The Prosecutor v. Stanislav Galic - Case No. IT-98-29-T

“Judgement and Opinion”

5 December 2003
Trial Chamber I (Judges Orie [Presiding], El Mahdi and Nieto-Navia)

Background

Stanislav Galic was born on 12 March 1943 in Goles village in Banja Luka Municipality. He held the rank of Major General in the Bosnian Serb army (“VRS”) and assumed command of the Sarajevo Romanija Corps (“SRK”) on or about 10 September 1992, remaining in that position until about 10 August 1994. An indictment against him was filed on 26 March 1999 and remained sealed until his detention by troops of the Multinational Stabilisation Force (“SFOR”) on 20 December 1999. He was charged for the events surrounding the military encirclement of the city of Sarajevo, the capital of Bosnia -Herzegovina, in 1992.

According to the Indictment, Stanislav Galic (“Accused”) conducted during this period a protracted campaign of shelling and sniping¹ to kill, maim, wound and terrorise the inhabitants of Sarajevo, thereby killing and wounding thousands of civilians. He was charged on the basis of his individual criminal responsibility under Articles 7(1) and 7(3) of the Statute for his acts and omissions in relation to infliction of terror as a violation of the laws or customs of war as set forth in Article 51 of Additional Protocol I² and Article 13 of Additional Protocol II³ to the Geneva Conventions of 1949⁴ (Count 1), attacks on civilians as violations of the laws or customs of war (Counts 4 and 7), murder as a crime against humanity (Counts 2 and 5), and inhumane acts as crimes against humanity (Counts 3 and 6).

On 21 December 1999, Stanislav Galic was transferred to the Tribunal. At his initial appearance, on 29 December 1999, he pleaded not guilty to all counts. The trial commenced on 3 December 2001 and closing arguments were presented on 6, 7 and 8 May 2003. A total of 171 witnesses were heard. The total number of exhibits, including written reports, films, photographs, maps and sound-recordings, amounted to 1,268 items, in addition to which there were 15 expert reports.

Judgement

The Trial Chamber found Stanislav Galic guilty on the following counts, pursuant to Article 7(1) of the Statute of the Tribunal:

Count 1: Violations of the Laws or Customs of War (acts of violence the primary purpose of which is to spread terror among the civilian population, as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949) under Article 3 of the Statute of the Tribunal.
Count 2: Crimes against Humanity (murder) under Article 5(a) of the Statute of the Tribunal.
Count 3: Crimes against Humanity (inhumane acts – other than murder) under Article 5(i) of the Statute of the Tribunal.
Count 5: Crimes against Humanity (murder) under Article 5(a) of the Statute of the Tribunal.
Count 6: Crimes against Humanity (inhumane acts – other than murder) under Article 5(i) of the Statute of the Tribunal.

As a consequence of the finding of guilt on Count 1, the Trial Chamber dismissed the following counts⁵:

Count 4: Violations of the Laws or Customs of War (attack 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) under Article 3 of the Statute of the Tribunal.
Count 7: Violations of the Laws or Customs of War (attack 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) under Article 3 of the Statute of the Tribunal.

The Trial Chamber, by Majority, sentenced Stanislav Galic to a single sentence of twenty years of imprisonment.⁶

Reasoning⁷

Attacks on civilians as a violation of the laws or customs of war

It was alleged in Count 4 that Stanislav 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”. Count 7 of the Indictment alleged 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”. After satisfying itself that the conditions of application of Article 3 of the Statute had been met⁸, the Trial Chamber addressed inter alia the following legal issues:

Attacks on civilians and military necessity

The Trial Chamber noted that the constitutive elements of this offence have not yet been the subject of a definitive statement by the Appeals Chamber. Only two cases before the Tribunal have dealt with persons charged with and tried for attacks on civilians under Article 3 of the Statute pursuant to Article 51(2) of Additional Protocol I. 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”.⁹ As to 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”.¹⁰ 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”.¹¹

The Trial Chamber followed this jurisprudence insofar as it states that an attack which causes death or serious bodily injury within the civilian population constitutes an offence. It however did not subscribe to the view that the prohibited conduct of attacking a civilian population set out in the first part of Article 51(2) could adequately be described as targeting civilians “when not justified by military necessity”.¹² In its view, 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 ”.¹³

