CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(c) War crimes » Art. 8(2)(c) War crimes - Common elements » 1. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel56 taking no active part in the hostilities.

Element:

1. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel56 taking no active part in the hostilities.

A. Legal source/authority and evidence:

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 870:

"870. For each crime charged under Article 3 of the Statute and Common Article 3, the Prosecution is required to prove that the victims were "persons taking no active part in hostilities", including by virtue of being civilians and persons who have laid down their arms or who have been placed hors de combat by virtue of sickness, wounds, detention or any other cause.2796 The Prosecution must prove that the alleged perpetrator of the crime must have known or should have been aware that the victim was taking no active part in the hostilities.2797 Relevant to the Trial Chamber’s determination of the victim’s protection under Common Article 3 is the specific situation of the victim at the moment the crime was committed.2798 The Trial Chamber considers that relevant factors in this respect include the victim’s activity, clothing, age and gender, as well as whether or not the victim was carrying a weapon.2799"

2796 Common Article 3; Delalic et al. Appeal Judgement, para. 420.

2797 Halilovic Trial Judgement, para. 36; Krajicnik Trial Judgement, para. 847.

2798 Tadic Trial Judgement, paras 615-616; Halilovic Trial Judgement, paras 33-34.

2799 Galic Trial Judgement, para. 50; Halilovic Trial Judgement, para. 34.

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 615:

"615. The customary international humanitarian law regime governing conflicts not of an international character extends protection, from acts of murder, torture and other acts proscribed by Common Article 3, to:

This protection embraces, at the least, all of those protected persons covered by the grave breaches regime applicable to conflicts of an international character: civilians, prisoners of war, wounded and sick members of the armed forces in the field and wounded sick and shipwrecked members of the armed forces at sea."

1.1.1. Evidence of the victims being members of armed forces who have laid down their arms

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, paras. 2239-2240:

"2239. The Belgian peacekeepers were highly trained members of the Belgian army’s Para Commando Battalion. As part of UNAMIR, they were neutral in the conflict between the Rwandan government forces and the RPF (III.1.3). Furthermore, they had been disarmed well before the attack against them at Camp Kigali. The fact that one of the Belgians was able to obtain a weapon and use it for self-defence during the course of the attack does not alter their status. This happened only after the mob of soldiers at the camp began brutally beating the peacekeepers to death (III.3.4).

2240. Therefore, the Chamber finds beyond reasonable doubt that the victims of the alleged violations of Articles 4(a) and 4(e) of the Statute were not taking active part in the hostilities."

1.1.2. Evidence of the victim(s) being member(s) of armed forces who became hors de combat by sickness, wounds, detention or any other cause

ICTY, The Prosecutor v. Jovica Stanišić and Franko Simatović, IT-03-69-T, Judgement (TC), 30 May 2013, para. 985:

"985. In relation to another incident (Murder of approximately 27 non-Serb civilians by using them as human shields on or about 12 July 1992 (para. 54)), the Trial Chamber, having considered the circumstances in which two of the alleged victims (Omer Delić, Salih Makarević) were killed, their uniform and the active hostilities in and around the relevant area at the time of their deaths, and for a third alleged victim (Nedžad Makarević) having considered evidence of ABiH affiliation and the active hostilities in and around the relevant area at the time of his death, finds that they were all three killed in a context which might reasonably be perceived as a combat situation. As such, the evidence is insufficient to establish that they were hors de combat or otherwise not taking part in active hostilities when they were killed. Consequently, the Trial Chamber will not consider these killings further in relation to this finding."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 444:

''444. Where a crime punishable under Article 3 of the Statute derives from protections found in Common Article 3, the victims of the alleged violation must have taken no active part in the hostilities at the time the crime was committed.Such victims include members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. In addition, the Chamber must be satisfied that “the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed”.''

P.1. Evidence of the victim(s) being prisoner(s) of war.

P.2. Evidence of the victim(s) being captured or detained members of armed forces.

P.3. Evidence of the victim(s) being wounded and/or sick member(s) of armed forces in the field.

P.4. Evidence of the victim(s) being wounded, sick and/or shipwrecked member(s) of armed forces at sea.

