CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(e) War crimes » Art. 8(2)(e)(i) Attacking civilians » 4. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

Element:

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

ICC, The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the confirmation of charges (PTC), 16 December 2011, para. 142-144:

"142. 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 attack²⁸⁸ 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. ²⁸⁹ 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. ²⁹⁰ In such a case, the targeting of the civilian population is not the aim of the attack but only an incidental consequence thereof.

143. 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"²⁹¹

144. 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."

"288. See Katanga Decision, para. 272.

289. See Katanga Decision, para. 273. According to this scenario, a "crime is committed when an attack is launched against a village which has significant military value because of its strategic location and when the village contains two distinct targets: (i) the defending forces of the adverse or hostile party in control of thevillage (that is, when only the defeat of these forces would permit the attacking party to seize control of the village); and (ii) the civilian population of the village, if its allegiance is with the adverse or hostile party in control of the village thus leading the attacking forces to consider the "destruction" of that civilian population as the best method for securing control of the village once it has been seized."

290. See J. Henckaerts and L. Doswald-Beck. International Committee of the Red Cross, Customary International Humanitarian Law, Volume I: Rules (Cambridge University Press, 2005), pp. 46-50; H. Olasolo, Unlawful Attacks in Combat Situations (Martinus Nijhoff Publishers, 2008), p. 85. The Rome Statute includes such a violation of the principle of proportionality in the provision of article 8(2)(b)(iv) which is applicable to international armed conflict. Although the rule of proportionality is recognised as a norm of customary international law applicable in both international and non-international armed conflicts, the Statute does not provide any provision equivalent to article 8(2)(b)(iv) in relation to non-international armed conflicts.

291. ICTY, Trial Chamber, Prosecutor v. Milan Martic, "Decision", 8 March 1996, IT-95-11-R61, para. 15."

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:

"282. Pursuant to Article 49(1) of Additional Protocol I to the Geneva Conventions "attacks" are acts of violence against the adversary, whether in offence or in defence. According to the ICRC Commentary an attack is understood as a "combat action" and refers to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict.⁹⁰³ As regards the notion of civilians, the Chamber notes that members of the civilian population are people who are not taking any active part in the 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.⁹⁰⁴The presence of certain non-civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".⁹⁰⁵ Further, Article 50 (1) of Additional Protocol I provides for the assumption that in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.⁹⁰⁶The Chamber reiterates that "civilian property covers any property that could not be legitimately considered a military objective".⁹⁰⁷"

"903. ICRC Commentary on the Additional Protocols, p 603. See also Kordic Appeals Judgement, para 47.

904. Akayesu Trial Judgement, para 582; Blaskic Trial Judgement, para 214.

905. Tadic Trial Judgement, para 638; Blaskic Trial Judgement, para 214.

906. Kordic Appeals Judgement, paras 48-51.

907. Blaskic Trial Judgement, para 180. See also Kordic Appeals Judgement, para 53."

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, paras. 449, 452-455:

''449. In Count 10 of the Indictment, the Accused is charged with criminal responsibility for unlawful attacks on civilians as a violation of the laws or customs of war, punishable under Article 3 of the Statute. While Article 3 does not explicitly prohibit “unlawful attacks on civilians” as such, the Appeals Chamber has held that attacks on the civilian population or individual civilians meet the threshold requirements for war crimes and are therefore covered by Article 3 of the Statute. In so ruling, Chambers of the Tribunal have relied on Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, both of which read in relevant parts that the civilian population and individual civilians shall not be the object of attack. Thus, the targeting of civilians has been deemed by this Tribunal to be absolutely prohibited at all times and, as such, cannot be justified by military necessity or by the actions of the opposing side.''

