Commentary: A First Attempt to Adjudicate Conduct of Hostilities Offences: Comments on Aspects of the ICTY Trial Decision in the Prosecutor v. Tihomir Blaškić

Abstract

The ICTY Trial Judgment in the Prosecutor v. Tihomir Blaškić is the first judicial decision to explicitly address unlawful attack charges. This article reviews the judgment focusing on how the trial chamber addressed individual criminal responsibility, unlawful attack charges, the crime against humanity of persecution, and the relationship between the two offences. The author observes that the decision contains little legal analysis but a review of the factual findings sheds light on legal assumptions. In particular, the findings indicate a willingness to accept that indiscriminate or disproportionate attacks might provide evidence of attacks essentially directed against civilians, a tendency to regard ad hoc ill equipped resistance to an attack as equivalent to no resistance, and a tendency to evaluate the lawfulness of an attack on the basis of what happened after the attack as well as during the attack.