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)(viii) Displacing civilians » 3. The perpetrator ordered a displacement of a civilian population.

Element:

3. The perpetrator ordered a displacement of a civilian population.

3.1. The perpetrator ordered displacement.

P.1. Evidence of issuing orders.

P.1.1. Evidence of the perpetrator ordering or otherwise causing displacement to occur.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 344, 352 353, 464:

910. P 435, Butler, T. 4827-4828
911. P 404 fn.130; and P 438.
912. P 440.

352. As to the conduct of General Krstić while he was in Potocari, several witnesses testified to seeing General Krstić in and around the Potocari compound conferring with other high-ranking military officers,⁹⁵¹ including General Mladic.⁹⁵² It appeared to several of these witnesses that General Krstić, as well as the other officers, were giving orders to the soldiers.⁹⁵³ This conclusion was based on the witnesses observations of the body language and the comings and goings of the officers.⁹⁵⁴ Witness F said that the officers would speak to the soldiers and then the soldiers would go off and perform tasks.⁹⁵⁵ Due to language barriers, however, none of the Dutch Bat personnel could confirm the content of the conversations between General Krstić and the soldiers.

951. Witness F, T. 1517-1518; Kingori, T. 1837-8, 1846; Franken, T. 2065.
952. Witness F, T. 1525; Kingori, T. 1848.
953. Kingori, T.1848, Witness F, T. 1523-1524.
954. Witness F, T. 1556.
955. Witness F, T. 1906, 1910.

353. Nonetheless, it was clear to the UN and Dutch Bat observers that General Krstić and the other high ranking officers present in Potocari were:

Witness F further said that the officers he saw, including General Krstić:

956. Kingori, T. 1887.
957. Witness F, T. 1523-1524. See also Witness F, T. 1517.

464. General Krstić ordered the procurement of buses for the transportation of the Bosnian Muslim population out of Potocari on 12 and 13 July 1995, issued orders to his subordinates about securing the road along which the busses would travel to Kladanj and he generally supervised the transportation operation (para. 347).

[B. Evidentiary comment:]

P.1.2. Evidence of issuing orders prior to displacement.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 148, 530:

148. On 17 July 1995, in the face of growing international condemnation, Major Franken, the Deputy Commander of Dutch Bat, met with a VRS delegation to discuss the situation of wounded Bosnian Muslims in the area of the former enclave. During the meeting, he and the unofficial Bosnian Muslim representative Mr. Mandzic, who was also present, were told to sign a declaration specifying that the transfer of the Bosnian Muslim civilians from Potocari was voluntary, supervised and escorted by UNPROFOR and carried out by the VRS without any irregularities.³¹⁹ When he testified before the Trial Chamber, Major Franken described his forced assent to the declaration as worthless.³²¹ In reality, he said General Mladic ordered the population to go to Kladanj, period.³²² General Krstić, during an interview with the OTP shortly after his arrest, acknowledged that it was a forced movement of the population, although he denied that he was involved.³²³

319. P 47, Franken, T. 2054-2056, 2059-2062, Mandzic, T. 1007-1016.

320. Franken, T. 2062.

321. Franken, T. 2062.

322. Franken, T. 2060.

323. P 399, p. 32. During his testimony before the Trial Chamber, however, General Krstić maintained that the movement of the Bosnian Muslim women, children and elderly from Potocari was an evacuation. Krstić, T. 6217 and 6295-6296.

530. The evacuation took place at the final stage of a campaign conducted to force the population to flee the enclave during a time when VRS troops were actively threatening and injuring the Bosnian Muslim civilians of Srebrenica.

[B. Evidentiary comment:]

P.1.3. Evidence of the perpetrator supervising displacement.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 353:

353. Nonetheless, it was clear to the UN and Dutch Bat observers that General Krstić and the other high ranking officers present in Potocari were:

Witness F further said that the officers he saw, including General Krstić:

956. Kingori, T. 1887.
957. Witness F, T. 1523-1524. See also Witness F, T. 1517.

[B. Evidentiary comment:]

P.1.4. Evidence of the perpetrator procuring transportation for displacement.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 344:

910. P 435, Butler, T. 4827-4828
911. P 404 fn.130; and P 438.
912. P 440.

[B. Evidentiary comment:]

P.2. Evidence of different forms of issuing orders.

P.2.1. Evidence of soldiers performing tasks, after speaking to officers.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 352:

[B. Evidentiary comment:]

P.2.2. Evidence inferred from body language.

