Table of contents:
3.1. The perpetrator directed an attack; AND
P.4. Evidence of firing rockets.
P.6. Evidence of sinking a ship.
P.8. Evidence of shooting down a plane.
P.9. Not required: a harmful result of the attack.
P.10.1. Evidence of attacking a doctor.
P.10.2. Evidence of attacking a nurse.
P.10.3. Evidence of attacking a surgeon.
P.10.4. Evidence of attacking a dentist.
P.10.5. Evidence of attacking a chemist.
P.10.6. Evidence of attacking orderlies.
P.10.7. Evidence of attacking stretcher-bearers.
P.11. Evidence of attacking staff engaged in the administration of medical units and establishments.
P.11.1. Evidence of attacking office staff.
P.11.2. Evidence of attacking an ambulance driver.
P.11.3. Evidence of attacking a cook.
P.11.4. Evidence of attacking a cleaner.
P.12. Evidence of attacking chaplains.
P.16. Evidence of attacking medical units and establishments.
P.16.1. Evidence of attacking a hospital.
P.16.2. Evidence of attacking a blood transfusion centre.
P.16.3. Evidence of attacking a preventive medicine centre or institutes.
P.17. Evidence of attacking ICRC premises.
P.17.1. Evidence of bombing an ICRC compound.
P.17.2. Evidence of destructing an ICRC delegation.
P.18. Evidence of attacking medical transports
P.18.1. Evidence of attacking an ambulance.
P.18.2. Evidence of attacking medical aircrafts.
P.18.3. Evidence of attacking hospital ships.
P.18.4. Evidence of attacking coastal rescue craft.
3.2.4. Evidence of attacking hospital and safety zones and localities.
P.19. Evidence of attacking hospital and safety zones and localities.
P.20. Evidence that the object of the attack was using a distinctive emblem.
P.21.1. Evidence of the protected status expressed by light signals,
P.21.2. Evidence of the protected status expressed by radio signals.
P.21.3. Evidence of the protected status expressed by electronic identification.
3.4. The object of the attack was not a military objective.
P.22. Evidence of the object lacking strategic importance.
Element:
3.1. The perpetrator directed an attack; AND
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 282:
"282. Pursuant to Article 49(1) of Additional Protocol I to the Geneva Conventions "attacks" are acts of violence against the adversary, whether in offence or in defence. According to the ICRC Commentary an attack is understood as a "combat action" and refers to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict.903 [ ]"
"903 ICRC Commentary on the Additional Protocols, p 603. See also Kordić Appeals Judgement, para 47."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 47:
"47. The term attack is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence".49 Therefore, in determining whether an unlawful attack on civilians occurred, the issue of who first made use of force is irrelevant."
"49 This definition applies to the crime of unlawful attacks against civilian objects as well."
"50. Pursuant to the Tribunals case-law, the crime of attacks on civilians is, as to the actus reus, an attack launched against a civilian population that caused deaths and/or serious bodily injury within that population,71 which, as to the mens rea, must have been conducted "intentionally in the knowledge, or when it was impossible not to know, that civilians were being targeted ".72 The presence of certain non- civilians among the targeted population does not change the character of that population. It must be of a "predominantly civilian nature".73 The following attacks are, among others, prohibited by Article 51: attacks the object of which is "the civilian population as such, as well as individual civilians" (§ 2); indiscriminate attacks, such as those which "are of a nature to strike military objectives and civilians or civilian objects without distinction" (§ 4) and those which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (§ 5 (b))."
"71 See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter "Blaskic Trial Judgment"), para. 180, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (hereinafter "Kordic Trial Judgement"), para. 328 and Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (hereinafter "Galic Trial Judgment"), para. 62.
72See Blaskic Trial Judgement, para. 180. In the Blaskic and Kordic Trial Judgements 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, Judgement, 7 May 1997 (hereinafter "Tadic Trial Judgement"), para. 638 and Blaskic Trial Judgement, para. 214."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 52:
"52."Attack" is defined in Article 49 of Additional Protocol I as "acts of violence against the adversary, whether in offence or in defence." The Commentary makes the point that "attack" is a technical term relating to a specific military operation limited in time and place, and covers attacks carried out both in offence and in defence.97 The jurisprudence of the Tribunal has defined "attack" as a course of conduct involving the commission of acts of violence.98"
"97 ICRC Commentary, para. 4783.
98 Krnojelac Trial Judgment, para. 54; Kunarac Trial Judgment, para. 415."
B. Evidentiary comment:
Article 49(1) of the First Additional Protocol defines "attacks" as "acts of violence against the adversary, whether in offence or defence". According to D?rman, "there are no indications that the notion of attack has a divergent meaning in non-international armed conflicts from its meaning in international armed conflicts". (D?rman, Elements of War Crimes under the Rome Statute, p. 448).
A. Legal source/authority and evidence:
ICRC, Customary International Law, Volume II: Practice, Part I, p. 504:
"147. In its report in 1993, the UN Commission on the Truth for El Salvador held that the summary execution of a Spanish doctor who had entered El Salvador to work as a doctor for the FMLN was a flagrant violation of IHL and human rights law.( )162. The Commission described the summary execution of a French nurse working in an FMLN hospital by a unit of the Salvadoran Air Force as a deliberate attack on medical personnel in violation of IHL.163"
"162 UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, Annex, pp. 89-92.