A. Legal source/authority and evidence:

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, paras. 615-616:

616. It is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual's circumstances, that person was actively involved in hostilities at the relevant time. Violations of the rules contained in Common Article 3 are alleged to have been committed against persons who, on the evidence presented to this Trial Chamber, were captured or detained by Bosnian Serb forces, whether committed during the course of the armed take-over of the Kozarac area or while those persons were being rounded-up for transport to each of the camps in opstina Prijedor. Whatever their involvement in hostilities prior to that time, each of these classes of persons cannot be said to have been taking an active part in the hostilities. Even if they were members of the armed forces of the Government of the Republic of Bosnia and Herzegovina or otherwise engaging in hostile acts prior to capture, such persons would be considered "members of armed forces" who are "placed hors de combat by detention". Consequently, these persons enjoy the protection of those rules of customary international humanitarian law applicable to armed conflicts, as contained in Article 3 of the Statute."

1.1.3. Evidence of the victims being civilians

A. Legal source/authority and evidence:

Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 789:

"789. The Appeals Chamber recalls that the clothing of victims may be considered when determining whether a particular victim was actively participating in hostilities at the time of death. 2317 Therefore, it was reasonable for the Trial Chamber to rely on Witness Lama’s evidence to conclude that the victims were hors de combat and not taking part in hostilities at their time of death."2318

2317 See Boškoski and Tarculovski Appeal Judgement, para. 81. See supra, para. 525.

2318 Trial Judgement, paras 1139, 1747.

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1577:

1577. It is significant that those who described members of the Ruhutinyanya family, spoke of women and children being among them. Notably, Gicanda, the former Tutsi Queen of Rwanda was referred to as the ‘old lady’. The record demonstrates that children were among those who were killed in the attack on the Matabaro and Nyirinkwaya residences. Remy Rwekaza, Witness ZAV and Beata Uwambaye were unarmed and wore civilian clothing when Nizeyimana ordered that they be killed by ESO soldiers. None of these victims were actively taking part in hostilities.

"The evidence reflects that the displaced persons at Cyahinda Parish resisted initial attacks. In the process, they killed at least two gendarmes and wounded the Nyakizu commune bourgmestre. Notwithstanding, the record reflects that the masses who gathered there were civilians who had fled attacks on Tutsis in neighbouring communes. The Chamber does not consider that the defensive efforts against attacks on the primarily displaced Tutsis at the parish turned them into combatants. To the extent that some could be considered as such, this would not have deprived the thousands of non-combatants who had also sought refuge there of their protected status.

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, paras. 2237-2238:

"2237. At the time of the alleged violations, most of the victims were primarily unarmed Tutsi civilians who were either murdered in their homes, at places of refuge such as religious sites and schools, or at roadblocks on their way to these sanctuaries while fleeing the resumption of hostilities or other attacks.

2238. There is evidence that the refugees at Nyundo Parish used traditional weapons to defend themselves against the repeated attacks by militiamen. The Chamber is not satisfied that the use of rudimentary defensive weapons changes the status of the victims. Even if those with weapons for self-defence could be characterised as combatants, their possible presence within groups of refugees does not deprive those who are non-combatants of their protected status."

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 615:

"The customary international humanitarian law regime governing conflicts not of an international character extends protection, from acts of murder, torture and other acts proscribed by Common Article 3, to:

Prosecutor v. Vlastimir Dordevic, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, para. 525:

"525. The Appeals Chamber is also not convinced by Dordevic’s assertion that the Trial Chamber’s assessment of “targeting” was “polluted” by the notion of a continuous combat function.¹⁷³² Dordević alleges that, based on this notion, the Trial Chamber erroneously considered the presence of civilian clothing in determining the status of an individual.¹⁷³³ The Appeals Chamber, however, finds that the Trial Chamber reasonably took into account numerous factors, including but not limited to the presence of civilian clothes, in concluding that those killed had no combat function at the time of their death.¹⁷³⁴ Dordevic also has not shown that the Trial Chamber erred by not considering the “large numbers of individuals who fought for or assisted the KLA, but who did not have a continuous combat function”.¹⁷³⁵ Contrary to Dordević’s assertion, the Trial Chamber did in fact acknowledge that the KLA was composed of both permanent members and other supporters,¹⁷³⁶ but found that the vast majority of crimes occurred in situations in which there was little or no KLA activity.¹⁷³⁷ The Appeals Chamber considers that the Trial Chamber reasonably concluded that any difficulties in distinguishing between suspected KLA members and civilians could not explain the deportation and forcible transfer of entire villages of Kosovo Albanians.¹⁷³⁸ Accordingly, the Appeals Chamber is satisfied that the Trial Chamber did not err in its determination of the protected status of individuals or in its assessment of the proportionality of the attack.¹⁷³⁹"

