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Hardly the Tadić of Targeting: Missed Opportunities in the ICTY's Gotovina Judgments

Published online by Cambridge University Press:  28 September 2015

Roee Ariav
Roee Ariav*
Affiliation:
LLB, LLM, MA (International Relations), Hebrew University of Jerusalem; Ministry of Justice, the State of Israel.
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Abstract

The Gotovina case presented the International Criminal Tribunal for the former Yugoslavia (ICTY) with a unique opportunity to adjudicate on issues connected with the law of targeting and international humanitarian law (IHL) in a criminal context. This opportunity was especially important given the fact that legal issues arising out of complex, intense combat situations have only rarely been adjudicated. Although Gotovina was not formally charged with carrying out unlawful attacks on civilians, attacks by Croatia on four towns over the course of ‘Operation Storm’ were the focus of the proceedings. This led both Trial and Appeal Chambers to deal with issues related to the law of targeting such as classification of military objectives, proportionality, and the intent behind an attack. This article argues that the judges failed to take full advantage of the opportunity to discuss these issues. They failed consistently to articulate the legal reasoning behind their findings; they failed to explain the branch of law on which any of their substantive determinations were based; and, perhaps most importantly, they did not explain the relationship between IHL and criminal law and how IHL is to be applied in a courtroom.

Keywords

ICTYIHLtargetinginternational criminal lawimpact analysis
Type
Articles
Information
Israel Law Review , Volume 48 , Issue 3 , November 2015 , pp. 329 - 355
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2015 

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References

1 The law of targeting is part of the law regulating the conduct of hostilities under IHL. It governs the use of force by belligerents during armed conflict. The main issues regulated by this body of law are distinction in targeting, means and methods of attack, and proportionality. See, in general, Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, Cambridge University Press 2010); APV Rogers, Law on the Battlefield (3rd edn, Manchester University Press 2012); Ian Henderson, The Contemporary Law of Targeting (Martinus Nijhoff 2009). Certain violations of this body of law may lead to individual criminal responsibility: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I), art 85; Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute), art 8.

2 For a criticism of some inaccuracies prevalent in the discourse on the law of targeting see Schmitt, Michael N and Widmar, Eric W, ‘On Target: Precision and Balance in the Contemporary Law of Targeting’ (2014) 7 Journal of National Security Law and Policy 379Google Scholar.

3 Harm to civilians does not, in and of itself, indicate that a crime has been committed, or even that a violation of IHL has occurred. As will be explained below, the law recognises that, unfortunately, a lawful attack may result in harm to civilians and civilian objects. The law prohibits the intentional targeting of civilians, and the targeting of military objectives in a way that is expected to cause excessive civilian casualties and damage to civilian objects. See Section 3 for a more nuanced discussion.

4 For example, Amnesty International, ‘Nato/Federal Republic of Yugoslavia “Collateral Damage” or Unlawful Killings? Violations of the Laws of War by Nato during Operation Allied Force’, 5 June 2000, EUR 70/018/2000; Human Rights Watch, ‘Civilian Deaths in the NATO Air Campaign’, February 2000; Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq (Human Rights Watch 2003); Human Rights Watch, Troops in Contact: Airstrikes and Civilian Deaths in Afghanistan (Human Rights Watch 2008); Human Rights Watch, Unacknowledged Deaths: Civilian Casualties in NATO's Air Campaign in Libya (Human Rights Watch 2012).

5 For example, Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2/1, 23 November 2006, UN Doc No A/HRC/3/2; Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25 September 2009, UN Doc No A/HRC/12/48 (Goldstone Report); Report of the International Commission of Inquiry on Libya, 8 March 2012, UN Doc No A/HRC/19/68 (Libya Report). See also Council of the European Union, ‘Report of the Independent International Fact-Finding Mission on the Conflict in Georgia’, September 2009.

6 Wuerzner, Carolin, ‘Mission Impossible? Bringing Charges for the Crime of Attacking Civilians or Civilian Objects before International Criminal Tribunals’ (2008) 90 International Review of the Red Cross 907, 908CrossRefGoogle Scholar.

7 These include, most notably, the following: ICTY, Prosecutor v Tihomir Blaškić, Judgment, IT-95-14-T, Trial Chamber, 3 March 2000; ICTY, Prosecutor v Tihomir Blaškić, Judgment, IT-95-14-A, Appeals Chamber, 29 July 2004; ICTY, Prosecutor v Pavle Strugar, Judgment, IT-01-42-T, Trial Chamber II, 31 January 2005 (Strugar Trial Judgment); ICTY, Prosecutor v Pavle Strugar, Judgment, IT-01-42-A, Appeals Chamber, 17 July 2008; ICTY, Prosecutor v Milan Martić, Judgment, IT-95-11-T, Trial Chamber I, 12 June 2007; ICTY, Prosecutor v Milan Martić, Judgment, IT-95-11-A, Appeals Chamber, 8 October 2008; ICTY, Prosecutor v Stanislav Galić, Judgment, IT-98-29-T, Trial Chamber I, 5 December 2003 (Galić Trial Judgment); ICTY, Prosecutor v Stanislav Galić, Judgment, IT-98-29-A, Appeals Chamber, 30 November 2006; ICTY, Prosecutor v Zoran Kupreškić and Others, Judgment, IT-95-16-T, Trial Chamber, 14 January 2000; ICTY, Prosecutor v Zoran Kupreškić and Others, Judgment, IT-95-16-A, Appeals Chamber, 23 October 2001; ICTY, Prosecutor v Dario Kordić and Mario Čerkez, Judgment, IT-95-14/2-T, Trial Chamber, 26 February 2001; ICTY, Prosecutor v Dario Kordić and Mario Čerkez, Judgment, IT-95-14/2-A, Appeals Chamber, 17 December 2004 (Kordić Appeals Judgment); ICTY, Prosecutor v Jadranko Prlić and Others, Judgment, IT-04-74-T, Trial Chamber III, 29 May 2013.

