Table of contents:
Element:
4. The perpetrator made such use in a manner prohibited by the international law of armed conflict.
P.1. Evidence of lack of authorisation to display the UN flag.
A. Legal source/authority and evidence:
Article 38, Additional Protocol I:
"Article 38- Recognized Emblems
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2. It is prohibited to make use of the distinctive emblem of the United Nations, except as authorized by that Organization.
ICRC Commentary to Additional Protocol I, p. 459:
"The use of the United Nations flag forms the object of a code issued for the first time by the Secretary General on 19 December 1947, and amended on 11 November 1952.42 Article 6 of the Code specifies that the flag cannot be displayed during military operations, except when this has been specifically authorized by a competent organ of the United Nations."
"42. The United Nations Flag Code and Regulations, ST/SGB/132, United Nations, January 1967."
[B. Evidentiary comment:]
P.2. Evidence that warships and auxiliary vessels simulated the status of a UN-protected vessel.
Article 37, Additional Protocol I:
1 [ ] Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy:
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(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.
Knut Dörmann, Elements of War Crimes under the Rome Statute of the Internatioanl Criminal Court (2003), p. 205:
"With regard to naval warfare, the following rule described in the San Remo Manual reflects customary international law in this field:
Warships and auxiliary vessels, however, are prohibited at all times from actively simulating the status of:
(d) vessels protected by the United Nations flag; 24"
24. San Remo Manual, no. 110, pp. 184 ff.
