I'll add the definition from the Rome statute that, by my read, establishes a war crime when there is intent to commit the civilian strikes:

     Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

    A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

Still this is a legal defense that might plausibly be used during a trial, not necessarily a reason to skip a trial.