I. There are no substantial grounds to believe that Gen.

Vande has individual criminal liability

for acts in violation of Article 8(2)(e)(i) of the Rome Statute.
I.1 The required elements of the crime were not satisfied.
I.1.1 The object of the attack was not a civilian population.

The second element for the crime of intentionally directing attacks against the civilian
population is that the object of the attack was a civilian population as such or individual
civilians not directly taking part in the hostilities.

WHEN ARE CIVILIANS CONSIDERED DIRECTLY TAKING PART IN HOSTILITIES?

Rule 6: Customaty International Humanitarian Law: Civilians are protected against attack unless and for
such time as they take a direct part in the hostilities.

Additional protocol II: Article 13 (3), Inter-American Commission on Human Rights:

Direct participation in hostilities – acts which by their nature or purpose are intended to cause
actual harm to enemy personnel and material. (Refer to paragraph 16)

Precautionary Measures (Chapter IV) – Art. 57 Precaution in the Attack

2(ii) take all feasible precautions in the choice of means and methods of attack with a view to
avoiding, and in any event, minimizing incidental loss of civilian life, injury to civilians, and
damage to civilian objects. (Refer to Paragraph 16)

(1) civilians can be liable for war crimes Musema, (Trial Chamber), January 27, 2000, para. 274-275:
It is “well-established that the post-World War II Trials unequivocally support the imposition of
individual criminal liability for war crimes on civilians where they have a link or connection with
a Party to the conflict. The principle of holding civilians liable for breaches of the laws of war is,
moreover, favoured by a consideration of the humanitarian object and purpose of the Geneva
Conventions and the Additional Protocols, which is to protect war victims from atrocities.” Thus,
the Accused, as a civilian, “could fall in the class of individuals who may be held responsible for
serious violations of international humanitarian law, in particular serious violations of Common
Article 3 and Additional Protocol II.”

Rutaganda, (Trial Chamber), December 6, 1999, para. 100-101, n. 32: “[T]he civilian population
comprises all persons who are civilians,” which is to say that the “civilian population is made up of
persons who are not combatants or persons placed hors de combat, in other words, who are not
members of the armed forces.” “[I]f civilians take a direct part in the hostilities, they then lose their
right to protection as civilians per se and could fall within the class of combatant. To take a ‘direct’
part in the hostilities means acts of war which by their nature or purpose are likely to cause actual
harm to the personnel and equipment of the enemy armed forces.” Since the class of civilians is
broadly defined “it will be a matter of evidence on a case-by-case basis to determine whether a
victim has the status of civilian.”

Semanza, (Trial Chamber), May 15, 2003, para. 363-366: “The question to be answered… is whether,
at the time of the alleged offence, the alleged victim was directly taking part in the hostilities. If the
answer is negative, the alleged victim was a person protected by Common Article 3 and Additional
 Protocol II. To take a direct part in hostilities means, for the purposes of these provisions, to engage
in acts of war that strike at personnel or equipment of the enemy armed forces.”

Criminal Liability:

ORDERING:

Akayesu, (Trial Chamber), September 2, 1998, para. 483: “Ordering implies a superiorsubordinate
relationship between the person giving the order and the one executing it. In other words, the person in
a position of authority uses it to convince another to commit an offence. In certain legal systems,
including that of Rwanda, ordering is a form of complicity through instructions given to the direct
perpetrator of an offence.” 63 See also Rutaganda, (Trial Chamber), December 6, 1999, para. 39;
Musema, (Trial Chamber), January 27, 2000, para. 121