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.’[1]”