8 See Fenrick's prediction about the ICTY Prosecutor's reluctance to introduce cases in the ‘grey area’, thus preventing the development of the law: Fenrick, William J, ‘Riding the Rhino: Attempting to Develop Usable Legal Standards for Combat Activities’ (2007) 30 Boston College International and Comparative Law Review 111Google Scholar, 137. Currently, the ICC is investigating or prosecuting nine situations (Democratic Republic of Congo, Uganda, Kenya, Libya, Sudan, Mali, Côte d'Ivoire and two situations in the Central African Republic). None of these situations raise significant targeting issues. The situation in Libya could potentially have raised such questions had the Office of the Prosecutor (OTP) sought to investigate acts committed by NATO forces. However, the OTP is currently focusing on the actions of the former Qaddafi regime. The OTP is also conducting nine preliminary examinations: Afghanistan, Honduras, Columbia, Georgia, Guinea, Nigeria, Ukraine, Iraq and Palestine. See generally (for eight of the situations) OTP, ‘Report on Preliminary Examination Activities 2014’, 2 December 2014, http://www.icc-cpi.int/iccdocs/otp/OTP-Pre-Exam-2014.pdf (OTP 2014 Report). Of these nine situations, two involve targeting issues to a certain extent, although it is unlikely that the Prosecutor will decide to conduct an investigation relating to those issues. The situation in Afghanistan could potentially have involved NATO strikes on the territory of Afghanistan, but in the OTP's 2013 report the Prosecutor indicated that she will no longer examine those strikes: OTP, ‘Report on Preliminary Examination Activities 2013’, November 2013, 7–14, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20Examinations/OTP%20-%20Report%20%20Preliminary%20Examination%20Activities%202013.PDF (OTP 2013 Report). The situation in Georgia could potentially have included questions related to the law of targeting, given that the OTP 2013 Report listed ‘[u]nlawful attacks directed against the civilian population and civilian objects’ as one of the alleged crimes. However, the OTP 2014 Report makes clear that only non-targeting related crimes are potentially relevant for further investigation: ibid 33–37. It remains to be seen whether the Prosecutor will open investigations into these situations and, if so, which cases will be selected for prosecution.

In fact, perhaps the preliminary examination most relevant for targeting issues was closed in June 2014 by the OTP: the situation in Korea involved an attack on a South Korean military ship and a single shelling event by North Korea on a South Korean island. The OTP decided to close the preliminary examination after it found no reasonable basis to believe that crimes within the jurisdiction of the ICC were committed; for the OTP's decision, see Office of the Prosecutor, ‘Situation in the Republic of Korea – Article 5 Report’, June 2014, http://www.icc-cpi.int/iccdocs/otp/SAS-KOR-Article-5-Public-Report-ENG-05Jun2014.pdf (Korea Report). Moreover, considering the pace of ICC proceedings, even if the OTP were to decide to proceed with a case involving issues of targeting, it would take years before any final judgment would be handed down.

9 ICTY, Prosecutor v Ante Gotovina, Ivan Čermak and Mladen Markač, Judgment, IT-06-90-T, Trial Chamber I, 15 April 2011 (Gotovina Trial Judgment); ICTY, Prosecutor v Ante Gotovina and Mladen Markač, Judgment, IT-06-90-A, Appeals Chamber, 16 November 2012 (Gotovina Appeals Judgment).

10 Huffman, Walter B, ‘Margin of Error: Potential Pitfalls of the Ruling in The Prosecutor v. Ante Gotovina’ (2012) 211 Military Law Review 1Google Scholar, 2; Laurie Blank, ‘Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment's Impact on Effective Implementation and Enforcement of International Humanitarian Law’, Emory Public Law Research Paper No 12–186: ‘The case is apparently the first – and likely the only – case assessing complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault’. Corn, Geoffrey S and Corn, Gary P, ‘The Law of Operational Targeting: Viewing the LOAC through an Operational Lens’ (2011) 47 Texas International Law Journal 337Google Scholar, 340: ‘the complex nature of the targeting situations that existed during the attack on Knin and the reliance on these targeting decisions as the focal point of criminal responsibility makes this cases profoundly significant in the development of targeting law. Indeed, no other decision by the ICTY has addressed such a complex targeting situation’.

