Terror as a War Crime

1
Terror as a War Crime

• The Galic Appeal Judgment from the ICTY

14-18 May 2007 Conference on International
Criminal Justice, Torino
Antoinette Issa Appeals Counsel, ICTY
2
Who was Stanislav Galic?

• Major General in Bosnian Serb Army (VRS)
• Assumed command of the Sarajevo Romanija Corps on
  10 September 1992.
• General Galic was accused of having conducted,
  between September 1992 and August 1994, a
  campaign of sniping and shelling attacks on the
  civilian population of Sarajevo, causing death
  and injury to civilians, with the primary purpose
  of spreading terror among the civilian
  population.

3
Trial Chamber Judgment

• Civilians were deliberately attacked in a
  widespread or systematic campaign
• The campaign against civilians was intended
  primarily to terrorize the civilian population
• General Galic, through his orders, and by other
  means of facilitation and encouragement,
  conducted the campaign of attacks. He did so with
  the primary aim to spread terror among the
  civilian population of Sarajevo.
• General Galic was sentenced to 20 years
  imprisonment

4
Galics Appeal

• Under his seventh ground of appeal, Galic argued
  that
• The ICTY had no jurisdiction as there exists no
  international crime of terror
• The Trial Chamber erred in considering treaty law
  to be sufficient to give jurisdiction to the
  Tribunal
• The Trial Chamber erred in finding that the 22
  May 1992 Agreement was binding upon the parties
  to the conflict
• The Trial Chamber erred with respect to the
  elements of the crime
• The Prosecution had not proved that the acts of
  sniping and shelling were carried out with
  the primary purpose of spreading terror among the
  civilian population.

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The Crime

• The crime charged in the indictment was the crime
  of acts or threats of violence the primary
  purpose of which is to spread terror among the
  civilian population.
• It encompasses the intent to spread terror when
  committed by combatants in a period of armed
  conflict.
• No other form of terror was considered by the
  Appeals Chamber.
• The authority for the crime was Article 3 of the
  ICTY Statute, and Article 51(2) of Additional
  Protocol I and Article 13(2) of Additional
  Protocol II.

6
Prosecutions Arguments on Terror

• The Majority was right to convict Galic for the
  crime of terror
• This was supported by the plain meaning of
  Article 3 and
• Security Council records confirm that the member
  states adopting the statute, intended that
  Article 3 would cover international agreements
  and
• To exclude applicable treaty provisions would
  frustrate the intention of the Security Council.
• The crime of terror can be committed through
  indiscriminate attacks on civilians
• No error in the Trial Chamber clarifying the
  elements of the crime of terror and in this
  respect, modifying the elements the Prosecution
  proposed at trial.

7
Appeals Judgement

• AC confirmed the TC had correctly identified that
  elements of the crime of terror
• Actual Infliction of Terror is Not an element of
  the offence

8
Can Article 3 be based on a treaty?

• The Tribunal has interpreted its mandate as
  applying not only to breaches of international
  humanitarian law based on customary international
  law but also to those based on international
  instruments entered into by the conflicting
  parties provided that the instrument in question
  is
• unquestionably binding on the parties at the time
  of the alleged offence and
• not in conflict with or derogating from
  peremptory norms of international law, as are
  most customary rules of international law.
• Even though in principle the Tribunal can apply
  International agreements, in practice the
  Tribunal always ascertains that the treaty
  provision in question is also declaratory of
  custom

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The prohibition of terror

• Two issues
• Is the prohibition of terror against the civilian
  population part of customary international law?
• Does the prohibition of terror against the
  civilian population give rise to individual
  criminal responsibility?

10
The elements of the crime

• Actus reus - The acts or threats of violence
  constitutive of the crime of terror shall not be
  limited to direct attacks against civilians or
  threats thereof but may include indiscriminate or
  disproportionate attacks or threats.
• Mens rea - specific intent to spread terror among
  the civilian population

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Elements of Crime

• Actus Reus Only proof that acts had the purpose
  of causing terror (based on Article 51 and
  Article 13) is required.
• Mens Rea Intent to inflict terror does not need
  to be the sole purpose as long as it was the
  dominant one

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Did Galic intend to spread terror?

• The sniping and shelling in Sarajevo fell within
  the scope of acts of violence contemplated
  under the definition of the crime of acts or
  threats of violence the primary purpose of which
  is to spread terror among the civilian
  population.
• The Appeals Chamber dismissed Galics appeal that
  the Trial Chamber erred in finding that he had
  the requisite intent to commit the crime.

13
Crime of Terror

• Is not limited to direct attacks on civilians but
  can include indiscriminate and disproportionate
  attacks
• What about threats of violence?

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The Result

• Galic was sentenced to life imprisonment

15
Outstanding and Future Issues

• Articulating the elements of the crime of
  unlawful attacks is a difficult task
• Formulation of the elements of unlawful attacks
  by the Galic Trial Chamber (para. 56) does not
  clearly answer the relationship between various
  types of unlawful attacks direct,
  indiscriminate, and disproportionate