Chesney on Attacking Mourners and Rescuers with Drones (Updated)

by Kevin Jon Heller

As most readers likely know, the Bureau of Investigative Journalism recently released a 22,000 word report documenting the disturbing U.S. practice of using drones to target individuals attending funerals or attempting to provide aid to individuals wounded in previous drone strikes.  Here is the report’s central conclusion:

A three month investigation including eye witness reports has found evidence that at least 50 civilians were killed in follow-up strikes when they had gone to help victims. More than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. The tactics have been condemned by leading legal experts.

At Lawfare today, Bobby Chesney argues that such attacks would be legal as long as they targeted individuals who qualified as members of an organized armed group and did not cause disproportionate civilian casualties:

I certainly agree that medical/first-response activities undertaken to rescue persons who have been injured by a drone strike would not normally constitute direct participation in hostilities.  And one could add that attending a funeral is not direct participation in hostilities either.  But all of this only matters (assuming LOAC does apply) if we assume that a person must be directly participating in hostilities in order to be targeted lawfully in that context.  And that is in fact the subject of great debate.

One position is that in the NIAC setting there is no such thing as “combatant” status, that everyone accordingly has “civilian” status, and that the authority to target a civilian intentionally is limited to situations in which the civilian directly participates in hostilities.  On that view, drone strikes would routinely be problematic, quite apart from whether a strike occurred during a funeral or during a post-strike rescue operation.  This is not the only view of the matter, however.

A different position is advanced by the ICRC in its Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law.  This document argues (pp.31-36) that members of organized armed groups (OAG) who perform a continuous combat function (CCF) in a NIAC are not civilians and may be targeted in a manner comparable to that of a combatant, not just when engaging in specific acts of direct participation.  On that view, it would certainly be possible to lawfully target a member of an OAG who has a CCF, even if at that very moment the person happens to be attending a funeral or attempting to rescue someone from a collapsed building (though obviously the presence of medical personnel, family, or other non-fighters in such locations would raise difficult questions in the proportionality analysis).

Bobby’s argument, however, is significantly overbroad.  It is black-letter IHL that, in the words of Article 50(3) of Additional Protocol I, “[t]he 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.”  That rule is contained in the military manuals of nearly a dozen countries, including Argentina, Canada, Kenya, the Netherlands, Spain, and Sweden.  And it has been affirmed by multiple international tribunals, including the ICTY and the Special Court for Sierra Leone.  The ICTY Appeals Chamber, for example, held the following in Galić:

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”.

All of these statements, of course, leave open the difficult question of how many combatants must be present within a civilian population for that population to lose its civilian status.  It’s clear, though, that the presence of one member of an organized armed group — Bobby’s hypothetical — is not enough.  It is thus incorrect to argue that it is “certainly… possible” that the principle of distinction permits the U.S. to intentionally attack one member of an organized armed group who is attending a funeral along with a number of civilians.  Such an attack is a clear violation of the laws of war.

UPDATE: Unknown raises an important point in the comments, one that I should have addressed in the initial post.  Although the presence of a combatant in an otherwise population does not deprive that population of its civilian character, the combatant remains a lawful target.  So as Unknown points out, it would be lawful for a sniper to kill the combatant even when he is surrounded by the civilian population.  But that is not what we are talking about here — the issue is a drone strike.  Attacking a combatant with a drone may be more precise than attacking a combatant with a bomb, but it is not anywhere near as precise as a sniper’s bullet.  A drone targets groups of people, not individuals, especially in a rescue/funeral situation where individuals are densely packed together.  So my point is that, by attacking a legitimate target in a civilian population with a drone, the U.S. is attacking the civilian population — it can’t simply say that because there was a lone combatant in the population’s midst, the principle of distinction is satisfied and all that matters is proportionality.

P.S. If you disagree with that proposition, substitute “bomb” for “drone strike.”  Do you think the U.S. could drop a bomb on a group of civilians and one combatant and claim that, because they were targeting the combatant, the attack automatically satisfied the principle of distinction?