11 Corn and Corn, ibid 364; Huffman, ibid 6.

12 ICTY, Prosecutor v Ante Gotovina and Mladen Markač, Application and Proposed Amicus Curiae Brief concerning the 15 April 2011 Trial Chamber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks during Operation Storm, IT-06-90-A, Appeals Chamber, 13 January 2012 (Amicus Curiae Brief). It appears that the experts referred to Tadić since it is considered to be one of the most important judgments ever given by the ICTY. It is perhaps the ICTY case that has had the most effect on the development of international law: Swart, Mia, ‘Tadić Revisited: Some Critical Comments on the Legacy and the Legitimacy of the ICTY’ (2011) 3 Goettingen Journal of International Law 986Google Scholar, 987.

13 Gotovina Trial Judgment (n 9) [2]; Corn and Corn (n 10) 346.

14 Huffman (n 10) 5.

15 ICTY, Prosecutor v Radislav Krstic, Judgment, IT-98-33-T, Trial Chamber, 2 August 2001. For a suggestion that the Srebrenica genocide is linked to Operation Storm, see an interview with Phayam Akvan, one of Gotovina's defence counsellors: BBC Hard Talk, ‘Interview with Phayam Akvan’, 26 September 2013 from 17:00, https:// www.youtube.com/watch?v=msJfpy3kkpY.

16 R Craig Nation, War in the Balkans, 1991–2002 (Strategic Studies Institute 2003) 189–91.

17 Huffman (n 10) 7; Corn and Corn (n 10) 346.

18 Gotovina Trial Judgment (n 9) [1711]. These numbers are surprisingly low considering the scale of Operation Storm.

19 ibid [1710]. Some have quoted much higher numbers: Corn and Corn (n 10) 347, for example, refer to 150,000 or more.

20 Knin, the capital of the Republic of Serbian Krajina, located in the southern part of the Republic, was the town most heavily attacked during the first stages of the operation: see Gotovina Trial Judgment (n 9) [1909], [1916], [1928], [1939] establishing that no fewer than 900 shells were fired at Knin, 150 on Benkovac, 150 on Gračac and at least five on Obrovac.

21 ICTY Press Release, ‘Transfer of Ante Gotovina to the Tribunal’, CVO/MO/1034e, 10 December 2005, http://www.icty.org/sid/8497.

22 Ivan Čermak (Commander of the Knin Garrison) and Mladen Markač (Assistant Minister of the Interior and Commander of the Special Police of the Ministry of the Interior of Croatia during the relevant period). This article focuses on Gotovina because he was the person most responsible for targeting decisions during the operation.

23 Gotovina Trial Judgment (n 9) [7].

24 These crimes are the intentional directing of an attack against the civilian population, and indiscriminate attacks against the civilian population. The ICTY refers to them as ‘unlawful attacks on civilian objects’ constituting a serious violation of the laws and customs of war under art 3 of the ICTY Statute: Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (3 May 1993), adopted by the Security Council in Resolution 827 (25 May 1993); Fenrick (n 8) 126–27, 134; Fenrick, William J, ‘Attacking the Enemy Civilian as a Punishable Offense’ (1996) 7 Duke Journal of Comparative and International Law 539Google Scholar, 561; Hector Olásolo, Unlawful Attacks in Combat Situations (Martinus Nijhoff 2008).

25 According to the TC the crime of deportation is ‘the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law’: Gotovina Trial Judgment (n 9) [1738].

26 ICTY, Prosecutor v Ante Gotovina, Ivan Čerman and Mladen Markač, Prosecution's Public Redacted Final Trial Brief, IT-06-90-T, Trial Chamber, 2 August 2010, [124], [483]. The crime of deportation is included in the ICTY Statute (n 24) art 5(d). During the appeal proceedings, the prosecution argued that it was artillery attacks in general that were the actus reus of deportation, whether indiscriminate or not: Gotovina Appeals Judgment (n 9) [111]. This was a deviation from previous positions adopted by the ICTY OTP, according to which only acts unlawful under IHL may be considered as elements of crimes against humanity: Fenrick (n 8) 134; Fenrick, William J, ‘The Prosecution of Unlawful Attack Cases before the ICTY’ (2004) 7 Yearbook of International Humanitarian Law 157CrossRefGoogle Scholar; Rogier Bartels, ‘Discrepancies between International Humanitarian Law on the Battlefield and in the Courtroom: The Challenges of Applying International Humanitarian Law during International Criminal Trials’ in Mariëlle Matthee, Brigit Toebes and Marcel Brus (eds), Armed Conflict and International Law: In Search of the Human Face (Asser Press 2013) 366.

27 Gotovina Appeals Judgment (n 9) [81]–[82].

28 ibid [83]. See also Gotovina Trial Judgment (n 9) [1894]–[98] reviewing other evidence and ending with: ‘The Trial Chamber will further evaluate these reports in light of its findings on the locations of impacts in Knin’. Perhaps the main source of uncertainty and contention was Gotovina's order to his artillery forces at the beginning of Operation Storm to ‘focus on providing artillery support to the main forces in the offensive operation through powerful strikes against the enemy's front line, command posts, communications centres, artillery firing positions and by putting the towns of … Knin, Benkovac, Obrovac and Gračac under artillery fire’: Gotovina Appeals Judgment (n 9) [70]. According to the Trial Chamber, this order could refer either to indiscriminate attacks against civilians, treating the towns as a whole as targets (Gotovina Trial Judgment (n 9) [1172], [1893]) or to attacks against pre-approved military targets within those Four Towns (ibid [1173], [1188], [1893]).

