Practice Relating to Rule 6. Civilians’ Loss of Protection from Attack

Additional Protocol I
Article 50(3) of the 1977 Additional Protocol I provides: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 50(3). Article 50 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 161.
Additional Protocol II (draft)
Article 25(3) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided: “The presence, within the civilian population, of individuals who do not fall within the definition of civilians does not deprive the population of its civilian character.” 
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 40.
This draft provision was adopted by consensus in Committee III of the CDDH. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, 3 February–18 April 1975, p. 290, § 121.
Eventually, however, it was deleted in the plenary by consensus. 
CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 135.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 50(3) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 50(3) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Argentina
Argentina’s Law of War Manual (1989) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.02(1).
Canada
Canada’s LOAC Manual (1999) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-4, § 35.
Canada
Canada’s LOAC Manual (2001), in its chapter on targeting, states: “The civilian population comprises all persons who are civilians. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 426.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
Lesson 1. Basic notions of IHL
The principle of distinction specifies who and what can be attacked and who and what cannot be attacked.
- Who and what cannot be attacked?
- Civilians,
- Civilian population, …
NB: The presence of servicemen among a crowd of civilians does not change the nature of the civilian population.
Lesson 2. Identification
II.1 Protected persons and objects
- Civilian population: entirety of civilians. The presence within the civilian population of individuals who are not civilians does not deprive that population of that character. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 13–15 and 17–19.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
II.3. The civilian population
The civilian population consists of civilian persons. In the law of armed conflict, the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 31; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 31.
Kenya
Kenya’s LOAC Manual (1997) states: “The presence within the civilian population of individual combatants does not deprive the population of its civilian character and of the protection accorded to it.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 10.
Netherlands
The Military Manual (1992) of the Netherlands contains a rule identical to Article 50(3) of the 1977 Additional Protocol I. 
Netherlands, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, p. V-2.
Netherlands
The Military Manual (2005) of the Netherlands states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0506; see also § 0805 (protection of the civilian population).
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its non-combatant character.” 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 25.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- The presence within a civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character (article 50.3 [1977] Additional Protocol I).
Conclusion
- The presence of military objectives within a civilian population does not deprive the population of its civilian character, but civilians in a military objective or its immediate surroundings are at risk.
Civilians
What is a “Civilian”?
The protection of the civilian population is extensive. Article 50.3 Additional Protocol I determines further that the presence of individuals within the civilian population of persons who do not come within the definition of civilians does not deprive the population of its civilian character.
It is clear that this extensive definition of “civilian population” and the presumption of a person being a civilian can cause practical difficulty for tactical military commanders, especially in guerrilla type conflicts. Complete and proper intelligence will be invaluable for such commanders to assist them in determining the status of persons who they might encounter and who are ostensibly civilians. Other factors that might be of assistance are circumstantial factors, such as the person’s behaviour, location and appearance in relation to other circumstances. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 53, 56–57 and 113–114.
[emphasis in original]
Spain
Spain’s LOAC Manual (1996) states: “The civilian population does not lose its civilian character by the fact that persons who are not civilians are present among the civilian population.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 4.5.b.(1).
Spain
Spain’s LOAC Manual (2007) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.5.b.(1).(b).
Sweden
Sweden’s IHL Manual (1991) states:
The presence of individual combatants, for example among gatherings of people, has sometimes entailed a belligerent considering himself entitled to launch an attack on the gathering, with particularly serious consequences. It is therefore laid down in Article 50 [of the 1977 Additional Protocol I] that the presence of individual combatants within the civilian population may not deprive this population of its civilian character and thus its protection. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, pp. 42–43.
Ukraine
Ukraine’s IHL Manual (2004) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character and of its protection under international humanitarian law.” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.32.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “The presence among the civilian population of persons who are not civilians does not deprive that population of its civilian character.” 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 67(3).
Croatia
On the basis of Croatia’s Constitution (1990) and Defence Law (1993), the Report on the Practice of Croatia states that Article 50 of the 1977 Additional Protocol I is directly applicable in Croatia’s internal legal order. 
