Indiscriminate and Disproportionate Attacks in International Law

Luigi Daniele is Senior Lecturer in Law at Nottingham Law School, UK.

Introduction: Inequality as Continuity between War and Law

1. Civilian Victimization in Armed Conflicts
1.1 International Humanitarian Law as koiné, 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 Principles of International Humanitarian Law governing Targeting Decisions, between ‘Military Necessity’ and ‘Humanity’
2.1.1 Distinction
2.1.2 Proportionality
2.1.3 Precaution
2.2 Interplay of the Targeting Principles in Preventing Indiscriminate and Disproportionate Attacks
2.3 The Framing of Indiscriminate and Disproportionate Attacks in the 1977 Additional Protocol I to the Four Geneva Conventions
2.4 The Customary IHL Violations of Indiscriminate and Disproportionate Attacks
2.5 Reframing the Distinction-Proportionality Relationship
2.5.1 Incidentality of the Civilian Harm as Proportionality’s Conditio Sine Qua Non
2.5.2 Either Indiscriminate, Either Disproportionate: Discerning Indiscriminate and Disproportionate Attacks in Light of the Distinction-Proportionality Relationship
2.5.3 The Interpretative Need of Mens Rea Categories to Preserve the Systematic and Teleological Coordination Between Distinction and Proportionality

3. Indiscriminate and Disproportionate Attacks at the Origins of International Criminal Law, from Nuremberg to the ICTY
3.1 Indiscriminate Attacks at the Origins of War Crimes Law
3.1.1 Hiroshima, Nagasaki, and the Problematic Answer of the Einsatzgruppen Judgement
3.1.2 Kelsen’s ‘Privilegium Odiosum’, Justice Jackson’s Warning in 1945, and Radrbuch’s Second Verleugnungsformel: “Equality, The Core of Justice”
3.1.3 Are we “in Nuremberg Every Single Day” ?
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 Conducts Indicating the Intent of the Crime of Terror
3.2.3 Indiscriminate and Disproportionate Attacks as Conducts Indicating the Intent of Direct Attacks on Civilians
3.3 Critical Knots of the ICTY Jurisprudence
3.3.1 Presuming the Indiscriminate Character of Attacks from Area Impact Indexes: the Circular Error Probable
3.3.2 The Gotovina Case: ‘End of Indiscriminate Attacks’?
3.3.3 Lessons from the ICTY: Recklessness as Key Element of the Crimes of Indiscriminate and Disproportionate Attacks

4. Indiscriminate and Disproportionate attacks in Contemporary War Crimes Law: Born to be Blunt?
4.1 Indiscriminate and Disproportionate Attacks and the Rome Statute of the ICC
4.1.1 The Elements of the Crimes of Direct Attacks on Civilians and Civilian Objects
4.1.2 The Elements of the Crime of Disproportionate Attacks
4.1.3 The Dolus Eventualis Issue in the ICC Jurisprudence and Its Relevance for the Punishment of Unlawful Attacks
4.1.4 Inapplicability of the ‘Oblique Intention’ Mens Rea Standard
4.1.5 Comparing the ICTY and the ICC Jurisprudence: Steps Backwards?
4.2 An ‘Unduly Expanded’ Legal Shield for the Military?
4.2.1 The attack against the Kunduz MSF Hospital: the Problem of Mistakes of Fact
4.2.2 The Al-Jaaa Tower Attack in Gaza: Proportionality without Incidentality?
4.2.3 Western Loopholes for Russian Violations: Indiscriminate and Disproportionate Attacks in the War Against Ukraine
4.3 Cassese’s Prognosis Confirmed: Current Unprosecutability of the Recurring Forms of Indiscriminate and Disproportionate Attacks under the Rome Statute

5. Bridging the Accountability Gap: Toward New War Crime Offences of Indiscriminate and Disproportionate Attacks
5.1 Jursiprudential or De Jure Condendo Alternatives?
5.2 Roxin’s Legacy on the Future Roles of Criminal Science
5.3 An Agenda for the Assembly of the State Parties to the Rome Statute
5.3.1 ‘Unless Otherwise Provided’: Article 30(1) as Default Rule Open to Integrations
5.3.2 Article 21, Indiscriminate and Disproportionate Attacks: Where Does Customary War Crimes Law Stand?
5.3.3 Achieving Harmonization with IHL: Possible Amendments of Art. 8(2)(b)