Principle of distinction in the law of armed conflicts

Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan

486. The Appeals Chamber recalls that the ICTY was bound to apply rules of international humanitarian law which are beyond any doubt part of customary international law.[1] The Appeals Chamber further recalls that there is an absolute prohibition on the targeting of civilians in customary international law.[2] However, while the Appeals Chamber of the ICTY has held that an indiscriminate attack may qualify as an attack directed against civilians or give rise to the inference that an attack was directed against civilians,[3] the legal test underpinning the principle of distinction as applied in the law of armed conflict has not been articulated by the Appeals Chambers of the ICTY or the ICTR.[4]

487. The Appeals Chamber observes that the principle of distinction is encapsulated in Additional Protocol I, and that key provisions of Additional Protocol I, including Articles 51 and 52, reflect customary international law.[5] The Appeals Chamber further observes that Additional Protocol I has been relied upon to interpret provisions of the ICTY Statute.[6] The Appeals Chamber therefore considers that, in this instance, the principle of distinction should be interpreted and applied in accordance with the relevant provisions of Additional Protocol I.

488. The Appeals Chamber observes that Article 51(4) of Additional Protocol I prohibits indiscriminate attacks, that is to say, attacks which are of a nature to strike military objectives and civilians or civilian objects without distinction.[7] Thus, in accordance with the fundamental principles of distinction and protection of the civilian population, only military objectives may be lawfully attacked.[8] The widely accepted definition of “military objectives” is set forth in Article 52(2) of Additional Protocol I as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.[9]

489. The Appeals Chamber considers that, whether a “military advantage” could have been achieved from an attack requires an assessment of whether it was reasonable to believe, in the circumstances of the person(s) contemplating the attack, including the information available to the latter, that the object was being used to make an effective contribution to military action.[10] The relevant question is whether the attacker(s) could have reasonably believed that the target was a legitimate military objective, and a useful standard by which to assess the reasonableness of such belief is that of a “reasonable commander” in the position of the attacker(s).[11]

See also para. 490 to 501.


506. […] [T]he Appeals Chamber recalls that “the indiscriminate character of an attack can be indicative of the fact that the attack was indeed directed against the civilian population”.[12] Considering that the Appeals Chamber has affirmed the Trial Chamber’s conclusions that the shelling […] was indiscriminate, an additional finding that the attacks were disproportionate is not necessary to sustain the Trial Chamber’s inference that the attacks were “directed against civilians”.

[1] Kordić and Čerkez Appeal Judgement, para. 44; Prosecutor v. Duško Tadiæ a/k/a “Dule", Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 143, referring to Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. Doc. S/25704, 3 May 1993, para. 34.

[2] Blaškić Appeal Judgement, para. 109.

[3] Dragomir Milošević Appeal Judgement, para. 66; Strugar Appeal Judgement, para. 275. 

[4] The Appeals Chamber observes that, although the ICTY Appeals Chamber recently determined that a trial chamber erred in finding an attack to be indiscriminate, its analysis sets forth the legal framework applied to indiscriminate attacks only in passing and only as it relates to indiscriminate attacks based on the type of weaponry used. See Prlić et al. Appeal Judgement, para. 434.

[5] See Galić Appeal Judgement, para. 87, referring to Prosecutor v. Pavle Strugar et al., Case No. IT-01-42-AR72, Decision on Interlocutory Appeal, 22 November 2002, para. 9; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-AR73.3, Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98 bis Motions for Acquittal, 11 March 2005, para. 28. See also Kordić and Čerkez Appeal Judgement, para. 59, referring to Blaškić Appeal Judgement, para. 157.

[6] See, e.g., Kordić and Čerkez Appeal Judgement, paras. 47, 48, 50, 53, 54, 58, 59, 62-65; Blaškić Appeal Judgement, paras. 69, 110, 111, 113, 145, 147, 151, 157, 632, 639, 652.

[7] Articles 51(4) and (5) of Additional Protocol I provide examples as to what types of attacks are to be considered as indiscriminate.

[8] See Article 52(2) of Additional Protocol I. See also Galić Trial Judgement, para. 51.

[9] See Article 52(2) of Additional Protocol I. Cf. Strugar Appeal Judgement, para. 330.

[10] Cf. Galić Trial Judgement, para. 51. See also Boškoski and Tarčulovski Trial Judgement, para. 356; Strugar Trial Judgement, para. 295. The Appeals Chamber observes that the ICRC commentary on Article 52 of Additional Protocol I highlights the lack of precise definitions offered and suggests that the text “largely relies on the judgment of soldiers who will have to apply these provisions.” ICRC Commentary on Additional Protocol I, para. 2037.

[11] Cf. Dragomir Milošević Appeal Judgement, para. 60.

[12] Dragomir Milošević Appeal Judgement, para. 66; Strugar Appeal Judgement, para. 275.

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