1732. See Dorđević Appeal Brief, paras 310-311.

1733. Dorđević Appeal Brief, paras 312-313.

1734. See supra, paras 522-523. The Appeals Chamber has previously accepted a Trial Chamber’s reliance on the clothes of a victim when determining that he was not actively participating in hostilities at the time of his death (see Boškoski and Tarčulovski Appeal Judgement, para. 81) (“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 […] its reasons for its reliance on certain pieces of evidence […], finding inter alia that Rami Jusufi was in civilian clothes at the time of his death” (citations omitted).) Dorđević also does not show that the Trial Chamber erred in considering the relevant evidence in the following municipalities. Slatina/Slatinë: the Trial Chamber found that Mahmut Caka, Hebib Lami, Brahim Lami and Rraman Lami were captured by VJ soldiers and killed on 13 April 1999; that two of the bodies had been mutilated; and that they were unarmed (Trial Judgement, paras 1138, 1747). Izbica/Izbicë: the Trial Chamber held that forensic evidence proved that the victims who were killed on 28 March 1999 and later exhumed at Petrovo Selo PJP Centre, were detained by Serbian forces at the time of their death (Trial Judgement, paras 627, 633-634, 1727). Meja/Mejë and Korenicë/Korenica: the Trial Chamber found that no evidence suggested that the victims who were murdered on 27-28 April 1999 were armed at that time, or taking an active part in the hostilities, or that there was fighting between Serbian forces and the KLA (Trial Judgement, paras 990-991, 1738-1739). The four civilians who were murdered during the Operation Reka in a village next to Ramoc were found to be hostages in the captivity of Serbian forces (Trial Judgement, paras 976, 992, 1738-1739). Trnje/Tërrnje: the Trial Chamber found that the victims were not armed or taking an active part in the hostilities when they were killed in March 1999 (Trial Judgement, paras 708-709). Bela Crkva/Bellacërkë: the Trial Chamber held that about 40 unarmed victims were murdered at the Belaja Bridge in late March 1999 (Trial Judgement, paras 472, 527, 1711). Račak/Raçak: the Trial Chamber found that 20 to 24 of the about 45 victims appeared to have been shot from a close range on 15 January 1999; that one victim had been decapitated; and that there were women and a child among the victims (Trial Judgement, paras 416, 1920). Danube River: The Trial Chamber considered that many of the bodies that were found in a truck that was floating in the Danube showed the signs of blunt objects and large blades; that the hands of one individual were tied; and that there were 10 women and two children among them (Trial Judgement, paras 1300, 1305, 1311). Suva Reka/Suharekë: The Trial Chamber considered that Jashar Berisha was murdered when he was unarmed and detained by members of the Serbian forces (Trial Judgement, paras 678, 683, 1720, 1723). Furthermore, contrary to Dorđević’s submission (Dorđević Appeal Brief, para. 313, fn. 532), the Trial Chamber did not hold him responsible for the murder of the following victims who were found to have been killed in civilian clothes: Milaim Loku and Emrlah Kuci (Trial Judgement, paras 1111, 2096; Trial Judgement, Annex H). Furthermore, contrary to Dorđević’s submission, the Trial Chamber did not find Dorđević guilty of having murdered: (i) victims in Prizren municipality (Trial Judgement, paras 1268, 1270, 1705); (ii) individuals who had their bodies disinterred by Witness K72 in Dakovica/Gjakovë municipality (Trial Judgement, paras 1277-1278, 1281-1282, 1285); (iii) individuals who were buried in two mass grave sites at the Petrovo Selo PJP Centre in April 1999 (Trial Judgement, paras 1353, 1355, 1507, 1730-1741, 1753); (iv) individuals who were murdered in Celina/Celinë (Trial Judgement, paras 532, 1705); and (v) individuals who were found dead in a truck in the Orahovac/Rahovec area (Trial Judgement, paras 553, 1705, 1714-1719, 1753).

