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Mission impossible? Bringing charges for the crime of attacking civilians or civilian objects before international criminal tribunals

Published online by Cambridge University Press:  19 May 2009

Carolin Wuerzner
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Abstract

Three main arguments may explain why few cases in international (and national) criminal law include charges for attacks against civilians or civilian objects. The law may be not sufficiently clear, there may be a lack of evidence or the selection of military targets may be based on mainly subjective considerations, which make it very hard to establish individual culpability. This article examines some legal and practical reasons for the difficulties the prosecutor faces when trying to charge individuals with such crimes. Although there are few examples, the ICTY has shown that it is generally possible to hold individuals responsible for such crimes.

Type
Direct Participation in Hostilities
Information
International Review of the Red Cross , Volume 90 , Issue 872: Direct participation in hostilities , December 2008 , pp. 907 - 930
Copyright
Copyright © International Committee of the Red Cross 2009

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References

1 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, para. 90, available at www.un.org/icty/pressreal/nato061300.htm (last visited 25 August 2008) (hereinafter NATO Bombing Campaign, ICTY Report).

2 The Committee was established by the Prosecutor to review the 1999 NATO bombing campaign against the Federal Republic of Yugoslavia. Its task was to advise the Prosecutor on whether to initiate investigations into the alleged violations of international humanitarian law (IHL) by NATO, in accordance with Article 18 of the International Criminal Tribunal for the former Yugoslavia (ICTY). It gave its final recommendation to the Prosecutor in September 2000. Ibid.

3 See in particular The Prosecutor v. Dario Kordić and Mario Čerkez (IT-95-14/2), The Prosecutor v. Tihomir Blaškić (IT-95-14), The Prosecutor v. Stanislav Galić (IT-98-29), The Prosecutor v. Pavle Strugar (IT-01-42), The Prosecutor v. Milan Martić (IT-95-11), The Prosecutor v. Mirjan Kupreškić et al. (IT-95-16), The Prosecutor v. Slobodan Milošević (IT-02-54), available at www.icty.org (last visited 14 January 2009).

4 One of the few examples is The Public Committee against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v. The Government of Israel and others, HCJ 769/02, The Supreme Court Sitting as the High Court of Justice, 11 December 2005 (hereinafter the Targeted-Killing case), available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf (last visited 25 August 2008).

5 It claims that ‘at present there exist general principles governing the conduct of hostilities (the so-called “Hague Law”) applicable to international and internal armed conflicts’. ICTY, The Prosecutor v. Dusko Tadić, IT-94-1-AR72, Appeals Chamber, Decision of 2 October 1995 on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 118, available at www.icty.org/x/cases/tadic/acdec/en/51002.htm (last visited 14 January 2009) (hereinafter Tadić Case, AC). The ICRC's Customary Law Study also includes these crimes in Rules 1, 6 and 7. See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I, Rules, ICRC, Cambridge University Press, Cambridge, 2005. ‘Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians’ (p. 3); ‘Rule 6. Civilians are protected against attack unless and for such a times as they take a direct part in hostilities’ (p. 19); ‘Rule 7. The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects’ (p. 25).

6 ICTY, The Prosecutor v. Tihomir Blaškić, IT-95-14-T, Trial Chamber I, Judgement of 3 March 2000, para. 162 (hereinafter Blaškić Case, TC).

7 ICTY, The Prosecutor v. Pavle Strugar, IT-01-42-T, Trial Chamber II, Judgement of 31 January 2005, para. 223 (hereinafter Strugar Case, TC).

8 Fenrick, William J., ‘A first attempt to adjudicate conduct of hostilities offences: Comments on aspects of the ICTY trial decision in the Prosecutor v. Tihomir Blaškić’, Leiden Journal of International Law, Vol. 13 (2000), p. 937.CrossRefGoogle Scholar

9 Blaškić Case, TC, above note 6, para. 170.

10 Cassese, Antonio, ‘On some merits of the Israeli judgment on targeted killings’, Journal of International Criminal Justice, Vol. 5, No. 2 (2007), p. 341.CrossRefGoogle Scholar

11 Tadić Case, AC, above note 5, para. 134.

12 Ibid., para. 94.

13 ICTY, The Prosecutor v. Stanislav Galić, IT-98-29, Trial Chamber, Judgement of 5 December 2003, para. 27 (hereinafter Galić Case, TC). This statement may be misleading, as it can only be considered a grave breach and thus fall under Article 2 of the ICTY if it resulted in death or serious injury. See Additional Protocol I, Art. 85(3).

