Unlawful attacks, namely, attacks against civilian population and civilian objects and disproportionate attacks, have characterized recent and on-going armed conflicts around the world, including those taking place in the Middle East and Africa. International humanitarian law prohibits them. However, their prosecution is difficult as the case-law of the International Criminal Tribunal for the Former Yugoslavia evidences. In applying its Statute, the Elements of Crimes text and emerging practice, the International Criminal Court is expected to face similar challenges in ongoing and future cases. Underlying questions are why the prosecution of unlawful attacks before international criminal tribunals is challenging and how to handle it. Two reasons arguably explain this. First, there are problems relating to notions such as “civilian,” “civilian object” and “proportionality”. Second, there are practical problems including access to evidence, selection of modes of criminal liability, and prosecutorial discretion. How the International Criminal Tribunal for the Former Yugoslavia has handled this and how the International Criminal Court may proceed are examined.
The article is available here.