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Tribunal: ICTY
Accused:GALIC, Stanislav
Type of Decision:Judgement
Case Number:IT-98-29-T
Date of Decision:05-12-2003
Heading:Judgement: Introduction / Applicable law
Articles:Statute-ICTY-3 / Statute-ICTY-5-a / Statute-ICTY-5-i / Statute-ICTY-7-1 / Statute-ICTY-7-3
Keywords:Additional Protocol I To The Geneva Conventions / Attack On Civilian Population / Command Responsibility / Cumulative Charges / Cumulative Convictions / Dolus Specialis / Individual Criminal Responsibility / Inhumane Acts / Murder / Nullum Crimen Sine Lege / Ratione Materiae Jurisdiction
Reference to case-law:Akayesu Case, Aleksovski Case, Blaskic Case, Celebici Case, Furundzija Case, Jelisic Case, Krnojelac Case, Kunarac Case, Kupreskic Et Al. Case, Rutaganda Case, Tadic Case, Kvocka Et Al. Case, Kordic And Cerkez Case, Vasiljevic Case, Krstic Case, Legality of Threat or Use of Nuclear Weapons Case
Note:-
ALC:
Paragraphs:1 - 177

Case No. IT-98-29-T
IN TRIAL CHAMBER I

Before:
Judge Alphons Orie
Judge Amin El Mahdi
Judge Rafael Nieto-Navia

Registrar:
Mr. Hans Holthuis

Judgement Of:
5 December 2003


PROSECUTOR

v.

STANISLAV GALIC

_________________________________

JUDGEMENT AND OPINION

_________________________________


The Office of the Prosecutor:

Mr. Mark Ierace
Mr. Chester Stamp
Mr. Daryl Mundis
Ms. Prashanthi Mahindaratne
Mr. Manoj Sachdeva

Counsel for the Accused:

Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin

I. INTRODUCTION


1. Trial Chamber I of the International Tribunal (the "Trial Chamber") is seized of a case which concerns events surrounding the military encirclement of the city of Sarajevo in 1992 by Bosnian Serb forces.

2. The Prosecution alleges that "The siege of Sarajevo, as it came to be popularly known, was an episode of such notoriety in the conflict in the former Yugoslavia that one must go back to World War II to find a parallel in European history. Not since then had a professional army conducted a campaign of unrelenting violence against the inhabitants of a European city so as to reduce them to a state of medieval deprivation in which they were in constant fear of death. In the period covered in this Indictment, there was nowhere safe for a Sarajevan, not at home, at school, in a hospital, from deliberate attack". [1]

3. In the course of the three and a half years of the armed conflict in and around Sarajevo, three officers commanded the unit of the Bosnian-Serb Army ("VRS") operating in the area of Sarajevo, the Sarajevo Romanija Corps ("SRK"). The second of those three officers, Major-General Stanislav Galic, is the accused in this case ("the Accused"). He was the commander for the longest period, almost two years, from around 10 September 1992 to 10 August 1994. The Prosecution alleges that over this period he conducted a protracted campaign of sniping and shelling against civilians in Sarajevo. Two schedules to the Indictment "set forth a small representative number of individual incidents for specificity of pleading". [2] At the end of the Prosecution case and pursuant to Rule 98 bis of the Rules of Procedure and Evidence of the International Tribunal, the Trial Chamber decided upon the Defence Motion for Acquittal that the Prosecution had failed to prove some of these scheduled sniping incidents. [3]

4. The Prosecution alleges that General Galic incurs individual criminal responsibility under Articles 7(1) and 7(3) of the Statute for his acts and omissions in relation to the crime of terror (count 1), attacks on civilians (counts 4 and 7), murder (counts 2 and 5) and inhumane acts (counts 3 and 6) committed against civilians in the city of Sarajevo. [4]

5. The Trial Chamber's task is to decide whether the Prosecution's allegations that SRK personnel committed the criminal acts alleged in the Indictment have been proved beyond reasonable doubt. It must then decide what, if any, criminal responsibility General Galic incurs for any such criminal acts committed by SRK personnel.

6. This Judgement is rendered by a majority of the Trial Chamber's judges. [5] Judge Nieto-Navia, partly dissenting, appends his opinion to this Judgement. Portions of this Judgement where he dissents are mentioned as that of the Majority of the Trial Chamber (or the "Majority").

7. This Judgement is divided into eight Parts. Part I consists of this Introduction. Part II provides a legal framework for the making of legal findings on the facts to be set out in the following part. In this part, the Trial Chamber considers the legal elements of violations of the laws or customs of war and of crimes against humanity, then determines under what circumstances an accused can be convicted for more than one crime based upon the same set of facts, and lastly examines the principles affecting the attribution of criminal responsibility. The factual findings of the Trial Chamber are contained in Part III, beginning with general observations concerning terminology and evidence; they continue with a narrative overview of the events leading to the virtually complete encirclement of the ABiH-held parts of Sarajevo; the facts of the present case follow, in order to establish whether a campaign of sniping and shelling against civilians was conducted in Sarajevo by SRK-forces during the Indictment Period and whether it aimed at spreading terror as alleged by the Prosecution; finally, the Trial Chamber sets out its legal findings, namely whether the facts found, if any, constitute crimes. In Part IV of this Judgement, the Trial Chamber states its legal findings as to the criminal responsibility of the Accused. Part V addresses matters relating to sentencing and Part VI sets forth the disposition. Part VII set forth the separate and dissenting opinion of Judge Nieto-Navia. Finally Part VIII contains four Annexes: the Indictment against General Galic, the procedural history of the case, a glossary of terms and cases, and a set of two maps which are not authoritative and do not necessarily reflect any finding of the Trial Chamber but are attached exclusively in order to assist readers to better orient themselves.


II. APPLICABLE LAW

8. In this second part the Trial Chamber examines elements of the crimes charged in the Indictment under Articles 3 and 5 of the Statute.

1. Prerequisites of Article 3 of the Statute

9. For a crime to be adjudicated under Article 3 of the Statute (violation of the laws and customs of the war) the Trial Chamber must determine that a state of armed conflict existed at the time the crime was committed and that the crime was "closely related" to the armed conflict. [6] According to the Appeals Chamber, an "armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State". [7]

10. In the Tadic Jurisdiction Decision, the Appeals Chamber held that "Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5" [8] and that it "functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal." [9] Article 3 thus refers to a broad category of offences, providing a merely illustrative list in the article itself. [10]

11. According to the same Appeals Chamber Decision, for criminal conduct to fall within the scope of Article 3 of the Statute, the following four conditions ("the Tadic conditions") must be satisfied:

(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;

(iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and

(iv) the violation must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. [11]

The Tadic conditions limit the jurisdiction of the Tribunal to violations of the laws or customs of war that are at once recognized as criminally punishable and are "serious" enough to be dealt with by the Tribunal.

12. The Indictment charges the Accused with violations of the laws or customs of war under Article 3 of the Statute, namely with one count of "unlawfully inflicting terror upon civilians" (Count 1) and with two counts of "attacks on civilians" ( Counts 4 and 7) pursuant to Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949. These offences are not expressly listed in Article 3 of the Statute. Starting with the crime of attack on civilians, the Trial Chamber will determine whether the offence can be brought under Article 3 of the Statute by verifying that the four Tadic conditions are met. The Trial Chamber will also inquire into the material and mental elements of the offence. It will then repeat this exercise for the crime of terror.


2. Attack on Civilians as a Violation of the Laws or Customs of War


(a) Introduction


13. Count 4 of the Indictment reads:

Violations of the Laws or Customs of War (attacks on civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal.

14. The paragraph introducing Count 4 alleges that the Accused, General Galic, as commander of the SRK, "conducted a coordinated and protracted campaign of sniper attacks upon the civilian population of Sarajevo, killing and wounding a large number of civilians of all ages and both sexes, such attacks by their nature involving the deliberate targeting of civilians with direct fire weapons."

15. Count 7 of the Indictment is in terms identical to Count 4, except that the paragraph preceding Count 7 alleges that the Accused "conducted a coordinated and protracted campaign of artillery and mortar shelling onto civilian areas of Sarajevo and upon its civilian population. The campaign of shelling resulted in thousands of civilians being killed or injured."

(b) First and Second Tadic Conditions


16. Counts 4 and 7 of the Indictment are clearly based on rules of international humanitarian law, namely Article 51(2) of Additional Protocol I and Article 13(2 ) of Additional Protocol II. Both provide, in relevant part, that: "The civilian population as such, as well as individual civilians, shall not be made the object of attack." The first Tadic condition, that the violation must constitute an infringement of a rule of international humanitarian law, is thus fulfilled.

17. As for the second Tadic condition, that the rule must be customary in nature or, if it belongs to treaty law, that the required conditions must be met, the Prosecution claims that the parties to the conflict were bound by Article 51 of Additional Protocol I and Article 13 of Additional Protocol II as a matter of both treaty law and customary law. [12] In relation to the latter, "the prohibition on attacks against civilians [...] in Article 51 and 13 of Additional Protocols I and II reflect[s] customary international law applicable to all armed conflicts, international or non-international in character, at the time the offences material to the present Indictment are alleged to have been committed." [13] The Prosecution further submits that, should the conflict be found to be international, Additional Protocol I would apply as a matter of treaty law; or, should the conflict be found to be internal, Additional Protocol II would apply as a matter of treaty law and moreover the relevant provisions of Additional Protocol I would also apply because the parties to the conflict were bound by an agreement concluded under the auspices of the ICRC on 22 May 1992 ("the 22 May Agreement") incorporating those provisions. [14] According to the Prosecution, it was for this reason that it did not seek to prove at trial the international or non-international character of the conflict. [15] During closing arguments, in response to questions put by the Trial Chamber regarding the applicability of the agreement of 22 May 1992, the Prosecution said that the parties to the conflict specifically agreed to abide by those provisions irrespective of whether Additional Protocol I would otherwise be applicable by its terms to the conflict in Bosnia. [16]

18. The Defence at first did not dispute that "both parties to the armed conflict were bound to uphold the provisions of the Geneva Conventions and the Additional Protocols I and II", [17] although it did not specify whether this was on the basis of treaty or custom. The Defence took a different position in its Final Brief. There it claims that "the former JNA was not a participant in this armed conflict and that the conflict escalated after the withdrawal of the JNA from Bosnia and Herzegovina on 19 May 1992." [18] It qualifies the conflict as a "civil war with some elements of religious war". [19] Additionally, the Defence submits that "[n]o matter the content of the Agreement dated 22 May 1992, which indicates on [a] readiness to apply principles of protection foreseen by [...] Additional Protocols I and II, the Defence considers that Additional Protocol I could not be applied in relations between the belligerent parties", [20] since Additional Protocol I is limited in its applicability to international conflicts. [21] It further states that "it is quite clear that regulations of Additional Protocol II have to be applied, not International Custom Law." [22] During closing arguments the Defence did not take a clear position regarding the applicability of the 22 May Agreement, although it expressed "some doubt" as to its status. [23]

19. The jurisprudence of the Tribunal has already established that the principle of protection of civilians has evolved into a principle of customary international law applicable to all armed conflicts. [24] Accordingly, the prohibition of attack on civilians embodied in the above-mentioned provisions reflects customary international law. [25]

20. Moreover, as explained below, the same principle had also been brought into force by the parties by convention.

21. Both warring parties were armed forces in the territory of a State which was originally part of the Socialist Federal Republic of Yugoslavia. The SFRY had ratified the Additional Protocols. [26] The first Article of each Protocol states its scope of application. Additional Protocol I regulates international armed conflicts whereas Additional Protocol II regulates non-international armed conflicts. [27] Parties to an armed conflict can also, by agreement, bring into force provisions of Additional Protocol I, regardless of the nature of the conflict. [28]

22. The Trial Chamber does not deem it necessary to decide on the qualification of the conflict in and around Sarajevo. It notes that the warring parties entered into several agreements under the auspices of the ICRC. The first of these was the 22 May Agreement, by which the parties undertook to protect the civilian population from the effects of hostilities and to respect the principle prohibiting attacks against the civilian population. [29] With regard to the conduct of hostilities, they agreed to bring into force, inter alia, Articles 35 to 42 and 48 to 58 of Additional Protocol I. [30]

23. The Trial Chamber, being obliged ex officio to satisfy itself of the validity of this agreement as a source of applicable law, takes account of the fact that, in its letter dated 12 June 1995 addressed to the then Prosecutor of the Tribunal, Richard Goldstone, the ICRC confirmed that the formal conditions required for the entry into force of this agreement had been fulfilled. [31]

24. Moreover, the parties to the 22 May Agreement reiterated their commitment to be bound by the agreement and to implement its provisions. The 22 May Agreement was concluded by representatives of the Republic of Bosnia-Herzegovina, the Serbian Democratic Party, and the Croatian Democratic Community. The same three parties, by the same representatives, [32] subsequently signed three agreements and one declaration, the subject-matter of which was the implementation of the 22 May Agreement. On 23 May 1992, the parties convened "to discuss the implementation of the Agreement of 22 May 1992" and signed another agreement whereby they decided to each appoint a liaison officer to form a commission which would work under the auspices of the ICRC towards the resolution of humanitarian issues. [33] The parties convened again on 4 to 6 June 1992 and concluded an agreement dated 6 June ("the 6 June Agreement ") whereby they adopted a plan of action designed to ensure the safety of the ICRC while carrying out its activities. To this end the agreement specifies that the parties must "ensure regular meetings of the Liaison Officers' Commission, organized under ICRC's auspices", [34] "enforce respect for the red cross emblem, in accordance with Article 3 of Agreement No. 1 signed in Geneva on 22 May 1992", [35] and "undertake to ensure that the principles and rules of international humanitarian law and, in particular, Agreement No. 1 of 22 May 1992 are known to all combatants and to the civilian population". [36] On 27 August 1992, at a conference in London, each party [37] also signed an identically phrased unilateral declaration called the "Programme of Action on Humanitarian Issues Agreed Between the Co-Chairmen to the Conference and the Parties to the Conflict" (the "Programme of Action on Humanitarian Issues "). By this declaration each party recognized that:

(i) all parties to the conflict are bound to comply with their obligations under International Humanitarian Law and in particular the Geneva Conventions of 1949 and the Additional Protocols thereto, and that persons who commit or order the commission of grave breaches are individually responsible [...]

(viii) that all such action should be in accordance with the agreement with the parties reached in Geneva on 22 May under auspices of the ICRC. [38]

Finally, on 1 October 1992, the parties concluded an "Agreement on the Release and Transfer of Prisoners", "on the basis of the Agreement of 22 May 1992." The preamble to this agreement further refers to Chapter IV of the 6 June Agreement and the humanitarian plan of action accepted by the parties' leaders in London on 27 August 1992. [39]


25. The Trial Chamber finds that by virtue of the 22 May 1992 Agreement the parties to the conflict clearly agreed to abide by the relevant provisions of Additional Protocol I protecting civilians from hostilities. Therefore, Article 51, along with Articles 35 to 42 and 48 to 58 of Additional Protocol I, undoubtedly applied as conventional law between the parties to the conflict, including the VRS and the ABiH. The Trial Chamber thus finds that the second Tadic condition is met.

(c) Third Tadic Condition


26. The third requirement of the Tadic Jurisdiction Decision is that the breach of the rule must be "serious", that is to say, it must constitute a breach of a Rule protecting important values and the breach must involve grave consequences for the victim. [40]

27. The act of making the civilian population or individual civilians the object of attack (such as attacks committed through a campaign of sniping and shelling as alleged in the Indictment), resulting in death or injury to civilians, transgresses a core principle of international humanitarian law and constitutes without doubt a serious violation of the rule contained in the relevant part of Article 51(2) of Additional Protocol I. It would even qualify as a grave breach of Additional Protocol I. [41] It has grave consequences for its victims. The Trial Chamber is therefore satisfied that the third Tadi c condition is fulfilled.

(d) Fourth Tadic Condition


28. In accordance with the fourth Tadic condition, a violation of the rule under examination must incur, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. [42]

29. The Appeals Chamber has found that "customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife." [43] It has further expressly recognized that customary international law establishes that a violation of the principle prohibiting attacks on civilians entails individual criminal responsibility. [44]

30. It should be noted that the intention of the States parties to Additional Protocol I to criminalize violations of Article 51(2) of Additional Protocol I is evidenced by the fact, mentioned above, that an attack on civilians is considered a grave breach of the Protocol, as defined by Article 85(3)(a) therein. [45] The Trial Chamber has also noted that the "Programme of Action on Humanitarian Issues " recognized that those who committed or ordered the commission of grave breaches were to be held individually responsible. [46]

31. Moreover, national criminal codes have incorporated as a war crime the violation of the principle of civilian immunity from attack. [47] This war crime was punishable under Article 142 of the 1990 Penal Code of the Socialist Federal Republic of Yugoslavia. [48] In the Republic of Bosnia-Herzegovina it was made punishable by a decree-law of 11 April 1992. [49] National military manuals also consistently sanction violations of the principle. [50] For instance, paragraph 33 (2) of the 1988 Yugoslavia Regulations on the Application of International Laws of War in the Armed Forces of the SFRY condemns as war crimes "attack on civilians" and "deliberately bombing of the civilian population". [51]

32. It therefore follows that serious violations of the principle prohibiting attacks on civilians incur individual criminal responsibility under the laws of war, and that this was already the case at the time relevant to the Indictment. The fourth Tadic condition is met.

