychological pressure, in order to avoid the threat of harm. The psychological pressure must be strong enough to overcome the resistance of an average person or, in the case of members of the armed forces, of an average soldier or commander. Art. ()(d) RS also requires that the response (the unlawful attack) be objectively suitable and necessary to avoid the threatened harm. Furthermore, the unlawful attack must not be wholly disproportionate to the threatened harm,

 Concurring Eser, Article , supra note , p. .  For Rodríguez-Villasante, Los Principios Generales del Derecho Penal, supra note , pp. -, the inclusion of this ground for excuse corrects the controversial approach taken by the Appeal Judgement in the Erdemović case according to which duress is not a ground for excuse in the case of crimes against humanity.

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Grounds for Excuse. Special Reference to Superior Orders

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although there is no express requirement that the damage caused by such an attack be lesser than the threatened harm. From a subjective perspective, this ground for excuse requires the perpetrator’s awareness that his unlawful attack constitutes a suitable, necessary and not wholly disproportionate response to the threaten harm. Furthermore, the perpetrator must not intend to cause a greater harm than the one he seeks to avoid. Finally, the ICC’s case law will have to decide whether it is also necessary for the main goal of the perpetrator’s unlawful attack to be the avoidance of the threatened harm. Art. () provides for the perpetrator’s mistake of law as a fourth ground for excuse. However, the gravity of launching an attack against civilians or civilian objects or a disproportionate attack (or of committing any other crime provided for in the RS), along with the different treatment of mistakes of law in national legislations, led the drafters to include a very narrow definition of this ground for excuse in art. () RS. According to this definition, mistakes of law only exclude the perpetrator’s criminal liability if they negate the general subjective element of the crime. Hence, mistakes of law as to whether a given circumstance constitutes a ground for justification are excluded from the scope of application of this ground for excuse. For example, this would be the case if the perpetrator mistakenly beliefs that the defence of property is a ground for justification when the property at risk is not essential for his survival, the survival of another person or the accomplishment of a military mission. Furthermore, the drafters expressly stated that “a mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility”. Moreover, art. () RS makes no distinction between those errors of law that could have been avoided by the perpetrator’s due diligence and those others that would have occurred even if the perpetrator had acted with due diligence. As a result, it can be stated that the scope of application of this ground for excuse is limited to mistakes over the social meaning for an average person (or, in the case of members of the armed forces, for an average soldier or an average commander) of the factual circumstances that establish the normative elements of the crime.  Being aware of the problems that the restrictive definition of mistakes in the RS might cause, Eser, Mental Element-Mistake of Fact and Mistake of Law, supra note , pp. -, proposes the extensive application pro reo of the grounds for justification provided for in the RS (particularly considering that some of them could be treated as negative objective elements of the crimes).  Art. ()(c) RS.  Art. () RS. See also Lubanga Confirmation of Charges, supra note , ¶ .  Lubanga Confirmation of Charges, ¶ -. See also Eser, Mental Element-Mistake of Fact and Mistake of Law, supra note , p. .

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Chapter XII

However, as seen above when analyzing the content of the general subjective elements of unlawful attacks in the RS, the ICC’s case law will have to answer the question of whether the perpetrator’s awareness of the factual circumstances that establish the normative elements of the crime suffices, or whether the perpetrator must also be aware of the social meaning for the average person, soldier or commander of such circumstances. Hence, if the ICC’s case law followed the first option, the scope of application of this ground for excuse under art. () RS would be practically nonexistent. Art.  RS sets out an exception to the general rule that mistakes “as to whether a particular type of conduct is a crime within the jurisdiction of the Court” are not grounds for excuse. This exception applies when the perpetrator launches an attack against civilians or civilian objects or a disproportionate attack – or commits any other war crime – pursuant to an order issued by a Government or a military or civilian superior which the perpetrator considers to be lawful and that he is legally bound to execute. Hence, art.  RS treats “superior orders and prescription of law” as a ground for excuse, which is closely related to mistakes of law, as shown by the reference to art.  in art. () RS which deals with mistakes of law.  This ground for excuse is also an exception to the general rule according to which “the fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility”. Hence, it only excludes the perpetrator’s criminal liability for war crimes when the three requisites set forth in art.  RS are met. Moreover, it never excludes the perpetrator’s criminal liability for genocide and crimes against humanity because, “for the purpose of this article, orders to commit genocide or crimes against humanity are manifestly unlawful”. The first requisite requires the perpetrator to launch the unlawful attack in compliance with “a legal obligation to obey orders of the Government or the superior in question”. The unlawful attack must be launched in execution of a  The Lubanga Confirmation of Charges Decision implicitly adopts at ¶  the second option.  Rodríguez-Villasante, Los Principios Generales del Derecho Penal, supra note , p. .  The general rule is the consequence of the traditional rejection of superior orders as a ground for excuse in relation to international crimes. See F. Bueno Arús, Perspectivas de la Teoría General del Delito en el Estatuto de Roma de la Corte Penal Internacional,  Creación de una Jurisdicción Penal Internacional, Colección Escuela Diplomática - ().  O. Triffterer, Article : Superior Orders and Prescription of Law, Commentary on the Rome Statute of the International Criminal Court  (O. Triffterer ed., Nomos ).  Art. ()(a) RS.

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Grounds for Excuse. Special Reference to Superior Orders



clear mandate (not just mere advice) to carry out a specific activity (in this case, to launch an attack against a specific target) issued by the Government or military or civilian superiors acting within their respective spheres of competence. The second requisite requires that the perpetrator does not know that the order is unlawful such that he launches the attack without being aware that the attack is unlawful. As a consequence, from the moment the perpetrator discovers the unlawfulness of the order, he cannot execute it without being criminally liable. This leads to the conclusion that the RS imposes a duty on every subordinate to disobey any order requiring him to carry out a war crime (including an unlawful attack) provided for in the RS. The third requisite requires that, in addition to the perpetrator’s unawareness of the unlawfulness of the order, the order is not manifestly unlawful. This third requisite seems to limit the scope of application of this ground for excuse to those mistakes over the unlawfulness of the order which are not due to the perpetrator’s lack of due diligence. In addition to the grounds for excuse expressly provided for in arts. (), () and  RS, art. () RS leaves the door open for the consideration of other circumstances which are accepted as grounds for excuse in international humanitarian law, in the national law of the main legal systems of the world or in the national law of the States that would normally exercise jurisdiction over the relevant crimes. The only exception is a mistake of law “as to whether a particular type of conduct is a crime within the jurisdiction of the Court” because art. () RS expressly excludes this as a ground for excuse. As a result, circumstances such as inter alia physical deficiencies affecting the intellectual or volitive capacity of the perpetrator, temporary mental disorders and other situations of diminished psychological capacity and mistakes of law as to whether a given circumstance constitutes a ground for justification could be proffered by the defence pursuant to art. () RS. Nevertheless, it should be highlighted that art. () RS grants discretion to the competent Chamber of the ICC to determine the efficacy, if any, of any of the grounds for excuse considered under art. () RS.

 On the notion of order see E. Calderón Susín, Trasncendencia Penal y Disciplinaria de la Insubordinación, La Jurisdicción Militar , Consejo General del Poder Judicial, Madrid ().  Rodríguez-Villasante, Los Principios Generales del Derecho Penal, supra note , p. .

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Chapter XIII Objective Requisites for Punishment and Objective Requisites to Proceed

XIII.

Objective Requisites for Punishment and the International or Non-International Character of the Armed Conflict

The category of necessity of punishment includes a number of heterogeneous elements that the drafters, for purely utilitarian reasons, configured as requisites for punishment or grounds for exemption of punishment. These elements are not part of the objective or subjective elements of the crime and do not fall into the categories of either unlawfulness or culpability. As a result, they do not need to be covered by the subjective elements of the crime and thus mistakes over their existence are wholly irrelevant. The question arises as to whether the international or non-international character of an armed conflict is an objective requisite for punishment. Several reasons appear prima facie to point out in this direction. First, the international or non-international character of an armed conflict does not need to be covered by the subjective elements of the crime. According to the EC, the perpetrator does not even need to be aware of the factual circumstances that establish the character of the conflict as international or non-international. Secondly, the fact that the Appeals Chamber of the Ad hoc Tribunals has repeatedly pointed to the existence of a core set of provisions of international humanitarian law applicable to all armed conflicts, along with the meticulous selection process of the war crimes included in the RS in light of their gravity, appear to support the view that criminal liability arises from any conduct included in art. () RS regardless of the type of armed conflict in which it occurs. As a result, the international or non-international character of the armed conflict can only serve as an objective requisite for punishment. However, one cannot get around the fact that the drafters of the RS intended to criminalize a broader range of conduct in relation to international armed conflicts because of the higher degree of protection granted by international human Muñoz Conde, Derecho Penal, supra note , p. .  See Introduction to the Elements of War Crimes.  Tadić Jurisdiction Decision, supra note , ¶ , , ,  and ; Strugar Interlocutory Decision, supra note , ¶ ,  and .

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Chapter XIII

itarian law in this type of conflict. In this context, it is the author’s opinion that the international or non-international character of the armed conflict becomes a material contextual element. As a result, regardless of what is set out in the introduction to the war crimes section of the EC, the perpetrator should, at the very least, be aware of the factual circumstances that establish the character of the conflict as international or non-international. This approach has been implicitly taken by the Decision on the confirmation of the charges in the Lubanga case, in which Pre-Trial Chamber I explicitly found that Thomas Lubanga Dyilo was aware of the factual circumstances establishing the international (from the beginning of September  until  June ) and the non-international (from  June  until the end of ) character of the armed conflict that took place in the territory of Ituri. XIII.