1735. Dorcevic Appeal Brief, para. 314.

1736. Trial Judgement, para. 2058, referring to Trial Judgement, paras 1539-1540. See also Trial Judgement, paras 2059- 2061.

1737. Trial Judgement, para. 2065.

1738. Trial Judgement, para. 2067. 1739 See also supra, paras 93, 97-99, 102, 107-109.

Prosecutor v. Jovica Stanišić and Franko Simatovic, Case No. IT-03-69-T, Judgement (TC), 30 May 2013, paras. 125, 129, 984, 986:

“125. A list of casualties issued by the municipality of Škabrnja (P99) and a list issued by the Zadar Medical Centre Pathology Unit (P1747) both indicate that the following people died in Škabrnja on 18 November 1991: Joso Brkić, Joso Miljanić, Kata Rogić, Grgica Šegarić, Krsto Šegarić, Rade Šegarić, Vice Šegarić, Stana Vicković, Petar Pavičić, Marija Brkić, Marko Brkić, Grgo Jurić, Petar Jurić, Niko Pavičić, Josip Perica, Ljubo Perica, Ivan Ražov, Nikola Rogić, Mara Zilić,³⁰² Pavica Zilić, and Roko Zilić.³⁰³ Forensic evidence confirms the deaths of all except two of these individuals.³⁰⁴ P1747 lists the following additional casualties: Sime Šegarić, Željko Ćurković, Stanko Vicković, Marko Rogić, Slavko Miljanić, Ivica Šegarić, Ante Ražov, Mile Pavičić, Jela Jurić, Vladimir Horvat, Nediljko Škara, Gaspar Perica, Nediljko Jurić, and Tadija Žilić.³⁰⁵ Forensic evidence confirms all except two of these deaths.³⁰⁶ P99 lists the following additional civilian casualties: Luca Šegarić, Grgo Bilaver, Peka Bilaver, Dumica Gospić, Anica Jurić, Mirko Kardum, Jela Ražov, and Milka Zilić. ³⁰⁷ Forensic evidence confirms two of these deaths.³⁰⁸ Marija Dražina and Marko Župan are also listed in exhibit P909, indicating that they died in Škabrnja on 19 November 1991.³⁰⁹ The parties agree on the identities of 39 individuals, most of whom are among the aforementioned casualties.³¹⁰ The forensic evidence often specifies the cause of death of the victims and gives an indication of the circumstances of the death (e.g. point-blank gunshot wound).”

302. The Trial Chamber notes that there is a discrepancy between Mara Žilić’s year of birth indicated in P1747 (1914) and in P99 (1915) but nevertheless concludes that the two documents refer to the same individual.

303. P99 (List of Croatian soldiers and civilians who died in Škabrnja, Municipality of Škabrnja, 9 July 2002); P1747 (Zadar Medical Centre list of deceased, with causes of death, 18 November 1991).

304. Autopsy reports of Joso Miljanić and Stana Vicković are not in evidence. P512 (Chart on proof of death documentation filled in by Davor Strinović), pp. 26-34; P871 (Autopsy report for Josip Perica), pp. 1-2; P874 (Autopsy report for Marija Brkić, 23 November 1991); P878 (Autopsy report for Kata Rogić); P879 (Autopsy report for Nikola Rogić); P885 (Autopsy report for Ivan Ražov); P882 (Autopsy report for Roko Žilić); P883 (Autopsy report for Niko Pavičić), pp. 1-2; P886 (Autopsy report for Petar Jurić), pp. 1-3; P887 (Autopsy report for Ljubo Perica), pp. 1, 3; P889 (Autopsy report for Krsto Šegarić); P891 (Autopsy report for Pavica Žilić); P892 (Autopsy report for Mara Žilić); P893 (Autopsy report for Joso Brkić, 24 November 1991), pp. 1, 3; P894 (Autopsy report for Grgo Jurić), pp. 1, 3; P895 (Autopsy report for Grgica Šegarić); P897 (Autopsy report for Rade Šegarić); P898 (Autopsy report for Vice Šegarić); P900 (Autopsy report for Marko Brkić, 25 November 1991); P904 (Autopsy report for Petar Pavičić), pp. 1-3.