14 Strugar Case, TC, above note 7, para. 221.

15 Blaškić Case, TC, above note 6, para. 180.

16 If it were charging under Article 2, which criminalizes grave breaches of the Geneva Conventions, this would be necessary.

17 Strugar Case, TC, above note 7, para. 225.

18 ICTY, The Prosecutor v. Kupreškić et al., IT-95-16-T, Trial Chamber II, Judgement of 14 January 2000, para. 522 (hereinafter Kupreškić Case, TC). The latter circumstance is controversial.

19 Galić Case, TC, above note 13, para. 55.

20 See Gerhard Werle, Principles of International Criminal Law, Asser Press, Cambridge, 2005, p. 344.

21 Fenrick, above note 8, p. 943.

22 Strugar Case, TC, above note 7, para. 285.

23 Ibid., para. 287.

24 Galić Case, TC, above note 13, para. 50.

25 Strugar Case, TC, above note 7, para. 287.

26 See Kravetz, Daniela, ‘The protection of civilians in war: the ICTY's Galić case’, Leiden Journal of International Law, Vol. 17 (2004), p. 531.CrossRefGoogle Scholar

27 Galić Case, TC, above note 13, paras. 355–356. In one instance the Chamber held that ‘At a distance of 1100 metres … the perpetrator would have been able to observe the civilian appearance of Zametica, a 48 year old civilian woman, if he was well equipped, or if no optical sight or binoculars had been available. The circumstances were such that disregarding the possibility that the victim was civilian was reckless. Furthermore, the perpetrator repeatedly shot toward the victim preventing rescuers from approaching her. The Trial Chamber concludes that the perpetrator deliberately attacked the victim. The mere fact that the chance of hitting a target deteriorates at the distance of 1100 metres does not change this conclusion.’ Ibid., para. 355.

28 Ibid., para. 522: ‘Although it is convinced that at 6:00 hours in a July morning there is light, given the absence of explicit indications as to the exact level of luminosity at the time of the incident, the Majority cannot exclude the possibility that the person firing at Mejra Jusović failed to notice that she was a middle-aged civilian woman carrying wood. Nonetheless, the Majority is satisfied that the absence of military presence in the area of the incident, which consisted of open space except for three nearby houses, should have cautioned the perpetrator to confirm the military status of his victim before firing.’

29 Ibid., para. 428, ‘Ramiza Kundo acknowledged that from 1992 to 1994 there was fighting and gunfire in the area where she lived but that there were no soldiers, military equipment or military activity in the vicinity at the time of the incident. Given the circumstances of the incident, the occurrence of similar incidents in the vicinity, the positions of the warring parties beneath the hill of Briješko brdo, and evidence that there was no on-going combat activity in the relevant area at the time of the incident, the Majority does not accept the Defence's suggestion that the victim was hit by a stray bullet or a ricochet as a consequence of a regular combat activity.’

30 Strugar Case, TC, above note 7, para. 284.

31 Blaškić Case, TC, above note 6, paras. 509–511.

32 Ibid., para. 390.

33 Ibid., para. 512.

34 Galić Case, TC, above note 13, para. 48.

35 Ibid., para. 50.

36 On the precise meaning of the notion of ‘direct participation in hostilities’, see the ICRC report in this issue of the International Review of the Red Cross.

37 US Department of Defence, Military Commission Instruction No. 2, available at www.defenselink.mil/news/May2003/d20030430milcominstno2.pdf (last visited 25 August 2008).

38 Robertson, Horace B. Jr, ‘The principle of the military objective in the law of armed conflict’, United States Air Force Academy Journal of Legal Studies, Vol. 8 (1997), p. 50.Google Scholar

39 Blaškić Case, TC, above note 6, para. 180.

40 Yves Sandoz, Christoph Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), Martinus Nijhoff, The Hague, 1987, pp. 632–3. The list was drawn up by the ICRC with the help of military experts and presented as a model, subject to modification.

41 Strugar Case, TC, above note 7, para. 278.

42 Possible exceptions are those objects that benefit from special protection, such as dams and hospitals, which should never be used for military actions and thus cannot become military objectives. See Marco Sassòli and Antoine A. Bouvier, How Does Law Protect in War?, Vol. I, ICRC, Geneva, 2nd edn, 2006, p. 201.