Exemptions from Punishment. Special Attention to the Attempt to Turn Military Necessity into a Ground for Exemption from Punishment

As seen above, according to art. ()(f ) RS, abandonment constitutes a ground for exemption from punishment such that “a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit the crime”. However, this ground for exemption from punishment is only applicable if the person “completely and voluntarily gave up the criminal purpose”. On the other hand, the RS does not provide for exemptions from punishment for certain grounds which are often found in national systems, such  In this regard, Von Hebel, Crimes, supra note , at p. , where it is stated: “In general, one may conclude that the definition of war crimes is consistent with two important trends of the last few years, namely, the gradual blurring of the fundamental differences between international and internal armed conflicts, and the recognition of individual criminal responsibility for violations of fundamental provisions of relevant international humanitarian law instruments. As described above, many of the provisions relating to internal armed conflicts were drawn from provisions relating to international armed conflicts. This result is consistent with the view that differences in the regulation of the two forms of conflict must be reduced. Although it was suggested that the Conference should do away completely with that distinction, that suggestion clearly was a ‘bridge too far’ for most of delegations”.  It is important to bear in mind that, according to art.  RS, the EC “shall assist the Court in the interpretation and application of articles ,  and ” but are not binding on the Chambers of the Court.  See supra sections III. and III.. Concurring Ambos, La Parte General del Derecho Penal Internacional, supra note , pp. -  Lubanga Confirmation of Charges, supra note , ¶  (i) and (ii).  See supra section VIII.  Art. ()(f ) RS. See supra section VIII.

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Objective Requisites for Punishment and Objective Requisites to Proceed



as the immunity of Heads of State, Heads of Government, members of the Government, members of the parliament and other persons holding public office. In this regard, art. () RS provides that “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”. And art. () RS adds that “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”. The non-recognition of the official capacity as a ground for exemption from punishment is not affected by the right of the States Parties under art. () RS not to proceed with an ICC request for surrender or assistance “which would require the requested State to act inconsistently with its obligations under international law with respect to State or diplomatic immunity of a person or property of a third State”. In these cases, the requested State Party is only bound to execute the ICC request for surrender or assistance if “the Court can first obtain the cooperation of that third State for the waiver of immunity”. However, this will not prevent the conviction of the person who is the subject of an arrest warrant if such person appears voluntarily before the Court or is surrendered to the Court. Some might argue that some circumstances which, in principle, serve as grounds for justification – such as imperative military necessity in relation to the crime of destruction or seizure of the enemy’s property – should be considered as grounds for exemption from punishment. In this scenario, such circumstances  H. Olásolo, Corte Penal Internacional: ¿Dónde Investigar? Especial Referencia a la Fiscalía en el Proceso de Activación  (Tirant lo Blanch/Cruz Roja Española ) [hereinafter Olásolo, Corte Penal Internacional].  Concurring O. Triffterer, Article . Irrelevance of Official Capacity, Commentary on the Rome Statute of the International Criminal Court  (O. Triffterer ed., Nomos ), where the author states: “Thus, under the conditions stated in article , the Court may request such help and cooperation as are provided for in Part  of the Statute. If the measures mentioned in article  do not in the end lead to the desired result because of the principles contained therein, the Court may, for instance, nevertheless exercise its jurisdiction when the respective person voluntarily surrenders or is transferred to the Court without or independent from its request”. However, Triffterer considers that “a failure to proceed successfully according to article  may in practice and contrary to the wording of art. , ‘bar the Court from exercising its jurisdiction over such a person’, if the Court cannot secure the attendance of the person in any other way because the Rome Statute does not provide a trial in absentia”. On the last issue, see also K. Prost & A. Schlunck, Article . Cooperation with respect to Waiver of Immunity and Consent to Surrender, Commentary on the Rome Statute of the International Criminal Court - (O. Triffterer ed., Nomos ).  Art. ()(b)(xiii) and ()(e)(xii) RS and the EC of destruction or seizure of enemy’s property.

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Chapter XIII

would only prevent the imposition of a penalty on the convicted person if it is found that imperative military necessity objectively required the destruction or seizure of the property of the enemy that was actually destroyed or seized. As a result, mistakes about the existence of circumstances that caused the perpetrator to wrongly believe that he was destroying or seizing the enemy’s property due to imperative military necessity become irrelevant. In the author’s view, the most important consequence of considering imperative military necessity as a ground for exemption from punishment is that any destruction or seizure of the enemy’s property would automatically become unlawful (although only the destructon or seizure not justified by imperative military necessity would be subject to punishment). However, this consequence would be contrary to international humanitarian law because, as seen above, destruction and seizure of the enemy’s property is authorized by international humanitarian law when demanded by imperative military necessity unless it is the result of an unlawful attack. Hence, in the author’s view, these types of situations constitute true grounds for justification and, thus, they cannot be considered as grounds for exemption of punishment. XIII.

Jurisdictional Contextual Elements relating to the Gravity Threshold as Objective Requisites to Proceed

Objective requisites for punishment can be distinguished from objective requisites to proceed, although some authors have pointed out that, in the final analysis, both play the same role. The objective requisites to proceed are circumstances that, without affecting the existence of a crime, must be met for its investigation and prosecution. As seen above, the contextual elements of the war crimes provided for in art. () RS can be classified into material and jurisdictional contextual elements. The latter are comprised of the elements relating to the gravity threshold that must be met for the ICC to exercise its subject matter jurisdiction over war crimes – in addition to the meticulous selection process carried out by the drafters in order to select, in light of their gravity, those war crimes finally included in art. () RS. In the author’s view, the gravity threshold constitutes a true objective requisite to proceed because the Court’s exercise of its jurisdictional powers over any  H.B. Hosang, Destroying or Seizing the Enemy’s Property, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence  (R.S. Lee ed., Transnational Publishers ).  See supra section IV...  Muñoz Conde, Derecho Penal, supra note , p. .  See supra section III..  Von Hebel, Crimes, supra note , at pp. -.

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war crime provided for in art.  RS is subject to this threshold. In making the gravity threshold a true objective requisite to proceed, the drafters were motivated by utilitarian reasons such as limiting the scope of the Court’s exercise of its jurisdictional powers to those behaviours that most seriously undermine the highest values of the international community as well as maximizing the effectiveness of the Court given its limited resources and the broad range of war crimes included in the RS. The gravity threshold, as any other requisite to proceed, is not part of the objective or subjective elements of the crime and does not affect the unlawfulness of conduct or the culpability of its perpetrators. Hence, the gravity threshold has no impact on the existence of a crime. As a result, the gravity threshold does not need to be covered by the subjective elements of the crime (the perpetrator’s awareness of the factual circumstances that meet this threshold is irrelevant) and mistakes over meeting this threshold are wholly irrelevant. It is sufficient for the relevant conduct to objectively meet the gravity threshold. Concerning the elements of the gravity threshold, one has to point out that while art. () states that “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”, art. ()(d) RS requires the “sufficient gravity” of the relevant war crime for the Court to exercise its jurisdictional powers over it. It is also important to underscore that these two elements making up the gravity threshold of war crimes must be first analyzed in the context of the overall crisis situation, such as the armed conflict that took place in the territory of the former SFRY between  and  or the crisis situation that occurred in Rwanda in . This occurs in the framework of the triggering procedure provided for in arts., , ,  and  (),() and () RS, which precedes the criminal procedure and is autonomous from it because it has a different object and different parties and proceedings. The triggering procedure aims at the definition of the personal, temporal and territorial parameters which define the crisis situations over which the Court triggers its dormant jurisdiction in order to proceed with the investigation and eventually prosecution of the crimes allegedly committed in such crisis situations.  Muñoz Conde, Derecho Penal, supra note , pp. -.  The ICTY and the ICTR were created to deal with specific situations. The personal, territorial and temporal parameters of the specific situations over which the ICTY and the ICTR have jurisdiction have been precisely defined by the Security Council, the political body which created them. Hence, they have been characterized as Ad hoc Tribunals. Conversely, the ICC has been defined by arts. , ,  and  RS as a “permanent institution” which could potentially exercise jurisdiction over the crime of genocide, crimes against humanity and war crimes committed in any crisis situation that took place after the entry into force of the RS in the territory of: (i) a State Party; or (ii)

