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The Conduct of Hostilities, Attack Effects, and Criminal Accountability
Published online by Cambridge University Press: 03 June 2024
Abstract
War crimes related to the decision to carry out attacks during the conduct of hostilities are almost always defined in terms of conduct and not result (Article 8(2)(b) of the Rome Statute of the International Criminal Court). Yet it is common for critiques of such decisions to focus on attack results as proof of their alleged illegality. While such results are probative of compliance or non-compliance with international humanitarian law rules regulating the conduct of hostilities, they should rarely be indisputable. This article addresses the challenge of attaching probative value to attack results when assessing responsibility for alleged war crimes based on allegedly illicit attack decisions.
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- Copyright © The Author(s), 2024. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem
References
1 Barnes, Gwen P, ‘The International Criminal Court's Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir’ (2011) 34 Fordham International Law Journal 1584, 1619Google Scholar (highlighting the legitimacy concerns of the International Criminal Court (ICC) and the need to strengthen the Rome Statute in order to improve the ICC's perceived effectiveness in international forums. Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90.
2 ‘Statement of ICC Prosecutor, Karim AA Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation’, 2 March 2022, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states.
3 ibid.
4 Freeman, Lindsay, ‘Law in Conflict: The Technological Transformation of War and Its Consequences for the International Criminal Court’ (2019) 51 New York University Journal of International Law and Politics 807, 840Google Scholar (explaining how the increase of user-created combat footage following the founding of YouTube has created ample opportunities for manipulation into propaganda).
5 ibid.
6 ibid 841 (‘Social media platforms are the perfect propaganda tools for war’); United Nations Meetings Coverage and Press Releases, ‘Ninety Per Cent of War-Time Casualties Are Civilians, Speakers Stress, Pressing Security Council to Fulfil Responsibility, Protect Innocent People in Conflicts’, 25 May 2022, https://press.un.org/en/2022/sc14904.doc.htm#:~:text=With%20civilians%20accounting%20for%20nearly,the%20field%20told%20the%2015%2D; Max Roser and others, ‘War and Peace’, Our World in Data, 2023, https://ourworldindata.org/war-and-peace.
7 Freeman (n 4) 840 (‘Today the current generation of [Information Communication Technologies] is quickly turning the conflicts in Syria and Iraq into the first social media wars, in which users generate photographs and videos of the war and post firsthand commentaries online, circumventing traditional media outlets and competing with state-sponsored narratives’).
8 ibid 840–41.
9 Corn, Geoffrey S, ‘Ensuring Experience Remains the Life of the Law: Incorporating Military Realities into the Process of War Crimes Accountability’ in Capaldo, Giuliana Ziccardi (ed), The Global Community: Yearbook of International Law and Jurisprudence (Oxford University Press 2014) vol I 189, 190Google Scholar (‘This “effects-based” focus, however, is inconsistent with fundamental tenets of the law, which demand reasonable combat judgments, which must be assessed contextually, not based on retrospective analysis’). See generally Corn, Geoffrey S, ‘Attack Decision-Making: Context, Reasonableness, and the Duty to Obey’ in Alcala, Ronald TP and Jensen, Eric Talbot (eds), The Impact of Emerging Technologies on the Law of Armed Conflict (Oxford University Press 2019) 325Google Scholar.
10 ibid; Chang, Karl S, ‘Enemy Status and Military Detention in the War Against Al-Qaeda’ (2011) 47 Texas International Law Journal 1, 7–8Google Scholar.
11 eg, Chang, ibid 7 (the law of war is ‘the body of international law that governs how warring parties fight’).
12 See generally Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (AP I).
13 ibid; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross and Cambridge University Press 2005, revised 2009) rules 25, 46, 51.
14 AP I (n 12) art 48.
15 ibid.
16 ibid art 49.
17 ibid.
18 ibid.
19 ibid art 51.
20 ibid art 41; see also art 51(3).
21 Geoffrey Corn and Chris Jenks, ‘Two Sides of the Combatant Coin: Untangling Direct Participation in Hostilities from Belligerent Status in Non-International Armed Conflicts’ (2011) 33 University of Pennsylvania Journal of International Law 313, 316.
22 US Department of Defense, ‘Law of War Manual’, June 2015, updated December 2016, para 4.3 (US DoD Law of War Manual).
23 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009) 71.
24 Corn and Jenks (n 21) 315–17.
25 ibid 316; Melzer (n 23) 27–36, (discussing the distinction of civilians, armed forces, and organised armed groups under the laws of armed conflict (LOAC), and the application of the CCF concept).
