Table of contents:
Element:
4. Such towns, villages, dwellings or buildings were open for unresisted occupation.
P.13. Evidence of lack of military personnel or installations.
Legal source/authority and evidence:
1976 amendment to FM 27-1 (The US Army Law of Land Warfare Manual):
"An undefended place, within the meaning of Article 25, HR, is any inhabited place near or in a zone where opposing armed forces are in contact which is open for occupation by an adverse party without resistance. In order to be considered as undefended, the following conditions should be fulfilled:
(1) Armed forces and all other combatants, as well as mobile weapons and mobile military equipment, must have been evacuated, or otherwise neutralised;
(2) no hostile use shall be made of fixed military installations or establishments;
(3) no acts of warfare shall be committed by the authorities or by the population; and
(4) no activities in support of military operations shall be undertaken."
The 1958 British Manual on the Law of Land, Warfare, drafted by Sir Hersch Lauterpacht, states at para. 290:
"An undefended or "open" town is a town which is so completely undefended from within or without that the enemy may enter and take possession of it without fighting or incurring casualties. It follows that no town behind the immediate front line can be open or undefended for the attacker must fight his way to it. Any town behind the enemy front line is thus a defended town and is open to ground or other bombardment, subject to the limitations imposed on all bombardments, namely, that as far as possible, the latter must be limited to military objectives. This means that hospitals, convalescent homes, churches and monuments duly marked by signs notified beforehand must not be deliberately attacked if they are not used for military purposes. Thus, the question of whether a town is or is not an open town is distinct from whether it does or does not contain military objectives. A town in the front line with no means of defence from outside and into which the enemy may enter and of which he may take possession at any time without fighting or incurring casualties, e.g., from crossing unmarked minefields, is undefended even if it contains munitions factories. On the other hand, all defended towns whether situated in the front line or not may be subjected to bombardment provided that it is not directed solely against non-military objectives duly marked as mentioned above.
1 If a town is covered by artillery fire from the flanks or rear areas or by air or naval over, or by minefields around it, even though there is no resistance from within, it is not an "open town" and is liable to bombardment.
2 Hague Rules 27, see paras. 300-305. The presence of military sick and wounded, and medical personnel, ambulances, etc., in such a building does not amount to military purpose within the meaning of this rule.
3 On the whole topic, see Jennings in B.Y., vol. 22, p. 258-264. The reason for the rules as stated in the text is the practical consideration that any town which can be seized without fighting is in a similar position to a town that has surrendered. It should not be destroyed solely for purposes of devastation."
P.14. Evidence of the inhabitants having gone away to hide in the woods.
A. Legal source/authority and evidence:
"586. The accused Radomir Kovac, too, was fully aware of the attack against the Muslim villagers and aware of the fact that his acts were part of the attack. According to several Defence witnesses, Kovac himself said that Muslims, in particular Muslim women, were in danger or at risk in Foca. Kovac personally took part in the violent take-over of Trosanj on 3 July 1992, an undefended village whose inhabitants had taken to the woods in fear. During the attack, several villagers were killed or beaten up and the women were rounded up. The Trial Chamber notes that two of the women who were later kept in Kovac's apartment, FWS-87 and FWS-75, had actually been captured in this village that very day. Kovac knew and conceded that the four women were civilians.1372"
P.15. Evidence of occupation without military resistance.
A. Legal souce/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 183:
"183. Akhavan shared the view of Lt.-Col. Watters that Ahmici was not a military target but an undefended village and that the civilian inhabitants who were victims of the attack offered no military resistance. The attack on Ahmici lasted only one day, with the take-over and destruction completed on 16 April 1993. The exact number of victims was impossible to determine with certainty since many bodies could not be recovered from the rubble due to the danger of unexploded mines and booby-traps. Three hundred of the original Muslim inhabitants were still missing and in addition to these locals there had also been a large number of refugees in Ahmici on the day of the attack who had yet to be accounted for. Akhavan stated in cross-examination that although there were atrocities against Croats, for instance the beheading of a Croat in Miletici apparently committed as a reprisal for Ahmici by rogue Mujahedin, looking at central Bosnia as a whole, the Muslims were disproportionately victimised. There was a climate of fear and terror in the region that everyone experienced, but allegations of large-scale atrocities committed against Croats, for example in Zenica, were not credible at the time.224 The attack on Ahmici was part of a pattern, according to Akhavan, namely that of establishing control by means of "ethnic cleansing" and there had been simultaneous and concerted attacks on Ahmici and surrounding villages."
224. Payam Akhavan, T. 1330-1331. and T. 1241-1242.
P.16. Evidence of occupation within short time.
A. Legal souce/authority and evidence:
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 183:
"183. Akhavan shared the view of Lt.-Col. Watters that Ahmici was not a military target but an undefended village and that the civilian inhabitants who were victims of the attack offered no military resistance. The attack on Ahmici lasted only one day, with the take-over and destruction completed on 16 April 1993. The exact number of victims was impossible to determine with certainty since many bodies could not be recovered from the rubble due to the danger of unexploded mines and booby-traps. Three hundred of the original Muslim inhabitants were still missing and in addition to these locals there had also been a large number of refugees in Ahmici on the day of the attack who had yet to be accounted for."