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Chapter XIII

Only after the dormant jurisdiction of the Court has been triggered with regard to a given crisis situation, the Court will proceed to investigate the crimes allegedly committed in that situation in accordance with arts.  et seq RS. Subsequently, when, as a result of such investigation, an arrest warrant or a summons to appear is issued against one or more identified persons for the alleged commission of one or more crimes in the specific incidents included in the arrest warrant or summons to appear – for instance the shelling of the old town of Dubrovnik on  December  – a criminal procedure will be stricto sensu initiated. According to the terminology of the RS, the criminal procedure will be comprised of cases as opposed to crisis situations or overall armed conflicts. When deciding whether or not to grant the request of the Office of the Prosecutor for an arrest warrant or a summons to appear, the gravity threshold of the war crimes, insofar as it constitutes an objective requisite to proceed, will have to be applied with regard to the specific incidents included in the request of the Office of the Prosecutor. Both the shaping of the ICC as a jurisdiction of ultima ratio that only investigates and prosecutes those crimes that most seriously undermine the highest values of the international community and the gravity threshold that art.  () any State, if the crimes were allegedly committed by nationals of a State Party or the ICC acted at the request of the Security Council (art. () RS). As a result of the significant difference between the ad hoc tribunals and the ICC, arts. , , ,  and (), () and () have established a triggering procedure for determining the personal, territorial and temporal parameters which define the crisis situations with regard to which the ICC will first activate, and then exercise, its powers to investigate, prosecute, declare individual criminal responsibility and enforce sentences. See H. Olásolo, The Triggering Procedure of the International Criminal Court  (Martinus Nijhoff Publishers ) [hereinafter Olásolo, The Triggering Procedure]; Olásolo, Corte Penal Internacional, supra note , pp. - and -.  Olásolo, Reflexiones, supra note , pp. -. The object of the triggering procedure is comprised of the activation and the opposition-to-activation requests (both referring to crisis situations) and the parties to the triggering procedure are the Office of the Prosecutor, the States concerned and, where applicable, the Security Council and the State Party making a referral of a situation. On the other hand, the object of the criminal procedure before the ICC is comprised of the request (an the opposition to such a request) to (i) declare the individual criminal responsibility of an identified individual for the commission of one or several of the crimes contained in the RS and (ii) impose and enforce the sentence attached to such crimes by the RS or its supplementary instruments. This kind of request refers to cases as opposed to crisis situations. Furthermore, the parties to the criminal procedure before the ICC are the Office of the Prosecutor and the accused or the person against whom a warrant of arrest or a summons to appear has been issued. See Olásolo, The Triggering Procedure, pp.  et seq.  H. Olásolo, The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of the Office of the Prosecutor, Int’l Crim. L. Rev. - ().  Olásolo, Corte Penal Internacional, supra note , p. .

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Objective Requisites for Punishment and Objective Requisites to Proceed

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(d) RS extends beyond war crimes to crimes against humanity and the crime of genocide, require that the ICC’s dormant jurisdiction only be triggered with regard to a given crisis situation if there is a reasonable basis to believe that there has been a systematic (according to a plan or policy) or widespread (large-scale) commission of crimes provided for in the RS. In the author’s view, this would exclude those armed conflicts in relation to which there is only a reasonable basis to believe that war crimes might have been committed in an isolated manner. Subsequently, once the Office of the Prosecutor requests the issuance of an arrest warrant or a summons to appear, the gravity threshold of war crimes, insofar as it is an objective requisite to proceed, will have to be applied in relation to those specific incidents included in the Office of the Prosecutor’s request. The question arises as to whether the gravity threshold provided for in arts. () and ()(d) RS requires the crimes referred to in the Office of the Prosecutor’s request to be part of a plan, policy or large scale commission of war crimes. In the author’s view, the expression “in particular” referred to in art. () RS, although reinforcing the gravity threshold provided for in art. ()(d) RS, does not seem to require stricto sensu that the specific war crimes included in the Office of the Prosecutor’s request be part of a plan, policy or large scale commission of war crimes. Therefore, proof of the fact that the specific incidents that are the basis of a request for an arrest warrant or a summons to appear are part of a widespread or systematic commission of war crimes does not constitute a conditio sine qua non for the Pre-Trial Chamber to issue an arrest warrant and proceed with a case. In any event, it is the author’s view that the shaping of the gravity threshold as a true objective requisite to proceed will result in national jurisdictions continuing to be the only jurisdictional fora available for the investigation and prosecution of those war crimes that are committed in an isolated manner in the  Art. ()(d) RS is applicable, in addition to war crimes, to the crime of genocide and crimes against humanity. The EC reinforce the gravity threshold provided for in art. ()(d) RS with regard to the crime of genocide by requiring that the conduct be committed “in the context of a manifest pattern of similar conduct directed against that group” or be of such magnitude that it can cause in and of itself the destruction of the targeted group in whole or in part. On the other hand, the objective requisite to proceed provided for in art. ()(d) RS does not need to be reinforced with regard to crimes against humanity because a material contextual element of every crime against humanity is that the conduct must be committed “as part of a widespread of systematic attack directed against any civilian population”. See Olásolo, The Triggering Procedure, supra note , p. .  For a different opinion, see C. Pellandini, Los Crímenes de Guerra, Justicia Penal Internacional: Una Perspectiva Iberoamericana  (Casa de América ). For this author, the gravity threshold provided for in the RS does not prevent the ICC from investigating and prosecuting isolated war crimes.  Concurring Cottier, Article , supra note , p. .  Concurring Pignatelli y Meca, La Sanción, supra note , pp. -.

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Chapter XIII

execution of military operations or that constitute isolated instances of mistreatment against protected persons. It will be left to the ICC’s case law to decide on a case-by-case basis which other practices of a more general character meet the gravity threshold provided for in the RS.

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Chapter XIV Final Remarks

In the late nineteen century and the early twentieth century, international humanitarian law focused on preventing superfluous injuries and unnecessary suffering without distinguishing (i) between civilians and civilian objects, and military objectives and (ii) between situations of conduct of hostilities (in which civilians and civilian objects are not in the hands of the enemy party to the conflict carrying out a military operation) and situations in which civilians and civilian objects are in the hands of an enemy party to the conflict. In this context, the protection offered to civilians and civilian objects was dependant on the ambiguous notion of “military necessity”, as shown by the prohibition to destroy or seize the enemy’s property unless such destruction or seizure is imperatively demanded by the necessities of war. Furthermore, such protection was equally applicable to situations of conduct of hostilities and to situations in which civilians and civilian objects were in the hands of an enemy party to the conflict. The  Additional Protocols to the  Geneva Conventions modified the previous approach by establishing a set of rules specifically applicable to situations of conduct of hostilities, which are based on the principle of distinction and the rule of proportionality. According to this new regulation, one has to distinguish between deaths, injuries and damages caused to enemy civilians and civilian objects during situations of conduct of hostilities and in those other situations in which the latter are in the hands of the enemy party to the conflict causing the destruction. Moreover, in situations of conduct of hostilities, only if an attack is unlawful in light of the provisions elaborating on the principle of distinction and the rule of proportionality in the Additional Protocols, the deaths, injuries and damages caused by such an attack to enemy civilians or civilian objects can amount to a violation of international humanitarian law and give rise to individual criminal liability. As a consequence of this new approach, the destruction caused to enemy civilians or civilian objects during military operations cannot be treated altogether. On the contrary, one has to distinguish between those deaths, injures and damages caused in each of the following two stages of such operations, which are usually carried out by different units of the armed forces of the attacking party: (i) the attack against a locality or area which is not under the control of the attacking party and whose control is intended to be gained by force and (ii) the destruction

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Chapter XIV

caused by the attacking party once it has gained control of the locality or area subject to the attack. Moreover, the analysis of whether the deaths, injures and damages caused during the first stage of a military operation amount to a violation of international humanitarian law and give rise to individual criminal liability – including any analysis of whether the destruction of the enemy’s property (regardless of its military or non-military character) caused by the attack was imperatively demanded by the necessities of war – is subject to a prior determination of the unlawfulness of the attack which caused them in light of the principle of distinction and the rule of proportionality. Hence, if an attack is directed against a military objective, and no means or methods of warfare prohibited by international humanitarian law are employed, it will be necessary to prove that the incidental civilian damage expected from the attack was excessive in relation to the concrete and direct military advantaged anticipated from it. The determination of the unlawfulness of an attack is also necessary prior to engaging the analysis of whether the deaths, injures and damages caused by it coud amount to a crime against humanity. The practice of considering the destruction caused to civilians by attacks which are fully lawful in light of the principles of distinction and the rule of proportionality as crimes against humanity is not only an infringement of the principles that regulate the conduct of hostilities, but it also endorses standards which cannot be complied with and, thus, eliminate any incentive to act according to them. In this regard, one should never forget that the aim of the law is not to make the conduct of hostilities impossible by prohibiting any damage to civilians or civilian objects, but to oblige the parties to the conflict to carry out their military operations with the care necessary to minimise loss of civilian life, injuries to civilians and harm to civilian objects. Since the  Additional Protocols, the prohibition of attacks directed against civilians or civilian objects and of disproportionate attacks is not only the core component of the principle of distinction in the conduct of hostilities under international humanitarian law, but its violation also gives rise to individual criminal liability. However, for a long time, there was a general belief, particularly in certain military circles, that the investigation and prosecution of criminal liability arising from these types of attacks was unfeasible in practice. The reasons for this belief are two fold. Firstly, the ambiguity of certain legal standards used to make it extremely difficult to determine when criminal liability arose. For instance, the evolving scope of the notion of military objective, the practice of locating military objectives in civilian neighbourhoods or close to civilian objects, and the limited accuracy of those weapons used during military operations brought about important problems for the determination of whether an attack had been directed against civilians or civilian objects. Likewise, the wholly different nature of the two elements that must be compared to apply the rule of proportionality – that is to say, expected incidental

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Final Remarks



civilian damage versus the concrete and direct military advantage anticipated – along with the uncertainty as to (i) the inclusion of indirect damage (particularly damage caused to economic infrastructures and the environment) as part of incidental civilian damage and (ii) the level at which the rule of proportionality must be applied (tactical, operational or strategic level), made many believe that the investigations and prosecutions of disproportionate attacks were just wishful thinking. Secondly, the lack of access to the theatre of operations within a reasonable time used to make it almost impossible to gather the necessary evidence to determine, beyond reasonable doubt, whether an attack had been directed against civilians or civilian objects or was disproportionate. The scope of this problem has been recently highlighted in relation to shelling incidents by the Appeals Judgement in the Galić case in the following terms: Determination of where a shell comes from is an extremely difficult process. To be precise, the bearing, angle of descent and charge must all be known. Working ex post, these data are obviously rarely available and have to be reconstructed, as in this case, from data gathered at the site of impact. Data from the site would include: the depth of the crater created by the shell, the shape, size and location of the disturbance of the ground around the crater; any tailfins, igniters, shrapel or other objects recovered from the explosion; and the surrounding topograph, both close and far. But, as is apparent from the evidence discussed by the Trial Chamber, not all of these data are susceptible to precise measurement, and even when they are, they can lead to a range of possible solutions.