31 Responses

  1. I always understood the relation between 50(3) and 51(5)(b) to be different, more in line with Bobby’s reasoning. Surely, the presence of one combatant or one member of OAG with CCF in a civilian population does not deprive the latter of its civilian character. However, this rule relates to the character of the group as a whole, but the individual combatant/CCF continues to have combatant (CCF) status. In other words – just like it is not allowed to treat various military objectives separated by civilian objects as one all-encompassing military target – the group as such is civilian (despite the presence of a lawful target in that group) and the group as such and as a whole cannot be attacked directly. All in all, conversely, the presence in a civilian population does not deprive a combatant/CCF of its status as lawful target. So, taking him/her out individually (cf. sniper headshot) would be lawful, but attacking the whole population would not. And an attack on that individual combatant/CCF with proportionate collateral damage/injury would be lawful as well, as the population as whole is not made the object of attack.

  2. Unknown,

    I agree about the sniper scenario — the combatant would still be targetable, even though he is among a civilian population.  But a drone strike, although more precise than a bomb, is not like a sniper’s bullet.  It targets groups of people, not individuals, especially in a rescue/funeral situation where individuals are densely packed.  So my point is that, by attacking a legitimate target in a civilian population with a drone, the U.S. is attacking the civilian population — it can’t simply say that because there was a lone combatant in its midst, the principle of distinction is satisfied and all that matters is proportionality.  I did not get into the mens rea issue that would arise in a prosecution for a war crime or crime against humanity, but it’s clear that neither requires the attacker to specifically intend to attack civilians — attacking a legitimate target knowing that the effects of the attack will harm a civilian population is enough.  The ICTY has so held, and Article 30 of the Rome Statute leads to the same result.  So it’s an issue of distinction, not simply one of proportionality.

  3. Luis Moreno-Ocampo’s description of distinction seems instructive: “International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[3] even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).”
    Also,KJH, your statement that “it’s clear that neither requires the attacker to specifically intend to attack civilians — attacking a legitimate target knowing that the effects of the attack will harm a civilian population is enough” seems to imply that you could never have a legal attack (in terms of distinction) in an area where civilians will be harmed.  That is most definitely not the law as clearly stated by Ocampo.

  4. Thank you for your response, mr. Heller. I should have made clear from the start that it all boils down to the manner in (and the methods with) which the drone attack was carried out. For example, progress has been made to employ UAVs with precision weaponry (e.g. the Autonomous Rotorcraft Sniper System), with the ability to target an individual with a high degree accuracy, without much (if any) collateral damage/injury.  For this reason the assumption that drone attacks are by definition more of a “bombing” scenario than a “sniper” scenario might not be justified in light of future developments.

    On another note, the question of proportionality (admittedly, a different analysis, under the same name) does play a role when assessing whether the proportion of combatants to civilians in a group still justifies treating the group as a “civilian population”. 

    I was wondering: Does the fact that a group is no longer considered to be a civilian population (because the share of combatants is too high in proportion to the number of civilians) mean that for this reason alone (!) an attack on the group would be considered proportionate in the meaning of 51(5)(b)? Or do different thresholds apply here?

  5. I didn’t draft Article 30 of the Rome Statute.  All commentators treat the civilian-ness of a population as a circumstance element.  (See here, for example.)  Under Article 30, a circumstance element requires awareness that the circumstance exists.  So if an individual intentionally attacks a population while being aware that the population qualifies as civilian, he is guilty of intentionally attacking a civilian population.  That attacker could argue that he mistakenly but honestly believed the population had forfeited its civilian status; I have argued elsewhere that the ICC would have to recognize such a defence, because an honest belief negatives the mens rea of knowledge.  But beyond that, I don’t see what conclusion is possible other than that the war crime has been committed — no matter what LMO says.

  6. Remy,

    No.  It simply means that, because the civilian population has forfeited its civilian status, it would not be a violation of the principle of distinction to intentionally attack it.  The attack could still be disproportionate.

  7. For a particularly good discussion of mens rea under the Rome Statute, see Johan D. van der Vyver’s case-note here.  He specifically notes (1) that the “intentionally” in the “intentionally directing attacks” set of war crimes adds nothing to the default mens rea in Article 30, and (2) that “intent” in the context of Article 30 does not correspond to what we common-law lawyers think of as intent (as subjective desire), but also includes knowledge that a result is a virtual certainty, what is known as “oblique intent” in British criminal law or “dolus indirectus” in German criminal law.

