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Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials

  • Rogier Bartels (a1)
Abstract

The principle of proportionality is one of the core principles of international humanitarian law. The principle is not easy to apply on the battlefield, but is even harder to apply retrospectively, in the courtroom. This article discusses the challenges in applying the principle during international criminal trials. It discusses the principle itself, followed by an explanation of the general challenges of dealing with violations of international humanitarian law, and more specifically the rules related to the conduct of hostilities, during war crime trials. The way in which the principle has been used before the International Criminal Tribunal for the former Yugoslavia is examined, including an in-depth discussion of the recent Gotovina case. The second part consists of an evaluation of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, and discusses the difficulties the International Criminal Court would face in cases dealing with violations of the principle of proportionality.

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1 Notable examples include:

  1. (i)

    (i) the notion of armed conflict (ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, Trial Chamber II, 2 October 1995 (Tadić Jurisdiction Decision), paras 66–70;

  2. (ii)

    (ii) rape as a war crime (eg ICTY, Prosecutor v Kunarac, Kovač and Vuković, Judgment, IT-96-23-T & IT-96-23/1-T, Trial Chamber II, 22 February 2001, and ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, Trial Chamber I, 2 September 1998); and

  3. (iii)

    (iii) the war crime of terrorising the civilian population (ICTY, Prosecutor v Galić, Judgment, IT-98-29-T, Trial Chamber I, 5 December 2003 (Galić Trial Judgment).

  4. (iv)

    (iv) the lower threshold of non-international armed conflicts (eg ICTY, Prosecutor v Boškoski and Tarčulovski, Judgment, IT-04-82-T, Trial Chamber II, 10 July 2008, paras 175–206);

2 ICTY, Prosecutor v Gotovina, Čermak and Markač, Judgment, IT-06-90-T, Trial Chamber I, 15 April 2011 (Gotovina Trial Judgment).

3 Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(iv).

4 Whilst the term ‘war crimes trial’ is often used to refer to all trials taking place at the international level (in the same way as the ICTY is often referred to as a ‘war crimes tribunal’), also for cases concerning crimes against humanity and/or genocide charges the term is used here in a more limited way, and refers only to those cases that deal with violations of IHL.

5 It is acknowledged that courts at the national level also face many problems when dealing with war crimes. Some of these problems are of a similar nature to those at the international level owing to the substance of the applicable law and to the situations in which the alleged crimes were committed. Also, some problems arise out of the national criminal justice systems. See, in general, Witteveen Martin, ‘Closing the Gap in Truth Finding: From the Facts of the Field to the Judge's Chambers’ in Smeulers Alette (ed), Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Intersentia 2010) 383.

6 See, inter alia, Sassòli Marco and Bouvier Antoine A, How Does Law Protect in War?, Vol I (2nd edn, Geneva 2006) 139–42; Kolb Robert and Hyde Richard, An Introduction to the International Law of Armed Conflicts (Hart Publishing 2008) 48.

7 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I).

8 Kolb and Hyde (n 6) 48.

9 eg ibid. See also Rogers APV, Law on the Battlefield (3rd edn, Manchester University Press 2012) 21, 23.

10 Rogers ibid 21, 23. See, in support, ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136 (Construction of a Wall case), Separate Opinion of Judge Kooijmans, para 34 (dealing with the Separation Barrier and applying the principle to the construction of the barrier).

11 See Dinstein Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2004) 138; and Doswald-Beck Louise (ed), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (International Institute of Humanitarian Law 1994) rule 102(b) and the accompanying explanatory text at 179. The Turkel Commission recently assessed whether Israel's blockade of the Gaza Strip was in accordance with the IHL principle of proportionality by weighing the military advantage of the naval blockade against the harm caused to the civilian population: see Turkel Commission, The Public Commission to Examine the Maritime Incident of 31 May 2010, 2011, 90–102, http://www.turkel-committee.gov.il/files/wordocs/8808report-eng.pdf.

12 Additional Protocol I (n 7) arts 51(5)(b) and 57(2). Art 51 reads in relevant part:

Article 51 – Protection of the civilian population

[…]

4. Indiscriminate attacks are prohibited. …

5. Among 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.

Art 57 reads in relevant part:

Article 57 – Precautions in attack

[…]

2. With respect to attacks, the following precautions shall be taken:

(a) those who plan or decide upon an attack shall:

[…]

(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;

(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; […]

3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

13 Dinstein (n 11) 59.

14 Kleffner Jann K and Boutruche Théo, ‘The Use of Depleted Uranium and the Principles of Distinction, Proportionality and Precautions’ in McDonald Avril, Toebes Brigit CA, Kleffner Jann K (eds), Depleted Uranium Weapons and International Law: A Precautionary Approach (TMC Asser Press 2008) 142.

15 See Fenrick William, ‘The Law Applicable to Targeting and Proportionality after Operation Allied Force: A View from the Outside’ (2000) 3 Yearbook of International Humanitarian Law 57.

16 Additional Protocol I (n 7) art 57(2)(b).

17 ibid art 57(2)(a)(ii). Yoram Dinstein explains in this light that having recourse to advanced weaponry, such as precision-guided missiles, does not always constitute an advantage: ‘[I]f a spread-out enemy military base is attacked by a missile, there is a great difference between the use of a ballistic missile and a guided missile. A ballistic missile can be fired from far away: as long as it is directed at the military objective, the attacker has done its duty and is not at fault if – in the event – the missile struck by chance a children's day-care centre located inside the military base for the benefit of civilian employees and dependants. With a guided missile the situation is different. If the “man in the loop” is capable of identifying the day-care centre, it is incumbent on him to direct the missile elsewhere within the military base’: Dinstein Yoram, ‘Air and Missile Warfare’ in van Genugten Willem JM, Scharf Michael P and Radin Sasha E (eds), Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference: 2007 Hague Joint Conference on Contemporary Issues of International Law (TMC Asser Press 2009) 339. George Aldrich considers in this regard that ‘if the objectives are sufficiently separated so that they can feasibly be attacked separately with the weapons available and if this degree of separation is evident to the attacker, then they must be attacked separately in order to reduce the risks to the civilian population’: Aldrich George, ‘New Life for the Laws of War’ (1981) 75 American Journal of International Law 764, 780.

18 An opposing view is that the amount of incidental damage that would not be considered excessive in light of the expected military advantage cannot change. If a certain number of civilian casualties would be proportionate to achieve a certain military advantage, then this number would stay the same, irrespective of, eg, the weapon used. However, the present author is of the view that arts 57(2)(a)(ii) and (iii) should be read in conjunction. See, in support, Sandoz Yves, ‘Commentary’ in Wall Andru E (ed), Legal and Ethical Lessons of NATO's Kosovo Campaign (International Law Studies, Vol 78, Naval War College 2002) 273, 278.