''452. The meaning of civilian for the purposes of unlawful attacks on civilians stems from Article 50(1) of Additional Protocol I which provides that a “civilian is any person who does not belong to one of the categories of persons referred to in Article 4(A)(1), (2), (3) and (6) of the Third [Geneva] Convention and in Article 43 of [Additional] Protocol [I].” This is a negative definition of “civilian” as it includes anyone who is not a member of the armed forces or an organised military group belonging to a party to the conflict. Article 50(1) of Additional Protocol I also provides that in case of doubt whether a person is a civilian, that person shall be considered to be a civilian. The protection from attack afforded to individual civilians by Article 51 of Additional Protocol I continues until such time as they take direct part in hostilities, that is until they engage in acts of war which, by their very nature and purpose, are likely to cause actual harm to the personnel or materiel of the enemy forces. Thus, in order to establish that unlawful attacks against civilians have been committed, the Chamber has to find that the victims of these attacks were civilians and that they were not participating in the hostilities.''

''453. The jurisprudence is also clear that the presence of individual combatants within the civilian population attacked does not necessarily change the fact that the ultimate character of the population remains a civilian one. In determining whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined."

"454. As stated above, for the attack to constitute an unlawful attack on civilians, the Prosecution has to show that it was directed against individual civilians or the civilian population. Whether this is the case can be determined from a number of factors, including the means and methods used in the course of the attack, the status and the number of victims, the distance between the victims and the source of fire, the ongoing combat activity at the time and location of the incident, the presence of military activities or facilities in the vicinity of the incident, the nature of the acts of violence committed, the indiscriminate nature of the weapons used, and the extent to which the attacking force has complied or attempted to comply with the precautionary requirements of the law of war. In this respect, the jurisprudence is also clear that both indiscriminate attacks and disproportionate attacks may qualify as attacks directed against civilians or give rise to an inference that an attack was directed against civilians. This is to be determined on a case by case basis, in light of the available evidence.''

''455. Finally, before criminal responsibility can be incurred for the unlawful attacks on the civilian population or individual civilians, the Chamber has to find that they have resulted in the death or serious injury to body or health of the victims in question.''

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

ICC, The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the confirmation of charges (PTC), 16 December 2011, para. 218-219:

"218. The Chamber notes the Defence’s challenge that, in light of the high number of casualties of combatants, the Prosecution should have proven the unlawful nature of the attack on Mianga. The Defence contends that a media article shows that more soldiers were killed than civilians and that, accordingly, the attack did not target civilians. As indicated in paragraph 142 above, the Chamber is of the view that 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, and that the crime may also be committed when the attack is launched simultaneously against a military objective and the civilian population or individual civilians not taking direct part in the hostilities. That scenario is to be distinguished from situations of violation of the principle of proportionality, which is not the crime charged in the present case.

219. In light of the abovementioned, the Chamber is satisfied that there are substantial grounds to believe that the FDLR attack on Mianga, on or about 12 April 2009, was launched with the aim of targeting both a military objective (FARDC position in the village) and the civilian population or individual civilians not taking direct part in the hostilities. The Chamber is further satisfied that the FDLR soldiers who took part in the attack were aware of the civilian status of the victims and intended to attack the civilian population or individual civilians not taking direct part in the hostilities since they were considered enemies. The Chamber is further satisfied that there is sufficient evidence to establish substantial grounds to believe that civilians not taking direct part in the hostilities were killed during the attack, and that the attackers were aware that they were attacking and killing civilians. In view of the foregoing, the Chamber is satisfied that there are substantial grounds to believe that the war crimes of attacking civilians under article 8(2)(e)(i) of the Statute and of murder under article 8(2)(c)(i) of the Statute were committed by the FDLR troops in Mianga on or about 12 April 2009."

P.4. Evidence of the character of the population being of purely civilian nature.

P.5. Evidence of the character of the population being of predominantly civilian nature.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:

"903. ICRC Commentary on the Additional Protocols, p 603. See also Kordic Appeals Judgement, para 47.

904. Akayesu Trial Judgement, para 582; Blaskic Trial Judgement, para 214.

905. Tadic Trial Judgement, para 638; Blaskic Trial Judgement, para 214.

906. Kordic Appeals Judgement, paras 48-51.

907. Blaskic Trial Judgement, para 180. See also Kordic Appeals Judgement, para 53."

P.5.1. Evidence showing that the individuals connected to armed forces did not fire or undertake any overt military activity.

