|Appeal Judgement - 17.12.2004||
KORDIĆ & ČERKEZ
66. […] at the time the unlawful attack occurred in this case, there was no basis for finding that, as a matter of customary international law, State practice or opinio iuris translated the prohibitions under Articles 51 and 52 of Additional Protocol I into international crimes, such that unlawful attacks were largely penalized regardless of the showing of a serious result. State practice was not settled as some required the showing of serious injury, death or damage as a result under their national penal legislation, while others did not.
67. For the above-mentioned reasons, the Appeals Chamber is not satisfied that at the relevant time, a violation of Articles 51 and 52 of Additional Protocol I incurred individual criminal responsibility under Article 3 of the Statute without causing death, serious injury to body or health, or results listed in Article 3 of the Statute, or being of the same gravity. Therefore, the Appeals Chamber will consider in the Judgement that criminal responsibility for unlawful attack on civilians or civilian objects does require the proof of such a result emanating from an unlawful attack.
See also para. 58.
 See, e.g., (national legislation requiring a result or only punishing grave breaches under international humanitarian law, partly adopted after the period relevant for this case): Geneva Conventions Act No. 103 of 1957 of Australia, Part II(2)(e) (as amended by the Geneva Conventions Amendment Act No. 27 of 1991); Geneva Conventions Act, R.S.C. 1985, c. G-3, s. 3; Act IV of 1978 of the Criminal Code of the Republic of Hungary, Section 160; Russian Federation - Soviet Minister of Defence Order No. 75 of 16 February 1990 on the publication of the Geneva Conventions of 12 August 1949 relative to the protection of victims of war and their Additional Protocols, Chap. VII, Section 14; The Basic Penal Code of the Republic of Croatia (consolidated text), Narodne novine (Official Gazette), no. 53/1991, Art. 120; Criminal Code of the People’s Republic of China (as revised on 14 March, 1997), Arts. 446, 451; Geneva Conventions Act 1957 (c.52) (as amended by the Geneva Conventions (Amendment) Act 1995 (c.27)) of the United Kingdom of Great Britain and Northern Ireland, Section 1; United States Code, Title 18, Chap. 118, Section 2441 (War Crimes Act of 1996, 18 U.S.C. Section 2441 (2004)).
See also (national legislation penalizing attacks on civilians or civilian objects without an explicit result requirement): the Military Penal Code of Norway, 1902, Section 108 (as amended by Act of 12 June 1981); the Criminal Military Code of War of Italy (C.P.M.G.), 1941, Book III, Title IV, Section 2, Art. 185; the Military Penal Code of Spain, Law (Ley Orgánica) 13/1985 of 9 December 1985, Art. 78; Swedish Penal Code, 1990, Chap. 22, Section 6; the Wartime Offences Act of The Netherlands, Art. 8 (adopted on 10 July 1952, Staatsblad (Stb.) 408, as amended by acts dated 2 July 1964, 243; 8 April 1971, Stb. 210; 10 March 1984, Stb. 91; 27 March 1986, Stb. 139; 29 September 1988, Stb. 478; 14 June 1990, Stb. 369 and 372); Loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire de Belgique, Chapitre Premier, Art. 1ter, alinéas 8bis et 11.
National case law sentencing persons for unlawful attacks on civilians and civilian objects under the national penal legislation indicates that under the facts, serious injury, death, or destruction as a result of the unlawful attacks was often at issue. See, e.g., Decision of Zadar District Court of Croatia, 24 April 1997, K. 74/96 (unpublished) (sentencing 19 soldiers and commanders in absentia under Art. 120 of the Basic Penal Code to 15-20 years imprisonment for massive attacks on civilians and civilian and cultural property resulting in destruction and death); Decision of Split District Court of Croatia, 26 May 1997, K. 15/95 (unpublished) (sentencing 39 soldiers and commanders, 27 of whom were sentenced in absentia to 5-20 years imprisonment under Art. 120 of the Basic Penal Code for unlawful attacks on civilians and civilian objects resulting in inter alia ill-treatment, killing, and destruction). See also the Kappler case, Military Court of Rome, 20 July 1948, Il Foro Italiano, 1949 (11), pp 160-168, aff’d by the Supreme Military Court, 25 October 1952 (available at <<http://www.difesa.it/NR/exeres/8A30B849-DBEF-4C29-820D-33ABBFD9B12D.htm>>, last visited in December 2004), and the Haas and Priebke case, Military Court of Appeal of Rome, 7 March 1998, (available at << http://www.difesa.it/NR/exeres/3F2713E5-EF43-494E-B294-EAD39B317AA2.htm>> , last visited in December 2004), aff’d by Court of Cassation, First Criminal Section, 16 November 1998 (available at <<http://www.difesa.it/NR/exeres/B3D0BAC9-9D01-4679-8BCF-A6CE37AF4E48.htm>>, last visited in December 2004).
Further evidence of the unsettled nature of State opinio juris and practice as to whether or not there is a result element required for the prosecution of the crimes of unlawful attack on civilians and civilian objects (at the time the crimes were committed in this case) is evidenced by the controversial negotiations as late as 1999 by State delegates to the Working Group on the Elements of Crimes for the Rome Statute for the International Criminal Court (see PCNICC/1999/DP.4/Add.2; PCNICC/1999/WGEC/DP.12; PCNICC/1999/DP.20; and PCNICC/1999/WGEC/DP.9). Initially, the United States and Japan proposed a result element for the crime of unlawful attack on civilians, while Switzerland and Spain proposed no such requirement. Following the ensuing debates, the State delegates eventually unanimously agreed that no result element is required for a finding of unlawful attack on civilians under Art. 8(2)(b)(i) of the Rome Statute. Similarly, with regard to the crime of unlawful attacks on civilian objects, the Japanese delegation initially proposed a requirement of resulting damage as an element. However, the United States and Switzerland did not propose such an element. In the end, the Working Group unanimously agreed that there should be no resulting damage requirement under Art. 8(2)(b)(ii) of the Rome Statute for the crime of unlawful attacks on civilian objects (see Lee, Roy S., ed., The International Criminal Court, (Transnational Publishers, 2001), pp 140-144). The Appeals Chamber considers that these unanimous agreements on the elements for the crimes of unlawful attack on civilians and civilian objects by the State delegates to the 1999 Preparatory Commission for the ICC may be indicative of a progressive development of international law on this issue.
Additional Protocol I;