Towards a Better Understanding of the Concept of ' Indiscriminate Attack' - How International Criminal Law Can be of Assistance

The concept of ‘indiscriminate attack’ is directly related to the principle of distinction and therefore serves an important function in international humanitarian law. For the purpose of attributing individual criminal responsibility, however, the concept is insufficiently precise, as it covers a wide array of mens reae, ranging from direct (malicious) intent to kill civilians, via callous disregard for civilian lives, to an intent to target military objects, while knowing that they will demand an excessive toll. International criminal law can thus assist in explaining how the rather elusive concept of indiscriminate attack can be understood in terms of human intents and purposes. In its turn, the determination that an attack is indiscriminate can inform the (international) criminal courts why the waste of civilian lives is clearly excessive to the anticipated military advantage, which is classified as a war crime under the Rome Statute. This chapter seeks to demonstrate how international humanitarian law and (international) criminal law can be complementary and mutually beneficial in elucidating this fascinating concept.