Nevertheless, the practice of the ICTY from the commencement of the Blaškić case in  has proven wrong the long-standing belief that the investigation and prosecution of criminal liability arising from unlawful attacks was unfeasible in practice. As the ICTY Trial Chambers and Appeals Chamber have entertained more and more cases based on crimes committed during the conduct of hostilities (such as the Blaškić, the Kordić, the Strugar and the Galić cases), they have provided for definitions and answers which have progressively diminished the ambiguity of a number of legal standards that must be applied for the penal enforcement of the prohibition of attacks directed against civilians or civilian objects and of disproportionate attacks. This has taken place in relation to questions as complex as inter alia (i) the definition of the scope of the notion of military objective (particularly with regard to dual use infrastructures such as certain industries or the media); (ii) the treatment of the level of accuracy of certain weapons for the purpose of determining the lawfulness of an attack; (iii) the determination of whether indirect long-term damage (including damage to economic infrastructures and the environment)  Galić Appeal, supra note , ¶ .

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must be taken into consideration when applying the rule of proportionality; (iv) the determination of whether damage caused to civilians or civilian objects as a result of enemy violations of international humanitarian law (such as that resulting from the use of civilians to protect military targets or from locating military objectives in predominantly civilian areas) must be counted as incidental civilian damage and (v) the definition of the level at which the proportionality analysis must be carried out. Furthermore, the ICTY’s investigations and prosecutions of crimes committed during the conduct of hostilities have shown that the gathering of the necessary evidence to determine beyond reasonable doubt whether an attack was directed against civilians or civilian objects or was disproportionate is no longer an illusion, but has become a reality. Hence, one cannot but affirm that the ICTY has played a unique role by showing how it is possible to investigate and prosecute criminal liability arising from unlawful attacks at the international level. Nevertheless, the ICTY’s case law has, at the same time, brought about a number of problems concerning the investigation and prosecution of unlawful attacks, some of which resulting from the particular manner in which the the ICTY Statute has shaped the scope of the Tribunal’s subject matter jurisdiction. Among them, the most important problem is the lack of recognition of the different nature of (i) those attacks directed against civilians or civilian objects, that is to say persons or objects which are not military objectives, and (ii) those other attacks which, despite targeting military objectives, are unlawful because they seriously violate the rule of proportionality. According to the latest ICTY case law, manifest violations of the rule of proportionality can, at best, constitute evidence of the fact that the relevant attack was directed against civilians or civilian objects. Secondly, the ICTY’s case law has, at times, preferred the old approach of the  Hague Convention IV and its Annexed Regulations over the new approach to situations of conduct of hostilities – which is based on the principle of distinction and the rule of proportionality – taken by the  Additional Protocols. As a result, the ICTY’s case law has often failed to distinguish between (i) the deaths, injures and damages caused to enemy civilians or civilian objects during the attack against a locality or area which is not under the control of the attacking party and whose control is intended to be gained by force (first stage of a military operation), and (ii) the destruction caused by the attacking party once it has gained control of the locality or area subject to the attack (second stage of a military operation). The ICTY’s case law has also failed at times to determine the unlawfulness of an attack (first stage of a military operation) in light of the principle of distinction and the rule of proportionality prior to engaging the analysis of whether the deaths, injures and damages caused to enemy civilians or civilian objects during such an attack amounted to a violation of international humanitarian law and gave rise to individual criminal liability.

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Final Remarks



Finally, the ICTY’s case law has also declared, at times, that certain deaths, injures and damages caused to enemy civilians or civilian objects amounted to crimes against humanity without undertaking a prior analysis of the unlawfulness of the attacks causing them. The RS and the EC take an important step forward to address some of the problems brought about by the ICTY’s case law. Particularly important is the effort made by the RS to acknowledge the distinctive nature of those attacks which, despite targeting military objectives, are unlawful because they seriously violate the rule of proportionality. This effort is carried out through two kinds of measures. Firstly, the separate criminalization of serious violations of the principle of distinction and the rule of proportionality, which has resulted in the inclusion in the RS as separate crimes of (i) attacks directed against civilians; (ii) attacks directed against civilian objects and (iii) disproportionate attacks. As a consequence, the need identified by the ICTY’s case law to consider the disproportionate use of force against military objectives as evidence of the existence of an attack directed against civilians or civilian objects does not exist any longer. Secondly, the RS defines the attacks directed against civilians, the attacks directed against civilian objects and the disproportionate attacks as crimes of mere action which are completed by the mere launch of the attack, and requires a more stringent subjective element (at the very least dolus eventualis) since the result of the attack is irrelevant; whereas the ICTY’s case law has taken the opposite approach insofar as it requires the deaths, injuries or damage to be caused to enemy civilians or civilian objects as a result (causal link) of the attack and it provides for the reckless (with conscious culpability or gross negligence) commission of the crimes. As a result, the RS defines in a more precise manner the boundaries between those attacks directed at civilians or civilian objects and the disproportionate attacks (attacks against a concrete military target which are expected to cause excessive incidental civilian damage) because, as soon as the perpetrator directs his attack specifically at a concrete military target, the proportionality rule becomes applicable and the crimes of directing attacks at civilians or civilian objects are no longer applicable. This is so even in those cases in which the perpetrator is aware of the fact that enemy civilians or civilian objects will be necessarily, or at least probably, incidentally killed, injured or damaged by his attack. The attempt of the drafters of the RS to separately criminalize those attacks which most seriously violate the principle of distinction and the rule of proportionality has not been completely successful insofar as in the context of noninternational armed conflicts only attacks directed against the civilian population or civilian persons have been explicitly criminalized. Nevertheless, this does not mean that civilian deaths, injuries and damages arising from attacks against civilian objects or from disproportionate attacks do not give rise to criminal liability under the RS. On the contrary, they will be covered by other war crimes provided for in the RS and applicable to non-international armed conflicts, such

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Chapter XIV

as murder, cruel treatment and destruction or seizure of enemy’s property not imperatively demanded by military necessity. In addition to benefiting from (i) the separate criminalization of the attacks directed against civilians, the attacks directed against civilian objects and the disproportionate attacks and (ii) the more precise definition of the boundaries between such crimes, the ICC will also benefit from the various definitions and answers provided for by the ICTY’s case law in investigating and prosecuting criminal liability arising from attacks against civilians or civilian objects and from disproportionate attacks. Furthermore, the ICC will benefit from the ICTY’s experience in gathering the necessary evidence to ex post facto determine beyond reasonable doubt whether an attack was directed against civilians or civilian objects or was disproportionate. As a result, the hurdles faced by the ICC in the investigation and prosecution of unlawful attacks launched during the conduct of hostilities will be considerably lesser than those faced by the ICTY during its first years. Moreover, the ICC should learn from the mistakes made by the ICTY. Special emphasis should be placed on the need to determine the unlawfulness of any attack in light of the norms elaborating on the principle of distinction and the rule of proportionality in the  Additional Protocols prior to engaging the analysis of whether the deaths, injures and damages caused to enemy civilians or civilian objects by such attacks could amount to a crime against humanity or a war crime. In turn, this will result in a progressive increase of the investigations and prosecutions of alledgely unlawful attacks launched during the conduct of hostilities, no matter whether they take place in international armed conflicts or in non-international armed conflicts. Evidence of this trend is the fact that the first case ever initiated before the ICC – resulting from arrest warrants issued on  july  against Mr. Joseph Kony (leader of the Lord Resistance Army) and other four high ranking members of this movement for crimes against humanity and war crimes allegedly committed in the crisis situation in northern Uganda since  July  – includes inter alia the alleged unlawful attacks against the civilian population residing in some of the camps for internal displaced persons located in northern Uganda. Likewise, the recent Prosecution request for a summons to appear in the Darfur situation, filed on  February  against Ahmad Harun (Sudanese Minister of Interior in  and ) and Ali Kushayb (leader of the Janjaweed militia in the area of Wadi Salih in West Darfur in  and ) includes inter alia eight charges of attacks against the civilian population residing in the Kodoom villages, the Bindisi town, the Mukjar town, the Arawala town and their respective surroundings in  and .  See Situation in Darfur (Sudan), Situation No. ICC-/, Prosecutor’s Application under Article  () (Feb. , ). Prosecution request for a summons to appear in

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Final Remarks



The increase in the number of investigations and prosecutions of unlawful attacks by the ICC will take place in spite of certain elements such as (i) the demanding subjective elements provided for by the RS and the EC in the definition of the war crimes of attacks directed against civilians, attacks directed against civilian objects and disproportionate attacks (including the fact that the perpetrator must himself apply the proportionality rule on the basis of the incidental civilian damage and the concrete and direct overall military advantage expected by him at the time he decides to launch the attack), and (ii) the exclusion of the perpetrator’s individual criminal responsibility as a result of mistakes of fact resulting from his failure to take the mandatory precautionary measures provided for in art. () AP I. In carrying out such investigations and prosecutions, and in interpreting the relevant provisions of the RS and the EC, it will be of the utmost importance for the ICC to take into account the special circumstances in which military operations in combat situations are carried out so as to avoid that the members of the armed forces of the parties to the conflict (who are the ultimate addressees of the RS penal norms) reach the conclusion that the standards applied by the ICC are unreasonably high and are only the result of the RS drafters’ and the ICC judges’ lack of knowledge on how hostilities are conducted. In the final analysis, the deterrent effect of the RS penal norms criminalizing the attacks against civilians or civilian objects and the disproportionate attacks will depend not only on the increasing number of investigations and prosecutions by the ICC (in combination with the increasing pressure of the media and public opinion concerning the adequate application of the principle of distinction and the rule of proportionality), but particularly on the application of reasonable standards. Only then, military commanders will reconcile themselves with the fact that the deaths, injures and damages caused to civilians or civilian objects, regardless of whether they are intended or incidental, have a high cost for the overall military campaign as well as for their professional careers, and that therefore they must be taken into account, along with tactical and logistical costs, in deciding upon the suitability of an attack in light of the principle of economy in the use of force.

the Darfur situation, pp.  to  (counts , , , , , ,  and ).