P.5.2. Evidence showing that the members of the Crisis Staff, the headquarters of which was located in the attacked area, did not fight and did not wear uniforms.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:

"284. The Chamber has already found that on 6 December 1991 there was an attack launched by the JNA forces against the Old Town of Dubrovnik.⁹⁰⁹ It is also the finding of the Chamber, as recorded earlier, that there were no military objectives within the Old Town and the attack was not launched or maintained in the belief that there were.⁹¹⁰ It is possible that there may have been individuals in the Old Town on 6 December 1991 who were connected with the Croatian defending forces, however, any such persons did not fire on JNA forces or undertake any overt military activity. Their presence could not change the character of the population. It was properly characterised as a civilian population, and the objects located there were civilian objects. As regards the Defence submission concerning alleged military activities of the Crisis Staff, the headquarters of which was located in the Old Town,⁹¹¹ the Chamber notes that no persuasive evidence has been supplied to the effect that the Crisis Staff was conducting military operations from the Old Town.⁹¹² On the contrary, Delo Jusic testified that the Crisis Staff did not deal with issues of defence.⁹¹³ Mato Valjalo stated that its members did not fight and did not wear uniforms.⁹¹⁴ It was his testimony that the headquarters of the Territorial Defence was in Lapad.⁹¹⁵ There is nothing in the evidence to suggest that the building of the Crisis Staff made "an effective contribution to military action" or that its destruction would offer "a definite military advantage ".⁹¹⁶ Accordingly, the Chamber finds on the evidence in this case that the presence of the Crisis Staff in a building located in the Old Town did not render the building a legitimate military objective. The Chamber would also note that the building in question was not proved to have been damaged⁹¹⁷ during the shelling so that this Defence submission apparently lacks factual foundation."

909. See supra, paras 99-119 ; 121-145.

910. See supra, paras 193- 194.

911. Defence Final Brief, paras 204 -206.

912. Prosecution Final Brief, paras 232-233.

913. Delo Jusic, T 3206-3207.

914. Mato Valjalo, T 2091.

915. Mato Valjalo, T 1997.

916. Article 52 para 2 of Additional Protocol I, see supra, footnote 885.

917. The headquarters of the Crisis Staff was located at the Rector’s palace, Delo Jusic, T 3207; Dordje Ciganovic, T 2903. Slavko Grubisic testified: "At the rector's palace, as far as I was able to see from the outside, because a shell had landed between the cathedral and the rector's palace, from the north, or rather, the south side, from the cathedral, on those beautiful stones, there are still marks made by shrapnel. It's pock-marked by shrapnel still." T 1043. However, this evidence is not indicative of proving that the damage occurred as result of this shell. Moreover, P63/6, Annex 1 shows six projectile impacts marked as "4" and "6" in the northern and eastern area of the outer walls of the Rector’s Palace as being damaged in October/November.

[B. Evidentiary comment:]

P.6. Evidence showing that the attacked area was a living town.

P.6.1. Evidence of the number of the resident population of the attacked area.

P.6.2. Evidence showing that the attacked area was a centre of commercial and local governmental activity and religious communities.

P.6.3. Evidence showing that the attacked area being a living town was a renowned state of affairs.

P.6.4. Evidence showing that the displaced people found shelter in the attacked area during the war.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 285:

"285. On 6 December 1991, the evidence is unequivocal that the Old Town was, as it still is, a living town. Though a protected World Heritage site, it had a substantial resident population of between 7,000 and 8,000,⁹¹⁸ many of whom were also employed in the Old Town, as were very many others who came to the Old Town from the wider Dubrovnik to work.⁹¹⁹ The Old Town was also a centre of commercial and local government activity and religious communities lived within its walls. Because of, and under the terms of, the JNA blockade, some women and children had temporarily left the Old Town, but many remained. In addition, families and individuals displaced by the JNA advance on Dubrovnik had found shelter in the Old Town.⁹²⁰ Some people from the wider Dubrovnik had also been able to take up temporary residence in the Old Town during the blockade in the belief that its World Heritage listing would give them protection from military attack.⁹²¹ The existence of the Old Town as a living town was a renowned state of affairs which had existed for centuries. The residential situation in the wider Dubrovnik was, in many respects quite similar and a renowned state of affairs. The wider Dubrovnik was a substantial residential and commercial centre with a large resident population the numbers of whom had been swelled by refugees who had been displaced from other towns and villages by the JNA advance.⁹²²"

"918. Dr John Allcock, T 461-464 ; Exhibit P14.