19 See, eg, Henderson Ian, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I (Martinus Nijhoff 2009) 197220.

20 Sandoz Yves, Swinarski Christophe and Zimmermann Bruno, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) paras 1976–78 (Commentary on AP I). See further Fenrick William, ‘The Rule of Proportionality and Protocol I in Conventional Warfare’ (1982) 98 Military Law Review 91, 102–04.

21 Commentary on API, ibid para 2187.

22 Parks W Hays, ‘Air War and the Law of War’ (1990) 32 Air Force Law Review 1, 173.

23 Fenrick William, ‘Attacking the Enemy Civilian as a Punishable Offence’ (1997) 7 Duke Journal of Comparative and International Law 539, 545; ICTY, ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia’ (2000) (Final Report to the Prosecutor) paras 19 and 48 (Fenrick was one of the drafters of this Report).

24 Final Report to the Prosecutor, ibid para 19.

25 Fenrick (n 23) 546; Final Report to the Prosecutor (n 23) para 50.

26 Oeter Stefan, ‘Methods and Means of Combat’ in Fleck Dieter (ed), Handbook of Humanitarian Law in Armed Conflict (Oxford University Press 1995) 119, 120.

27 Kleffner and Boutruche (n 14) 144.

28 Fenrick William, ‘International Humanitarian Law and Criminal Trials’ (1997) 7 Transnational Law and Contemporary Problems 23, 26.

29 ibid. In situations of targeting, however, military lawyers will normally be involved in the target selection process. See, eg, Tricarico Leonardo, ‘Identification of Targets and Precautions in Attacks in Air Warfare: Operation Allied Force as a Case Study’ in Hector Mireille and Jellema Marine (eds), Protecting Civilians in 21st Century Warfare: Target Selection, Proportionality and Precautionary Measures in Law and Practice (Wolf Legal Productions 2001) 3944.

30 See Wuerzner Carolin, ‘Mission Impossible? Bringing Charges for the Crime of Attacking Civilians or Civilian Objects before International Criminal Tribunals’ (2008) 90 International Review of the Red Cross 907, 929 (Issue 872).

31 ibid.

32 In the Final Report to the Prosecutor ((n 23) para 90), the Office of the Prosecutor of the ICTY acknowledged that sometimes IHL is not clear enough to start an investigation into alleged crimes. See also the discussion at Section 5.3.5 below.

33 However, the elements of crimes merely serve to ‘assist’ the judges and are not binding on the chambers: ICC Statute (n 3) art 9(1).

34 See on this issue, eg, Darcy Shane, ‘Bridging the Gaps in the Laws of Armed Conflict? International Criminal Tribunals and the Development of Humanitarian Law’ in Quénivet Noëlle NR and Shah-Davis Shilan (eds), International Law and Armed Conflict: Challenges in the 21st Century (TMC Asser Press 2010) 319; Heinsch Robert, Die Weiterentwicklung des Humanitären Völkenrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda (BWV Verlag 2007); Meron Theodor, ‘The Hague Tribunal: Working to Clarify International Humanitarian Law’ (1998) 13 American University International Law Review 1511, 1511–17.

35 Fenrick William, ‘The Development of the Law of Armed Conflict through the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1998) 3 Journal of Armed Conflict Law 197.

36 Sandoz Yves, ‘The Dynamic but Complex Relationship between International Penal Law and International Humanitarian Law’ in Doria José, Gasser Hans-Peter and Bassiouni M Cherif (eds), The Legal Regime of the ICC: Essay in Honour of Professor Igor Pavlovich Blishchenko (Martinus Nijhoff 2009) 1049, 1061.

37 See, eg, Graditzky Thomas, ‘War Crime Issues before the Rome Diplomatic Conference on the Establishment of the International Criminal Court’ (1999) 5 UC Davis Journal of International Law and Policy 199; Darcy (n 34) 321.

38 Henckaerts Jean-Marie and Doswald-Beck Louise (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005) (ICRC Study). An online version which is regularly updated is available at http://www.icrc.org/customary-ihl/eng/docs/home. See also Cryer Robert, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study’ (2006) 11 Journal of Conflict and Security Law 239; and Darcy (n 34) 321.

39 See Werle Gerhard, Principles of International Criminal Law (2nd edn, TMC Asser Press 2009) 358 (referring to the Tadić Jurisdiction Decision (n 1) para 81).

40 See, eg, Fleck Dieter, ‘Introduction’ in Fleck Dieter (ed), The Handbook of International Humanitarian Law (Oxford University Press 2008) xi, xi.

41 See, eg, Werle (n 39) 29–36.

42 See Additional Protocol I (n 7) art 45(1): ‘Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal’; art 50(1): ‘In case of doubt whether a person is a civilian, that person shall be considered to be a civilian’; and art 52(3): ‘In case of doubt 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’. These provisions are all found in Additional Protocol I (n 7). Their customary nature is therefore not undisputed. The ICRC notes in its study on customary IHL that while this presumption of protection is included in numerous military manuals, the United States and Israel do not accept this to be a rule of customary law (ICRC Study (n 38) 35–36).

43 See, inter alia, the inclusion in art 21(3) ICTY Statute (Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808(1993), UN Doc S/25704 (3 May 1993), adopted by the Security Council in Resolution 827 (25 May 1993)); art 20(3) ICTR Statute (Statute of the International Criminal Court for Rwanda, annexed to Security Council Resolution 955(1994), UN Doc S/RES/955 (8 November 1994)); and art 66 ICC Statute (n 3).

44 ICTY, Prosecutor v Delalić and Others, Judgment, IT-96-21-T, Trial Chamber, 16 November 1998, para 601. See generally Raimundo Fabian, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff 2008) 110–11.

45 Galić Trial Judgment (n 1) para 55.

46 For an elaborate discussion on the issue of the civilian presumption in ICL, see Hayashi Nobuo, ‘The Role of Judges in Identifying the Status of Combatants’ (2006) 2 Acta Societatis Martensis 69, 7684.

47 Unless it concerns persons who remain protected by IHL, also when the conflict has ended, eg, prisoners of war or persons detained as a result of the conflict. See, for example, Geneva Convention (III) Relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135, art 5; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609, art 5.

