26 Oct Motive Matters: The Meaning of Attack Under IHL & the Rome Statute
[Chris Jenks is the Director of the Criminal Clinic and Associate Professor of Law at SMU Deadman School of Law.]
How is ‘attack’ defined under international humanitarian law (IHL), particularly in the context of cultural property and hospitals? Opinio Juris readers will likely have already answered the first part of the question by referring to Article 49 of Additional Protocol I (AP I) to the 1949 Geneva Conventions, which says “attacks means acts of violence against the adversary, whether in offence or defence.” But does that answer change in the context of cultural property and hospitals? That question was one of several the Appeals Chamber (AC) of the International Criminal Court (ICC) in Prosecutor v Ntaganda is considering and recently invited amici curiae to address.
Last month, I, along with Dick Jackson and Professors Geoff Corn, Eric Talbot Jensen, and Jim Schoettler responded to the AC’s invitation to submit written observations on the definition of attack as well as the Court’s other questions:
- What are the differences between the concepts of ‘attack’, ‘conduct of hostilities’ and ‘combat action’?
- What is the difference between ‘attack’ and ‘act of hostility’?
- What does the term ‘attack’ mean in
article 8(2)(e)(iv) of the Rome Statute (Statute)?
- Does it cover acts such as pillaging and destruction?
Following that written submission, earlier this month, Geoff Corn and I, along with several other amici curiae, had the opportunity to virtually address the AC. As amici, our views were not aligned with either the Prosecution or the Defense. Our interest was and is in preserving an understanding of attack within Article 8 of the Statute that is consistent with IHL, military manuals and practice, and operational experience.
In 2002, Bosco Ntaganda was the Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the military wing of the Union of Congolese Patriots (UPC). Both the FPLC/UPC were involved in several armed conflicts in eastern Democratic Republic of the Congo (DRC), at least one of which was against members of the Lendu, a label for two ethnic subgroups in eastern DRC.
On November 20, 2002, Ntaganda commanded FPLC/UPC forces in attacking the town of Mongbwalu. In the immediate aftermath of the takeover of the town, members of the FPLC/UPC conducted a ratissage operation (search and sweep or a “mopping up” operation) during which they committed widespread crimes against civilians and looted medical equipment from the Mongbwalu hospital (hospital). Approximately four days later, Ntaganda oversaw the assault of the town of Sayo, roughly 6 km away from Mongbwalu. In the aftermath of that assault UPC/FPLC fighters set up a base inside a church in Sayo (church). In 2006, a Pre-Trial Chamber of the ICC issued a warrant for Ntaganda’s arrest on war crimes charges. In 2013, Ntaganda surrendered to the U.S. embassy in Rwanda, following which he was transported to The Hague to stand trial.
On July 8, 2019, Trial Chamber IV (TC IV) found Ntaganda guilty of 18 counts of crimes against humanity and war crimes stemming from his (and that of the UPC and FLPC) involvement in two operations to attack and expel persons of Lendu ethnicity from parts of Ituri. TC IV also acquitted Ntaganda of charges that he intentionally directed two attacks against protected objects in violation of Article 8(2)(e)(iv) of the Rome Statute, one, the hospital, the other the church,
Regarding the hospital, TC IV found that several days after the UPC/FPLC took over the town of Mongbwalu, UPC/FPLC members looted medical equipment (medical equipment and medication) from the hospital. TC IV quoted from Article 8(2)(e)(iv) and recited the understanding of attacks as “an act of violence against the adversary, whether in offense of defence.” TC IV then stressed that “[a]s with the war crime of attacking civilians, the crime of attacking projected objects belongs to the category of offenses committed during the actual conduct of hostilities.”
TC IV found that the pillaging of medical supplies from hospital was not “an act of violence against the adversary” and thus did not constitute an attack under Article 8(2)(e)(iv). Ultimately, TC IV determined that Ntaganda was an indirect (but not direct) perpetrator of appropriated (pillaged/looted) medical equipment.
In the aftermath of the assault on Mongbwalu, the UPC/FPLC continued looting and killing in Sayo. “Some time” after the UPC/FPLC assault of Sayo, they set up a base inside the church; broke down the doors of the church; removed furniture; started cooking fires inside the church and dug trenches around the church
TC IV found that because the actions against the church took place after the assault they were not during the actual conduct of hostilities. As a result the Court found the first element of Article 8(2)(e)(iv) (the perpetrator directed an attack) was not met. TC IV was unable to make any findings on “looting” of the church.
