CILRAP » Case Matrix Network » CMN Knowledge Hub » Elements Digest » Art. 8 War crimes » Art. 8(2)(b) War crimes » Art. 8(2)(b)(i) Attacking civilians » 5. [Particular mental element for Element 4] The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.

Element:

5. [Particular mental element for Element 4] The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.

"As regards the subjective elements, in addition to the standard mens rea requirement provided in article 30 of the Statute, the perpetrator must intend to make individual civilians not taking direct part in the hostilities or the civilian population the object of the attack. This offence therefore, first and foremost, encompasses dolus directus of the first degree."[1]

"Such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians [...] were being targeted."[2]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 192:

"192. Regarding the mental element required for the crime of attacks on the civilian population, the Tribunal’s case-law has settled that the perpetrator of the crime is required to have acted with intent, which encompasses dolus eventualis whilst excluding negligence. In this regard, the Appeals Chamber in the Galić Case adopted the definition of the dolus that the Galić Trial Chamber had incorporated from the Commentary to Additional Protocol I. Thus, for there to be intent, the perpetrator has to have acted knowingly and wilfully, that is to say, perceiving his acts and their consequences and purposing that they should come to pass. Dolus eventualis occurs when the perpetrator, without being certain that the result will take place, accepts it in the event it does come to pass. Conduct is negligent when the perpetrator acts without having his mind on the act or its consequences."

5.1. Knowledge of the perpetrator about the civilian status of the object of the attack

"'[...] In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.'"[3]

"the Trial Chamber considered 'the fact that evidence discloses there was no resistance, the fact that Rami Jusufi was shot at close range from outside the house as he was at the open door, that he was unarmed at the time, in civilian clothes, and the number of bullets fired from the front yard and patio area at the house in the vicinity of the doorway in which Rami Jusufi was standing'. These findings show that the Trial Chamber was satisfied beyond reasonable doubt that the physical perpetrators were aware or should have been aware that Rami Jusufi was taking no active part in the hostilities. The lack of evidence concerning the specific identification of the direct perpetrators and their exact positions, is immaterial to these findings. Further, the insufficiency of evidence establishing the identity of the actual perpetrator did not leave the Trial Chamber in any doubt that the perpetrator should have been aware that the victim was taking no active part in the hostilities. Thus, the principle of in dubio pro reo was not applicable. Finally, there is no basis for Tarčulovski 's assertion that the Trial Chamber, in failing to identify the exact perpetrator, shifted the burden of proof to him to establish that the perpetrator could not have known that the victim was not taking an active part in the hostilities. There was ample evidence for the Trial Chamber to establish that the status of the victim should have been known by the perpetrator as already discussed. His submissions in this respect are rejected."[4]

"contrary to Tarčulovski 's assertion, the Trial Chamber did not make a finding that the perpetrators did not believe that Bajrami was trying to escape. Rather, taking into account the manner in which he was shot, the Trial Chamber found that even though they may have thought that he was,attempting to escape, 'the hopelessness of his position was obvious", and that "[h]is conduct did not present a real threat of escape.' The Appeals Chamber considers that these findings indicate that the Trial Chamber was satisfied beyond reasonable doubt that the perpetrators were aware or should have been aware that Bajrami was taking no active part in the hostilities. Thus, Tarčulovski 's arguments are rejected."[5]

5.1.1. Evidence indicative of the knowledge of the perpetrator with regard to the civilian status of the victim

"With regard to the possibility that the victims could have been mistaken for members of the ABiH, an argument raised by Milošević at trial and reiterated on appeal, the Trial Chamber noted that (i) the victims were young boys dressed in civilian clothes; (ii) there was no military activity in the area that day; (iii) the passageway was not used by ABiH soldiers; (iv) the weather conditions were good; and (v) the distance from which Kasapović was shot would have allowed for the sniper to determine whether he was carrying arms or was a combatant."[6]

5.1.2. Evidence indicative of the knowledge of the perpetrator with regard to the presence of the civilian population in the attacked area

"About a week before the actual attack, Lieutenant Mandarine had sent some soldiers to Busurungi to conduct a recormaissance mission. During the reconnaissance, the FDLR identified several FARDC positions within and on the outskirts of the village of Busurungi. They also discovered that the FARDC's military positions were located among the dwellings of the civilian population that was living together with FARDC and Mai Mai soldiers. Furthermore, Witness 562 [REDACTED] says that the results of the mission were reported back to the superiors and that 'they knew it, they knew even before [...] they knew that the [...] the civilians were living there.'"[7]

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

"once the perpetrators launch the attack with the intent to target individual civilians not taking direct part in the hostilities or the civilian population, the offence is completed. This is the case when individual civilians not taking direct part in the hostilities or the civilian population are the sole target of the attack."[8]

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

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

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

5.2.I ntent of the perpetrator to target civilians

"This second type of case must be distinguished from the other situations in which an attack is launched with the specific aim of targeting only a military objective, albeit with the awareness that incidental loss of life or injury to civilians will or may result from such an attack."[9]