919. Paul Davies, T 579.

920. Paul Davies, T 574.

921. Paul Davies, T 579.

922. With respect to the fact that the Old Town was a populated civilian town, the Chamber notes that a concert was held on 5 December 1991 to commemorate the 200 year anniversary of Mozart’s death, Delo Jusic, T 3067."

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:

"282. As regards the notion of civilians, the Chamber notes that members of the civilian population are people who are not taking any active part in the 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.^904"

"904. Akayesu Trial Judgement, para 582; Blaskic Trial Judgement, para 214."

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 48:

"48. The protection from attack afforded to individual civilians by Article 51 of Additional Protocol I is suspended when and for such time as they directly participate in hostilities.⁸⁵ To take a "direct " part in the hostilities means acts of war which by their nature or purpose are likely to cause actual harm to the personnel or matériel of the enemy armed forces.⁸⁶ As the Kupreskic Trial Chamber explained:

Combatants and other individuals directly engaged in hostilities are considered to be legitimate military targets.⁸⁸"

"85. See Article 51 (3) of Additional Protocol I.

86. ICRC Commentary, para. 1944.

87. Kupreskic Trial Judgement, paras 522-3. The Inter-American Commission of Human Rights also provided guidance as to the scope of civilian immunity, in the Tablada case, by stating that: "(…)When civilians, such as those who attacked the Tablada base, assume the role of combatants by directly taking part in fighting, whether singly or as a member of a group, they thereby become legitimate military targets. As such, they are subject to direct individualised attack to the same extent as combatants. Thus, by virtue of their hostile acts, the Tablada attackers lost the benefits of the above mentioned precautions in attack and against the effects of indiscriminate or disproportionate attacks pertaining to peaceable civilians. In contrast, these humanitarian law rules continued to apply in full force with respect to those peaceable civilians present or living in the vicinity of the La Tablada base at the time of the hostilities." Juan Carlos Abella v. Argentina, Case 11.137, Report N? 55/97, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7, p. 271, para. 178 (1997).

88. Combatant status implies not only being considered a legitimate military objective, but also being able to kill or wound other combatants or individuals participating in hostilities, and being entitled to special treatment when hors-de-combat, i.e. when surrendered, captured or wounded (See Article 41(2) of Additional Protocol I)."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, para. 582:

"582. The Chamber considers that an act must be directed against the civilian population if it is to constitute a crime […]. Members of the civilian population are people who are not taking any active part in the 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."

P.7. Evidence of the absence of civilian(s) abusing rights (i.e. taking up arms).

P.8. In case a member of the armed forces claims civilian status, evidence that he or she did not participate in hostilities.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 284:

"284. Mato Valjalo stated that its members did not fight and did not wear uniforms.⁹¹⁴"

"914. Mato Valjalo, T 2091.

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, paras. 248, 364:

"248. Although Sabri Halili was a member of the ABiH, he was off-duty that day and was not dressed in uniform or carrying weapons.⁵⁹⁵"

"595. Sabri Halili, T. 2658, 2679-80, 2686, 2706; Milada Halili testified that her husband was a soldier but he didn’t have a military uniform. He was not carrying any weapons that day because he was off duty, T. 2740. She said that she worked in "the kitchens of the ABiH" during the conflict. T. 2749-50, 2764."

"364. Although Grabovica was a military conscript employed to transport civilians in a bus of the public transport company, he did not carry weapons and was not dressed in a military uniform.¹¹⁷⁶ There is no evidence in the Trial Record, which could suggest that the bus transported combatants or was used for a military activity. The bus was visibly a civilian vehicle, which only functioned during cease-fires along a regularly scheduled bus route."

"1176. Grabovica, T. 3692."