4. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

4.1. The object of the attack being civilians not taking direct part in hostilities including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.

4.1.1. Evidence of the civilian character of the population or individuals being targeted.

4.1.2. Evidence of the civilians not taking direct part in hostilities.

4.2. Distinction between civilians and military objects.

4.2.1. Evidence of the non-existence of military objects in the attacked area.

4.2.2. Evidence showing that the attack was not launched or maintained in the belief that there were military objectives.

4.2.3. Evidence showing that the attacked area is physically distinct from the area where military objects exist.

4.2.4. Evidence showing that the attacked area is legally distinct from the area where military objects exist.

4. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

In the Mbarushimana Decision on the Confirmation of Charges, the Pre-Trial Chamber held that:

"In the view of the Chamber, the war crime of attacking civilians pursuant to article 8(2)(e)(i) of the Statute does not presuppose that the civilian population is the sole and exclusive target of the attack. The crime may be perpetrated in any of the two following scenarios: (i) when individual civilians not taking direct part in the hostilities or the civilian population are the sole target of the attack or (ii) when the perpetrator launches the attack with two distinct specific aims: (a) a military objective, within the meaning of articles 51 and 52 of the Protocol Additional to the Geneva Conventions of 12 August 1949 ("the AP I"); and simultaneously, (b) the civilian population or individual civilians not taking direct part in the hostilities. The latter scenario must be distinguished from situations where, in violation of the principle of proportionality, a disproportionate attack is intentionally launched with the specific aim of targeting a military objective, with the awareness that incidental loss of life or injury to civilians will or may occur as a result of such an attack. In such a case, the targeting of the civilian population is not the aim of the attack but only an incidental consequence thereof.

The Chamber further notes that reprisals against the civilian population as such, or individual civilians, are prohibited in all circumstances, regardless of the behaviour of the other party, since "no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party".

In the case at hand, the Chamber finds that the evidence provides substantial grounds to believe that the FDLR soldiers were directly ordered to take revenge on both civilians and soldiers, as the name of the operation, i.e. "eye for eye", also suggests. The orders for the attack were clear: "everything which has breath shouldn’t be there at all." Orders were given: "destroy everything, because everybody who was considered as [their] enemy," "we don’t want to hear anything, anybody there, anything in Busurungi," and "everything that moves should be killed." The soldiers were then expected to kill anyone they met because the enemy had not shown any pity on them. They were also ordered to destroy everything in the village, and to "annihilate the whole place [...] as a sign to [...] Congolese." They were to set fire to the village and houses in order to force the population to flee. Some witnesses say that no instructions were given prior to the attack in relation to the treatment of civilians. While some witnesses deny that there was an intention to attack civilians, other witnesses explain that the orders to kill were generalised and directed at the "enemy" without any distinction being made between combatants and civilians. Witness 562 affirms that the FDLR made no distinction between the Congolese army and civilians as "they considered them [to be] all the same". Witness 677 says that the Congolese population on the side of the FARDC was considered to be the enemy. UN and Human Rights Watch Reports further corroborate the allegation that the civilian population was targeted by the attack. The Chamber is accordingly satisfied that there are substantial grounds to believe that the attack targeted both the military objectives (several FARDC positions within and on the outskirts of the village) and the civilian population or individual civilians not taking direct part in the hostilities. "[35]

ICC

"The war crime provided for in article 8(2)(b)(i) of the Statute is the first in the series of war crimes for which one essential element is that the crime must be committed during the conduct of hostilities (commonly known as 'conduct of hostilities crimes'). Accordingly, this crime is applicable only to attacks (acts of violence) directed against individual civilians not taking direct part in the hostilities, or a civilian population, that has not yet fallen into the hands of the adverse or hostile party to the conflict to which the perpetrator belongs."[1]

"In the view of the Chamber, after an individual civilian not taking an active part in the hostilities or the civilian population falls into the hands of such an adverse or hostile party to the conflict, an act of violence against them does not fall under article 8(2)(b)(i) of the Statute but under other provisions of the Statute [...]."[2]

"In the case of attacks on military objectives causing damage to civilians, international law contains a general principle prescribing that reasonable care must be taken in attacking military objectives so that civilians are not needlessly injured through carelessness. [...]Such provisions, it would seem, are now part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol. Admittedly, even these two provisions leave a wide margin of discretion to belligerents by using language that might be regarded as leaving the last word to the attacking party."[3]

"The protection of civilians and civilian objects provided by modern international law may cease entirely or be reduced or suspended in three exceptional circumstances: (i) when civilians abuse their rights; (ii) when, although the object of a military attack is comprised of military objectives, belligerents cannot avoid causing so-called collateral damage to civilians; and (iii) at least according to some authorities, when civilians may legitimately be the object of reprisals."[4]

"[t]argeting civilians or civilian property is an offence when not justified by military necessity."[5]

"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."[6]

4.1. The object of the attack being civilians not taking direct part in hostilities including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.

