Whether all victims of crimes under Article 5 must be civilians

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

567. […] [T]he Appeals Chamber notes that it is well-established 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”.[1] The Appeals Chamber further recalls that “the civilian population need only be predominantly civilian”.[2] […]

569. […] [T]he Appeals Chamber reiterates that “there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be ‘civilians’”,[3] or even be predominantly civilians,[4] provided the acts form part of a widespread or systematic attack directed against a civilian population (the nexus requirement). The population targeted by the attack must be predominantly civilian,[5] but there is no legal requirement that a certain proportion of the victims of the underlying crime be civilians.[6] […]

[1]           Šainović et al. Appeal Judgement, para. 549; Mrkšić and [ljivančanin Appeal Judgement, para. 31, citing Kordić and Čerkez Appeal Judgement, para. 50. See also Blaškić Appeal Judgement, para. 113.

[2]           Mrkšić and [ljivančanin Appeal Judgement, para. 25, affirming Mrkšić et al. Trial Judgement, para. 442.

[3]           Mrkšić and [ljivančanin Appeal Judgement, para. 32.

[4]           See Mrkšić and [ljivančanin Appeal Judgement, paras 36-37.

[5]           See supra, para. 567.

[6]           See Martić Appeal Judgement, para. 307; Kunarac et al. Appeal Judgement, paras 85, 91.

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Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

303. The second issue raised by the Prosecution is whether the condition under the chapeau of Article 5 of the Statute – that the attack be directed against a civilian population – also requires that all victims of each individual crime under Article 5 have civilian status, and in particular, whether the chapeau excludes persons hors de combat who are present within the civilian population from constituting victims of a crime against humanity. […]

The Appeals Chamber considered the Kunarac et al. Appeal Judgement, para 91, and said:

305. When dealing with the expression “directed against any civilian population”, the Tribunal has interpreted it as requiring “that the acts be undertaken on a widespread or systematic basis”.[1] [… On] the face of it, the requirement that the acts of an accused must be part of a widespread or systematic attack directed against any civilian population does not necessarily imply that the criminal acts within this attack must be committed against civilians only. The chapeau rather requires a showing that an attack was primarily directed against a civilian population, rather than “against a limited and randomly selected number of individuals.”[2]

The Appeals Chamber referred to relevant interpretative sources, including the Reports of the Secretary-General recommending the establishment of the Tribunal and of the Commission of Experts Established Pursuant to Security Council Resolution 780. It then concluded:

313. Under Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population. Further, the Appeals Chamber is satisfied that the commission of crimes under Article 5 of the Statute against persons hors de combat attracted individual criminal responsibility under customary international law at the time of the commission of the offences. Therefore, the principle of nullum crimen sine lege is not violated.[3]

314. On the basis of the above, the Appeals Chamber finds that the Trial Chamber erred in finding that, under Article 5 of the Statute, persons hors de combat are excluded from the ambit of crimes against humanity when the crimes committed against them occur as part of a widespread or systematic attack against the civilian population. Provided this chapeau requirement is satisfied, a person hors de combat may be a victim of crimes against humanity.

[1] Tadić Trial Judgement, para. 626.

[2] Kunarac et al. Appeal Judgement, para. 90, also cited in Kordić and Čerkez Appeal Judgement, para. 95; Blaškić Appeal Judgement, para. 105.

[3] Cf. Hadžihasanović et al. Appeal Decision on Command Responsibility, para. 44.

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ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

27. The Trial Chamber was aware that the International Tribunal had not yet addressed the issue of whether the individual victims of the underlying crimes under Article 5 of the Statute must be civilians.[1] To support its above conclusion, it sought to rely on the finding in the Blaškić Appeal Judgement that “both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity”.[2] However, as explained below, this finding cannot lend support to the conclusion that the underlying crimes under Article 5 of the Statute can only be committed against civilians.

28. The Appeals Chamber in Blaškić first stated that the Trial Chamber “correctly recognised that a crime against humanity applies to acts directed against any civilian population”.[3] It then addressed Tihomir Blaškić’s argument that he never ordered attacks directed against a civilian population but that the casualties were the unfortunate consequence of an otherwise legitimate and proportionate military operation.[4] In this context, the Appeals Chamber found that the Trial Chamber erred when it stated that “the specificity of a crime against humanity results not from the status of the victim but the scale and organisation in which it must be committed”.[5] It further found that “both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity”.[6] The Appeals Chamber’s finding was therefore concerned with the issue of whether legitimate military targets were attacked and was not seized of the question of whether the victims of the underlying crimes under Article 5 of the Statute must be civilians. Accordingly the Appeals Chamber’s finding is to be understood as only reflecting the jurisdictional requirement of Article 5 of the Statute that crimes against humanity must be committed as part of a widespread attack against a civilian population.[7] It cannot be understood as implying that the underlying crimes under Article 5 of the Statute can only be committed against civilians as the Trial Chamber did in the present case.