(e) Material and Mental Elements


33. The Trial Chamber will now consider the material and mental elements of the offence of attack on civilians.

(i) Arguments of the Parties


34. The Prosecution submits that the crime of attack on civilians comprises the following elements: (1) an attack resulted in civilian deaths, serious injury to civilians, or a combination thereof; (2) the civilian status of the population or of individual persons killed or seriously injured was known or should have been known to the perpetrator; and (3) the attack was wilfully directed at the civilian population or individual civilians. [52] It relies on the second paragraph of Article 51 of Additional Protocol I as the legal foundation of this offence. [53]

35. The Prosecution invokes Articles 50 and 52 of Additional Protocol I to define the notions of civilians, civilian objects, and military objectives in the context of this crime. [54] It maintains that an attack is unlawful if the victims are civilians not taking active part in hostilities, and that the presumption enshrined in Article 50(1) of Additional Protocol I is the basis for determining a victim's civilian status. [55] Among the factors relevant to establishing the perpetrator's knowledge of the status of the victims are: "(1) the physical appearance of the victims, including their gender, age, physical condition, dress and the character of the objects in their possession or close to them; and (2) the actions of the victims at the time they are killed or injured." [56]

36. The Prosecution maintains that the principles of distinction and proportionality, as set forth in the four 1949 Geneva Conventions and the Additional Protocols thereto, "lie at the heart of unlawful attack charges". [57] It states that the prohibition of attack on civilians is founded upon the principle of distinction, which requires commanders to distinguish between the civilian population and combatants and between civilian objects and military objectives at all times, and accordingly to direct hostilities only against military objectives. [58] The Prosecution suggests that in accordance with this principle, the following types of attack are unlawful: (1) attacks deliberately directed against the civilian population as such, whether directed at particular civilian objects or at civilian areas generally ; (2) attacks aimed at military and civilian objectives without distinction; and (3) attacks directed at legitimate military objectives, which cause civilian losses clearly disproportionate to the military advantage anticipated. [59]

37. In its analysis of the principle of proportionality, [60] the Prosecution states that in order to establish the proportionality of a military attack, "the anticipated advantage to be gained from the particular military activity " must be weighed against "the probable civilian losses". [61] When seeking to establish whether the proportionality principle is violated, the Prosecution urges the Trial Chamber to analyze the "concrete and direct military advantage" at the level of each sniping and shelling incident, [62] and to consider whether the precautionary provisions contained in Article 57 of Additional Protocol I were complied with. [63] It submits that the term "legitimate military objective" should be understood to "denote a military objective which may be lawfully targeted at the moment the commander makes the decision to launch the attack", in accordance with the precautions laid out in Article 57(2)(b) of Additional Protocol I. [64] As for the obligation of defending commanders to minimize casualties of civilians under their control contained in Article 58 of Additional Protocol I, the Prosecution takes the view that "this obligation is conditioned by what is deemed feasible" It further submits that failure of the defending party to comply with the obligation expressed in this provision does not relieve an attacking party of its duty to respect both the principle of distinction and the principle of proportionality when launching an attack. [65]

38. The Defence does not challenge the Prosecution's submissions regarding the elements of the crime of attack on civilians or offer an alternative definition of the offence. It maintains that a civilian is a person who has "no connection with the activities of the armed forces" and claims that this cannot be proven by merely describing the age, clothing and activity at the time of the incident, or physical attributes of an individual. [66] According to the Defence, in order to determine the civilian status of a victim, "its assignments in the specified period of time" must be established. [67]

39. The Defence submits further that the essence of the principle of proportionality "is to avoid infliction of excessive suffering to all those on the opposite belligerent side, whether civilians or soldiers". [68] It states that "the above mentioned principle is based upon two elements: the principle of soldier's efficiency, and the principle of humanitarianism". [69]

40. The Defence mentions the obligation of the parties to an armed conflict to undertake the precautionary measures against the effects of attacks in order to protect civilians in their own territory. [70] It does not however raise the issue of whether failure to remove one's own civilians from dangerous circumstances would justify a violation by enemy forces of Article 51(2) of Additional Protocol I; it merely claims that it is difficult to avoid civilian casualties when the obligation is not complied with. [71]

(ii) Discussion


41. Although the Indictment refers in general terms to Article 51 of Additional Protocol I, the Trial Chamber understands the first sentence of the second paragraph of that article to be the legal basis of the charges of attack on civilians in Counts 4 and 7. This sentence will hereinafter be referred to as "the first part" of the second paragraph of Article 51 of Additional Protocol I, or simply as the "first part of Article 51(2)".

42. The constitutive elements of the offence of attack on civilians have not yet been the subject of a definitive statement by the Appeals Chamber. In only two cases before the Tribunal have persons been charged and tried of attack on civilians under Article 3 of the Statute pursuant to Article 51(2) of Additional Protocol I. In each case a brief exposition was given of the offence, together with the offence of attacks on civilian property. In the Blaskic case the Trial Chamber observed in relation to the actus reus that "the attack must have caused deaths and /or serious bodily injury within the civilian population or damage to civilian property. [...] Targeting civilians or civilian property is an offence when not justified by military necessity." [72] On the mens rea it found that "such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity". [73] The Trial Chamber in the Kordic and Cerkez case held that "prohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity. They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects". [74]

43. The Trial Chamber follows the above-mentioned jurisprudence to the extent that it states that an attack which causes death or serious bodily injury within the civilian population constitutes an offence. As noted above, such an attack when committed wilfully is punishable as a grave breach of Additional Protocol I. [75] The question remains whether attacks resulting in non-serious civilian casualties, or in no casualties at all, may also entail the individual criminal responsibility of the perpetrator under the type of charge considered here, and thus fall within the jurisdiction of the Tribunal, even though they do not amount to grave breaches of Additional Protocol I. The present Indictment refers only to killing and wounding of civilians; therefore the Trial Chamber does not deem it necessary to express its opinion on that question.

44. The Trial Chamber does not however subscribe to the view that the prohibited conduct set out in the first part of Article 51(2) of Additional Protocol I is adequately described as "targeting civilians when not justified by military necessity". [76] This provision states in clear language that civilians and the civilian population as such should not be the object of attack. It does not mention any exceptions. In particular, it does not contemplate derogating from this rule by invoking military necessity. [77]

45. The Trial Chamber recalls that the provision in question explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities. [78] The prohibition against attacking civilians stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objectives. [79] In its Advisory Opinion on the Legality of Nuclear Weapons, the International Court of Justice described the principle of distinction, along with the principle of protection of the civilian population, as "the cardinal principles contained in the texts constituting the fabric of humanitarian law" and stated that "States must never make civilians the object of attack [...]." [80]

46. Part IV of Additional Protocol I, entitled "Civilian Population" (articles 48 to 58), develops and augments earlier legal protections afforded to civilians through specific rules aimed at guiding belligerents to respect and protect the civilian population and individual civilians during the conduct of hostilities. [81] The general prohibition mentioned above forms integral part of and is complemented and reinforced by this set of rules. In order to properly define the conduct outlawed in the first part of Article 51(2) of Additional Protocol I, this rule must be interpreted in light of the ordinary meaning of the terms of Additional Protocol I, as well as of its spirit and purpose. [82]

47. As already stated, the first part of Article 51(2) of Additional Protocol I proscribes making the civilian population as such, or individual civilians, the object of attack. According to Article 50 of Additional Protocol I, "a civilian is any person who does not belong to one of the categories of persons referred to in Article 4(A)(1), (2), (3) and (6) of the Third Geneva Convention [83] and in Article 43 of Additional Protocol I." [84] For the purpose of the protection of victims of armed conflict, the term "civilian " is defined negatively as anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict. It is a matter of evidence in each particular case to determine whether an individual has the status of civilian.

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]

49. The civilian population comprises all persons who are civilians, as defined above. [89] The use of the expression "civilian population as such" in Article 51(2) of Additional Protocol I indicates that "the population must never be used as a target or as a tactical objective". [90]

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] The Trial Chamber understands that a person shall not be made the object of attack when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the potential target is a combatant.

51. As mentioned above, in accordance with the principles of distinction and protection of the civilian population, only military objectives may be lawfully attacked. [94] A widely accepted definition of military objectives is given by Article 52 of Additional Protocol I as "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". [95] In case of doubt as to whether an object which is normally dedicated to civilian purposes is being used to make an effective contribution to military action, it shall be presumed not to be so used. [96] The Trial Chamber understands that such an object shall not be attacked when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action.

52. "Attack" is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence." The Commentary makes the point that "attack" is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence. [97] The jurisprudence of the Tribunal has defined "attack" as a course of conduct involving the commission of acts of violence. [98] In order to be punishable under Article 3 of the Statute, these acts have to be carried out during the course of an armed conflict.

53. In light of the discussion above, the Trial Chamber holds that the prohibited conduct set out in the first part of Article 51(2) is to direct an attack (as defined in Article 49 of Additional Protocol I) against the civilian population and against individual civilians not taking part in hostilities.

54. The Trial Chamber will now consider the mental element of the offence of attack on civilians, when it results in death or serious injury to body or health. Article 85 of Additional Protocol I explains the intent required for the application of the first part of Article 51(2). It expressly qualifies as a grave breach the act of wilfully "making the civilian population or individual civilians the object of attack". [99] The Commentary to Article 85 of Additional Protocol I explains the term as follows:

wilfully
: the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them ('criminal intent' or 'malice aforethought'); this encompasses the concepts of 'wrongful intent' or 'recklessness', viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences. [100]

The Trial Chamber accepts this explanation, according to which the notion of "wilfully " incorporates the concept of recklessness, whilst excluding mere negligence. The perpetrator who recklessly attacks civilians acts "wilfully".

55. For the mens rea recognized by Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant.

56. In sum, the Trial Chamber finds that the crime of attack on civilians is constituted of the elements common to offences falling under Article 3 of the Statute, as well as of the following specific elements:

1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.

2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence.

57. As regards the first element, the Trial Chamber agrees with previous Trial Chambers that indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians. [101] It notes that indiscriminate attacks are expressly prohibited by Additional Protocol I. [102] This prohibition reflects a well-established rule of customary law applicable in all armed conflicts. [103]

58. One type of indiscriminate attack violates the principle of proportionality. [104] The practical application of the principle of distinction requires that those who plan or launch an attack take all feasible precautions to verify that the objectives attacked are neither civilians nor civilian objects, so as to spare civilians as much as possible. [105] Once the military character of a target has been ascertained, commanders must consider whether striking this target is "expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." [106] If such casualties are expected to result, the attack should not be pursued. [107] The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack. [108] In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, [109] making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack. [110]

59. To establish the mens rea of a disproportionate attack the Prosecution must prove, instead of the above-mentioned mens rea requirement, that the attack was launched wilfully and in knowledge of circumstances giving rise to the expectation of excessive civilian casualties. [111]

60. The Trial Chamber considers that certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack. This is to be determined on a case-by-case basis in light of the available evidence.

61. As suggested by the Defence, the parties to a conflict are under an obligation to remove civilians, to the maximum extent feasible from the vicinity of military objectives and to avoid locating military objectives within or near densely populated areas. [112] However, the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack.

(f) Conclusion


62. The Trial Chamber finds that an attack on civilian can be brought under Article 3 by virtue of customary international law and, in the instant case, also by virtue of conventional law and is constituted of acts of violence wilfully directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.


3. Terror Against the Civilian Population as a Violation of the Laws or Customs of War


(a) Introduction


63. This section of the Judgement expresses the view of the Majority of the Trial Chamber. Judge Nieto-Navia attaches a dissenting opinion.

64. The first count of the Indictment reads:

Count 1: Violations of the Laws or Customs of War (unlawfully inflicting terror upon civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal.


65. The paragraph introducing Count 1 alleges that the Accused, General Galic, as commander of the SRK, "conducted a protracted campaign of shelling and sniping upon civilian areas of Sarajevo and upon the civilian population thereby inflicting terror and mental suffering upon its civilian population." This introductory paragraph is headed "Infliction of terror". The remaining six counts are divided into two groups which are headed, respectively, "Sniping" and "Shelling". These are evidently descriptive categorizations of the counts, to which the Majority attaches no particular legal significance. Moreover, it will transpire in the course of the Majority's discussion that "Infliction of terror" is not an appropriate designation of the offence considered here because actual infliction of terror is not a required element of the offence. The Majority will henceforth refer to the offence charged in Count 1 as "the crime of terror against the civilian population", or simply "the crime of terror", a purported violation of the laws or customs of war. [113]

66. The charge, as such, of terror against the civilian population is one that until now has not been considered in a Tribunal judgement, although evidence of terrorization of civilians has been factored into convictions on other charges. [114] This is also the first time an international tribunal has pronounced on the matter. [115] After considering the arguments of the Parties, the Majority will examine in detail the legal foundations and other essential characteristics of the charge.

(b) Consideration of the Arguments of the Parties

(i) Prosecution


67. In its Pre-trial Brief the Prosecution explained its position that the character of the armed conflict in Sarajevo as international or non-international was "irrelevant " to the charges against the Accused. [116] This was said to be because the 22 May Agreement [117] made Article 51 of Additional Protocol I applicable to the conflict irrespective of its character. [118] Thus the Prosecution did not concentrate in this case on proving the character of the conflict.

68. The Trial Chamber has found that Article 51 was indeed part of the law regulating the conduct of the parties and that it was brought into operation at least by the 22 May Agreement. Since the Geneva Conventions and Additional Protocol I can be extended by agreement to any given conflict, and since the 22 May Agreement was not conditioned upon the Sarajevo conflict having, or assuming, a certain character (international or non-international), the Prosecution's position, as set out above, is correct.

69. The Prosecution further maintained that the prohibition against terrorizing the civilian population amounts to a rule of customary international law applicable to all armed conflicts. In support of this the Prosecution cited certain rules on aerial warfare prepared in the 1920s but not finalized, two UN resolutions from 1994 condemning atrocities in the former Yugoslavia, and the Spanish penal code from 1995. [119] As will be made clear in later discussion, the Majority does not take a position in respect of this question.

70. The Prosecution submitted that the following elements constitute the crime of terror:

1. Unlawful acts or threats of violence.

2. Which caused terror to spread among the civilian population.

3. The acts or threats of violence were carried out with the primary purpose of spreading terror among the civilian population.


In addition, according to the Prosecution's proposal, there must be a nexus between the acts or threats of violence and the armed conflict, and the Accused must bear responsibility for the acts or threats under Article 7 of the Statute. [120]

71. The Prosecution submitted that the first element in the list above, which is part of the actus reus of the offence, is "broad", because it encompasses both acts and threats of violence. [121] The Prosecution sees the acts of violence in the present case as consisting of systematic shelling and sniping of civilians. The Prosecution's case is thus limited to these acts. As for "threats", the alleged shelling and sniping of civilians created, according to the Prosecution, a constant threat that more such acts would be perpetrated at any moment. [122] The "threats" in the present case are said to be of a kind implicit in the acts of violence. The Trial Chamber is thus not called upon to determine liability for threats that are not implicit, in the Prosecution's sense.

72. The "special intent requirement" (element 3) is, according to the Prosecution, the distinguishing feature of the crime of terror. [123] The Prosecution has interpreted "primary purpose" as requiring that "the infliction of terror upon the civilian population was the predominant purpose served by the acts or threats of violence. It need not be established that the broader campaign in the Sarajevo theatre had this as its sole or only objective." [124] Where the special intent, or mens rea, cannot be proven directly, it may be "inferred from the nature, manner, timing, frequency and duration of the shelling and sniping of civilians." [125]

73. "As an element of the offence of terror [...i]t must [...] be established that terror was in fact caused". [126] In addition to proof of actual infliction of terror, the Prosecution requires a causal connection between the first and second elements ("2. Which caused..."). That is, there must have been not only unlawful acts and actual terror experienced by the population, but also a causal link between the acts and the terror. "[T]he offence of unlawfully inflicting terror [...] is distinguished also by its effect , which in the present case was the profound psychological impact on the population ". [127] The Prosecution does not cite any authority for these submissions.

74. "Population", according to the Prosecution, does not just mean any number of Sarajevo civilians: "the unlawful shelling and sniping campaigns [had] the result that much of the civilian population lived in a state of terror". [128] The implication that "population" is to be understood to mean the majority of the population, or at least a large segment of it, is found also in the following : "The requirement that terror be spread among the civilian population is satisfied even if certain civilians, or sectors of the population, were not so affected." [129]

75. In its preliminary submissions the Prosecution did not provide a legal definition of "terror" (i.e. of the emotional effect which figures in the purported second element of the offence), except to refer in a footnote to a dictionary definition of the word as "extreme fear". [130] In the course of trial, when the Prosecution's expert on terror (a psychologist) was heard, terror was again rendered as extreme fear. The Prosecution later explicitly adopted its expert's definition. [131]

76. The Prosecution's legal theory concerning the crime of terror was not elaborated or modified in later submissions. [132] Except for the Additional Protocols, the Prosecution did not cite an authority for the three elements which, in its view, define the offence. The Majority makes the preliminary observation that the language of the prohibition common to the Additional Protocols, that "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited", [133] does not on its face support the Prosecution's second element, that the acts or threats of violence must have caused terror to spread among the civilian population.

