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Proportionality and Distinction in the International Criminal Tribunal for the Former Yugoslavia

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Proportionality and Distinction in the International Criminal Tribunal for the Former Yugoslavia +(,121/,1( Citation: 12 Austl. Int'l L.J. 83 2005 Content downloaded/printed from HeinOnline (http://heinonline.org) Mon Feb 10 14:22:21 2014 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=1325-5029 Proportionality and Distinction in the International Criminal Tribunal for the Former Yugoslavia KRISTEN DORMAN* I. Introduction The principles of distinction and proportionality are at the very kernel of the protection of civilians required by international humanitarian law.' However, how effective have they been in protecting civilians from the vagaries of modern conflict? Some reports, which admittedly may be based on unreliable data, suggest that the rate of civilian mortality in armed conflict situations has risen exponentially since the First World War, as per the following table: Armed conflict Percentage of civilian in total mortality rate First World War 5 per cent Second World War 48 per cent 2 Korean War 4 per cent 3 Second Gulf conflict 90 per cent LLB (Hons), BBus, University of Technology, Sydney, Student of Master of International Law, The University of Sydney. 1 The International Court of Justice described the principles of distinction and protection of the civilian population as the 'cardinal principles contained in the texts constituting the fabric of humanitarian law': Legali ofthe Thrat or Use of Nuclear Weapons (ICJAdtisoy Opinion) [19961 ICJ Rep 226 at [78]; Esbjorn Rosenblad, International HumanitarianLaw ofArmed Conflict: Some Aspects of/he Prinple of Distinctionand Related Problems (1979) at 41. 2 Figures extracted from a statement in November 1970 made to the Third Committee of the UN General Assembly, whilst it was debating the question of 'Respect for Human Rights in Armed Conflicts' (UN Doc A/C 3/SR 1780) in Rosenblad, above nl at 55-56. 3 There were 1,408 coalition military deaths in the period to November 2004: see Iraq Coalition Casualties website <http://icasualties.org/oif/default.aspx> accessed 21 November 2004. British Foreign MinisterJack Straw was said to have conservatively estimated the total Iraqi civilian deaths to November 2004 as approximately 10,000: Vytenis Didziulis, '100,000 Iraqi Deaths Civilian Deaths Projected' The W1ashington Times <http://washingtontimes.com/upi-breaking/20041029- 043334-8991r.htm> accessed I November 2004. (2005) 12 AUSTRALIAN INTERNATIONAL LAW JOURNAL Whilst the mortality rate for civilians caught in the Korean War may have been considerably exaggerated, 4 the overall trend is obvious. Why, notwithstanding substantial codification of the principles of distinction and proportionality in the four 1949 Geneva Conventions5 and the 1977 Additional Protocols,6 are civilian casualties in armed conflict increasing? Evidently a comprehensive and causal analysis of the failures of States to observe the principles of distinction and proportionality is beyond the scope of this article. However, it is the hypothesis of this article that a partial and limited explanation may lie in ambiguities apparent in: 1. The application of the principles of distinction and proportionality, which have led some State parties to claim that relevant bodies lack jurisdiction to try alleged offenders for violations; and 2. The imprecise and highly subjective content of the principles, which has led to inconsistencies in application and a reluctance on behalf of relevant tribunals to fully embark upon the inquiry they appear to mandate. This article will rely heavily on the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia ('ICTY') as it contains the most recent modern judicial application of the principles of distinction and proportionality to situations of armed conflict. 2. The Principle of Distinction The principle of distinction is essential to the protection of civilians under international humanitarian law.7 In fact, in combat situations, the entire body of international humanitarian law can be reduced to the obligation to observe the principle of distinction.8 It may be stated generally as requiring that, in the conduct of 9 warfare, attacks must only be directed against military objectives. 4 Rosenblad, above nl at 56. 