Unlawful Attacks in Combat Situations

From the ICTY’s Case Law to the Rome Statute

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Death and destruction are unavoidable effects of war and combat situations. The fact that people have been killed or injured or property has been destroyed should not encourage anyone to rush to the conclusion that war crimes have been committed. On the contrary, before reaching such a conclusion, it is necessary to carefully analyze the conduct of the person causing death, injury or damage in order to ascertain whether such conduct is consistent with international humanitarian law.

Technology, law and public opinion on what is acceptable has greatly evolved since World War II. The issue of civilian damage caused in combat operations has become an important topic in public opinion since Operation Desert Storm in 1991. Public pressure to limit incidental civilian damage has notably increased following the NATO aerial campaign in Kosovo in 1999 and the subsequent conflicts in Afghanistan in 2001, Iraq in 2003 and Lebanon 2006.

Unlawful Attacks in Combat Situations focuses on the manner in which unlawful attacks launched during the conduct of hostilities have been dealt with in the Rome Statute of the International Criminal Court, the international treaty which, to date, deals most comprehensively with war crimes committed in international and non-international armed conflicts, and in the case law of the International Criminal Tribunal for the Former Yugoslavia, the first international judicial body that has investigated and prosecuted crimes committed during the conduct of hostilities since World War II.
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Biographical Note

Héctor Olásolo: LLM (Columbia University), PhD in Law (Salamanca University), Legal Officer in Chambers at the ICC, Honorary Senior Lecturer in the Department of Criminal Law at the University of Utrecht. Senior Lecturer in the PhD Program at the Law School of the University of Salamanca. Former member of the Spanish Delegation to the ICC Preparatory Commission. Former Associate Legal Officer at the Legal Advisory and Appeals Sections of the ICTY Office of the Prosecutor. The views presented herein are those of the author alone and do not necessarily reflect the views of the ICC, the ICTY, the United Nations in General or the Spanish Government.

Review Quotes

'This is one of the first comprehensive overviews of this topic. It greatly benefits from the author’s experience at the ICTY and as a delegate to the preparatory commission of the Rome Statute. Reading it is therefore recommended to anyone involved in armed conflict law generally and targeting in particular.'
Vincent Roobaert, Assistant Legal Adviser, NC3A, NATO Legal Gazette 2010.

"Although his analysis is generally focused on ICTY case law, at times only briefly considering particularities of the ICC Statute, his thorough analysis will be most useful for both scholars and practitioners working in this field."
Boris Burghardt and Ines Peterson, Criminal Law Forum (2010) 21:545–554.

Table of contents

Table of Abbreviations; Foreword by Judge Erkki Kouroula; I. Introduction; II. The Prohibition of Attacks at Civilians or Civilian Objects and of Disproportionate Attacks as the Core Component of the Principle of Distinction in the Conduct of Hostilities in International Humanitarian Law; III. Material Contextual Elements; IV. Specific Objective Elements; V. Practical Issues on the Application of the Notion of Military Objective; VI. Practical Issues concerning the Application of the Proportionality Rule; VII. Omissions. Special Reference to the Responsibility of Military Commanders; VIII. Preparatory Acts, Attempt and Completion of the Crime; IX. Modes of Liability; X. Subjective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks;
XI. Grounds for Justification. Special Reference to the Scope of Self-Defence in Combat Situations; XII. Grounds for Excuse. Special Reference to Superior Orders; XIII. Objective Requisites for Punishment, Exemptions from Punishment and Objective Requisites to Proceed;
XIV. Final Remarks; XV. Table of Cases; XVI. Bibliography.

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