|Appeal Judgement - 08.10.2008||
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The Appeals Chamber considered whether persons hors de combat were within the term “civilian” in Article 5 of the Statute. It then considered whether a person hors de combat could be otherwise a victim of a crime under Article 5.
|ICTR Statute Article 3 ICTY Statute Article 5|
|Appeal Judgement - 29.07.2004||
109. Before determining the scope of the term “civilian population,” the Appeals Chamber deems it necessary to rectify the Trial Chamber’s statement, contained in paragraph 180 of the Trial Judgement, according to which “[t]argeting civilians or civilian property is an offence when not justified by military necessity.” The Appeals Chamber underscores that there is an absolute prohibition on the targeting of civilians in customary international law.
110. In determining the scope of the term “civilian population,” the Appeals Chamber recalls its obligation to ascertain the state of customary law in force at the time the crimes were committed. In this regard, it notes that the Report of the Secretary General states that the Geneva Conventions “constitute rules of international humanitarian law and provide the core of the customary law applicable in international armed conflicts.” Article 50 of Additional Protocol I to the Geneva Conventions contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law. As a result, they are relevant to the consideration at issue under Article 5 of the Statute, concerning crimes against humanity.
111. Article 50, paragraph 1, of Additional Protocol I states that a civilian is “any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” The Appeals Chamber notes that the imperative “in case of doubt” is limited to the expected conduct of a member of the military. However, when the latter’s criminal responsibility is at issue, the burden of proof as to whether a person is a civilian rests on the Prosecution.
113. Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. However, the Appeals Chamber considers that the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic. The Trial Chamber was correct in this regard.
114. However, the Trial Chamber’s view that the specific situation of the victim at the time the crimes were committed must be taken into account in determining his standing as a civilian may be misleading. The ICRC Commentary is instructive on this point and states:
All members of the armed forces are 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, 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 1, 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 1), 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 44, paragraph 8), and, if he is captured, he is entitled to the protection of the Third Convention (Article 44, paragraph 1).
As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.
115. The Trial Chamber also stated that the “presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population.” The ICRC Commentary on this point states:
…in 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.
Thus, 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.
 Hadžihasanović Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (“Hadžihasanović 16 July 2003 Decision”), para. 44. See also on a more general note, Report of the Secretary General, (S/25704, 3 May 1993), paras. 29, 34.
 Report of the Secretary General, (S/25704, 3 May 1993), [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808/1993] para. 37.
 Common Article 3 of the Geneva Conventions provides that “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” That these persons are protected in armed conflicts reflects a principle of customary international law.
 ICRC Commentary, p. 515, para. 1676.
 ICRC Commentary, p. 612, para. 1922.
|ICTR Statute Article 3 ICTY Statute Article 5 Other instruments Additional Protocol I: Article 50|
|Appeal Judgement - 12.11.2009||
53. The Appeals Chamber recalls that it is well established that the principle of distinction requires parties to distinguish at all times “between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives”. There is an absolute prohibition against the targeting of civilians in customary international law, encompassing indiscriminate attacks. […]
54. There is no requirement that particular areas or zones be designated as civilian or military in nature. Rather, a distinction is to be made between the civilian population and combatants, or between civilian and military objectives. Such distinctions must be made on a case-by-case basis. Further, considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milošević’s argument regarding the proportion of civilians present in areas “replete with military objectives” unpersuasive. In fact, Milošević does not even attempt to argue that the civilian victims in Sarajevo were proportional casualties of lawful military attacks launched by the SRK. A general assertion that the attacks were legitimate because they allegedly targeted “military zones” throughout the city is bound to fail.
55. The Appeals Chamber recognizes that some of the language used in paragraphs 896-904 of the Trial Judgement may appear confusing and lead to the conclusion that the Trial Chamber actually accepted Milošević’s approach of defining the status of the “areas”. However, the Appeals Chamber understands the Trial Judgement to have adopted this terminology for the sole purpose of addressing Milošević’s arguments, whereas in reality, the Trial Chamber meant to establish the civilian status of the population targeted in specific incidents.
139. The Appeals Chamber has already found that despite the somewhat confusing language used by the Trial Chamber, it correctly engaged in a case-by-case analysis of the targets and modalities of the attacks, rather than that of “zones”. Therefore, the Appeals Chamber will pursue its analysis on the basis of its understanding that when referring to certain neighbourhoods of Sarajevo, the Trial Chamber meant to establish the civilian status of the population targeted in the attacks that took place there during the Indictment period (and not that of the areas or zones as such).
 Galić Appeal Judgement, para. 190.
 Galić Appeal Judgement, para. 190, referring to the Blaškić Appeal Judgement, para. 109.
 By way of example, the Appeals Chamber recalls Article 51(5)(a) of Additional Protocol I [Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3] which, although mainly concerned with cases of carpet bombing and similar military activities (ICRC Commentary to Additional Protocols [ Claude Pillot, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva/Dordrecht: ICRC/Martinus Nijhoff Publishers, 1987) International Committee of the Red Cross of Geneva, 1987], paras 1979-1981) and not with a protracted campaign of sniping and shelling during a siege-like situation, is undoubtedly instructive of the approach belligerents are required to take in establishing and pursuing military targets.
 See supra, Section III.C.1.(a), para. 44.
 See also infra, Section VII.B, paras 139 et seq. The Appeals Chamber further notes that Section III.A.3.(a) of the Trial Judgement containing the Trial Chamber’s evaluation of the evidence is entitled “Civilian Status of the Population”.
 See supra, Section III.C.1.(b)(ii), para. 55.
|ICTR Statute Article 3 ICTY Statute Article 5|
|Appeal Judgement - 12.06.2002||
KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)
90. […] [T]he use of the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack. It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian “population”, rather than against a limited and randomly selected number of individuals.
91. […] [T]he expression “directed against” is an expression which “specifies that in the context of a crime against humanity the civilian population is the primary object of the attack”. In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, 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. To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst.
 Trial Judgement, para 424. See also Tadić Trial Judgement, para 644.
 Trial Judgement, para 421.
|ICTR Statute Article 3 ICTY Statute Article 5|
|Appeal Judgement - 05.05.2009||
MRKŠIĆ & ŠLJIVANČANIN
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. 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”. 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”. 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. 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”. 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”. 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. 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”. 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.
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, 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.
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.
In Blaškić, the Appeals Chamber, relying on the ICRC Commentary to Article 50 of Additional Protocol I, 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”.
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.
 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”.
 Blaškić Appeal Judgement, para. 107, relied upon at paragraph 462 of the Trial Judgement.
 Blaškić Appeal Judgement, para. 107.
 Blaškić Appeal Judgement, para. 103.
 Blaškić Appeal Judgement, para. 107, quoting Blaškić Trial Judgement, para. 208.
 Blaškić Appeal Judgement, para. 107.
 Blaškić Appeal Judgement, Section IV(A)(2).
 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).
 Martić Appeal Judgement, paras 311, 313.
 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”.
 Kunarac et al. Appeal Judgement, para. 91.
 Kordić and Čerkez Appeal Judgement, para. 50. See also Galić Appeal Judgement, para. 136.
 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”.
 Blaškić Appeal Judgement, para. 115. See also Galić Appeal Judgement, para. 137.
|ICTR Statute Article 3 ICTY Statute Article 5|