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 352:

[B. Evidentiary comment:]

P.2.3. Evidence of the perpetrator holding a supervisory role in an organization committing displacement.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 575:

575. Furthermore, the Accuseds espousal of the Strategic Plan, of which the crimes of deportation and forcible transfer formed an integral part, and the implementation of which he coordinated in his position as President of the ARK Crisis Staff, and his awareness that it could only be implemented through force and fear, demonstrate that he intended to induce the commission of the crimes of deportation and forcible transfer.¹⁴⁷⁹

1479. See VIII.C.1., The Accuseds espousal of the Strategic Plan, supra.

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 344, 352:

344. The Trial Record also indicates that General Krstić played a principal role in organising the buses for the evacuation throughout the day of 12 July 1995. A radio intercept, at 0735 hours on 12 July 1995, shows General Krstić ordering Lieutenant Colonel Krsmanovic, the Drina Corps Transport Officer, to procure 50 buses from Pale, Visegrad, Rogatica, Sokolac, Han Pijesak, Vlasenica, Milici, Bratunac and Zvornik.⁹¹⁰ Later intercepts show Colonel Krsmanovic working throughout the day on the organisation of the buses.⁹¹¹ At 12:10, a conversation was intercepted in which General Krstić ordered Colonel Krsmanovic to start moving the buses.⁹¹² Shortly thereafter, General Mladic was also recorded conversing with an unidentified person about the movement of the buses. That person told General Mladic that the buses had left ten minutes earlier.⁹¹³ At 1305 hours, General Krstić was heard talking to Lt. Colonel ?obot, the Personnel and Mobilisation Officer for the Drina Corps Rear Services. General Krstić asked how many buses were on the road, and ?obot answered, Twenty. General Krstić then asked to be connected to the Vlasenica Brigade and requested Colonel Kosoric, the Drina Corps Chief of Intelligence, who was not there. The evidence shows that Colonel Kosoric was also involved in organising buses for Potocari.⁹¹⁴ General Krstić then told Savo from the Vlasenica Brigade to secure the road up to the tunnelthats where theyll be disembarking.⁹¹⁵ In the context of the events happening contemporaneously with this conversation, the Trial Chamber accepts that General Krstić was speaking of the Bosnian Muslim women, children and elderly from Potocari. Survivors who were amongst those transported from Potocari speak of going through a tunnel along the road from Luke to Kladanj when they left the buses and continued their journey towards Bosnian Muslim held territory on foot.⁹¹⁶ Several other intercepts also appear to connect General Krstić with the organisation of transport for Potocari.⁹¹⁷ These intercepts, showing General Krstićs involvement in the organisation and planning of transferring the civilian population from Potocari, are consistent with the organisational role expected of the Chief of Staff of a Corps engaged in an operation such as the transport of tens of thousands of people out of Potocari.

910. P 435, Butler, T. 4827-4828

911. P 404 fn.130; and P 438.

912. P 440.

913. P 404 fn 132; and P 445.

914. See the discussion supra paras. 143.

915. P 446; Butler, T. 4839-4840.

916. See generally, Butler, T. 4842.

917. See for example, P 359, and Butler T. 4831-4832 (showing General Krstić involved with the issue of fuel); P 440, and P 443 (referring to fuel and stating that Krsto (a shortened name for General Krstić, (See Butler T. 4834) ordered it). P 448 (intercept at 1848 hours on 12 July 1995 between two Main Staff personnel and referring to Krle who the Prosecutions military expert, Butler, believes to be a reference to General Krstić given the context of the conversation. Butler, T. 4848).

Prosecutor v. Duko Tadić, Case No. IT-94-1-T, Judgement (TC), 7 May 1997, para. 459:

459. The accused's presence at the Trnopolje camp when the surviving prisoners were deported to Croatia is significant evidence with regard to the charge in this subparagraph. The question remains, however, whether when the accused was participating in the seizure and selection of non-Serbs, as established above, he knew that the majority of the prisoners who survived would be deported. His presence at the Trnopolje camp when thousands of prisoners were being removed is relevant in this regard, as is his description of himself in his work report as an "earnest SDS member and an enthusiastic supporter of the idea of creating Republika Srpska", both of which embrace the notion of an ethnically pure Serbian territory. Additionally, in his role as SDS President in Kozarac, he must have had knowledge of the SDS programme, which included the vision of a Greater Serbia. Witnesses including Witness AA provided evidence which not only showed that the accused knew of this goal but that he was an active supporter of it. Witness AA testified to an argument about politics that the accused had with Sefik Sivac shortly before the conflict in which the accused said that the area "would be a Greater Serbia, it would be theirs, and that we, Muslims, will not be there, that there will be no place for us there".

