The prohibition of indiscriminate attacks, which encompasses either ‘indiscriminate attacks’ stricto sensu and the so-called ‘disproportionate attacks’, is at the heart of the law governing the conduct of hostilities, as it aims to implement two cardinal principles of international humanitarian law (ihl), distinction and proportionality. This contribution examines the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (icty) establishing the individual criminal responsibility for indiscriminate attack. The author considers the possible rationale to illustrate why the icty has never adjudicated neither indiscriminate attacks nor disproportionate attacks per se, as separate, autonomous offences under customary international law. It is submitted that a possible reason to explain the prudency of the icty judges when dealing with the crime of indiscriminate attack is that from an international criminal law perspective it is more than a challenge to apply these ihl principles of distinction and proportionality. The author contends that the icty jurisprudence that practically examined the principle of prohibiting indiscriminate attacks by means of unlawful conventional weapons confirm such difficulties. In particular, because the icty failed to fully clarify to what extent an attack by means of indiscriminate and/or inaccurate weapons violating fundamental principles of the conduct of hostilities, such as distinction and proportionality, may amount to the crime of indiscriminate attack.
Galićsupra note 7 at para. 142 and Galić supra note 12 at para. 132. The commander deciding on an attack has duties to do everything practicable to verify that the objectives to be attacked are military objectives and to take all practicable precautions in the choice of methods and means of warfare with a view to avoiding or in any event minimizing incidental civilian casualties or civilian property damage; see also note 5 supra.
Galićsupra note 7 at para. 55.
See Galićsupra note 7 at para. 133; and D. Milošević supra note 12 at para. 878.
On this point Wuerznersupra note 19 at 911 convincingly argues: “[…] it is surprising that the Court requires a result when bringing charges for the crime of attacking civilians or civilian objects under Article 3 as there is no such express requirement”; and in footnote n. 16: “If it were charging under Article 2 which criminalizes grave breaches of the Geneva Conventions this would be necessary”. As a matter of fact the grave breaches provision of Additional Protocol I (Art. 85(3)) provides for a result requirement. It is assumed that the icty considered this provision as part of customary law.
See Wuerznersupra note 19 at 911.
Werlesupra note 41 at 429 contends that this conclusion about the mens rea of the war crime of direct attack on civilians may be drawn either by a literal interpretation of the text of the icc Statute or from the interplay between the provisions criminalizing direct attacks on civilians and those prohibiting disproportionate attacks.
See Bothesupra note 43 at 398–399; and Werle supra note 41 at 440.
See Arnoldsupra note 60 at 339.
See Arnoldsupra note 60 at 340.
On this point see Werlesupra note 41 at 438–440.
See Werlesupra note 41 at 440.
According to Bothesupra note 43 at 400 this provision is highly problematic: “It would make the perpetrator in a way the judge in his own cause. An error in the evaluation of the excessive character of the damage would exclude the necessary intent. The Court’s own evaluation of that character would become irrelevant”.
See Wuerznersupra note 19 at 922.
See Blaškićsupra note 12 at paras. 501 512; Martić supra note 12 at paras. 462–463; and Judgement Prosecutor v. Martićicty Appeals Chamber 8 October 2008 paras. 247–252; D. Miloševićsupra note 12 at paras. 92–101; and 912–913; See Judgement Prosecutor v. Perišićicty Trial Chamber 6 September 2011 at paras. 97 and 586–590.