29 Gotovina Trial Judgment (n 9) [1181]–[83]: ‘At the meeting, Gotovina emphasized that the operation was aimed only at enemy soldiers … He further stressed that there was a shortage of ammunition, so the artillery needed to be as precise as possible and could only target the military objectives that provided the highest military advantages’.

30 ibid [1898]. There is some disagreement as to whether the crime of intentionally directing attacks against civilian objects requires a certain result (harm to civilians). While art 85(3) of Additional Protocol I requires such a result (‘and causing death or serious injury to body or health’), the ICC Statute ((n 1) art 8(2)(b)(i)) does not. For more views, Kordic Appeals Judgment (n 7) [55]–[68]; Fenrick (n 8) 133; Dinstein (n 1) 125.

31 Gotovina Trial Judgment (n 9) [1909], [1916], [1928], [1939]; Huffman (n 10) 12. See, however, defence expert Corn's claim that 1,057 shells were fired during the operation: Corn and Corn (n 10) 378.

32 Huffman (n 10) 12.

33 Gotovina Trial Judgment (n 9) [1909].

34 ibid [1898]: ‘Evaluating all of this evidence, the Trial Chamber considers it a reasonable interpretation of the evidence that those artillery projectiles which impacted within a distance of 200 metres of an identified artillery target were deliberately fired at that artillery target’.

35 Of 154 shells the impact location of which was established at trial, and of over 1,200 shells fired at the Four Towns during the operation.

36 Huffman (n 10) 12. Defence expert Corn claims that approximately 57 shells landed further than 200 metres from any military objective identified by the Court: Corn and Corn (n 10) 378.

37 Gotovina Trial Judgment (n 9) [1911] for Knin; [1923] for Benkovac; [1935] for Gračac; [1943] for Obrovac.

38 ibid [1745]–[46].

39 ibid [2310]–[11]: ‘Based on the foregoing, the Trial Chamber finds that the crimes of deportation and forcible transfer were central to the joint criminal enterprise … unlawful attacks against civilians and civilian objects, as the crime against humanity of persecution, were also intended and within the purpose of the joint criminal enterprise’. According to the TC, the elements of a JCE include: ‘(ii) A common objective which amounts to or involves the commission of a crime provided for in the Statute. The first form of the JCE exists where the common objective amounts to, or involves the commission of a crime provided for in the Statute. … (iii) Participation of the accused in the objective's implementation. … the accused's conduct may satisfy this element if it involved procuring or giving assistance to the execution of a crime forming part of the common objective’: ibid [1953].

40 ibid [2619]–[20]. Gotovina was convicted of persecution, deportation, murder and inhumane acts as crimes against humanity, and plunder, wanton destruction, murder and cruel treatment as violations of the laws and customs of war. It should be noted that the war crimes address acts committed after Operation Storm and do not involve any targeting issues. Gotovina was acquitted of count three – inhumane acts (forcible transfer) as a crime against humanity.

41 ibid.

42 Gotovina Appeals Judgment (n 9) [61].

43 ibid [77], [82].

44 ibid [91]–[92], [96]–[97].

45 ibid [105]–[10].

46 ibid [158].

47 ibid, Dissenting Opinion of Judge Carmel Agius, [45]–[46] (Agius Dissent); Dissenting Opinion of Judge Fausto Pocar, [15]–[18] (Pocar Dissent).

48 ibid [39]; Agius Dissent, ibid [91]. It is important to note that the TC judges did not feel that they could convict Gotovina without the impact analysis.

49 Although the Trial Judgment was overturned on appeal, it is still extremely valuable from a law of targeting perspective because of the aforementioned paucity of relevant jurisprudence on some of the issues. Moreover, the AC did not address all of the issues contained in the Trial Judgment; therefore, some of the Trial Judgment's findings remain unchanged even after the appeal.

50 For a thorough overview see Dinstein (n 1) 33–263.

51 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, St Petersburg, 1868, 138 CTS (St Petersburg Declaration).

52 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1966] ICJ Rep 226, [78]; Fenrick (n 24) 541.

53 Dinstein (n 1) 89–90, 124; Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005, revised 2009) (ICRC Study) rr 1, 7. It is important to remember that the ICRC Study, while a very impressive and important scholarly work, has been criticised both for its methodology and regarding specific rules within the Study; thus, one cannot simply assume that the ICRC Study is always an accurate reflection of customary law: William H Boothby, The Law of Targeting (Oxford University Press 2012) 40; Bellinger, John B III and Haynes, William J II, ‘A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law’ (2007) 89 International Review of the Red Cross 443Google Scholar; Dinstein, Yoram, ‘The ICRC Customary International Humanitarian Law Study’ (2006) 82 International Law Studies US Naval War College 99Google Scholar; Parks, W Hays, ‘The ICRC Customary Law Study: A Preliminary Assessment’ (2005) 99 American Society of International Law Proceedings 208Google Scholar; Tamás Hoffmann, Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007); Robert Cryer, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study’ (2006) 11 Journal of Conflict & Security Law 239. This article will refer to the ICRC Study only in connection with rules regarding which its determinations are beyond dispute.