(ii) Defence


77. The Defence in its preliminary submissions termed the Prosecution's stand on the applicable law "unacceptable", but did not dismiss outright the availability of the charge. It acknowledged that Article 51 of Additional Protocol I, which prohibits (in the Defence's words) "illegal terror inflicted on civilians", was binding upon the parties to the conflict. [134]

78. The Defence stated that the intent to inflict terror must be demonstrable: "If the Prosecution is charging General Galic with having conducted a long-lasting shelling and sniping campaign designed to terrorize [the] civilian population [...] it must be established that there existed the intent to inflict terror on [the] civilian population by shelling and sniping." [135] Lastly, the Defence did not take issue with the actus reus element "of the criminal act of inflicting terror, as the Prosecution has qualified it", namely acts of violence causing civilian casualties. [136]

79. Thus, from the beginning of the case, the Defence joined the Prosecution in understanding that the scope of the actus reus of terror would be limited to the acts underlying Counts 4 and 7 of the Indictment (killing or severe injury of civilians through unlawful attacks), and that "threats" would not be a significant factor. The Defence's only comment on threats was on a theoretical plane, when it stated that for threats of violence to come within the offence of terror they had to be specifically directed against the civilian population. "[The threat] must be serious. It must be real. And it must be capable to cause terror or spread terror among [the] civilian population." [137]

80. The Defence's concern about Count 1 appears to have been limited to the question of multiplication of offences referenced to one and the same set of acts. [138] (This is taken up by the Trial Chamber in its discussion of the law of cumulative convictions.) The implication is that the Defence did not contest the existence of a crime of terror.

81. The Defence's final written submissions on Count 1 repeat the submissions in its Pre-trial Brief. [139] However, in another part of its Final Brief, the Defence notes the Prosecution's position that "the civilian population was the subject of illegal attacks and terror [etc.]", [140] and then states:

In order to accept the above mentioned, unfounded Prosecution's conclusions, the Defence's viewpoint is that the Prosecution must prove the following:

a) The exact military actions that were conducted against the illegal targets and by which means (i.e. shelling or sniping), including the exact time and place,

b) That, as part of these illegal actions, there was intention of targeting the civilians with the aim to terrorize,

c) That the intention to kill the civilians existed,

d) That the intention to inflict injuries, other than killings existed. [141]

The difference between this list (which may or may not have been intended by the Defence as an alternative definition of the offence) and the Prosecution's definition of the elements of the crime of terror is that the Defence does not seem to require proof that the civilian population did, in fact, experience terror (the second element in the Prosecution's list), but does require proof of the perpetrator's intent to kill or injure civilians.


82. In yet another part of the Final Brief, however, the Defence does demand proof of actual infliction of terror, as well as a causal link between actual terror and unlawful violent acts:

The prosecutor should have proven several things:

1. that there was terror

2. that this terror was not simply the result of war in an urban theatre, led in a legitimate way

3. that this terror was the result of illegitimate acts

4. performed by troops commanded by the Accused

5. following his orders

6. (alternatively) that the Accused was aware of the facts and (if he had not given the orders himself) that he had not punished them

7. finally that the result was hoped for as such within the scope of a global plan. [142]

If this was meant as a definition of the crime of terror, the Defence did not cite any authority for it.

83. On the experiential aspect of terror, the Defence said: "It is underestimating the meaning of 'terror' to say that if an individual (or individuals) feels 'extreme fear' he feels terror." [143] Later, in its oral submissions at the trial's end, the Defence asserted: "Inflicting of terror as an element of a criminal offence [...] cannot be causing of any kind of terror or causing terror of any intensity [...] It has to be of the highest intensity. It has to be long term. It has to be direct. And it has to be capable of causing long-term consequences." [144]

84. As noted in the preceding section, by the end of the trial the Defence seemed to have changed its position on the applicability of Additional Protocol I. In its Final Brief it wrote that the conflict had "the character of civil war [...] it is quite clear that regulations of Additional Protocol II ha[ve] to be applied". [145] It submitted that Additional Protocol I is limited in its applicability to international conflicts by operation of Article 2 common to the Geneva Conventions. [146] Moreover, in oral submissions on the last day of trial, the Defence expressed "some doubt" as to the status of the 22 May Agreement. [147]

85. The Trial Chamber has already found that the 22 May Agreement was in effect during the relevant period, which confirms that the parts of Additional Protocol I referred to therein were operative during that period. [148] Thus the Defence's final position on the applicability of Additional Protocol I is of no consequence to the discussion of the crime of terror. [149] The Majority notes that, in any case, the Defence unequivocally accepted the applicability of Additional Protocol II, which contains the same prohibition against terror as the first Protocol.

(c) Discussion


86. While the Parties have not raised the question of jurisdiction ratione materiae , the Majority will consider it ex officio, for it is fundamental to the exercise of competence.

87. The Majority must decide whether the Tribunal has jurisdiction over the crime of terror against the civilian population, but only to the extent relevant to the charge in this case. That is to say, the Majority is not required to decide whether an offence of terror in a general sense falls within the jurisdiction of the Tribunal, but only whether a specific offence of killing and wounding civilians in time of armed conflict with the intention to inflict terror on the civilian population, as alleged in the Indictment, is an offence over which it has jurisdiction. [150] While the Tribunal may have jurisdiction over other conceivable varieties of the crime of terror, it will be for Trial Chambers faced with charges correspondingly different from Count 1 of the present Indictment to decide that question.

88. The Majority wishes to emphasize that nothing said below should be taken to limit the jurisdiction of the Tribunal in other cases. [151]

89. As noted in the preceding section, in the Tadic decision on jurisdiction the Appeals Chamber said that four conditions ("the Tadic conditions") must be met for an offence to be subject to prosecution under Article 3 of the Statute (violations of the laws or customs of law): (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim; and (iv) the violation must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. [152]

90. The discussion below begins with preliminary remarks on the Majority's approach to treaty interpretation and the paramount importance of the nullum crimen sine lege principle. The Majority will then consider each of the Tadic conditions. The elements of the crime of terror are developed as part of the discussion of the fourth Tadic condition.

(i) Preliminary remarks


91. The Majority will instruct itself on two related matters of principle. In its interpretation of provisions of the Additional Protocols and of other treaties referred to below, the Majority will apply Article 31(1) of the 1969 Vienna Convention on the Law of Treaties, namely that "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." [153] No word in a treaty will be presumed to be superfluous or to lack meaning or purpose.

92. The Majority also acknowledges the importance of the principle found in Article 15 of the 1966 International Covenant on Civil and Political Rights, which states, in relevant part: "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. [...] Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations." [154]

93. The principle (known as nullum crimen sine lege) is meant to prevent the prosecution and punishment of a person for acts which were reasonably, and with knowledge of the laws in force, believed by that person not to be criminal at the time of their commission. In practice this means "that penal statutes must be strictly construed" and that the "paramount duty of the judicial interpreter [is] to read into the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object." [155] Moreover:

The effect of strict construction of the provisions of a criminal statute is that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of construction fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. [156]


(ii) First and Second Tadic Conditions


94. The Indictment is not explicit as to which part of Article 51 of Additional Protocol I, or which part of Article 13 of Additional Protocol II, Count 1 is referenced to. Article 51 is an extensive provision in Part IV of the Protocol concerned with the protection of the civilian population. Yet it is clear from the submissions in this case that the intended reference of Count 1 is to sub-paragraph 2 of Article 51, which states:

The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

The second sentence of this excerpt will henceforth be referred to as the "second part" of the second paragraph of Article 51, or simply as the "second part of 51 (2)".

95. The quoted passage is identical to sub-paragraph 2 of Article 13 of Additional Protocol II. Since the Trial Chamber has found that certain parts of Additional Protocol I, including Article 51 thereof, applied to the armed conflict in Sarajevo during the relevant time, the Majority takes Additional Protocol I to be the basis of Count 1. It is not necessary to decide whether Additional Protocol II was also applicable to the conflict. Moreover, the Majority is not called upon to decide whether Additional Protocol I came at any time into effect in the State of Bosnia -Herzegovina through fulfilment of the Protocol's inherent conditions of application (Article 1 of the Protocol). The implementing instrument, on the evidence in this case, was the 22 May Agreement (as discussed in the preceding section).

96. Thus the first two Tadic conditions are met: Count 1 bases itself on an actual rule of international humanitarian law, namely the rule represented by the second part of the second paragraph of Article 51 of Additional Protocol I. As for the rule's applicability in the period covered by the Indictment, the rule had been brought into effect at least by the 22 May Agreement, which not only incorporated the second part of 51(2) by reference, [157] but repeated the very prohibition "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited" in the agreement proper. [158]

97. The Majority emphasizes that it is not required to pronounce on whether the rule in question is also customary in nature. As stated above, it belongs to "treaty law". This is enough to fulfil the second Tadic condition as articulated by the Appeals Chamber. Nevertheless, the Majority will proceed with additional caution here to avoid any possible misunderstanding of its position on this important question.

98. The Appeals Chamber has said "that the International Tribunal is authorised to apply, in addition to customary international law, any treaty which: (i) was unquestionably binding on the parties at the time of the alleged offence; and (ii ) was not in conflict with or derogating from peremptory norms of international law, as are most customary rules of international humanitarian law." [159] In relation to the first point, the Majority understands that it stems from the unqualified imperative of respect for the nullum crimen sine lege principle. The fact that the 22 May Agreement was binding on the parties to the conflict, and that certain provisions of Additional Protocol I had thereby undoubtedly been brought into effect, means that in this general sense there is no affront to the principle of nullum crimen sine lege by the Majority's determination. In relation to the Appeals Chamber's second point, this raises the question of whether the second part of 51(2) in any way conflicts with, or derogates from, peremptory norms of international law. In the Majority's view, it does not. What the second paragraph of Article 51, read as a whole, intends to say is that the prohibition against terror is a specific prohibition within the general prohibition of attack on civilians. [160] The general prohibition is a peremptory norm of customary international law. [161] It could be said that the specific prohibition also shares this peremptory character, for it protects the same value. However, to reiterate, the Majority is not required to decide this question. What is clear is that, by exemplifying and therefore according with the general norm, the rule against terror neither conflicts with nor derogates from peremptory norms of international law.

99. The following considerations are also relevant. The Additional Protocols were debated and finalized at the 1974-1977 Diplomatic Conference under the auspices of the ICRC. A summary record of the proceedings has been preserved. [162] The ICRC's delegate to the committee to which Article 51(2) of Additional Protocol I was assigned in draft form [163] said that the rule "merely reaffirmed existing international law", without making a distinction between the provision's first and second parts. [164] This was the consistent attitude at the Conference. States' concerns were for the most part limited to whether the object of the prohibition against terror should be the actor's intent or the capacity of the methods employed to spread violence. [165] Several States simply put on record their approval of the draft provision without proposing changes.

100. To illustrate the insignificant level of controversy, the Majority mentions the committee's summary of its first-session discussions of what was to become Article 51(2): "Some delegations had proposed an interpretation of 'methods intended to spread terror' going beyond the attacks referred to in the first sentence of the paragraph. Specific reference was made in this connexion to propaganda. The language of 'intended to' [166] also gave rise to some controversy. Some delegations suggested that the substantive element of intent would be too difficult to determine and that methods that in fact spread terror should be prohibited. Other delegations emphasized the problem of imposing responsibility for acts that might cause terror without terror having been intended." [167]

101. In the report on its second session, the committee stated: "The prohibition of 'acts or threats of violence which have the primary object of spreading terror' is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful." [168] What little disagreement there was about the draft provision was thus put to rest. [169]

102. Article 51 of Additional Protocol I was adopted by the plenary of the Diplomatic Conference on 26 May 1977 with 77 in favour, one against, and 16 abstentions. [170] France, the only state voting against, explained that it objected, for various reasons, to the provisions of paragraphs 4, 5, 7, and 8 of Article 51 (but not of paragraph 2). [171] The concerns of the abstaining States were also confined to paragraphs 4, 5, 7, and 8. [172]

103. Explicit reference to the terror clause is found twice in the States' explanations of their votes on Article 51. In both cases the endorsement of the prohibition is strong and unqualified. The Byelorussian Soviet Socialist Republic noted the "criminal " character of conduct which the prohibition aimed to counteract:

Also very important from the standpoint of increasing the protection afforded to the civilian population is the provision in Article [51] concerning the prohibition of the use of force or threat of the use of force for the purpose of intimidating the civilian population. Intimidating peaceful citizens and spreading terror among the civilian population is well known to be one of the infamous methods widely resorted to by aggressors seeking to attain their criminal ends at whatever price. [173]

104. The plenary adopted Additional Protocol I in whole by consensus on 8 June 1977. [174] Following this, many States provided further explanations of their positions, but there was no further reference to the terror clause of Article 51(2). [175] There were no treaty reservations of any relevance to this provision. A perusal of the travaux préparatoires of the Diplomatic Conference thus satisfies the Majority that all participating States condemned the strategy of terrorizing civilians as, in Byelorussia's words, an "infamous method" of warfare. [176]

105. These observations further support the view that the second part of 51(2) neither conflicts with nor derogates from peremptory norms of international law. It was meant, on the contrary, to be an exemplification of the general principle.

(iii) Third Tadic Condition


106. The Majority now considers the third Tadic condition, namely that the violation must be "serious" - that is to say, that it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim. [177]

107. In the Majority's opinion, this third condition, correctly interpreted, is not that the rule must be inherently "serious", which would mean that every violation of it would also be serious, but that the alleged violation of the rule - that is, of a recognized humanitarian rule - must be serious for the violation to come within the jurisdiction of the Tribunal.

108. In the present case, acts of violence of a very serious nature are alleged in the Indictment. In particular, Count 1 alleges a protracted campaign of shelling and sniping of civilians. A campaign of this nature cannot but cause death and injury to civilians over time, and allegedly this was the result of the Accused's actions in this case. There is no doubt that making the civilian population or individual civilians the object of attack, with resulting death and injury to civilians, is a very serious violation of a basic rule of international humanitarian law. It would even qualify as a grave breach of Additional Protocol I. [178]

109. Since doing that much is a serious violation, doing the same with the primary purpose of spreading terror among the civilian population can be no less serious, nor can it make the consequences for the victims any less grave. It is clear moreover from the travaux préparatoires of the Diplomatic Conference that the participating States without exception regarded the deliberate taking of measures to terrorize the civilian population as reprehensible as any attack upon the civilian population. Therefore the alleged violation is serious and the third condition is met.

110. The Majority has not neglected the question of whether threats of violence, as opposed to acts of violence, could also involve grave consequences for the victim. However, because the question is not at issue in this case, the Majority is not required to address it. [179]

111. It is perhaps worth reiterating Article 1 of the Tribunal's Statute ("Competence of the International Tribunal"), that "The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 [...]" - the key notion for the purposes of this discussion is the seriousness of an offence.

112. The Majority has demonstrated the seriousness of the violations alleged in this case.

(iv) Fourth Tadic Condition


113. The Majority now comes to examine the fourth Tadic condition, namely whether a serious violation of the prohibition against terrorizing the civilian population entails, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. The issue here, in particular, is whether the intent to spread terror had already been criminalized by 1992. The Majority reiterates that it takes no position on whether a customary basis exists for a crime of terror as a violation of the laws or customs of war. Its discussion below amounts to a survey of statutory and conventional law relevant to the fulfilment of the fourth Tadic condition.

114. To the Majority's knowledge, the first conviction for terror against a civilian population was delivered in July 1947 by a court-martial sitting in Makassar in the Netherlands East-Indies (N.E.I.). The offences alleged in Motomura et al. [180] were charged in the indictment as "systematic terrorism against persons suspected by the Japanese of punishable acts [...] this systematic terrorism taking the form of repeated, regular and lengthy torture and/or ill-treatment, the seizing of men and women on the grounds of wild rumours, repeatedly striking them [...] the aforesaid acts having led or at least contributed to the death, severe physical and mental suffering of many." [181] The court-martial's jurisdiction was conferred by statute, [182] Article 1 of which read, in relevant part:

Under war crimes are understood acts which constitute a violation of the laws and usages of war committed in time of war by subjects of an enemy power or by foreigners in the service of the enemy, such as: [...]

