Demarcation of the line between lawful and unlawful conduct of warfare
: the law of targeting at the International Criminal Tribunal for the Former Yugoslavia

Student thesis: Doctoral ThesisDoctor of Philosophy

Abstract

In the cases of Blaškić, Galić and Gotovina the judges of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) substantially developed the law of targeting. They did so in line with the precedence of the principle of humanity and a worldview strongly guided by the International Committee of the Red Cross. In affirming that the provisions of Additional Protocol I relating to targeting can be the basis for a conviction, the judges rendered certain earlier provisions incorporating ‘military necessity’ (although not the broader principle itself) potentially obsolete in this context.
This application of the principle of humanity was not, however, at the expense of military perspectives. The judges paid considerable attention to the views of those with military experience. They considered their judgments to be supported by a body of military opinion even if, in places, there were military practitioners who disagreed with their judgments.
A large amount of expert and technical evidence was provided to the judges to assist with the evidential determinations required to apply the law of targeting; in relation to establishing who fired artillery and with what intention. The experience and knowledge of military and civilian non-expert witnesses who had physically experienced the effects of the targeting decisions in question also, however, had a significant influence on the judges’ findings as to the evidence.
ICTY jurisprudence gave precedence to convictions pursuant to Article 7(1) of the ICTY Statute rather than Article 7(3) superior/command responsibility. An absence of direct evidence of targeting decision making by these commanders meant, alongside evidence of the orders they had issued, the judges considered circumstantial evidence including that of the accused’s role in the broader conflict.
Date of Award1 Mar 2020
Original languageEnglish
Awarding Institution
  • King's College London
SupervisorJames Gow (Supervisor) & Rachel Kerr (Supervisor)

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