54 For example, Additional Protocol I (n 1) art 85(3); ICC Statute (n 1) art 8(2)(b)(i), 8(2)(e)(i).

55 This article will focus mainly on the targeting of objects. Regarding persons, there are several other categories of person who may be lawfully attacked: eg, militias or volunteer corps under some conditions, and levée en masse: Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135, art 4. For further elaboration regarding some of the questions connected with the targeting of persons see Neils Meltzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (International Committee of the Red Cross 2009); Michael N Schmitt, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’ (2010) 1 Harvard National Security Journal 5; Schmitt, Michael N, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42 New York Journal of International Law and Politics 697Google Scholar; Watkin, Kenneth, ‘Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guidance’ (2010) 42 New York Journal of International Law and Politics 641Google Scholar.

56 Michael N Schmitt, ‘Targeting in Operational Law’ in Terry D Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (Oxford University Press 2011) para 16.027: ‘it is the intent to attack civilians that is the sine qua non of the rule, not the fact that civilians are actually harmed’.

57 Additional Protocol I (n 1) art 52(2): ‘military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’.

58 Fenrick (n 24) 542–43; Fenrick (n 8) 121; Boothby (n 53) 70–71.

59 State of Israel, ‘The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects’, July 2009, para 101 (Israel Gaza Report). The United States (US) agrees that every object that fulfils the art 52 criteria is a military objective. However, it supports a broader definition and views additional objects which form part of the ‘war-sustaining’ effort as military objectives: see Parks, W Hays, ‘Air War and the Law of War’ (1990) 32 Air Force Law Review 1Google Scholar, 135; Fenrick (n 8) 121; Dinstein (n 1) 95; Schmitt and Widmar (n 2) 394.

60 Dinstein (n 1) 91.

61 Wuerzner (n 6) 916; Fenrick (n 24) 543; Fenrick (n 8) 121–22; Wright, Jason D, ‘“Excessive” Ambiguity: Analysing and Refining the Proportionality Standard’ (2012) 94 International Review of the Red Cross 819CrossRefGoogle Scholar, 822.

62 However, it is often noted that fulfilling one of the tests is almost always an indication that the other test is fulfilled as well: Dinstein (n 1) 91; Schmitt and Widmar (n 2) 392.

63 Additional Protocol I (n 1) art 57. Generally speaking, the obligation to take precautions before an attack is considered to be part of customary international law: ICRC Study (n 53) r 15; Boothby (n 53) 72. However, certain disagreements exist over the exact scope and details of the specific precautions required; for the ICRC's position, see ICRC Study (n 53) rr 16–21 and Boothby's comments in Boothby (n 53) 72–75.

64 ICRC Study (n 53) r 14.

65 ICC Statute (n 1) art 8(2)(b)(iv). See, however, Bartels’ argument that violations of the principle of proportionality are not considered to be a customary war crime, or at least were not considered to be so at the time of the Yugoslavian conflict: Rogier Bartels, ‘Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials’ (2013) 46 Israel Law Review 271, 282–83. It is also worth noting that the ICC Statute recognises this war crime only in the context of international armed conflict.

66 Additional Protocol I (n 1) art 57(a)(ii).

67 Bartels (n 26) 340–55.

68 ibid 341.

69 Fenrick (n 8) 134; Bartels (n 26) 366.

70 Robert Cryer and others, An Introduction to International Criminal Law and Procedure (2nd edn, Cambridge University Press 2010) 272. As early as 1944, Lauterpacht criticised the notion that every violation of IHL should be considered a war crime: Lauterpacht, Hersch, ‘The Law of Nations and the Punishment of War Crimes’ (1944) 21 British Yearbook of International Law 58Google Scholar, 77.

71 Bartels (n 26) 346.

72 ibid 345.

73 For a more comprehensive analysis of this point see Bartels (n 26) 345–49.

74 Additional Protocol I (n 1) art 50(1).

75 Galić Trial Judgment (n 7) [55].

76 See Section 2.2.

77 Gotovina Trial Judgment (n 9) [1755]; Gotovina Appeals Judgment (n 9) [114]. Traditionally, the ICTY would not accept that acts lawful under one branch of law could constitute international crimes under a different branch of law. Note that this is not a factual determination, stating that lawful artillery attacks cannot factually compel people to leave their homes, but rather a legal-policy determination that the law will not recognise the effects of lawful acts as constituting elements of a crime: Fenrick (n 8) 134; Bartels (n 26) 366. However, note the footnote in the Appeals Judgment stating that ‘[t]he Appeals Chamber notes that this analysis is limited to the specific factual findings of the Trial Chamber, and does not address the broader question of whether attacks on lawful military targets could ever constitute a basis for ascribing criminal liability’: Gotovina Appeals Judgement (n 9) fn 330.

78 For a general overview of the concept of dual-use targets, see ICTY, ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia’, 13 June 2000, paras 51, 72 (NATO Bombings Report); 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, MA (US), 27–29 January 2003, 7, http://hpcrresearch.org/sites/default/files/publications/Session1.pdf.

79 Gotovina Trial Judgment (n 9) [1182].

80 ibid [1899].

