The Concept of the Civilian: Legal Recognition, Adjudication and the Trials of International...

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The concept of the civilian: legal recognition, adjudication and the trials of international criminal justice

Claire Garbett

International Journal of Law in Context / Volume 8 / Issue 04 / December 2012, pp 469 486DOI: 10.1017/S174455231200033X, Published online:

Link to this article: http://journals.cambridge.org/abstract_S174455231200033X

How to cite this article:Claire Garbett (2012). The concept of the civilian: legal recognition, adjudication and the trials of international criminal justice. International Journal of Law in Context, 8, pp 469486 doi:10.1017/S174455231200033X

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The concept of the civilian: legal recognition,adjudication and the trials of internationalcriminal justice

Claire GarbettDepartment of Sociology, Goldsmiths, University of London

AbstractContemporary initiatives to address civilian victimisation in armed conflict increasingly focus oninternational criminal justice institutions, rules and practices. These institutions are now expected toconstruct legal recognition of civilian victims of armed conflict, as well as prosecute the perpetrators.This article uses a case-study of the Prosecutor v. Dragomir Miloševic heard by the InternationalCriminal Tribunal for the former Yugoslavia to explore the concept of the civilian. It first examinesthe international legal frameworks and obligations that enforce the protection of civilians. It thenexplores the concept of the civilian as defined by the rules of humanitarian law, and the differentapproaches to defining civilians utilised by the parties to the Miloševic´ trial. The article argues thatthe current ‘negative’ definition of civilians creates significant difficulties for understanding civiliansas a distinct category of persons, and does not adequately capture their choices, actions andexperiences in armed conflict.

Introduction

Since the early 1990s the fate of civilians during conflict situations has become a central issue ofinternational concern. With the deliberate and systematic targeting of civilians continuing to beevident in conflicts being fought around the world, the United Nations (UN), international NGOsand academic scholars have increasingly focused upon the appropriate means to address andredress acts of civilian victimisation (Jones and Cater, 2001).1 International criminal justiceinstitutions, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and theInternational Criminal Court (ICC), are seen as key mechanisms for the prosecution, adjudicationand punishment of crimes committed against civilians in armed conflict.2 Alongside theirtraditional retributive function, these institutions are now also expected to work to construct legalrecognition of the civilian victims of conflict, enforce their legal protections and provide redressto them (Bassiouni, 2006). Amid the growing move to more ‘victim-friendly’ criminal justicepractices, civilians are increasingly being understood as a category of persons that demand, anddeserve, legal recognition of their status as the victims of hostilities.

Despite an increasing body of literature and debate analysing the relationship betweeninternational criminal justice institutions and the victims of war crimes (Dembour and Haslam,2004; Hodzic, 2010), there has been little socio-legal research that explores the construction oflegal recognition of the civilian victims of armed conflict during trial proceedings. Empirical

1 See United Nations Security Council Resolution 1894, UN Doc. S/RES/1894 (2009); International Committeeof the Red Cross (2009).

2 United Nations Security Council, Report of the Secretary-General on the Protection of Civilians in ArmedConflict, 29 May 2009, S/2009/277.

International Journal of Law in Context, 8,4 pp. 469–486 (2012) Cambridge University Pressdoi:10.1017/S174455231200033X

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research often tends to be descriptive, and rarely sufficiently considers the conceptual characteristics,ideas or contexts central to understanding civilians as a category of persons distinct fromcombatants,3 nor adequately focuses on the role of legal practices in constructing or challengingcivilian identities. Instead, existing research typically focuses on the mass scale of civilianvictimisation in recent conflicts (Kaldor, 2001), identification of the international rules thatprotect civilians (Gardam, 1993a), or civilian–military interactions and consequent humanitarianissues in particular situations of conflict (Roberts, 2001).

The aim of this article is to explore the different conceptual models of civilians employed duringthe trial proceedings of international criminal justice. It examines these conceptual models through acase-study of The Prosecutor v. Dragomir Miloševic (D. Miloševic)4 which was heard by the ICTY. D.Miloševic considered crimes committed against civilians during the siege of Sarajevo. It is a leadingcase as it sets out the present judicial position on the war crimes charge ‘terror against a civilianpopulation’. The article first provides a brief overview of the increasing international recognitionof civilians as persons at risk during conflict situations and the development of legal strategies,obligations and mechanisms for the enforcement of their protection. It then analyses the conceptof the civilian as defined by the rules of humanitarian law, and draws upon the trial transcripts ofD. Miloševic and courtroom observation undertaken during its proceedings to analyse thesubmissions and testimonies of the victim-witnesses, Prosecution, Defence and Trial Chamber.Finally, the article argues that the current ‘negative’ definition of civilians creates significantdifficulties for legally recognising civilians as a distinct category of persons, and does notadequately capture the nature of their choices, actions and experiences during a conflict.

International recognition, protection and redress of civilians in conflicts

The mass scale of civilian victimisation has been evident in conflicts ranging from Bosnia andRwanda during the 1990s, through to Darfur, Sudan in the present day. The UN points out thatcivilians are increasingly the subject of intentional attacks by combatants and other armedelements.5 It acknowledges that civilians constitute the vast majority of casualties in situations ofconflict.6 Similarly, most commentators describe that civilians not only sustain prolific injuriesduring hostilities, but that the deliberate and systematic targeting of civilians is central to theirconduct (Kaldor, 2001; Slim, 2007).

Throughout the 1990s and into the early years of the new millennium, the UN Security Council,General Assembly and Secretary-General adopted a series of Resolutions and Reports condemningintentional attacks on civilians and highlighting the specific vulnerabilities of particular groups ofcivilians, namely, women, children and refugees.7 The UN’s early descriptions of the means andmethods for ensuring the safety of civilians were predominantly state-centric, emphasising theresponsibility of states to protect civilians and prosecute those persons responsible for seriouscrimes committed against them.8 For example, it held that attacks on civilians violate the norms

3 One notable exception is Carpenter’s work on the gendered construction of the civilian by transnationalactors (2006).

4 The Prosecutor v. Dragomir Miloševic, Case No. IT-98-29/1.

5 United Nations Security Council Resolution 1265, UN Doc. S/RES/1265 (1999).

6 United Nations Security Council Resolution 1894.

7 See, for example, Resolution 1265; Report of the Secretary-General to the Security Council on the Protection ofCivilians in Armed Conflict, 30 March 2001, S/2001/331.

