Table of contents:
Element:
In the Katanga Trial Judgement, the Trial Chamber held that:
"The Chamber observes, however, that article 8(2)(e)(i)(3) of the Elements of Crimes prescribes a specific subjective element as follows: "The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack". In the Chambers view, that specific element is, in fact, a repetition of article 30(2)(a). Indeed, the Chamber considers that the second element of the Elements of Crimes, to which it applies, namely, "[t]he object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities", must be regarded as conduct.
In the Chambers view, that specific mental element may be inferred from various factors establishing that civilians not taking part in the hostilities were the object of the attack, such as the means and methods used during the attack, the number and status of the victims, the discriminatory nature of the attack or, as the case may be, the nature of the act constituting the attack. .
For the mental element of the crime to be established, the perpetrator must have (1) intentionally directed an attack; (2) intended the civilian population or individual civilians to be the object of the attack; (3) been aware of the civilian character of the population or of civilians not taking part in hostilities; and (4) been aware of the factual circumstances that established the existence of an armed conflict." [17]
5.1. Knowledge of the perpetrator about the civilian status of the object of the attack.
The Trial Chamber in Blaškić held that:
"Targeting civilians or civilian property is an offence when not justified by military necessity. [...] Such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity."[1]
5.1.3. Evidence of the non-existence of military objects in the attacked area
In Galic, the Trial Chamber stated:
"In case of doubt whether a person is a civilian, that person shall be considered to be a civilian."[2]
The Blaškić Trial Chamber stated:
"[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."[3]
Article 52(2) of Additional Protocol I
In the Blaškić case,
"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."[4]
The Galić Trial Chamber found that:
"[...] 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."[5]
Footnotes:
[1] ICTY, Blaškić Trial Judgement 3 March 2000, para. 180.
[2] ICTY, Prosecutor v. Galić, "Judgment", IT-98-29-T, 5 December 2003, para. 55.
[3] ICTY, Blaškić Trial Judgement 3 March 2000, para. 407.
[4] ICTY, Blaškić Trial Judgment 3 March 2000, para. 512.
[5] ICTY, Prosecutor v. Galić, "Judgment", IT-98-29-T, 5 December 2003, para. 60.