Protection of civilians

The Trial Chamber recalled that Article 51(2) confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities and pointed out that the prohibition against attacking civilians stems from a fundamental principle of international humanitarian law: the principle of distinction. This principle is set out, among other places, in Article 48 of Additional Protocol I which states that the warring parties must “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”.¹⁴

The Trial Chamber addressed in detail the question of who can be considered a civilian. It is well established in international humanitarian law that a civilian is a person who does not take an active part in hostilities. In other words the protection granted to civilians ceases when those civilians take up arms and engage in fighting.¹⁵ As it is sometimes difficult to assert the status of a person, factors such as the clothing, activity, age or sex of the person may be considered, and in any case if there is a doubt as to the civilian character of an individual, that individual shall be presumed to be a civilian.¹⁶ In the understanding of the Trial Chamber, “a person shall not be made the object of an 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”.¹⁷

Elements of attacks on civilians

In sum, the Trial Chamber found that the crime of attacks 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.¹⁸

As regards the mental element of the offence of attacks on civilians, the Trial Chamber referred to Article 85 of Additional Protocol I which qualifies as a grave breach the act of “wilfully […] making the civilian population or individual civilians the object of attack” when that act results in death or serious injury to body or health. It then referred to the Commentary to Article 85 of Additional Protocol I which sets out that the word “wilfully” means that the accused “must have acted consciously and with intent” and encompasses the concept of “recklessness”.¹⁹ It held: “the notion of ‘wilfully’ incorporates the concept of recklessness, whilst excluding mere negligence. The perpetrator who recklessly attacks civilians acts ‘wilfully’”.²⁰ The Trial Chamber further held that, in order to prove the mens rea for a charge of attacks on civilians, the Prosecution must show that the perpetrator was aware of the civilian status of the persons attacked. The Trial Chamber held that, in cases of doubt as to the status of those persons, “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”.²¹

Attacks on civilians and proportionality

With regard to the first element of the above definition of attacks on civilians, it is well established that indiscriminate attacks, i.e. attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks on civilians.²² Further, indiscriminate attacks are expressly prohibited in Article 51 of Additional Protocol I²³ which considers as indiscriminate such attacks as “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 ”.²⁴ In other words, attacks that are disproportionate may per se qualify as indiscriminate attacks.

In order to obey the principle of proportionality, “precautions in attack” must be taken by those who plan or decide to target an objective (Article 57 of Additional Protocol I²⁵). Those persons must do “everything feasible” to assess whether the intended target is not civilian (or a protected military objective), choose the proper means to attack in order to minimize the incidental loss, and then assess whether striking the target would still be feasible without causing “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”. In the words of the Trial Chamber, determining whether an attack is proportionate requires a determination as to “whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack”.²⁶ It thereby determined that “to establish the mens rea of a disproportionate attack the Prosecution must prove […] that the attack was launched wilfully and in knowledge of circumstances giving rise to the expectation of excessive civilian casualties”.²⁷

With regard to the application of this principle, the Trial Chamber noted that “the rule of proportionality does not refer to the actual damage caused or to the military advantage achieved by an attack, but instead uses the words ‘expected’ and ‘anticipated’”.²⁸ It further noted that, 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”.²⁹ In consequence, when it assessed scheduled shelling incident 1, the Trial Chamber noted that, although half of the victims were soldiers, the attack, when planned, had clearly been expected to cause incidental loss of life and injuries to civilians excessive in relation to the direct and concrete military advantage anticipated.³⁰

Terror against the civilian population as a violation of the laws or customs of war

The introductory paragraph of Count 1, headed “Infliction of Terror”, alleged that 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”. The crime of terror as such had never been considered as a separate offence in any Judgement issued by the Tribunal, although the terrorisation of civilians had been taken into account as part of the commission of other crimes.³¹ This was the first time an international tribunal had addressed the matter. The Trial Chamber was not required to assess its jurisdiction over the crime of inflicting terror on the civilian population in a general sense but was concerned only with the question as to whether the specific offence of killing and wounding civilians in time of armed conflict with the intention of inflicting terror on the civilian population, as alleged in the Indictment, was an offence over which the Tribunal had jurisdiction. It did so with regard to the four Tadic conditions which must be met in order for an offence to fall within the scope of Article 3 of the Statute³² and then turned to the elements of the crime of terror.

