Table of contents:
Element:
Articles 8 (2)(b)(i) and (ii) address attacks against civilians and civilian objects. One should refer to the specific MPMDs for a thorough analysis of these provisions. Furthermore, the First Additional Protocol deals with the protection of civilian and civilian objects in articles 51(3) and 52(2): Civilians and civilian objects are entitled to protection unless they take part in hostilities or are used to make an effective contribution to the military action of a party to the conflict.
Specific rules referring to medical units and relief units are found in the First Additional Protocol. In particular, "the personnel of humanitarian assistance missions lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy (see especially Art. 13 (2) Add. Prot. I). Installations, material, units or vehicles of humanitarian assistance missions lose their protection if they are used to commit, outside the missions humanitarian function, acts harmful to the enemy (see for example, Arts. 21 GC I, 34 GC II, 19 GC IV, 13 AP I)" (Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p.159). However, "the personnel involved in humanitarian assistance are entitled to self-defense to the extent protected persons such as medical personnel are permitted to self-defense under international humanitarian law, without forgoing the protection they are entitled to as civilians." (Michael Cottier in Triffterer, Commentary on the Rome Statute of the International Criminal Court, article 8, para. 40).
One can refer to article 2(2) of the 1994 Convention on the Safety of United Nations and Associated Personnel which states that "This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies." D?rmann concludes therefore that "on the basis of these rules, the personnel of peacekeeping missions are entitled to protection, unless and for such time as they take a direct part in hostilities, i.e. are engaged as combatants". The protection "does not cease, in particular, if such persons use armed force only in exercise of their right to individual self-defence. Installations, materials, units or vehicles of peacekeeping missions are entitled to protection, unless and for such time as they are used specifically for these combatant purposes". (Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p.159). Thus, the question of qualifying the use of force as self-defense will be of crucial importance. According to Michael Cottier, "the line between self-defense in the strict meaning of humanitarian law and a use of foce by which the peacekeepers would forgo the protection of civilians will be difficult to draw and to perceive, and will largely depend on the circumstances". (Michael Cottier in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, article 8, para. 44). We leave to the judges of the ICC the task of qualifying those acts and circumstances that will trigger a loss of protection normally awarded to civilians.
P.35. Evidence that the object of the attack did not make a contribution to military action.
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 51:
"51. As mentioned above, in accordance with the principles of distinction and protection of the civilian population, only military objectives may be lawfully attacked.94 A widely accepted definition of military objectives is given by Article 52 of Additional Protocol I as "those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage".95 In case of doubt as to whether an object which is normally dedicated to civilian purposes is being used to make an effective contribution to military action, it shall be presumed not to be so used.96 The Trial Chamber understands that such an object shall not be attacked when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action."
"94Article 52(2) of Additional Protocol I. See Kordić Trial Judgment, para. 327.
95 Article 52(2) of Additional Protocol I.
96 Article 52(3) of Additional Protocol I."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001 para. 53:
B. Evidentiary comment:
The Trial Chamber in Blakić has stated that no offence was committed if the protected object was "in the immediate vicinity of military objectives" (Judgment para.185). The Trial Chamber in Naletilic rejected that approach, saying that "the mere fact that an institution is in the immediate vicinity of military objective justifies its destruction." (Judgment para. 604). In Strugar (Judgment at para. 310) the Trial Chamber favoured the approach in Naletilic, saying that:
"with regard to the differences between the Blakić and Naletilic Trial Judgments noted above (regarding the use of the immediate surroundings of cultural property for military purposes), and leaving aside any implication of the issue of imperative military necessity, the preferable view appears to be that it is the use of cultural property and not its location that determines whether and when the cultural property would lose its protection."