  8. As for attacking rescuers of wounded combatants, I was under the impression that the sick and wounded were hors de combat and that anyone seeking to render them aid would also be protected from attack so long as they do not engage in hostilities (other than immediate self defense, that is, of themselves and wounded in their care), regardless of whether they ordinarily carry out a combat function. Can someone in the know please address this?

  9. Jennifer,

    That’s not the issue here.  Everyone would agree you can’t deliberately target the sick and wounded or medical personnel.  The question is whether, if you attack a legitimate combatant in the midst of such people, that attack can violate the principle of distinction or only the principle of proportionality.

  10. Response…
    I agree with Unknown and basically with FMR.  There are also other possible issues, such as: (1) what is the value of the legitimate DPH or combatant target — very high, high, low?  this is important with respect to contextual inquiry into reasonable necessity and proportionality under the circumstances; (2) are there alternatives (e.g., can one wait)?; are the civilians as such voluntary human shields?; and so forth.
    Also, yes, drones are merely platforms and it is important to consider what types of weapons are on the drones and being used.
    I disagree with Bobby when he states that it is routinely problematic to targets DPHs with weapons on a drone — because of all of the above and because of what several others have recognized here. 

  11. Kevin,

    I read Prof. Chesney’s post:“it would certainly be possible to lawfully target a member of an OAG who has a CCF, even if at that very moment the person happens to be …. attempting to rescue someone…” as suggesting that while rescuing persons doesn’t equate to DPH, rescuers can be targeted if they are members of an OAG etc. I did not think protection in such cases relied on one’s  official (and exclusive) status as “medical personnel,” but that even combatants engaged in such activity were also considered hors de combat.

  12. Response…
    On another point, our Internatonal Criminal Law casebook notes that the ICC “knowledge” standard, which, yes, is different than intent (especially when courts use a knew or was aware approach — see also the ICC stat. art. 30(2)-(3) re: “knowledge” and even “intent”) is actually a higher threshold with respect to criminal responsibility than that under customary international law, which can involve a wanton / reckless disregard lower type of threshold.

  13. Sorry but that’s precisely the issue here. When Chesney asserts that “it would certainly be possible to lawfully target a member of an OAG who has a CCF, even if at that very moment the person happens to be […] attempting to rescue someone from a collapsed building“, it raises the issue Jennifer raised. In IACs, Article 25 GC I states that “Members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands.” This personnel “shall wear, but only while carrying out medical duties, a white armlet bearing in its centre the distinctive sign in miniature; the armlet shall be issued and stamped by the military authority” (Article 41 GC I). Since the ratio for the continuous combat function is to assimilate member of organized armed groups to combattants as regards the rules on the conduct of hostilities, one can wonder if similar rules should not be applied in NIACs…

    But Chesney’s assertion still begs the question if the continuous combat function is the right interpretation of IHL. For now the ICC applies the revolving door doctrine (The Prosecutor v. Callixte Mbarushimana, Pre-Trial Chamber I, Decision of 16 December 2011, § 148). Under the revolving door approach, it seems obvious that civilians “attempting to rescue someone from a collapsed building” are not directly participating in hostilities. Targetting them would thus be a violation of the principle of distinction.

    The question of criminal responsibility is a distinct one as the conditions for personal responsibility under article 8 ICC Statute are different than those for the proportionality of an attack under IHL (namely in Article 51 § 5 b) and Article 57 § 2 a) iii) AP I). There is no such intention (or mens rea, as you call it) requirement under IHL because violations of IHL rules implies primarily the state’s international responsibility. And the standard is under Article 8 of the Rome Statute “clearly excessive” and not “excessive” as in AP I.