[B. Evidentiary comment:]

P.2.4. Evidence of re-issuing superior orders.

A. Legal source/authority and evidence:

Trial of Generaloberst Nickolaus Von Falkenhorst, British Military Court, Brunswick 29^th July 2^nd August, 1946, Law Reports of Trials of War Criminals, UNWCC, Vol.XI, 1949, p.18, 22:

1st Charge : []in an order dated on or about 26th October, 1942, in violation of the laws and usages of war, incited members of the forces under his command not to accept quarter or to give quarter to Allied soldiers, sailors and airmen, taking part in Commando Operations, and, further, in the event of any Allied soldier, sailor or airman taking part in such Commando Operations being captured, to kill them after capture.

[]

[]The defendant received the Commando Order and the Supplentary Order [issued by Hitler] on or about 24th October, 1942, whereupon he re-issued the order himself. []. The re-issuing of the Commando Order formed the subject matter of the first charge against the defendant.

B. Evidentiary comment:

While this case shows the forms the orders can take, it is not directed at displacement and should thus be cited only in combination with an order to displace to establish a possible form of ordering punished under this offence.

P.2.5. Evidence of reading orders to inferiors.

A. Legal source/authority and evidence:

The Abbaye Ardenne Case. Trial of S.S. Brugadefuhrer Kurt Meyer, Canadian Military court, Aurich, Germany, 10h-28^th, December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol.IV, 1948, 101:

[] that in April 1944, a Company Sergeant Major had read to him and the rest of the .H.Q. Company, while on parade, certain secret orders, which the Company had had to sign, to signify that they understood them, and which included instructions that if prisoners were taken they were to be shot after interrogation.

B. Evidentiary comment:

P.2.6. Evidence of a standing order.

A. Legal source/authority and evidence:

Trial of Karl-Heinz Moehle, British Military Court, Hamburg, 15^th to 16^th October, 1946, Law Reports of Trials of War Criminals, UNWCC, Vol. IX, 1949, 75 :

The accused was a Korvetten Kapitan in the German Navey and from September, 1942, to May, 1945, was the officer commanding the 5^th U-boat Flotilla at Kiel. In this capacity it fell upon him to brief U-boat commanders prior to their going out on operational patrols. Part of this briefing though by no means the essential part which was of a technical nature was to acquaint the U-boat commanders with an order originating from the German U-boat Command. This order, called the Laconia Order, was issued on the 17^th September, 1942. It was in the nature of a standing order which was read regularly to the U-boat commanders. They were never given to them in writing. According to the accused the order stated:

The accused agreed that these orders went much further than the previous standing orders which had been issued by the U-boat Command in 1939.

Note: The indictment against the German Major Criminals charged the Commander-in-chief U-boats, Grand Admiral Doenitz, with the issuing of the Laconia Order. However the International Military Tribunal decided that the orders were undoubtedly ambiguous and were not deliberate orders for the killing of shipwrecked survivors.

[B. Evidentiary comment:]

3.2. The displacement involved a civilian population.

P.3. Evidence of a large or sufficient number of persons to form a population.

A. Legal source/authority and evidence:

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 627:

627. The Trial Chamber is satisfied that the events which took place in Prijedor municipality between 30 April and 30 September 1992 constitute an attack directed against a civilian population. The scale of the attack was such that it cannot be characterised as having been directed against only a limited and randomly selected group of individuals. Rather, most of the non-Serb population in the Municipality of Prijedor was directly affected...

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 330:

330. The term population does not require that crimes against humanity be directed against the entire population of a geographic territory or area.⁵⁵⁵...

555. Bagilishema, Judgement, TC, para. 80; Kunarac, Judgement, AC, para. 90.

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, para. 90:

90. As was correctly stated by the Trial Chamber, the use of the word population does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack. It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian population, rather than against a limited and randomly selected number of individuals.

B. Evidentiary comment:

While the above cases refer to attacking a civilian population, the requirement of population is the same.

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

P.4.1. Evidence of persons who are civilians.