81 ibid: ‘the Trial Chamber is satisfied that firing at the police station in Knin offered a definite military advantage’. See also ibid [1175], [1213], [1380], [1381], [1918], [1929], [1939]. The discussion in other contexts addressed the policemen themselves, as opposed to police stations: Goldstone Report (n 5) paras 393–438; Israel Gaza Report (n 59) 238–48.

82 Gotovina Trial Judgment (n 9) [1902]: ‘the HV may have determined in good faith that firing at this field would have offered a definite military advantage’.

83 ibid [1931]: ‘Kronings and Corn testified that while firing artillery projectiles at an intersection would not destroy it so as to render it unusable, it could damage it and, at least temporarily, deny the opposing military forces use of the area. … Disrupting or denying the SVK's ability to make use of these intersections and move through Gračac could offer a definite military advantage. Under these circumstances … the Croatian forces may have determined in good faith that firing at these intersections would have offered a definite military advantage’.

84 eg, ibid [1899], [1939].

85 Francoise Hampson, ‘The Mystery of Tests and Triggers: Does It All Boil Down to the Standard of Proof?’, speech given at the 8th Annual Minerva/ICRC International Conference on International Humanitarian Law, 24 November 2013, https://www.youtube.com/watch?v=nCIWEfGb_CI#t=1045.

86 See, eg, Strugar Trial Judgment (n 7).

87 In some parts of the Gotovina Trial Judgment, it appears that the TC lays the burden of proving whether an object is a military object on the prosecution. However, it does so only implicitly and inconsistently, and without any discussion: see, eg, Gotovina Trial Judgment (n 9) [1931].

88 Gotovina Trial Judgment (n 9) [1910].

89 ibid. It is not clear from the Trial Judgment exactly what this second location is, but it is analysed as part of the attack on Martić's residence.

90 ibid; Corn and Corn (n 10) 379.

91 Gotovina Trial Judgment (n 9) [1899] (emphasis added).

92 ibid.

93 ibid [1193]. This reference to Martić's residence is also echoed in an article by defence expert Corn: Corn and Corn (n 10) 377–78.

94 Gotovina Trial Judgment (n 9) [1907]. At least some evidence presented at the trial indicates that Martić was indeed in his apartment when it was attacked; in fact, Martić himself said so in an interview given after the war. Interestingly, Martić claimed in that interview that two projectiles passed near his apartment, and that he survived the attack only by chance: ibid [1315].

95 Agius Dissent (n 47) [36]. The Trial Judgment contains a similar reference: ibid [1910].

96 Agius Dissent (n 47) [44].

97 This ambiguity is reflected even in the writings of knowledgeable scholars like Bartels, who refers in the same paragraph to both Martić and his residence as the military targets. Bartels even explains in a footnote that Martić's residence meets the criteria listed in art 52: Bartels (n 65) 290 (including fn 104).

98 Gotovina Trial Judgment (n 9) [1174]–[1175]: ‘Although the presence of the RSK commander in chief could make his residence a military target, the likelihood of killing the commander by artillery was very low … Nonetheless, assuming that the commander was in Knin, the HV artillery attack will have excluded most of his movements, having a suppressing effect’.

99 ‘Nato Hits Milosevic's House’, BBC News, 22 April 1999, http://news.bbc.co.uk/2/hi/europe/325596.stm; ‘Milosevic Home a Legitimate Target, British Say’ CNN, 22 April 1999, http://edition.cnn.com/WORLD/europe/9904/22/kosovo.02.

100 ‘Libya: NATO Planes Target Gaddafi's Tripoli Compound’, BBC News, 25 May 2011, http://www.bbc.co.uk/news/world-africa-13538436; Harriet Sherwood, ‘Gaddafi Compound Hit in NATO Attack’, The Guardian, 25 April 2011, http://www.theguardian.com/world/2011/apr/25/gaddafi-compound-hit-nato-attack.

101 Scott Stearns, ‘Ouattara Forces Attack Gbagbo Home in Ivory Coast’, Voice of America, 5 April 2011, http://www.voanews.com/content/ouattara-forces-attack-gbagbo-home-in-ivory-coast-119313329/137560.html; ‘Ivory Coast: Ouattara Forces Storm Gbagbo Residence, BCC News, 6 April 2011, http://www.bbc.co.uk/news/world-europe-12985638.

102 An attack in such circumstances raises a number of legal questions that will not be discussed further in this article. For example, does the military advantage sought require that Martić actually be in his apartment during the attack? Does the mere fact of an attack on the apartment suffice to harass Martić even if he is not present at the time of the attack? Moreover, this practice of attacking the residence of the most senior leaders of the opposing belligerent raises the question of whether the same legal justification would apply also to lower-ranked commanders.

103 See Section 4.2.

104 Schmitt and Widmar (n 2) 401: ‘The level of legal (as distinct from operational or policy) certainty necessary for target identification is unsettled’.

105 Additional Protocol I (n 1) arts 50, 52(3), 57.

106 Gotovina Trial Judgment (n 9) [1907]–[08], [1921], [1933], [1941].

107 Corn and Corn (n 10) 379: ‘Ultimately the Trial Chamber accepted the defence position that the apartment qualified as a lawful object of attack because General Gotovina expected Martić to be located there’.

108 Gotovina Trial Judgment (n 9) [1907].

109 Bartels (n 26) 365.

110 Gotovina Trial Judgment (n 9) [1910] fn 935.

111 ibid [1910].