  14. I think you should look again at the GC I, Article 41, “shall wear, but only while carrying out medical duties, a white armlet”
    The problem, of course, being that most non-US combatants do not wear “a fixed distinctive sign recognizable at a distance” (GC III Art 4.1.2).  So great latitude should be allowed in determining who is a combatant.  To do otherwise creates incentives for combatants to hide among civilians, thereby creating unnecessary injuries and deaths in the civilian populace.
    As an example, four US marines are on a patrol.  One is hit by sniper fire.  It is long recognized that the remaining marines are legitimate targets of the sniper while evacuating the injured or dead soldier.  Likewise if they get on the radio and call in another squad of marines to help out, the new marines are targets.  The only exception occurs if members of either the original or new unit are medical personnel who wear “the protective sign.” (GC I Art 12)  So, the unanswered question is whether the persons responding to the drone strike were wearing “the protective sign,” otherwise the military is allowed to target them under the reasonable assumption that presence on a remote battlefield signals participation in combat.
    Or maybe BIJ should be encouraging the Taliban to adopt “a fixed distinctive sign recognizable at a distance.”  That would minimize the civilian casualties they cause.  But I understand it is just easier to assume that everyone not “carrying arms openly” is a civilian.
    Further, there is a lack of information on the funerals.  A drone strike would certainly be appropriate if the funeral procession were a convoy of vehicles.  Further, what if you do assume they are on foot, but a group of OAC separate to an area that would otherwise minimize civilian casualties?  Thus why I agree with Mr. Chesney that it is a question of proportionality.
    Assuming “civilians” is just sloppy logic.

  15. Response…
    From 39 Denv. J. Int’l L. & Pol’y 569, 576 (2011):
    When applying principles of reasonable necessity and proportionality with respect to use of drones for targeting, one should consider all relevant features of context. Among appropriate considerations are identification of the target (e.g., as a DPAA, combatant, fighter with a continuous combat function, or DPH as opposed to a non-targetable civilian); the importance of the target; whether equally effective alternative methods of targeting or capture exist; the presence, proximity, and number of civilians who are not targetable; whether some civilians are voluntary or coerced human shields; the precision in targeting that can obtain; and foreseeable consequences with respect to civilian death, injury, or suffering. As a legal expert with the ICRC avers, part of a nuanced contextual inquiry should involve consideration of “the actual level of control exercised over the situation by the operating State” and an appropriate consideration of “required intensity or urgency may” actually involve “a generous standard of ‘reasonableness’ in traditional battlefield confrontations.”

  16. I agree with unknown’s comment and the gist of Bobby’s argument (though I might quibble with particulars regarding the battlefield status of various rescuers/mourners).  If the target or object of an attack is a fighter/combatant, collateral civilian deaths are a proportionality question.  I do not believe Kevin is correct that Article 30 of the Rome Statute yields a different result.  The relevant crime is defined, in Article 8(2)(e)(i), as “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.” (emphasis added)  Article 51(2) of the first protocol is virtually identical, “The civilian population as such, as well as individual civilians, shall not be the object of attack.” If the target or object of an attack is a not the civilian population or individual civilians, but harm to the civilian population or individual civilians is anticipated or even certain, there is no necessary violation of the principle of distinction.  The emphasis on the precise object of the attack makes this a specific intent crime that cannot be converted to a general intent crime by the application of Article 30 (or by the ICTY).  And so long as the object of an attack is proper and the distinction or proportionality principles are not violated by use of an indiscriminate (as to object or effect) weapon, there can be no indiscriminate attack under Article 51(4) of the first protocol.  One should also consider a closely related concept (about the presence of civilians not immunizing military objectives) in Article 51(7).

  17. Perhaps I should add that Kevin’s argument conflates intentionally attacking civilians with an indiscriminate attack.  The former requires specific intent.  The latter does not in every circumstance.  What Kevin’s argument really boils down to is a claim that a drone-based hellfire missile is inherently indiscriminate as to object: that it attacks “groups of people” not a person.  There is (or used to be) video on youtube that disputes this.  A hellfire can be used to target an individual with disturbingly (and I mean that) messy results.  

    But a hellfire is not the same as a dumb bomb or artillery barrage, classic “area attacks” with “area weapons.”  The fact that its burst radius will distribute its effects to civilians in close proximity does not mean that it, in the words of Article 51(4)(b), employs “a method or means of combat which cannot be directed at a specific military objective.”  And, if it can be used in a way that satisfies the proportionality principle (as it can), it is also not inherently indiscriminate as to effect, meaning it is not an attack “which employ[s] a method or means of combat the effects of which cannot be limited as required by this Protocol.” (Art. 51(4)(c))  
    So at bottom, it is only if a drone is used to intentionally attack a civilian population “as such” or “individual civilians” — both requiring that very specific intent — that it can be said to constitute the war crime of intentional attacking civilians.