2. Systematic terror. [183] [...]

4. Torture of civilians. [...]

34. Indiscriminate mass arrests.

35. Ill-treatment of interned civilians or prisoners. [...]


115. The Motomura court-martial convicted 13 of the 15 accused of "systematic terrorism practiced against civilians" for acts including unlawful mass arrests. [184] The court found that those arrests had the effect of terrorizing the population, "for nobody, even the most innocent, was any longer certain of his liberty, and a person once arrested, even if absolutely innocent, could no longer be sure of health and life." [185] The associated torture and ill-treatment of interned civilians was also found to be a form of systematic terror. [186] Seven of those convicted were sentenced to death and the rest to prison sentences ranging from 1 to 20 years. [187]

116. The list of war crimes in the aforementioned N.E.I. statute reproduced with minor changes a list of war crimes proposed in March 1919 by the so-called Commission on Responsibilities, a body created by the Preliminary Peace Conference of Paris to inquire into breaches of the laws and customs of war committed by Germany and its allies during the 1914-1918 war. [188] The Commission reported that it had found evidence of multiple violations of the rights of civilians and combatants, as well as a carefully planned and executed "system of terrorism". It claimed that: "Not even prisoners, or wounded, or women, or children have been respected by belligerents who deliberately sought to strike terror into every heart for the purpose of repressing all resistance." [189] The Commission's list of war crimes had "Murders and massacres; systematic terrorism " of civilians as one item (the first in the list). [190] The few trials held in 1921-1922 in Leipzig pursuant to the Treaty of Versailles are generally considered to have been a failure. [191] In any event, they did not advance the concept of systematic terrorism created by the Commission. [192]

117. The British and the Australians had also tried to make something of the "systematic terrorism" which came to life in 1919 and found its way into the post-Second World War N.E.I. statute. On 20 July 1945 the British delegation to a conference of nations known as the London Conference, which had assembled to negotiate the formation of the International Military Tribunal, proposed that terror against civilians in the context of armed conflict be criminalized. The delegation's suggested definition of "Crimes", under Article 6 of the draft IMT Charter, read, in part:

The Tribunal shall have the power to try, convict and sentence any person who has, in any capacity whatever directed or participated in the planning, furtherance, or conduct of any or all of the following acts, designs, or attempts namely: [...]

2. Systematic atrocities against or systematic terrorism or ill-treatment or murder of civilians

3. Launching or waging war in a manner contrary to the laws, usages and customs of warfare

and who is hereby declared therefore to be personally answerable for the violations of international law, of the laws of humanity, and of the dictates of public conscience. [193]

A few days later, a revised definition which had gained the approval of the French was put forth by the British. It no longer made reference to "terrorism" as such, but used open-ended language ("Atrocities... include but are not limited to..."). [194] The Charter in its final form used this open-ended formulation to define war crimes.

118. Australia's War Crimes Act of 1945 made reference to the work of the Commission on Responsibilities and included "systematic terrorism" in its category of war crimes. [195]

119. The next relevant appearance of a prohibition against terror was in Article 33 of the 1949 Geneva Convention IV, which article states in part: "No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited." This protection extends only to persons "in the hands of a Party to the conflict " (Article 4 of the Convention). [196] Thus, purely by operation of Article 33, civilians in territory not occupied by the adversary are not protected against "measures of intimidation or of terrorism " which the adversary might decide to direct against them.

120. The most important subsequent development on the international stage was the unopposed emergence of Article 51(2) of Additional Protocol I (and of the identical provision in the second Protocol) in the Diplomatic Conference of 1974-1977, as described above. Additional Protocol I elaborated and extended the protections of the Geneva Conventions, including those of the fourth Convention on the protection of civilians in times of war. The Majority recalls that the scope of application of Additional Protocol I is given in its first Article, which states that the Protocol "shall apply in the situations referred to in Article 2 common to [the Geneva] Conventions." Article 2 of the Conventions states, inter alia, that the Convention " shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." Consequently Additional Protocol I applies to the aforementioned situations to the extent feasible, as well as to situations such as that which the present Indictment is concerned with, in which civilians not in the hands of an attacking force allegedly become victims of attacks by that force. In other words, whereas the cited part of Article 33 of Geneva Convention IV brought protection from intimidation or terrorism to only a subset of civilians in the context of armed conflict (those in the hands of a Party to the conflict), Article 51(2) of the Protocol elaborated and extended the protection from terror to civilians whether or not in the hands of the Party to the conflict conducting the attack, to the extent consistent with a purposeful and logical interpretation of Additional Protocol I.

121. The Majority now turns to consider a legislative development in the region relevant to this Indictment. Article 125 ("War Crime Against the Civilian Population") in Chapter XI ("Criminal Offences Against Humanity and International Law") of the 1960 Criminal Code of the Federal Republic of Yugoslavia read: "Whoever, in violation of the rules of international law in times of war, armed conflict or occupation issues orders for or performs [...] the application of intimidating measures and terror [...] shall be punished with severe imprisonment of at least five years or with the penalty of death." [197] The source of this may have been Article 33 of Geneva Convention IV, whose benefit, as noted above, is enjoyed by "protected persons", namely those in the hands of a Party to the conflict. Yet Article 125 is formulated quite generally and does not seem to be limited to protected persons, in the sense of the Geneva Conventions. The 1964 Criminal Code was unchanged in this respect. [198] The 1976 Criminal Code followed a different enumeration. The Chapter changed from XI to XVI, and the Article number from 125 to 142. The titles did not change. Article 142 came to read: "Whosoever, in violation of the rules of the international law during a war, an armed conflict or an occupation, orders [...] imposition of measures [against the civilian population] aimed at inducing fear and terror [...] or whosoever commits any of the said acts, shall be punished by imprisonment of not less than five years or by death." [199]

122. Following Yugoslavia's ratification of Additional Protocol I on 11 March 1977, the new treaty was incorporated into Yugoslavia's "[Armed Forces] Regulations on the Application of International Laws of War". The Trial Chamber was provided with the 1988 edition. [200] An order from the Federal President prefaces the regulations and tasks commanders of units with the responsibility "for the application of the international laws of war. The officer in charge shall institute proceedings against persons who violate the international laws of war for the pronouncement of the penalties prescribed by the law." [201] The applicable laws include Additional Protocol I. [202] "Serious" violations of the laws of war are considered criminal offences. [203] These include war crimes against a civilian population, namely "attack on civilians [...] inhuman treatment [of civilians] inflicting great suffering or injury to bodily integrity or health [...] application of measures of intimidation and terror " [204] and "deliberate bombardment of the civilian population". [205] In a later part, on means and methods of combat, the regulations state: "Attacking civilians for the purpose of terrorising them is especially prohibited." [206] The regulations point out that ignorance of the provisions of the laws of war "does not exonerate the transgressors from responsibility", [207] that the perpetrators of war crimes "may also answer before an international court, if such a court has been established", [208] and that the Criminal Code has been updated to criminalize and punish all aforementioned war crimes against the civilian population. [209] These updates to the Criminal Code are evident in the version of the Code promulgated by the Federal Republic of Yugoslavia in 1990, whose Article 142 repeats the text of 1976 (excerpted in the paragraph above) yet is augmented by prohibitions derived from the Additional Protocols of 1977. [210]

123. The "Serbian Republic" of Bosnia-Herzegovina did not disavow the regulatory regime which the Accused and other former JNA officers had laboured under while serving the Federation's armed forces. An "Order on the Application of the Rules of the International Law of War in the Army of the Serbian Republic of Bosnia and Herzegovina", signed by Radovan Karadzic on 13 May 1992 and published in the "Official Gazette of the Serbian People" on 13 June 1992, declared that "the Army [...] shall apply and respect the rules of the international law of war [...] includ[ing]: the international treaties signed, ratified or joined by the former Socialist Federal Republic of Yugoslavia; the customary international law of war; [and] the generally accepted principles of the international law of war. [...] It is the duty of the competent superior officer to initiate proceedings for legal sanctions against individuals who violate the rules of the international law of war." [211] These "proceedings for legal sanctions" were set down in greater detail in the " Guidelines for Determining Criteria for Criminal Prosecution" issued in 1992 by the Military Prosecutor's Office at the Main Staff of the Armed Forces of Republika Srpska. [212] Here the Military Prosecutor referred to the Criminal Code of the Federal Republic of Yugoslavia, which had been adopted by the "Serbian Republic" to the extent of preserving the title of the original Chapter - "Criminal Offences Against Humanity and International Law" - in which the updates referred to above in the Federation's Armed Forces Regulations had been implemented. [213] The Military Prosecutor noted the "unique nature" of that Chapter's criminal offences, which is to be seen "in their seriousness, which is expressed in severe punishments, including the death penalty". [214] "These criminal offences take the form of direct execution of criminal and inhumane acts against the civilian population [...] inhumane conduct, causing great suffering or injury to body or health [and] frightening and terrorising people." [215] The 1992 Guidelines instituted a procedure which relied on the army's officer corps to report violations of the laws of war to the Military Prosecutor's office. [216] The Guidelines warned officers that should they "take no measures to prevent the [...] acts themselves, and expose perpetrators to criminal prosecution, this in itself makes them answerable for these criminal offences." [217]

124. The 22 May 1992 Agreement states in its section on "Implementation" that each party "undertakes, when it is informed, in particular by the ICRC, of any allegation of violations of international humanitarian law, to open an enquiry promptly and pursue it conscientiously, and to take the necessary steps to put an end to the alleged violations or prevent their recurrence and to punish those responsible in accordance with the law in force." [218] Clearly the parties intended that serious violations of international humanitarian law would be prosecuted as criminal offences committed by individuals. [219]

125. The developments reviewed so far demonstrate that, by the time the second part of 51(2) was added verbatim to the 22 May Agreement it already had a significant history of usage by direct or indirect reference in the region of the former Yugoslavia.

126. There is at least one conviction for terrorism of the civilian population in the course of the Yugoslav conflict by a municipal court in the territory of the former Yugoslavia. In May 1997, the Split County Court in Croatia convicted Rajko Radulovic and other members of the army of "Republika Srpska" pursuant to provisions including Article 33 of Geneva Convention IV, Article 51 of Additional Protocol I, and Article 13 of Additional Protocol II, for, inter alia, "a plan of terrorising and mistreating the civilians", "carr[ying out] the orders of their commanders with the goal to terrorise", which included opening random fire against civilian areas and threatening to demolish, and indeed proceeding to demolish, a dam with the intention of drowning the approximately 30,000 people living downstream. [220]

127. Finally, the fact that there existed, by 1992, individual criminal responsibility for serious violations of the rule against terror under at least conventional law, is evident from the content and context of Additional Protocol I. If a violation charged against the Accused in the present case is of the same nature as that which States at the Diplomatic Conference collectively considered a grave breach, individual criminal responsibility for the charge would thereby have been established. Terror in the present Indictment is not charged as a grave breach of Additional Protocol I. But with regard to whether there was, in 1992, individual criminal responsibility for a person committing a serious violation of the rule prohibiting terror, this can be answered in the affirmative where the serious violation took the form of serious injury or death caused to civilians. In such cases the acts of violence qualified, in themselves, as grave breaches of Additional Protocol I. Therefore the violation seen in all its elements (attack plus intent to terrorize) could not have been qualified as less criminal than a grave breach.

128. The same conclusion is reached by another line of reasoning. Article 85 of Additional Protocol I is addressed to States, yet it delineates crimes, and legal elements of crimes, for which there is individual criminal responsibility. The Majority finds in Article 85's universal acceptance in the Diplomatic Conference clear proof that certain violations of Article 51(2) of Additional Protocol I had been criminalized. In particular, as already explained in the preceding section, there was individual criminal responsibility for "making the civilian population or individual civilians the object of attack", "when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health". [221] Alongside this component should be considered the unanimous and unqualified condemnation by the Diplomatic Conference of attacks against civilians intended to spread terror. That is, this specific intentional state - having the intent to spread terror - was also condemned. The serious violations alleged in the present case include both of the above components (wilfully attacking civilians resulting in death or serious injury plus the intent to terrorize them).

129. Because the alleged violations would have been subject to penal sanction in 1992, both internationally and in the region of the former Yugoslavia including Bosnia-Herzegovina, the fourth Tadic condition is satisfied.

130. Since all four conditions have now been satisfied, the Majority finds that serious violations of the second part of Article 51(2), and specifically the violations alleged in this case causing death or injury, entailed individual criminal responsibility in 1992. The Majority expresses no view as to whether the Tribunal also has jurisdiction over other forms of violation of the rule, such as the form consisting only of threats of violence, or the form comprising acts of violence not causing death or injury. This is not a question it has been called upon to decide.

131. It now falls to the Majority to specify, in the light of what has been considered above, including the preliminary remarks on statutory interpretation, the material and mental elements of the offence of terror over which the Majority has found the Tribunal has jurisdiction. The Majority recalls the submissions of the Parties on the elements, which were summarized in the introduction to this section, and in particular the submission that actual infliction of terror is one of the elements of the offence. The Majority reiterates that the Parties' submissions on the elements were tentative and were based on little authority.

132. The Majority finds that Count 1 of the Indictment charges the Accused with serious violations of the rule in Article 51(2) of Additional Protocol I that "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." The present case does not involve "threats" (except in the narrow sense of implicit threats proposed by the Prosecution), and therefore the Majority is not required to pronounce on a crime of terror consisting only of threats. The present case also does not involve allegations of harm other than the causing of death or serious injury to civilians (in contrast, for example, with the Motomura case, where the harm was in the form of unlawful mass arrests and ill-treatment of civilians). In articulating the elements of the specific offence relevant to the disposition of this case, the Majority relies necessarily on the wording of Article 51(2) of Additional Protocol I. The Trial Chamber's discussion of the crime of attack on civilians in the previous section is also relevant. That there is no uncertainty as to the meaning of the elements is demonstrated below with reference to the travaux préparatoires of the Diplomatic Conference. The Majority finds that the offence as here defined was criminalized in a precise and accessible manner by 1992, and that this was known or should have been known to the Accused. Therefore there is no affront to the principle of nullum crimen sine lege.

133. In conclusion, the crime of terror against the civilian population in the form charged in the Indictment is constituted of the elements common to offences falling under Article 3 of the Statute, as well as of the following specific elements:

1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.

2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence.

3. The above offence was committed with the primary purpose of spreading terror among the civilian population. [222]

134. The Majority rejects the Parties' submissions that actual infliction of terror is an element of the crime of terror. [223] The plain wording of Article 51(2), as well as the travaux préparatoires of the Diplomatic Conference exclude this from the definition of the offence. [224] Since actual infliction of terror is not a constitutive legal element of the crime of terror, there is also no requirement to prove a causal connection between the unlawful acts of violence and the production of terror, as suggested by the Parties. [225]

135. With respect to the "acts of violence", these do not include legitimate attacks against combatants but only unlawful attacks against civilians. [226]

136. "Primary purpose" signifies the mens rea of the crime of terror. [227] It is to be understood as excluding dolus eventualis or recklessness from the intentional state specific to terror. Thus the Prosecution is required to prove not only that the Accused accepted the likelihood that terror would result from the illegal acts - or, in other words, that he was aware of the possibility that terror would result - but that that was the result which he specifically intended. The crime of terror is a specific-intent crime. [228]

137. The meaning of "civilian population" was given in the section discussing the crime of attack on civilians. The Majority accepts the Prosecution's rendering of "terror" as "extreme fear". The travaux préparatoires of the Diplomatic Conference do not suggest a different meaning.

(v) Conclusion


138. The Majority is of the view that an offence constituted of acts of violence wilfully directed against the civilian population or individual civilians causing death or serious injury to body or health within the civilian population with the primary purpose of spreading terror among the civilian population - namely the crime of terror as a violation of the laws or customs of war - formed part of the law to which the Accused and his subordinates were subject to during the Indictment period. The Accused knew or should have known that this was so. Terror as a crime within international humanitarian law was made effective in this case by treaty law. The Tribunal has jurisdiction ratione materiae by way of Article 3 of the Statute. Whether the crime of terror also has a foundation in customary law is not a question which the Majority is required to answer.


B. Offences Charged under Article 5 of the Statute

1. Prerequisites of Article 5 of the Statute


139. For a crime to be adjudicated under Article 5 of the Statute (crimes against humanity), there are two prerequisites: that there was an armed conflict, and that the alleged criminal acts occurred during that armed conflict. [229] The latter "require[s] nothing more than the existence of an armed conflict at the relevant time and place." [230] No nexus between the underlying crime and the armed conflict is necessary. [231]

140. With regard to the general elements of a crime against humanity under Article 5 of the Statute, the Trial Chamber follows the law as stated by the Appeals Chamber. [232] The required elements related to actus reus are that:

(i) there must be an "attack;"

(ii) the underlying crime must be part of the attack;

(iii) the attack must be directed against any civilian population;

(iv) the attack must be widespread or systematic;

The mens rea requirement is that the perpetrator knows of the wider context in which the underlying crime occurs and knows that his or her conduct is part of the attack.