48 Obtaining documents containing, eg, the targeting decisions or orders to commit a violation is problematic because the armed forces will normally attempt to prevent these documents from falling into the hands of a third party. Furthermore, written documents by non-regular forces or militias rarely exist, if indeed at all.

49 See, inter alia, Dawson Grant and Dixon Mieke, ‘The Protection of States' National Security Interests in Cases before the ICTY: A Descriptive and Prescriptive Analysis of Rule 54 bis of the Rules and Procedure and Evidence’ in Abtahi Hirad and Boas Gideon (eds), The Dynamics of International Criminal Justice (Martinus Nijhoff 2006) 95, 112–34.

50 See, eg, Combs Nancy A, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010).

51 See ICC Statute (n 3) art 30 and, inter alia, arts 8(2)(a)(i), (iii), (iv), and (vi), which use the wording ‘wilful(ly)’ and ‘wantonly’; and arts 8(2)(b)(i)–(iv), (ix), which proscribe that the acts should have been carried out ‘intentionally’. At the ICTY, recklessness as to the outcome of an attack would also give rise to individual criminal responsibility: see, generally, van Sliedregt Elies, Individual Criminal Responsibility in International Law (Oxford University Press 2012) 112.

52 See, eg, Solis Gary, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press 2010) 276. Examples include the 7 May 1999 attack by NATO on the Chinese Embassy in Belgrade during Operation Allied Force (see Final Report to the Prosecutor (n 23) paras 80–85), as well as the attack by the US on the Amiriyah shelter/Al Firdus bunker during the 1991 Gulf War: see United States Department of Defense, ‘Conduct of the Persian Gulf War’, Final Report to Congress, April 1992, 615–16).

53 See United States of America v Wilhelm List and Others, in Trials of War Crimes before the Nuremberg Military Tribunals under Control Council No 10, Vol XI TWC (1948) 1297. In this case, the military tribunal held that

[t]he course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered on his own military situation provided the facts or want thereof which furnished the basis for the defendant's decision … [T]he conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgement but he was guilty of no criminal act.

54 Canada, Reservations and Statements of Understanding Made upon Ratification of Additional Protocol I, 20 November 1990, para 7. Similar statements have been made by, eg, Austria, the Netherlands and the United Kingdom: see the reservations/declarations to Additional Protocol I at http://www.icrc.org/ihl.

55 Galić Trial Judgment (n 1) 58.

56 ICRC Study (n 38) rules 24, 15. Since 2005, the Study is updated and available at http://www.icrc.org/customary-ihl/eng/docs/home.

57 The trial chamber of the ICTY (in Prosecutor v Martić, IT-95-11), which was seized of a case involving conduct of hostility issues, has been questioned for its (lack of) understanding of military operations: see Van Schaack Beth and Slye Ronald C, International Criminal Law and Its Enforcement: Cases and Materials (Foundation Press 2007) 252–53.

58 Hayashi (n 46) 87–88.

59 The ad hoc tribunals and the ICC have often made use of expert witnesses, called by both the prosecution and the defence. An example is the Gotovina case before the ICTY, where Lieutenant Colonel Harry Konings, an artillery expert in the Royal Netherlands Army called by the prosecution, and Professor Geoffrey Corn, a former US army officer called by the defence, testified on issues such as the feasibility to take precautions and targeting with artillery: see Gotovina Trial Judgment (n 2) paras 36, 1163–75. See further ICTY, Prosecutor v Martić, Judgment, IT-95-11-T, Trial Chamber I, 12 June 2007, para 29; and ICTY, Prosecutor v Strugar, Judgment, IT-01-42-T, Trial Chamber II, 31 January 2005 (Strugar Trial Judgment), paras 130–31, 203–04.

60 This is also true for the testimony of crime-based witnesses.

61 Laurie R Blank, ‘Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment's Impact on Effective Implementation and Enforcement of International Humanitarian Law’, International Humanitarian Law Clinic at Emory University School of Law, 2012 (Emory Report) 12. The group of military and academic experts (from Canada, the UK and the US) who wrote the report, attempted to submit it as an amicus curiae brief to the ICTY appeals chamber, but its request was denied: see ICTY, Prosecutor v Gotovina, Čermak and Markač, Decision on Application and Proposed Amicus Curiae Brief, IT-06-90-A, Appeals Chamber, 14 February 2012, para 7.

62 Emory Report, ibid 7.

63 The so-called ‘juridical database’, or the ‘ICTY Court Records database’ as the public version is called: see http://icr.icty.org.

64 In many cases the wording used when dealing with proportionality is ‘excessive’.

65 That the grave breaches regime is exhaustive is also reflected by the fact that art 2 of the ICTY Statute lists the acts that are considered a violation of the article, as opposed to art 3 of the ICTY Statute, which mentions specifically that the violations subject to that article are ‘not limited to’ the listed acts.

66 United Nations Security Council, Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808, 3 May 1993, UN Doc S/25704, para 34.

67 See Olásolo Héctor, Unlawful Attacks in Combat Situations: From the ICTY's Case Law to the Rome Statute (Martinus Nijhoff 2008) 157.

68 As is explained below, when referring to the principle of proportionality as not being ‘applied’, the author means that the balancing test (between the military advantage and the expected incidental damage) that is inherent to the principle is not considered by the judges in the discussion of the attack concerned.

69 ICTY, Prosecutor v Kupreškić and Others, Judgment, IT-95-16-T, Trial Chamber, 14 January 2000. Prior to the Kupreškić Trial Judgment, the Martić trial chamber had already mentioned the inclusion of the principle in Additional Protocol I in its decision on the indictment: ICTY, Prosecutor v Martić, Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, IT-95-11-R61, Trial Chamber, 8 March 1996 (Martić Decision).

70 Kupreškić Trial Judgment, ibid para 524.

71 Galić Trial Judgment (n 1) 58. The appeals chamber affirmed the trial chamber's legal findings in respect of the principle of proportionality: ICTY, Prosecutor v Galić, Judgment, IT-98-29-A, Appeals Chamber, 30 November 2006 (Galić Appeals Judgment), paras 190–192.

72 Strugar Trial Judgment (n 59) paras 281, 295; ICTY, Prosecutor v Strugar, Judgment, IT-01-42-A, Appeals Chamber, 17 July 2008, para 179.

73 See, eg, Martić Decision (n 69), para 69.

74 See ICTY, Prosecutor v Dragomir Milošević, Judgment, IT-98-29/1, Trial Chamber III, 12 December 2007, para 949.

75 See the practice accompanying rule 14 of the ICRC Study (n 38) at ‘X. International and Mixed Judicial and Quasi-Judicial Bodies’.