8 Resolution 1265.

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and laws that regulate and constrain the conduct of states during war,9 and called upon states to‘consider ratifying the major instruments of international humanitarian, human rights andrefugee law’.10

Traditionally, as the UN describes it, the duty to protect civilians ‘belongs first and foremost to theStates’ (Caverzasio, 2001, p. 9). This framework of civilian protection follows the conventional legalrelationship between a sovereign state and its people: states ‘enjoy supreme authority over all subjectsand objects within a given territory’ (Held, 2002, p. 4). They are ‘independent in all matters of internalpolitics and should in principle be free to determine their fate within this framework’ (p. 3). In thisframework, the state holds the overriding authority and obligation to regulate the conduct of itssubjects (i.e. combatants) and protect its civilian population during a conflict. When there is abreach of national or international rules relating to the protection of civilians, the state prosecutesand punishes the perpetrators (Cassese, 2003, p. 37). However, this state-centred framework ofcivilian protection has been, and continues to be, frequently overlooked or violated in the practiceof conflict. Either states do not adhere to their responsibility to protect civilians, are functionallyunable to provide security for this group of persons, or their armies are in fact the perpetrators ofthe violence (Bruderlein and Leaning, 1999, pp. 430–35).

Recent UN Resolutions and Reports, however, represent a broader non-state approach to theprotection of civilians and the legal enforcement of crimes committed against them. Moststrikingly, the 2005 World Summit Outcome Document describes how the:

‘international community, through the United Nations . . . has the responsibility to useappropriate diplomatic, humanitarian and other peaceful means, in accordance with ChaptersVI and VII of the Charter, to help protect populations . . . we are prepared to take collectiveaction in a timely and precise manner . . . should peaceful means be inadequate and nationalauthorities are manifestly failing to protect their populations.’11

Reaffirmed in recent UN Resolutions focusing on the protection of civilians,12 the emerging norm of a‘responsibility to protect’ articulated in the World Summit Outcome Document is indicative of therenewed international focus on the protection of civilian populations in conflicts.13 In particular, asEvans points out, the significance of the doctrine of a responsibility to protect is the shift from state-centric debates over the ‘right to intervene’ in situations of mass violence, to an approach which ‘look[s] at the whole issue from the perspective of the victims’ (2008, p. 285). By turning the issue of theright to intervene ‘upside down’, the central focus becomes the protection of all persons insituations of conflict and the responsibility of all states of the international community toregulate, maintain and enforce this protection (p. 285). In conceptual terms, the issue for theinternational community is no longer the right to intervene, but the necessity to protect.

Focusing specifically on issues of the legal enforcement of civilian protection, three keyconceptual shifts can be seen to arise from the UN’s descriptions of new forms of internationaladdress and redress to acts of civilian victimisation: first, a new recognition of civilians in

9 United Nations General Assembly, AMore SecureWorld: Our Shared Responsibility: Report of the High-LevelPanel on Threats, Challenges and Change, 2 December 2004, A/59/565, para. 158.

10 Resolution 1265.

11 United Nations General Assembly, 2005 World Summit Outcome Document, 24 October 2005, A/RES/60/1,para. 139.

12 See Resolution 1894 (2009).

13 It is important to note that the ‘responsibility to protect’ is an emerging norm and not a legal principle(McClean, 2008, p. 135). See McClean (2008) for discussion of the central tenets of the ‘responsibility toprotect’ and the challenges and obstacles in harnessing the potential of this emerging norm.

the concept of the civilian 471



conflicts; second, the framework of obligations to ensure their protection; and third, that ‘justice’mechanisms should enforce these protections. First, there is now an explicit internationalrecognition that civilians are ‘present’ within situations of conflict. Conventionally, the focus ofthe laws of war and the wider reporting of armed violence has understood the combatant to bethe central participant and casualty of war’s conduct (Gardam, 1993b; Nabulsi, 2001). The UN’sincreasing focus on the protection of civilians shifts this recognition of the participants of warfrom the combatant to an express acknowledgement of civilians as intentional casualties. It isexplicitly recognised that ‘combatants target civilians’ and cause profound harm to this categoryof persons.14 Importantly, the UN does not describe civilians as being simply ‘caught up’ in war’sconduct as unfortunate but inevitable collateral damage, or the unintentional victims of theactions of combatants. Instead, there is an express recognition that civilians are subject tointentional, direct targeting and other forms of unlawful conduct that contravenes the minimumprotections of humanitarian law.15

Second, the UN’s increasing concernwith the redress of acts of civilian victimisation narrates newinternational obligations to construct and implement protection for this category of persons. Whilestates continue to hold primary responsibility for the protection of civilians, the World SummitOutcome Document, as noted above, describes that the responsibility to protect now lies with theinternational community as a whole, working through the UN, to take ‘collective action’ whennational authorities are manifestly failing to protect their populations.16 Evans points out that thisnotion of collective action emphasises the ‘responsibility of all states to protect their own peoplefrom atrocity crimes, and to help others to do so’ (2008, p. 285). There is now a consensus that ‘[a]ttacks that specifically target innocent civilians and non-combatants should be condemned clearlyand unequivocally by all’.17 This new international obligation to protect marks a shift from theolder state-centric framework, to a broader model of an international protection of all civilianpopulations (Jones and Cater, 2001). For this reason, as Arbour points out, it ‘squarely embracesthe victims’ point of view and interests, rather than questionable State-centred motivations’ (2008,p. 448). Whether the civilian population at risk holds the same national ties of the state, or that ofanother state, their protection is based upon their status as a civilian, and that status alone. Thisinternational framework of protection encompasses ‘all populations, everywhere’ (p. 448).

Third, the UN considers that ‘justice mechanisms’ applying the rules of humanitarian law are akey means for addressing and redressing acts of civilian victimisation.18 In particular, the UN hasdrawn attention to the importance of the ICTY, the International Criminal Tribunal for Rwanda(ICTR) and the ICC, alongside other ad hoc courts and tribunals for prosecuting individualsresponsible for war crimes, crimes against humanity and genocide.19 It emphasises the role ofhumanitarian law in regulating the protection of civilians and the criminal justice mechanisms,both national and international, that work to enforce these legal rules.20

To understand the role of humanitarian law in addressing and redressing acts of civilianvictimisation, this analysis will focus on the ICTY, as it has prosecuted the greatest number ofaccused for violations of humanitarian law. To date, the ICTY has completed proceedings against

14 A More Secure World, para. 231.

15 Ibid., paras. 231–32.

16 World Summit Outcome Document, para. 139.

17 A More Secure World, para. 161.


19 Resolution 1894.


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125 accused, in contrast to the ICTR, which has completed proceedings against thirty-four accused,and the ICC, which has yet to complete a case.21 Notably, the ICTY has included charges for crimescommitted against civilians in the majority of its cases. It has also made significant advancements indeveloping the rules of humanitarian law that relate to the protection of civilians (Slaughter andBurke-White, 2002, pp. 68–69). The status of the victims of the crimes under adjudication as eithercivilians or combatants is therefore a central issue of trial proceedings in many cases heard by theICTY. For this reason, this analysis will focus on the ICTY and, more specifically, the leading caseof D. Miloševic. It will explore the conceptual models of civilians put forward in D. Miloševic toprovide a better understanding of the complexities of constructing legal recognition of civilianvictims of armed conflict through the rules and practices of international criminal justice.