29. The Appeals Chamber recently confirmed that “[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians”.[8] Further, it held that under customary international law, persons hors de combat can also be victims of crimes against humanity, provided that all the other necessary conditions are met.[9]

30. This is not to say that under Article 5 of the Statute the status of the victims as civilians is irrelevant. In fact, the status of the victims is one of the factors that can be assessed in determining whether the jurisdictional requirement that the civilian population be the primary target of an attack has been fulfilled,[10] along with, inter alia, the means and method used in the course of the attack, the number of victims, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.[11]

31. Further, the fact that a population under the chapeau of Article 5 of the Statute must be “civilian” does not imply that such population shall only be comprised of civilians. The status of the victims will thus also be relevant to determining whether the population against which the attack is directed is civilian. In Kordić and Čerkez, the Appeals Chamber stated:

The civilian population comprises all persons who are civilians and 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.[12]

In Blaškić, the Appeals Chamber, relying on the ICRC Commentary to Article 50 of Additional Protocol I,[13] held that “in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”.[14]

32. Accordingly, whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”.

33. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in law at paragraphs 462 and 463 of the Trial Judgement in concluding that, for the purposes of Article 5 of the Statute, the victims of the underlying crime must be civilians, and consequently erroneously creating an additional requirement under Article 5 of the Statute.

[1] Trial Judgement, para. 462: “The Chamber is aware of the fact that, to date, the Tribunal’s jurisprudence has not been called upon to address the question whether the individual victims of crimes against humanity need to be civilians”.

[2] Blaškić Appeal Judgement, para. 107, relied upon at paragraph 462 of the Trial Judgement.

[3] Blaškić Appeal Judgement, para. 107.

[4] Blaškić Appeal Judgement, para. 103.

[5] Blaškić Appeal Judgement, para. 107, quoting Blaškić Trial Judgement, para. 208.

[6] Blaškić Appeal Judgement, para. 107.

[7] Blaškić Appeal Judgement, Section IV(A)(2).

[8] Martić Appeal Judgement, para. 307. See also paras 303-306, 308. In Martić, the Appeals Chamber entered convictions for crimes committed against persons hors de combat, considering that they were victims of a widespread and systematic attack against the civilian population, and that all the elements of the offences were met (see Martić Appeal Judgement, paras 318-319, 346, 355).

[9] Martić Appeal Judgement, paras 311, 313.

[10] Kunarac et al. Appeal Judgement, para. 92: “The Appeals Chamber is satisfied that the Trial Chamber correctly defined and identified the “population” which was being attacked and that it correctly interpreted the phrase “directed against” as requiring that the civilian population which is subjected to the attack must be the primary rather than an incidental target of the attack”.

[11] Kunarac et al. Appeal Judgement, para. 91.

[12] Kordić and Čerkez Appeal Judgement, para. 50. See also Galić Appeal Judgement, para. 136.

[13] ICRC Commentary to Article 50 of Additional Protocol I, para. 1922: “[I]n wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population”.

[14] Blaškić Appeal Judgement, para. 115. See also Galić Appeal Judgement, para. 137.

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ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

141.    With respect to Tolimir’s argument that the Trial Chamber erred in law in applying an incorrect standard to establish the mens rea of extermination by not requiring that the civilian population was the intended target of mass murder,[1] the Appeals Chamber recalls that, as noted by the Trial Chamber,[2] it is well-established that with regard to the victims of the underlying acts of crimes against humanity, “[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians”.[3] The Appeals Chamber has more specifically clarified that:

whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”.[4]

142.    Accordingly, while the establishment of the actus reus of a crime against humanity requires that the crime occur as part of a widespread or systematic attack directed against a civilian population,[5] the victims of the underlying crime do not have to be civilians. The Appeals Chamber thus rejects Tolimir’s argument that the Trial Chamber erred in law by applying an incorrect mens rea standard for extermination when not requiring proof of intent to commit mass murder against civilians. It was sufficient for the Trial Chamber to be satisfied in that regard that the mens rea for the crime of extermination was established on the basis of evidence of the intent to kill on a massive scale as part of a widespread or systematic attack directed against a civilian population.

[1]    Appeal Brief, paras 65-66. See also Reply Brief, para. 31.

[2]    Trial Judgement, para. 697.

[3]    Martić Appeal Judgement, para. 307. See also Popović et al. Appeal Judgement, para. 569; Mrkšić and [ljivančanin Appeal Judgement, para. 29.

[4]    Popović et al. Appeal Judgement, para. 569. See also Mrkšić and [ljivančanin Appeal Judgement, para. 32.

[5]    See Popović et al. Appeal Judgement, para. 569; Mrkšić and [ljivančanin Appeal Judgement, para. 41; Kunarac et al. Appeal Judgement, paras 99-100.

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ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

58. Concerning the status of victims of crimes under Article 5 of the Statute, the Appeals Chamber recalls that “there is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber, that requires that individual victims of crimes against humanity be civilians”.[1] Nonetheless, it notes that the civilian status of the victims remains relevant for the purpose of the chapeau requirement of Article 5 of the Statute as one of the factors to be assessed in determining whether the civilian population was the primary target of an attack.[2] Furthermore, “the fact that a population, under the chapeau of Article 5 of the Statute, must be 'civilian' does not imply that such population shall only be comprised of civilians.”[3] Accordingly, the civilian status of the victims and the proportion of civilians within a population are factors relevant to satisfy the chapeau requirement that an attack was directed against a “civilian population”, yet it is not an element of the crimes against humanity that individual victims of the underlying crimes be “civilians”.[4]

[1] Martić Appeal Judgement, para. 307.

[2] Mrkšić and Šljivančanin Appeal Judgement, paras 30-31; Martić Appeal Judgement, paras 307-308; Kunarac et al. Appeal Judgement paras 91-92.

[3] Mrkšić and Šljivančanin Appeal Judgement, para. 31.

[4] Mrkšić and Šljivančanin Appeal Judgement, para. 32.

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ICTR Statute Article 3 ICTY Statute Article 5