Terror in international humanitarian law

The crime of terror was charged in the Indictment in accordance with both Article 51 of Additional Protocol I and Article 13 of Additional Protocol II. As it had already found that Article 51 applied to the armed conflict in Sarajevo for the events charged in the Indictment as a matter of conventional law³³, the Trial Chamber decided to rely on the second part of Article 51(2) of Additional Protocol I (“second part of Article 51(2)”) which states that “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”. Therefore the first Tadic condition that the prohibition be based on a rule of international humanitarian law was met.

As to the second condition, the Trial Chamber did not have to prove that the prohibition was part of customary international law. It decided to base itself on treaty law and proceeded with “additional caution […] to avoid any possible misunderstanding […] on this important question”.³⁴ In the Tadic Jurisdiction Decision, the Appeals Chamber had ruled that the International Tribunal was “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”.³⁵

In relation to the first point, the Trial Chamber had already found, as mentioned above, that Additional Protocol I applied as a matter of conventional law in the present case. As for the Appeals Chamber’s second point that the treaty in question must not conflict with or derogate from peremptory norms of international law, the Trial Chamber stated that the second paragraph of Article 51, read as a whole, meant that the prohibition against terror is a specific prohibition within the general prohibition of attacks on civilians.³⁶ The general prohibition being a peremptory norm of customary international law, the Trial Chamber stated that it could be said that the specific prohibition also shares this peremptory character, for it protects the same value. It therefore held that “according with the general norm, the rule against terror neither conflicts with nor derogates from peremptory norms of international law”.³⁷

Terror as a serious violation of international humanitarian law

In accordance with the third Tadic condition, the violation in question must be “serious”, i.e. must constitute a breach of a rule protecting important values where the breach involves grave consequences for the victim. The Trial Chamber noted that acts of violence of a serious nature were charged in the Indictment and found that there was “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” which would even qualify as a grave breach of Additional Protocol I under its Article 85(3).³⁸ It then held that “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”.³⁹

Terror and threats of violence

Threats of violence were not at issue in the present case and the Trial Chamber was not therefore required to address the question of whether threats of violence, as opposed to acts of violence, could also involve grave consequences for the victims. Nevertheless it did not neglect the issue and found that “certain threats of violence would undoubtedly involve grave consequences”.⁴⁰ As an example it stated that “a credible and well publicized threat to bombard a civilian settlement indiscriminately, or to attack with massively destructive weapons, will most probably spread extreme fear⁴¹ among civilians and result in other serious consequences, such as displacement of sections of the civilian population”.⁴²

Terror and individual criminal responsibility in 1992

Before turning to the elements of the crime of terror, the Trial Chamber examined the fourth Tadic condition that the violation in question had to entail the criminal responsibility of the Accused at the time relevant to the Indictment. Stated otherwise, the Trial Chamber had to be satisfied that the intent to spread terror had already been criminalised in 1992. It surveyed statutory and conventional law prior to the introduction of Article 51(2)⁴³ and then reviewed the legislative developments in the region relevant to the Indictment, starting with 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 which stated that “[w]hoever, 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”. Among the other relevant provisions, the Trial Chamber referred to the 1976 Criminal Code, Article 142 of which read: “Whosoever, in violation of the rules of international law, during a war, an armed conflict or an occupation, orders [the] 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”. It further noted that after Yugoslavia ratified Additional Protocol I on 11 March 1997, the new treaty was incorporated into its “[Armed Forces] Regulations on the Application of International Laws of War”. Those regulations stated that “[a]ttacking civilians for the purpose of terrorising them is especially prohibited”. The Trial Chamber found that “because the alleged violations would have been subject to penal sanction in 1992, both internationally⁴⁴ and in the region of the former Yugoslavia including Bosnia Herzegovina⁴⁵, the fourth Tadic condition was met. It held: “serious violations of the second part of Article 51(2), and specifically the violations alleged in this case causing death or injury, entailed criminal responsibility in 1992”.⁴⁶

Elements of the crime of terror

The Trial Chamber relied on the wording of Article 51(2) of Additional Protocol I in concluding:

“[…] 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”.⁴⁷

The Trial Chamber expanded on the following elements of the crime of terror and found that:

