[1] Tadić Trial Judgement, para. 616; Halilović Trial Judgement, para. 34. See, e.g., in relation to the direct participation in the hostilities of a member of the armed forces, Commentary GC III, p. 39: “The discussions at the Conference brought out clearly that it is not necessary for an armed force as a whole to have laid down its arms for its members to be entitled to protection under [Article 3]. The Convention refers to individuals and not to units of troops, and a man who has surrendered individually is entitled to the same humane treatment as he would receive if the whole army to which he belongs had capitulated. The important thing is that the man in question will be taking no further part in the fighting.”

[2] Cf. United States of America v. Salim Ahmed Hamdan, U.S. Military Commission, 19 December 2007, p. 6: “The Commission also finds that the accused directly participated in those hostilities by driving a vehicle containing two surface-to-air missiles in both temporal and spatial proximity to both ongoing combat operations. [...] Although Kandahar was a short distance away, the accused’s past history of delivering munitions to Taliban and al-Qaeda fighters, his possession of a vehicle containing surface to air missiles, and his capture while driving in the direction of a battle already underway, satisfies the requirement of 'direct participation’.”

[3] The Appeals Chamber notes that for the purposes of establishing an accused’s criminal responsibility, the burden of proof of whether a victim was not taking active part in the hostilities rests with the Prosecution. Cf. Blaškić Appeal Judgement, para. 111.

[4] The Appeals Chamber observes that this is in line with the jurisprudence of the ad hoc Tribunals in relation to Common Article 3 crimes. In the Čelebići Appeal Judgement, the Appeals Chamber merely set out a non-exhaustive list of the elements of the crime “cruel treatment” under Article 3 of the Statute for the purpose of comparing it with the crime of torture under Article 2 of the Statute in application of the test on cumulative convictions (Čelebići Appeal Judgement, para. 424). The Appeals Chamber moreover observes that Trial Chambers have made a finding on the civilian status of victims of Common Article 3 crimes or found that this was not necessary given the facts of the respective case. In the Tadić Trial Judgement, the Trial Chamber found that all of the victims were detained by the accused and as such the issue of whether they were combatants or civilians did not arise because even if they were combatants, they had been placed hors de combat by detention (Tadić Trial Judgement, para. 616). In the Stakić Trial Judgement, the Trial Chamber found that the victims were hors de combat or civilians (Stakić Trial Judgement, para. 589). In the Naletilić and Martinović Trial Judgement, the Trial Chamber found that the victims were all civilians or prisoners of war (Naletilić and Martinović Trial Judgement, para. 229). In the Akayesu Trial Judgement, the Trial Chamber found that the victims were civilians (Akayesu Trial Judgement, para. 175).

[5] The scope of application of international humanitarian law primarily depends on the nature of the armed conflict, the customary or conventional status of a given rule or set of rules and the status of the victim. In conflicts where Common Article 3 is the only applicable provision, the more elaborate rules regarding civilian and combatant status outlined in the Geneva Conventions and Additional Protocol I would not be applicable. See Čelebići Appeal Judgement, para. 420; Tadić Jurisdiction Decision, para. 91; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment, ICJ Reports (1986), para. 218.

[6] For instance, if a victim was found to be detained by an adverse party at the time of the alleged offence against him, his status as either a civilian or combatant would no longer be relevant because a detained person cannot, by definition, directly participate in hostilities. Therefore, an attack against such person would automatically be unlawful.

[7] Combatants constitute lawful military objectives unless they are hors de combat. On the definition of combatant, see: Additional Protocol I, Articles 43, 44, 50(1); Geneva Convention III, Article 4; Kordić and Čerkez Appeal Judgement, paras 50-51. On the definition of military objectives, see: Additional Protocol I, Article 52; Kordić and Čerkez Appeal Judgement, para. 53. On the definition of hors de combat, see: Additional Protocol I, Article 41(2). See also Blaškić Appeal Judgement, para. 114: “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.”

[8] Additional Protocol I, Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b). See Galić Trial Judgement, para. 58 (and sources cited therein) and Galić Appeal Judgement, paras 191-192.