The siege of Sarajevo and the Dragomir Miloševic case

The D. Miloševic case concerns crimes committed as part of the ‘siege of Sarajevo’ during theYugoslavian conflicts of the 1990s.22 Over the course of the forty-four months of the siege,the inhabitants of Sarajevo were continuously subjected to a campaign of shelling and sniping bythe Sarajevo Romanija Corps (SRK) of the Army of Republika Srpska positioned in the hillssurrounding and overlooking the city.23 It has been found that the SRK implemented a militarystrategy of shelling and sniping to kill, injure and spread terror among the civilian population ofSarajevo.24 As described in D. Miloševic, the siege of Sarajevo had a particularly profound and long-lasting effect on its civilian population. Civilians were the direct targets of shelling and sniping, aswell as being caught up in the fighting between the SRK and the opposing force, the Army ofBosnia and Herzegovina.25 As a consequence, civilians of both sexes and all ages were killed andwounded, including children and the elderly.26 While the difficulties of distinguishing betweencivilians and combatants provides a significant challenge to identifying the number of casualtiesof each of these categories of person, recent figures have suggested that between five and sixthousand civilians were killed during the siege, with many more wounded or injured.27

Dragomir Miloševic served as the Commander of the SRK from August 1994 until November1995. For his conduct during this period of the siege, the Prosecutor of the ICTY charged Miloševicwith violations of the laws or customs of war as ‘terror against a civilian population’ and ‘attacks oncivilians’, and murder and other inhumane acts as crimes against humanity (crimes directed againstany civilian population). The accused was charged with individual criminal responsibility forplanning and ordering, or alternatively, aiding and abetting these crimes through implementingand conducting a campaign of sniping and shelling of civilians in Sarajevo, the primary purposeof which was to spread terror among the civilian population. The trial against the accused beganin January 2007 and involved a total of 138 witnesses testifying before the Trial Chamber. Anumber of these witnesses, predominantly those brought by the Prosecution, were ‘victim-

21 As of 1 October 2010.

22 See Donia (2006) for a detailed account of the siege of Sarajevo.

23 See The Prosecutor v. Dragomir Miloševic, Case No. IT-98-29/1. Judgment, 12 December 2007, paras. 146–47.There is also evidence that the Army of Bosnia and Herzegovina shelled civilian areas of the city(Judgment, para. 169).

24 The Prosecutor v. Dragomir Miloševic, Case No. IT-98-29/1. Amended Indictment, 18 December 2006, para. 12.

25 D. Miloševic, Judgment, para. 148.

26 D. Miloševic, Amended Indictment, para. 12.

27 See the ongoing work of the Research and Documentation Centre in Sarajevo, which records deaths, injuriesand the number of missing persons from the Yugoslavian conflicts, at http://www.idc.org.ba.




witnesses’, that is, individual victims of the sniping and shelling of the city. Miloševic was foundguilty of the charges brought against him and ultimately sentenced to twenty-nine years’imprisonment by the Appeals Chamber in November 2009.28

This article analyses the case of D. Miloševic to explore the construction of legal recognition of thecivilian victims of these hostilities, and the conceptual models of civilians put forward by the partiesto the trial. The D. Miloševic case was chosen to explore these issues for two reasons. First, D. Miloševicis a significant case as it establishes the present judicial position on the war crimes charge ‘terroragainst a civilian population’. This charge was first considered by the ICTY in The Prosecutorv. Stanislav Galic (Galic) (Kravetz, 2004, p. 524),29 with the D. Miloševic case only the second thathas been adjudicated by this institution. Arising from Article 51(2) of Additional Protocol I (API),the crime of terror consists of the following specific elements:

‘1. Acts or threats of violence directed against the civilian population or individual civilians nottaking direct part in hostilities causing death or serious injury to body or health within thecivilian population;2. The offender wilfullymade the civilian population or individual civilians not taking direct partin hostilities the object of those acts of violence;3. The above offence was committed with the primary purpose of spreading terror among thecivilian population.’30

D. Miloševic affirms both the ICTY’s jurisdiction over the crime of terror, and the specific elements ofthe crime. In Galic, the Trial Chamber did not pronounce upon the customary status of the crimeof terror under international law. This omission was a factor contributing to the dissentingopinion of Judge Nieto-Navia,31 and commentators arguing that Galic’s conviction could be ‘goingbeyond the Tribunal’s jurisdiction and infringing upon the principle of legality’ (Mettraux, 2005,p. 129).32 D. Miloševic is thus significant for affirming that the ICTY has subject-matter jurisdictionover this crime, with the Appeals Judgment appearing to affirm its customary status.33 TheD. Miloševic Appeals Judgment also clarifies the Galic jurisprudence in terms of the elements of thecrime. It determines that death or serious harm is not an element of the crime of terror per se, asthe D. Miloševic Trial Chamber Judgment previously held, but represents only one of the possiblemodes of commission of the crime (Margetts and Hayden, 2010, p. 653).34 As such, for the offence

28 The Trial Chamber held that as the accused had been found guilty of ‘terror against a civilian population’, thecharges of ‘attacks on civilians’ should be dismissed. However, the Appeals Chamber found that the TrialChamber had erred in this regard and reasoned that the two crimes are permissibly cumulative becausethey both contain materially distinct elements not contained in the other (The Prosecutor v. DragomirMiloševic, Case No. IT-98-29/1-A. Appeals Judgment, 12 November 2009, para. 39).

