Table of contents:
3. The perpetrator directed an attack.
P.1. Evidence of an armed attack.
P.2.1. Evidence of a sniper shooting a peacekeeper.
P.2.2. Evidence of firing at humanitarian aid assistance workers.
P.3. Evidence of beating and killing.
P.4. Evidence of firing a missile.
P.5. Evidence of placing a bomb.
P.6. Evidence of destroying property.
P.7. Evidence of placing mines.
Element:
3. The perpetrator directed an attack.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, ICTY, 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 [ ]
903 ICRC Commentary on the Additional Protocols, p 603. See also Kordić Appeals Judgment, para 47.
50. Pursuant to the Tribunals case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted .72 The 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.73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is the civilian population as such, as well as individual civilians (§ 2); indiscriminate attacks, such as those which are of a nature to strike military objectives and civilians or civilian objects without distinction (§ 4) and those which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (§ 5 (b)).
71 See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgment, 3 March 2000 (hereinafter Blaskic Trial Judgment), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgment, 26 February 2001 (hereinafter Kordic Trial Judgment), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgment, 5 December 2003 (hereinafter Galic Trial Judgment), para. 62.
72 See Blaskic Trial Judgment, para. 180. In the Blaskic and Kordic Trial Judgments an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73 See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgment, 7 May 1997 (hereinafter Tadic Trial Judgment), para. 638 and Blaskic Trial Judgment, para. 214.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 52:
52.Attack is defined in Article 49 of Additional Protocol I as acts of violence against the adversary, whether in offence or in defence. The Commentary makes the point that attack is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence.97 The jurisprudence of the Tribunal has defined attack as a course of conduct involving the commission of acts of violence.98
97 ICRC Commentary, para. 4783.
98 Krnojelac Trial Judgment, para. 54; Kunarac Trial Judgment, para. 415.
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001 para. 47:
47. The term attack is defined in Article 49 of Additional Protocol I as acts of violence against the adversary, whether in offence or in defence.49 Therefore, in determining whether an unlawful attack on civilians occurred, the issue of who first made use of force is irrelevant.
49 This definition applies to the crime of unlawful attacks against civilian objects as well.
B. Evidentiary comment:
Article 49(1) First Add. Prot. defines attacks as acts of violence against the adversary, whether in offence or defence. Article 9(1) of the Convention on the Safety of United Nations and Associated Personnel, which largely inspired the Statute of Rome provision, refers to Crimes against United Nations and associated personnel as [t]he intentional commission of (a) A murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel; (b) A violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty; [ ]. Michael Bothe is of the opinion that, as article 9 of the Convention also uses the word attack as the central concept to define the acts which have to be made punishable, the war crime defined in (iii) is co-extensive to the type of crime defined in Article 9 of the Convention. (Michael Bothe in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, p. 410;)?. Moreover, it is interesting to note that the Special Court for Sierra Leone has charged several individuals for abducting and holding hostage humanitarian assistance personnel and peacekeepers assigned to the United Nations Mission in Sierra Leone (UNAMSIL) under the article 4 of its Statute (Issa Haasan Sesay, Amended Consolidated Indictment, SCSL) and the ICTY has charged Karadzic with the same offence regarding UN military observers and UN peacekeepers under violation of the laws or customs of war (Karadzic, Amended Indictment).
?See also Gerhard Werle, Principles of International Criminal Law, para. 1141: Any type of use of force against humanitarian relief organizations and peacekeeping missions is covered ( ) The list in Article 9 [of the Safety of United Nations and Associated Personnel Convention] can be used to clarify the term attack. However, we can note Michael Cottiers contrary opinion, stating that if it would be contended that the protection of article 8 para. 2 (b) (iii) goes beyond a strict Hague law interpretation, it might be preferable to limit such an extension to specific offenses such as kidnapping of humanitarian or peacekeeping personnel than to extend the meaning of attacks to the whole range of (serious) attacks upon the person or liberty. (in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 8, para. 48). See also the same position held by .M.-Christiane Bourloyannis-Vrailas (M.-Christiane Bourloyannis-Vrailas, Crimes against United Nations and Associated Personnel, in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law. Volume I: Commentary, p. 363).
P.1. Evidence of an armed attack.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 649:
55.In a resolution on Somalia adopted in 1994, the UN Security Council condemned violence and armed attacks against persons engaged in peace-keeping efforts and re-emphasised the importance it attached to the safety and security of United Nations and other personnel engaged in peacekeeping throughout Somalia48.
48UN Security Council, Res. 897, 4 February 1994, Preamble.
P.2.1. Evidence of a sniper shooting a peacekeeper.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 654:
89. In 1995, in a statement by its President following the fatal shooting of a French peacekeeper by a sniper in Sarajevo, the UN Security Council condemned in the strongest terms such acts direct at peace-keepers who are serving the cause of peace in the Republic of Bosnia and Herzegovina and reiterated that such attacks should not remain unpunished.87
87UN Security Council, Statement by the President, UN Doc. S/PRST/1995/, 14 April 1995.
[B. Evidentiary comment:]
P.2.2. Evidence of firing at humanitarian aid assistance workers.
P.3. Evidence of beating and killing.
P.4. Evidence of firing a missile.
P.5. Evidence of placing a bomb.
P.6. Evidence of destroying property.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 635:
343. In a resolution adopted in 1999 on the safety and security of humanitarian personnel and protection of UN personnel, the UN General Assembly strongly condemned acts of destruction and looting of the property of those participating in humanitarian operations.347 The General Assembly urged all states to take the necessary measures to respect and ensure respect for the inviolability of United Nations premises.348
347 UN General Assembly, Res. 54/192, 17 December 1999, preamble.
348 UN General Assembly, Res. 55/92, 17 December 1999, §2.
P.7. Evidence of placing mines.
A. Legal source/authority and evidence:
ICRC, Commentary on the Additionnal Protocols of 8 June 1997 to the Geneva Conventions of 12 August 1949, para.1081:
During the above-mentionned enquiry the question arose whether the placing of mines constituted an attack. The general feeling was that there is an attack whenever a person is directly endangered by a mine laid.
P.10. Not required: a harmful result of the attack.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p. 153:
As for all war crimes involving certain unlawful attacks, the PrepCom discussed rather intensively whether this war crime requires actual damage to personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission as a result. [ ] For the crime to be committed it would be sufficient that, for example, an attack was launched against any of the objectives mentioned in this crime, even though, due to the failure of the weapon system, the intended target was not hit.