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Table of Cases

Darfur Situation:

ICC

Situation in Darfur (Sudan), Situation No. ICC-/, Prosecutor’s Application under Article  () (Feb. , ). Lubanga Case:

Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-/-/, Decision on the Confirmation of the Charges ( Jan. , ). Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-/-/, Decision on the Prosecutor’s Application for a Warrant of Arrest, Art.  (Feb. , ).

Nicaragua:

ICJ

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.),  I.C.J Rep.  ( June ). Nuclear Weapons:

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion),  I.C.J. Rep.  ( July ).

Aleksovski:

ICTY

Prosecutor v. Zlatko Aleksovski, Case No. IT--/-A, Appeal Judgement (March , ). Prosecutor v. Zlatko Aleksovski, Case No. IT--/-T, Judgement ( June , ). Blaškić:

Prosecutor v. Blaškić, Case No. IT---A, Appeal Judgement ( July , ). Prosecutor v. Blaškić, Case No. IT---T, Judgement (Mar. , ).

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

Table of Cases

Brdjanin:

Prosecutor v. Radoslav Brdjanin, Case No. IT---A, Decision on Interlocutory Appeal (Mar. , ). Čelebići:

Prosecutor v. Zejnil Delalić et al., Case No. IT---A, Appeal Judgement (Feb. , ). Prosecutor v. Zejnil Delalić et al., Case No. IT---T, Judgement (Nov. , ). Erdemović:

Prosecutor v. Dražen Erdemović, Case No. IT---A, Appeal Judgement (Oct. , ). Galić:

Prosecutor v. Stanislav Galić, Case No. IT---A, Appeal Judgement (Nov. , ). Prosecutor v. Stanislav Galić, Case No. IT---T, Judgement (Dec. , ). Furundžija:

Prosecutor v. Anto Furundžija, Case No. IT--/-A, Appeal Judgement ( July , ). Prosecutor v. Anto Furundžija, Case No. IT--/-T, Judgement, Case No. IT-/-T (Dec. , ). Hadžihasanović:

Prosecutor v. Enver Hadžihasanović, Mehmed Alagić and Amir Kubura, Case No. IT---AR, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility ( July , ). Jelisić:

Prosecutor v. Goran Jelisić, Case No. IT---T, Judgement (Dec. , ). Kordić:

Prosecutor v. Dario Kordić and Mario Cerkez, Case No. IT--/-A, Appeal Judgement (Dec., ). Prosecutor v. Dario Kordić and Mario Cerkez, Case No. IT--/-T, Judgement (Feb. , ). Krnojelac:

Prosecutor v. Milorad Krnojelac, Case No. IT---A, Appeal Judgement (Sept. , ). Prosecutor v. Milorad Krnojelac, Case No. IT---T, Judgement (Mar. , ).

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Table of Cases



Krstić:

Prosecutor v. Radislav Krstić, Case No. IT---T, Judgement (Aug. , ). Kunarac:

Prosecutor v. Milorad Kunarac, Case No. IT-- and /-A, Appeal Judgement ( June , ). Prosecutor v. Milorad Kunarac, Case No. IT-- and /-T, Judgement (Feb. , ). Kupreškić:

Prosecutor v. Kupreškić et al., Case No. IT---A, Appeal Judgement (Oct. , ). Prosecutor v. Kupreškić et al., Case No. IT---T, Judgement ( Jan. , ). Kvočka:

Prosecutor v. Miroslav Kvočka et al., Case No. IT--/-T, Judgement (Nov. , ). Martić:

Prosecutor v. Milan Martić, Case No. IT---T, Rule  Hearing Decision (Mar. , ). Milošević:

Prosecutor v. Slobodan Milošević, Case No. IT---T, Decision on Motion for Judgement for Acquittal ( June , ). Prosecutor v. Slobodan Milošević, Case No. IT---T, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts (Apr.  ). Ojdanić:

Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić, Case No. IT---AR., Decision on Interlocutory Appeal (May , ). Rajić:

Prosecutor v. Ivica Rajić, Case No. IT---T, Review of the Indictment Pursuant to Rule  of the Rules of Procedure and Evidence (Sept. , ). Simić:

Prosecutor v. Blagoje Simić et al., Case No. IT---T, Judgement (Oct. , ). Stakić:

Prosecutor v. Milomir Stakić, Case No. IT---T, Judgement ( July , ).

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

Table of Cases

Strugar:

Prosecutor v. Pavle Strugar, Case No. IT---AR, Decision on Interlocutory Appeal (Nov. , ). Prosecutor v. Pavle Strugar, Case No. IT---T, Judgement ( Jan. , ). Prosecutor v. Pavle Strugar, Case No. IT---T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule  Bis ( June , ). Tadić:

Prosecutor v. Duško Tadić, Case No. IT---A, Appeal Judgement ( July , ). Prosecutor v. Duško Tadić, Case No. IT---AR, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Oct. , ). Prosecutor v. Duško Tadić, Case No. IT---T, Opinion and Judgement (May , ). Tuta and Štela:

Prosecutor v. Mladen Naletilić (aka “Tuta”) and Vinko Martinović (aka “Štela”), Case No. IT---T, Judgement (Mar. , ). Vasiljević:

Prosecutor v. Mitar Vasiljević, Case No. IT---T, Judgement (Nov. , ).

Akayesu:

ICTR

Prosecutor v. Akayesu, Case No. ICTR---T, Judgement (Sept. , ). Bagilishema:

Prosecutor v. Bagilishema, Case No. ICTR--A-A, Appeal Judgement ( July , ). Prosecutor v. Bagilishema, Case No. ICTR--A-T, Judgement, ( June , ). Rutaganda:

Prosecutor v. Rutaganda, Case No. ICTR---A, Appeal Judgement (May , ). Semanza:

Prosecutor v. Semanza, Case No. ICTR---T, Judgement (May , ).

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Table of Cases

Einsatzgruppen case:



WW II Cases

United States v. Otto Ohlendorf et al.,  Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. , pp.  et seq (). Hostage case:

United States v. Wilhelm List et al.,  Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. , pp.  et seq (). Also printed in  United Nations War Crimes Commission, Law Reports of Trial of War Criminals  (). International Military Tribunal (IMT):

Judgement of the International Military Tribunal at Nuremberg, reprinted in  Trial of Major War Criminals before the International Military Tribunal, Nuremberg, Nov. ,  – Oct. , . Also printed in  Am. J. Int’l L.  (). International Military Tribunal for the Far East (IMTFE):

The Tokyo Judgement, The International Military Tribunal for the Far East, Apr. .  – Nov. ,  (B. Roling & C. Ruter eds., ). Justice case:

United States v. Alstotter et al.,  Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. , pp.  et seq (). Krupp case:

United States v. Alfred Krupp,  United Nations War Crimes Commission, Law Reports of Trial of War Criminals  ().

Australia:

National Cases

The Queen v. Crabbe ()  C.L.R. . England and Wales:

Metropolitan Police Commissioner v. Caldwell () AC . T v. Secretary of State for the Home Department ()  All E.R.  (HL). Japan:

Ryuichi Shimoda et al. v. The State,  Int’l L. Reports  ( Japan Dist. Ct. of Tokyo ).

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

Table of Cases

Spain:

Judgement of the Constitutional Court in the Guatemala case, Oct. , . Judgement of the Second Chamber of the Supreme Court in the Guatemala Case, Feb. , . Decision of the Penal Chamber of the Audiencia Nacional in the Guatemala case, Dec. , . US:

Quinn v. Robinson,  F.d  (th Cir.). Miscellaneous Cairo:

Declaration and Plan of Action, Adopted at the Euro-African Summit, Held in Cairo on  and  Apr.  under the Auspices of the Organization of African Unity/African Union. Human Rights/Armed Conflict:

Basic Principles for the Protection of Civilian Populations in Armed Conflicts, G.A. Res. , U.N. GAOR, th Sess., Supp. No. , U.N. Doc. A/ (). Dissolution of SFRY, European Community Arbitration Commission, Opinion No. , printed in  Int’l Legal Materials (). Establishment of the ICTR, S.C. Res. , U.N. SCOR, rd mtg., U.N. Doc. S/RES/ (). Establishment of the ICTY, S.C. Res. , U.N. SCOR, th Sess., th mtg., U.N. Doc. S/RES/ (). IACHR, Tercer Informe sobre Derechos Humanos en Colombia, Chapter IV on Violence and Violations of International Law of Human Rights and International Humanitarian Law, para.  (), at http://www.cidh.oas. org/countryrep/Colomsp/indice.htm. ICTY OTP, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia ( June , ), at http://www.un.org/icty/pressreal/nato.htm (referred to as ICTY OTP’s Report on the NATO campaign in Kosovo in ). ICTY, Report of the Secretary-General pursuant to Paragraph  of the Security Council Resolution  (), U.N. SCOR, th Sess., Annex, U.N. Doc. S/ (). Protection of Human Rights in Armed Conflict, G.A. Res. , U.N. GAOR, th Sess., Agenda Item , U.N. Doc. A/ (). Respect for Human Rights in Armed Conflicts, G.A. Res. , U.N. GAOR, rd Sess., Supp. No. , U.N. Doc. A/ ().