29 The ICTY previously convicted Stanislav Galic for ‘terror against a civilian population’ as a war crime andcrimes against humanity committed against civilians during the siege of Sarajevo (The Prosecutorv. Stanislav Galic, Case No. IT-98-29). Galic was commander of the SRK prior to Dragomir Miloševic. TheProsecutor of the ICTY has also included charges of ‘terror against a civilian population’ arising from theviolence of the siege in the indictments of senior leaders such as Radovan Karadžic and Ratko Mladicalongside alleged crimes committed in other geographical areas.

30 D. Miloševic, Judgment, para. 875; D. Miloševic, Appeals Judgment, para. 31.

31 Judge Nieto-Navia contends that the ‘jurisdictional requirements of the Tribunal’ had not been met due to theMajority’s lack of determination as to whether the charge constituted an offence under customaryinternational law (The Prosecutor v. Stanislav Galic, Case No. IT-98-29. Summary of Judgment, 5 December 2003).

32 See Kravetz (2004) for a contrary opinion.

33 D. Miloševic, Appeals Judgment, para. 30.

34 Ibid., para. 33.

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to fall under the jurisdiction of the Tribunal, the victims must have suffered grave consequencesresulting from the acts or threats of violence; such grave threats include, but are not limited to,death or serious injury to body or health.35 For both these reasons, the D. Miloševic case issignificant for setting out the current judicial position on this infrequently charged crime.

Second, the D. Miloševic case focuses exclusively on charges of crimes committed against civiliansand can therefore be thought of as a ‘victim-specific’ case. Unlike other ICTY cases that includecharges for crimes committed against both civilians and combatants, or do not requireidentification of the status of the victims, D. Miloševic only concerns acts of violence committedagainst civilians. It is for this reason, as the Appeals Chamber describes, that for the accused to befound guilty it was necessary to ‘find beyond reasonable doubt that the victims of individualcrimes were civilians and that they were not participating directly in hostilities’.36 As such, thevictim-witnesses who gave evidence against the accused not only had to testify that they were thevictim of a crime, but also had to testify to and in effect ‘prove’ their civilian status at the time ofits perpetration.

The next section first identifies how the rules of humanitarian law that frame theD.Miloševic casedefine civilians as a category of persons. It then examines this case to understand how the victimsthemselves, the Prosecution, Defence and Trial Chamber work to construct (or challenge) legalrecognition of the civilian victims of the actions of the accused. These submissions andtestimonies show how each of the parties to the trial approaches the task of identifying a personas a civilian during trial proceedings. They reflect how the parties seek to distinguish betweencivilians and combatants, and to persuade the Trial Chamber that the victim is (or is not) acivilian victim of a crime. By focusing on the different approaches of the parties to the trial, thisanalysis explores the different conceptual models of civilians put forward in D. Miloševic tohighlight the difficulties in recognising and understanding civilians as a category of personsduring trial proceedings.

The legal (non)-definition of a civilian

International humanitarian law, the body of law that constitutes the subject-matter jurisdiction ofthe ICTY, comprises the principles that define civilians as a category of persons distinct fromcombatants in a situation of armed conflict. A foundational precept of modern humanitarian lawis the principle of distinction describing that the parties to a conflict must at all times distinguishbetween civilians and combatants (Sassoli and Bouvier, 2006, pp. 143–44). This principledetermines that ‘war is to be waged against an enemy’s armed forces, not against its civilianpopulation’ (Rogers, 2004, p. 7). The rules of humanitarian law therefore conceptualise persons asbeing either civilians or combatants. All persons are subsumed into this dichotomous frameworkand so hold one or other of these definitional statuses.37 As Dinstein points out, this conception ofpersons leaves no ‘undistributed middle between the categories of combatants (or militaryobjectives) and civilians (or civilian objects)’ (2004, p. 114).

35 Ibid. D. Miloševic also develops the jurisprudence of the crime of terror in relation to the mens rea of theoffence. Unlike Galic, which held that the specific intent to spread terror may be inferred from the ‘nature,manner, timing and duration of the acts or threats’ (Galic, Appeal Judgment, para. 104), the D. MiloševicAppeals Judgment determined that ‘this is not an exhaustive list of mandatory considerations but anindication of some factors that may be taken into account according to the circumstances of the case’(para. 37).

36 D. Miloševic, Appeals Judgment, para. 57.

37 It should be noted that personswho lose the status of combatant, such as prisoners of war, those hors de combat,and the wounded, sick and shipwrecked come under specific protections through humanitarian law (seeDinstein, 2004).




However, the rules of humanitarian law do not set out a ‘positive’ definition of a civilian. Rather,they provide a ‘positive’ definition of a combatant and determine that civilians are all persons whoare not combatants. Combatants are persons ‘taking a direct part in hostilities’ with the exception ofmedical and religious personnel (Henckaerts and Doswald-Beck, 2005, pp. 12–13).38 This category ofpersons holds the ‘privilege’ of the right to fight and, as such, are ‘liable to attack’ from othercombatants (Nabulsi, 2001, p. 13). In contrast, as D. Miloševic describes, the ‘term “civilian” is definednegatively, to include any person who is not a member of the armed forces or an organised militarygroup belonging to a party to the conflict’.39 Civilians are persons who do not ‘engage in acts of warwhich, by their nature or purpose, are likely to cause actual harm to the personnel or materiel of theenemy armed forces’.40 The designation of civilian status is therefore dependent upon the co-existence of an opposing status, the combatant. In this dichotomous framing, civilians can be seen aslegally ‘excluded’ from hostilities. This category of persons cannot act as participants in a conflict asperpetrators of violence, nor can they figure as the legitimate targets of the actions of others.41

The distinction between civilians and combatants can also be seen in the modes of physicallyidentifying these categories of persons. Rogers points out that combatants are ‘obliged todistinguish themselves from the civilian population’ (2004, p. 9). In D. Miloševic, the ICTYdescribes that the ‘generally accepted practice is that combatants distinguish themselves bywearing uniforms, or, at the least, a distinctive sign, and by carrying their weapons openly’.42 Inthis way, combatants must visibly distinguish themselves as holding that status during a conflictthrough particular aspects of their appearance. There are specific ‘markers’ of combatant identitythat are distinct from those of civilians. Such markers of combatant status enable both civiliansand combatants to recognise this group of persons during hostilities. It distinguishes their mode ofparticipation in a conflict from that of civilians. These visible markers of combatant status willalso guide the legal adjudication of their status if an allegation of a breach of the protective rulesof humanitarian law comes before the courts.43

However, the negative definition of civiliansmeans that the rules of humanitarian law ‘do not tellus who or what the protected persons and objects are’ (Dinstein, 2004, p. 114). The negative definitiondoes not conceptualise ‘who’ a civilianmay be, nor specify any typical ‘markers’ or features that couldidentify such persons. There are no equivalent physical or visible ‘markers’ of civilian status as thereare for combatants. The difficulty of the negative definition becomes most apparent during the legaladjudication of a person’s status as either civilian or combatant. With no key markers or attributesthat can be used as evidence to identify a civilian or prove such status during the legalenforcement of crimes, the central question becomes whether a person is or is not a combatant,rather than whether they are or are not a civilian.44 The designation of civilian status thus restsupon an interpretation of forms of actions or appearance that are understood not to characterisecombatant status. As will be shown, the particular difficulty of current legal rules is that there are

38 This article draws on the ‘generic’ definition of a combatant to mean those persons who are directlyparticipating in hostilities and ‘do not enjoy the protection against attack accorded to civilians’(Henckaerts and Doswald-Beck, 2005, p. 3).