On October 7, 2019, the OTP filed an appeal alleging that TC IV erred in its analysis of Ntaganda’s responsibility for intentionally directing attacks the hospital and church. The OTP acknowledged that although those two incidents “may seem relatively minor given the gravity and variety of conduct for which Mr. Ntaganda was otherwise found guilty, they illustrate important matters of legal principle. As such, confirming and clarifying the law on those points will not only be of general importance for the practice of this Court, but will continue to the better protection of the victims of armed conflict around the world.”
Throughout its brief, the OTP refers to the church as a “cultural object” and notes that cultural objects and hospitals receive special protection under IHL. In a footnote to para. 4, the OTP acknowledges that “protected objects,” the language in Article 8(2)(e)(iv), is a broader than the concept of “cultural property” and “cultural heritage” under the 1954 Hague Convention or the World Heritage Convention. For perspective on the significance of protected objects being a broader concept than cultural property, OTP refers to the 1954 Hague understanding of cultural property in para. 41. OTP acknowledges that it is “for States Parties themselves to define the objects they consider to constitute their cultural heritage. This may be ‘tens of thousands of immovables and millions of movables each state.” Presumably, if protected objects is a broader concept than cultural property, then there are more than tens of thousands of immovable protected objects and more than millions (plural) of movable protected objects in each state, at least for the purposes of Article 8(2)(e)(iv).
The word attack appears in multiple places in Article 8 without qualification or clarification in either the Statute or the Elements of Crimes. In its appellate brief, OTP argued that the meaning of the word attack in Article 8(2)(e)(iv) has a special meaning. According to OTP, for the purposes of Article 8(2)(e)(iv), an attack “need not occur in the conduct of hostilities and therefore need not be carried out against the adverse party, it may be defined as an act of violence.” Using this understanding of attack, OTP contends that both the hospital and church were attacked. In terms of the hospital, looting medical supplies impaired the hospital’s ability to function according to its dedicated purpose constituting an act of violence, and thus an attack. In terms of the church, the actions taken (breaking the doors for example) were acts of violence, and thus an attack.
On July 24, 2020, the Appeals Chamber invited first expressions of interest and later written observations on the questions listed at the start of this post. Our written observations began by discussing the relationship between acts of hostility and attack. Acts of hostility refers to belligerent actions and have a broader scope than attacks. As a result, while all attacks are acts of hostility, not all acts of hostility are attacks.
In the context of targeting, an act of hostility that qualifies as an “attack” triggers the application of IHL to targeting. Other acts of hostility involving destruction of property on land in an armed conflict trigger the application of different IHL rules, but are not attacks. For example, article 23(g) of the Hague Regulations and its corollary customary rule prohibit the destruction of enemy property unless the act is imperatively demanded by the necessities of war.
The IHL governing attacks is distinct from that applicable to the destruction or seizure of enemy property. Similarly, the Statute distinguishes between crimes involving attack and crimes involving seizure and/or destruction of property.
As a threshold matter, we stressed that acts of violence directed at persons or objects under the dominion and control of a belligerent, to include persons who are hors de combat, do not qualify as attacks. Here the notion of control as it relates to the assessment of what qualifies as an attack is distinct from other uses of that term in IHL and ICL.
We proposed two necessary but not sufficient components of an attack which, taken together, distinguish “attacks” from other destructive actions. First, an attack must involve an act reasonably expected to produce physical injury or damage to person(s) or object(s). Second, the motivation for executing the act must be to cause harm to the adversary or other persons or objects in the conduct of hostilities.
The motive element is critical when distinguishing between “attacks” and other harmful acts. Violent acts directed at harming the adversary (including the civilian population and civilian objects) through physical injury or destruction are “attacks” within the meaning of IHL. Without this motive, the act is not an attack. Consider, for example, maneuver damage to roads and fields; destruction of military equipment to prevent capture by the enemy; or altering buildings to enhance tactical advantage. These military practices, although destructive and sometimes occurring in preparation for attacks, are not treated as attacks.