- The actual infliction of terror is not a constitutive element of the crime of terror. As a result there is no requirement to prove a causal connection between the unlawful acts of violence and the production of terror.⁴⁸
- “Acts of violence” do not include legitimate attacks against combatants but only unlawful attacks against civilians.⁴⁹
- “Primary purpose” signifies the mens rea of the crime of terror. 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. ⁵⁰
- “Terror” can be defined as “extreme fear”.⁵¹

Separate and partially dissenting opinion of Judge Nieto-Navia

Judge Nieto-Navia appended a separate and partially dissenting opinion in which he reviewed facts of importance for understanding the context of the conflict in Sarajevo during the period relevant to the Indictment. He explained why he disagreed with the conclusions of the majority as regards certain incidents involving civilians and why in his view the evidence did not establish that the SRK had waged a campaign “purposefully targeting civilians”⁵² throughout the period relevant to the Indictment. He discussed inter alia the following legal issues:

Terror against the civilian population as a violation of the laws or customs of war

In Judge Nieto-Navia’s view, an offence can only fall within the Tribunal’s jurisdiction if it existed as a form of liability under international customary law.⁵³ He referred to the Report submitted to the Security Council regarding the establishment of the Tribunal in which the Secretary-General explained that “the application of the [criminal law] principle of nullum crimen sine lege requires that the international tribunal should apply rules which are beyond any doubt part of customary law”.⁵⁴ He further referred to the finding of the Appeals Chamber in the Ojdanic Interlocutory Appeal Decision in which it was held that the ratione materiae jurisdiction of the Tribunal may be said to be determined “both by the Statute […] and by customary international law, insofar as the Tribunal’s power to convict an accused of any crime listed in the Statute depends on its existence qua custom at the time this crime was allegedly committed”.⁵⁵ Judge Nieto-Navia stated that, in finding that an offence may fall under the jurisdiction of the Tribunal under treaty law, the Majority had interpreted the Tadic Jurisdiction Decision in such a way as to depart from the “established jurisprudence of the Tribunal ”.⁵⁶ He concluded that the offence of inflicting terror on a civilian population did not fall within the jurisdiction of the Trial Chamber.

Authority as an aggravating factor

The Trial Chamber found that the fact that General Galic occupied the position of VRS Corps commander, and repeatedly breached his public duty in this senior capacity, was an aggravating factor with respect to his sentencing.⁵⁷ Judge Nieto-Navia expressed his view that since the Trial Chamber had found the Accused responsible under Article 7(1) of the Statute for having ordered the crimes proved at trial, “considering his position as a military commander as an aggravating circumstance is analogous to concluding that being a husband is an aggravating circumstance with respect to the crime of uxoricide”.⁵⁸