  18. John, unfortunately, doesn’t understand the Rome Statute, improperly reading into Article 30 the common-law definition of intent. The drafters of the Rome Statute would be very surprised to learn that “meaning to engage in conduct,” the definition of intent in relation to conduct in Article 30, requires “specific intent.”  It doesn’t, as van der Vyver has explained. And, of course, John completely fails to explain how the qualification of an attacked population as civilian can be anything other than a circumstance element, which is satisfied — again by the plain language of Article 30 — by awareness that the circumstance exists. The bottom line: if you intentionally (i.e., voluntarily) direct an attack at a group of people while being aware that the group qualifies as a civilian population, you have intentionally directed an attack at a civilian population. You don’t have to say to yourself, “gosh it would be fun to attack a civilian population today.”

  19. John is also wrong, it’s worth noting, if we view (as I wouldn’t) the civilian aspect of an attack on a civilian population as a consequence element.  According to Article 30, a perpetrator “intends” to bring about a consequence not only when he means to cause it, but also when he is aware that it will occur in the ordinary course of events.

  20. The ICC has, in fact, specifically rejected John’s interpretation of Article 30.  See the Lubanga confirmation of charges decision at paras. 350-353.

  21. Finally, just for good measure, John is even wrong about AP I.  The Commentary defines “wilfully” — AP I’s equivalent of “intentionally” — as follows:

    [T]he accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them (‘criminal intent’ or ‘malice aforethought’); this encompasses the concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences (although failing to take the necessary precautions, particularly failing to seek precise information, constitutes culpable negligence punishable at least by disciplinary sanctions).

  22. Kevin did not take the time to understand my argument.  I don’t misunderstand Article 30 at all.  I simply don’t believe that its definitions of intent can change the very nature of a crime (hence the comment that it can’t covert the intent element).  The character of the intended object of an attack is neither a circumstance nor a consequence element, it is a mens rea requirement.  One cannot have a general intent to intentionally direct an attack against the civilian population “as such,” although that intent can and must be inferred from the circumstance of a large concentration of civilians.  Kevin can cite general definitions of intent all he wants.  What he fails to do is accurately address the very elements of the crime.

    The elements of crimes for intentionally attacking civilians twice emphasize the specific intent nature of the crime:

    1. The perpetrator directed an attack.
    2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.
    3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.
    4. The conduct took place in the context of and was associated with an armed conflict not of an international character.
    5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

    While the second element might be viewed as a circumstance, the third cannot be.  It requires specific intent.

  23. The character of the intended object of an attack is neither a circumstance nor a consequence element, it is a mens rea requirement.”

    This statement illustrates John’s complete lack of understanding of the Rome Statute.  There are three kinds of material elements: conduct, consequence, and circumstance.  Article 30 provides the default mental element for each of those material elements.  In order to determine the mental element that applies to a particular material element, you have to know what kind of material element it is.  As I have pointed out, the civilian nature of a population is a circumstance element — as John himself admits with his comment about Element 2.  Because the civilian nature of a population is a circumstance element, the mental element is provided by Article 30(3) — “awareness that a circumstance exists” (i.e., knowledge).

    For the third time, “intent” is a term of art.  To say that intent as it is used in Element 3 is “specific intent” has absolutely no basis in the text or drafting history of the Rome Statute.  Indeed, as I noted earlier, the Pre-Trial Chamber specifically held in Lubanga that “intent” for purposes of Article 30 encompasses not only what common-law scholars call “purpose,” but what they call “knowledge,” as well — a definition that is completely consistent with the civil-law definition of intent, which says that an individual acts intentionally when he knows that a consequence or a circumstance is virtually certain, but accepts that fact and acts anyway.

  24. “I don’t misunderstand Article 30 at all.  I simply don’t believe that its definitions of intent can change the very nature of a crime (hence the comment that it can’t covert the intent element).”

    The true absurdity of claiming that the “very nature” of the war crime of intentionally attacking a civilian population requires “specific intent” is demonstrated by Blaskic, in which the ICTY held that the war crime requires only recklessness — an even lower mens rea than the one (correctly understood) applied by the ICC.