141. An "attack" may be defined as a course of conduct involving the commission of acts of violence. [233] In the context of a crime against humanity, "attack" is not limited to armed combat. [234] It may also encompass situations of mistreatment of persons taking no active part in hostilities, such as of a person in detention. [235] In comparing the content of customary international law concerning crimes against humanity to the Tribunal's Statute, the Appeals Chamber noted that "the 'attack on the civilian population' and the 'armed conflict' must be separate notions, although of course under Article 5 of the Statute the attack on 'any civilian population' may be part of an 'armed conflict'". [236] In accordance with customary international law, the attack could precede, outlast, or continue during the armed conflict, but it need not be a part of it. [237]

142. The phrase "directed against" is an expression which "specifies that in the context of a crime against humanity the civilian population is the primary object of the attack." [238] In order to determine whether the attack may be said to have been so directed, the following, inter alia, are to be considered: the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time, and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirement of the laws of war. [239]

143. The attack must be directed against a "civilian population." [240] A population may qualify as "civilian" even if non-civilians are among it, as long as the population is predominantly civilian. [241] The definition of a "civilian" is expansive and includes individuals who at one time performed acts of resistance, as well as persons hors de combat when the crime was perpetrated. [242] There is no requirement that the entire population of the area in which the attack is taking place must be subjected to that attack. [243] It is sufficient to show that a certain number of individuals were targeted in the course of the attack, or that individuals were targeted in such a way as to compel the conclusion that the attack was in fact directed against a civilian "population," rather than against a small and randomly selected number of individuals. [244]

144. The Prosecution submits that, in the context of an armed conflict, the determination that an attack is unlawful in light of treaty and customary international law with respect to the principles of distinction and proportionality is critical in determining whether the general requirements of Article 5 have been met. [245] Otherwise, according to the Prosecution, unintended civilian casualties resulting from a lawful attack on legitimate military objectives would amount to a crime against humanity under Article 5 and lawful combat would, in effect, become impossible. [246] It therefore submits that an accused may be found guilty of a crime against humanity if he launches an unlawful attack against persons taking no active part in the hostilities when the general requirements of Article 5 have been established. [247] The Trial Chamber accepts that when considering the general requirements of Article 5, the body of laws of war plays an important part in the assessment of the legality of the acts committed in the course of an armed conflict and whether the population may be said to have been targeted as such. [248]

145. Evidence of attack by opposing forces on the civilian population to which the accused belongs may not be introduced unless it tends to prove or disprove an allegation made in an indictment, such as the Prosecution's contention that there was a widespread or systematic attack against a civilian population. [249] A submission that the opposing side is responsible for starting the hostilities is not relevant to disproving the allegation that there was an attack on the civilian population in question. [250]

146. The attack must be widespread or systematic. "Widespread" denotes a large-scale attack with a large number of victims, [251] while "systematic" refers to the organized nature of the attack. [252] The assessment of what constitutes a widespread or systematic attack is relative to the civilian population under attack. [253] The Trial Chamber must first identify the population which is the object of the attack and, in light of the means, methods, patterns, resources, participation of officials or authorities, and result of the attack upon that population, ascertain whether the attack was widespread or systematic. [254]

147. The jurisprudence of the Tribunal has established that there is no requirement under customary international law that the attack be connected to a policy or plan. [255] Evidence of a plan or policy may, however, be used in showing that the attack was widespread or systematic. [256]

148. In addition to the intent to commit the underlying crime, the accused must know that there is an attack directed against the civilian population and that the acts performed by him or her are part of that attack. [257] Knowledge of the details of the attack is not necessary, [258] and it is not required that the accused shares the purpose or goal behind the attack. [259] It is sufficient that through his or her acts or function the accused knowingly participated in the attack. [260]


2. Crimes Alleged under Article 5 of the Statute


(a) Murder


149. Counts 2 and 5 of the Indictment charge the Accused with murder as a crime against humanity pursuant to Article 5(a) of the Statute. The counts are referenced to the Accused's alleged conduct of a coordinated and protracted campaign of sniping, artillery, and mortar attacks upon civilian areas and the civilian population of Sarajevo, resulting in the death of civilians.

150. The basic requirements for murder as a crime against humanity are that: [261]

(a) the victim died;

(b) the victim's death was caused by an act or omission of the accused, or of a person or persons for whose acts or omissions the accused bears criminal responsibility; and

(c) the act was done, or the omission was made, by the accused, or by a person or persons for whose acts or omissions the accused bears criminal responsibility, with an intention:

(i) to kill, or

(ii) to inflict serious injury, in reckless disregard of human life. [262]

(b) Inhumane acts


151. Counts 3 and 6 charge the Accused with inhumane acts as a crime against humanity pursuant to Article 5(i) of the Statute. The counts are referenced to the Accused's alleged conduct of a coordinated and protracted campaign of sniping, artillery, and mortar attacks upon civilian areas and the civilian population of Sarajevo, resulting in the suffering and injury of civilians.

152. The crime of inhumane acts is a residual clause for serious acts which are not otherwise enumerated in Article 5 but which require proof of the same chapeau elements. [263] The elements of the crime of inhumane acts are that: [264]

(a) there was an act or omission of similar seriousness to the other acts enumerated in Article 5;

(b) the act or omission caused serious mental or physical suffering or injury [265] or constituted a serious attack on human dignity; and

(c) the act or omission was performed intentionally by the accused, or by a person or persons for whose acts and omissions the accused bears criminal responsibility.

153. In order to assess the seriousness of an act or omission, consideration must be given to all the factual circumstances of the case. These circumstances may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex, and health, and the physical, mental, and moral effects of the act or omission upon the victim. [266]

154. The intention to inflict inhumane acts is satisfied where the offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack upon the human dignity of the victim, or where he knew that his or her act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity. [267]

155. Because some of the charges in this Indictment have the same underlying facts in common, the Trial Chamber will consider the law on cumulation of charges and convictions.


C. Cumulative Charging and Convictions

1. Cumulative Charging


156. The Defence deems it "unacceptable" that the Accused be cumulatively charged with three different crimes (murder, inhumane acts, and attacks on civilians) on the basis of the same set of factual allegations. [268] The Appeals Chamber of the Tribunal has pronounced on the issue of cumulative charging and stated that "cumulative charging constitutes the usual practice of both this Tribunal and the ICTR" and "is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven". [269] The Defence's arguments with regard to cumulative charging are dismissed.

2. Cumulative Convictions

157. In the present case the criminal conduct alleged against the Accused is the same for Count 1 and Counts 4 and 7 under Article 3 of the Statute (violations of the laws and customs of war: terror upon the civilian population and attack on civilians ). The same alleged conduct serves as a basis also for the counts under Article 5 of the Statute (crimes against humanity: murders and inhumane acts). The Trial Chamber must decide in each case on which charges it is permissible to enter a conviction if the legal elements of the crimes were proved.

158. According to the Appeals Chamber it is permissible to enter cumulative convictions under different statutory provisions to punish the same criminal acts if "each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not contained in the other." [270] If it is not the case that each statutory provision involved has a materially distinct element, a conviction should be entered only under the more specific provision, namely the one with the additional element. [271]

(a) Article 3: The Test Applied to Count 1 and Counts 4 and 7


159. Count 1 is referenced to attacks on civilians by sniping and shelling, and Counts 4 and 7 are referenced, respectively, to the same attacks of sniping and shelling.

160. The Majority of the Trial Chamber has found that the crime of terror in Count 1 is defined as "1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population. 2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence. 3. The above offence was committed with the primary purpose of spreading terror among the civilian population."

161. The Trial Chamber has found that the crime of attack on civilians in Counts 4 and 7 is defined as "1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population. 2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence."

162. Applying the aforementioned test, convictions for the crimes of terror and attack on civilians under Article 3 of the Statute based on the same conduct are not permissible. The legal elements are the same except that the crime of terror contains the distinct material element of "primary purpose of spreading terror." This makes it more specific than the crime of attack on civilians. Therefore, if all relevant elements were proved, a conviction should be entered for Count 1 only.

(b) Articles 3 and 5: Cumulation for War Crimes and Crimes against Humanity


163. The Appeals Chamber has stated that it is permissible to cumulate convictions for the same acts under Articles 3 and 5 of the Statute. [272] Therefore, a conviction for the crime of terror upon the civilian population (Article 3 of the Statute) and convictions for murder and inhumane acts (Article 5 of the Statute) may stand together.

(c) Article 5: The Counts of Murder and Inhumane acts


164. The counts of murder and inhumane acts as crimes against humanity are not based upon the same criminal conduct. They seek to punish, respectively, murder of civilians through sniping and shelling attacks (Article 5(a) of the Statute), and other harm suffered by civilians through sniping and shelling attacks, in particular serious injury (Article 5(i) of the Statute). Therefore the issue of cumulative convictions does not arise.


D. Theories of Responsibility under Article 7 of the Statute

165. The Indictment alleges that General Galic, as commander of the Sarajevo Romanija Corps, and pursuant to Article 7(1) of the Statute, bears individual criminal responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of the campaign of shelling and sniping against the civilian population of Sarajevo. [273] The Accused is also alleged to bear individual criminal responsibility pursuant to Article 7(3) of the Statute for the conduct of his subordinates. [274]

166. Article 7 of the Statute provides for imposition of individual and superior responsibility on persons on the following basis:

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2. [...]

3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.


1. Individual Responsibility under Article 7 (1) of the Statute

167. The Indictment, in describing the Accused's responsibility, makes reference to each head of responsibility in Article 7(1). [275] In the Prosecution's Final Trial Brief reference is made to "ordering" as the basis of responsibility. It is within the Trial Chamber's discretion to convict, if at all, the Accused under the appropriate head of responsibility within the limits set by the Indictment and insofar as the evidence permits. [276]

168. The Trial Chamber considers, briefly, the case-law of the International Tribunals which elaborates the elements of the various heads of individual criminal responsibility in Article 7(1) of the Statute. [277] Considering them in the order in which they appear in the Statute, "planning" has been defined to mean that one or more persons designed the commission of a crime, at both the preparatory and execution phases, [278] and the crime was actually committed within the framework of that design [279] by others. [280] "Instigating" means prompting another to commit an offence, which is actually committed. [281] It is sufficient to demonstrate that the instigation was "a clear contributing factor to the conduct of other person(s)". [282] It is not necessary to demonstrate that the crime would not have occurred without the accused's involvement. [283] "Ordering " means a person in a position of authority using that authority to instruct another to commit an offence. The order does not need to be given in any particular form. [284] "Committing" means that an " accused participated, physically or otherwise directly, in the material elements of a crime under the Tribunal's Statute". [285] Thus, it "covers first and foremost the physical perpetration of a crime by the offender himself." [286] "Aiding and abetting" means rendering a substantial contribution to the commission of a crime. [287] These forms of participation in a crime may be performed through positive acts or through culpable omission. [288] It has been held in relation to "instigating" that omissions amount to instigation in circumstances where a commander has created an environment permissive of criminal behaviour by subordinates. [289] The Defence contests the applicability of that case-law and considers that "in all the cases (under Article 7(1)( a person must undertake an action that would contribute to the commission of a crime". [290]

169. In the Majority's opinion, a superior may be found responsible under Article 7(1) where the superior's conduct had a positive effect in bringing about the commission of crimes by his or her subordinates, provided the mens rea requirements for Article 7(1) responsibility are met. Under Article 7(3) (see further below) the subordinate perpetrator is not required to be supported in his conduct, or to be aware that the superior officer knew of the criminal conduct in question or that the superior did not intend to investigate or punish the conduct. More generally, there is no requirement of any form of active contribution or positive encouragement, explicit or implicit, as between superior and subordinate, and no requirement of awareness by the subordinate of the superior's disposition, for superior liability to arise under Article 7(3). Where, however, the conduct of the superior supports the commission of crimes by subordinates through any form of active contribution or passive encouragement (stretching from forms of ordering through instigation to aiding and abetting, by action or inaction amounting to facilitation), the superior's liability may be brought under Article 7(1) if the necessary mens rea is a part of the superior's conduct. In such cases the subordinate will most likely be aware of the superior's support or encouragement, although that is not strictly necessary. In the Majority's view, the key point in all of this is that a superior with a guilty mind may not avoid Article 7(1) responsibility by relying on his or her silence or omissions or apparent omissions or understated participation or any mixture of overt and non-overt actions, where the effect of such conduct is to commission crimes by subordinates.

170. The Trial Chamber notes that the regulations concerning the application of the laws of war to the armed forces of the SFRY, which would have been known to the Accused, provided under the heading "Responsibility for the acts of subordinates " that, inter alia, "a military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinates units to continue to commit the acts." [291] In situations where a person in authority under duty to suppress unlawful behaviour of subordinates of which he has notice does nothing to suppress that behaviour, the conclusion is allowed that that person, by positive acts or culpable omissions, directly participated in the commission of the crimes through one or more of the modes of participation described in Article 7(1).

171. Proof of all forms of criminal responsibility can be given by direct or circumstantial evidence. [292] For instance, "ordering " - a form of responsibility emphasized by the Prosecution in its Final Trial Brief - may be inferred from a variety of factors, such as the number of illegal acts, the number, identity and type of troops involved, the effective command and control exerted over these troops, the logistics involved, the widespread occurrence of the illegal acts, the tactical tempo of operations, the modus operandi of similar acts, the officers and staff involved, the location of the superior at the time and the knowledge of that officer of criminal acts committed under his command. [293]

172. In order for individual criminal responsibility to ensue, conduct must be coupled with intent. The requisite mens rea for all forms of participation under Article 7(1) is that the accused "acted in the awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct." [294] The mens rea of the accused need not be explicit but may be inferred from the circumstances. [295]

2. Article 7 (3) of the Statute

173. The case-law of the International Tribunal establishes that the following three conditions must be met before a person can be held responsible for the criminal acts of another under Article 7(3) of the Statute: (1) a superior-subordinate relationship existed between the former and the latter; (2) the superior knew or had reason to know that the crime was about to be committed or had been committed; and (3) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator. [296] The Appeals Chamber has said that control must be effective for there to be a relevant relationship of superior to subordinate. [297] Control is established if the commander had "the power or authority in either a de jure or a de facto form to prevent a subordinate's crime or to punish the perpetrators of the crime after the crime is committed." [298] The Appeals Chamber emphasised that "in general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a Court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced." [299]

174. In the absence of direct evidence of the superior's actual knowledge of the offences committed by his or her subordinates, this knowledge may established through circumstantial evidence. The Trial Chamber may consider, inter alia, the indicia given by the United Nations Commission of Experts in its Final Report on the armed conflict in former Yugoslavia. [300] The Trial Chamber also takes into consideration the fact that the evidence required to prove such knowledge for a commander operating within a highly disciplined and formalized chain of command with established reporting and monitoring systems is not as high as for those persons exercising more informal types of authority.

175. In relation to the superior's "having reason to know" that subordinates were about to commit or had committed offences, "a showing that a superior had some general information in his possession which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he had 'reason to know'." [301] The information available to the superior may be in written or oral form. It need not to be explicit or specific. [302] For instance, past behaviour of subordinates or a history of abuses might suggest the need to inquire further. It is not required that the superior had actually acquainted himself or herself with the information in his or her possession. [303]

176. The evaluation of the action taken by individuals in positions of superior authority who have a legal duty to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators, must be done on a case-by-case basis. Furthermore, it must be kept in mind that the superior is not obliged to perform the impossible; "a superior should only be held responsible for failing to take such measures that are within his material possibility". [304]

177. Finally, in cases where concurrent application of Articles 7(1) and 7(3) is possible because the requirements of the latter form of responsibility are satisfied alongside those of the former, the Trial Chamber has the discretion to choose the head of responsibility most appropriate to describe the criminal responsibility of the accused. [305]