Report on the Practice of Croatia, 1998, Answers to additional questions on Chapter 1, referring to Constitution, 1990, Article 134 and Defence Law, 1993, Article 39.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 50(3), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Bosnia and Herzegovina
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
[T]he abovementioned persons, among others, were arrested in their place of residence or work, in hors de combat situation, and thus are legally qualified as civilians. Contrary to the argument made by the Defense, the Court emphasizes that “civilian” means predominantly civilian, as established by the ICTY: “A population may be considered as civilian even if certain non-civilians are present; it must simply be predominantly civilian” Kordić and Čerkez case, Judgement, 26 February 2001, para. 180]. Indeed, even the presence of those involved in the conflict does not deprive [a] population of [its] civilian nature. Civilian includes those who were members of a resistance movement and former combatants but who are no longer taking part in hostilities. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, pp. 65–66.
[footnotes in original omitted]
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
A population shall be considered to be a “civilian population” if it is predominantly civilian in nature. The term “civilian population” comprises every civilian person. The presence of members of the armed forces or irregular armed groups, persons hors de combat, persons actively involved in the conflict or any other person who does not come within the definition of “civilian” does not deprive the population of its civilian character. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment, 25 April 2007, p. 83.
Peru
In 2006, in the Lucanmarca case, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated:
In no case during an armed conflict may a civilian population be considered to be a military objective, even if it is composed of ordinary persons, State officials, members of the armed forces not participating in military operations and other protected persons. 
Peru, Supreme Court of Justice, Second Provisional Criminal Chamber, Lucanmarca case, Case No. 560-03, Judgment, 13 October 2006, p. 193.
In no case during an armed conflict may a civilian population be considered to be a military objective, even if it is composed of ordinary persons, State officials, members of the armed forces not participating in military operations and other protected persons. 
Peru, Supreme Court, Abimael Guzmán Reinoso and Others case, Judgment, 13 October 2006, p. 193.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated: “The presence of enemy combatants among the civilian populations shall not deny the civilian character of the population.” 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 226.
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Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber considered the character of the civilian population in relation to the chapeau requirements for crimes against humanity. The Trial Chamber stated:
305. The jurisprudence of the ad hoc Tribunals has stressed that this population must be “predominantly civilian” and “the primary object of the attack.” This does not imply that the population shall be comprised only of civilians. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. The civilian status of the victims, the number of civilians, and the proportion of civilians within a population are factors relevant to the determination of whether the requirement that an attack be directed against a “civilian population” is fulfilled.
306. For the purposes of this chapeau requirement, the ad hoc Tribunal jurisprudence has evaluated situations in which civilians and soldiers co-exist within the same geographical area subjected to an attack, and where victims of alleged crimes against humanity comprise both civilians and military personnel. The ICTY Appeals Chamber has noted that when discussing “whether a population is civilian based on the proportion of civilians and combatants within it, that is, [where] the status of the population has yet to be determined or may be changing due to the flow of civilians and military personnel”, it is inevitable in wartime conditions that combatants may become intermingled with the civilian population. However, “provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.” [ICTY, Galić case, Judgement on Appeal, § 137]. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 305–306.
[footnotes in original omitted]
International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated: “[P]ursuant to article 50(3) of the AP I [1977 Additional Protocol I], the presence within the civilian population of individuals who do not fit within the definition of civilians does not deprive the entire population of its civilian character.” 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 148.
(footnotes in original omitted) The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Tadić case in 1997, the ICTY Trial Chamber stated: “It is clear that the targeted population [of a crime against humanity] must be of predominantly civilian nature. The presence of certain non-civilians in their midst does not change the character of the population.” 
ICTY, Tadić case, Judgment, 7 May 1997, § 638; see also § 643 and Mrkšić case, Review of the Indictment, 3 April 1996, § 29.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated:
Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians. Indeed, even in a situation of full-scale armed conflict, certain fundamental norms still serve to unambiguously outlaw such conduct, such as rules pertaining to proportionality. 
ICTY, Kupreškić case, Judgment, 14 January 2000, § 513.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated: “The presence of individual combatants within the population does not change its civilian character.” 
ICTY, Galić case, Judgment, 5 December 2003, § 50.