76 Galić Trial Judgment (n 1) para 58. Since ‘in the circumstances of the actual perpetrator’ includes the position of the accused as a commander, this finding is similar to what is suggested in the Final Report to the Prosecutor, namely to use the standard of the ‘reasonable military commander’: Final Report to the Prosecutor (n 23) para 50.

77 Strugar Trial Judgment (n 59) paras 214, 281, 295.

78 ICTY, Prosecutor v Blaškić, Judgment, IT-95-14-T, Trial Chamber, 3 March 2000 (Blaškić Trial Judgment) para 651. The defence claimed that the Bosnian-Croat troops ‘attacked military targets and were always acting in response to an ABiH attack, thus meeting the requirement of proportionality’. It thus showed (para 514) a misunderstanding of what the principle of proportionality entails.

79 ibid para 509.

80 ibid para 507: the trial chamber does link the number of civilians killed to the alleged attack against the Bosnian Muslim military forces – ie, a military object – but appears to base itself only on the numbers of actual victims and refers to information known ‘after the 16 April attack’.

81 See, eg, ICTY, Prosecutor v Milutinović and Others, Judgment, IT-05-87-T, Trial Chamber, 26 February 2009, para 920; ICTY, Prosecutor v Đorđević, IT-05-87/1-T, Trial Chamber, 23 February 2011, paras 980, 2063–65, 2069.

82 ibid para 2065.

83 ibid.

84 Galić Trial Judgment (n 1) para 387.

85 ibid.

86 Namely, artillery firing mortar shells of ‘at least 81 mm’: ibid para 377.

87 See ICTY, Prosecutor v Gotovina, Čermak and Markač, Judgment, IT-06-90-A, Appeals Chamber, 16 November 2012 (Gotovina Appeals Judgment) para 2.

88 See, eg, Gotovina Trial Judgment (n 2) para 12, in which the trial chamber observed: ‘In the context of a criminal trial, and the chaotic picture of the events on the ground, the trial chamber was necessarily cautious in drawing conclusions with regard to specific incidents based on any general impression’.

89 ibid paras 1247–65, 1899.

90 Referred to as ‘opportunistic’ or ‘tactical’ targets: ibid para 1907.

91 The trial chamber considered that the HV could not reasonably have determined that attacking the area in which the moving objects were located would have offered a definite military advantage. The military object test contained in art 52(2) of Additional Protocol I therefore seems to have been conducted with respect to where the opportunistic targets would allegedly be located. It was thus not said that, eg, the Srpska Vojska Krajine (Serbian Army of Krajina) trucks and tanks themselves were not military objects: ibid paras 1907–08.

92 ibid para 1898. None of the experts, however, specifically referred to a 200-metre rule.

93 ibid para 1911. Similar findings were made with regard to the attacks on Benkovac, Gracac and Obrovac: see ibid paras 1923–24, 1935–36, 1944, respectively.

94 See, eg, Major General (ret) Walter Huffman, who holds that ‘in the interests of justice, the coherent development of international humanitarian law, and the protection of innocent civilians in future wars, the Gotovina judgment should be set aside’: Huffman Walter B, ‘Margin of Error: Potential Pitfalls of the Ruling in The Prosecutor v Ante Gotovina’ (2012) 211 Military Law Review 1, 2; and Emory Report (n 61).

95 Huffman, ibid 5. Interestingly, one of the HV's targets, Milan Martić, was convicted by the tribunal for his ordering of the use of non-guided ammunition. Rather than being criticised for finding that cluster bombs constitute an indiscriminate weapon when used in cities, the Martić Trial Judgment was subsequently incorporated into the ICRC Study (n 38) and used to strengthen the call in favour of a ban on cluster munitions – a treaty which has since been concluded.

96 Huffman, ibid 5.

97 Gotovina Appeals Judgment (n 87) paras 60–61.

98 For example, in relation to some towns and hamlets other than the ‘Four Towns’, as well as Donji Lapac, the trial chamber considered that even though the towns were not mentioned in the HV artillery orders – which appears to indicate that no (pre-determined) targets were present – it could not assess the lawfulness of these strikes as there was not enough evidence to show what the HV was firing at: see Gotovina Trial Judgment (n 2) para 1162. Also, with regard to certain strikes on Gracac, which were directed at some road intersections, the trial chamber considered the intersection a military object, presumably based on its location. Even though it observed that attacking the intersections, which could not be destroyed, would result in a minimal chance of offering any military advantage, the trial chamber was willing to find that the HV would have determined in good faith that firing at the intersections would have offered a definite military advantage: Gotovina Trial Judgment (n 2) paras 1931, 1946–47.

99 See, eg, ICC, Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Trial Chamber, 30 November 2007, para 44; and ICC, Prosecutor v Francis Kirimi Muthuara and Uhuru Muigai Kenyatta, ICC-01/09-02/11, Decision on the appeal of Mr Francis Kirimi Muthuara and Mr Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges Pursuant to Article 67(7)(a) and (b) of the Rome Statute’, Appeals Chamber, 24 May 2012, para 37.

100 Such as the Brioni meeting and the order to put Knin under fire: see Gotovina Trial Judgment (n 2) paras 1994 and 1893, respectively.

101 In doing so, the expert evidence was not exactly incorporated in the ‘method’ applied. However, this could be compared with the situation where two coroners cannot agree on the time of death (and in any event cannot determine the exact moment when conducting their autopsy some time after the victim was killed) and whereby the time suggested by one coroner would lead to a conclusion that the accused could have been the murderer, whilst the time proposed by the other coroner would give the accused a valid alibi. It would then be in the discretion of the chamber to rely only on one of the two experts, or for itself to pick a time between the two suggested times of death; also if this time, albeit somewhat favourable to the accused, would not exonerate him based on his alibi.

102 Just as shells that would be purposely fired at civilians can land in such an area surrounding a military object.

103 See Section 3 above.

104 Gotovina Trial Judgment (n 2) para 1899. In the view of the trial chamber, Martić's residence thus fulfilled the military object test pursuant to Additional Protocol I (n 7) art 52(2).

105 ibid para 1193.

106 ibid paras 1191, 1198, 1910.

107 ibid para 1910.

108 ibid para 1910. The trial chamber added (in a footnote) that its ‘analysis in respect of the proportionality of the attack is informed by the relevant testimony of experts Konings and Corn and Additional Protocol I, Article 51’. However, neither expert's testimony dealt with the attacks on Martić.