ICTY

"The Trial Chamber reasonably found that even if Ramadani had been a NLA member, he was not taking an active part in the hostilities at the time he was killed. It based its finding on the fact that Ramadani was in the custody of the police members and on evidence indicating that he wore civilian clothes and that the only weapon found in Ametovski's house was a light shotgun for hunting birds, which had not been used or moved. The Appeals Chamber finds that on the basis of the evidence, the Trial Chamber was satisfied beyond reasonable doubt that the perpetrators were aware or should have been aware that Ramadani was taking no active part in the hostilities. Tarculovski's arguments are thus rejected."[7]

ICTR

"The Trial Chamber did not make a finding as to whether the victims of the 11 May Killings were taking an active part in the hostilities. However, it found that Setako brought the victims with him to Mukamira camp, which indicates that they were under his control. The Appeals Chamber further recalls that a person will not be considered to be taking an active part in the hostilities if he or she 'is in the power of an adverse Party'. Moreover, Witnesses SLA and SAT both testified that the victims included at least one woman and a baby.The Appeals Chamber is therefore satisfied that, at the time of the offence, the victims of the 11 May Killings were not taking an active part in the hostilities."[8]

"Both Common Article 3 and Additional Protocol II protect only those persons who take no active or direct part in the hostilities, and those who have ceased to take part therein and are therefore placed hors de combat by sickness, wounds, detention or any other cause. The Prosecution must therefore establish the relevant facts of each victim with a view to ascertain whether that person was directly involved in the hostilities at the relevant time."[9]

4.1.1. Evidence of the civilian character of the population or individuals being targeted.

"the presence of individual combatants within the population attacked does not necessarily change the fact that the ultimate character of the population remains, for legal purposes, a civilian one. If the population is indeed a 'civilian population', then the presence of combatants within that population does not change that characterisation."[10]

4.1.2. Evidence of the civilians not taking direct part in hostilities.

In the Mbarushimana Decision on the Confirmation of Charges, the Pre-Trial Chamber held that:

"As highlighted in the Abu Garda Confirmation Decision, there is no customary or treaty law definition of what constitutes direct participation in hostilities, although useful guidance is provided by the International Committee of the Red Cross ("ICRC"). However, loss of protection is only clear when a civilian uses weapons or other means to commit violence against human or material enemy forces, unless in selfdefence. Further, practice indicates that supplying food and shelter and sympathising with one belligerent party is an insufficient reason to deny civilians protection against attack. The term "civilian" in accordance with article 50(1) of the AP I, applies to anyone who is not a combatant, and in case of doubt, the person shall be considered to be a civilian. Additionally, a civilian population comprises all civilians as opposed to members of armed forces and any other legitimate combatants. Further, pursuant to article 50(3) of the AP I, the presence within the civilian population of individuals who do not fit within the definition of civilians does not deprive the entire population of its civilian character. Yet, civilians may lose protection only for such a time as they take direct part in hostilities or combat-related activities and not permanently. Further, the protection does not cease if such persons only use armed force in the exercise of their right to self-defence."[34]

"The Appeals Chamber considers that the Trial Chamber's conclusion that Rami Jusufi had been an 'unarmed civilian' not taking part in the hostilities at the time of his death was based on its careful evaluation and analysis of the evidence. The Trial Chamber explained in detail its reasons for its reliance on certain pieces of evidence and its rejection of other evidence, finding inter alia that Rami Jusufi was in civilian clothes at the time of his death; that he was not an NLA member; and that Elrnaz Jusufi's house was not used as an NLA check-point."[11]

4.2. Distinction between civilians and military objects.

"[T]he territorial defence was starting to organise in the area and consisted of about 120 men whose main task was to carry out night watches. [...] their participation was purely voluntary and there was no disciplinary sanction for those who failed to take their turn on guard. It was therefore a sort of civil defence rather than an army strictly speaking. The members of the territorial defence were very badly equipped and most of them were dressed as civilians and did not think of themselves as soldiers. There was no barracks in Ahmići."[12]

"There is no requirement that particular areas or zones be designated as civilian or military in nature. Rather, a distinction is to be made between the civilian population and combatants, or between civilian and military objectives. Such distinctions must be made on a case-by-case basis. Further, considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milošević's argument regarding the proportion of civilians present in areas 'replete with military objectives' unpersuasive. In fact, Milošević does not even attempt to argue that the civilian victims in Sarajevo were proportional casualties of lawful military attacks launched by the SRK. A general assertion that the attacks were legitimate because they allegedly targeted "military zones" throughout the city is bound to fail."[13]

4.2.1. Evidence of the non-existence of military objects in the attacked area.

4.2.2. Evidence showing that the attack was not launched or maintained in the belief that there were military objectives.

4.2.3. Evidence showing that the attacked area is physically distinct from the area where military objects exist.

4.2.4. Evidence showing that the attacked area is legally distinct from the area where military objects exist.