In its judgment in 2006, the ICTY Appeals Chamber clarified the position with regard to the presence of combatants within a civilian population:
136. … [T]he Appeals Chamber finds that the jurisprudence of the International Tribunal in this regard is clear: the presence of individual combatants within the population attacked does not necessarily change the fact that the ultimate character of the population remains, for legal purposes, a civilian one. If the population is indeed a “civilian population”, then the presence of combatant within that population does not change that characterisation. In the Kordić and Čerkez Appeal Judgement, the Appeals Chamber stated:
The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. Kordić and Čerkez Appeal Judgement, § 50]
The Appeals Chamber considers 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. [Kordić and Čerkez Appeal Judgement, § 97]
137. If, however, one is discussing whether a population is civilian based on the proportion of civilians and combatants within it, that is, the status of the population has yet to be determined or may be changing due to the flow of civilians and military personnel, then the conclusion is slightly different. The Blaškić Appeal Judgement qualified the general proposition of the Kordić and Čerkez Appeal Judgement with an important addendum. It states, quoting the ICRC Commentary, that “in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.” As such, the Appeals Chamber in Blaškić found [in § 115] that “in order to determine whether the presence of solders within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, §§ 136–137.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kordić and Čerkez case in 2004, the ICTY Appeals Chamber stated: “The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
ICTY, Kordić and Čerkez case, Judgment on Appeal, 17 December 2004, § 50.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blaškić case in 2004, the ICTY Appeals Chamber considered that “the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic”. The Trial Chamber was correct in this regard.” 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 113.
The Appeals Chamber further stated:
The Trial Chamber also stated that the “presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population”. The ICRC Commentary on this point states:
…in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population. [ICRC Commentary, Additional Protocol I, p. 612, § 1922]
Thus, in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 115.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blagojević and Jokić case in 2005, the ICTY Trial Chamber stated:
The term “civilian” refers to persons not taking part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds detention or any other cause. It is a principle of customary international law that these persons are protected in armed conflicts. The presence within a population of members of resistance groups or former combatants who have laid down their arms does not alter its civilian character. A population is considered a “civilian population” if it is predominantly civilian in nature. It is not necessary to demonstrate that the victims are linked to any particular side of the armed conflict. The Appeals Chamber has recently emphasised [ Blaškić Appeal Judgement, § 109] that “there is an absolute prohibition on the targeting of civilians in customary international law.” 
ICTY, Blagojević and Jokić case, Judgment, 17 January 2005, § 544.
International Criminal Tribunal for the former Yugoslavia
In the Martić case, the accused, who had held various leadership positions in the so-called “Serbian Autonomous District (SAO) Krajina” and the “Republic of Serbian Krajina (RSK)”, was convicted of, inter alia, murder and torture as violations of the laws and customs of war and as crimes against humanity. In its judgment in the case in 2008, the ICTY Appeals Chamber considered whether the requirement of Article 5 of the 1993 ICTY Statute that the attack be directed against a civilian population meant that all victims of each crime must have civilian status, particularly persons hors de combat. The Appeals Chamber stated:
304. … [P]rovisions of the [1993 ICTY] Statute must be interpreted according to the “natural and ordinary meaning in the context in which they occur” [Tadić case, Judgement on Appeal, §§ 282–283 and § 285], taking into account their object and purpose. Article 5 of the Statute reads, in part:
The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population […]
305. When dealing with the expression “directed against any civilian population”, the Tribunal has interpreted it as requiring “that the acts be undertaken on a widespread or systematic basis” [Tadić case, Judgement, § 626]. The Appeals Chamber has indeed clarified that
[t]he expression ‘directed against’ is an expression which ‘specifies that in the context of a crime against humanity the civilian population is the primary object of the attack.’ In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. 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. [Kunarac case, Judgement on Appeal, § 91]
Thus, on the face of it, the requirement that the acts of an accused must be part of a widespread or systematic attack directed against any civilian population does not necessarily imply that the criminal acts within this attack must be committed against civilians only. The chapeau rather requires a showing that an attack was primarily directed against a civilian population, rather than “against a limited and randomly selected number of individuals.” [Kunarac case, Judgement on Appeal, § 90]
306. Relevant interpretative sources tend to show that the drafters of the Statute did not in fact intend to exclude persons hors de combat from the purview of victims under Article 5. In its discussion of crimes against humanity, the Report of the Secretary-General recommending the establishment of the Tribunal expressly referred to Common Article 3. Moreover, in its report, the Commission of Experts Established Pursuant to Security Council Resolution 780 referred to Common Article 3 and noted as well that article 4 of Additional Protocol II addressed “fundamental guarantees” and included in the protected group “all persons who do not take a direct part or who have ceased to take part in hostilities.”
