8/12/2019 Prosecution - Count 3 - Summary of Concepts and Principles

1/3

Summary of Concepts and Principles

Prosecution - Count 3

Acts of Violence/Violence - The intentional use of physical force or power, threatened or

actual, against oneself, another person, or against a group or community, that either results in or has

a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation.1

Armed Attack - In the context of the Jus ad Bellum The Law to War (which governswhen a State may resort to force as an instrument of its national policy) it serves as a condition

precedent to the resort to force in self-defence pursuant to Article 51 of the UN Charter and cus-

tomary international law.2

Armed Conflict - an armed conflict exists whenever there is a resort to armed force be-

tween States.3

Attack- as defined by Article 49 of Additional Protocol I4, is an act against an adversary,

whether in offence or in defence.

1World Health Organization, World Report on Violence and Health(Summary), Geneva, 2002,

http://www.who.int/violence_injury_prevention/violence/world_report/en/summary_en.pdf,retrieved: Jan. 24, 2014,

4:23 p.m.

2Michael N. Schmitt, Attackas a Term of Art in International Law: The Cyber Operations Context,

http://www.ccdcoe.org/publications/2012proceedings/5_2_Schmitt_AttackAsATermOfArt.pdf,retrieved: January 23, 2014 4:28 p.m.

3ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on

Jurisdiction, IT-94-1-A, 2 October 1995, para. 70.

4

International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949,

and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3

http://www.who.int/violence_injury_prevention/violence/world_report/en/summary_en.pdfhttp://www.ccdcoe.org/publications/2012proceedings/5_2_Schmitt_AttackAsATermOfArt.pdfhttp://www.ccdcoe.org/publications/2012proceedings/5_2_Schmitt_AttackAsATermOfArt.pdfhttp://www.who.int/violence_injury_prevention/violence/world_report/en/summary_en.pdf

8/12/2019 Prosecution - Count 3 - Summary of Concepts and Principles

2/3

Attack directed against any civilian population- a course of conduct involving the multi-

ple commission of acts referred to in paragraph 1 (Article 7) against any civilian population, pursu-

ant to or in furtherance of a State or organizational policy to commit such attack. 5

Civilian - one not on active duty in the armed services or not on a police or firefighting

force.6

Cyber-Attack- an action taken to undermine the functions of a computer network for a po-

litical or national security purpose.7

Intent- a person has intent where: (a) In relation to conduct, that person means to engage in

the conduct; (b) In relation to a consequence, that person means to cause that consequence or is

aware that it will occur in the ordinary course of events.8

Knowledge- awareness that a circumstance exists or a consequence will occur in the ordi-

nary course of events.9

Mental Element- a person shall be criminally responsible and liable for punishment for a

crime within the jurisdiction of the Court (ICC) only if the material elements are committed with

intent and knowledge.

10

5UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN

No. 92-9227-227-6 [hereinafter Rome Statute], Article 7, par. 2.

6"Civilian." Merriam-Webster.com. Merriam-Webster, n.d. Web. 24 Jan. 2014. .

7Hathaway, Oona, et al. "The Law of Cyber-Attack." California Law Review 100.4 (2012).

8Rome Statute, Article 30.

9

Rome Statute, Article 30.10

Rome Statute, Article 30.

http://www.merriam-webster.com/dictionary/civilianhttp://www.merriam-webster.com/dictionary/civilianhttp://www.merriam-webster.com/dictionary/civilianhttp://www.merriam-webster.com/dictionary/civilian

8/12/2019 Prosecution - Count 3 - Summary of Concepts and Principles

3/3

Principle of Proportionality- all reasonable precautions to avoid civilian deaths must have

been observed before launching an attack for it to be considered proportionate to the anticipated and

expected military objectives.11

War Crimes- (a) Grave breaches of the Geneva Conventions of 12 August 1949 (b) Other

serious violations of the laws and customs applicable in international armed conflict, within the es-

tablished framework of international law (c) In the case of an armed conflict not of an international

character, serious violations of article 3 common to the four Geneva Conventions of 12 August

1949 (d) Other serious violations of the laws and customs applicable in armed conflicts not of an

international character, within the established framework of international law.12

War crime of attacking civilians - Deliberately directing an act, the object of which is a

civilian population or individual civilians not taking direct part in hostilities, such conduct taking

place in the context of an international armed conflict.13

War Crime of Incidental Death, Injury or Damage - The crime is committed when the

perpetrator launches an attack that would cause incidental death or injury to civilians or damage to

civilian objects or widespread, long-term and severe damage to the natural environment and that

such death, injury or damage would be of such an extent as to be clearly excessive in relation to the

concrete and direct overall military advantage anticipated with the knowledge of such effects.14

11Prosecutor v. Stanilav Galic (Trial Judgement and Opinion), IT-98-29-T, International Criminal Tribunal for the

former Yugoslavia (ICTY), 5 December 2003

12Rome Statute, Article 8(2)

13Crimes of War, Summary of Crimes - International Criminal Court,http://www.crimesofwar.org/a-z-guide/summary-

of-crimes-international-criminal-court/#sthash.I9TKP2if.dpuf,retrieved: Jan. 24, 2014, 5:05 p.m.14

Rome Statute

http://www.crimesofwar.org/a-z-guide/summary-of-crimes-international-criminal-court/#sthash.I9TKP2if.dpufhttp://www.crimesofwar.org/a-z-guide/summary-of-crimes-international-criminal-court/#sthash.I9TKP2if.dpufhttp://www.crimesofwar.org/a-z-guide/summary-of-crimes-international-criminal-court/#sthash.I9TKP2if.dpufhttp://www.crimesofwar.org/a-z-guide/summary-of-crimes-international-criminal-court/#sthash.I9TKP2if.dpuf