39 D. Miloševic, Judgement, para. 945.

40 Ibid., para. 947.

41 See Rogers (2004, pp. 9–12) for discussion of the circumstances in which civilians can legitimately be thetarget of violence.


43 Fieldwork notes taken during courtroom observation at the trial of The Prosecutor v. Dragomir Miloševic,February 2007, the ICTY, The Hague, the Netherlands.

44 Ibid.

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certain categories of civilians whose status in conflict will be under greater scrutiny due to the natureof their social characteristics, a situation that will impact upon the legal recognition of their status assuch and the harms perpetrated against them.

Civilian victims on trial: the adjudication of identity, status and protection

The identification of the victims of acts of violence under adjudication as either civilian or combatantwas a central aspect of the D. Miloševic case. Ewald argues that an underlying rationale of internationalcriminal justice is the process of ‘constructing “victims”’ (2006, pp. 173, 187). As Ewald suggests, thisprocess of constructing victims works through criminal prosecutions and adjudications during trialproceedings (2006). The charges brought against an accused constitute legal recognition that his orher alleged actions were an act of violence against an individual or collective of persons. Theydetermine that the acts require adjudication by a court of law. How, then, do the legal practices of atrial construct persons as civilian victims of a crime if there is no ‘positive’ definition of a civilian?How are civilian victims recognised as such during trial proceedings?

The victim-witnessesDeveloping the legal (non)-definition of civilians, Slaughter and Burke-White argue that civiliansshould be characterised as ‘individuals who do not choose to engage in armed conflict, who seekonly to go about their lives and participate in their communities’ (2002, p. 67). This designation of‘civilian’ status does not simply relate to individuals who avoid the violence of conflict. Rather,this definitional term identifies those individuals who make an express choice not to engage inhostilities, and instead seek to retain some semblance of ‘normality’ to their lives despite the ever-present threat of violence and victimisation.

By employing Slaughter and Burke-White’s definition of ‘civilians’, we can see that many victim-witnesses in the D. Miloševic trial understand themselves in this way. During the trial proceedings anumber of the victim-witnesses identified themselves as civilians, explicitly stating that they were‘speaking as a civilian’ during their testimonies.45 In this way, these victim-witnesses drew on thelegal category of ‘civilian’, as opposed to combatant, and stated that they held this definitional status.

However, while many other victim-witnesses did not explicitly speak of being a civilian, theirself-characterisation as such was evident through their portrayal of certain aspects of theirappearance or actions. This self-characterisation of being a civilian victim figured in three mainways during the testimonies, each of which has parallels to Slaughter and Burke-White’s framing.First, the victim-witnesses emphasised their civilian identity through their informed choice not toparticipate in military conduct:

Q: ‘Did you know at the time where the ABiH army soldiers were?’A: ‘No, I didn’t know. I wasn’t a soldier; I was simply a civilian. And I didn’t knowwhere they were.’46

Q: ‘Did you sometimes see soldiers pass through Sokolovic Kolonija and Hrasnica?’A: ‘No. No, no one. Not those soldiers and not those others. I never saw that. I did say that, didn’t I?I didn’t want to know about those things. God forbid I should have seen anything like that. I neversaw a single rifle. There was a war on, but I didn’t see anything . . . I didn’t see either army. Please,don’t ask me about that. I wasn’t interested. I didn’t know about that. All I wanted to know aboutwas my children and whether they would make it.’47

45 D. Miloševic, Transcript of Trial Proceedings, 17 January 2007, para. 570.

46 Ibid., 28 February 2007, para. 2885.





An important narrative throughout the testimonies of many victim-witnesses was an articulation oftheir civilian status through an active denial of being a combatant or participating in militaryconduct. As the examples above illustrate, the victim-witnesses forcefully expressed that there wasa distinct separation between their own status as civilians and others who were combatants ormembers of the military. This separation was understood through the absence of a wish to knowany details of military actions or of participating in such activities. In this sense, the victim-witnesses emphasised their civilian status by focusing upon their deliberate choice not to engagein the siege as a combatant or supporting their conduct. These victim-witnesses did not simplyremove themselves as far as possible from military operations, but made an informed choice notto engage or have any knowledge of their perpetration.

The second way that the victim-witnesses presented themselves as civilians was by narratingtheir attempts to maintain a degree of ‘normality’ through the carrying out of tasks necessary toeveryday life. As one witness, similarly to many others, illustrates, her presence as a civilian in theconflict rested upon protecting herself and her children:

Q: ‘And now I’mgoing to be asking you some questions about the day onwhich youwere shot. Onthe 18th of November, 1994, did you leave the place that you were living in Bistrik?’A: ‘Yes. I went to my mother-in-law’s to collect some firewood.’Q: ‘Why did you need to go to your mother-in-law’s residence in order to collect firewood?’A: ‘I didn’t have firewood at home to make fire for my children.’Q: ‘Was there any reason connected to the war that you had to go and get firewood? Let me ask adifferent question. How would you normally cook in your residence during times of peace?’A: ‘I was using electricity.’Q: ‘Were you able to use electricity during the armed conflict?’A: ‘No. It just was there occasionally and then it went off again.’Q: ‘Did you use the wood that you were going to your mother-in-law’s for to cook food with?’A: ‘Yes.’48

This victim-witness presented her experience of the conflict in terms of carrying out actions tofacilitate everyday life, such as collecting firewood to cook, despite the obvious risks of travellingthrough the besieged city. As a civilian, the continuance of everyday life meant protecting herown life and that of others from the harms of the military actions that they chose not to engagein. Notably, this protection of self and others did not figure only as safety from direct harms suchas sniping or shelling, but also from indirect harms prevalent during hostilities, such as hungerand an impoverished environment.

