دانلود کتاب Unlawful Attacks in Combat Situations: From the ICTY's Case Law to the Rome Statute

فهرست مطالب :

Table of Contents
Foreword
Chapter I Introduction
Chapter II Principle of Distinction in the Conduct of Hostilities
II.1 First Approach to the Principle of Distinction in International Humanitarian Law
II.2 The Principle of Distinction in International Humanitarian Law before the Additional Protocols to the Geneva Conventions
II.3 The Principle of Distinction in the AP I applicable to International Armed Conflicts
II.4 The Principle of Distinction in the AP II applicable to Non-International Armed Conflicts
II.5 Evolution of the Principle of Distinction after the Additional Protocols to the Geneva Conventions
Chapter III Material Contextual Elements
III.1 The Objective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks. The Distiction between Material Contextual Elements, Jurisdictional Contextual Elements and Specific Objective Elements
III.2 The Existence of an Armed Conflict and Link between the Forbidden Behaviour and the Armed Conflict
III.2.1 The Notion of Armed Conflict
III.2.1.1 Introduction to the Problems Posed by the Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions, including Those Caused by Acts of Terrorism
III.2.1.2 From the Geneva Conventions to the ICTY\'s Case Law: The Evolution of the Notion of Armed Conflict in International Humanitarian Law
III.2.1.3 The Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions Caused by Repeated Acts of Terrorism in light of the ICTY\'s Case Law
III.2.1.4 Overcoming the Vagueness Introduced by the ICTY\'s Case Law on the Distinction between Situations of Armed Conflict and Situations of Internal Disturbances and Tensions Resulting from Repeated Acts of Terrorism
III.2.1.5 The Notion of Armed Conflict in the RS
III.2.2 Geographical and Temporal Scope of an Armed Conflict
III.2.3 Link between the Forbidden Behaviour and the Armed Conflict
III.3 International or Non-International Character of the Armed Conflict
III.4 The Protected Status of the Persons or Objects Subject to the Forbidden Behaviour
Chapter IV Specific Objective Elements
IV.1 Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the ICTY\'s Case Law
IV.1.1 Non-Applicability of the Crimes Defined in Art. 2 ICTYS to Behaviours Taking Place during the Conduct of Hostilities
IV.1.2 Limited Scope of Application of the Crimes Expressly Provided for in Art. 3 ICTYS during the Conduct of Hostilities. Special Reference to the Crimes of Attacking Undefended Localities and Wanton Destruction Not Justified by Military Necessity, and to the Problems Posed by the Joint Evaluation of the Damage Occasioned in the Different Phases of the Same Military Operation
IV.1.3 The Residual Clause Provided for in Art. 3 ICTYS as the Core Element of the Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the ICTY\'s Case Law. Special Reference to the Lack of an Autonomous Treatment of the Disproportionate Attacks
IV.2 Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in the RS
IV.2.1 The Autonomous Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in International Armed Conflicts. Special Reference to the Autonomous Treatment of Disproportionate Attacks
IV.2.2 Legal Treatment of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks in Non-International Armed Conflicts
IV.2.3 The Relationship between Attacks Directed at Civilians or Civilian Objects and Disproportionate Attacks, and Those Other Crimes Consisting of the Damage Brought about by such Attacks. Special Reference to the War Crime of Destruction of Enemy\'s Property not Justified by Imperative Military Necessity and the Need for a Separate Assessment of the Damage Occasioned in Each Phase of a Military Operation
IV.2.4 Other Serious Violations of International Humanitarian Law Committed during Conduct of Hostilities Included in the RS
IV.2.4.1 Crimes Committed against Persons Entitled to Special Protection
IV.2.4.2 Crimes on the Use of Prohibited Methods of Warfare
IV.2.4.3 Crimes on the Use of Prohibited Weapons or Munitions
Chapter V Practical Issues on the Application of the Notion of Military Objective
V.1 Preliminary Remarks
V.2 Persons who Are Military Objectives
V.2.1 Persons Entitled to Combatant Status
V.2.2 Persons without Combatant Status who Take Active Part in the Hostilities
V.2.2.1 Active Participation in the Hostilities versus Actions Taken in Self-defence
V.2.2.2 Active Participation versus Indirect Participation in the Hostilities. Special Reference to Enforced Active Participation
V.2.2.3 Conclusion of Active Participation in the Hostilities
V.2.3 Presumption of Civilian Status
V.2.4 Equating the Existence of a Weak Defence with the Non-existence of Defence
V.2.5 The Notion of Civilian Population
V.3 Objects which Are Military Objectives