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Table of Cases



Situation in Kosovo:

UN Security Council Resolution  on the Letters of the United Kingdom (S//) and the United States (S//), S.C. Res. , U.N. SCOR, rd Sess., th mtg., U.N. Doc. S/RES/ (). UN Security Resolution  on the Situation in Kosovo, S.C. Res. , U.N. SCOR, rd Sess., th mtg., U.N. Doc. S/RES/ (). Tablada case:

Juan Carlos Abella v. Argentina, Case ., Inter-Am. C.H.R., Report No. / (). Terrorism:

Definition of Terrorism, Council of the European Union, Framework Decision on Combating Terrorism, Doc. //JHA ( June , ). Measures to Eliminate International Terrorism, G.A. Res. /, U.N. GAOR, st Sess., U.N. Doc. A/RES// (). US:

Proposal Submitted by the US: Draft Elements of the Crimes, U.N. Doc. PCNICC//DP. (). Report to Congress on the Conduct of the Persian Gulf War – Appendix on the Role of the Law of War, US Defence Department, printed in  Int’l L. Materials  ().

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Bibliography

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A. Remiro Brotóns, Los Crímenes de Derecho Internacional y su Persecución Judicial, El Derecho Penal Internacional, Cuadernos de Derecho Judicial (Escuela Judicial Consejo General del Poder Judicial ). J.S. Risley, The Laws of War (Innes & Co. ). A. Roberts & R. Guelff eds., Documents on the Laws of War (rd ed. ). J.L. Rodríguez-Villasante y Prieto ed., Derecho Internacional Humanitario (Cruz Roja Española/Tirant lo Blanch ). —. Limitaciones al Empleo de Medios y Métodos de Combate: Armas Convencionales Excesivamente Dañinas o de Efectos Indiscriminados, Derecho Internacional Humanitario  ( J.L. Rodríguez-Villasante y Prieto ed., Cruz Roja Española/Tirant lo Blanch ). —. Los Principios Generales del Derecho Penal en el Estatuto de Roma de la Corte Penal Internacional,  Revista Española de Derecho Militar  ( Jan.-June ). A.P.V. Rogers, Zero Casualty Warfare,  Rev. Int’l Comm. Red Cross  (). —. Law on the Battlefield (nd ed., Manchester University Press ). E. Rosenblad, Area Bombing and International Law, Mil. L. and Law War Rev. (). C. Rosseau, Le Droit des Conflits Armés (Pedone ). P. Rowe ed., The Gulf War -, International and English Law (Routledge ). C. Roxin, Autoría y Dominio del Hecho en Derecho Penal (th ed., J. Cuello Contreras & J.L. Serrano González de Murillo trans., Marcial Pons ). A. Sánchez Legido, Jurisdicción Universal Penal y Derecho Internacional (Tirant lo Blanch ). Y. Sandoz, Comment, Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies  (A. Wall ed. ). —. C. Swinarski, B. Zimmerman & J. Pictet eds., Commentary on the Additional Protocols of  June  to the Geneva Conventions of  August , ICRC (Martinus Nijhoff Publishers ). E. Santalla, Bolivia, Persecución Penal Nacional de Crímenes Internacionales en América Latina y España (K. Ambos & E. Malarino eds., Konrad Adenauer Foundation/Max Planck Institute ). M. Sassoli & L.M. Olson, The Judgment of the ICTY Appeals Chamber on the Merits in the Tadić Case, Rev. Int’l Comm. Red Cross  (). W.A. Schabas, Introduction to the International Criminal Court, (nd ed., Cambridge University Press ). D. Schindler & J. Toman eds., The Laws of Armed Conflict (rd ed. ). M.N. Schmitt, The Principle of Distinction in st Century Warfare,  Yale Hum. Rts. & Dev. L.J.  (). —. Book Review: Law on the Battlefield,  A.F. J. Legal Studies ().

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__. ed., International Law across the Spectrum of Conflict: Essays in Honour of Professor L.C. Green on the Occasion of His Eightieth Birthday (Naval War College ). G. Schwarzenberger, International Law as Applied by International Courts and Tribunals (Stevens and Sons ). W.G. Sharp, Sr., Protecting the Avatars of International Peace and Security,  Mich. J. Int’l L.  (-). J. Silva Sánchez, El Nuevo Código Penal: Cinco Cuestiones Fundamentales (). K.W. Simosns, Rethinking Mental States, B.U. L. Rev.  (May ). J.C. Smith, Smith & Hogan: Criminal Law (th ed., LexisNexis Butterworths ). C.R. Snyman, Criminal Law (rd ed. ). J.M. Spaight, Air Power and War Rights (Longman ). S. Steiner & M.T. Moura, Brasil, Persecución Penal Nacional de Crímenes Internacionales en América Latina y España (K. Ambos & E. Malarino eds., Konrad Adenauer Foundation/Max Planck Institute ). B. Stern, Quelques Observations sur les Regles Internationales relatives à l’Application Extraterritoriale du Droit,  Annuaire Français du Droit Internationale  (). T. Taylor, The Concept of Justice and the Laws of War,  Colum. J. Transnat’l L.  (). B. Thompson, The Criminal Law of Sierra Leone (). O. Triffterer ed., Commentary on the Rome Statute of the International Criminal Court (Nomos ). —. Article , Commentary on the Rome Statute of the International Criminal Court  (O. Triffterer ed., Nomos ). —. Article . Irrelevance of Official Capacity, Commentary on the Rome Statute of the International Criminal Court  (O. Triffterer ed., Nomos ). —. Article : Superior Orders and Prescription of Law, Commentary on the Rome Statute of the International Criminal Court  (O. Triffterer ed., Nomos ). O. Uhler & H. Coursier, Commentary on IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC (). J. Urbina, La Protección de las Víctimas de los Conflictos Armados, Naciones Unidas y Derecho Internacional Humanitario: Desarrollo y Aplicación del Principio de Distinción entre Objetivos Militares y Bienes de Carácter Civil (Tirant lo Blanch/Cruz Roja Española ). C. Van de Wyngaert & B. De Schutter, Coping with Non-International Armed Conflicts: The Borderline between National and International Law,  GA. J. Int’l & Comp. L.  (). N.A. Vaquerano, El Salvador, Persecución Penal Nacional de Crímenes Internacionales en América Latina y España (K. Ambos & E. Malarino eds., Konrad Adenauer Foundation/Max Planck Institute ).

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A. Verrier, The Bomber Offensive (). H. Von Hebel & D. Robinson, Crimes within the Jurisdiction of the Court, The International Criminal Court: The Making of the Rome Statute. IssuesNegotiations-Results  (R.S. Lee ed., Kluwer Law International ). T. Voon, Pointing the Finger: Civilian Casualties of NATO Bombing in the Kosovo Conflict,  Am. U. Int’l L. Rev.  (). A. Wall ed., Legal and Ethical Lessons of NATO’s Kosovo Campaign,  Int’l L. Studies (). M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia,  Am. J. Int’l L.  (). W.H. Willey, Prospects for the Application of the Rule of Proportionality by International Prosecutors, Master Thesis, Unpublished (Leiden University ).

Héctor Olásolo - 978-90-47-43159-6

INDEX

A

Abandonment 197, 198, 248 Abetting 196, 212, 213, 214 see also Modes of liability Accessories to the crime 201 Aerial attack 126, 127, 130, 156 Aid society 63, 106 Aiding 196, 212 see also Modes of liability Ammunition 10, 16, 67, 92, 96, 97, 101, 109, 110, 113, 125, 126, 135, 138, 140, 157, 158, 161, 162, 163, 164, 174, 176, 201, 224, 225, 232 Armed conflict 1, 2, 3, 4, 6, 11, 12, 14, 16, 17, 21, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 63, 66, 71, 73, 74, 76, 79, 80, 83, 85, 86, 87, 88, 89, 91, 93, 95, 97, 98, 103, 105, 107, 108, 110, 111, 113, 119, 121, 124, 126, 127, 129, 132, 135, 136, 138, 163, 164, 165, 166, 169, 171, 174, 175, 179, 183, 184, 187, 188, 215, 238, 247, 248, 251, 252, 253, 259, 260 Armed forces 1, 3, 5, 7, 15, 18, 29, 30, 32, 33, 36, 37, 38, 40, 42, 43, 44, 47, 50, 51, 54, 58, 59, 61, 62, 64, 68, 71, 76, 84, 92, 103, 104, 105, 106, 107, 108, 109, 111, 112, 114, 115, 116, 119, 122, 123, 125, 129, 137, 161, 163, 164, 184, 211, 215, 236, 237, 242, 243, 255, 261 Armoured vehicle 122, 143, 234 Arrest warrant 81, 249, 252, 253, 260 Artillery attack 11, 138, 140, 141, 223, 225 Arts and Sciences, Institutions dedicated

to 66, 71 Asphyxiating, poisonous or other gases 5, 97 Assisting 62 see also Modes of liability Attempt 56, 71, 85, 94, 127, 136, 145, 166, 169, 197, 204, 213, 248, 259