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1. On the definition of sniping see Galic, IT-98-29-T, Decision on the Motion for Entry of Acquittal of the Accused Stanislav Galic, 3 October 2002, Judicial Supplement No. 37. See also paras. 182-184 of the Judgement. In para. 184, the Trial Chamber found that “in the present case, sniping must be understood as direct targeting of individuals at a distance using any type of small calibre weapon”.
2. Article 51 (Protection of the Civilian Population) reads:
“1. The civilian population and individual civilians shall enjoy general protection against 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.
2. 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”.
3. Article 13 (Protection of the Civilian Population) reads:
“1. 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 shall be observed in all circumstances.
2. 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.
3. Civilians shall enjoy the protection afforded by this part, unless and for such time as they take a direct part in hostilities”.
4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 12 December 1977 (“Additional Protocol I”). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 12 December 1977 (“Additional Protocol II”).
5. 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”. See Delalic et al., IT-96-21-A, 20 February 2001, paras. 412, Judicial Supplement No. 23. As the Trial Chamber found that the crime of terror as charged under Count 1 involved the same acts as those charged in Counts 4 and 7 and as it held that the crime of terror is a specific-intent crime (see below under “Elements of the crime of terror”), it could only enter a conviction under Count 1 (see paras. 157-162 of the Judgement).
6. On 18 December 2003, the Prosecution filed its sentencing appeal and Counsel for Stanislav Galic filed a request for an extension of the time in which he must file a Notice of Appeal. The Defence requested 30 days from the date on which the official French translation of the Judgement and Opinion becomes available. The Defense’s request was granted on 22 December 2003 (Galic, IT-98-29-A, Decision on Request for Extension of Time to File Notice of Appeal, 22 December 2003).
7. This summary will discuss only those contributions essential to the Tribunal’s case-law and international criminal and humanitarian law. The full text and the summary Judgement may be obtained from the Tribunal’s Public Information Services and/or its Internet site at the following address: www.un.org/icty (“Judgements” page).
8. See Tadic, IT-94-1-AR72, Decision on the Defence Interlocutory Appeal on Jurisdiction (“Tadic Jurisdiction Decision”), 2 October 1995. In paragraph 94, the Appeals Chamber held that the following requirements must be met for an offence to be subject to prosecution before the International Tribunal under Article 3: “(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 of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule”.
9. Blaskic, IT-95-14-T, Judgement (“Blaskic Trial Judgement”), 3 March 2000, para. 180, Judicial Supplement No. 13.
10. Ibid.
11. Kordic and Cerkez, IT-95-14/2-T, Judgement, 26 February 2001, para. 328, Judicial Supplement No. 23.
12. 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 (footnote 76 of the Judgement, reproduced in part).
13. Judgement, para. 44. The Trial Chamber further referred to Article 51(6) of Additional Protocol I which explicitly prohibits “attacks against the civilian population or civilians by way of reprisals” and noted that the language of this Article “implies that the prohibition against reprisals cannot be waived on the grounds of military necessity” (see footnote 77 of the Judgement).
14. In its Advisory Opinion on the Legality of Nuclear Weapons, the International Court of Justice described the principle of distinction and the principle of protection of the civilian population as the “cardinal principles contained in the texts constituting the fabric of humanitarian law” and ruled that “States must never make civilians the object of attack” (ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Report 1996, para. 78).
15. Kupreskic et al., IT-95-16-T, Judgement, 14 January 2000, paras. 522-523, Judicial Supplement No. 11.
16. See Article 50(1) of Additional Protocol I.
17. Judgement, para. 50. The Trial Chamber conducted a similar analysis with regard to military objects. It held in para. 51: “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”.
18. Judgement, para. 56.
19. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Yves Sandoz, Christophe Swinarski, Bruno Zimmerman (ed.), International Committee of the Red Cross, Martinus Nijhoff Publishers, Geneva, 1987 (“ICRC Commentary”).
20. Judgement, para. 54.
21. Ibid., para. 55.
22. The discriminatory nature of an attack may be inferred from the type of weapons used. See inter alia Blaskic Trial Judgement, paras. 501, 512. The International Court of Justice stated, with regard to the obligation of States not to make civilians the object of attacks, that States must never “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, para. 78). On the customary nature of the prohibition of indiscriminate attacks, see Tadic Jurisdiction Decision, para. 127.
23. Article 51(4) of Additional Protocol I reads: “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;
(c) or 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”.
24. Article 51(5) of Additional Protocol I.
25. Article 57 (Precautions in Attack) reads in relevant part:
“2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(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; […]”.
26. Judgement, para. 58.