109 Gotovina Trial Judgment (n 2) para 1910 and accompanying footnote.

110 As also criticised by the Emory expert meeting: see Emory Report (n 61) 13. The Emory Report considered that ‘the judgment seems to apply a wholly retrospective approach to proportionality and failed to accord proper weight to the information about the commander's intent or analysis at the time of the attack. A second shortcoming, linking directly back to the importance of the target's value, is that the judgment does not appear to consider the operational impact of attacking a target as significantly valuable as Martić’: ibid 10.

111 Gotovina Appeals Judgment (n 87) para 82. The majority noted ‘that it need not consider Gotovina's assertion that the trial chamber erred in finding that the attack on Martić was disproportionate’.

112 See Emory Report (n 61) 10, referring to Martić as a target of very significant value. The report states furthermore that ‘almost any military commander would consider disrupting the ability of such a commander to influence the command, control, and communication of his forces during the decisive phase of an attack to be one of the highest priority targets. In the context of Operation Storm, Martić was perhaps the most valuable target in the city of Knin’: ibid 9.

113 See, eg, an interview with the then head of the CIA, Leon Panetta, in Massimo Calabresi, ‘CIA Chief: Pakistan Would Have Jeopardized Operation’ Time, 3 May 2011.

114 See the Dissenting Opinion of Judge Carmel Agius in the Gotovina Appeals Judgment (n 87) para 21, noting that ‘at least 900 projectiles fell on Knin in just one and a half days, and there are no findings of any resistance coming from the town’.

115 In Galić Trial Judgment (n 1) the trial chamber heard expert evidence from two psychologists on the psychological impact that, eg, sniping can have on civilians, but it still had to determine for itself whether such impact would surpass the legal threshold of ‘terror’: see, eg, Saul Ben, Defining Terrorism in International Law (Oxford University Press 2006) 303–04.

116 Gotovina Trial Judgment (n 2) para 1910.

117 The proportionality assessment should be carried out prior to the attack. Any judicial review should therefore only consider the information available at the time of the attack (see above at Section 3.2).

118 Gotovina Appeals Judgment (n 87) para 82.

119 See Schabas William, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 213.

120 Additional Protocol I (n 7) art 85.

121 William Schabas notes that the proposals for the ICC Statute originally did not include the grave breaches listed in Additional Protocol I. As such, the crime of disproportionate attack at first was not intended to end up in the Statute: Schabas (n 119) 197.

122 The principle of proportionality is an ‘established principle of the law of armed conflict’ and is as such also included in ICC Statute (n 3) art 21(1)(b).

123 Cryer Robert, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press 2005) 277.

124 Didier Pfirter, ‘Article 8(2)(b)(iv)’ in Lee Roy (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational 2001) 147, 150.

125 ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, Pre-Trial Chamber I, 30 September 2008 (Katanga Confirmation Decision) para 374.

126 ibid.

127 ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Second Corrigendum to the Defence Closing Brief (Public Redacted Version), Defence for Mr Germain Katanga, ICC-01/04-01/07, Trial Chamber II, 29 June 2012, paras 851–57.

128 Office of the Prosecutor of the ICC Press Release, ‘Georgia Preliminary Examination: OTP Concludes Second Visit to the Russian Federation’, 4 February 2011, ICC-OTP-20110204-PR625, and the overview at http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor, stating that the ICC's Office of the Prosecutor is conducting preliminary examinations, eg, into the situations in Georgia and Afghanistan.

129 See Office of the Prosecutor of the ICC Press Release, ‘ICC Prosecutor: Alleged War Crimes in the Territory of the Republic of Korea under Preliminary Examination’, 6 December 2010, ICC-CPI-20101206-PR608, http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/press%20releases%20(2010)/pr608.

130 ibid.

131 ibid.

132 See, eg, Human Rights Watch, ‘White Flags Death’, 13 August 2009; and Afghanistan Independent Human Rights Commission, ‘From Hope to Fear: An Afghan Perspective on Operations of Pro-Government Forces’, December 2008.

133 The Elements for Art 8(2)(b)(iv) are:

  1. 1.

    1. The perpetrator launched an attack.

  2. 2.

    2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated [footnote 36: The expression ‘concrete and direct overall military advantage’ refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict].

  3. 3.

    3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated [footnote 37: As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time].

  4. 4.

    4. The conduct took place in the context of and was associated with an international armed conflict.

  5. 5.

    5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

134 RC/Res.5 Amendments to Article 8 of the ICC Statute, adopted at the 12th plenary meeting on 10 June 2010.

135 Arts 8(2)(xiv) and (xv) do not exist for non-international armed conflicts either, but given that these articles deal with ‘the nationals of the hostile party’, this is obviously not possible in such conflicts.

136 ICC Statute (n 3) art 22(2). See Boot Machteld, Genocide, Crimes against Humanity, War Crimes: Nullum Crimen sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerp 2002) 607–08.

137 ICC Statute (n 3) art 8(2)(e)(i).

138 See Galić Appeals Judgment (n 71) paras 133–34.

139 In the case of international armed conflicts, now that the ICC Statute includes specific separate provisions as arts 8(2)(b)(i) (and arguably (iii)), and (iv), it is impossible to bring disproportionate attacks within indiscriminate attacks. The latter will generally be seen as more grave than the former, however. For a contrary view, see Olásolo (n 67) 87.

140 On the other hand, ICC Statute (n 3) art 21(1)(b) allows the court to look at the principles of IHL.

141 ICC, Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Judgment pursuant to Article 74 of the Statute, 14 March 2012, paras 566–67.

142 ICC, Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Prosecution's Closing Brief, 1 June 2011, paras 30, 59–60. The trial chamber has since severed the cases against Ngudjolo and Katanga and delivered its judgment in the case against Ngudjolo. However, in the Ngudjolo judgment, no findings (on the character of the armed conflict) are made because the acquittal was based on a lack of credible evidence.

143 See, however, Wagner Natalie, ‘A Critical Assessment of Using Children to Participate Actively in Hostilities in Lubanga: Child Soldiers and Direct Participation’ (2013) 24 Criminal Law Forum (forthcoming).

144 Galić Trial Judgment (n 1) para 59.

145 The ICTY, eg, includes recklessness, whereas there is disagreement about whether ICC Statute, art 30, includes the concepts of recklessness and/or dolus eventualis: see, generally, van Sliedregt (n 51) 112 and further.

146 Dörmann Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge University Press 2003) 164–65.

147 Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–10 September 2002, United Nations, Sales No E03V2 and corrigendum, Part IIB, 19.

