You are on page 1of 6

Charge 1: Article 8(2) (b)(25)

War crime of intentionally using starvation of civilians as a method of warfare as a


method of warfare by depriving them of objects indispensable to their survival,
including wilfully impeding relief supplies
Elements
1. The perpetrator deprived civilians of objects indispensable to their
survival;
Akayesu, Trial :
Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part (paragraph c):
505. The Chamber holds that the expression deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in part, should be construed
as the methods of destruction by which the perpetrator does not immediately kill the
members of the group, but which, ultimately, seek their physical destruction.
506. For purposes of interpreting Article 2(2)(c) of the Statute, the Chamber is of the opinion
that the means of deliberate inflicting on the group conditions of life calculated to
bring about its physical destruction, in whole or part, include, inter alia, subjecting a
group of people to a subsistence diet, systematic expulsion from homes and the
reduction of essential medical services below minimum requirement.
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 115-116:
[D]eliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part include[s] circumstances which will lead to a slow death, for
example, lack of proper housing, clothing, hygiene and medical care or excessive work or
physical exertion and methods of destruction which do not immediately lead to the death
of members of the group. [T]he conditions of life envisaged include rape, the starving of
a group of people, reducing required medical services below a minimum, and
withholding sufficient living accommodation for a reasonable period.

2. The perpetrator intended to starve civilians as a method of warfare;

3. The conduct took place in the context of and was associated with an
international armed conflict;

4. The perpetrator was aware of factual circumstances that established


the existence of an armed conflict.

Article 25 (3)(a)

Nun Chea, Khieu Samphan, Case 002/001 Trial, ECCC


804. The Trial Chamber is satisfied, based on the evidence put before it in Case 002/01, that
the existence of a joint criminal enterprise has been established. First, the evidence
establishes that a plurality of persons, including the leaders of the CPK, shared a common
purpose to implement a socialist revolution in Cambodia. Second, it has also been
established that while this common purpose was not criminal in itself, the policies
formulated by the Khmer Rouge involved the commission of a crime as a means of bringing
the common plan to fruition. These policies resulted in and/or involved the commission of
crimes, including forced transfers, murders, attacks against human dignity and political
persecution. Both population movements (phases one and two), followed a consistent
pattern of conduct in each case including and involving the commission of crimes. This
confirms that these policies were criminal and had been adopted beforehand in order to
ensure that the common purpose would be achieved.

Charge 2: Article 8 (2) (b) (1) and Article 28 (a)


War crime of intentionally directing attacks against the civilian population as such
or against individual civilians not taking direct part in hostilities;
Elements
1. The perpetrator directed an attack.

2. The object of the attack was a civilian population as such or individual


civilians not taking direct part in hostilities.
Rutaganda, (Trial Chamber), December 6, 1999, paras. 100-01, n. 32:
The civilian population comprises all persons who are civilians, which is to say that the
civilian population is made up of persons who are not combatants or persons placed hors
de combat, in other words, who are not members of the armed forces. [I]f civilians take a
direct part in the hostilities, they then lose their right to protection as civilians per se and
could fall within the class of combatant. To take a direct part in the hostilities means acts of
war which by their nature or purpose are likely to cause actual harm to the personnel and
equipment of the enemy armed forces.
Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, (Trial Chamber), December 18,
2008, paras. 2237-40:
There is evidence that the refugees at Nyundo Parish used traditional weapons to defend
themselves against the repeated attacks by militiamen. The Chamber is not satisfied that
the use of rudimentary defensive weapons changes the status of the victims. Even if those
with weapons for self-defence could be characterised as combatants, their possible presence

within groups of refugees does not deprive those who are non-combatants of their protected
status.

3. The perpetrator intended the civilian population as such or individual


civilians not taking direct part in hostilities to be the object of the attack.

4. The conduct took place in the context of and was associated with an
international armed conflict.

5. The perpetrator was aware of factual circumstances that established


the existence of an armed conflict.

Charge 3: Article 8 (2) (b) (4) and Article 25 (3) (b)


War crime of intentionally launching an attack in the knowledge that such attack
would cause widespread, long-term and severe damage to the natural environment
which could clearly be excessive to the concrete and military advantage
anticipated.
Elements
1. The perpetrator launched an attack.
XX
2. The attack was such that it would cause incidental death or injury to
civilians or damage to civilian objects or widespread, long-term and
severe damage to the natural environment and that such death, injury or
damage would be of such an extent as to be clearly excessive in relation
to the concrete and direct overall military advantage anticipated.
According to the Trial Chamber in Gali, The requirement of proportionality demands that
an operation against a legitimate military target, which is likely to result in the incidental
loss of life or injury to civilians, be justified by the corresponding military advantage
anticipated. This principle is inherent in the competing requirements of humanity and
military necessity, and can be derived from Articles 15 and 22 of the Lieber Code, and Article
24of the Hague Air Warfare Rules of 1924, with Article 51(5)(b) and Article 57(2)(a)(iii) and
(b) of AP I providing the modern conventional version of the rule.