B

Bacteriological weapons 98 Barracks 8, 11, 12, 49, 50, 72, 117, 122, 123, 128, 132 Bombardment 6, 16, 66, 93, 129, 130, 131, 155, 171, 179, 183, 184, 233 Bridge 28, 122, 123, 125, 128, 145, 159, 160, 161, 164, 248 Broadcasting facilities 122, 125 Bullets which expand or flatten easily 47, 97

C

Cases 239, 242 Charity, Institutions dedicated to 66, 71 Chemical weapons 98, 100 Church 72, 124, 224 Civil protection 106, 107, 116, 117, 163 Civilian objects 5, 7, 8, 9, 10, 11, 13, 14, 17, 18, 19, 20, 22, 23, 25, 28, 46, 52, 53, 69, 70, 71, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 89, 90, 91, 93, 96, 98, 104, 115, 117, 118, 120, 121, 136, 138, 156, 157, 158, 162, 163, 165, 166, 167, 169, 171, 172, 174, 183, 189, 190, 191, 193, 197, 198, 199, 201, 203, 204, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 231, 232, 233, 235, 236, 237, 241, 242, 244, 255, 256, 257, 258, 259,

Héctor Olásolo - 978-90-47-43159-6



Index

260, 261 Civilian population 5, 7, 10, 11, 13, 15, 16, 17, 18, 19, 20, 21, 22, 29, 43, 46, 47, 61, 62, 70, 71, 73, 74, 75, 76, 79, 81, 82, 84, 85, 86, 87, 88, 91, 99, 104, 119, 120, 121, 125, 126, 127, 129, 136, 138, 155, 161, 166, 167, 168, 169, 184, 185, 186, 220, 221, 253, 259, 260 Civilian status 116, 117, 121, 126, 219, 220, 221, 222, 229, 237 Cluster munitions 76, 98, 99, 100 Combatants 3, 4, 5, 11, 12, 15, 17, 22, 29, 43, 44, 47, 48, 51, 52, 54, 62, 67, 72, 74, 76, 77, 81, 82, 93, 94, 95, 97, 104, 105, 106, 107, 108, 111, 114, 115, 116, 119, 120, 123, 134, 163, 164, 169, 188, 221, 236 Command and control 34, 112, 131, 167, 183 see also Armed conflict Commission by omission 190, 193, 212, 213 Common purpose 60, 196, 204 see also Modes of liability Communication centre 123 Completion of the crime 198, 248 Complicity 205 Concrete and direct overall military advantage 81, 84, 158, 179, 229, 230, 231, 261 Conduct of hostilities 5, 6, 7, 13, 14, 16, 21, 53, 64, 66, 68, 69, 73, 80, 81, 87, 89, 90, 91, 92, 104, 223, 255, 256, 258, 260 Control of the crime 202, 203 see also Modes of liability Crimes causing a result 75, 78 Crimes of mere action 74, 75, 76, 86, 88, 95, 189, 197, 198, 208, 217, 222, 232, 259 Crimes of mere omission 208, 212 Criminal procedure 30, 252 Culpability 192, 209, 220, 221, 222, 232, 241, 247, 251, 259

D

Declaring that no quarter will be given 47, 211

Defence of property 235, 237, 243 Defensive operation 237 Defiles 125 Definitive military advantage 123, 124, 128, 224 Depleted uranium 98, 100 Depots 16, 72, 123, 125, 218, 219, 223 Destruction of enemy’s property 89, 198 Diminished psychological capacity 242, 245 Direct intervention 58, 61 see also Armed conflict Direct perpetration 196 see also Modes of liability Disciplinary control 190 Disciplinary system 36, 38, 41, 47, 60, 105 see also Armed conflict Disproportionate attacks 5, 19, 25, 28, 50, 53, 64, 77, 78, 79, 81, 85, 86, 87, 88, 98, 189, 190, 191, 193, 197, 198, 203, 204, 217, 226, 231, 232, 233, 235, 237, 241, 242, 243, 244, 256, 257, 259, 260, 261 Distinction, Principle of 2, 5, 11, 12, 13, 15, 16, 17, 20, 21, 22, 53, 65, 66, 68, 69, 71, 72, 73, 74, 75, 77, 78, 79, 81, 85, 86, 87, 89, 90, 91, 92, 96, 98, 104, 121, 138, 166, 169, 174, 231, 255, 256, 258, 259, 260, 261 Dolus 78, 85, 87, 95, 96, 199, 207, 208, 209, 210, 211, 212, 214, 216, 217, 218, 219, 220, 223, 224, 225, 228, 231, 232, 238, 259 Dolus directus in the first degree 85, 208, 210, 218, 219, 220, 231 Dolus directus in the second degree 85, 87, 208, 218 Dolus eventualis 78, 85, 87, 208, 209, 214, 216, 218, 259 Dolus specialis 95, 96, 199, 207, 211, 212 Dormant jurisdiction 251, 252, 253 Dual use facilities 123, 257 Duress 242 Duty to minimize 135 Duty to verify 228

Héctor Olásolo - 978-90-47-43159-6

Index E

Economy in the use of force, Principle of 137, 138, 161, 162, 163, 225, 261 Education, Institutions dedicated to 66, 71, 93, 210 Effective contribution to military action 18, 82, 90, 123, 162 Effective control 30, 56, 59, 62, 190, 191 see also Armed conflict, Omission Emblems 5, 94, 95 Engineering industry 122, 125 Environmental damage 84, 128, 165, 233 Environmental modification techniques 98 Execution stage 195, 196, 197, 198 Exemptions from punishment 25, 248, 249, 250 Expected action 189, 190, 193, 198, 208

F

Failure to prevent 193, 210, 212, 213 Failure to punish 192, 212 Firefighting 110, 163 Functional control of the crime 203 see also Modes of liability

G

General subjective element 27, 28, 115, 207, 208, 210, 211, 212, 214, 215, 216, 217, 218, 219, 220, 222, 223, 226, 232, 238, 243 Gravity threshold 25, 215, 250, 251, 252, 253, 254 Gross negligence 210, 220, 221, 222, 232, 259 Grounds for excuse 216, 235, 241, 242, 244, 245 Grounds for justification 71, 90, 93, 107, 216, 235, 236, 237, 238, 239, 241, 243, 245, 249, 250

H

Had reasons to know standard 213 Headquarters 39, 110, 123, 128, 131, 133 Hills 109, 112, 123, 124, 125, 134, 145, 150, 151, 152, 153, 180, 185 Historic monuments 15, 18, 21, 66, 93,



210 Hors de combat 4, 12, 16, 64, 76, 94, 95, 106, 134, 158, 162, 164 Hospital 62, 72, 151, 163 Human shields 96, 111, 133, 166, 167, 169, 199, 211, 234 Humanitarian assistance 13, 52, 92, 93

I

Immunity 14, 162, 165, 249 see also Official capacity Incendiary weapons 98 Incidental civilian damage 5, 11, 12, 14, 16, 19, 47, 64, 77, 79, 83, 89, 90, 91, 104, 117, 120, 124, 131, 155, 156, 157, 158, 161, 162, 163, 164, 165, 166, 167, 168, 170, 171, 172, 173, 174, 176, 178, 182, 183, 185, 187, 188, 219, 226, 227, 228, 229, 230, 231, 232, 233, 256, 257, 259 Indirect intervention 58, 59, 61 see also Armed conflict Indirect perpetration 196, 203, 204 see also Modes of liability Indiscriminate attacks 5, 19, 20, 23, 46, 76, 77, 78, 86, 87, 99, 100, 132, 157, 182, 219 Inducing 195, 196, 201, 204 see also Modes of liability Industrial plants 124, 126, 128, 164 Intelligence reports 223, 225 Intention 12, 44, 86, 87, 94, 95, 96, 142, 198, 204, 209, 217, 218, 219, 223, 224 see also Dolus Intentionally 210, 217, 218, 219, 226, 231 Intoxication 242

J

Joint criminal enterprise 212, 213 see also Modes of liability

K

Knowledge 7, 20, 44, 63, 71, 82, 84, 85, 87, 138, 205, 208, 210, 213, 214, 222, 226, 228, 229, 230, 231, 232, 233, 238, 261 see also Dolus

Héctor Olásolo - 978-90-47-43159-6



Index

L

Land operations 16, 103, 127, 128, 223 Levée en masse 106 Logistical capabilities 31, 37, 41, 60 see also Armed conflict

M

Medical material 62, 63, 64, 94 see also Hospital Medical personnel 13, 61, 62, 64, 94, 106, 107, 114, 116, 123, 163 Mental disease or defect 242 Mental element 115, 208, 216, 220, 221 see also General subjective element Military action 17, 18, 173 see also Armed conflict, Effective contribution to military action, Military objective Military advantage 12, 14, 16, 17, 19, 20, 22, 23, 46, 47, 71, 77, 79, 82, 83, 85, 87, 90, 123, 124, 129, 130, 131, 134, 135, 136, 137, 138, 155, 158, 161, 162, 164, 165, 167, 170, 171, 172, 173, 174, 175, 176, 182, 183, 185, 188, 228, 229, 256, 257 Military equipment 67, 109, 124, 125, 138, 158, 161, 224 Military facilities 9, 125 Military necessity 9, 10, 13, 15, 16, 18, 63, 66, 68, 69, 70, 71, 72, 73, 75, 90, 91, 117, 133, 134, 220, 227, 238, 249, 250, 255, 259 see also Grounds for justification, Punishment Military objective 2, 3, 5, 11, 12, 14, 17, 18, 19, 20, 22, 23, 30, 44, 47, 50, 64, 68, 71, 72, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 87, 88, 89, 90, 91, 93, 94, 99, 104, 105, 106, 107, 108, 109, 111, 114, 115, 116, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 134, 135, 136, 137, 138, 140, 146, 147, 148, 149, 155, 156, 157, 161, 162, 163, 164, 165, 166, 167, 169, 171, 173, 176, 181, 184, 185, 188, 199, 217, 218, 219, 222, 223, 224, 231, 232, 233, 234, 236, 237, 255, 256, 257, 258, 259