5 Geneva Convention for the Ameoration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Conventionfor the Amelioration of the Condition of the Wounded, Sick andShipwrecked Members ofArmed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment ofPrisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention Relative to Protection of Cifilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (together 'Geneva Conventions). 6 ProtocolAdditionalto the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of InternationalArmed Conflicts, 8 June 1977 ('Protocol '), 1125 UNTS 3; and ProtocolAdditional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-InternationalArmed Conflicts ('ProtocolI/'), 8 June 1977 (together 'Additional Protocols . 7 Rosenblad, above nl. 8 WJ Fenrick, 'Crimes in Combat: the Relationship between Crimes against Humanity and War Crimes' The Hague: Guest Lecture Series of the Office of the Prosecutor(5 March 2004) at 5. 9 See for example decision of the Trial Chamber of the ICTY in Prosecutor v Gahc FT-98-29-T] (5 December 2003) ('Galic) at [45]. INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA A. The Principle of Distinctionin Customary International Law The Preamble to the 1868 Declaration of St Petersburg10 declared that: endeavour to accomplish during the only legitimate object which States should 11 war is to weaken the military forces of the enemy. The principle of distinction was subsequently incorporated into the Regulations annexed to the 1907 Hague Convention Respecting the Laws and Customs of War on Land'2 which prohibited, inter alia, the attack or bombardment of any undefended towns or buildings and the destruction or seizure of enemy property, unless 'imperatively demanded by the necessities of war'. 13 The passage of the content of the Hague Regulations into international customary law was confirmed by the judgment of the Nuremberg Tribunal. 14 The principle of distinction has also been confirmed as constituting customary law 15 B. The Principle of Distinction in the Geneva Conventions and Additional Protocols Provisions of the Geneva Conventions containing re-statements of the principle of distinction are contained in the AdditionalProtocols, and include article 48 of Additional ProtocolI, which reflects the basic obligation of parties to a conflict to distinguish between civilians and civilian objects on the one hand, and military objectives on the other;16 and article 52 of Additional Protocol I, which requires that attacks be strictly limited to military objectives, defined as: those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.17 Additional Protocol I does not expressly define civilians or civilian objects. Instead, civilians are defined as being persons not belonging to the armed forces, militia, volunteer corps, or resistance fighters as defined in article 4A of the Third Geneva Convention and article 43 of Additional ProtocolL.18 More importantly, civilian objects are all objects which are not military objectives, as defined in article 52(2). 19 10 Rosenblad, above nI at 54. 11 1868 St PetersburgDeclaration Renounding the Use, in Time of War of Explosive Projectilesn under 400 Grammes Weight in Adam Roberts& Richard Guelff (eds), Documents on the Laws of War(2 d ed) (1994) at 30-31. 12 Regulations Respecting the Laws and Customs of War on Landannexed to The Hague Conven ion (IV) Respeciing the Laws and Customs of War on Land, 18 October 1907 (The 'Hague Regulations) in Roberts & Guelff, above nil at 52. 13 Hague Regulations, arts 23(g). 14 Judgment of the International Military Tribunal at Nuremberg, in Na# Conspirag and Aggression, Opinion and Judgment (1947) at 83; Daphna Shraga & Ralph Zacklin, 'The International Criminal Tribunal for the Former Yugoslavia' (1994) 5 European Journal of International Law 380 at 386; Prosecutorv Tadir IT-94-1-AR72 A Ch] (2 October 1995) ('Tadic at 187]. 15 Rosenblad, above nI. 16 Additional Protocol I, art 48. 17 Additional Protocol!, art 52(2). 18 Additional Protocol 1,art 50(1); Roberts & Guelff, above nl I at 415. 19 AdditionalProtocol, art 52(1); Roberts & Guelff, above nl I at 416. (2005) 12 AUSTRALIAN INTERNATIONAL LAW JOURNAL C. Ambiguities inherent in the Principle of Distinction (i) Ambiguities in the Application of the Principle of Distinction There is some controversy with respect to the extent to which the AdditionalProtocols, which contain specific prohibitions related to the principle of distinction, have passed into customary international law.20 Whilst the ICTY has generally concluded that the 2 1 essence, or 'core', of the Additional Protocols reflect customary international
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