305. P1747 (Zadar Medical Centre list of deceased, with causes of death, 18 November 1991).

306. Autopsy reports of Jela Jurić and Nediljko Jurić are not in evidence. P873 (Autopsy report for Šime Šegarić, undated); P875 (Autopsy report for Željko Čurković, 23 November 1991), pp. 1, 3; P876 (Autopsy report for Vladimir Horvat), pp. 1-2; P877 (Autopsy report for Stanko Vicković); P880 (Autopsy report for Marko Rogić); P881 (Autopsy report for Nediljko Škara); P888 (Autopsy report for Perica Gašpar), pp. 1-3; P890 (Autopsy report for Tadija Žilić); P896 (Autopsy report for Slavko Miljanić), pp. 1-2; P901 (Autopsy report for Mile Pavičić), pp. 1, 3; P902 (Autopsy report for Ivica Šegarić); P903 (Autopsy report for Ante Ražov), pp. 1, 3; P908 (On-site investigation record Škabrnja, 6 April 1996); P910 (List of persons who died in Škabrnja, 5 December 1991).

307. P99 (List of Croatian soldiers and civilians who died in Škabrnja, Municipality of Škabrnja, 9 July 2002).

308. There is forensic evidence for Jela Ražov and Luca Šegarić. P907 (Autopsy report for Jela Ražov); P908 (Onsite investigation record Škabrnja, 6 April 1996), pp. 22-24; P910 (List of persons who died in Škabrnja, 5 December 1991). The forensic evidence for Luca Šegarić indicates that she died of violent causes sometime prior to 6 April 1992.

309. P909 (List of individuals who died on 19 November 1991), p. 1.

310. These are Jozo Brkić, Josip Miljanić, Jozo Miljanić, Petar Pavičić, Ilija Ražov, Kata “Soka” Rogić, Grgica “Maja” Šegarić, Krsto Šegarić, Lucia Šegarić, Rade Šegarić, Vice Šegarić, Stana Vicković, Ivan Babić, Marija Brkić, Marko Brkić, Željko Ćurković, Marija Dražina, Šime Ivković, Marko Ivković, Ana Jurić, Grge Jurić, Petar Jurić, Jozo Miljanić, Noko/Niko Pavičić, Pešo Pavičić, Josip Perić, Joso Perica, Ljubo Perica, Ivan Ražov, Jela Ražov, Branko Rogić, Nikola Rogić, Peter Rogić, Kljajo Šegarić, Mara Zilić, Milka Zilić, Pavica Zilić, Roko Zilić, Tadija Zilić, and Marko Župan. See Decision on Motion For Admission of Agreed Facts, 12 January 2011; First Joint Motion for Admission of Agreed Facts Between the Prosecution and the Stanišić Defence, 16 February 2010, Annex A, Part D; T. 11277.

“129. The Trial Chamber further notes that a list of casualties issued by the municipality of Škabrnja (P99) and a list of deceased and causes of death from the Zadar Medical Centre (P1747) are inconsistent in relation to the civilian/combatant status of certain victims. As exhibit P1747 is a document from the Zadar Medical Centre Pathology Unit, and it is unclear as to the basis on which the people listed therein were determined to have been civilians, the Trial Chamber does not rely on exhibit P1747 in relation to the victims’ civilian or combatant status described therein.”

“984. In relation to the same incident, (Murder of at least 38 non-Serb civilians in Škabrnja on 18 November 1991 (para. 32)) the Trial Chamber recalls the evidence in the factual finding regarding Josip Miljanić, who was forced to kneel and was then shot in the head. The Trial Chamber therefore finds that Josip Miljanić was hors de combat or otherwise not taking part in active hostilities at the time he was killed and will further consider his death in relation to this finding.”

“986. With regard to the remaining victims, considering their age and clothing as well as the circumstances in which the murders were carried out, and in certain cases Adjudicated Facts and direct evidence on the status of the victims, the Trial Chamber finds that they were civilians or detained, or otherwise placed hors de combat or otherwise not taking part in active hostilities when they were killed.”

1.1.4. Evidence of the victims being medical personnel/religious personnel

A. Legal source/authority and evidence:

Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 615: