Under IHL, there are specific prohibitions
for the protection of the civilian population, specific acts or omission which
can constitute a war crime. The most apparent prohibition, of the principle of
distinction, is ‘the prohibition of direct attacks against civilians’1.
‘Disproportionate attacks may give rise, to the inference that civilians were
the actual objective’2.
Constituently it has been held by the tribunal, that the statute must be
interpreted using ‘its natural and ordinary meaning in the context in which they
The appeals chambers observes that the definition of ‘civilian’ found in article 50(1) of Additional Protocol I4,adheres
to ‘the fundamental character of the notion of civilian in international
The Setako Appeal6,
had been brought to the appeal chamber, as Setako had been found to have
ordered the killing of eleven people. Using the findings of the trial chamber,
the appeal chamber concluded that Setako, had ordered the killing of nine or
ten Tutsis, he had brought in his vehicle to the Mukamira camp, and his
instructions had orchestrated their deaths. The findings showed that Setako,
had no intention to spare the lives of the Tutsis, he brought to the camp that day,
and his order was the result of their death. In IHL the term ‘attack’, doesn’t
only refer to offensive operations, but also ‘acts of violence against the
adversary, whether in offence or in defense’7.
Under the Statute of the International
Criminal Court, ‘intentionally launching an attack in the knowledge that such
attack will cause incidental loss of life or injury to civilians or damage to
civilian objects … which would be clearly excessive in relation to the concrete
and direct overall military advantage anticipated’8
amounts to an international war crime. Whether such attack is offensive or
In the prosecutor v jadranko9,
the trial judge inferred from the weapons used, that the ‘perpetrators wanted
to affect Muslim civilians’10,
the ‘home-made mortars’11
are difficult to guide, as a result they are likely to hit non -military objects.
These ‘blind weapons’12
were sent to Stari Vitez, where they killed Muslim civilians and caused
‘military civilian damage’13.
The appeals chamber found that although ‘collateral civilian damage’ isn’t illegal
if the rules of proportionality are met, prohibition attacks against civilians
is absolute. The trial chamber has concluded that attacks, using weapons which
cannot distinguish between military objectives and civilian objects14,
may be classed as a direct attack on civilians.
is reinforced by the prohibition of indiscriminate attacks. The prohibition of
indiscriminate attacks, is set forth in Article 51(4) of Additional Protocol I15.Military
manuals and various states, have employed legislation making this act an offence.
In the Nuclear Weapons and Nuclear Weapons (WHO) case16,
states applied the prohibition of indiscrimate attacks to decide if a nuclear
attack amounted to a violation of international law in all armed conflicts.
Indiscriminate attacks are attacks, which do not distinguish between civilian
population, and military objectives, because they are not or cannot be directed
at a specific military objective. An example of indiscriminate attacks, is the
carpet-bombing campaign of World War II. Areas containing both military and
civilian objectives, were targeted and treated as one single military
The principle of indiscriminate attacks, was
included in the draft of additional protocol II, but was dropped. Consequently,
it has been argued that the principle is included by inference, within the
prohibition contained in article 13(2) of additional protocol II17.
Violations of the principle, have been condemned by states, irrespective of whether
it was international or non-international conflict. Violation of this rule has
also been condemned, by international organizations i.e. The United Nation, in
the context of the conflict in Afghanistan and Burundi18.
1 AP I, Art 51(2); CIHL, Rule 1
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.
2 ICTY, Gali? Trial
Judgment, 5 December 2003, para. 60.
6 ICTR, Setako Appeal Judgment, 28 September 2011, para. 258
7 AP I, Art. 49(1).
8 ICC Statute, Article 8(2)(b)(iv) (ibid., § 5); see also UNTAET
Regulation 2000/15, Section 6(1)(b)(iv) (ibid., § 13).
9 Prosecutor v. Jadranko Prli?,
Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 189-190
13 ICTY, Blaški? Trial
Judgment, 3 March 2000, para. 512
14 AP I, Art. 51(4); CIHL, Rule 12.
15 Additional Protocol I, Article 51(4) (cited in Vol. II, Ch. 3, § 1)
‘Indiscriminate attacks are prohibited.
Indiscriminate attacks are:
(a) those which are not directed at a
specific military objective;
(b) those which employ a method or
means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or
means of combat the effects of which cannot be limited as required by this
Protocol; and consequently, in each such case, are of a nature to strike
military objectives and civilians or civilian objects without distinction’.
17 Article 13(2) additional protocol II ‘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.’
18 UN Security Council, Res. 1199 (ibid., § 102) and Statement by the
President (ibid., § 103); UN General Assembly, Res. 40/137 (ibid., § 106), Res.
48/153, 49/196 and 50/193 (ibid., § 107), Res. 51/112 (ibid., § 108), Res.
53/164 (ibid., § 109), Res. 55/116 (ibid., § 110); UN Commission on Human
Rights, Res. 1987/58 and 1995/74 (ibid., § 111), Res. 1992/S-2/1 and 1993/7
(ibid., § 112), Res. 1994/75 and 1995/89 (ibid., § 113), Res. 1995/77, 1996/73,
1997/59 and 1998/67 (ibid., § 114), Res. 1998/82 (ibid., § 115), Res. 2000/58
(ibid., § 116); Council of Europe, Committee of Ministers, Declaration on
Nagorno-Karabakh (ibid., § 125) and Declaration on Bosnia and Herzegovina
(ibid., § 126); Council of Europe, Parliamentary Assembly, Res. 1055 (ibid., §
127); EC, Ministers of Foreign Affairs, Declaration on Yugoslavia (ibid., §
128); EC, Statement on the bombardment of Goražde and Declaration on Yugoslavia
(ibid., § 129); EU, Council of Ministers, Council Regulation EC No. 1901/98
(ibid., § 130); European Council, SN 100/00, Presidency Conclusions (ibid., §