112 Gotovina Appeals Judgment (n 9) [82].

113 Note the relevant part of the AC analysis on this point: ‘Especially when considered in the context of the Trial Chamber's errors with respect to the Impact Analysis, this finding of a disproportionate attack was thus of limited value in demonstrating a broader indiscriminate attack on civilians in Knin’: ibid; see also Bartels (n 65) 291.

114 Amicus Curiae Brief (n 12) [24]–[27]; Bartels (n 65).

115 Additional Protocol I (n 1) art 57; Dinstein (n 1) 130.

116 In the oral hearing during the appeal, the prosecution argued that the entire artillery campaign was disproportionate. Since this claim did not appear in the written submission, it was not discussed by the AC: Gotovina Appeals Judgment (n 9) [20].

117 Gotovina Trial Judgment (n 9) [1910] fn 935: ‘The Trial Chamber has considered the targeting of the two locations where the HV believed Martić to have been present as an indicative example of a disproportionate attack during the shelling of Knin. The Trial Chamber does not pronounce on the proportionality of the HV's use of artillery against other targets in Knin on 4 and 5 August 1995’. Bartels considers this decision by the TC to be ‘curious’: Rogier Bartels, ‘Prlić et al.: The Destruction of the Old Bridge of Mostar and Proportionality’, EJIL:Talk!, 31 July 2013, http://www.ejiltalk.org/prlic-et-al-the-destruction-of-the-old-bridge-of-mostar-and-proportionality.

118 Korea Report (n 8).

119 For an acknowledgement of the difficulties involved in conducting a criminal trial on proportionality see ibid 21–24.

120 Fenrick (n 8) 125; Olásolo (n 24) 159; Bartels (n 65) 271–72. Jens David Ohlin, ‘Why the Gotovina Appeal Matters’, EJIL:Talk!, 21 December 2012, http://www.ejiltalk.org/why-the-gotovina-appeals-judgment-matters. After the Gotovina judgment, the Prlić judgment concluded that some attacks were disproportionate and therefore illegal. Similar to the Gotovina judgments, the proportionality analysis was not made in the context of a specific and explicit count of disproportionate attack but rather as part of the discussion of other counts. In Prlić, it was a war crime of ‘extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly’: Prlić (n 7) [1583], [1587]. At the time of writing, the Prlić case is pending appeal.

121 Bartels (n 65) 282–83. It is interesting to note in this regard that during negotiations for the ICC Statute (n 1), states could only agree to establish a crime of disproportionate attack in international armed conflict. The absence of a crime of disproportionate attack in non-international armed conflict has already had practical implications: it led the ICC Prosecutor to close part of a preliminary examination into attacks carried out by international forces in Afghanistan: OTP 2013 Report (n 8) 47.

122 Fenrick (n 26) 176; NATO Bombings Report (n 78) paras 52, 78.

123 Fenrick (n 24) 547–48.

124 Fenrick (n 8) 124: ‘the actual results of the attack may assist in inferring the intent of the attacker, but what counts is what was in the mind of the decision maker when the attack was launched’.

125 Gotovina Appeals Judgment (n 9) [82].

126 Gotovina Trial Judgment (n 9) [1366].

127 Dinstein (n 1) 132.

128 Fenrick (n 8) 131. Fenrick is making a similar argument concerning an intentional attack on civilian objects that caused no actual damage. As a purely practical matter, however, it is unlikely that this violation would ever be prosecuted.

129 Gotovina Appeals Judgment (n 9) [61].

130 Agius Dissent (n 47) [11]; Pocar Dissent (n 47) [10]–[11].

131 Marko Milanovic, ‘The Gotovina Omnishambles’, EJIL:Talk!, 18 November 2012, http://www.ejiltalk.org/the-gotovina-omnishambles; Ohlin (n 120).

132 These include such factors as the distance of the attacking forces from the targets, the weather at the time of the attack, and so on. See the TC's contention that it is missing relevant factors: Gotovina Trial Judgment (n 9) [1898]. In this regard see also Amicus Curiae Brief (n 12) [22] and annexed Statements of Artillery Experts.

133 This brief was rejected by the AC on technical grounds because one of the amici was a defence expert during trial: ICTY, Prosecutor v Ante Gotovina and Mladen Markač, Application and Decision on Application and Proposed Amicus Curiae Brief, IT-06-90-A, Appeals Chamber, 14 February 2012 [12].

134 Amicus Curiae Brief (n 12) [16A].

135 Under international law, a court usually attempts to learn about A's intent by looking at the consequences of the acts of B and C, who are somehow related to A (eg A's subordinates). This is radically different from most proceedings in domestic courts. Thus, while domestic courts are willing to determine intent behind an act solely on the basis of the results of that act (such as when it is the natural and predictable consequence of an action), it is highly doubtful that this domestic logic is applicable in international proceedings on the law of targeting.

136 Fenrick (n 24) 565: ‘Every weapon has a Circular Error Probable (or CEP). When a weapon system is targeted on a specific objective, 50 percent of the projectiles launched will land inside the CEP. Obviously, 50 per cent will also land outside the CEP’. See also Amicus Curiae Brief (n 12) annexed Statements of Artillery Experts; Michael N Schmitt, ‘Precision Attack and International Humanitarian Law’ (2005) 87 International Review of the Red Cross 445, 446; Huffman (n 10) 41.

