This book unveils gaps, inconsistencies, and barriers to accountability emerging from the intersections between IHL and ICL in the definition and treatment of indiscriminate and disproportionate attacks as jus in bello violations.
The book identifies and explains the unresolved legal problems surrounding the prevention and control of indiscriminate and disproportionate attacks as international war crimes, and critically unpacks the macroscopic implications of these problems for international adjudications. It goes on to address the challenges posed by these attacks as key causes of civilian victimization in war.
The author demonstrates that the Rome Statute of the ICC, legibus sic stantibus, does not allow to prosecute and punish the most recurring forms of indiscriminate and disproportionate attacks, crucially impairing the ability of this institution to pursue the objectives declared by its founding treaty. It concludes by offering two amendment proposals for the Rome Statute to bridge the gaps and overcome the antinomies identified.
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A critical analysis of the under-explored incoherences of international war crimes law in relation to the prevention and control of indiscriminate and disproportionate attacks.
Background: Inequality as Continuity between War and Law.
1. Civilian Victimization in Armed Conflicts, in History and Theory.
Introduction
1.1 International Humanitarian Law as koinè, and its dark sides.
1.2 Civilians in the Interstate Warfare of the Jus Publicum Europaeum.
1.3 Civilian Resistance at the origins of the Civilians/Combatants legal
dichotomy.
1.4 Civilians at War, the Partisan, and the Problem of Guerrilla Warfare.
1.5 Civilian Victimization in Contemporary Wars, an Aetiological Enquiry: Why
Liberal Democracies Strike Non-combatants?
2. Indiscriminate and Disproportionate Attacks in International Humanitarian
Law
2.1. The Fundamental IHL Prescriptions Governing Targeting Decisions, between
Military Necessity and Humanity.
2.1.1 Distinction
2.1.2 Proportionality
2.1.3 Precautions.
2.2 The IHL Prohibitions of Indiscriminate and Disproportionate Attacks under
Additional Protocol I.
2.3 Interplay of the Targeting Principles: in Search of Systematic Coherence
2.4 Reframing the Distinction-Proportionality Nexus.
2.4.1 Incidentality of the Civilian Harm as Systematic Cornerstone of the Law
of Targeting.
2.4.1.1 Incidentality Between Distinction and Proportionality
2.4.1.2 Incidentality and Precautions.
2.4.1.3 A Serious Misconception: Balancing Incidentality with Military
Advantage.
2.4.1.4 Multi-component Objects, Pars Pro Toto Determinations of Military
Objectives and the Synecdoches Capsizing Incidentality.
2.5 Recentralizing Incidentality of the Civilian Harm as Conditio Sine Qua
Non for Proportionality Assessments.
2.6 The Interpretative Auxilium of Mens Rea categories: Incidentality as
Threefold Dividing Line Between Distinction and Proportionality.
3. Indiscriminate and Disproportionate Attacks at the Origins of
International Criminal Law: From Nuremberg to the ICTY
3.1 Indiscriminate Warfare at the Origins of International Criminal Law.
3.1.1 The Axis Indiscriminate, Total War: War crimes In Nuremberg
3.1.2 Hiroshima, Nagasaki, and the Einsatzgruppen Case: at the Origins of
Double Standards.
3.1.3 Kelsens Privilegium Odiosum, and Radrbuchs Verleugnungsformel:
Equality, The Core of Justice
3.2 The ICTY Jurisprudence About Indiscriminate and Disproportionate Attacks
as War Crimes.
3.2.1 Overcoming the IACs / NIACs dichotomy.
3.2.2 Indiscriminate and Disproportionate Attacks as Conduct Indicating the
Intent of the Crime of Terror.
3.2.3 Indiscriminate and Disproportionate Attacks as Conduct Indicating the
Intent of Direct Attacks on Civilians.
3.3 Critical Knots of the ICTY Jurisprudence.
3.3.1 In Search of Objective Parameters Indicating the Indiscriminate
Character of Attacks: the Circular Error Probable.
3.3.2 The Gotovina Case Scandal: End of Indiscriminate Attacks?
3.3.3. Indiscriminate and Disproportionate Attacks as Reckless Attacks on
Civilians, and the Fragility of Case-by-Case Inferences: Back to Victors
Justice?
4. Indiscriminate and Disproportionate attacks in Contemporary War Crimes
Law: Born to be Blunt?
4.1 Indiscriminate and Disproportionate Attacks as Turning Points for the ICC
at Thirty: Two Alternative Futures for the Court, and the World.
4.2 Indiscriminate and Disproportionate Attacks in the Rome Statute of the
ICC: in Search of Lost Enforcement.
4.2.1 The War Crimes Regime of the Rome Statute: Structure of Article 8 and
Common Elements.
4.2.2 The Elements of the Crimes of Direct Attacks on Civilians and Civilian
Objects
4.2.3 Indiscriminate Attacks as Direct Attacks on Civilians and Civilian
Objects? The ICC Jurisprudence.
4.2.4. The Contradictory Elements of the Crime of (Clearly) Disproportionate
Attacks: Perpetrators as Judges in Their Own Cause?
4.2.5 Old Challenges and New Possibilities: Toward the First ICC Adjudication
of Disproportionate Attacks.
4.3 An Unduly Expanded Legal Shield for the Military?
4.3.1 The attack against the Kunduz Medicine Sans Frontiere Hospital: the
Problem of Recklessness.
4.3.2 Western Loopholes for Russian Crimes? Indiscriminate and
Disproportionate Attacks in the War Against Ukraine.
4.3.3 Gaza 2023-24: a Genocide by Means of Indiscriminate and
Disproportionate Attacks?
4.3.3.1 Pre-justifying indiscriminate and disproportionate attacks: entire
populations of human shields.
4.3.3.2 Indiscriminate and disproportionate attacks nipped in the bud: every
house a military objective.
4.3.3.3 Rewriting IHL proportionality to accommodate the destruction of
victim groups as collateral.
4.4 Cassese's Prognosis Confirmed, and the Normalization of Indiscriminate
andDisproportionate Attacks
5. Bridging the Accountability Gap: Delivering Justice for Indiscriminate and
Disproportionate Attacks.
5.1 Jurisprudential Avenues for Ensuring Accountability, Lex Lata.
5.1.1. Indiscriminate attacks as direct attacks on civilians: the missing
piece of the puzzle.
5.1.2. A long-overdue step forward: applicability of the oblique intent mens
rea standard.
5.1.3 The war crime of disproportionate attacks: achieving harmonization with
IHL proprotionality.
5.1.3.1 Distinguishing disproportionate and indiscriminate attacks under war
crimes law: incidentality of the civilian harm.
5.1.3.2 Indirect intent against the monarchy of the military commander.
5.2 The Limits of Interpretative Solutions: Racialized Hierarchies of
Civilian Protection and Racialized Hierarchies of War Crimes Law
Enforcement.
5.3 An Agenda for the Assembly of the State Parties to the Rome Statute: Lex
Ferenda Avenues for Restoring Accountability.
5.3.1 Toward a new war crime offence of indiscriminate attacks
5.3.2 Amending the war crime of disproportionate attacks
5.3.3 Roxin on the future roles of criminal sciences.
Luigi Daniele is Senior Lecturer in Law at Nottingham Law School, UK.
