1、II. WAR CRIME OF EXCESSIVE INCIDENTAL DEATH, INJURY OR DAMAGE 1. General Reed Committed War Crime of Excessive Incidental Death, Injury, or Damage Apart from the common elements stated above, war crime of excessive incidental death, injury or damage still requires the following elements: 1.1. The at
2、tacks caused excessive death, injury and damages General Reed violated the principle of proportionality. The principle of proportionality required that any incidental damage to civilians must within the proportion to the direct military advantage gained by the military attack.1 Military objectives a
3、re those which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction offers a definite military advantage.2 The BAS factory was used to produce the explosive devices and made an effective contribution to military action, an
4、d the destruction of it would offer a definite military advantage.3 Bing, as a commander of DKF (a paramilitary group in Kebia), made an effective contribution to the military action and his death offers a definite military advantage. Therefore, the factory and Bing can be justified as military obje
5、ctives. The concrete and direct military advantage anticipated here was the destruction of the factory and the killing of Bing. Civilians are persons who are not, or no longer, members of the armed forces.4 The workers in the factory, Bings family and other residents in this building were civilians,
6、 the death and injury of who shall be justified as incidental loss. 1 ICTY, Prosecutor v Kupreki(TJ), Case No. IT-95-16-T, para.524. 2API GC, Article 52(2). 3 Moot Problem, para.18-25. 4ICTY, Prosecutor v Blaki(TJ), Case No.IT-95-14-T, para.751. General Reed failed to keep balance between the milita
7、ry advantage and incidental loss. In determining whether an attack was proportionate, it is necessary to examine whether a reasonable well-informed commander make a balanced decision between the military advantage and incidental loss.5 In reference to the Israel attack on the Gaza police force, the
8、Mission claimed that the attack was disproportional for the Israel party failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other
9、policemen killed and members of the public who would inevitably have been present or in the vicinity).6 Accordingly, the workers were inevitably present or in the vicinity of the factory at the time of attack, and it was the same with Bing family and other residents in Bings apartment. The loss of t
10、hese civilian lives was not balanced with the military advantage anticipated (i.e. the destruction of the factory and the killing of Bing). Thus, the attacks were disproportionate. 1.2. General Reed should have known the attacks would cause excessive damages. The negligence standard of “should have
11、known“ is met when the perpetrator lacked such knowledge because he did not act with due diligence in the relevant circumstances.7 General Reed should have known that the attack would cause excessive damages if he had taken due diligence, i.e. his duty to take precautions in the attacks. The precaut
12、ions General Reed should take include: (i) the choice of method of attack; (ii) effective advanced warning before attack.8 5ICTY, Prosecutor vGarli(TJ), Case No.IT-98-29-T, para.58. 6 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, para.432-437. 7Prosecutor v. Katanga(TJ), IC
13、C-01/04-01/07-717 01-10-2008 1/226 VW PT, para.252. 8API GC, Article 57. 8 ICTY, Prosecutor vBlaki (TJ), Case No.IT-95-14-T, para.50. (i)General Reed failed to choose proper methods of attack to be used to prevent or minimize loss or damage to the civilians.9 According to the Blaki case, the method
14、used in an attack is important in determining whether the attack is proportionate.10 Hence, if there is a choice of methods of attack available, a commander should select those which are most likely to avoid, or at least minimize, incidental damage.11 First, in order to avoid hitting the people work
15、ing in the factory, the attacks shall take place on days or at times when the factory were empty; the desired effect is to destroy the factory without killing the workers.12 However, General Reed chose to attack the factory when the workers were still in the factory which General Reed should have kn
16、own from the observation of the reconnaissance. Such attack caused excessive damages to the civilians. Second, the method of attack against Bing was deemed to be disproportionate. In order to kill Bing, General Reed could have chosen another method which would not imperil the civilians and civilian
17、objects. Additionally, the time of attack13 General Reed chose to attack Bings building at the time when the residents were asleep, which gave rise to the risk of excessive civilian casualties. (ii) General Reed failed to give effective advance warning to the workers. In the attack of the factory, t
18、he surprise was not a condition of its success.14 Hence, General Reed should give prior warning to the workers before the attack, which would definitely minimize the incidental damage to the civilians. 2. General Reed should bear individual responsibility as a co-perpetrator 9API GC, Article 57(2)(a
19、)(iii). 10 ICTY, Prosecutor vBlaki (TJ), Case No.IT-95-14-T, para.507. 11 ICTY, “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia”, para.21. 12 ICRC, Commentary on Protocol I, para.2200. 13 Moot Problem, para.2
20、6-27. 14 ICRC, Commentary on Protocol I, para.2223. Liability as a co-perpetrator indicates a person shall be criminally responsible for a crime if that person jointly with another orthrough another person to commit a crime.15 2.1. Existence of a common plan and essential contribution of the co-perp
21、etrator Objective elements required a co-ordinate liability are: (i) Existence of a common plan between two or more persons16; (ii) Co-ordinated essential contribution by each co-perpetrator resulting in the realization of the material elements of the crime.17 (i) As for the first element of the cri
22、minality, the common plan does not need to be specifically directed at the commission of the crime.18 If the plan include the possibility that the crime would be committed, it is defined as directed at the commission of the crime.19 In judgment of Katanga case, even the plan did not set out to recru
23、it children under 15, the recruitment of “ young people” in their plan contain a risk the accused willingly took.20 Accordingly, the Thunderstorm Operation included attacking many targets all over the city where might have high density of civilians. Such plan had attributed to the risk of excessive
24、damage to civilians and civilian objects. (ii) As for the second element of crime, “essential” was established if the perpetrator have the power to frustrate the plan. The determination of whether the particular contribution of the accused results in liability as a co-perpetrator is based on the div
25、ision of tasks. Accordingly, the tasks assigned to General Reed were to plan and execute of the Thunderstorm Operation, which was essential to the common plan. 15ICC statute, Article 25(3)(a). 16Prosecutor v. Lubanga(TC), ICC-01/04-01/06-803-tEN, para.361-366 . 17 Ibid. 18Ibid. 19Ibid. 20Ibid. 2.2.
26、General Reed and other co-perpetrators were aware of committing the crime General Reed fulfilled the required subjective elements 21 , which could be demonstrated as follows: (i) The accused and the other co-perpetrators were mutually aware of andaccepted the excessive damage that will occurin the o
27、rdinary course in implementing their common plan. “Ordinary course” is the the consequence participants anticipatedmay occurin the future based on their own knowledge. At the time the co-perpetrators agreed on a common plan throughout its implementation, General Reed and his co-perpetrator mutually
28、accepted the existence of the risk that excessive damage would occur, with the knowledge large number of civilians existed in the factory and Bings apartment.22 (ii) General Reed was aware that he provided an essential contribution to the implementation of the common plan. General Reed, as the comma
29、nder of AAF, took direct participation in the attacks against the factory and Bing.23 Hence, General Reed was aware of his essential contribution to the implementation of the common plan. For the foregoing reasons, General Reed should bear individual responsibility in the war crime of excessive damage to civilians. 21Prosecutor v. Lubanga(TC), ICC-01/04-01/06-803-tEN,para.1008. 22 Moot problem, para.25,27. 23Prosecutor v. Katanga(PC), ICC-01/04-07, para,402.