Military personnel 54, 106, 125, 139, 167, 169, 170 Military supplies 16, 122, 125 Military target 15, 46, 71, 100, 118, 119, 131, 140, 147, 149, 170, 183, 188, 218, 219, 220, 222, 225, 258, 259 Military value 125, 132, 134, 135, 164 Military works 16, 125 Militia 107, 236, 260 Mistake of fact 115, 216, 219, 232, 239 see also Grounds for justification Mistake of law 243, 245 Modes of liability 196, 201, 204, 214 Mortar 87, 104, 125, 131, 132, 133, 143, 145, 147, 148, 149, 150, 158, 180, 181, 182, 184, 199, 209, 218, 224, 225

N

Narrow passes 123 Negligence 209, 210, 211, 212, 213, 214, 220, 221 see also Should have known standard Nuclear weapons 67, 98, 100, 127

O

Objective elements of the crime 25, 26, 53, 84, 94, 195, 197, 198, 201, 202, 203, 204, 207, 216, 222, 235, 238, 239, 243 Contextual elements 11, 25, 27, 28, 55, 61, 119, 215, 248, 250 Material contextual elements 25, 26, 215, 216 Jurisdictional contextual elements 25, 27, 250 Specific objective elements 25, 65, 207 Objective requisites to proceed 27, 215, 250, 252, 253 Occupation 43, 57, 58, 60, 61, 62, 63, 93 see also Armed conflict Official capacity 249 Omission 61, 189, 190, 192, 197, 198, 208, 212, 213 Operational capabilities 31, 37, 38, 41, 117 see also Armed Conflict Operational control 33, 35, 190 see also Omission

Héctor Olásolo - 978-90-47-43159-6

Index Operational level 117, 137, 141, 159, 170, 171, 172, 173, 174, 175, 176, 178, 179, 187, 188 see also Proportionality analysis Ordering 4, 46, 47, 52, 69, 95, 184, 191, 196, 201, 204 see also Modes of liability Organised armed groups 31, 199, 200, 211 see also Armed conflict Overall control 59, 60, 61, 63 see also Armed conflict

P

Participation in the commission of a crime by a third person 202 Peacekeeping mission 13, 51, 52, 92, 93, 136 Penal norm 5, 6, 7, 163, 190, 193, 198, 201, 207, 241, 261 Perpetration 196, 202, 203, 204, 205 Perpetrator’s error 227 Perpetrator’s representation 227 Physical deficiencies 242, 245 Plan 8, 34, 36, 37, 38, 60, 118, 142, 198, 199, 204, 251, 253 Plunder of public or private property 66, 67 Points of impact 131, 132, 138, 140, 147, 148, 160, 180, 224, 225 Poison, Employment of 97, 98 Poisonous weapons, Employment of 66, 72, 97 Police 3, 37, 40, 67, 69, 94, 134, 139, 147, 148, 163, 203 Policy 81, 195, 227, 251, 253 Position of guarantor 193 Power stations 124, 164 Precautionary measures 14, 115, 116, 120, 126, 130, 135, 153, 166, 172, 178, 181, 187, 219, 220, 223, 228, 231, 232, 234, 261 Preparatory acts 195, 196, 197, 198 Press 184, 188 Principals to the crime 201, 202 Prisoner of war 43, 44, 46, 48, 51, 108, 236



Prohibited methods of warfare 5, 16, 17, 23, 89, 90, 92, 95 Proportionality analysis 71, 77, 158, 160, 167, 170, 175, 176, 178, 183, 184, 185, 186, 188, 227, 228, 258 Proportionality rule 15, 21, 22, 68, 71, 83, 90, 96, 104, 109, 117, 124, 130, 155, 156, 157, 158, 159, 162, 163, 165, 168, 170, 171, 172, 173, 174, 177, 178, 179, 184, 185, 188, 218, 228, 229, 230, 233, 259, 261 Protected objects 18 Protected persons 13, 62, 64, 89, 90, 92, 96, 97, 166, 211, 217, 237, 254 see also Grounds for justification Protracted armed violence 35, 39 Public order 52, 105, 116, 134 Punishment 25, 27, 192, 197, 215, 235, 247, 248, 249, 250 see also Grounds for justification

R

Railway 122, 159, 160 Recklessness 209, 210, 220, 221, 223, 224, 225, 233 Religion, Institutions dedicated to 15, 66, 71, 93, 210 Religious material 13 see also Church Religious personnel 13, 61, 62, 64, 94, 106, 107, 114, 116, 123, 163 Reprisals 17, 18, 19, 22, 32, 165 Research centres 122 Risk 5, 67, 74, 75, 84, 96, 103, 109, 130, 135, 144, 158, 162, 164, 166, 167, 168, 169, 170, 185, 189, 208, 209, 210, 227, 236, 237, 242, 243 see also Dolus Eventualis, Recklessness Road 112, 136, 137, 186, 187, 233 Rocket 99, 122, 166 School 10, 18, 72, 87, 88, 94, 113, 118, 124, 126, 158, 175, 185, 218

S

Seizure of enemy’s property 15, 88, 90, 96, 226, 238, 249, 250, 255, 259 Self-defence 1, 51, 107, 108, 164, 174,

Héctor Olásolo - 978-90-47-43159-6



Index

235, 236, 237, 239, 241, 242 Weak defence 117, 118 Shipwrecked 61, 106, 115 Should have known standard 211, 213, 214 Sick persons 15, 61, 62, 93, 94, 106, 107, 115, 210 Situation 241, 242 Sniper attacks 11, 141, 142, 150, 152, 184 Social meaning 26, 215, 243, 244 Societal value 27, 57, 190, 193, 199, 207 Soliciting 196 see also Modes of liability State of mind 207, 224, 225 Strategic level 117, 158, 159, 170, 171, 173, 174, 175, 177, 184, 188, 257 see also Proportionality analysis Superfluous injury 13, 15, 46, 89, 96, 97, 98, 256 Superior orders 244 Superior responsibility 191 see also Omission Surrender, Request for 249 Surrendered at discretion 94

T

Tactical level 141, 159, 170, 171, 175, 177, 178, 179, 183

see also Proportionality analysis Terrorism 29, 30, 38, 39, 41, 45, 46, 48, 49 Treacherously, Killing or wounding 95, 97 Triggering procedure 251, 252 Troops 9, 10, 34, 37, 67, 68, 77, 103, 109, 124, 125, 126, 133, 135, 137, 140, 142, 147, 158, 170, 180, 181, 184, 227 Truce, Flag of 5, 95 Tunnel 147, 148

U

Ulterior intent 95, 96, 199, 207, 210, 212 see also Dolus specialis Unlawfulness 2, 11, 69, 72, 73, 84, 98, 137, 141, 235, 241, 242, 245, 247, 251, 256, 258, 259, 260 Unnecessary suffering 13, 15, 47, 66, 72, 89, 96, 97, 98

W

Wanton destruction 66, 68, 69, 70, 73, 75 Weapon 76, 78, 97, 98, 99, 103, 115, 164, 224, 225 Widespread 11, 18, 82, 83, 84, 85, 120, 158, 165, 166, 185, 226, 233, 253 Works of art 18, 21, 66, 71 Wounded person 62

Héctor Olásolo - 978-90-47-43159-6

International Humanitarian Law Series 

Michael J. Kelly, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework,        Helen Durham and Timothy L.H. McCormack (eds.), The Changing Face of Conflict and the Efficacy of International Humanitarian Law,        Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald,        Elizabeth Chadwick, Traditional Neutrality Revisited:Law, Theory and Case Studies,        Lal Chand Vohrah, Fausto Pocar, Yvonne Featherstone, Olivier Fourmy, Christine Graham, John Hocking and Nicholas Robson (eds.), Man’s Inhumanity to Man:Essays on International Law in Honour of Antonio Cassese,        Gideon Boas and William A. Schabas (eds.), International Criminal Law Developments in the Case Law of the ICTY,       * Karen Hulme, War Torn Environment: Interpreting the Legal Threshold,      x  Helen Durham and Tracey Gurd (eds.), Listening to the Silences: Women and War,       * ** Marten Zwanenburg, Accountability of Peace Support Operations,        Hirad Abtahi and Gideon Boas (eds.), The Dynamics of International Criminal Law,        Frits Kalshoven, Belligerent Reprisals,        Pablo Antonio Fernández-Sánchez (ed.), The New Challenges of Humanitarian Law in Armed Conflicts: In Honour of Professor Juan Antonio Carrillo-Salcedo,        Ustinia Dolgopol and Judith Gardam (eds.), The Challenge of Conflict: International Law Responds,       * Laura Perna, The Formation of the Treaty Law of Non-International Armed Conflicts,        Michael Schmitt and Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein,        Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the ‘Safety Convention’ against the Background of General International Law,        Frits Kalshoven, Reflections on the Law of War: Collected Essays,         Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute,         José Doria, Hans-Peter Gasser and M. Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko,         David A. Blumenthal and Timothy L.H. McCormack (eds.), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance?,        * **

Winner of the ASIL Francis Lieber Prize. Winner of the  Paul Reuter Prize.

Héctor Olásolo - 978-90-47-43159-6