Footnotes

1 - Prosecution Opening Statement, T. 562-3.
2
- The First Schedule refers to sniping incidents allegedly committed against civilians by forces under the command and control of the Accused. The Second Schedule lists a number of shelling incidents allegedly committed against civilian targets by forces under the command and control of the Accused, Indictment, para. 15.
3
- See Decision on Acquittal (details of that decision are mentioned in Annex B of this Judgement).
4
- See the Indictment in Annex A. General Galic is charged with four crimes against humanity (murder and inhumane acts) under Article 5 of the Statute and with three violations of the laws or customs of war (inflicting terror on civilians and attacks on civilians) under Article 3 of the Statute.
5
- Rule 98 ter (C): the judgement shall be rendered by a majority of judges.
6
- Tadic Jurisdiction Decision, para. 94.
7
- Id., para. 70.
8
- Id., para. 89.
9
- Id., para. 91.
10
- Tadic Jurisdiction Decision, para. 89; Kunarac Trial Judgement, para. 401; Furundzija Trial Judgement, paras 131-133.
11
- Tadic Jurisdiction Decision, para. 94.
12
- Prosecution Pre-Trial Brief, para. 137; Prosecution Final Trial Brief, paras 11 to 15.
13
- Prosecution Pre-Trial Brief, para. 137; Prosecution Final Trial Brief, para. 15.
14
- Prosecution Pre-Trial Brief, para. 136; Prosecution Final Trial Brief, paras 11 and 12; Prosecution Closing Arguments, T. 21950 (private session).
15
- Prosecution Pre-Trial Brief, para. 132.
16
- Prosecution Closing Arguments, T. 21970.
17
- Defence Pre-Trial Brief, para. 8.11. Both parties also stipulated that "[a]ll parties to the armed conflict were required to abide by the laws and customs governing the conduct of war" (Schedule of Facts Stipulated to by the Parties, 26 October 2001, stipulated fact No. 23).
18
- Defence Final Trial Brief, para. 1093.
19
- Id., para. 1096.
20
- Id., para. 971.
21
- Id., paras 971-2.
22
- Id., para. 977.
23
- Defence Closing Arguments, T. 21966-73.
24
- Tadic Jurisdiction Decision, para. 127; Kupreskic Trial Judgement, para. 521.
25
- Strugar Interlocutory Appeal, para. 10; Martic Rule 61 Decision, para. 10. See also Kordic Jurisdiction Decision, para. 31.
26
- Both instruments were ratified by the Socialist Federal Republic of Yugoslavia (SRFY) on 11 June 1979. The Republic of Bosnia-Herzegovina deposited its Declaration of Succession on 31 December 1992, declaring it became party to the Geneva Conventions and the Additional Protocols as of the date of its independence, 6 March 1992.
27
- See Article 1 of Additional Protocol I and Article 1 of Additional Protocol II to the Geneva Conventions of 1949.
28
- Parties to an armed conflict may agree to bring into force provisions applicable to international armed conflicts. This is reflected in Common Article 3 to the Geneva Conventions and Article 96 of Additional Protocol I.
29
- P58 (22 May Agreement), para. 2.3. The parties agreed to apply Articles 13 to 34 of the Fourth Geneva Convention of 1949. In addition, paragraph 2.3 of the 22 May Agreement specifically provides that: "The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. They shall not be made the object of attack".
30
- P58 (22 May Agreement), para. 2.5. Each party also agreed to undertake "when it is informed, in particular by the ICRC, of any allegation of violations of international humanitarian law, to open an enquiry promptly and pursue it conscientiously, and to take the necessary steps to put an end to the alleged violations or prevent their recurrence and to punish those responsible in accordance with the law in force" (para. 5).
31
- Letter dated 12 June 1995, para. A (DDM/JUR 95/931 MSS/RBR). Copy available at ICTY Library.
32
- The representatives were Mr. K. Trnka, representative of the President of the Republic of Bosnia-Herzegovina, Mr. D. Kalinik, representative of the President of the Serbian Democratic Party, Mr. S. Sito Coric, representative of the President of the Croatian Democratic Community.
33
- This agreement deals with matters such as the exchange and release of prisoners, measures to be taken to de-block populations or objects, identification of humanitarian corridors, and security guarantees to be afforded to the ICRC. Copy available at ICTY Library.
34
- 6 June Agreement, Section II, para. 6. Copy available at ICTY Library.
35
- Id., para. 7.
36
- Id., para. 10.
37
- The three parties to conflict were represented in London by Radovan Karadzic, President of the Serbian Democratic Party, Alija Izetbegovic, President of the Republic of Bosnia-Herzegovina and Mate Boban, President of the HDZ.
38
- Programme of Action on Humanitarian Issues, Article 3. Copy available at ICTY library.
39
- Agreement on the Release and Transfer of Prisoners, Preamble. Copy available at ICTY library. The October Agreement further stated that: "All prisoners not accused of, or sentenced for, grave breaches of International Humanitarian Law as defined in Art. 50 of the First, Art. 51 of the Second, Art. 130 of the Third and Art. 147 of the Fourth Geneva Convention, as well as in Art. 85 of Additional Protocol I, will be unilaterally and unconditionally released." Id., Art. 3 ( emphasis added).
40
- Tadic Jurisdiction Decision, para. 94.
41
- See Art. 85(3) of Additional Protocol I.
42
- Tadic Jurisdiction Decision, para. 94.
43
- Id., para. 134.
44
- Strugar Interlocutory Appeal, para. 10.
45
- See Art. 85(3) (a) of Additional Protocol I. See also ICRC Commentary, paras 1932, 1941.
46
- See the Programme of Action on Humanitarian Issues, Article 3(i); October Agreement, Article 3.
47
- See, e.g., Law of 16 June 1993 relative to the repression of serious violations of international humanitarian law, Belgium, Chapter 1§3, No.11; Swedish Penal Code, Chap. 22, §6, No. 3 and 4 (1990); Hungarian Criminal Code, Chapter XI, Section 160 (1978); Philippine Criminal Code, Article 334 (1964); Criminal Code of Mozambique, Article 83 (1987); Italian Criminal Military Code of War, Article 185 (1941); Spanish Penal Code, Article 611 (1) (1995); Croatian Penal Code, Article 120 (1) (1991).
48
- Original code (Sluzbeni list SFRJ, br. 38/90) available at ICTY Library.
49
- BiH Decree-law of 11 April 1992 (Sluzbeni list RbiH, br. 2/92) available at ICTY Library.
50
- See, e.g., United States Field Manual No. 27-10: The Law of Land Warfare, para. 25 (1976); United Kingdom Manual of Military Law, chap. 4, para. 88 (1958); German Military Manual (Humanitäres Völkrerrecht in bewaffneten Konflikten-Handbuch), paras 404 and 451 (1992) (English translation available at ICTY library); Canadian Law of Armed Conflict at the Operational and Tactical Level, Section 4, paras 15 and 22 (1992); Dutch "Soldiers Handbook" (Handboek voor de Soldaat), VS 2-1350, Chapter VII, Art. 34 (1974); Australian Law of Armed Conflict Commander's Guide (ADFP 37 Supplement 1), para. 1302 (1994); New Zealand Interim Law of Armed Conflict Manual, para. 517 (1992); Canadian Law of Armed Conflict at the Operational and Tactical Level, Section 4, paras 15, 22 (1992); Soviet Minister of Defence Order No. 75 of 16 February 1990 on the Publication of the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of War and their Additional Protocols (1990), art. 8, para. (f). (French translation available at the ICRC's web site: .).
51
- P5 (1988 Yugoslavia Regulations on the Application of International Laws of War in the Armed Forces of the SRFY), para. 33.
52
- Prosecution Pre-Trial Brief, para. 160; Prosecution Final Trial Brief, para. 9. The Prosecution submits that, in addition, two common elements of Article 3 of the Statute must be met, namely that: (1) there was a nexus between the attack and an armed conflict; and (2) the accused bears individual criminal responsibility for the attack under either Article 7(1) or 7(3) of the Statute. Prosecution Final Trial Brief, para. 9.
53
- Prosecution Pre-Trial Brief, paras 133, 139; Prosecution Final Trial Brief, para. 9.
54
- Prosecution Pre-Trial Brief, paras 155-6; Prosecution Final Trial Brief, paras 16-17.
55 - Prosecution Response to Defence Motion to Acquit, para. 9.
56
- Prosecution Pre-Trial Brief, para. 165.
57
- Prosecution Final Trial Brief, para. 10.
58
- Id., para. 16.
59
- Prosecution Pre-Trial Brief, para. 157; Prosecution Final Trial Brief, para. 17.
60
- Prosecution Final Trial Brief, paras 21-33.
61
- Id., para. 23.
62
- Id., para. 24.
63
- Id., paras 25-29.
64
- Id., para. 22.
65
- Id., paras 669-76.
66
- Defence Motion to Acquit, paras 8(b). The Defence point to the difficulties of distinguishing between civilians and combatants in the context of urban warfare. Defence Final Trial Brief, paras 464-82, 707-10.
67
- Defence Final Trial Brief, paras 464-82.
68
- Id., para. 810.
69
- Id., para. 812.
70
- In its Pre-Trial Brief, the Defence asserts that civilian casualties caused during the conflict in Sarajevo were due to the failure of the ABiH to respect its obligations under Article 58 of Additional Protocol I. Defence Pre-Trial Brief, paras 8.14-8.15. In its Final Trial Brief, the Defence submits that the failure of the ABiH to remove the civilian population from the proximity of military objectives was a violation of its obligations under Article 28 of the Fourth Geneva Convention. Defence Final Trial Brief, para. 537.
71
- Defence Final Trial Brief, paras 13-14, 986.
72
- BlaSkic Trial Judgement, para. 180.
73
- Id., para. 180.
74
- Kordic Trial Judgement, para. 328.
75
- See Article 85(3)(a) of Additional Protocol I.
76
- In its broad sense, military necessity means "doing what is necessary to achieve a war aim". (Dictionary of International Law of Armed Conflict, ed. ICRC, 1992). The principle of military necessity acknowledges the potential for unavoidable civilian death and injury ancillary to the conduct of legitimate military operations. However, this principle requires that destroying a particular military objective will provide some type of advantage in weakening the enemy military forces. Under no circumstance are civilians to be considered legitimate military targets. Consequently, attacking civilians or the civilian population as such cannot be justified by invoking military necessity. See also Art. 57(5) of Additional Protocol I. The following finding by the Nuremberg Tribunal in the United States v. List case provides some guidance in this respect: "Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money [...] It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger, but does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces." (11 Trials of War Criminals before the Nuremberg Military Tribunals 1253-4 (1950)).
77
- It should be noted further that, in Article 51(6), Additional Protocol I explicitly prohibits "attacks against the civilian population or civilians by way of reprisals". This prohibition is based on the principle of protection of civilians. At ratification of Additional Protocol I, a number of states made statements of interpretation which appeared to keep open the possibility of reprisals, subject to certain requirements. For example, Italy's statement of interpretation included the following: "Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violations." (Statements of Understanding made by Italy (27 February 1986). See also, e.g., Statement of Understanding made by the United Kingdom (28 January 1998)). The Trial Chamber will not pronounce itself on the legal consequences of these declarations. However, it notes that the language of Article 51(6) of Additional Protocol I implies that the prohibition against reprisals cannot be waived on the grounds of military necessity.
78
- The Trial Chamber notes that, already in 1868, the Preamble to the St Petersburg Declaration stated that the "technical limits at which the necessities of war ought to yield to the requirements of humanity" and that the weakening of the military forces of the enemy should be "the only legitimate object which states should endeavour to accomplish during war." The Brussels Declaration of 1874 stated in its articles 15-18 that civilian dwellings are immune from attacks. This Declaration laid the groundwork for the Fourth Hague Convention of 1907, which established in its Article 25 that "the attack or bombardment, by any means whatever, of undefended towns, villages, dwellings or building, is forbidden." In 1937, during the Spanish Civil War, Prime Minister Chamberlain, in the British House of Commons, made explicit reference to the rule forbidding attacks on the civilian population as such. In June 1938, following the German and Italian air forces operations during this conflict and similar attacks carried out by Japan in China, he stated in the House of Commons that one of the three rules or principles of international law equally applicable to air, land, or sea warfare in any armed conflict was the rule whereby "it is against international law to bomb civilians as such and to make deliberate attacks upon civilian populations." (House of Commons Debates, Vol. 337, 21 June 1938, cols. 937-8). This same rule was later reaffirmed by the Assembly of the League of Nations in 1938, which adopted a resolution on 30 September 1938 regarding both the Spanish Civil War and the Chinese-Japanese War, stating in general terms that "intentional bombing of civilian population is illegal." The applicability of this rule in all armed conflicts was further corroborated by General Assembly Resolutions 2444 (1968) and 2675 (1970), both adopted unanimously. In its Resolution 2444, the General Assembly affirmed that "the following principles for observance by all governmental and other authorities responsible for action in armed conflicts: (b) that it is prohibited to launch attacks against the civilian populations as such". (G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N. Doc A/7218(1968)). In its Resolution 2675, it stated that "the following basic principles for the protection of civilian populations in armed conflicts, without prejudice to their future elaboration within the framework of progressive development of the international law or armed conflict (4) [C]ivilian populations as such should not be the object of military operations." (G.A. Res. 2675, U.N. GAOR, 25th Session, Supp. No. 28 U.N. Doc A/8028 (1970)). Evidence of the existence of opinio iuris regarding the prohibition against attacking civilians and its applicability in all armed conflicts can also be found in the Resolution adopted by the Institute of International Law in its Edinburgh session in 1969, entitled "The Distinction between Military Objectives and Non-Military Objectives in General and Particularly the Problems Associated with Weapons of Mass Destruction". It noted that "[e]xisting international law prohibits all armed attacks on the civilian populations as such [...]." (D. Schindler and J. Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp 265-6). The customary status of this prohibition is further borne out of the travaux préparatoires of the Additional Protocols. For example, the United Kingdom delegate in the Diplomatic Conference observed that paragraphs 1 to 3 of Article 51 entitled "protection of the civilian population" contain "a valuable reaffirmation of existing customary rules of international law" designed to protect civilians. (See 6 Official Records, p. 164). For the Ukrainian delegate, paragraph 2 is "in line with the generally recognized rules of international law" (Ibid, p. 201). The Canadian delegate indicated that many of the provisions of Article 51 are "codification of customary international law" (Ibid, p. 179). The ICRC Commentary describes Article 51 as a "key article in the Protocol" and as an "indispensable provision". It also points out that Article 51 was originally presented as one of the provisions to which reservations were prohibited (O.R. X, p. 251, CDDH/405/Rev.1). The idea of having a core of provisions to which no reservation would be allowed was eventually rejected, but some delegations nevertheless expressed the view that reservations to this article would be incompatible with object and purpose of the treaty. (O.R. VI, p. 167, CDDH/SR.41, paras 135-7; p. 187, Id. Annex (GDR), pp 192-3 (Mexico)). See also ICRC Commentary, para. 1930.
79
- See Article 48 of Additional Protocol I. This article enunciates the principle of distinction as a basic rule.
80
- ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78. The International Court of Justice further asserted that "these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law". Id., para.79.
81
- Article 51(1) of Additional Protocol I states clearly that "the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations". To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances." Among the instruments that provide rules for the protection of civilians are, inter alia, the Hague Regulations, annexed to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Fourth Geneva Convention of 1949.
82
- The Trial Chamber recalls that the principle of nullum crimen sine lege "does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime(,( nor does it prevent a court from relying on previous decisions which reflect an interpretation as to the meaning to be ascribed to particular ingredients of a crime." Aleksovski Appeal Judgement, para. 127.
83
- Art 4 of the Third Geneva Convention states, inter alia: " A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (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; c) that of carrying arms openly; 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."
84
- Art 43 of Additional Protocol I states: "1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict."
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 Nº 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).
89
- See Article 50(1) of Additional Protocol I.
90
- See ICRC Commentary, para. 1938. The terms of this provision of Additional Protocol I reflect the language of General Assembly Resolutions 2444 (1968) and 2675 (1970). The Appeals Chamber has considered these resolutions to be declaratory of customary international law in this field. See Tadic Decision on Jurisdiction, para. 112.
91
- See Article 50(3) of Additional Protocol I. The Commentary to this paragraph notes that: "(i(n 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.
94
- Article 52(2) of Additional Protocol I. See Kordic Trial Judgement, para. 327.
95
- Article 52(2) of Additional Protocol I.
96
- Article 52(3) of Additional Protocol I.
97
- ICRC Commentary, para. 4783.
98
- Krnojelac Trial Judgment, para. 54; Kunarac Trial Judgment, para. 415.
99
- See Article 85(3)(a) of Additional Protocol I.
100
- ICRC Commentary, para. 3474.
101
- Other Trial Chambers have found that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives are tantamount to direct targeting of civilians. For example, the Blaskic Trial Chamber inferred from the arms used in an attack carried out against the town of Stari Vitez that the perpetrators of the attack had wanted to target Muslim civilians, since these arms were difficult to guide accurately, their trajectory was "irregular" and non-linear, thus being likely to hit non-military targets. Blaskic Trial Judgement, paras 501, 512. In the Martic Rule 61 proceedings, the Trial Chamber regarded the use of an Orkan rocket with a cluster bomb warhead as evidence of the intent of the accused to deliberately attack the civilian population. The Chamber concluded that "in respect of its accuracy and striking force, the use of the Orkan rocket in this case was not designed to hit military target but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law". The Trial Chamber based this finding on the fact that the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city, Martic Rule 61 Decision, paras 23-31. It is relevant to note that the International Court of Justice has stated, with regard to the obligation of States not to make civilians the object of attack, that "they must consequently never use weapons that are incapable of distinguishing between civilian and military targets", ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78.
