A/HRC/42/CRP.1
directing attacks against the civilian population as such or against individual civilians not
taking direct part in hostilities is a serious violation of humanitarian law and amounts to a
war crime, which may lead to individual criminal responsibility. 457 The principle of
distinction further prohibits indiscriminate attacks, i.e. attacks that are of such nature to
strike military objectives and civilians or civilian objects without distinction.458 Constituting
indiscriminate attacks are for example attacks using a method or means of combat which
cannot be directed at a specific military objective.459 Launching an indiscriminate attack
resulting in death or injury to civilians is a war crime.460
316. Certain types of explosive weapons with a wide impact area, such as artillery,
mortars, and unguided rockets, which use blast and fragmentation to kill and injure are
inherently inaccurate when used in populated areas. In 2011, the ICRC stated that “due to
the significant likelihood of indiscriminate effects and despite the absence of an express
legal prohibition for specific types of weapons, the ICRC considers that explosive weapons
with a wide impact area should be avoided in densely populated areas.” 461 The use of these
types of weapons against military objectives located in populated areas is “likely to fall foul
of the IHL rules prohibiting indiscriminate and disproportionate attacks.” 462 The principle
of distinction is especially relevant in the context of the use of heavy weaponry in densely
populated areas, as is the case for the shelling incidents described above. Even though there
were identifiable military objectives which may have been the target of the attack, the type
of weapon used and the area at which it was launched rendered the attack indiscriminate.
The Group of Experts has reasonable grounds to believe that Houthi-Saleh fighters were
responsible for attacks into densely populated areas using indirect-fire weapons with wide
area impact amounting to indiscriminate attacks. This may lead to criminal responsibility
for the war crime of launching an indiscriminate attack resulting in death or injury to
civilians.463 Given the circumstances of the attack, for instance the timing of the attack that
hit the central market at a busy hour, the Houthis also violated the obligation to take all
feasible precautions to protect civilians and minimize civilian casualties.
317. As regards the killing of the journalist by a sniper on 16 February 2016, the Group
of Experts has reasonable grounds to believe that he was deliberately targeted by a HouthiSaleh sniper. The fact that he was shot after three civilians had already crossed the road and
the precision with which he was shot in the head show that the sniper shot him deliberately
and that he was not firing indiscriminately. In addition, there was no sign that the journalist
was directly participating in hostilities and had therefore lost his protection as a civilian at
the time that he was killed. The sniper knew or should have known that the person he
targeted was a civilian. This may lead to individual criminal responsibility for the war
crime of intentionally directing an attack against a civilian not taking direct part in
hostilities.
Alleged shelling by Yemeni armed forces and affiliated groups
318. During the conflict in Ta’izz, Yemeni armed forces and affiliated groups also
reportedly fired into inhabited areas controlled by the Houthis using indirect fire weapons
with wide area impact.464 On 9 August 2015, in the afternoon, a mortar round allegedly
457
Article 8 2.(e) (i) Rome Statute.
See ICRC Study on customary IHL, rules 11-12; see also Article 13 Additional Protocol II.
459 See ICRC Study on customary IHL, rule 12.
460 See ICRC Study on customary IHL, rule 156.
461 ICRC, “International Humanitarian Law and the challenges of contemporary armed conflicts:
Report, October 2011”, p.42, available at www.icrc.org/eng/assets/files/red-cross-crescentmovement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf.
462 ICRC, “International humanitarian law and the challenges of contemporary armed conflicts”,
Document Prepared by the ICRC, Geneva, October 2015, (32IC/15/11) for the 32nd International
Conference of the Red Cross and Red Crescent, 8-10 December 2015, Section VII, The use of
explosive weapons in populated areas, p.49 and 50.
463 ICRC Study on customary IHL, rule 156.
464 Confidential Sources on File.
458
74
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