26 AP 1 (n 12) art 51; see also art 52.
27 ibid.
28 Geoffrey S Corn and James A Schoettler, Jr, ‘Targeting and Civilian Risk Mitigation: The Essential Role of Precautionary Measures’ (2015) 223 Military Law Review 785, 802.
29 Melzer (n 23) 35.
30 US Department of the Army, ‘FMI 3-07.22, Counterinsurgency Operations’, October 2004, para 2-50 (calling for the coordination of Army Special Operations Forces (ARSOF) operations in order to avoid potential unwanted casualties).
31 Bundesgerichtshof (BGH), Fuel Tankers Case, Decision, 16 Apr. 2010, III ZR 140/15 (Germany), http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=071de1999c01f5114ea9e467f0e843dd&nr=76401&pos=1&anz=2 (testing whether the commander refrained from acting ‘honestly’, ‘reasonably’, and ‘competently’).
32 Melzer (n 23) 74 (‘In case of doubt, the person in question must be presumed to be protected against direct attack’).
33 See generally Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (entered into force 7 December 1978) 1125 UNTS 609 (AP II).
34 ibid.
35 AP I (n 12) art 57.
36 ibid.
37 ibid.
38 ibid art 51.
39 ibid art 51(4).
40 ibid art 51.
41 ibid.
42 ibid.
43 ibid art 57.
44 ibid arts 50–57.
45 ibid art 57.
46 ibid art 51.
47 ibid art 57.
48 eg, Rome Statute (n 1) art 28 (‘A military commander … shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command or control’); Elements of Crimes, ICC Assembly of States Parties, 1st session, 3–10 September 2002, ICC-ASP/1/3 (Rome Statute Elements) 112, 146.
49 AP I (n 12) arts 48–49 (outlining the distinction between combatants and the civilian population as the basic requirement for parties in an armed conflict).
50 Rome Statute (n 1) art 28(a)(ii) (stating a military commander is criminally responsible when they ‘failed to take all necessary and reasonable measures within his or her power to prevent [crimes within the jurisdiction of the international criminal court]’).
51 eg, ibid arts 8(2)(a)(i) (demonstrating the result crime of wilful killing), (2)(b)(i) (demonstrating a conduct crime of intentionally directing attacks against the civilian population).
52 ibid art 8(2)(b)(i) (criminalising the intentional direction of attacks against civilians, but not requiring those acts be successful).
53 ibid art 8(2)(a)(i) (criminalising the killing of another with wilful intent).
54 ibid.
55 Rome Statute Elements (n 48) art 8(2)(a)(i).
56 ibid (‘The perpetrator killed one or more persons’).
57 eg, ibid art 8(2)(a)(ii)-1 (requiring proof of ‘severe physical or mental pain or suffering’ to prove the crime of torture), art 8(2)(a)(ii)-3 (requiring proof of a person being subjected to a particular biological experiment to prove the crime of illegal biological experiments).
58 ibid arts 8(2)(b)(i)–(xxvi).
59 Compare ibid with AP I (n 12) arts 48–49 (outlining the distinction between combatants and the civilian population as the basic requirement for parties in an armed conflict).
60 Rome Statute Elements (n 48) arts 8(2)(b)(i)–(iii).
61 ibid.
62 ibid art 8(2)(b)(i).
63 ibid art 8(2)(e).
64 ibid.
65 ibid art 8(2)(b)(iv).
66 ibid.
67 ibid.
68 ibid.
69 ibid.
70 Rome Statute (n 1) art 28 (placing criminal liability on military commanders whose forces commit crimes within the jurisdiction of the ICC); ibid (defining attacks that inflict clearly excessive civilian death, injury, or destruction of civilian property as a crime within the jurisdiction of the ICC).
71 Rome Statute Elements (n 48) art 8(2)(b)(iv).
72 ibid.
73 ibid.
74 ibid.
75 ibid art 8(2)(b)(iv).
76 Rome Statute (n 1) art 28(a) (holding that military commanders must ‘take all necessary and reasonable measures within his or her power to prevent or repress’); art 28(b) (requiring superiors to also take necessary and reasonable measures).
77 ibid.
78 Corn and Schoettler (n 28) 818.
79 ibid 802, 842.
80 Compare ibid with Rome Statute (n 1) art 28(a), (b).
81 Rome Statute (n 1) art 28(a) (on the criminal responsibility faced by commanders if they fail to maintain effective authority and control over their subordinates).
82 Rome Statute Elements (n 48) arts 8(2)(b)(i)–(iii).
83 ibid.
