Armed Conflict not of an International Character

Judgments and decisions of the ICTY throw also some light on the definition of NIAC. As
mentioned above, the ICTY went on to determine the existence of a NIAC "whenever there is [...]
protracted armed violence between governmental authorities and organized armed groups or
between such groups within a State".1 The ICTY thus confirmed that the definition of NIAC in
the sense of common Article 3 encompasses situations where "several factions [confront] each
other without involvement of the government's armed forces".2 Since that first ruling, each
judgment of the ICTY has taken this definition as a starting point.3

Articles 1 and 7 of the Statute of the International Criminal Tribunal for Rwanda extend the
jurisdiction of that tribunal called to enforce, inter alia, the law of non•international armed
conflicts, to the neighboring countries. This confirms that even a conflict spreading across borders
remains a non•international armed conflict. In conclusion, 'internal conflicts are distinguished from
international armed conflicts by the parties involved rather than by the territorial scope of the
conflict.’4

1 ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction, IT-94-1-A, 2 October 1995, para.70.
2 Y. Sandoz/C.Swinarski/B. Zimmermann, Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987, para. 4461.
3 International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, page 4.
4 Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law,
Cambridge: Cambridge University Press, 2002, p. 136.

Directed an Attack on a Civilian Population

Pursuant to the Tribunal’s case-law, the crime of attacks on civilians is, as to the actus reus, an
attack launched against a civilian population that caused deaths and/or serious bodily injury within
that population,1 which, as to the mens rea, must have been conducted “intentionally in the
knowledge, or when it was impossible not to know, that civilians were being targeted ”.2 The
presence of certain non- civilians among the targeted population does not change the character of
that population. It must be of a “predominantly civilian nature”.3 The following attacks are, among
others, prohibited by Article 51: attacks the object of which is “the civilian population as such, as
well as individual civilians”; indiscriminate attacks, such as those which “are of a nature to strike
military objectives and civilians or civilian objects without distinction” and those which “may be
expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or
a combination thereof, which would be excessive in relation to the concrete and direct military
advantage anticipated.”4

Additional Protocol I defines a “civilian” as an individual who is not a member of the armed forces
or therwise a combatant. The Appeals Chamber has emphasized that the fact that an attach for the
purpose of crimes against humanity must be directed against a civilian population, does not mean
that the criminal acts within that attack must be committed against civilians only.5
1 Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgment, 3 March 2000 (hereinafter
“Blaskic Trial Judgment”), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-
95-14/2-T, Judgment, 26 February 2001 (hereinafter “Kordic Trial Judgment”), para. 328 and
Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgment, 5 December 2003 (hereinafter
“Galic Trial Judgment”), para. 62.
2 Blaskic Trial Judgment, para. 180. In the Blaskic and Kordic Trial Judgments an additional
condition is mentioned, that the attack was launched not through military necessity (Ibid.). The
Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I
states in clear language that civilians and the civilian population as such should not be the object
of attack and does not mention any exceptions, in particular that provision does not contemplate
derogating from that rule by invoking military necessity (Ibid., para. 44).
3 Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgment, 7 May 1997 (hereinafter “Tadic Trial
Judgment”), para. 638 and Blaskic Trial Judgment, para. 214.”
4 Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision on Defence Motion Requesting
Judgment Acquittal Pursuant to Rule 98bis (TC), 21 June 2004, para. 50
5 Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-T, Judgment (TC), 30
May 2013, para. 965.

Expanding Bullets

"Bullets which are not completely surrounded by hard casing or which are notched with incisions,
tend to flatten and expand when impacting upon the human body, and cause significantly more
serious injury than would an equivalent standard bullet. The typical type of such a bullet has been
called a "dum-dum" bullet. The provision proscribes employing bullets with the described effect
and equally applies to standard bullets which have been "converted" by combatants on the
battlefield, name;y by piercing them with incisions, as well as to bullets which expand or flatten
in the human body because of the way in which they are manufactured."1

It is prohibited to use bullets that expand or flatten easily in the human body (e.g. dum-dum bullets)
(Declaration Concerning Expanding Bullets of 1899) This also applies to the use of shotguns, since
shot causes similar suffering unjustified from the military point of view. It is also prohibited to use
projectiles of a nature:
-to burst or deform while penetrating the human body;
-to tumble early in the human body; or
-to cause shock waves leading to extensive tissue damage or even lethal shock (Arts. 35, para. 2
and 51, para. 4, lit. c AP I; Art. 23 lit. e Hague Regulations)2

1 M. Cottier, ‘War crimes – para. 2(b)" in Otto Triffterer, ed, Commentary on the Rome Statute of
the International Criminal Court (1999), article 8, marginal note 184
2 Dieter Fleck, ed. "The Handbook of Humanitarian Law in Armed Conflicts" OUP 1999, p. 122