V.3.1 Categories of Objects Included within the Notion of Military Objective
V.3.2 Cases on the Application of the Notion of Military Objective in relation to Objects: Particular Attention to Aerial Attacks
V.3.2.1 The NATO Attack against the SRT in Belgrade on 23 April 1999
V.3.2.2 The SRK Attack against the Oslobodilaca Sarajeva Street and a Nearby Park on 4 February 1999
V.3.2.3 The HVO Attack against the Village of Gačice in Central Bosnia on 20 April 1993
V.3.2.4 The HVO Attack against the Village of Grbavica in Central Bosnia on 7 September 1993
V.3.3 The Relationship between the Notions of Military Objective and Military Advantage: Possible Variations in the Lists of Military Objectives according to the Political-Strategic Goals of the Military Campaigns of the Parties to the Conflict
V.4 Practical Aspects of the Lawfulness Analysis of Artillery and Sniper Attacks
V.4.1 The JNA Attack against the Old City of Dubrovnik on 6 December 1991
V.4.2 The SRK Attack against a Well in the C-5 Area of the Dobrinja Neighbourhood in Sarajevo on 12 July 1993
V.4.3 The SRK Attack against the Markale Market in Sarajevo on 5 February 1994
V.4.4 The SRK Sniper Attack against Witness E in Sarajevo
V.4.5 The SRK Sniper Attack against Mejra Jusović in Sarajevo on 24 June 1993
Chapter VI Practical Issues concerning the Application of the Proportionality Rule
VI.1 The Proportionality Rule: Incidental Civilian Damage versus Anticipated Military Advantage
VI.1.1 The Growing Emphasis on the Application of the Proportionality Rule versus the Continuous Reluctance to Investigate and Prosecute its Serious Violations
VI.1.1.1 The ICTY OTP Analysis of the NATO Attack against the Leskovac Railway Bridge on 12 April 1999 as a Paradigmatic Example of the Reluctance to Investigate and Prosecute Serious Violations of the Proportionality Rule
VI.1.2 The Principle of Economy in the Use of Force and the Proportionality Rule
VI.1.3 Assessment of Incidental Civilian Damage
VI.1.3.1 General Questions
VI.1.3.2 Should Long Term Indirect Damage Be Counted as Civilian Incidental Damage?
VI.1.3.3 Should Damage Derived from Unlawful Enemy Actions Be Counted as Incidental Civilian Damage?
VI.2 Geographical and Temporal Context in which the Proportionality Rule Must Be Applied
VI.2.1 The Proportionality Analysis at the Operational Level. Special Reference to the HVO Attack against Donja Večeriska in Central Bosnia on 16 April 1993 and the JNA Attack against the Old Town of Dubrovnik on 6 December 1991
VI.2.2 The Proportionality Analysis at the Tactical Level
VI.2.2.1 The 1 June 1993 SRK Attack against a Parking Lot Located in the Area of Dobrinja in Sarajevo where a Football Tournament Was Underway
VI.2.3 The Proportionality Analysis at the Strategic Level. Special Reference to the ICTY OTP\'s Report on the NATO Campaign in Kosovo in 1999
Chapter VII Omissions. Special Reference to the Responsibility of Military Commanders
Chapter VIII Preparatory Acts, Attempt and Completion of the Crime
Chapter IX Modes of Liability
Chapter X Subjective Elements
X.1 First Approach to the Subjective Elements of the Crimes in the RS
X.1.1 Dolus as the General Subjective Element
X.1.2 Criminal Responsibility Arising from Negligence: The Criminal Liability of Military Commanders for Failure to Prevent or Punish
X.1.3 General Subjective Element and Material Contextual Elements
X.1.4 The Treatment of Mistake of Fact in the RS
X.2 The Subjective Elements of Attacks Directed at Civilians or Civilian Objects and of Disproportionate Attacks
X.2.1 Attacks Directed at Civilians or Civilian Objects
X.2.1.1 The Meaning of the Expression \"Intentionally\"
X.2.1.2 The Different Treatment of Reckless Conduct in the RS and in the ICTY\'s Case Law
X.2.1.3 Practical Analysis of the Determination of the Subjective Elements in Land Operations Supported by Artillery Fire
X.2.2 Disproportionate Attacks
X.2.2.1 The Military Commander\'s Application of the Proportionality Rule on the basis of the Expected Incidental Civilian Damage and the Concrete and Direct Overall Military Advantage Anticipated
X.2.2.2 The Different Treatment of the Reckless Launch of a Disproportionate Attack in the RS and in the ICTY\'s Case Law
Chapter XI Grounds for Justification and the Scope of Self-Defence in Combat Situations
Chapter XII Grounds for Excuse. Special Reference to Superior Orders
Chapter XIII Objective Requisites for Punishment, and Objective Requisites to Proceed
XIII.1 Objective Requisites for Punishment and the International or Non-International Character of the Armed Conflict
XIII.2 Exemptions from Punishment. Special Attention to the Attempt to Turn Military Necessity into a Ground for Exemption from Punishment
XIII.3 Jurisdictional Contextual Elements relating to the Gravity Threshold as Objective Requisites to Proceed
Chapter XIV Final Remarks
Table of Cases
Bibliography