84 ibid; Rome Statute (n 1) art 28; AP I (n 12) art 57 (‘In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians[,] and civilian objects’).
85 Rome Statute (n 1) art 28.
86 AP I (n 12) art 80 (‘The … Parties to the conflict shall without delay take all necessary measures for the execution of their obligations under the Conventions and this Protocol’).
87 eg, Uniform Code of Military Justice (2019) (US), art 119 (placing criminal accountability for reckless manslaughter).
88 ibid (stating reckless manslaughter requires an unintentional killing of a human being).
89 ibid.
90 ibid art 114 (on reckless endangerment); art 92 (on dereliction of duty).
91 Compare ibid (demonstrating a result-based violation premised on the killing of another) with Rome Statute Elements (n 48) art 8(2)(b)(i) (demonstrating a result-based violation premised on directing an attack).
92 Uniform Code of Military Justice (n 87) art 119.
93 Rome Statute Elements (n 48) art 8(2)(b)(i).
94 ibid.
95 John Calvin Jeffries Jr and Paul B Stephan III, ‘Defenses, Presumptions, and Burden of Proof in the Criminal Law’ (1979) 88 Yale Law Journal 1325, 1327–9.
96 John T McNaughton, ‘Burden of Production of Evidence: A Function of a Burden of Persuasion’ (1955) 68 Harvard Law Review 1382, 1383.
97 Deborah W Denno, ‘Criminal Law in a Post-Freudian World’ (2005) University of Illinois Law Review 601, 691–92.
98 AP 1 (n 12) art 51.
99 McNaughton (n 96) 1382–83 (for a general overview of how to satisfy the burdens of production and persuasion).
100 ibid 1383.
101 ibid.
102 The US military goes through a ‘collateral damage methodology’ before conducting a targeted attack: Gregory S McNeal, ‘Targeted Killing and Accountability’ (2014) 102 Georgetown Law Journal 681, 740. Encompassing military intelligence, weapons-effect data, and on-the-ground analysis, collateral damage methodology ensures that decision makers address proportionality issues before launching an attack: ibid 744. However, even this process does not wholly eliminate collateral damage: ibid 754. Of the operations that followed a collateral damage methodology, 1% resulted in collateral damage as a result of issues of misidentification, weapons malfunction, or human error: ibid. Thus, a decision maker could not anticipate collateral damage when launching an attack, yet still suffer collateral loss arising from the fog of war: ibid.
103 McNaughton (n 96) 1382–83.
104 ibid.
105 Luke Meier, ‘Probability, Confidence, and the “Reasonable Jury” Standard’ (2015) 84 Mississippi Law Journal 747, 753.
106 Meier, ibid 755 (‘In this sense, direct and circumstantial evidence are similar in that they both require a jury to evaluate what really happened at a particular location and at a particular time based solely on information provided in a different location (namely, a courtroom) at a later point in time (the trial)’).
107 ibid.
108 Department of the Army, ‘Military Judges’ Benchbook’, Dept of the Army Pamphlet 27-9, 29 February 2020, 7–3, https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN21189_P27_9_FINAL.pdf#page=1778.
109 Rome Statute (n 1) art 28; Rome Statute Elements (n 48) art 8(2)(b)(iv) (‘The perpetrator knew the attack would cause incidental death or injury to civilians or damage to civilian objects … of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated’).
110 Albert W Alschuler, ‘Plea Bargaining and Its History’ (1979) 79 Columbia Law Review 1, 30–31 (stating that the historical increase in plea bargaining came as a way to dispense with difficult cases to try).
111 ibid.
112 ibid.
113 McNeal (n 102) 755–58 (outlining the many difficulties in providing accountability with targeted strikes in Pakistan).
114 ibid.
115 ibid.
116 Major Gen Walter B Huffman, ‘Margin of Error: Potential Pitfalls of the Ruling in The Prosecutor v. Ante Gotovina’ (2012) 211 Military Law Review 1, 8 (where direct evidence of a removal plan regarding the Krajina Serbs was not necessarily dispositive when the court considered the totality of the circumstances).
117 ibid 46 (‘The law of war does not ask the impossible of battlefield commanders; nor does it unfairly disadvantage armies that lack the technological capabilities of the most advanced nations. It requires only that commanders act in good faith to do all within their capabilities and limitations to minimise civilian casualties while accomplishing their mission’).
118 ibid 7–11.
119 ibid 10.
120 ibid 7.
121 ibid 9.
122 ibid 9–10.
123 ibid 9.
124 Denno (n 97) 692.
125 eg Huffman (n 116) 8–9 (detailing the many factors that led to Gotovina's decision).