Third, as this victim-witness and many others describe, their ‘civilian’ engagement in the conflictwas presented and understood as a relational experience of harm or of an ever-present potential harm.Dembour and Haslam point out that witnesses often narrate conflict in terms of other persons, inparticular those that they have lost through the hostilities (2004, p. 159). The witnesses portraythe experience as a situation shared (and feared) with others, most often family and friends, wholived through the same atmosphere of violence and victimisation:

THE WITNESS: ‘Thank you very much. You know what your job is. Thank you very much forallowing me to get it off my chest, what I have been suffering from, in the name of the childrenand all other people who suffered. Thank you, and I appreciate this Honourable Court.’49

A large number of the testimonies of the civilian victim-witnesses in D. Miloševic were not solelydirected at portraying their own injuries or experiences. Rather, the relational experience of

48 Ibid., 22 January 2007, para. 764.


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conflict can be seen through their using the opportunity to testify as a means to speak of the harms ofothers. The civilian victim-witnesses therefore presented themselves as ‘civilian’ through theirinformed choice not to participate in hostilities, but also through their lived experiences ofconflict as both a structural environment of harm and a relational experience endured by boththemselves and others.

The ProsecutionSomewhat surprisingly, the prosecution did not begin by asking the victim-witnesses to identify theirstatus as a civilian during the conflict. Nor did they ask whether they were a combatant or hadengaged in military operations. Instead, for each of the victim-witnesses that had been injured, theProsecution’s approach was to adduce a ‘positive’ identification of the victim as a civilian.Following the self-identifications of the victim-witnesses as civilians in line with Slaughter andBurke-White’s definition, the Prosecution brought evidence of their ‘civilian’ presence in theconflict and ‘markers’ of their civilian status before the Trial Chamber:

Q: ‘Mr. Witness, how old were you when the war began?’A: ‘Fourteen.’Q: ‘Where were you living between August 1994 and November 1995?’A: ‘In Sarajevo . . .’

Q: ‘What town were you living in at that time, between August 1994 and November 1995?’A: ‘Novi Grad.’Q: ‘Between those dates–again, August 1994 and November 1995–with whom were you living?’A: ‘With my mother and sister.’Q: ‘How did you get access to food?’A: ‘It was difficult.’Q: ‘Can you explain?’A: ‘There was a war on. Sarajevo was surrounded. It was difficult to get any food aside from thehumanitarian aid that kept arriving.’Q: ‘And who was responsible for feeding your family?’A: ‘I, for the most part.’Q: ‘How did you get water?’A: ‘That was difficult, too.’Q: ‘Did you go out of your house to get food and water?’A: ‘Yes.’Q: ‘And how was that?’A: ‘Water came in special water tankers and food came in shipments of humanitarian aid whichwould then be distributed.’Q: ‘Was it easy to go out and get food and water?’A: ‘No, not really.’Q: ‘Why was that, please?’A: ‘Shellings were quite frequent and sniping, too. It wasn’t really that easy.’50

There are no fixed characteristics or actions that can unequivocally ‘prove’ a person’s civilian identity.The ‘negative’ definition of civilians established by the rules of humanitarian law as those personswho are not combatants leaves open the means to identify a civilian. However, in D. Miloševic, theProsecution directed the testimonies of the victim-witnesses towards their giving of key ‘markers’of identity and actions that it considered would represent the victim’s identity as a civilianidentity. Most commonly, this ‘positive’ mode of identification was constructed through

50 Ibid., 23 January 2007, paras. 881–82.




illustrating the young age of the victim, their profession, appearance (typically their clothing) andtheir actions or behaviour at the time of the incident:

Q: ‘Was the tram crowded?’A: ‘Yes, it was pretty crowded.’Q: ‘Can you tell us what you were wearing on that day?’A: ‘I was wearing a light purple jacket, blue jeans, Adidas tennis shoes, and a green blouse and agreen umbrella . . .’Q: ‘Madam Witness, how old were you when this incident occurred?’A: ‘Eighteen, almost 19.’51

The Prosecution does not ask the victim-witness to state they were not wearing a uniform or anyother typically ‘combatant’ signifier. In this way, the Prosecution does not seek to prove that thevictim was not a combatant, but that the victim was in fact a civilian. The ‘positive’ characteristicsof the victim are assumed to present the individual as a civilian amid the siege of Sarajevo and assuch, not a legitimate target of violence.

The DefenceIn contrast, it is notable that the Defence rarely questioned the civilian status of the victim-witnessesthat testified at trial, perhaps because the Prosecution only brought victims whose identity wasunequivocally ‘civilian’ and unlikely to be the subject of a successful challenge. However, on oneof the few occasions that the Defence did raise this challenge to the victim’s identity, theallegation was that the victim was not a civilian but a combatant at the time of his injury:

Q: ‘I have to put it again to you. I’m sorry that as a young person, a young man of 15 years of age,you found yourself in the situation with all the rest of the people of Bosnia-Herzegovina. But I’mputting it again to you that, as young as you were, you were a member of the army of Bosnia-Herzegovina. Can you answer this question for me?’A: ‘You are just putting it to me. And second, I am saying again, and there is verifiable, I was not amember of the army of Bosnia-Herzegovina.’52

Carpenter points out that there has been a conceptual construction of military-aged men in armedconflict as ‘potential combatants’ (2006, p. 164). In this instance of a construction of a victim’sidentity along the combatant–civilian divide, the Defence reflects an empirical example of thisnexus between the status of a male civilian (as the Trial Chamber found him to be)53 and thepossibility that he is a combatant. Reflecting this notion of a ‘potential combatant’, the Defenceseeks to challenge the victim’s status through his gender and age, and create his personhood andpresence in the conflict as ‘ambiguous’ in terms of the principle of distinction. For the Defence, ayoung male ‘may’ have been a combatant, that is, these gendered attributes of personhood create agreater possibility that he will have chosen to participate in military conduct. It is thus notablethat the Defence did not similarly ‘adjudicate’ the identity of females and question their civilianor combatant status. In this way, the Defence reiterates the traditional framing of gender relationsof conflict where it is ‘men who make war’, whilst women stay at home with the children(Cockburn, 2001, pp. 19–20). This understanding of civilians and combatants does not take intoaccount that male civilians are often the express targets of victimisation, as the Srebrenica

51 Ibid., 6 February 2007, paras. 1657–58.

52 Ibid., 7 February 2007, paras. 1749–50.


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genocide so poignantly exemplifies, nor that women are increasingly ‘choosing to enter, or beingenlisted in, national armies’ (p. 20).