307. Indeed, in the cases cited by the parties to support their interpretations of the meaning of “civilian” referenced above, the issue at stake was whether a population as a whole could be regarded as “civilian”, while single individuals in its midst – the exact number depending on the circumstances – could still be combatants without modifying the status of the population as a whole. These statements were made by the Appeals Chamber in the context of illustrating the scope of the “well-established jurisprudence regarding the chapeau element of ‘civilian population’.” Thus, the authorities cited by the Trial Chamber in order to exclude persons hors de combat from the victims of crimes against humanity (as opposed to the category of persons who may be object of the attack according to the chapeau of Article 5) are misleading. There is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians.
308. The Appeals Chamber notes that this approach has been followed by the Tribunal, albeit implicitly, in a number of cases. Nothing for instance suggests that in the Krstić case, the Trial Chamber or the Appeals Chamber required a distinction between the categories of victims – civilian and persons hors de combat according to international humanitarian law – in order to reach a finding on extermination as a crime against humanity. The other final judgements related to the Srebrenica massacre adhered to the same line of reasoning. A similar conclusion follows from an analysis of the more recent Brđanin Appeal Judgement. It should be noted that, in these and other cases, the Tribunal has generally discussed victims of crimes against humanity simply as “persons”, “people”, or “individuals” targeted during a widespread and systematic attack against the civilian population, without attempting to establish whether single victims were “civilians” in the sense of international humanitarian law. The relevance of the “civilian population”, however, of course remained for the purpose of the chapeau requirement.
309. The Appeals Chamber is satisfied that this approach reflects customary international law. The Nuremberg Charter and Allied Control Council Law No. 10 identified crimes against humanity of murder, extermination, enslavement, and deportation as crimes being committed against “any civilian population”, but subsequent practice established that the status of a victim of a crime against humanity was not restricted to “civilians”. This practice includes the High Command Case before the United States Military Tribunal, cases of the Supreme Court in the British Occupied zone, and the French cases of Barbie and Touvier.
310. Further, the Appeals Chamber notes that while post-World War II case-law generally considered war crimes and crimes against humanity together, when military tribunals did distinguish between them, they did so not on the basis of the status of their victims, but on the element of scale or organisation involved in crimes against humanity:
It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual.” The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.
311. In light of the above, the Appeals Chamber finds that the interpretation of the Statute according to which persons hors de combat fall within the purview of Article 5 of the Statute as victims is consistent with the status of applicable customary international law.
313. Under 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. Further, the Appeals Chamber is satisfied that the commission of crimes under Article 5 of the Statute against persons hors de combat attracted individual criminal responsibility under customary international law at the time of the commission of the offences. Therefore, the principle of nullum crimen sine lege is not violated. 
ICTY, Martić case, Judgment on Appeal, 8 October 2008, §§ 304–311 and 313.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In the Milutinović case, the accused were charged with violations of the laws or customs of war and crimes against humanity as members of a joint criminal enterprise to, amongst other things, modify the ethnic balance in Kosovo to ensure Serbian control of the province through a campaign of terror and violence directed at the Kosovo Albanian population. In its judgment in 2009, the Trial Chamber considered the civilian character of a population in the context of the chapeau requirement for the prosecution of crimes against humanity that an attack must be directed against a civilian population. The Trial Chamber stated:
Although there is no numerical rule clearly denoting the point at which a population loses its civilian character, the Chamber considers that the requirement that the population under attack be “predominantly civilian” provides a standard against which the facts of a particular case may be judged. 
ICTY, Milutinović case, Judgment, 26 February 2009, § 148.
International Criminal Tribunal for the former Yugoslavia
In the Mrkšić case, two of the three accused, officers in the Yugoslav People’s Army (JNA), were convicted of, inter alia, torture as a violation of the laws or customs of war. In its judgment in the case in 2009, the ICTY Appeals Chamber considered the chapeau requirements for crimes against humanity, specifically whether persons hors de combat could be individual victims of crimes against humanity. It stated:
31. … [T]he fact that a population under the chapeau of Article 5 of the [1993 ICTY] Statute must be “civilian” does not imply that such population shall only be comprised of civilians. The status of the victims will thus also be relevant to determining whether the population against which the attack is directed is civilian. In Kordić and Čerkez, the Appeals Chamber stated:
The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. [Kordić and Čerkez case, Judgement on Appeal, § 50]
In Blaškić, the Appeals Chamber, relying on the ICRC Commentary to Article 50 of [the 1977] Additional Protocol I, held that “in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”. [Blaškić case, Judgement on Appeal, § 115]
32. Accordingly, whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”. 
ICTY, Mrkšić case, Judgment on Appeal, 5 May 2009, §§ 31–32.
