Attacks on civilians
|Appeal Judgement - 17.07.2008||
270. The Appeals Chamber has previously ruled that the perpetrator of the crime of attack on civilians must undertake the attack “wilfully” and that the latter incorporates “wrongful intent, or recklessness, [but] not ‘mere negligence’”. In other words, the mens rea requirement is met if it has been shown that the acts of violence which constitute this crime were wilfully directed against civilians, that is, either deliberately against them or through recklessness. The Appeals Chamber considers that this definition encompasses both the notions of “direct intent” and “indirect intent” mentioned by the Trial Chamber, and referred to by Strugar, as the mens rea element of an attack against civilians.
271. As specified by the Trial Chamber in the Galić case,
For the mens rea 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.
The intent to target civilians can be proved through inferences from direct or circumstantial evidence. There is no requirement of the intent to attack particular civilians; rather it is prohibited to make the civilian population as such, as well as individual civilians, the object of an attack. The determination of whether civilians were targeted is a case-by-case analysis, based on a variety of factors, including the means and method used in the course of the attack, the distance between the victims and the source of fire, the ongoing combat activity at the time and location of the incident, the presence of military activities or facilities in the vicinity of the incident, the status of the victims as well as their appearance, and the nature of the crimes committed in the course of the attack.
275. […] The Appeals Chamber, moreover, has held on various occasions that the absolute prohibition against attacking civilians “may not be derogated from because of military necessity”. Furthermore, the Appeals Chamber recalls that, depending on the circumstances of the case, the indiscriminate character of an attack can be indicative of the fact that the attack was indeed directed against the civilian population.
For application of this legal standard to the facts, see paras 272-276.
 Galić Appeal Judgement, para. 140, citing Galić Trial Judgement, para. 54.
 Cf. Commentary AP I, para. 3474 which defines the term “wilfully” in the following way: “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.”
 Galić Trial Judgement, para. 55; see also Kordić and Čerkez Appeal Judgement, para. 48; Blaškić Appeal Judgement, para. 111.
 Galić Appeal Judgement, fn. 707.
 Ibid., fn. 709, citing Additional Protocol I, Article 52 (2).
 Galić Appeal Judgement, para. 132, citing Kunarac et al. Appeal Judgement, para. 91; Blaškić Appeal Judgement, para. 106; Galić Appeal Judgement, para. 133. Cf. Kordić and Čerkez Appeal Judgement, para. 438.
 Galić Appeal Judgement, para. 130 citing Blaškić Appeal Judgement, para. 109, and Kordić and Čerkez Appeal Judgement, para. 54. In this sense, the fighting on both sides affects the determination of what is an unlawful attack and what is acceptable collateral damage, but not the prohibition itself (Galić Appeal Judgement, fn. 704). It has also been held that even the presence of individual combatants within the population attacked does not necessarily change the legal qualification of this population as civilian in nature (Galić Appeal Judgement, para. 136).
 Galić Appeal Judgement, para. 132 and fn. 706. In that case, the Appeals Chamber upheld the Trial Chamber’s finding that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives were “tantamount to direct targeting of civilians” (Galić Trial Judgement, fn. 101). See also Galić Appeal Judgement, fn. 706: “Attacking anything that moves in a residential building, before determining whether the mover is a civilian or a combatant, is a paradigmatic example of not differentiating between targets.”
|ICTY Statute Article 3|
|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;
|Appeal Judgement - 30.11.2006||
At para. 132, the Appeals Chamber confirmed that “a direct attack can be inferred from the indiscriminate character of the weapon used” and concluded that, “[i]n principle, the Trial Chamber was entitled to determine on a case-by-case basis that the indiscriminate character of an attack can assist it in determining whether the attack was directed against the civilian population.”
At para. 133, the Appeals Chamber also confirmed the Trial Chamber’s finding that disproportionate attacks “may” give rise to the inference of direct attacks on civilians. The Appeals Chamber found this finding to be “a justified pronouncement on the evidentiary effects of certain findings, not a conflation of different crimes” and noted that “the Trial Chamber endeavoured, in its evaluation of the evidence, to consider questions such as: ‘distance between the victim and the most probable source of fire; distance between the location where the victim was hit and the confrontation line; combat activity going on at the time and the location of the incident, as well as relevant nearby presence of military activities or facilities; appearance of the victim as to age, gender, clothing; the activity the victim could appear to be engaged in; visibility of the victim due to weather, unobstructed line of sight or daylight.’”
 Trial Judgement, para. 188.