This conceptual construction of the witness as a potential combatant also illustrates a lack ofadherence to the legal terms of identifying a civilian. The ‘generally accepted practice is thatcombatants distinguish themselves by wearing uniforms, or at the least, a distinctive sign, and bycarrying their weapons openly’.54 However, in their argument that this male civilian was in fact acombatant, the Defence did not allege that he was wearing a uniform, an insignia or carrying aweapon. This allegation does not appear to have any substantive basis, either from the testimonygiven by the witness or that of other witnesses. There is no evidence that this victim had been acombatant or had any military connections. Rather, the Defence’s proposition appears to havearisen solely from the (male) gender of the victim and his (young) age. Contrary to the ‘negative’definition of civilians held by the rules of humanitarian law, this Defence argument suggests thatthe lack of obvious ‘markers’ of civilian or combatant status held by this victim creates thepossibility that he was a combatant. In this way, the Defence suggests that civilians must presentthemselves as distinct from combatants. However, as young male civilians cannot removethemselves from traditional combatant markers of identity, the Defence’s contentions in D.Miloševic suggest that the status of this category of persons will always be a matter of particulardispute in both the practice of conflict and the legal adjudication of its conduct.

The Trial ChamberIn theD.Miloševic judgment, the Trial Chamber sets out its determination of whether the victimwas acivilian or a combatant for each incident of sniping. For each victim, the Trial Chamber reiterates theProsecution’s ‘positive’ markers of civilian identity, namely their age, ‘civilian’ clothing and actions,and the Defence’s challenge (if any) to this identification. In the overwhelming majority of the casesof sniping, the Trial Chamber does not raise any issues over the identification of the victim andsimply declares the victim a civilian and, as such, a civilian victim of a crime alleged against theaccused.

However, the Trial Chamber looks to further evidence of the victims’ appearance and actions tocorroborate their civilian status. For example, it emphasises that the clothes worn by one victim‘would have enabled the shooter to identify her as a civilian’ as ‘the colours would have been visiblewith optics mounted on the rifle’.55 It is now considered customary law that in ‘case of doubtwhether a person is a civilian, that person shall be considered a civilian’.56 However, in the smallnumber of incidents where the civilian identity of the victim was called into question, the TrialChamber does not appear to fully adhere to this principle. In D. Miloševic there is no evidence thatany of the victims were wearing a uniform, an insignia or carrying weapons at the time of theirinjury, as the terms of API require a combatant to do. Following the ‘negative’ defining of civilians,there are no indications that any of the victims were combatants, but were civilians. By drawingattention to the victim’s clothing, the Trial Chamber (similarly to the Defence) appears to place afurther requirement for civilians to distinguish themselves as such through their portrayal of a‘civilian’ appearance and actions. In this way, the onus of combatants alone to distinguishthemselves during conflict is broadened to a similar need for civilians to do likewise. Such arequirement appears particularly problematical, for, as argued above, in evidential terms there are nodefinitive ‘markers’ of civilian identity. There are no definitive means for civilians to protectthemselves from being attributed combatant status, either by the military or by a court of law.







The legal recognition of civilian victims

UsingD. Miloševic as a case-study, this article has explored the construction of the legal recognition ofcivilians through the rules and practices of international criminal justice. It examined the conceptualmodels of civilians utilised by the victim-witnesses themselves, and by the Prosecution, the Defenceand the Trial Chamber. This case illustrates that the parties to the trial do not employ a singular orconsolidated approach to the process of constructing the legal recognition of individual civilians andtheir status as such. Rather, they each utilise different frameworks of identity construction to‘adjudicate’ the status of the victims that come before the court.

The different approaches employed by the parties to the D. Miloševic trial are important forhighlighting two key difficulties with the contemporary construction of the legal category andconcept of the civilian victim. First, analysis of the D. Miloševic case suggests that the ‘negative’definition of civilians has significant substantive and conceptual implications for the legaladjudication of the civilian status of victims of conflict. Most importantly, the conceptual framing ofcivilians as persons who are not combatants fails to attribute a distinct identity or ‘markers’ ofidentity to this category of persons. There are no standard means for the parties to a trial to prove ordisprove the civilian status of an individual. For this reason, the process of legally recognising anddefining persons in situations of conflict rests upon an interpretation of their nexus to the military.Whether by military personnel or the adjudicatory processes of a court of law, the assessment of aperson’s status focuses on whether they are or are not a combatant, rather than whether they are orare not a civilian. The consequence of this process, as D. Miloševic highlights, is that socialcharacteristics such as gender and age are drawn upon and become influential during the legalpractices that work to recognise persons as civilian victims of conflict. For example, there is aconceptual conflation of certain social groups of persons, such as young males, with combatantstatus, which leads to particular scrutiny of their identity and actions (Carpenter, 2006). Theimplication of such nexus may be the failure for certain civilians to find legal recognition as suchthrough the practices and procedures of the law. Without that legal recognition, the courts cannotnecessarily enforce their legal protections nor redress instances of their breach.

Second, if the legal rules of humanitarian law fail to conceptually construct civilians as a categoryof persons with a distinct identity, they also fail to recognise the agency of such persons in terms oftheir choices and actions during situations of conflict. Helen Kinsella points out that since its earliestmanifestations, the civilian has been seen ‘as an “innocent” and as a “protected person”’ rather than anagent (2006, p. 257). In legal terms, there is no conception of civilians as agentic persons who activelyseek to act as civilians, and not as combatants, during a situation of conflict. While this category ofpersons undoubtedly requires protection and assistance, this conception of ‘innocent’ or ‘passive’civilians does not align with the reality of the agentic qualities of their choices and actions. As thevictim-witnesses referred to above describe, the very basis of their self-characterisation as civilianswas their informed choice not to participate in the hostilities and the active struggle to maintainnormal lives for themselves and others. It was this agency of choosing to be a civilian rather thana combatant that shaped and gave meaning to their experience of the siege. There was not aperception of being a ‘passive’ participant or ‘non-combatant’, but of actively enacting andretaining their civilian status through informed choices and actions.

