Table of contents:
3. The perpetrator directed an attack.
P.1. Evidence of an armed attack.
P.2.1. Evidence of a sniper shooting at a peacekeeper.
P.2.2. Evidence of firing at humanitarian aid assistance workers.
P.3. Evidence of beating and killing.
P.4. Evidence of firing a missile.
P.5. Evidence of placing a bomb.
P.6. Evidence of destroying property.
P.7. Evidence of placing mines.
Element:
3. The perpetrator directed an attack.
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:
"903 ICRC Commentary on the Additional Protocols, p 603. See also Kordić Appeals Judgment, para 47."
"71 See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgment, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgment, 26 February 2001 (hereinafter "Kordic Trial Judgment"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgment, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72See Blaskic Trial Judgment, para. 180. In the Blaskic and Kordic Trial Judgments an additional condition is mentioned, that the attack was launched not through military necessity (Ibid.). The Trial Chamber in the Galic case observed, however, that Article 51 (2) of Additional Protocol I states in clear language that civilians and the civilian population as such should not be the object of attack and does not mention any exceptions, in particular that provision does not contemplate derogating from that rule by invoking military necessity (Ibid., para. 44).
73 See Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Judgment, 7 May 1997 (hereinafter "Tadic Trial Judgment"), para. 638 and Blaskic Trial Judgment, para. 214."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 52:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001 para. 47:
"49 This definition applies to the crime of unlawful attacks against civilian objects as well."
Article 49(1) of the First Additional Protocol defines "attacks" as "acts of violence against the adversary, whether in offence or defence". Article 9(1) of the Convention on the Safety of United Nations and Associated Personnel, which largely inspired the Statute of Rome provision, refers to "Crimes against United Nations and associated personnel" as "[t]he intentional commission of (a) A murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel; (b) A violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty; [ ]". Michael Bothe is of the opinion that, as article 9 of the Convention also uses the word "attack" as the central concept to define the acts which have to be made punishable, "the war crime defined in (iii) is co-extensive to the type of crime defined in Article 9 of the Convention. (Michael Bothe in Cassesse, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court, p. 410;)?. Moreover, it is interesting to note that the Special Court for Sierra Leone has charged several individuals for abducting and holding hostage humanitarian assistance personnel and peacekeepers assigned to the United Nations Mission in Sierra Leone (UNAMSIL) under the article 4 of its Statute (Issa Haasan Sesay, Amended Consolidated Indictment, SCSL) and the ICTY has charged Karadzic with the same offence regarding UN military observers and UN peacekeepers under violation of the laws or customs of war (Karadzic, Amended Indictment, ICTY).
?See also Gerhard Werle, Principles of International Criminal Law, para. 1141: "Any type of use of force against humanitarian relief organizations and peacekeeping missions is covered ( ) The list in Article 9 [of the Safety of United Nations and Associated Personnel Convention] can be used to clarify the term "attack"". However, we can note Michael Cottiers opinion to the contrary, stating that "if it would be contended that the protection of article 8 para. 2 (b) (iii) goes beyond a strict Hague law interpretation, it might be preferable to limit such an extension to specific offenses such as kidnapping of humanitarian or peacekeeping personnel than to extend the meaning of "attacks" to the whole range of (serious) attacks upon the person or liberty". (in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 8, para. 48). See also the same position held by .M.-Christiane Bourloyannis-Vrailas (M.-Christiane Bourloyannis-Vrailas, Crimes against United Nations and Associated Personnel, in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law. Volume I: Commentary, p. 363).
P.1. Evidence of an armed attack.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 649:
"55.In a resolution on Somalia adopted in 1994, the UN Security Council condemned "violence and armed attacks against persons engaged in peace-keeping efforts" and re-emphasised the importance it attached to "the safety and security of United Nations and other personnel engaged in peacekeeping throughout Somalia48".
"48UN Security Council, Res. 897, 4 February 1994, Preamble."
P.2.1. Evidence of a sniper shooting at a peacekeeper.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 654:
"89. In 1995, in a statement by its President following the fatal shooting of a French peacekeeper by a sniper in Sarajevo, the UN Security Council condemned "in the strongest terms such acts direct at peace-keepers who are serving the cause of peace in the Republic of Bosnia and Herzegovina" and reiterated that such attacks "should not remain unpunished".87"
"87UN Security Council, Statement by the President, UN Doc. S/PRST/1995/, 14 April 1995."
P.2.2. Evidence of firing at humanitarian aid assistance workers.
P.3. Evidence of beating and killing.
P.4. Evidence of firing a missile.
P.5. Evidence of placing a bomb.
P.6. Evidence of destroying property.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 635:
"343. In a resolution adopted in 1999 on the safety and security of humanitarian personnel and protection of UN personnel, the UN General Assembly strongly condemned "acts of destruction and looting" of the property of those participating in humanitarian operations.347 The General Assembly urged all states "to take the necessary measures to respect and ensure respect for the inviolability of United Nations premises".348"
"347 UN General Assembly, Res. 54/192, 17 December 1999, preamble.
348 UN General Assembly, Res. 55/92, 17 December 1999, §2."
P.7. Evidence of placing mines.
A. Legal source/authority and evidence:
ICRC, Commentary on the Additionnal Protocols of 8 June 1997 to the Geneva Conventions of 12 August 1949, para.1081:
"During the above-mentionned enquiry the question arose whether the placing of mines constituted an attack. The general feeling was that there is an attack whenever a person is directly endangered by a mine laid".
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 649:
"In a resolution adopted in 1994 in the context of the conflict in Bosnia and Herzegovina, the UN Security Council condemned "the harassment and the detention of UNPROFOR personnel by the Bosnian Serb forces and all obstacles to UNPROFORs freedom of movement".52"
"52 UN Security Council, Res. 913, 22 April 1994, Preamble."
P.10. Not required: a harmful result of the attack.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p. 153:
"As for all war crimes involving certain unlawful attacks, the PrepCom discussed rather intensively whether this war crime requires actual damage to personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission as a result. [ ] For the crime to be committed it would be sufficient that, for example, an attack was launched against any of the objectives mentioned in this crime, even though, due to the failure of the weapon system, the intended target was not hit".