148 See, eg, Otto Triffterer, ‘Can the “Elements of Crimes” Narrow or Broaden Responsibility for Criminal Behaviour Defined in the Rome Statute?’ in Stahn Carsten and Sluiter Göran (eds), The Emerging Practice of the International Criminal Court (Koninklijke Brill 2009) 394–97.

149 Bothe Michael, ‘War Crimes’ in Cassese Antonio, Gaeta Paola and Jones John RWD (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002) 400.

150 See Triffterer (n 148) 396–97; see also Drumbl Mark A, ‘Waging War against the World: The Need to Move from War Crimes to Environmental Crimes’ (1998) 22 Fordham International Law Journal 120, 127–28, who notes that ‘[t]here is no liability for negligently or carelessly inflicting’ excessive damage under art 8(2)(b)(iv).

151 For a description of the process see, for example, the part of the US Army Field Manual that relates to targeting: Department of the Army, ‘The Targeting Process’, FM 3-60 (FM-6-20-10), November 2010, 7–10, http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm3_60.pdf.

152 Bothe (n 149) 400.

153 ICTY, Prosecutor v Gotovina, Čermak and Markač, Defendant Ante Gotovina's Submission of Expert Report of Professor Corn pursuant to Rule 94 bis, IT-06-90-T, 30 June 2009, 7.

154 ibid 12.

155 Although recklessness or implied intent cannot be directly translated into dolus eventualis. See, generally, Ambos Kai, ‘General Principles of Criminal Law in the Rome Statute’ (1999) 10 Criminal Law Forum 1, 2122; and Van de Vyver John D, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal Law’ (2004) 12 Miami International and Comparative Law Review 54, 5764.

156 Cassese criticises the drafters of the Rome Statute for not including recklessness, whilst Triffterer holds that art 30 includes dolus eventualis: see, respectively, Cassese Antonio, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144, 153–54; and Triffterer Otto, ‘The New International Criminal Law: Its General Principles Establishing Individual Criminal Responsibility’ in Koufa Kalliopi (ed), The New International Criminal Law (Sakkoulas Publications 2003) 706. The ICC's case law has until now been ambiguous in its reasoning. The Lubanga pre-trial chamber included dolus eventualis, but rejected recklessness, whilst the Bemba pre-trial chamber rejected both (ICC, Prosecutor v Thomas Lubanga Dyilo, Decision sur la confirmation des charges, ICC-01/04-01/06, Pre-Trial Chamber, 29 January 2007, para 352; and ICC, Prosecutor v Jean-Pierre Bemba Gombo, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Pre-Trial Chamber, 15 June 2009, para 363).

157 The Commentary on Additional Protocol I observes that the grave breach included in art 85(3)(a) is committed when the attacker acted ‘wilfully’ and that ‘this encompasses the concepts of “wrongful intent” or “recklessness”’: Commentary on API (n 20) paras 3474 and 3476.

158 Additional Protocol I (n 7) art 49(1).

159 On collective punishments and the omission to include this crime in the ICC Statute, see Darcy Shane, ‘Prosecuting the War Crime of Collective Punishment: Is It Time to Amend the Rome Statute?’ (2010) 8 Journal of International Criminal Justice 29.

160 (n 10) Separate Opinion by Judge Kooijmans, para 34.

161 Additional Protocol I (n 7) art 49(3) reads: ‘The provisions of this section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air’.

162 Arguably, attacks from the air on objects at sea also do not fall within the definition of Additional Protocol I, art 49.

163 Naturally, if a large oil spill affects the civilian population on land, the attack causing it would fall within Additional Protocol I, art 49, although such an effect on the civilian population would have to be proved in addition to the other elements. It means also that protection of the environment would again be linked to protection of the civilian population, whereas art 8(2)(b)(iv) in principle gives the environment a status that is not dependent on any damage to the civilian population (see further below at Section 5.3.6).

164 Dörmann (n 146) 162.

165 ibid.

166 See, however, the Katanga pre-trial chamber which held: ‘The Rome Statute includes such a violation of the principle of proportionality in the provision of 8(2)(b)(iv), which is limited to punishing the very violation of the principle of proportionality. In such a situation, the awareness of the perpetrators of the consequences of the attack is an objective element of the crime. … Conversely, the crime described in 8(2)(b)(i) of the Statute, with which Germain Katanga and Mathieu Ngudjolo Chui are charged, is a crime of mere action that does not require any factual consequences or any awareness of the perpetrators of the consequences of the attack’: Katanga Confirmation Decision (n 125) para 374.

167 See Tadić Jurisdiction Decision (n 1) para 94.

168 See Judith Gardam, ‘Crimes Involving Disproportionate Means and Methods of Warfare under the Statute of the International Criminal Court’ in Jose Doria, Hans-Peter Gasser and M Cherif Bassiouni, The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff 2009) 546.

169 See Schmitt Michael N, ‘Green War: An Assessment of the Environmental Law of International Armed Conflict’ (1997) 22 Yale Journal of International Law 1, 59; for such models, see, eg, Humphrey Amanda, See Judi and Faulkner David, ‘A Methodology to Assess Lethality and Collateral Damage for Nonfragmenting Precision-Guided Weapons’ (2008) 29 International Test and Evaluation Association Journal 411, 411–19.

170 Katanga Confirmation Decision (n 125) para 266 (footnotes omitted). It could be argued that the pre-trial chamber's use of ‘or’ allows for the inclusion of individual civilians who are not taking a direct part and are not aligned to the adverse party. However, the wording of the rest of para 266 and the discussion by the pre-trial chamber at paras 267–69 shows that the chamber considers the allegiance requirement to be applicable also to such individual civilians.

171 See, however, the limitation set by UNSC Res 1970(2011), 26 February 2011, UN Doc S/RES/1970 (2011), para 6.

172 See, eg, Sassòli Marco, ‘International Humanitarian Law and Peace Operations, Scope of Application Ratione Materiae’ in Beruto Gian Luca (ed), International Humanitarian Law, Human Rights and Peace Operations: Proceedings of the 31st Round Table on Current Problems of International Humanitarian Law (Institute of International Humanitarian Law 2009) 100.

173 See ICC, Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09-79-Red, Document Containing the Charges Submitted Pursuant to Article 61(3) of the Statute, 11 November 2010. The AMIS camp was situated in Darfur.

174 See Rubinstein Amnon and Roznai Yaniv, ‘Human Shields in Modern Armed Conflicts: The Need for a Proportionate Proportionality’ (2011) 22 Stanford Law & Policy Review 93.