[footnotes in original omitted]
Special Court for Sierra Leone
In its judgment in the Fofana and Kondewa case in 2007, the SCSL Trial Chamber stated:
In order for a population to be considered “civilian”, it must be predominately civilian in nature; the presence of certain non-civilians in their midst does not change the character of the population. In determining whether the presence of soldiers within a civilian population deprives it of its civilian character, the Chamber must examine, among other factors, the number of soldiers as well as their status. The presence of members of resistance armed groups or former combatants who have laid down their arms, within a civilian population, does not alter its civilian nature. 
SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, § 117.
In its judgment in 2008, the Appeals Chamber considered the definition of the civilian population in relation to the chapeau requirements of crimes against humanity, stating:
258. The Trial Chamber stated that “civilian population” must be interpreted broadly. It includes “all those persons who are not members of the armed forces or otherwise recognised as combatants.” [ Fofana and Kondewa case, Judgement, § 116] It also stated that the population must be predominantly civilian in nature and that the presence of certain non-civilians in their midst does not change the character of the population. It further stated that the use of the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been the subject of that attack. The Trial Chamber finally stated that:
the targeting of a select group of civilians – for example, the targeted killing of a number of political opponents – cannot satisfy the requirements of Article 2. It would therefore be sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian ‘population’, rather than against a limited and randomly selected number of individuals. [Fofana and Kondewa case, Judgement, § 119]
259. Article 50 of [the 1977] Additional Protocol I provides:
… The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.
The Appeals Chamber considers that Article 50(1) of the Additional Protocol I is a useful tool in determining a “civilian population.” The Appeals Chamber agrees with the view expressed in several judgments of international tribunals that “the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic” and “[t]he civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” [ICTY, Galić case, Judgement on Appeal, § 144] In line with this principle, the Appeals Chamber takes the view that the presence of rebels or juntas within the victims does not deprive the population of its civilian character.
264. The Appeals Chamber holds that as a matter of law perceived or suspected collaborators with the rebels or juntas, as in the present case, are likewise part of a “civilian population”. 
SCSL, Fofana and Kondewa case, Judgment on Appeal, 28 May 2008, §§ 258–259 and 264.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber, in considering whether a civilian population could include persons hors de combat for the purposes of the chapeau requirement for crimes against humanity, stated:
82. The Chamber is satisfied that customary international law, determined by reference to the laws of armed conflict, has established that the civilian population includes all of those persons who are not members of the armed forces or otherwise recognised as combatants. A person who is hors de combat does not prima facie fall within this definition. However, the Chamber concurs with the ICTY Appeals Chamber in the Martic case that where a person hors de combat is the victim of an act which objectively forms part of a broader attack directed against a civilian population, this act may amount to a crime against humanity. Thus, persons hors de combat may form part of the civilian population for the purpose of crimes against humanity, provided that the remaining general requirements of Article 2 [of the 2002 Statute of the Special Court for Sierra Leone] are satisfied in respect of the particular incident.
83. In order for a population to be considered “civilian”, it must be predominantly civilian in nature; the presence of certain non-civilians in their midst does not change the character of the population. In determining whether the presence of soldiers within a civilian population deprives it of its civilian character, the Chamber must examine, among other factors, the number of soldiers as well as their status. The presence of members of resistance armed groups or former combatants who have laid down their arms, within a civilian population, does not alter its civilian nature. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 82–83.
[footnotes in original omitted]
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The presence within the civilian population of individuals other than civilian persons does not deprive the population of its civilian character.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 53.
ICRC
In a press release issued in 1983 concerning the conflict in Lebanon, the ICRC stated: “The presence of armed elements among the civilian population does not justify the indiscriminate shelling of women, children and old people.” 
ICRC, Press Release No. 1474, Fighting in Tripoli: Appeal from the ICRC, Geneva, 4 November 1983.
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