6. The destruction or appropriation was not justified by military necessity.

6.1. The destruction was not justified by military necessity; OR

6.1.1. Evidence that military operations did not make the destruction absolutely necessary.

6.1.2. Evidence that property belonging to civilians was deliberately targeted and destroyed.

6.2. The appropriation was not justified by military necessity.

6.2.1. Evidence that military operations did not make the appropriation absolutely necessary.

6.2.2. Evidence that property belonging to civilians was deliberately appropriated.

6. The destruction or appropriation was not justified by military necessity.

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 123-125:

"123. Military necessity may be defined in reference to the military objectives defined in Article 52(2) of Additional Protocol I,240 which provides that “military objectives are limited to 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”. Where there is uncertainty, Article 52(3) of Additional Protocol I provides that “an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used”. Objects of property which, by their very nature, afford a definite military advantage include property used directly by the armed forces, such as equipment, structures that provide shelter for the armed forces, depots or communications centres. The criterion dealing with the location of property is aimed at objects of particular significance to military operations, such as bridges or other structures. The purpose of an object relates to its future use whereas its use relates to its present function. The military advantage for each object of property must be definite and cannot offer merely an indeterminate or potential advantage. Knowing whether a definite military advantage may be achieved must be decided from the perspective of the person contemplating the attack, taking into account the information available to the latter at the moment of the attack."

"124. The Appeals Chamber has, moreover, recalled that although attacks may be conducted against military objectives, “collateral civilian damage” is not by nature unlawful, provided that the customary rules of proportionality in the conduct of hostilities are observed. This proportionality principle is defined by Article 51.5(b) of Additional Protocol I, which prohibits attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”."

"125. Objects of property that receive broad protection, such as fixed medical establishments and mobile medical units, hospital ships and civilian hospitals may “in no circumstances” be attacked, and must at all times be respected and protected by the Parties to the conflict. The Chamber notes, however, that this protection may expire if these are used to commit “acts harmful to the enemy”, once due warning setting a reasonable time limit has gone unheeded."

6.1. The destruction was not justified by military necessity; OR

"The Chamber finds that collateral damage to civilian property may be justified by military necessity and may be an exception to the principles of protection of civilian property. Relying primarily on the principles set out in Articles 57 and 58 of Additional Protocol I, the Chamber in Kupreškić held that the protection of civilians and civilian property provided by modern international law may cease entirely, or be reduced or suspended, when the target of a military attack is comprised of military objectives and belligerents cannot avoid causing collateral damage to civilians. These principles form part of customary international law."[1]

"attacks. A submission that such destruction is covered by 'military necessity' will be entertained on a case-by-case basis. Except for the rare occasions in which such preventive destruction could arguably fall within the scope of 'military necessity', the principle must be upheld that the destruction of civil settlements, as a rule, is punishable as a war crime."[2]

6.1.1. Evidence that military operations did not make the destruction absolutely necessary.

6.1.2. Evidence that property belonging to civilians was deliberately targeted and destroyed.

6.2. The appropriation was not justified by military necessity.

6.2.1. Evidence that military operations did not make the appropriation absolutely necessary.

6.2.2. Evidence that property belonging to civilians was deliberately appropriated.

"The Chamber finds that the offence of wanton destruction of towns and villages is constituted when acts of destruction not justified by military necessity are committed deliberately and on a large scale. The criterion of large scale must be evaluated according to the facts of the case."[3]