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

Abstract

AbstractContemporary initiatives to address civilian victimisation in armed conflict increasingly focus on international criminal justice institutions, rules and practices. These institutions are now expected to construct 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 Milošević heard by the International Criminal Tribunal for the former Yugoslavia to explore the concept of the civilian. It first examines the international legal frameworks and obligations that enforce the protection of civilians. It then explores the concept of the civilian as defined by the rules of humanitarian law, and the different approaches to defining civilians utilised by the parties to the Milošević trial. The article argues that the current ‘negative’ definition of civilians creates significant difficulties for understanding civilians as a distinct category of persons, and does not adequately capture their choices, actions and experiences in armed conflict.