102
- Article 51(4) of Additional Protocol I prohibits indiscriminate attacks and provides the first conventional definition of indiscriminate attacks. Paragraph (5) of the same provision provides examples of attacks considered to be indiscriminate. The Kupreskic Trial Chamber held, with regard to the prohibition of launching indiscriminate attacks, that "it is nevertheless beyond dispute that at a minimum, large numbers of casualties would have been interspersed among the combatants. The point which needs to be emphasised is the sacrosanct character of the duty to protect civilians [...] Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians". Kupreskic Trial Judgement, para. 513. See also Blaskic Trial Judgement, paras 509-10.
103
- As recognized by the Appeals Chamber, among the customary rules that have developed to govern both international conflicts and non-international strife is the protection of the civilian population against indiscriminate attacks. Tadic Jurisdiction Decision, para. 127. The Trial Chamber observes that, already in 1922, the Air Warfare Rules enunciated the prohibition on indiscriminate attacks, by providing that "where military objectives were situated so that they could not be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from the bombardments." (Article 24 (3), Air Warfare Rules). These rules impose further limits to bombardments by providing in Article 24(4) that "in the immediate neighbourhood of the operations of land forces, the bombardments of cities, towns and villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardments, having regard to the danger thus posed to the civilian population". Although these rules were never adopted in legally binding form, they are considered to be an authorative interpretation of the law. (See, e.g., L. Oppenheim, International Law vol II, 7th ed, 1960). The IX Hague Convention concerning Bombing of Naval Forces in Time of War of 1907 also recognized in its Article 12 that collateral civilian casualties might result and urged that precautions be taken to avoid or minimize them. In March 1938, during the Spanish Civil War, the British Prime Minister explained the protest of his country to General Franco over the bombing of Barcelona to members of the House of Commons by stating that "The one definite rule of international law, however, is that direct and deliberate bombing of non-combatants is in all circumstances illegal, and His Majesty's Government's protest was based on information which led them to the conclusion that the bombardments of Barcelona, carried on apparently random and without special aim at military objectives, was in fact of this nature."(House of Commons Debates, vol. 333, 23 March 1938, col. 1177). In June of that year, in reference to the same conflict, the Prime Minister affirmed before the House of Commons the existence of a rule or principle of international law prescribing that "reasonable care must be taken in attacking....military objectives so that by carelessness a civilian population in the neighbourhood is not bombed." (House of Common Debates, vol. 337, 21 June 1938, cols 937-8). In 1938, the Assembly and the Council of the League of Nations both condemned attacks carried out without sufficient precautions to safeguard the civilian population. The Assembly of the League of Nations expressed the concern that the civilian population be bombarded through negligence by stating, inter alia, that "any attack on legitimate military objectives must be carried out in such a way that civilian population in the neighbourhood are not bombed through negligence". In this same sense, the Council of the League of Nations also adopted a resolution condemning inter alia as "contrary to the conscience of mankind and to the principles of international law air attacks by the insurgents directed "by negligence' against civilian population." In its already cited Resolution 2444 (1968), the UN General Assembly affirmed that among the principles applicable to all armed conflicts was that "a distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible." (G.A. Res. 2444, U.N. GAOR, 23rd Session, Supp. No. 18 U.N. Doc A/7218(1968)). Resolution 2675(1970) also stated that "in the conduct of military operations, every effort should be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury loss or damage to the civilian populations." (G.A. Res. 2675, U.N. GAOR, 25th Session, Supp. No. 28 U.N. Doc A/8028 (1970).
104
- The principle of proportionality, inherent to both the principles of humanity and military necessity upon which the law of conduct of hostilities is based, may be inferred, inter alia, from Articles 15 and 22 of the Lieber Code and from Article 24 of the 1924 Hague Air Warfare Rules. This principle was codified in Article 51(5)(b) and Article 57(2)(a)(iii) and (b) of Additional Protocol I. It should be noted that these provisions do not make explicit reference to the term "proportionality" but speak of "excessive" incidental civilian losses. Article 51(5) of Additional Protocol I provides that "(a(mong others, the following types of attacks are to be considered as indiscriminate: [...] (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." Article 57(2) of Additional Protocol I states that: "(2). With respect to attacks, the following precautions shall be taken: (a) [...] (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."
105
- See Article 57(2) of Additional Protocol I. The precautions required by Article 57(2)(a) must be "feasible" and, in this context, "feasible" means that which is practicable or practically possible. The French version of this paragraph reads: "faire tout ce qui est pratiquement possible[...]" (emphasis added). Italy stated in a declaration submitted upon ratification of Additional Protocol I that "feasible" must be understood to mean that which is "practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations". (See Statements of Understanding made by Italy (27 February 1986)). Several states have submitted similar declarations pertaining to Additional Protocol I, with no objections raised by other state parties. (See Statements of Understanding of Belgium (20 May 1986), The Netherlands (26 June 1987), Spain (21 April 1989), Canada (20 November 1990), Germany (14 February 1991), Australia (21 June 1991), and Egypt (9 October 1992). In another context, the European Commission and Court of Human Rights examined a case of "armed clash" in which a woman, standing in the doorway of her home, had been killed in the course of a supposed ambush operation carried out against members of an alleged armed group. Regarding the obligation to avoid incidental civilian losses, the Commission considered that the planning and control of the operation needed to be assessed "... not only in the context of the apparent targets of an operation but, particularly where the use of force is envisaged in the vicinity of the civilian population, with regard to the avoidance of incidental loss of life and injury to others" (Ergi v. Turkey No. 23818/94, Decision on admissibility of 2 March 1995, 80 D&R 157, Commission Report of 20 May 1997). The Court explicitly noted that the responsibility of the State "may also be engaged where ?the security forcesg fail to take all feasible precautions in the choice of means and methods of security operation mounted against an opposing group with the view to avoiding, or at least, minimising incidental loss of civilian life" (Ergi v. Turkey, Judgement of 28 July 1998, para. 79).
106
- See Article 51(5)(b) of Additional Protocol I. The travaux préparatoires of Additional Protocol I indicate that the expression "concrete and direct" was intended to show that the advantage must be "substantial and relatively close", and that "advantages which are hardly perceptible and those which would only appear in the long term should be disregarded". ICRC Commentary, para. 2209. The Commentary explains that "a military advantage can only consist in ground gained or in annihilating or in weakening the enemy armed forces". ICRC Commentary, para. 2218. Australia and New Zealand stated at the time of ratification, in almost identical wording, that "the term "concrete and direct military advantage anticipated', used in Articles 51 and 57 of Additional Protocol I, means bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved". (See Statements of Understanding made by New Zealand (8 February 1988) and Australia (21 June 1991)).
107 - See Article 57(2)(b) of Additional Protocol I.
108
- The ICRC Commentary acknowledges that "the disproportion between losses and damages caused and the military advantages anticipated raises a delicate problem; in some situations there will be no room for doubt, while in other situations there may be reason for hesitation. In such situations, the interests of the civilian population should prevail". ICRC Commentary, para. 1979.
109
- The Trial Chamber notes that the rule of proportionality does not refer to the actual damage caused nor to the military advantage achieved by an attack, but instead uses the words "expected" and "anticipated". When ratifying Additional Protocol I, Germany stated that "the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight". (See Statements of Understanding made by Germany (14 February 1991)). Similar declarations were also made by Switzerland (17 February 1982), Italy (27 February 1986), Belgium (20 May 1986), The Netherlands (26 June 1987), New Zealand (8 February 1988), Spain (21 April 1989), Canada (20 November 1990), and Australia (21 June 1991). No other party to Additional Protocol I has raised objections to these declarations.
110
- Military manuals provide guidance as to the practical application of this test. The Canadian Law of Armed Conflict at the Operational and Tactical Level, Section 5, para. 27 (1992) indicates, for example, that "consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made" and indicates that the proportionality test must be examined on the basis of "what a reasonable person would do" in such circumstances. The Australian Defence Force, Law of Armed Conflict - Commander's Guide (1994), at p. 9-10, and the New Zealand Interim Law of Armed Conflict Manual, at para. 515(4), contain a similar provision. See also, e.g., Yugoslav Regulation on the Application of international Laws of War in the Armed Forces of the SRFY, para. 72 (1988).
111
- See Article 85(3)(b) of Additional Protocol I.
112
- See Article 58 of Additional Protocol I.
113
- The Prosecution refers to it as "the offence of terror": see, for example, Prosecution Pre-trial Brief, para. 25.
114
- In the Celebici case, acts of intimidation creating an "atmosphere of terror" in prison camps were punished as grave breaches of the Geneva Conventions (torture or inhuman treatment) and as violations of Article 3 common to the Geneva Conventions (torture or cruel treatment): Celebici Trial Judgement, paras 976, 1056, 1086-91, and 1119. In the BlaSkic case "the atmosphere of terror reigning in the detention facilities" was part of the factual basis leading to the Accused in that case being convicted for the crimes of inhuman treatment (a grave breach) and cruel treatment (a violation of the laws or customs of law): BlaSkic Trial Judgement, paras 695, 700, and 732-3. BlaSkic's additional conviction for "unlawful attack" on civilians was based in part upon the finding that his soldiers "terrorised the civilians by intensive shelling, murders and sheer violence" (Id., para. 630; also paras 505, 511). And in the Krstic case, General Krstic was accused of persecutions, a crime against humanity, on the basis of his alleged participation in "the terrorising of Bosnian Muslim civilians": Krstic Trial Judgement, para. 533. The Trial Chamber found that a "terror campaign" was in existence: "Numerous witnesses gave evidence that, during Operation Krivaja 95, the VRS shelled the Srebrenica enclave intensively with the apparent intent to terrify the populace" (Id., para. 122). Moreover: "On 12 and 13 July 1995, upon the arrival of Serb forces in Potocari, the Bosnian Muslim refugees taking shelter in and around the compound were subjected to a terror campaign comprised of threats, insults, looting and burning of nearby houses, beatings, rapes, and murders" (Id., para. 150). The Trial Chamber in Krstic characterized "the crimes of terror", and the forcible transfer of the women, children, and elderly at Potocari as constituting persecution and inhumane acts (Id., para. 607; see also paras 1, 41, 44, 46, 147, 153, 292, 364, 517, 527, 537, 653, 668, 671, 677). See also Martic Rule 61 Decision, paras 23-31 (use of rocket was not designed to strike a military target but to terrorize the civilian population of Zagreb contrary to the rules of international law); and Nikolic Sentencing Judgement, para. 38.
115
- The Special Court for Sierra Leone has issued several indictments containing counts of "acts of terrorism" ("terrorizing the civilian population") brought pursuant to Article 3 common to the Geneva Conventions and to Additional Protocol II; see .
116
- Prosecution Pre-trial Brief, para. 132.
117
- P58.
118
- Prosecution Pre-trial Brief, para. 136.
119
- Id., para. 141. The Prosecution Final Trial Brief (para. 8, fn. 5) simply referred back to the submissions in the Pre-trial Brief.
120
- Prosecution Pre-trial Brief, para. 142. These elements were repeated without change in the Prosecution Final Trial Brief (para. 8).
121
- Prosecution Pre-trial Brief, para. 144.
122
- Id., para. 144.
123
- Id., paras 143, 148.
124
- Id., para. 149.
125
- Id., para. 150.
126
- Id., para. 25 (emphasis added).
127
- Id., paras 142-3 (emphasis added).
128
- Id., para. 145 (emphasis added).
129
- Id., para. 147.
130
- Id., 109.
131
- Response to Acquittal Motion, para. 16.
132
- As mentioned above, para. 8 of the Prosecution Final Trial Brief simply reverts to the submissions in the Pre-trial Brief.
133
- Art. 51(2) of Additional Protocol I and Art. 13(2) of Additional Protocol II.
134
- Defence Pre-trial Brief, paras 8.11, 8.23, 8.24.
135
- Id., para. 8.20.
136
- Id., para. 8.20.
137
- Defence Closing Arguments, T. 21807.
138
- Defence Pre-trial Brief, paras 8.21-8.24.
139
- See Defence Final Trial Brief, paras 1097-104.
140
- Id., para. 445.
141
- Id., para. 446.
142
- Id., para. 888.
143
- Id., para. 584.
144
- Defence Closing Arguments, T. 21810.
145
- Defence Final Trial Brief, para. 977.
146
- Id., paras 971-2.
147
- T. 21966-73.
148
- See supra, paras 23-4.
149
- It should be noted, however, that the Defence's submissions on the constraining effect of Article 2 common ("Common Article 2") to the Geneva Conventions on the applicability of Additional Protocol I are not accurate. While it is true that the scope of that Protocol's application is given in Article 1 of the protocol as corresponding to the situations referred to in Common Article 2 - namely "to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties", as well as "to all cases of partial or total occupation of the territory of a High Contracting Party" - clearly this does not have the effect of limiting the application of the Conventions and the Protocol to the cases mentioned above. Thus a unilateral declaration pursuant to Article 96 of Additional Protocol I by the representative authority of a people "fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination" may be enough to bring into force the Conventions and the Protocol, even though the authority is not a state power. More pertinently, Article 3 common to the Geneva Conventions enables parties to a non-international armed conflict to bring into force all or part of the Conventions and, by extension, all or part of Additional Protocol I supplementing the Conventions.
150
- The Majority is aware that several international instruments exist outlawing "terrorism" in various forms. The Majority necessarily limits itself to the legal regime that has been developed with reference to conventional armed conflict between States, or between governmental authorities and organized armed groups, or between such groups within a State. In other words, the Majority proceeds on the understanding that the present case will have a basis, if at all, in the legal regime of the Geneva Conventions and the Additional Protocols and not in international efforts directed against "political" varieties of terrorism. The Majority would also note that "terrorism" has never been singly defined under international law. The first international attempt at codification of "terrorism" was the 1937 League of Nations Convention for the Prevention and Punishment of Terrorism, 19 LNOJ 23 (1938), which however did not receive sufficient ratifications and was not pursued. Since that time the international community has followed a thematic approach to the characterization of international terrorism, with subject-specific conventions such as the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, 2 ILM 1042 (1963); the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 860 UNTS 105; the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 974 UNTS 177; the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, 13 ILM 41 (1974); the 1979 International Convention Against the Taking of Hostages, 18 ILM 1460 (1979); 1997 International Convention for the Suppression of Terrorist Bombings, 37 ILM 249 (1998); 1999 International Convention for the Suppression of the Financing of Terrorism, 39 ILM 270 (2000); and Convention on the Suppression of Acts of Nuclear Terrorism (in process of negotiation), UN Doc. A/C6/53/L4, Annex I (1998). This incomplete list of relevant global instruments also does not include regional anti-terrorism agreements. Related resolutions of the UN General Assembly include the 1994 Declaration on Measures to Eliminate International Terrorism, UN Doc. A/RES/49/60, and the 1995 Measures to Eliminate Terrorism, UN Doc. A/RES/50/53 ("that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them"). The prohibition of terror against the civilian population in times of war, which (as discussed below) is given expression in Geneva Convention IV and the Additional Protocols, is another example of the thematic, subject-specific, approach to "terrorism".
151 - As will be seen, one of the Majority's conclusions is that proof of actual infliction of terror is not a legal element of the crime under any interpretation of Article 51(2) of Additional Protocol I. This finding does not, of course, amount to a narrowing of the Tribunal's jurisdiction; on the contrary, the Majority's rejection of this supposed element proposed by the Prosecution leads to a broader definition of the offence.
152
- Tadic Jurisdiction Decision, para. 94.
153