3. The perpetrator knew that the attack would cause incidental death or
injury to civilians or damage to civilian objects or widespread, long-term
and severe damage to the natural environment and that such death, injury

or damage would be of such an extent as to be clearly excessive in


relation to the concrete and direct overall military advantage anticipated.
In the Kupreski" case, in the course of a general discussion on the distinction principle, the
Trial Chamber referred to the Martens Clause, derived from the preamble to the Hague
Convention concerning the Laws or Customs of War on Land of 1899, and incorporated in AP
I by Article 1(2), which requires parties to an armed conflict to abide by the principles of
humanity and the dictates of public conscience in all instances not explicitly set-out in
the law. Accordingly, in interpreting the law on indiscriminate and disproportionate attacks,
the Trial Chamber in Kupreski" stated that:
True, this Clause may not be taken to mean that the principles of humanity and the
dictates of public conscience have been elevated to the rank of independent
sources of international law, for this conclusion is belied by international practice.
However, this Clause enjoins, as a minimum, reference to those principles and
dictates any time a rule of international humanitarian law is not sufficiently rigorous
or precise: in those instances the scope and purport of the rule must be defined with
reference to those principles and dictates. In the case under discussion, this would
entail that the prescriptions of Articles 57 and 58 (and of the corresponding
customary rules) must be interpreted so as to construe as narrowly as possible the
discretionary power to attack belligerents and, by the same token, so as to expand
the protection accorded to civilians.
The court applied that rule in considering the cumulative effect of attacks on military
objectives causing incidental damage to civilians. Accordingly, the Trial Chamber found
that: [I]t may happen that single attacks on military objectives causing incidental damage to
civilians, although they may raise doubts as to their lawfulness, nevertheless do not appear
on their face to fall foul per se of the loose prescriptions of Articles 57 and 58 (or of the
corresponding customary rules). However, in case of repeated attacks, all or most of them
falling within the grey area between indisputable legality and unlawfulness, it might be
warranted to conclude that the cumulative effect of such acts entails that they may not be in
keeping with international law. Indeed, this pattern of military conduct may turn out to
jeopardise excessively the lives and assets of civilians, contrary to the demands of
humanity.
The Trial Chamber in Gali" found that this test also defines a disproportionate
attack.
As stated earlier, one of the examples of an indiscriminate attack provided by Article 51(5)
of AP I is that of an 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.

4. The conduct took place in the context of and was associated with an
international armed conflict.

5. The perpetrator was aware of factual circumstances that established


the existence of an armed conflict.
Prosecutor v Blaskic ICTR-95-14, 3 March 2000, at para. 203:

A test was set out in order to determine whether the acts are systematic in nature. The main
elements are the existence of a political objective to weaken a community formulated by
high-level authorities, and the perpetration of a criminal act on a large scale.

++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++
Individual Criminal Responsibility:
Ntagerura, Bagambiki and Imanishimwe, (Appeals Chamber), July 7, 2006, paras.
333-34:
[T]he Trial Chamber defined the requirements for criminal responsibility for an omission as
a principal perpetrator:
(a) the accused must have had a duty to act mandated by a rule of criminal law;
(b) the accused must have had the ability to act; (c) the accused failed to act intending the
criminally sanctioned consequences or with awareness and consent that the consequences
would occur; and (d) the failure to act resulted in the commission of the crime.
It is not disputed by the parties that an accused can be held criminally responsible for
omissions under Article 6(1) of the Statute. Neither do they dispute that any criminal
responsibility for omissions requires an obligation to act. (Leaving unresolved whether the
obligation to act must stem from a rule of criminal law, or [whether] any legal obligation is
sufficient.)
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 202:
The Chamber distinguished individual, from command responsibility, stating that individual
responsibility is based not on the duty to act, but from the encouragement and support that
might be afforded to the principals of the crime.

Superior Command Responsibility:


Akayesu, Judgment:
Does not necessarily require the superior to have had knowledge of such to render him
criminally liable, the only requirement is that he had reason to know that his subordinates
were about to commit or had committed and failed to take the necessary or reasonable
measures to prevent such acts or punish the perpetrators thereof.
Rutaganda, (Trial Chamber), December 6, 1999, para. 35: [T]he Accused may . . . be
held criminally [responsible] for criminal acts committed by others if, for example, he
planned such acts, instigated another to commit them, ordered that they be committed or
aided and abetted another in the commission of such acts. See also Musema, (Trial
Chamber), January 27, 2000, para. 117 (similar)

Nahimana, Barayagwiza and Ngeze, (Appeals Chamber), November 28, 2007, para.
479:
The actus reus of planning requires that one or more persons design the criminal conduct
constituting one or more statutory crimes that are later perpetrated.
Seromba, (Trial Chamber), December 13, 2006, para. 303:
Participation by planning presupposes that one or several persons contemplate designing
the commission of a crime at both the preparatory and execution phases. See also
Gacumbitsi, (Trial Chamber), June 17, 2004, para. 271 (similar)

You might also like