126 ibid.
127 ibid.
128 ibid 7–9.
129 ibid.
130 Meier (n 105) 754–56; Rome Statute Elements (n 48) arts 8(2)(b)(iv).
131 Rome Statute Elements (n 48) art 8(2)(b)(iv).
132 Meier (n 105) 753 (‘Circumstantial evidence … is evidence that, if believed by the jury, does not “directly prove” the material fact to the litigation, but rather supplies an inference that the material fact occurred’); McNeal (n 102) 740–44 (showing that evidence can be secured by looking at the state's decision-making process).
133 McNeal (n 102) 755–58 (outlining the many difficulties to provide accountability with targeted strikes in Pakistan).
134 ibid.
135 Rome Statute Elements (n 48) art 8(2)(b)(iv)(3) (‘The perpetrator knew that the [collateral effects] … would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated’).
136 ibid.
137 ibid.
138 ibid.
139 ibid.
140 eg, Huffman (n 116) 8–9 (detailing the many factors that often lead to a command decision).
141 ibid.
142 McNeal (n 102) 740–44 (showing the objective evidence that states use during the decision-making process).
143 ibid.
144 ibid.
145 ibid.
146 ibid.
147 Denno (n 97) 691.
148 ibid 691–92.
149 ibid 692.
150 Geoffrey S Corn and Lieutenant Colonel Gary P Corn, ‘The Law of Operational Targeting: Viewing the LOAC through an Operational Lens’ (2012) 47 Texas International Law Journal 337, 375 (‘But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be said to be criminal’).
151 ibid.
152 ibid.
153 ibid.
154 Rome Statute Elements (n 48) art 8(2)(b)(iv)(3).
155 McNeal (n 102) 740–44 (showing the objective evidence that states use during the decision-making process, including civilian risk management).
156 Corn and Corn (n 150) 375.
157 Emphasising the probative value of precautionary measures in the war crimes accountability equation might also produce a positive second order effect: incentivising consideration and implementation of such precautions: ibid.
158 eg, McNeal (n 102) 740–44.
159 ibid.
160 eg, Weiner, Justus Reid and Bell, Avi, ‘The Gaza War of 2009: Applying International Humanitarian Law to Israel and Hamas’ (2009) 11 San Diego International Law Journal 5, 10Google Scholar (explaining that each of the 10,000 rockets and mortars fired during the 2009 war was a war crime).
161 ibid.
162 George Blum and others, American Jurisprudence 2d, Evidence (2d edn, Lawyers Cooperative Publishing 2019) s 396.
163 ibid.
164 Rome Statute (n 1) art 28.
165 ibid.
166 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461, art 1.
167 Rome Statute (n 1) art 28.
168 ibid.
169 ibid.
170 ibid.
171 For example, this Wisconsin jury instruction notes that ‘[i]ntent should not be confused with motive. While proof of intent is necessary to a conviction, proof of motive is not. “Motive” refers to a person's reason for doing something. While motive may be shown as a circumstance to aid in establishing the guilt of a defendant, the State is not required to prove motive on the part of a defendant in order to convict. Evidence of motive does not by itself establish guilt. You should give it the weight you believe it deserves under all of the circumstances’: see WIS JI-CRIMINAL, 923A, https://wilawlibrary.gov/jury/files/criminal/0923A.pdf.
172 ‘Motive’, Black's Law Dictionary (11th edn, 2019).
173 Rome Statute Elements (n 48) art 8(2)(b)(i), (ii).
174 ibid.
175 ibid.
176 eg, McNeal (n 102) 740–44.
177 Médecins Sans Frontières, press release, ‘Initial Reaction to Public Release of U.S. Military Investigative Report on the Attack on MSF Trauma Hospital’, 29 April 2016, https://www.msf.org/kunduz-initial-reaction-public-release-us-military-investigative-report-attack-msf-trauma-hospital; US Central Command, press release, ‘CENTCOM Releases Investigation into Airstrike on Doctors Without Borders Trauma Center’, 29 April 2016, https://www.centcom.mil/MEDIA/PRESS-RELEASES/Press-Release-View/Article/904574/april-29-centcom-releases-investigation-into-airstrike-on-doctors-without-borde; Huffman (n 116) 7–9 (relying on attack effects to determine guilt); ICTY, Prosecutor v Ante Gotovina and Mladen Markač, Judgment, IT-06-90-A, Appeals Chamber, 16 November 2012 (reversing the conviction based on a failure to prove guilt based on the totality of the circumstances).