A. Legal source/authority and evidence:

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 48-50:

48. [] [a] civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

The Appeals Chamber notes that the imperative in case of doubt is limited to the expected conduct of a member of the military. However, when the latters criminal responsibility is at issue, the burden of proof as to whether a person is a civilian rests on the Prosecution.⁵¹

49. Article 4A(1), (2), (3) and (6) of Geneva Convention III reads:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates ;

(b) that of having a fixed distinctive sign recognizable at a distance;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

50. Article 43 of Additional Protocol I sets out a definition of armed forces covering the different categories of the above-mentioned Article 4 of Geneva Convention III.⁵² Read together, Articles 43 and 50 of Additional Protocol I and Article 4A of Geneva Convention III establish that members of armed forces (other than medical personnel and chaplains) and members of militias or volunteer corps forming part of such armed forces are combatants and cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war.

50. See in particular, G.A. Res. 2444 and 2675.

51. See Blakić Appeal Judgement, para. 111.

52. Commentary on the Additional Protocols, para. 1916.

Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 50:

50. The presence of individual combatants within the population does not change its civilian character.⁹¹ In order to promote the protection of civilians, combatants are under the obligation to distinguish themselves at all times from the civilian population; the generally accepted practice is that they do so by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly. In certain situations it may be difficult to ascertain the status of particular persons in the population. The clothing, activity, age, or sex of a person are among the factors which may be considered in deciding whether he or she is a civilian. A person shall be considered to be a civilian for as long as there is a doubt as to his or her real status.⁹² The Commentary to Additional Protocol I explains that the presumption of civilian status concerns persons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked.⁹³

91. See Article 50(3) of Additional Protocol I. The Commentary to this paragraph notes that:

in wartime condition it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families.However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population. ICRC Commentary, para. 1922.

92. See Article 50(1) of Additional Protocol I.

93. ICRC Commentary, para. 1920.

[B. Evidentiary comment:]

P.4.2. Evidence of the presence of non-civilians the number of which is not large enough to deprive the population of its civilian character.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 552:

552. The attack was clearly directed against the Bosnian Muslim civilian population in the Srebrenica enclave. The Trial Chamber has heard evidence that the 28th Division of the ABiH was located in the Srebrenica enclave and that members of that division were among the men that formed the column.¹⁸⁶⁷ However, The Trial Chamber finds that the estimated number of members of the ABiH present in the enclave and among the column, ranging from about 1,000 soldiers to 4,000 soldiers do not amount to such numbers that the civilian character of the population would be affected, as the vast majority of the people present in the enclave itself and in the column were civilians.¹⁸⁶⁸

1867. See supra section II, C and D.

1868. Pieter Boering estimated that there were about 1,000 soldiers in the enclave. Pieter Boering, T. 884-85, 947, 997. UNMO estimated that there were about 4,000 soldiers in the enclave. Ex. D4/ 1, UNMO, Postscript to Srebrenica, 26 July 1995, which reads: Strength ABiH: not known, however the usual estimate of 10% of the population would give a force of approxi mately 4,000.

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 282, 284:

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 Kordić Appeals Judgement, para 47.

904. Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, para 582; Blakić Trial Judgement, para 214.

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

906. Kordić Appeals Judgement, paras 48-51.

907. Blakić Trial Judgement, para 180. See also Kordić Appeals Judgement, para 53.

284. [] 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.

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

906. Kordić Appeals Judgement, paras 48-51.

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 50:

50. The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.

Prosecutor v. Tihomir Blakić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 115:

115. The Trial Chamber also stated that the presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population. The ICRC Commentary on this point states:

Thus, in order to determine 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.

222. ICRC Commentary, p. 612, para. 1922.

B. Evidentiary comment:

While most of the above cases refer to attacking a civilian population, the requirement concerning the civilian nature of the population is the same.

P.4.3. Evidence of lack of 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 Rectors 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 Rectors Palace as being damaged in October/November.

[B. Evidentiary comment:]

P.4.4. Evidence of not taking direct part in hostilities.

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; Blakić 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:

the protection of civilian and civilian objects provided by modern international law may cease entirely or be reduced or suspended [...] if a group of civilians takes up arms [...] and engages in fighting against the enemy belligerent, they may be legitimately attacked by the enemy belligerent whether or not they meet the requirements laid down in Article 4(A)(2) of the Third Geneva Convention of 1949.⁸⁷

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. 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.

[B. Evidentiary comment:]

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