Under IHL, there are specific prohibitionsfor the protection of the civilian population, specific acts or omission whichcan constitute a war crime. The most apparent prohibition, of the principle ofdistinction, is ‘the prohibition of direct attacks against civilians’1.’Disproportionate attacks may give rise, to the inference that civilians werethe actual objective’2.
Constituently it has been held by the tribunal, that the statute must beinterpreted using ‘its natural and ordinary meaning in the context in which theyoccur’3.The appeals chambers observes that the definition of ‘civilian’ found in article 50(1) of Additional Protocol I4,adheresto ‘the fundamental character of the notion of civilian in internationalhumanitarian law’5.The Setako Appeal6,had been brought to the appeal chamber, as Setako had been found to haveordered the killing of eleven people. Using the findings of the trial chamber,the appeal chamber concluded that Setako, had ordered the killing of nine orten Tutsis, he had brought in his vehicle to the Mukamira camp, and hisinstructions 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’tonly refer to offensive operations, but also ‘acts of violence against theadversary, whether in offence or in defense’7.Under the Statute of the InternationalCriminal Court, ‘intentionally launching an attack in the knowledge that suchattack will cause incidental loss of life or injury to civilians or damage tocivilian objects … which would be clearly excessive in relation to the concreteand direct overall military advantage anticipated’8amounts to an international war crime.
Whether such attack is offensive ordefensive.In the prosecutor v jadranko9,the trial judge inferred from the weapons used, that the ‘perpetrators wantedto affect Muslim civilians’10,the ‘home-made mortars’11are difficult to guide, as a result they are likely to hit non -military objects.These ‘blind weapons’12were 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 illegalif the rules of proportionality are met, prohibition attacks against civiliansis absolute. The trial chamber has concluded that attacks, using weapons whichcannot distinguish between military objectives and civilian objects14,may be classed as a direct attack on civilians.
Thisis reinforced by the prohibition of indiscriminate attacks. The prohibition ofindiscriminate attacks, is set forth in Article 51(4) of Additional Protocol I15.Militarymanuals 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 nuclearattack amounted to a violation of international law in all armed conflicts.Indiscriminate attacks are attacks, which do not distinguish between civilianpopulation, and military objectives, because they are not or cannot be directedat a specific military objective. An example of indiscriminate attacks, is thecarpet-bombing campaign of World War II.
Areas containing both military andcivilian objectives, were targeted and treated as one single militaryobjective.The principle of indiscriminate attacks, wasincluded in the draft of additional protocol II, but was dropped. Consequently,it has been argued that the principle is included by inference, within theprohibition contained in article 13(2) of additional protocol II17.
Violations of the principle, have been condemned by states, irrespective of whetherit was international or non-international conflict. Violation of this rule hasalso been condemned, by international organizations i.e. The United Nation, inthe context of the conflict in Afghanistan and Burundi18. 1 AP I, Art 51(2); CIHL, Rule 1 The civilian population as such, as well asindividual civilians, shall not be the object of attack. Acts or threats ofviolence the primary purpose of which is to spread terror among the civilianpopulation are prohibited.2 ICTY, Gali? TrialJudgment, 5 December 2003, para.
60. 3 4 5 https://www.casematrixnetwork.org/cmn-knowledge-hub/elements-digest/art8/b/8-2-b-i/3/#_ftn46 ICTR, Setako Appeal Judgment, 28 September 2011, para. 2587 AP I, Art. 49(1).8 ICC Statute, Article 8(2)(b)(iv) (ibid.
, § 5); see also UNTAETRegulation 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. 189-19010 http://www.icty.
casematrixnetwork.org/cmn-knowledge-hub/elements-digest/art8/b/8-2-b-i/3/#_ftn913 ICTY, Blaški? TrialJudgment, 3 March 2000, para. 51214 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 aspecific military objective;(b) those which employ a method ormeans of combat which cannot be directed at a specific military objective; or(c) those which employ a method ormeans of combat the effects of which cannot be limited as required by thisProtocol; and consequently, in each such case, are of a nature to strikemilitary objectives and civilians or civilian objects without distinction’.16 17 Article 13(2) additional protocol II ‘The civilian population assuch, as well as individual civilians, shall not be the object of attack. Actsor threats of violence the primary purpose of which is to spread terror amongthe civilian population are prohibited.’18 UN Security Council, Res. 1199 (ibid.
, § 102) and Statement by thePresident (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 HumanRights, 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 onNagorno-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., §131).