Our written observations suggested to the Court that an interpretation of IHL that categorizes every act of violence resulting in damage, destruction or loss or property as an attack – therefore triggering the application of targeting rules – is inconsistent with IHL and would undermine that law’s practical application to military operations.
(For those wondering what an ICC hearing looks like during the pandemic I took a screen capture during Geoff’s presentation. I have no idea why I am orange or why Geoff has a piano behind him.)
For our presentation, Geoff spoke first and reiterated our contention that while all attacks are acts of hostility, not all acts of hostility are attacks. Geoff emphasized the threshold point that acts of violence directed at persons or objects in the hands or dominion of a belligerent are not attacks but are subject to other IHL rules. He spent the bulk of his time articulating and explaining the two essential components of attack discussed above.
For my part, I discussed why, in terms of war crimes offenses under Article 8 of the Statute, the definition of attack is the same throughout that Article as under IHL. Indeed, the term attack is only properly understood when considered through its traditional IHL or jus in bello origins. Importantly, interpreting the meaning of attack for the purpose of Article 8 war crimes offenses is not properly informed by reference to jus ad bellum or crimes against humanity or through novel interpretations of terms which were not included in that article.
I suggested to the Appeals Chamber that under Article 21 (Applicable Law) of the Statute, the starting point of their analysis was, “in the first place,” the Statute and the Elements of Crimes. The word attack is identically listed, without qualification, in multiple offenses enumerated in Article 8. This supports only one rational inference: the word attack is understood in the same manner throughout Article 8.
The consistent understanding of attack throughout Article 8 is further evidenced by reference to the Elements for Article 7, crimes against humanity, which may occur in peacetime. Because attack is understood as an act of violence against an adversary during the conduct of hostilities, the drafters of the Statute clarified in the elements of crime that attack under Article 7 has a different meaning. This is why the meaning of attack for war crimes under Article 8 is not properly understood by referring to crimes against humanity under Article 7.
As I highlighted to the AC, there is not a comparable qualification or clarification of the word “attack” anywhere within Article 8. Again, that’s because attack has the same understanding throughout that article.
I then transitioned to how the proposed substantive components of “attack” might aid the Court in appropriately differentiating the crime of attacking protected objects from other offenses under the Statute involving pillage and destruction.
The commission of some war crimes, including attacking protected objects, requires, in the first element, that the perpetrator direct an attack. The commission of other war crimes, including pillaging and destroying or seizing the enemy’s property, does not depend on the existence of an attack and the elements of crime for those offenses do not mention attack.
This is not surprising. Pillage is a different concept factually and legally from that of attack. In terms of destroying enemy property, the legal rules governing unlawful destruction of property are different than those applicable to attacks, including in respect to the motive for the act.
If all acts of hostility were intended to qualify as attacks under Article 8, it seems illogical that state parties would have specifically enumerated other offenses (pillage, destroying enemy property) resulting from such acts. These other offenses not only align with the traditional understanding of IHL, but confirm that the term attack as used in Article 8 has the meaning we ascribe to it.
This conclusion is reinforced by considering that the third element of the crime of attacking protected objects makes reference to military objectives. “Military objective” refers to the AP I Article 52(2) test for determining what may be made the lawful object of attack. Article 52(2) is obviously only three articles after the article in which AP I lists the normal understanding of the word attack. Clearly Article 52(2) refers to attack as defined in Article 49. In terms of the war crime of attacking protected objects, it is hard to envision the drafters intended an abnormal meaning of attack, did not manifest that intent with a single word as was done in Article 7, but still referred in the Elements of Crimes to “military objectives” – a term clearly linked to the normal understanding of attack.
Ultimately, the treatment of a combat action as an attack depends on the action taken, not on the object selected, and there is no special meaning to the term attack in the context of protected objects.
The elements of crime for the offense of attacking protected objects could contain a qualification if a different understanding of attack was intended. It does not. Similarly, the offense itself could contain different, broader terms, than attack. But it does not.
In the end, and as we said to the AC during the hearing, an expanded definition of attack will attenuate the meaning of the term in Article 8 of the Rome Statute from the pragmatic and longstanding view of IHL as reflected in state practice, IHL treaties, military manuals, and operational experience. This would ultimately have the negative effect of diluting the regulatory clarity of the law.