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”.