    Apparently John is referring to the Platonic form of the war crime — one that exists apart from the international tribunals that actually prosecute it.

  25. Sorry, Kevin, the text of the treaty law (thought to reflect general custom applicable in all armed conflict) is pretty clear and implemented in the language of the Rome Statute’s elements of crimes.  You have yet to explain how this element: “The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack” is not a requirement for specific intent regarding the character of the intended object of an attack.  Arguing generalities doesn’t address it and I am not going to engage you in such diversions.  Again recklessness and knowledge of a circumstance only supports an inference regarding this intent, or that an attack was indiscriminate.

    Additionally, you have pretty heavily criticized the ICTY when it fits with your preferred understanding of the law.  So it is a bit hypocritical for you to attempt to chide me for firmly believing that the relevant substantive international law is different than what some tribunals have interpreted it to be. 

  26. For the record, readers, after a quick check I am not so sure Blaskic says what Kevin asserts, though I admit the time I have available for keeping up with the ICTY is limited. 

    The Blaskic appeals chamber decision deals with the mens rea requirement for participation in a widespread and systemic attack against civilians as a crime against humanity.  It concludes, “In relation to the mens rea applicable to crimes against humanity, the Appeals Chamber reiterates its case law pursuant to which knowledge on the part of the accused that there is an attack
    on the civilian population, as well as knowledge that his act is part thereof, is required.”  (The trial chamber had concluded, erroneously in the view of the appeals chamber, that recklessness with regard to whether the accused’s acts were part of an attack on the civilian population was sufficient.)  This has nothing at all to say about the requirement that the civilian population be the specifically intended object of the widespread and systemic attack, which can easily be inferred in the crime against humanity context by a dearth of military objectives.  It may be that Kevin is conflating a great deal more than the IHL surrounding intentional and indiscriminate attacks.  It seems that he is also conflating the mens rea requirement for participation in an attack against civilians with the intent requirement of the attack itself, as well as war crimes and crimes against humanity.

    The context of this entire discussion and the sole focus of my comments above is about the IHL prohibition and war crime of intentionally attacking the civilian population or individual civilians.  I submit, though, that even the crime against humanity requires that the attack be intentionally directed against the civilian population “as such,” and that to satisfy this element, awareness of the presence of civilians in the vicinity of a military objective does not in itself establish the requisite intent.  Again, see 51(7) of the first protocol.

  27. Response…
    I have tried twice to respond, but …not posted

  28. Response…
    I agree with Kevin re: art. 30 — on another matter
    With respect to my disagreement with Bobby’s statement about DPH targetings being “routinely … problematic,” I might have misunderstood what he intended to convey. If he meant that with respect to all of the DPH targetings that have occurred over the last many years they have been “routinely … problematic,” I meant to disagree with such and now note that actually we do not have adequate public evidence whether or not the majority of DPH targetings were targetings of persons who were not engaged in DPHing at the actual time of killing. I assume, for example, from Harold Koh’s general remarks about strictures followed, that most were DPHing at the time. At least we do not have public evidence that they routinely were not.
    And then there are choice points regarding when a person is DPHing and when the person who was has actually returned to not taking a direct part in hostilities.
    I prefer to use a movie camera and not a snapshot in answering such a question (and the question is different than the ICRC change of status re: continuous combat function, at least potentially in part). For example, what if a civilian al Qaeda person engages in shooting a U.S. soldiers in Afghanistan, but takes a 3-hour break for dinner. Is the person not a DPH while eating dinner?
    And what if the person engages in shooting, but runs across the border into Pakistan (an expanded theatre of war) in order to sleep for 8-hours. Is the person no longer a DPH while sleeping for 8 hours? A snapshot while the person is sleeping might miss the fact that the person often shoots, then takes an 8-hour sleep across the border, and wakes up to shoot again – which the movie camera will pick up.

  29. It’s kind of surreal to discuss whether we have a Protocol I violation when both states involved (Pakistan and the US) have rejected Protocol I.  It is extremely unlikely the US will ever ratify Protocol I.
    As for proportionality, it’s a legal principle that exists only in theory, and is quite unsupported by the historical record.  Countries comply with it only in the sense that whatever they do is “proportional” in their eyes.