175 The US Commander's Handbook on the Law of Naval Operations, for example, states that voluntary human shields and employees of an ammunition factory ‘may be excluded from the proportionality analysis’: US Department of the Navy and others, ‘The Commander's Handbook on the Law of Naval Operations’, NWP I-14, July 2007, para 8.3.2. See Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (Program on Humanitarian Policy and Conflict Research, 2009) 93, which explains that the majority of the experts participating in the drafting of the manual hold a contrary view and consider that such civilians should be part of the proportionality analysis, like any other civilian.

176 For a similar view, see Byron Christine, ‘International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Damage’ (2010) 13 Yearbook of International Humanitarian Law 195.

177 See, eg, Kolb and Hyde (n 6) 48; Dinstein (n 11) 59.

178 Additional Protocol I (n 7) arts 51(5)(b) and 57(2) refer only to ‘civilian life, injury to civilians, damage to civilian objects, or a combination thereof’ that would be ‘excessive in relation to the concrete and direct military advantage anticipated’.

179 The Strugar trial chamber held, in relation to alleged war crimes, that persons hors de combat are ‘members of the civilian population’. Its reference to the Akayesu (n 1) and Blaškić (n 78) Trial Judgments relates to the civilian population for the purposes of crimes against humanity: Strugar Trial Judgment (n 59) para 282. As noted by the trial chamber, the presence of, eg, persons hors de combat does not change the civilian nature of the civilian population, but in case of an attack that affects a group that is made up only, or mostly, of persons hors de combat, this argument does not apply.

180 This problem does not arise with regard to other crimes within ICC Statute (n 3) art 8, that could potentially affect persons hors de combat. Those paragraphs refer to crimes committed against protected persons (art 8(2)(a)), persons in the power of the adversary (art 8(2)(b)(x)), or ‘protected person’ (art 8(2)(b)(xxiii)), and thus include POWs/persons hors de combat.

181 Cassese Antonio, International Criminal Law (Oxford University Press 2003) 14.

182 ICC Statute (n 3) art 22(2) states that ‘[t]he definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted’.

183 Shue Henry and Wippman David, ‘Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions’ (2002) 35 Cornell International Law Journal 559.

184 Benvenuti Paolo, ‘The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia’ (2001) 12 European Journal of International Law 509.

185 Henderson (n 19) 198–99.

186 Olásolo (n 67) 158.

187 Black's Law Dictionary notes that ‘or’ is a ‘“disjunctive” particle used to express an alternative or to give a choice of one among two or more things’. However, it also notes that [i]n some usages, the word “or” creates a multiple rather than an alternative obligation’: Black's Law Dictionary (6th edn, West Publishing 1990).

188 Additional Protocol I (n 7) arts 51(5)(b) and 57(2)(b) (emphasis added).

189 According to Christine Byron, this also follows from the Blaškić Trial Judgment (n 78) para 651: see Byron (n 176) 202.

190 Art 35(3) is in ‘Part III. Methods and Means of Warfare Combatant and Prisoners-of-War’, whilst arts 51 and 57 are in ‘Part IV. Civilian Population’ of Additional Protocol I (n 7).

191 Additional Protocol I (n 7) arts 52(1) and (2); see also rules 8 and 9 of the ICRC Study (n 38).

192 Henckaerts Jean-Marie, ‘Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’ (2005) 87 International Review of the Red Cross 857, 191.

193 The International Law Commission draft actually proposed a purely anthropocentric crime as it limited the damage to the environment to what ‘gravely prejudice[s] the health or survival of the population’: see Lawrence Jessica C and Heller Kevin Jon, ‘The First Ecocentric Environmental War Crime: The Limits of Article 8(2)(b)(iv) of the Rome Statute’ (2007) 20 Georgetown International Environmental Law Review 61, 68.

194 ibid 72.

195 Cryer (n 123) 272.

196 Dörmann (n 146) 166.

197 (entered into force 5 October 1978) 1108 UNTS 151.

198 ENMOD, art 1(1).

199 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, CDDH/215/Rev.1, Volume XV, 1978, 268–69; see also UN Doc A/48/269, 9.

200 See Drumbl Mark A, ‘Waging War against the World: The Need to Move from War Crimes to Environmental Crimes’ (1998) 22 Fordham International Law Journal 122, 127–28; see further Schmitt (n 169) 82.

201 ibid 59.

202 See, generally, Robinson Julian P, The Effects of Weapons on Ecosystems (United Nations Environment Programme, Pergamon Press 1979).

203 Lawrence and Heller (n 193) 83.

204 See Additional Protocol I (n 7) arts 51(5)(b), 57(2)(b) and 85(3). The ICRC's Commentary to Additional Protocol I substitutes the word ‘excessive’ for ‘extensive’ to indicate that extensive civilian deaths or damage to civilian objects would never be justified by a perceived military advantage. However, the Commentary's use of the word ‘extensive’ is criticised by, inter alia, Anthony Rogers for negating the balancing process inherent in the idea of proportionality: Rogers (n 9) 18.

205 Boothby William H, The Law of Targeting (Oxford University Press 2012) 97.

206 ICC Office of the Prosecutor, Letter to Senders concerning the Situation in Iraq, 9 February 2006, 5–7, http://www.icc-cpi.int/iccdocs/asp_docs/library/organs/otp/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf.

207 See Schabas (n 119) 259–61.

208 See Cryer (n 123) 268.

209 Australia, Canada and New Zealand have stated that, in their view, the term ‘military advantage’ includes the security of the attacking forces: see ICRC Study (n 38) commentary to ‘Rule 14. Proportionality in Attack’ at ‘Interpretation’. Furthermore, see, eg, Fenrick (n 23) 548–49 for a view that force protection (or the security of the attacking force) should not be included; and Henderson (n 19) 203–06 for the view that this can be included in the military advantage.

210 Dörmann (n 146) 163.

211 ICRC, ‘Paper submitted to the Working Group on Elements of Crimes of the Preparatory Commission for the International Criminal Court’, 13 July 1998, UN Doc A/CONF.183/INF/10 (1998).

212 Dörmann (n 146) 171–73.

213 See also Cryer (n 123) 278–79.

214 See ICTY, Prosecutor v Gotovina, Čermak and Markač, Decision on Prosecution's Application for an Order pursuant to Rule 54bis Directing the Government of the Republic of Croatia to Produce Documents or Information, IT-06-90-T, 26 July 2010, in which the trial chamber sets out the problems that the prosecution was faced with when trying to obtain documents from the Croatian government. See also ICTY, Prosecutor v Blaškić, Judgment, IT-95-14-A, Appeals Chamber, 29 July 2004, para 4.

