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Case File No. 002/19-09-2007/ECCC/TC
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185. In determining whether a population may be considered to be ‘civilian’, the
Chamber notes that there was no established definition of civilian under customary
international law in April 1975. The ordinary meaning of the term “civilian” (in
English) and “civil” (in French) encompasses persons who are not members of the
armed forces. On this basis, the Chamber holds that at the time relevant to the charges
here at issue, the civilian population included all persons who were not members of
the armed forces or otherwise recognised as combatants. While the Chamber does not
here rely on the definition of “civilian” set out in Article 50 of Additional Protocol I
to the 1949 Geneva Conventions, adopted by the ad hoc Tribunals as reflecting
customary international law for the purposes of crimes against humanity post-1977,555
it notes that this accords with the ordinary meaning of the term.556
186. In determining civilian or non-civilian status of a person, the specific situation
of the individual at the time of the crimes may not be determinative. A member of an
armed organisation is not accorded civilian status by reason of the fact that he or she
is not armed or in combat at the time of the commission of the crimes.557 Accordingly,
soldiers hors de combat do not qualify as ‘civilians’ for the purposes of Article 5 of
the ECCC Law.558 As a general presumption, the armed law enforcement agencies of
a State are considered to be civilians for purposes of international humanitarian
law.559 A person shall be considered to be a civilian for as long as there is doubt as to
his or her status.560
187. Where the civilian population is the object of an attack, “there is no
requirement nor is it an element of crimes against humanity that the victims of the
underlying crimes be civilians.”561 Thus, a soldier who is hors de combat may be the
victim of an act amounting to a crime against humanity, provided that all other
555
Blaškić Appeal Judgement, paras 110-113. Article 50 of Additional Protocol I refers also to Article
43 of Additional Protocol I and Article 4A of the Third Geneva Convention.
556
Martić Appeal Judgement, para. 297.
557
KAING Guek Eav Trial Judgement, para. 304; Blaškić Appeal Judgement, para. 114.
558
KAING Guek Eav Trial Judgement, para. 304; Mrkšić and Šljivančanin Appeal Judgement, para.
35.
559
KAING Guek Eav Trial Judgement, para. 304; Sesay Trial Judgement, para. 87.
560
KAING Guek Eav Trial Judgement, para. 304; Blaškić Appeal Judgement, para. 111.
561
KAING Guek Eav Trial Judgement, para. 311, referring to Mrkšić and Šljivančanin Appeal
Judgement, para. 32.
Case 002/01, Judgement, 7 August 2014 - Public
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