27. Ibid., para. 59. See Article 85(3)(b) of Additional Protocol I which characterises such an attack as a grave breach of the Protocol.
28. Judgement, footnote 109.
29. Ibid. 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 raised objections to these declarations.
30. For more details on scheduled shelling incident 1 (Dobrinja IIIB soccer match), see paras. 372-387.
31. Judgement, footnote 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): Delalic et al., IT-96-21-T, Judgement (“Celebici Trial Judgement”),16 November 1998, paras. 976, 1056, 1086-91 and 1119, Judicial Supplement No. 1. In the Blaskic case, the Trial Chamber took into account “the atmosphere of terror reigning in the detention facilities” as part of the factual basis leading to the Accused’s conviction 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” (see para. 630). 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, IT-98-33-T, Judgement, 2 August 2001, para. 533, Judicial Supplement No. 27. The Trial Chamber found that a “terror campaign” had been conducted: “Numerous witnesses gave evidence that, during Operation Krivaja 95, the VRS shelled the Srebrenica enclave intensively with the apparent intent to terrify the populace” (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” (para. 150). The Krstic Trial Chamber characterised “the crimes of terror” and the forcible transfer of the women, children, and elderly at Potocari as persecution and inhumane acts (para. 607; see also paras. 1, 41, 44, 46, 147, 153, 292, 364, 517, 527, 537, 653, 668, 671, 677). See also Martic, IT-95-11-R61, Decision (“Martic Rule 61 Decision”), 8 March 1996, paras. 23-31 (rockets were used not to strike a military target but to terrorize the civilian population of Zagreb contrary to the rules of international law); and Momir Nikolic, IT-02-60/1-S, Sentencing Judgement, 2 December 2003, para. 38, present issue of the Judicial Supplement
32. See supra footnote 8.
33. On 22 May 1992, representatives from the Republic of Bosnia and Herzegovina, the Serbian Democratic Party and the Croatian Democratic Community had concluded, under the auspices of the International Committee of the Red Cross, an agreement whereby they agreed to abide by inter alia the relevant provisions of Additional Protocol I. In para. 25, the Trial Chamber had found that “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”. The 22 May 1992 Agreement not only incorporated Article 51(2) by reference but also repeated the very prohibition against the crime of terror.
34. Judgement, para. 97.
35. Tadic Jurisdiction Decision, para. 143.
36. The Trial Chamber referred to the 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 by the Trial Chamber).
37. Judgement, para. 98.
38. Ibid., para. 108.
39. Ibid., para. 109.
40. Ibid., footnote 179.
41. The Trial Chamber accepted the Prosecution’s definition of terror as “extreme fear”. See below under “Elements of the crime of terror”.
42. Judgement, footnote 179.
43. Ibid., paras. 114-119.
44. See paras. 114-119 of the Judgement. The Trial Chamber referred inter alia to the Motomura et al. case (Trial of Shigeki Motomura and 15 others, 13 Law R. Trials War Crim. 138, 1947) in which 13 Accused were convicted of “systematic terrorism practiced against civilians” for acts including unlawful mass arrests during a court-martial hearing in Makassar in the Netherlands East-Indies.
45. See para. 126 of the Judgement. The Trial Chamber found 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 for events that occurred between September 1991 and 1993 (Prosecutor v. R. Radulovic et al., Split County Court, Republic of Croatia, Case No. K-15/95, Verdict of 26 May 1997, cited in M. Sassoli and A. Bouvier (eds.), How Does Law Protect in War? (Geneva: ICRC, 1999)).
46. Judgement, para. 130. The Trial Chamber emphasised that it was not expressing a view as to whether the Tribunal had jurisdiction over the 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.
47. Judgement, para. 133.
48. Ibid., para. 134. The Trial Chamber relied on the plain wording of Article 51(2) as well as on the travaux préparatoires of the Diplomatic Conference which, in its view, exclude this from the definition of the offence.
49. Ibid., para. 135.
50. Ibid., para. 136.
51. Ibid., para. 137.
52. Separate and Partially Dissenting Opinion of Judge Nieto-Navia (“Dissenting Opinion”), para. 2.
53. Dissenting Opinion, paras. 108-113.
54. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1193), para. 34 (emphasis added by Judge Nieto-Navia).
55. Milutinovic et al., IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, para. 9, Judicial Supplement No. 41.
56. Judge Nieto-Navia explained that previous Trial Chambers and the Appeals Chamber have consistently sought confirmation that a particular offence existed as a form of liability under international customary law before concluding that it fell within the jurisdiction of the Tribunal. He referred to the following Judgements: Vasiljevic, IT-98-32-T, Judgement, 29 November 2002, para. 193 et seq., Judicial Supplement No. 38; Krnojelac, IT-95-25-T, Judgement, 15 March 2002, para. 177 et seq. and para. 350 et seq., Judicial Supplement No. 31bis; Kunarac et al., IT-96-23 & IT-96-23/1-T, Judgement, 22 February 2001, para. 518 et seq., Judicial Supplement No. 23; Celibici Trial Judgement, paras. 414-418; Kunarac et al., IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002, para. 124 and 146-148, Judicial Supplement No. 34; Furundzija, IT-95-17/1-A, Judgement, 10 December 1998, para. 111, Judicial Supplement No. 1.
57. Judgement, para. 765.
58. Dissenting Opinion, para. 121. Uxoricide: “the killing of one’s wife / a man who kills his wife” (Concise Oxford Dictionary, 10th Edition, 1999).