215 On this issue, see Sluiter Göran, ‘“I Beg You, Please Come Testify”: The Problematic Absence of Subpoena Powers at the ICC’ (2009) 12 New Criminal Law Review 590; and Sluiter Göran, ‘Appearance of Witnesses and Unavailability of Subpoena Powers for the Court’ in Bellelli Roberto (ed), International Criminal Justice: Law and Practice from the Rome Statute to Its Review (Ashgate 2010) 459, in which he observes that ‘[o]ne of the most puzzling aspects of the ICC's legal edifice is the lack of subpoena powers in relation to witnesses’.

216 Sluiter, ‘Appearance of Witnesses’, ibid 459.

217 Waldt Patricia, ‘General Radislav Krstic: A War Crimes Case Study’ (2003) 16 Georgetown Journal of Legal Ethics 445 (Waldt sat on the bench for this case). Also the trial chamber relied on numerous UNPROFOR intercepts in ICTY, Prosecutor v Popović and Others, Judgment, IT-05-88-T, Trial Chamber, 10 June 2010, paras 64–66, 294, 318, 564.

218 See, eg, the charge sheet in United States v Bradley Manning at http://www.washingtonpost.com/wp-srv/lifestyle/magazine/2011/manning/manning_charges.pdf.

219 Similar to the ‘real’ ad hoc tribunals, the ICC's jurisdiction would be specifically instituted for one situation or one armed conflict. A similar situation will occur if a national of a non-state party were to find him/herself on trial before the ICC as a result of a declaration lodged by a non-state party with the Registrar (based on ICC Statute, art 12(3)) as the non-state party thereby accepts the ICC's jurisdiction over the alleged crime after the said crime allegedly occurred.

220 It was the appeals chamber of the ICTY itself that – in a decision that was afterwards not disputed by the international community – concluded that ‘the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41’: Tadić Jurisdiction Decision (n 1) para 33.

221 Arguably this should also be done when a member state has not incorporated the ICC Statute into national law and has not ratified Additional Protocol I.

222 As was first done by the ICTY in Tadić, see below. In his report on the proposed ICTY Statute (n 43), the UN Secretary-General had already stated that ‘the application of the principle nullem crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all states to specific conventions does not arise’: Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, UN Doc S/25704, 34.

223 These conditions are as follows:

  1. (i)

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

  2. (ii)

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

  3. (iii)

    (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 …;

  4. (iv)

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

With regard to (ii), the appeals chamber considered 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’: Tadić Jurisdiction Decision (n 1) paras 94 and 143.

224 The Office of the Prosecutor of the ICC has initiated a preliminary investigation into situations in Afghanistan, which in part concerns actions by the US. A preliminary investigation has also been initiated into the 2009–10 Gaza War (Operation Cast Lead) involving Israel and Palestine: see ICC, Office of the Prosecutor, ‘Communications, Referrals, and Preliminary Examinations’, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/decision%20not%20to%20proceed/palestine/Pages/palestine.aspx.

225 ICC Statute (n 3) art 24 (non-retroactivity ratione personae) only deals with conduct prior to the entry into force of the statute.

226 Grover Leena, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court’ (2010) 21 European Journal of International Law 543, 567.

227 ibid.

228 Amongst those who consider the crimes in the ICC Statute to be reflective of customary law is the former chairman of the Rome Conference and first president of the ICC, Philippe Kirsch: see Philippe Kirsch, ‘Customary International Humanitarian Law, its Enforcement, and the Role of the International Criminal Court’ in Larry Maybee and Benarji Chakka (eds), Custom as a Source of International Humanitarian Law: Proceedings of the Conference to Mark the Publication of the ICRC Study ‘Customary International Humanitarian Law’ (International Committee of the Red Cross 2006) 79, 80. Others include Werle (n 39); Herman von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Lee Roy S (ed), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International 1999) 79, 126.

229 Such as the grave breaches of the Geneva Conventions of 1949 listed in art 8(2) of the ICC Statute: see, eg, Henckaerts Jean-Marie, ‘The Grave Breaches Regime as Customary International Law’ (2009) 7 Journal of International Criminal Justice 683.

230 Leila Sadat states that the ‘delegates were not prepared to accept wholesale that each and every definition adopted was perfectly reflective of custom’: Sadat Leila, ‘Custom, Codification and Some Thoughts about the Relationship between the Two: Article 10 of the ICC Statute’ (2000) 49 De Paul Law Review 916. William Schabas considers that ‘while the correspondence with customary international law is close, it is far from perfect’: Schabas William, An Introduction to the International Criminal Court (2nd edn, Cambridge University Press 2004) 28. Similarly, Leena Grover submits that ‘Articles 6, 7, and 8 of the Rome Statute … are not completely exhaustive of custom and may depart from custom in places’: Grover (n 226) 568. Also, the appeals chamber of the ICTY has this view of the customary nature of the ICC Statute: Prosecutor v Furundzija, Judgment, IT-95-17/1-T, Appeals Chamber, 10 December 1998, para 227.

231 ICC Statute (n 3) art 10 has the effect of insulating the statute from subsequent customary law developments.

232 See, in support, Cassese Antonio, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144, 151. Cassese appears to be of a similar view when he notes that the ICC for certain crimes ‘would first have to establish (i) whether under general international law such [conduct] … is considered a breach of international humanitarian law of armed conflict, and in addition (ii) whether under customary international law such a breach would amount to a war crime’.

233 In the Decisions on the Confirmation of Charges in the cases related to an alleged attack on African Union peacekeepers in Darfur, the pre-trial chambers did not pronounce on this issue. It must be said that the defence in these cases did not raise the issue: see ICC, Prosecutor v Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09, Pre-Trial Chamber, 8 December 2010 (ICC-02/05-02/09-243-Red); and ICC, Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Corrigendum of the ‘Decision on the Confirmation of Charges’, ICC-02/05-03/09, Pre-Trial Chamber, 8 March 2011 (ICC-02/05-03/09-121-CORR-RED). However, compare ICC, Prosecutor v Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, ICC-01/04-01/06, Pre-Trial Chamber, 29 January 2007 (ICC-01/04-01/06-803), paras 294–316 in which Pre-trial Chamber I did go into the issue of jurisdiction over the alleged conduct – even though here it involved a situation on the territory of a state party that had ratified Additional Protocol I.

234 The text could then be as follows:

Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

235 See Section 5.3 above.

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