137 Amicus Curiae Brief (n 12) annexed Statements of Artillery Experts.

138 See Section 4.4.2.

139 Wuerzner (n 6) 925. Note that Wuerzner stipulates that in the case of precision weapons, such as snipers, it may be reasonable to deduce the intent from the result; the same is not necessarily true for other weapons. See also Fenrick (n 24) 565.

140 For a similar approach, Fenrick (n 8) 135–36. See also Korea Report (n 8) 67–70.

141 Gotovina Trial Judgment (n 9) [1906].

142 Amicus Curiae Brief (n 12) [18]–[19].

143 The amici explicitly state the figure of 4 per cent, though how they arrived at this figure is unclear: ibid [19]. According to the author's calculations, the TC found that 74 shells out of more than 1,200 shells fell outside the 200-metre standard – that is, 6 per cent. For consistency, the article will continue to use the figure of 4 per cent, since that is the figure mentioned in the Amicus Curiae Brief, ibid.

144 Gotovina Trial Judgment (n 9) [1906].

145 ibid [1922]: ‘The Trial Chamber recalls that it was able to conclusively determine the precise locations of impact of only some of these 150 projectiles. Of the locations of impact which the Trial Chamber was able to establish, a considerable portion are civilian objects or areas. Further, while the Trial Chamber was not able to establish exactly how many projectiles impacted on these civilian objects or areas, the Trial Chamber considers that even a small number of artillery projectiles can have great effects on nearby civilians’. See also the almost identical statements at ibid [1934], [1942].

146 In that context, see the words of caution voiced by Wuerzner (n 6) 923–24.

147 Huffman (n 10) 12.

148 Gotovina Trial Judgment (n 9) [1906].

149 ICTY Statute (n 24) art 21(3).

150 Huffman (n 10) 12.

151 ibid 35, stating in a different context that the ‘court impermissibly placed the burden of proof on the defence, and resolved a major factual ambiguity in favor of the prosecution’.

152 For general context see Wuerzner (n 6) 917–18.

153 For a cautious approach to the evidentiary value of NGO reports, press articles and United Nations reports in criminal proceedings, see ICC, Prosecutor v Laurent Gbagbo, Decision Adjourning the Hearing on the Confirmation of Charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11, Pre-Trial Chamber I, 3 June 2013, [29]–[36].

154 These missing pieces were acknowledged by the TC in a somewhat apologetic paragraph, which repeated itself several times over the course of the judgment: Gotovina Trial Judgment (n 9) [1922].

155 Wuerzner (n 6) 924.

156 The Trial Judgment provided several examples of this difficulty, as witnesses gave very different accounts of the same incidents. This led the TC to state: ‘The witnesses also provided estimates of how many shells fell on Knin during different periods, based on their own observations. These estimates vary widely, from 200–300 between 5 and 10 a.m. … to almost 30,000 between 5 and 8 a.m. … The Trial Chamber considers that it is difficult to accurately estimate high numbers of impacts while experiencing the duress of incoming artillery fire. Most of the witnesses had little or no artillery training or experience. Further, artillery projectiles which impacted outside of the town proper may have been audible within Knin’: Gotovina Trial Judgment (n 9) [1366]. See also Bartels (n 26) 350.

157 In fact, this seems to be the difference between Gotovina and other ICTY cases that also relied on something very similar to an impact analysis. In those cases, inter alia, the TC dealt with a much larger percentage of the attacks hitting ‘outside the impact zone’. See, eg, Galić Trial Judgment (n 7) [583]–[94].

158 Fenrick (n 24) 565–66.

159 Gotovina Trial Judgment (n 9) [1918]: ‘On 4 or 5 August 1995, artillery projectiles also impacted on a house marked X on P290 which was less than 100 metres from the location of the police station according to the “Jagoda” list. The Trial Chamber recalls that the “Jagoda” list's coordinates of the police station placed it some 150 metres south of its actual location in Benkovac. … The Trial Chamber considers that the evidence allows for the reasonable interpretation that the HV fired artillery projectiles at what they considered to be the location of the police station based on the coordinates provided by the “Jagoda” list, which projectiles impacted the aforementioned location as a result of errors or inaccuracies in the artillery fire’.

160 The author is not familiar with any other judgment by an international tribunal which analyses the issue of an honest mistake in the context of targeting. The ICTY Prosecutor, in the NATO Bombings Report, examined one similar incident of mistake in the location of the target – the attack on the Chinese Embassy in Belgrade: NATO Bombings Report (n 78) paras 80–85.

161 Wuerzner (n 6) 927; Bartels (n 26) 350; Huffman (n 10) 5. Fenrick (n 24) 560, referring to a bombardment by Americans on an air raid shelter during the First Gulf War.

162 See, eg, an incident analysed in the Goldstone Report (n 5) paras 630–52. This method of analysis is repeated throughout the report.

163 Libya Report (n 5) 89. The TC did exactly that with regard to several towns that were attacked during Operation Storm: eg Gotovina Trial Judgment (n 9) [1162]; Huffman (n 10) 25.

164 Cryer (n 69) 273.