Conclusion

While the international community has increasingly focused on the protection of civilians insituations of conflict, little attention has been paid to the legal practices that work to recognisecivilians as victims of the crimes of war. In cases such as D. Miloševic, the status of the victims ascivilian is an integral aspect of the case and its adjudication at trial. Victim-witnesses came before

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the court not only to provide evidence in relation to the actions of the accused, but also to testify totheir civilian status at the time of the commission of the crime. Without proof that the victims werecivilians and not combatants, the Trial Chamber cannot find the accused guilty of the crimes allegednor affirm that his or her conduct was the cause of such fatalities and injuries.

However, the substantive and conceptual difficulties with the construction of the legalrecognition of the civilian victims of conflict indicate that it is necessary to reconsider thelegal category and concept of the civilian. This analysis suggests that the current ‘negative’ legaldefinition of civilians does not adequately attribute a distinct identity to civilians as a category ofpersons present in situations of conflict. There is no conception of ‘who’ a civilian may be, norany understanding of typical markers or features that could identify such persons. As has beenshown above, this lack of identity causes particular difficulties for legally constructing recognitionof civilians during trial practices.

For this reason, it appears that it is necessary to further analyse and explore the concept andcategory of the civilian. In particular, it is important to begin to develop a ‘positive’ definition ofcivilians that better reflects their role, choices, actions and experiences of conflict. This definitionrequires reconceptualising civilians as a category of persons with a distinct ‘positive’ identity,without nexus to combatants or the military. As noted above, Slaughter and Burke-White describecivilians as ‘individuals who do not choose to engage in armed conflict, who seek only to goabout their lives and participate in their communities’ (2002, p. 67). Civilians are therefore agenticpersons; they choose not to participate in conflict as part of the military, or know of the nature ofits conduct. However, although this choice not to participate in the military conduct of a conflictreflects one aspect of the actions and agency of civilians, this definition of civilians remains in the‘negative’ and so does not overcome the definitional nexus to the military.

If one aspect of the identity of civilians is their choice not to participate in conflict, then the D.Miloševic case shows us that the other main factor defining this status is their active struggle tomaintain a normal life amid the violence. Similarly, an expert witness in another ICTY case,Prosecutor v. Momcilo Perišic, describes that civilians can be identified through their attempts ‘tojust get on with normal life’.57 It is this maintenance of normal life, as far as it is possible in aconflict, that was referred to by civilian victim-witnesses through their carrying out of actionssuch as cooking and collecting firewood. These actions display their agency in protectingthemselves and others from the harms of a conflict. However, there are difficulties withnumerating specific actions that can definitively ‘prove’ civilian status. For this reason, adefinition or identification of civilians through their attempts to maintain their normal lives mustnecessarily be contextual. Whether by the military or a court of law, the interpretation of civilianstatus through the actions of persons must always take account of the particular features of theenvironment, of the presence of systematic violence such as shelling and sniping, for example, aswell as the overall context of the conflict. An interpretation of ‘normal life’ has to consider thedifferent means that a civilian may utilise to protect themselves and others from forms of bothdirect and indirect violence.

Therefore, if a contextual notion of the maintenance of normal life as an aspect of the presenceand participation of civilians is conceptually and analytically prioritised, the definition of civiliansput forward by Slaughter and Burke-White can be reformulated to ‘civilians are individuals whochoose to maintain their normal lives and participate in their communities’. As such, thisreformulation constructs a ‘positive’ definition which provides a means of understanding andidentifying civilians as a category of persons in their own terms. This definition overcomes thereliance of conceptualising or identifying civilians only in relation to their lack of a connection

57 Fieldwork notes, The Prosecutor v. Momcilo Perišic, Case No. IT-04-81, 2 February 2009.




with the military. It conceptually prioritises the agency of civilians in choosing to maintain theirnormal lives and protect themselves and others. This reworked ‘positive’ definition thereforeconceptualises civilians as a distinct category of persons through the nature of their choices and actions.

This new ‘positive’ definition also enables us to reconsider how the process of legally recognisingcivilians could be undertaken during trial proceedings. First, this positive definition of civilians canbe used to begin to develop a framework through which the parties to a trial could recognisepersons as civilians. It can work to frame definitional qualities of a civilian in the same manner aswearing a uniform, an insignia and carrying arms openly, are specified as ‘markers’ of combatantidentity. As noted above, the designation of persons as combatants rests on the nature of theirchoices and actions, namely, whether they are directly participating in the hostilities. Thedevelopment of a framework through which to identify civilians can therefore begin with theidentification of choices and actions that signify persons who are attempting to maintain theirnormal lives and participate in their communities. For example, tasks such as cooking, shopping orcarrying water to homes are all ‘markers’ of civilians trying to maintain a normal life. Although asPalmer-Fernandez points out, there will always be ‘grey areas’, of persons whose actions may not beeasily distinguishable as ‘civilian’ or ‘combatant’ (1998, p. 515), the development of a framework ofactions understood as markers of civilian identity shifts the focus of trial proceedings away fromnotions of what a combatant would not be or do, to a conception of who a civilian is through theirchoices and actions. It would work to frame an account of ‘positive’ markers of civilian identity thatcould be used as evidence at trial to support the ‘adjudication’ of the identity of such persons.

Second, then, this framework of civilian choices and actions can be used to develop a standard andconsistent basis through which the parties to a trial can approach the process of legally recognisingpersons as civilians. There is no standard legal practice for approaching the task of identifyingpersons as civilians. Rather, the parties to a trial utilise different approaches, and often evoke notionsof social characteristics such as age or gender to either substantiate or exclude persons from havinga civilian status. However, by developing a positive definition of a civilian and a framework ofactions that works to identify such persons, there can be a subsequent development of a standardbasis through which to adjudicate the identity of persons as civilians. This standard basis ofidentifying persons would not start with an assumption that a person was or could be a combatant,such as through their being a young male for example, but instead would begin with ascertainingwhether the person displayed choices or actions of being a civilian as outlined above. This new legalpractice could therefore work to overcome the problematic use of evoking social characteristics toinfer that certain groups are more likely to be combatants, or conversely more likely to not holdthat status. It could provide a new legal framework that enables all civilians to be equally definedand identified as civilian victims of acts of harm during conflict.

The legal recognition of the civilian victims of armed conflict is an important issue ofcontemporary concern. The role of international criminal justice institutions in adjudicating theidentity of this category of persons is central to this process. However, the D. Miloševic case showsthat there are significant difficulties with the construction of the legal recognition of civilianvictims when acts of victimisation come to trial. Although the challenges of recognising civiliansthrough a legal framework will continue, it is suggested that reformulating the category andconcept of civilians can go some way towards addressing these difficulties.

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