- Reprinted in 8 ILM 679 (1969).
154
- 999 UNTS 171.
155
- Celebici Trial Judgement, para. 408.
156
- Id., para. 413. On the principle of legality see also Aleksovski Appeal Judgement, paras 126-7 ("the principle of nullum crimen sine lege ... does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime"); and Vasiljevic Trial Judgement, para. 193 ("the Trial Chamber must further satisfy itself that the criminal conduct in question was sufficiently defined and was sufficiently accessible at the relevant time for it to warrant a criminal conviction and sentencing under the criminal heading chosen by the Prosecution").
157
- See P58 (22 May Agreement), para. 2.5.
158
- Id., para. 2.3.
159
- Tadic Decision on Jurisdiction, para. 143. This was also the view of Security Council members. Speaking at a meeting of the Council on 25 May 1993, at which the Tribunal's Statute was adopted, France's representative commented that "the expression 'laws or customs of war' used in Article 3 of the Statute covers specifically, in the opinion of France, all the obligations that flow from the humanitarian law agreements in force on the territory of the former Yugoslavia at the time when the offences were committed" (UN Doc. S/PV.3217, p. 11). The representatives of the United States and the United Kingdom expressed the same view (Id., pp 15 and 19, respectively).
160
- See ICRC Commentary, para. 4785: "Attacks aimed at terrorizing are just one type of attack, but they are particularly reprehensible. Attempts have been made for a long time to prohibit such attacks, for they are frequent and inflict particularly cruel suffering upon the civilian population." (Emphasis added.) While the second part of 51(2) uses the expression "acts or threats of violence", and not "attacks", the concept of "attack" is defined in Article 49 of Additional Protocol I as "acts of violence".
161
- See the discussion in the preceding section on the crime of attack on civilians. See as well ICRC Commentary, para. 1923. The Trial Chamber also notes that in a 1995 decision on the applicability of Additional Protocol II to the conflict in Colombia, the Constitutional Court of Colombia accepted the customary-law status of Article 13 of the Protocol, including the prohibition against terror: Ruling No. C-225/95, excerpted in translation in M. Sassòli and A. A. Bouvier (eds.), How Does Law Protect in War? (Geneva: ICRC, 1999), p. 1366 (para. 30) (henceforth "Sassòli & Bouvier").
162
- Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 17 vols. (Geneva: ICRC, 1974-77) (henceforth "Records").
163
- The draft provision was then numbered 46.
164
- Records, vol. XIV, p. 36.
165
- Id., vol. XIV, pp 48-75.
166
- The original formulation of the second part was: "In particular, methods intended to spread terror among the civilian population are prohibited."
167
- Records, vol. XV, p. 241.
168
- Id., vol. XV, p. 274.
169
- Id., vol. XV, pp 328-31.
170
- Id., vol. VI, p. 163.
171
- Id., vol. VI, pp 161-2; see also vol. VII, p. 193.
172
- Id., vol. VI, pp 164-8, 187-8 (FRG).
173
- Id., vol. VI, p. 177. See also the comments of the Ukrainian Soviet Socialist Republic, Id., vol. VI, p. 201.
174
- Id., vol. VII, pp 194 and 205, respectively.
175
- Id., vol. VII, pp 191-251.
176
- By 1992, when there were around 191 countries in the world, 118 States had ratified Additional Protocol I and five had signed the treaty without ratifying it. The State of Bosnia-Herzegovina succeeded to the Protocol on 31 December 1992. This information is available at the ICRC's web site: .
177
- Tadic Jurisdiction Decision, para. 94.
178
- See Art. 85(3) of Additional Protocol I.
179
- Certain threats of violence would undoubtedly involve grave consequences. For example, a credible and well publicized threat to bombard a civilian settlement indiscriminately, or to attack with massively destructive weapons, will most probably spread extreme fear among civilians and result in other serious consequences, such as displacement of sections of the civilian population.
180
- Trial of Shigeki Motomura and 15 Others, 13 Law R. Trials War Crim. 138 ("Motomura case").
181
- Id., pp. 138-9.
182
- Decree No. 44 (1946), in Staatsblad van Nederlandsch-Indië, 1946.
183
- "Systematische terreur" in original, which translates as systematic terror and not terrorism.
184
- Motomura case, p. 140.
185
- Id., p. 143.
186
- Id., p. 144.
187
- Id., p. 140.
188
- On the Commission on Responsibilities, see UN War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (London: HMSO, 1948), Ch. III.
189
- Cited in Id., pp. 33-4.
190
- See, Id., pp. 34-5 (reproduction of the Commission's list of war crimes).
191
- Id., p. 51.
192
- Id., pp. 48-51 (summaries of cases heard).
193
- Reproduced in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London, 1945 (Washington D.C.: US Government Printing Office, 1949), p. 312.
194
- Id., p. 390.
195
- See 5 Law R. Trials War Crim. 94-97.
196
- Armed forces manuals soon incorporated the prohibition. See, for example, United States Field Manual No. 27-10: The Law of Land Warfare (Washington D.C.: Department of the Army), para. 272 (1956); United Kingdom Manual of Military Law, Part III: The Law of War on Land (London: The War Office, HMSO), para. 42 (1958).
197
- Criminal Code 1960 (Belgrade: Union of Jurists' Associations, 1960), pp. 48-9, emphasis added.
198
- See Criminal Code 1964, translated by M. DamaSka (Beograd: Institute of Comparative Law), Art. 125. The words "use of measures of intimidation and terror" appear instead, a difference in translation.
199
- Unattributed translation available at ICTY Library. The translation was checked against the original Code (Sluzbeni list SFRJ, br. 44/76), also available at the ICTY Library.
200
- P5.1 (translation). Other post-1977 military manuals from around the world cite terror as an impermissible means of warfare or refer to Article 51(2) of Additional Protocol I. See, for example, German Military Manual (Humanitäres Völkrerrecht in bewaffneten Konflikten-Handbuch), Section 451 (1992) (English translation available at ICTY library); New Zealand Interim Law of Armed Conflict Manual, Article 517 (1992); Soviet Minister of Defence Order No. 75 of 16 February 1990 on the Publication of the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of War and their Additional Protocols, Article 5, para. (o) (1990) (French translation available at the ICRC's web site: .).
201 - P5.1, p. 6.
202
- Id., p. 11.
203
- Id., p. 14.
204
- Id., p. 18, emphasis added.
205
- Id., p. 19.
206
- Id., p. 29.
207
- Id., p. 14.
208
- Id., p. 15.
209
- Id., p. 20.
210
- The Criminal Code of 1990 was published in Sluzbeni list SFRJ, br. 38/90 and is available at ICTY Library.
211
- P82.1 (translation).
212
- P276.1 (translation).
213
- Id., p. 3.
214
- Id., p. 7.
215
- Id., p. 7 (emphasis added).
216
- Id., p. 8.
217
- Id., p. 8.
218
- Para. 5 of the 22 May agreement, emphasis added.
219
- The 22 May Agreement did not make explicit reference to Article 85 of Additional Protocol I ("repression of breaches"), although it incorporated the grave breaches regime by committing the parties to the terms of Geneva Conventions I and II (para. 2.1 of the 22 May Agreement). Subsequent agreements among the parties to the conflict, cited in the preceding section, also indicate an intention to prosecute those responsible for serious violations of international humanitarian law. See, e.g., Article 3(1) of the Programme for Action on Humanitarian Issues and Article 3 of the October Agreement.
220
- Prosecutor v. R. Radulovic et al., Split County Court, Republic of Croatia, Case No. K-15/95, Verdict of 26 May 1997; excerpted in translation in Sassòli & Bouvier, pp 1263-8. The events considered in this case occurred between September 1991 and January 1993.
221
- See Art. 85(3) (in part) of Additional Protocol I. See also ICRC Commentary, para. 1932 and para. 1941.
222
- As stated in an earlier , the Majority has not considered it necessary to enter into discussion of "political" terrorist violence and of attempts to regulate it through international conventions. Nevertheless, for comparative purposes, it may be of interest that the 1999 International Convention for the Suppression of the Financing of Terrorism, 39 ILM 270 (2000), defines terrorism as including: "Art. 2: ... (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act."
223
- This is not to say that the factual allegations in the indictment concerning actual infliction of terror do not remain relevant to the case. These will be discussed later in the Judgement.
224
- Certain States attempted to have intent substituted with actual infliction of terror: see the joint proposal by Algeria et al., Records, vol. III, p. 205, as well as the proposals by Mongolia (Id., vol. XIV, p. 53), Iraq (Id., vol. XIV, p. 54), Indonesia (Id., vol. XIV, p. 55), and USSR (Id., vol. XIV, p. 73). Other States tried for "acts capable of spreading terror" (see, e.g., Ghana et al., Id., vol. III, p. 203). All these proposals failed and the intent requirement was kept.
225
- Prosecution Pre-trial Brief, paras 25, 142-3; Defence Final Trial Brief, para. 888.
226
- This is clear from the travaux préparatoires of the Diplomatic Conference. For example, Romania, Records, vol. III, pp. 200-1 (reprisals and other unlawful attacks); GDR, Id., vol. IV, p. 79 (reprisals or terror attacks); Indonesia, Id., vol. XIV, p. 55 (attack on the civilian population and the spreading of terror should be given "almost the same emphasis"); Ukrainian SSR: "Article (51( widens the scope of protection for the civilian population and individual civilians, who under no circumstances shall be the object of attack. In particular, paragraph 2 explicitly prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population; this is in line with the generally recognized rules of international law, which lay down that Parties to the conflict shall not make the civilian population an object of attack" (Id., vol. VI, p. 201).
227
- ICRC Commentary, para. 1940: "the Conference wished to indicate that the prohibition covers acts intended to spread terror".
228
- At the Diplomatic Conference, Egypt said that the words "intended to" in the original version should be replaced by some other expression "in view of the difficulty of establishing intent" (Records, vol. XIV, pp. 56-7). France responded that "In traditional wars attacks could not fail to spread terror among the civilian population. What should be prohibited in paragraph 1 is the intention to do so" (Id., vol. XIV, p. 65). The comments by Iran should also be noted: "Although objections had been raised to the phrase 'methods intended to spread terror' in paragraph 1, methods of war undoubtedly did spread terror among the civilian population, and those used exclusively or mainly for that purpose should be prohibited" (Id., vol. XIV, p. 64). Reporting on its second session, Committee III stated: "The prohibition of acts or threats of violence which have the primary object of spreading terror' is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful" (Id., vol. XV, p. 274, emphasis added).
229
- Kunarac Appeal Judgement, para. 86; Tadic Appeal Judgement, para. 249; Tadic Jurisdiction Decision, para. 141.
230
- Tadic Appeal Judgement, para. 249.
231
- Tadic Appeal Judgement, para. 249 and 251.
232
- Kunarac Appeal Judgement, para. 85.
233
- Krnojelac Trial Judgement, para. 54; Kunarac Trial Judgement, para. 415.
234
- Kunarac Trial Judgement, para. 416.
235
- Id., para. 416 endorsed by Kunarac Appeal Judgement, para. 89.
236
- Kunarac Appeal Judgement, para. 86 quoting Tadic Appeal Judgement, para. 251.
237
- Kunarac Appeal Judgement, para. 86; Tadic Appeal Judgement, para. 251.
238
- Kunarac Trial Judgement, para. 421, endorsed by Kunarac Appeal Judgement, para. 91.
239
- Kunarac Appeal Judgement, para. 91.
240
- Krnojelac Trial Judgement, para. 56; Kunarac Trial Judgement, paras 421-426.
241
- Krnojelac Trial Judgment, para. 56; Kunarac Trial Judgement, para. 425; Tadic Trial Judgement, para. 638.
242
- Krnojelac Trial Judgement, para. 56; Kupreskic Trial Judgement, paras 547-549; Blaskic Trial Judgement, para. 214; Jelisic Trial Judgement, para. 54.
243
- Kunarac Appeal Judgement, para. 90.
244
- Id.
245
- Prosecution Final Trial Brief, para. 38.
246 - Id., para. 38.
247
- Id., para. 38.
248
- Krnojelac Trial Judgment at para. 54.
249
- Id., para. 88.
250
- Id.
251
- Id., para. 94.
252
- Id., citing inter alia the discussion in Tadic Trial Judgement, para. 648.
253
- Kunarac Appeal Judgement, para. 95; Kunarac Trial Judgement, para. 430.
254
- Id.
255
- Id. (and discussion thereof).
256
- Id., para. 98.
257
- Id., para. 102.
258
- Id., para. 102.
259
- Id., para. 103.
260
- Krnojelac Trial Judgment, para. 59; Kunarac Trial Judgment, para. 434; Blaskic Trial Judgment, para. 251.
261
- Vasiljevic Trial Judgement, para. 205; Krnojelac Trial Judgement, para. 324; Kordic Trial Judgement, para. 236; Kupreskic Trial Judgement, paras 560-1; Rutaganda Trial Judgement, para. 80-1; Akayesu Trial Judgement, para. 589.
262
- Celebici Trial Judgement, para. 439. The element of inflicting "serious injury" is expressed as infliction of "grievous bodily harm or serious injury" in, e.g., Vasiljevic Trial Judgement, para. 205; Krnojelac Trial Judgement, para. 324
263
- Vasiljevic Trial Judgement, para. 234; Krnojelac Trial Judgement, para. 130; Kvocka Trial Judgement, para. 206; Kordic and Cerkez Trial Judgement, para. 269.
264
- Vasiljevic Trial Judgement, para. 234; Krnojelac Trial Judgement, par 130; Kayishema Trial Judgement, paras 151, 154.
265
- Kvocka Trial Judgment, para. 208; BlaSkic Trial Judgment, para. 239.
266
- Vasiljevic Trial Judgement, para. 235; Krnojelac Trial Judgement, para. 131; Celebici Trial Judgment, para. 536; Jelisic Trial Judgment para. 57; Kunarac Trial Judgment, para. 501.
267
- Vasiljevic Trial Judgement, para. 236; Krnojelac Trial Judgement, para. 132; Kayishema Trial Judgement, para. 153.
268
- The Defence contends that cumulative charging under Counts 1 (Infliction of terror), 4 (attacks on civilians through sniping) and 7 (attacks on civilians through shelling) constitutes an error of law since, under all three Counts, the protected object is constituted by the civilian population and "illegal action against civilians can not be qualified as three different criminal offences only on the grounds of the armament from which [sic] the action is taken", Defence Pre-Trial Brief, paras 8.18, 8.19, 8.24; Defence Final Trial Brief, paras 1099, 1101, 1102, 1104.
269
- Celebici Appeal Judgement, para. 400; see also Kupreskic Appeal Judgement, para. 385.
270
- Celebici Appeal Judgment, para. 412.
271
- Celebici Appeal Judgment, para. 413.
272
- Jelisic Appeals Judgment, para. 82. Article 3 of the Statute requires a close link between the acts of the accused and the armed conflict; that element is not required for crimes under Article 5. Article 5 requires proof that the act of the Accused formed part of a widespread or systematic attack against a civilian population; that element is not required for crimes falling under Article 3 of the Statute. It follows that each crime under these Articles has a distinct material element to be proven at trial not required by the other. The test is met and it is permissible to cumulatively convict under both statutory provisions.
273
- Indictment, para. 10.
274
- Id., para. 11.
275
- Id., para. 10.
276
- Furundzija Trial Judgement, para. 189, Kupreskic Trial Judgement, para. 746; Kunarac Trial Judgement, para. 388, Krstic Trial Judgement, para. 602.
277
- Cf. Article 6(1) of the Statute of the ICTR. See also the Prosecution Pre-trial Brief (paras 69 et seq.) and the Defence's submissions on Article 7 in its Pre-trial Brief (paras 6.1-6.35).
278
- Akayesu Trial Judgement, para. 480. See also BlaSkic Trial Judgement, para. 279; Kordic Trial Judgement, para. 386 quoting the Akayesu Trial Judgement.
279
- Akayesu Trial Judgement, para. 473.
280
- If the person planning a crime also commits it, he or her is only punished for the commission of the crime and not for its planning, Kordic Judgement, para. 386 (quoting the Blaskic Trial Judgement, para. 278).
281
- Akayesu Trial Judgement, para. 482; BlaSkic Trial Judgement, para. 280; Kordic Trial Judgement, para. 387.
282
- Kvocka Trial Judgement, para. 252, citing Kordic Trial Judgement, para. 387.
283
- Kvocka Trial Judgement, para. 252, citing Kordic Trial Judgement, para. 387.
284
- Krstic Trial Judgement, para. 601, citing Akayesu Trial Judgement, para. 483; BlaSkic Trial Judgement, para. 281; Kordic Trial Judgement, para. 388.
285
- Kvocka Trial Judgement, paras 250-1.
286
- Tadic Appeal Judgement, para. 188.
287
- Aleksovski Appeal Judgement, paras 162-4.
288
- Tadic Appeal Judgement, para. 188.
289
- Blaskic Trial Judgement, para. 337.
290
- Defence Pre-trial Brief, paras 6.3-6.4.
291 - Celebici Trial Judgement, para. 341, quoted in Blaskic Trial Judgement, para. 238.
292
- Rule 61 Decision of 13 September 1996, Case No. IT-95-12, Prosecutor v. Ivica Rajic, paras 59-61; Kordic Trial Judgement, para. 388; Martinovic Trial Judgement, para. 61; see also Abbaye Ardenne case (Trial of SS Brigadenfuhrer Kurt Meyer), Case n. 22, Canadian Military Court in Aurich (Germany), in Law Reports of Trials of War Criminals, volume IV, pp 97-112, stating that "?tghere is no evidence that anyone heard any particular words uttered by the accused which would constitute an order, but it is not essential that such evidence be adduced. The giving of the order may be proven circumstantially; that is to say, you may consider the facts you find to be proved bearing upon the question whether the alleged order was given, and if you find that the only reasonable inference is that an order [...] was given by the accused at the time and place alleged, and that the [order was complied with], you may properly find the accused guilty." Inferences of this kind were also drawn by the International Military Tribunal for the Far-East sitting at Tokyo, Japan (IMTFE); see section "Massacres were ordered" in Röling and Rüter (eds.), The Tokyo Judgement, Amsterdam, 1977, vol. I, page 400, where massacres of prisoners of war were inferred to have occurred in various detention camps based on only one order in relation to one camp coupled with testimonies with regard to other camps
293
- See Celebici Trial Judgement, para. 384-6; Blaskic Trial Judgement, para. 307. Some of these factors were cited in the UN Commission of Experts, Final Report, S/1994/627, 27 May 1994.
294
- Kvocka Trial Judgement, para. 251, citing Tadic Trial Judgement, para. 688 and Celebici Trial Judgement, para. 327.
295
- Celebici Trial Judgement, para. 328.
296
- Celebici Trial Judgement, para. 346; Aleksovski Trial Judgement, para. 69; BlaSkic Trial Judgement, para. 294; Kordic Trial Judgement, para. 401; Kunarac Trial Judgement, para. 395, Krstic Trial Judgement, para. 604; Kvocka Trial Judgement para. 314.
297
- Celebici Appeal Judgement, paras 255-6.
298
- Id., paras 192, 256.
299
- Id., para. 197.
300
- Celebici Trial Judgement, para. 386, quoting the Commission of Experts Report, p. 17.
301
- Celebici Appeal Judgement, para. 238.
302
- Id., para. 238.
303
- Id., para. 239.
304
- Celebici Trial Judgement, para. 395.
305
- Krnojelac Trial Judgement, para. 173; see also Krstic Trial Judgement, para. 652.


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