43 Marco Sassòli, ‘Legitimate targets of attacks under international humanitarian law’, background paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, 27–29 January 2003, p. 3, available at www.ihlresearch.org/ihl/pdfs/Session1.pdf (last visited 25 August 2008).

44 See ibid. for a further discussion of this subject.

45 Galić Case, TC, above note 13, para. 51.

46 Blaškić Case, TC, above note 6, para. 509.

47 Ibid., para. 510.

48 Galić Case, TC, above note 13, para. 51.

49 The Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-A, Appeals Chamber, Judgement of 17 December 2004, para. 53 (hereinafter Kordić Case, AC).

50 The Targeted-Killing Case, above note 4, para. 40.

51 Blaškić Case, TC, above note 6, para. 180.

52 Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, Cambridge, 2005, p. 152.

53 NATO Bombing Campaign, ICTY Report, above note 1, para. 55.

54 Ibid.

55 Ibid.

56 Strugar Case, TC, above note 7, para. 295.

57 NATO Bombing Campaign, ICTY Report, above note 1, para. 28.

58 For instance, if a person takes up arms to defend him/herself or his/her family – is this always considered as directly participating in hostilities, or could it be individual self-defence, as indicated in the UNSCR 780 Commission of Experts Report (UN Doc. S/1994/674)? For further discussion see Fenrick, William J., ‘The prosecution of unlawful attack cases before the ICTY’, Yearbook of International Law, Vol. 7 (2004), pp. 172–4.Google Scholar

59 See discussion in this paper and in Fenrick, above note 58, p. 157.

60 Galić Case, TC, above note 13, para. 60.

61 Judith Gardam, Necessity, Proportionality and the Use of Force by States, Cambridge Studies in International and Comparative Law, Cambridge, 2004, p. 95. Cf. also Kupreškić Case, TC, above note 18, para. 524.

62 Kupreškić Case, TC, above note 18, para. 524.

63 Galić Case, TC, above note 13, para. 58. This also implies that indiscriminate attacks generally do not need to be disproportionate in order to constitute unlawful attacks.

64 Ibid., paras. 57–58. This was also confirmed by the Appeals Chamber.

65 ICTY, The Prosecutor v. Stanislav Galić, IT-98-29-A, Appeals Chamber, Judgement of 30 November 2006, para. 132 (hereinafter Galić Case, AC).

66 Legality of the Use by a State of Nuclear Weapons in Armed Conflicts, Advisory Opinion, [1996] ICJ Rep. 225, para. 78.

67 ICTY, The Prosecutor v. Milan Martić, IT-95-11-T, Trial Chamber I, Judgement of 12 June 2007, para. 69 (hereinafter Martić Case, TC). ‘In particular, indiscriminate attacks, that is attacks which affect civilians or civilian objects and military objects without distinction, may also be qualified as direct attacks on civilians. In this regard, a direct attack against civilians can be inferred from the indiscriminate character of the weapon used.’

68 Strugar Case, TC, above note 7, para. 280.

69 NATO Bombing Campaign, ICTY Report, above note 1, para. 49.

70 Kupreškić Case, TC, above note 18, para. 526.

71 NATO Bombing Campaign, ICTY Report, above note 1, para. 52.

72 Galić Case, TC, above note 13, para. 58.

73 NATO Bombing Campaign, ICTY Report, above note 1, para. 50.

74 Galić Case, TC, above note 13, para. 58.

75 Ibid., para. 59.

76 Ibid., para. 61.

77 Fenrick, William J., ‘Riding the rhino: attempting to develop usable standards for combat activities’, Boston College International and Comparative Law Review (Winter 2007), p. 108.Google Scholar

78 Although not all the complications described are limited to the crimes of attacking civilians and the civilian population, they must nevertheless be considered, as they add to the difficulty of bringing charges for these crimes. They may also become especially relevant when combined with the legal difficulties inherent in the prosecution of unlawful attacks on civilians and civilian objects, which makes the whole process particularly complicated.