  30. Shorter John Dehn: intent doesn’t mean what Article 30 and Lubanga says it means; it means what I say it means, because that would be better.

    For the fourth time: “intent” is limited to purpose (in the MPC sense) only in American criminal law.  In the civil-law, “intent” embraces mental states that equate to “knowledge” in the common law.  So one acts “intentionally” under the civil-law in situations where one only acts “knowingly” under the common law.  (And note that British criminal law also treats acting despite knowing that a consequence is a virtual certainty as acting intentionally, what it calls “oblique intent.”)  Article 30 and the Rome Statute reflect the civil-law approach to intent, both definitionally and in the jurisprudence of the Court.  That may be regrettable; indeed, as a common-law lawyer, I think it is.  But it’s still a simple fact.

    John’s argument — “it says intention! That means intent!” — is Exhibit 1 in the need for common-law lawyers to study law from a comparative perspective.

  31. M. Gross.  Proportionality is necessarily a bit in the eye of the beholder given the inherent subjectivity of “military advantage” and “excessive” collateral damage that arises from the quality of information upon which one might reasonably rely in combat.  Violations can really only be enforced at the extremes.  The reason we discuss these aspects of Protocol I is that while the U.S. has signed but never ratified it, it has typically admitted that it mostly reflects customary law applicable in all armed conflict.

    Kevin, your arrogant condescension is only a reflection on you, not me, as are your exceptionally loose citations to international tribunal decisions. I wouldn’t engage you at all on this issue but for the fact that you are misleading OJ readers…and I realize how many students and practitioners actually read it.  And, by the way, I understand the civil law concept of intent quite well, thank you.  I simply do not believe it is adopted or reflected in this very specific instance.  

    Please — instead of a polemic or a general argument about the concepts of intent embraced in Article 30 — explain your understanding of intentionally attacking the civilian population as such in relation to the relevant Articles 51 & 57 of Protocol I that I have cited, and to the text of the relevant crime in the Rome Statute and its elements of crimes.  You have yet to do so.  But please tell us how you believe Article 30 of the Rome Statute informs a proper understanding of “The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack” (multiple levels of emphasis added in case it is helpful).  If the phrase “as such” were not present, you might have a fair argument (only under the Rome Statute).  But the phrase is there, and it is there for a reason.  It further clarifies the requisite mens rea for this particular crime.  And for the record, there were a few common law countries and other non-civil law countries at the negotiating table when Protocol I and the crimes in ICC Statute (and their elements) were drafted and adopted.

    “Intent” is absolutely a term of art.  Those of us who have practiced criminal law (on the prosecution side) for more than a year or two (including cases involving international law violations), and who have studied comparative criminal law at a pretty decent law school, well understand that.  But we also understand that the requisite mens rea is not the same for every crime.  Differences sometimes only inform the severity of a crime.  But in some cases they actually delimit the circumstances under which an act is wrongful. This is one of those latter cases. 

    The first three words of Article 30 of the ICC Statute, by the way, are “unless otherwise provided.”  Article 30 itself allows for the mens rea of a given crime to be defined differently, as it has been in this case by Article 8(2)(e)(i) of the Rome Statute and its elements of crimes, both of which seem to accurately reflect the specific IHL underlying them for the reason I have given above.  

    Your citation to Lubanga to support your position is truly absurd.  As Thomas Weigand explained the Pre-Trial Chamber’s (PTC) Lubanga decision, “The PTC [assumed] what it should have demonstrated (or at least argued): that the Elements [of Crimes] can, without further ado, provide for exceptions from the standards laid down in [Article 30 of] the Statute, and that the Court will treat such exceptions as valid without even engaging in an examination of their basis in customary international law. This is a far-reaching step that should have been accompanied by at least a modicum of explanation.”)  

    I have here argued that both the text and elements of the relevant crime provide for an exception to Article 30’s general concept of intent, and that this exception is also supported by the relevant customary law.  You have not yet fairly addressed these points.    

    Your arguments boil down to this: Article 30 applies to every war crime in spite of the text of Article 30, in spite of the conclusions and reasoning of the decision that I cite as supporting my belief, and regardless of whether the mens rea concepts of Article 30 are reflected in the text or elements of the crime defined by the Rome Stute…or the substance of the international law underlying that crime.

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