Wanton destruction not justified by military necessity
|Appeal Judgement - 17.12.2004||
KORDIĆ & ČERKEZ
76. The wanton destruction of cities, towns or villages, or devastation not justified by military necessity, a violation of the laws and customs of war recognised by Article 3(b) of the Statute, is covered by Article 6(b) of the Nuremberg Charter. This provision is restated in Principle 6 of the Nuremberg principles. It refers to war crimes already covered in Articles 46, 50, 53 and 56 of the Hague Regulations, which are applicable to cases of occupation. However, the violation in question is more narrowly defined than Article 23(g) of the Hague Regulations, which states that it is especially forbidden “to destroy […] the enemy’s property, unless such destruction […] is imperatively demanded by the necessities of war.” The Report of the Secretary-General states that the above instrument and the Regulations annexed thereto has beyond doubt become part of international customary law. A fortiori, there is no doubt that the crime envisaged by Article 3(b) of the Statute was part of international customary law at the time it was allegedly committed.
 Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal, unanimously adopted by the UNGA in 1950 (UNGAOR, 5th Session, Supp. No. 12, UN Doc. A/1316).
 Judgement of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 30 September and 1 October 1946, p. 64.
 Report of the Secretary-General [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993], para. 35.
|ICTY Statute Article 3(b)|
||Decision on Motions for Acquittal - 11.03.2005||
HADŽIHASANOVIĆ & KUBURA
29. The wanton destruction of cities, towns or villages, an offence articulated in Article 3(b) of the Statute, reflects the customary international law prohibition on unlawful attacks against civilian objects which is found in conventional and customary international law applying to situations of international and non-international armed conflicts. Because this conduct is prohibited in customary international law that applies in international and non-international armed conflict, the proof of occupied territory is not required. The elements of this offence have been enunciated in several cases before the Trial Chambers, but none has considered the international nature of the armed conflict to be an element. Devastation not justified by military necessity, an offence articulated in Article 3(b) of the Statute, includes the customary international law prohibition that destruction of the property of an adversary is prohibited, unless required by imperative military necessity. This rule applies in international and non-international armed conflict.
30. The Appeals Chamber is satisfied that the conventional prohibition on attacks on civilian objects in non-international armed conflicts has attained the status of customary international law and that this covers “wanton destruction of cities, towns or villages not justified by military necessity” in international and non-international armed conflict. The Appeals Chamber is further satisfied that violations of this provision entail, in customary international law, the individual criminal responsibility of the person breaching the rule. The ICRC notes that this prohibition is contained in numerous military manuals that are applicable in or have been applied in international and non-international armed conflict, and numerous states have adopted legislation making it an offence to attack civilian objects during any armed conflict.
See also paras 26-28 where the Appeals Chamber discusses legal sources including those referred to in the impugned Trial Chamber decision.
 See, e.g., Prosecutor v. Kordić and Čerkez, IT-95-14-T, Judgement, 26 February 2001 […], para. 346 (holding the elements to be: (i) the destruction of property occurs on a large scale, (ii) the destruction is not justified by military necessity; and (iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction); affirmed, Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Judgement, 17 December 2004, […], paras. 74-76.
 This is a long-standing rule of international armed conflict. See Hague Regulations Article 23(g) (“In addition to the prohibitions provided by special Conventions, it is especially forbidden... [t]o destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war”). The ICRC study on customary international humanitarian law notes that “[t]his rule is included in military manuals which are applicable in or have been applied in non-international armed conflicts.” Jean-Marie Henckaerts and Louise Doswald-Beck (eds), ICRC Customary International Humanitarian Law, (Cambridge, 2005) (“ICRC Customary International Humanitarian Law”), vol. 1, page 28. There is an absolute prohibition on directing attacks against civilian objects, which may not be derogated from because of military necessity. See, e.g., Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Corrigendum to Judgement of 17 December 2004, page 2.
 ICRC Customary International Humanitarian Law, vol. 1. pages 26 nn. 6-8, 28 nn. 21-22, 176 nn. 25-26, 177 nn. 30-31.
 Ibid., page 28.
|ICTY Statute Article 3(b)|