Persons hors de combat
|Appeal Judgement - 08.10.2008||
The Prosecution submitted that the Trial Chamber defined “civilian” too narrowly by excluding persons hors de combat from the term “civilian” in Article 5 of the Statute. At paragraphs 292-296, the Appeal Chamber noted that the Appeal Judgments of Kordić and Čerkez, Blaškić and Galić applied the definition of civilians contained in Article 50 of Additional Protocol I to crimes against humanity.
It then quoted the following passages from Blaškić:
Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. (para. 110)
As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status. (para. 113)
The Appeals Chamber rejected the Prosecution’s assertion that Kordić and Čerkez departed from this principle. It went on to consider whether the definition of Article 50 of AP I should be applied.
297. […] the Appeals Chamber recalls that the Tribunal has consistently held, since its first cases, that provisions of the Statute must be interpreted according to the “natural and ordinary meaning in the context in which they occur”, taking into account their object and purpose. In this regard, the Appeals Chamber observes that the definition of civilian found in Article 50(1) of Additional Protocol I accords with the ordinary meaning of the term “civilian” (in English) and “civil” (in French) as persons who are not members of the armed forces. As such, the definition of civilians relied upon by the Prosecution is contrary to the ordinary meaning of the term “civilian.”
The Appeals Chamber concluded that:
302. In light of the above, the Appeals Chamber finds that the definition of civilian contained in Article 50 of Additional Protocol I reflects the definition of civilian for the purpose of applying Article 5 of the Statute and that the Trial Chamber did not err in finding that the term civilian in that context did not include persons hors de combat. This does not, however, answer the second contention raised by the Prosecution, i.e., whether the fact that persons hors de combat are not civilians for the purpose of Article 5 means that only civilians may be victims of crimes against humanity. The Appeals Chamber will turn to this second argument in the next section.
 Tadić Appeal Judgement, paras 282-283, 285 (quoting with approval the Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1949, ICJ Reports 1950, p. 8), in relation to the wording of Article 5 of the Statute.
 Oxford English Dictionary (Oxford: Oxford University Press, 2007), “civilian”: “One who does not professionally belong to the Army or the Navy; a non-military person.” Dictionnaire de l’Académie Française 9th Edition (Paris : Éditions Fayard, 1991), “civil”: “Par opposition à Militaire. ” (emphasis in the original).
|ICTR Statute Article 3 ICTY Statute Article 5|
|Appeal Judgement - 05.05.2009||
MRKŠIĆ & ŠLJIVANČANIN
35. Following the Prosecution’s decision not to pursue the second sub-ground of its first ground of appeal, the Trial Chamber’s finding to the effect that the term “civilian” in Article 5 of the Statute has to be interpreted in accordance with Article 50 of Additional Protocol I and therefore does not include combatants or persons hors de combat, remains unchallenged. This finding was based, inter alia, on the Appeals Chamber’s well-established jurisprudence, reiterated in the Martić Appeal Judgement, that the notion of “civilian” under Article 5 of the Statute excludes persons hors de combat. In Blaškić, the Appeals Chamber found:
Article 50 of Additional Protocol I to the Geneva Conventions contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law.
Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status.
In Kordić and Čerkez, the Appeals Chamber found that “Article 50 of Additional Protocol I contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law”. In Galić, the Appeals Chamber reiterated that “[e]ven hors de combat, however, [combatants] would still be members of the armed forces of a party to the conflict and therefore fall under the category of persons referred to in Article 4(A)(1) of the Third Geneva Convention; as such, they are not civilians in the context of Article 50, paragraph 1, of Additional Protocol I”. The notion of “civilian” under Article 5 of the Statute is defined through the above provisions of the law of armed conflict. Whereas under Article 3 of the Statute the situation of a victim at the time of the offence may be relevant to its status, the notion of “civilian” under Article 5 of the Statute, as correctly noted by the Trial Chamber, is not determined by the position of the victims at the time of the commission of the underlying crime.
36. Pursuant to this jurisprudence and in light of the facts of the case, the Trial Chamber found that the victims were predominantly non-civilians. However, the Appeals Chamber has found that the Trial Chamber erred in law in concluding that, for the purposes of Article 5 of the Statute, the victims of the underlying crime must be civilians, and consequently erroneously creating an additional requirement under Article 5 of the Statute. Accordingly, the Appeals Chamber must determine whether this error has the effect of invalidating the Trial Judgement. To that end and in light of the finding in the Martić Appeal Judgement that “[u]nder Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population”, the Appeals Chamber will assess whether in the instant case all other necessary conditions to enter a conviction for crimes against humanity had been met.
 See supra para. 20.
 Trial Judgement, para. 461.
 Trial Judgement, paras 451-453, citing Blaškić Appeal Judgement, paras 110, 113-114; Kordić and Čerkez Appeal Judgement, para. 97; Galić Appeal Judgement, para. 144, fn. 437.
 See Martić Appeal Judgement, paras 292-295.
 Blaškić Appeal Judgement, para. 110.
 Blaškić Appeal Judgement, para. 113.
 Kordić and Čerkez Appeal Judgement, para. 97.
 Galić Appeal Judgement, fn. 437.
 See Kunarac et al. Appeal Judgement, para. 91: “To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst”. See also Kordić and Čerkez Appeal Judgement, para. 96.
 Strugar Appeal Judgement, para. 178: “[I]n order to establish the existence of a violation of Common Article 3 under Article 3 of the Statute, a Trial Chamber must be satisfied beyond a reasonable doubt that the victim of the alleged offence was not participating in acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces. Such an enquiry must be undertaken on a case-by-case basis, having regard to the individual circumstances of the victim at the time of the alleged offence”. (footnote omitted).
 Trial Judgement, para. 455.
 See Blaškić Appeal Judgement, para. 114, in which the Appeals Chamber overturned the Trial Chamber’s finding that the specific situation of the victim at the time the crimes were committed must be taken into account in determining his standing as a civilian. Relying on the ICRC Commentary to Article 43 of Additional Protocol I that “[a] civilian who is incorporated in an armed organization […] becomes a member of the military and a combatant throughout the duration of the hostilities” (ICRC Commentary, p. 515, para. 1676), the Appeals Chamber concluded: “[T]he specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status”. See also Kordić and Čerkez Appeal Judgement para. 421: “The Appeals Chamber recalls that during an armed conflict, until a soldier is demobilized, he is considered a combatant whether or not he is in combat, or for the time being armed”; Martić Appeal Judgement, paras 292-295.
 Trial Judgement, para. 481. The Trial Chamber found that the evidence indicated that of the 194 persons identified as among those alleged in the Indictment to have been murdered at Ovčara in the evening and night hours of 20/21 November 1991, 181 were known to be active in the Croatian forces in Vukovar. The Trial Chamber concluded that the effect of the evidence was that the majority of these men (and two women) were members or reserve members of ZNG (87) and that there was also a considerable number of members of the HV (30) and the Croatian MUP (17); there were some members of the Croatian protection force of Vukovar (9) and a few members of the Croatian paramilitary formation HOS (Croatian’s Liberation Forces, Hrvatske Oslobodilacke Snage); regarding the cases of nine other victims the Trial Chamber accepted evidence of their military involvement; there were also 13 persons in respect of whom no known military involvement was established by the evidence (Trial Judgement, para. 479).
 Martić Appeal Judgement, para. 313.
|ICTR Statute Article 3 ICTY Statute Article 5|