79 Fenrick, William J., ‘Attacking the enemy civilian as a punishable offense’, Duke Journal of Comparative & International Law, Vol. 7 (1997), p. 564.Google Scholar

80 Strugar Case, TC, above note 7, para. 179.

81 Galić Case, TC, above note 13, para. 207 (emphasis added).

82 Strugar Case, TC, above note 7, para. 177. A retired lieutenant-general of the then JNA (Yugoslav Peoples' Army), Pavle Strugar was charged with crimes allegedly committed from 6 to 31 December 1991 during a JNA military campaign in and around Dubrovnik in Croatia in October, November and December 1991. The Indictment alleges that in the course of an unlawful attack by the JNA on the Old Town of Dubrovnik on 6 December 1991, two people were killed, two were seriously wounded and many buildings of historic and cultural significance in the Old Town, including institutions dedicated to, inter alia, religion and the arts and sciences, were damaged.

83 Fenrick, above note 79, p. 565.

84 Cf. Fenrick, ‘The prosecution of unlawful attack cases’, above note 58, pp. 161–3.

85 Ibid., p. 163.

86 Strugar Case, TC, above note 7, para. 96: ‘The Chamber notes that in this report, Admiral Jokić ornamented the story even further by adding that Captain Kovačević acted in the general action plan of the Attack Order of 9 November 1991, which had included the objective of taking Srd, an objective which had not been achieved by 6 December 1991. In the Chamber's finding, these entries were contrived and false. The reports were deliberately deceptive. The attack was not spontaneous on the part of Captain Kovačević on 6 December 1991. The attack was entirely pre-planned and coordinated on 5 December 1991 by 9 VPS staff including Warship-Captain Zec.’

87 Galić Case, TC, above note 13, para. 397, n. 1351. The Indictment alleges that on 4 February 1994 ‘a salvo of three 120 mm mortar shells hit civilians in the Dobrinja residential area. The first landed to the front of a block of flats at Oslobodilaca Sarajeva Street hitting persons who were distributing and receiving humanitarian aid and children attending religious classes. The second and third landed among persons trading at a market in an open area to the rear of the apartment buildings at Mihajla Pupina Street and Oslobodilaca Sarajeva Street. Eight people, including 1 child under the age of 15 years, were killed and at least 18 people, including 2 such children, were wounded. The origin of fire was from VRS-held territory, approximately to the east’, available at www.icty.org/x/cases/galic/tjug/en/gal-tj031205e.pdf (last visited 25 August 2008).

88 ‘Summary findings of the Winograd Commission on Israel's 2006 Lebanon War’, available at http://middleeast.about.com/od/israel/a/me080130.htm (last visited 25 August 2008).

89 Galić Case, TC, above note 13, para. 449.

90 The mens rea of attacking civilians or civilian objects was discussed elsewhere in this paper.

91 Galić Case, TC, above note 13, para. 56.

92 ‘The Hostages Trial: Trial of Wilhelm List and Others’ (Case No. 47), 8 L.Rpts. of Trials of War Criminals 34, 57 (U.N. War Crimes Comm. 1948), para. 69.

93 Strugar Case, TC, above note 7, para. 278.

94 See Galvon, Richard John, ‘The ICC Prosecutor, collateral damage, and NGOs: evaluating the risk of politicized prosecution’, University of Miami International and Comparative Law Review (Fall 2005), pp. 58–9.Google Scholar

95 NATO Bombing Campaign, ICTY Report, above note 1, para. 51.

96 One example is the Strugar case (above note 7, para. 88): Lieutenant-Colonel Jovanović had testified that there had been a meeting (Kupari meeting) with Admiral Jokić before the attack on the Old Town, and that his presence gave him every justification for understanding that the attack was authorized. As stated by the Court, ‘Lieutenant-Colonel Jovanović has a significant personal interest in having Admiral Jokić present at the Kupari meeting. Lieutenant-Colonel Jovanović, curiously, was temporarily appointed to command the 3/5 mtbr on 5 December 1991, the actual commander having been granted temporary leave, and was summarily relieved of his temporary command on the evening of 6 December 1991 on the order of Admiral Jokić. It is Lieutenant-Colonel Jovanović's evidence that he was never told the reason for his removal but that he knew it had nothing to do with the shelling of the Old Town. Admiral Jokić testified that he replaced Lieutenant-Colonel Jovanović because he had given artillery support to Captain Kovačević without his approval.’

97 Wald, Patricia M., ‘Is the United States’ opposition to the ICC intractable?’, Journal of International Criminal Justice, Vol. 2, No. 1 (2004), pp. 23–4.CrossRefGoogle Scholar