3. The perpetrator directed an attack

3.1. Attack directly aimed at the civilian population or individual civilians.

3.2. Indiscriminate attack

3.2.1. Evidence of an indiscriminate attack (type 1): Attack not directed at a specific military objective against the principle of distinction.

3.2.2. Evidence of an indiscriminate attack (type 2): Attack employing a method or means of combat which cannot be directed at a specific military objective against the principle of distinction.

3.2.3. Evidence of an indiscriminate attack (type 3): Attack employing a method or means of combat the effects of which cannot be limited against the principle of distinction.

3.2.4. Evidence of an indiscriminate attack (type 4): Attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.

3.3. Attack carried out without taking necessary precautions to spare the civilian population or individual civilians, especially failing to seek precise information on the objects or persons attacked.

3.4. Attack carried out by way of reprisals against the civilian population as such, or individual civilians.

3.4.1. Evidence of the civilian character of the population or individuals.

3.4.2. Evidence of an attack carried out by way of reprisal against the civilian population as such, or individual civilians in combat zones.

3. The perpetrator directed an attack

ICC

"The war crime provided for in article 8(2)(b)(i) of the Statute is committed when the attack (or the act of violence) is launched [...]."[1]

"In short, prohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects. Such attacks are in direct contravention of the prohibitions expressly recognised in international law including the relevant provisions of Additional Protocol I."[2]

"For the above-mentioned reasons, the Appeals Chamber is not satisfied that at the relevant time, a violation of Articles 51 and 52 of Additional Protocol I incurred individual criminal responsibility under Article 3 of the Statute without causing death, serious injury to body or health, or results listed in Article 3 of the Statute, or being of the same gravity. Therefore, the Appeals Chamber will consider in the Judgment that criminal responsibility for unlawful attack on civilians or civilian objects does require the proof of such a result emanating from an unlawful attack."[3]

3.1.Attack directly aimed at the civilian population or individual civilians.

"certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack. This is to be determined on a case-by-case basis in light of the available evidence."[4]

"the Tribunal has consistently held, since its first cases, that provisions of the Statute must be interpreted according to the "natural and ordinary meaning in the context in which they occur", taking into account their object and purpose. In this regard, the Appeals Chamber observes that the definition of civilian found in Article 50(1) of Additional Protocol I accords with the ordinary meaning of the term "civilian" (in English) and "civil" (in French) as persons who are not members of the armed forces.As such, the definition [...]The Appeals Chamber considers that while certain terms have been defined differently in international humanitarian law and in the context of crimes against humanity, the fundamental character of the notion of civilian in international humanitarian law and international criminal law militates against giving it differing meanings under Article 3 and Article 5 of the Statute. [...] [C]ivilians in the context of non-international armed conflicts can be defined as those persons who do not belong to the armed forces, militias or volunteer corps forming part of such armed forces, organised resistance groups or a lev¨¦e en masse."[5]

"The Appeals Chamber recalls that it has dismissed Setako's challenges to the Trial Chamber's finding that he ordered the 11 May Killings. The Appeals Chamber recalls the Trial Chamber's findings that, on 11 May 1994, Setako gave instructions to kill nine or 10 Tutsis he had brought in his vehicle to Mukamira camp; that these Tutsis were killed on the same day near the armoury of the camp; and that Setako's instructions substantially contributed to the killings. Based on these findings, which remain undisturbed on appeal, the Appeals Chamber finds that no reasonable trier of fact could have concluded that Setako did not intend to kill the Tutsis he brought to Mukamira camp on 11 May 1994 and that their death resulted from his order to kill them."[6]

3.2. Indiscriminate attack

"The Appeals Chamber emphasizes that the said list of factors to be taken into account in such determination is a non-exhaustive set of criteria that must be assessed on a case-by-case basis. Consequently, Milošević's unsubstantiated contention that the Trial Chamber omitted to consider explicitly one of these factors is not in itself sufficient to prove an error of law." "[7]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 189-190:

"189. According to the Appeals Chamber, although attacks may be directed only against military objectives, “collateral civilian damage” is not per se unlawful provided that the customary rules of proportionality in the conduct of hostilities are observed. However, the Appeals Chamber noted that the prohibition against attacks on civilians is absolute. Therefore, the military necessity exception does not apply to this prohibition. This proportionality principle is defined by Article 51.5(b) of Additional Protocol I, which prohibits:

an attack 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."

"190. The Appeals Chamber has held that an attack employing weapons which by their very nature cannot discriminate between military objectives and civilian objects may amount to a direct attack on civilians. That determination will be made case by case, based on the available evidence."

3.2.1. Evidence of an indiscriminate attack (type 1): Attack not directed at a specific military objective against the principle of distinction.

3.2.2. Evidence of an indiscriminate attack (type 2): Attack employing a method or means of combat which cannot be directed at a specific military objective against the principle of distinction.

"inferred from the arms used that the perpetrators of the attack had wanted to affect Muslim civilians. The 'baby-bombs' are indeed 'home-made mortars' which are difficult to guide accurately. Since their trajectory is 'irregular' and non-linear they are likely to hit non-military targets."[8]

"The Trial Chamber inferred from the arms used that the perpetrators of the attack had wanted to affect Muslim civilians. The 'baby-bombs' are indeed 'home-made mortars' which are difficult to guide accurately. Since their trajectory is 'irregular' and non-linear, they are likely to hit non-military targets. In this case, these blind weapons were sent onto Stari Vitez where they killed and injured many Muslim civilians. They also resulted in substantial material civilian damage."[9]

3.2.3. Evidence of an indiscriminate attack (type 3): Attack employing a method or means of combat the effects of which cannot be limited against the principle of distinction.

3.2.4. Evidence of an indiscriminate attack (type 4): Attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.

3.3.A ttack carried out without taking necessary precautions to spare the civilian population or individual civilians, especially failing to seek precise information on the objects or persons attacked.

"The parties to a conflict are under an obligation to remove civilians, to the maximum extent feasible, from the vicinity of military objectives and to avoid locating military objectives within or near densely-populated areas. However, the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack."[10]

3.4.A ttack carried out by way of reprisals against the civilian population as such, or individual civilians.

3.4.1. Evidence of the civilian character of the population or individuals.

3.4.2. Evidence of an attack carried out by way of reprisal against the civilian population as such, or individual civilians in combat zones.