Direct participation in hostilities

Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle

178. On the basis of the foregoing, the Appeals Chamber holds that in order to establish the existence of a violation of Common Article 3 under Article 3 of the Statute, a Trial Chamber must be satisfied beyond a reasonable doubt that the victim of the alleged offence was not participating in acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces. Such an enquiry must be undertaken on a case-by-case basis, having regard to the individual circumstances of the victim at the time of the alleged offence.[1] As the temporal scope of an individual’s participation in hostilities can be intermittent and discontinuous, whether a victim was actively participating in the hostilities at the time of the offence depends on the nexus between the victim’s activities at the time of the offence and any acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the adverse party.[2] If a reasonable doubt subsists as to the existence of such a nexus, then a Trial Chamber cannot convict an accused for an offence committed against such a victim under Article 3 of the Statute.[3]

179. When dealing with crimes pursuant to Common Article 3, it may be necessary for a Trial Chamber to be satisfied beyond a reasonable doubt that the alleged offence committed against the victim was not otherwise lawful under international humanitarian law.[4] The need for such an additional enquiry will depend on the applicability of other rules of international humanitarian law, which is assessed on the basis of the scope of application of these rules[5] as well as the circumstances of the case.[6] Indeed, if the victim of an offence was a combatant[7] or if the injury or death of such a victim was the incidental result of an attack which was proportionate in relation to the anticipated concrete and direct military advantage,[8] his injury or death would not amount to a violation of international humanitarian law even if he was not actively participating in hostilities at the time of the alleged offence.

See paras 172 – 177 for a detailed overview of underlying legal sources, as well as a non-exhaustive list of examples of direct and indirect forms of participation in hostilities.

For the application of this legal standard to the facts of the case, see paras 180-188.

[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. 

Download full document
ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir

57. […] The Appeals Chamber recalls that the protection from attacks afforded to individual civilians by Article 51(2) of Additional Protocol I is suspended pursuant to Article 51(3) of Additional Protocol I when and for such time as they directly participate in hostilities. Accordingly, to establish that the crimes of terror and unlawful attacks against civilians had been committed, the Trial Chamber was required to find beyond reasonable doubt that the victims of individual crimes were civilians and that they were not participating directly in the hostilities.[1] […]

[1] Strugar Appeal Judgement, paras 172, 187; Galić Appeal Judgement, para. 100. See also Galić Trial Judgement, paras 47, 48, 132-133.

Download full document
Other instruments Additional Protocol I: Article 51(2)