163UN Commission on the Truth for El Salvadore, Report, UN Doc. s/25500, 1 April 1993, Annex, pp. 87-89."
ICRC, Customary International Law, Volume II: Practice, Part I, p. 586:
"926. In a communication to the press issued in 2001 following the killing of six ICRC staff members by unidentified assailants in the DRC, the ICRC condemned "in the strongest terms this attack and the flouting of the red cross emblem"955
"955ICRC, Communication to the Press No. 01/14, Six ICRC staff killed in Democratic Republic of the Congo, 27 April 2001."
A. Legal source/authority and evidence:
"UN Security Council, Res. 467, 21 April 1980, §3:
"The Security Council condemns ( ) the deliberate shelling of the headquarters of [UNIFIL] and more particularly the field hospital, which enjoys special protection under international law".
ICRC, Customary International Law, Volume II : Practice, Part I, p. 545:
"634. In 1994, in a report on the situation of human rights in Rwanda, the Special Rapporteur of the UN Commission on Human Rights noted that a shell had hit an ICRC hospital ( )663".
663UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in Rwanda, Report, UN Doc. E/CN.4/1995.7, 24 June 1994, §31."
A. Legal source/authority and evidence:
ICRC, Customary International Law, Volume II: Practice, Part I, p. 585:
"918. In 1993, the Brazilian Red Cross condemned the destruction of the ICRC delegation in Huambo (Angola).947"
"947Brazilian Red Cross, Communication to the Press, 17 August 1993"
P.4. Evidence of firing rockets.
A. Legal source/authority and evidence:
ICRC, Customary International Law, Volume II: Practice, Part I, p. 532:
"563. In a press release in 1993 issued in the context of the conflict in Afghanistan, the ICRC stated that:
"589 ICRC, Press Release No. 1745, ICRC protests attack on Kabul hospital, 19 April 1993".
A. Legal source/authority and evidence:
ICRC, Customary International Law, Volume II: Practice, Part I, p. 560:
"747. In 1996, in report on the situation of human rights in the Sudan under the title "Human Rights violations- Abuses by parties to the conflict other than the Government of Sudan", the Special Rapporteur of the UN Commission on Human Rights noted that OLS had reported that, despite security assurances from local authorities, a UNICEF ambulance had been ambushed and one of the wounded person it was transporting had been killed.784"
"784UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Sudan, Report, UN Doc. E/CN.4/1996/62, 20 February 1996, § 78."
P.6. Evidence of sinking a ship.
A. Legal source/authority and evidence:
ICRC, Customary International Law, Volume II: Practice, Part I, p. 557:
"730. In the Dover Castle case in 1921, a German court acquitted the commander of a German submarine of sinking a hospital ship and killing six members of its crew in violation of the customs and laws of war. The Court found that the commander had sunk the ship in execution of orders and could not, therefore, be held responsible for the ensuing violations of the law.765"
"765Germany, Reichsgericht, Dover Castle case, Judgement, 4 June 1921, p. 429"
A. Legal source/authority and evidence:
ICRC, Customary International Law, Volume II: Practice, Part I, p. 586:
"927. In 2001, following the bombing of a ICRC compound by US aircraft in Kabul, the ICRC recalled that "international humanitarian law obliges the parties to the conflict to respect the Red Cross and Red Crescent emblems.956"
"956ICRC, Communication to Press No. 01/43, ICRC warehouses bombed in Kabul, 16 october 2001."
P.8. Evidence of shooting down a plane.
A. Legal source/authority and evidence:
ICRC, Customary International Law, Volume II: Practice, Part I, p. 573:
"822. In 1996, in a report on the situation of human rights in the Sudan, in a section entitled "Human Rights violations- Abuses by parties to the conflict other than the Government of Sudan", the Special Rapporteur of the UN Commission on Human Rights reported that an ICRC plane was shot and hit when preparing for landing. ( )861."
"861UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Sudan, Report, UN Doc. E/CN.4/1996/62, 20 February 1996, § 78."
P.9. Not required: a harmful result of the attack.
According to D?rman, the PrepCom debated the necessity of an actual damage resulting from the unlawful attack. "The majority of delegations opposed a result requirement, and this was eventually accepted." (D?rman, Elements of War Crimes under the Rome Statute, p. 350).
A. Evidentiary comment:
This rule is implicit in common Article 3 to the Geneva Convention and is explicitely stated in the Second Additional Protocol, article 9(1). According to the ICRC Commentary, "These are the doctors, surgeons, dentists, chemists, orderlies, nurses, stretcher-bearers, etc. who give direct care to the wounded and sick ( ) To be assured of protection, however, they must be exclusively employed on the duties which are enumerated in limitative fashion in the Conventions namely the search for and collection, transport and treatment of the wounded and sicl, and the prevention of disease ( ) the words "exclusively engaged" indicate that the assignement must be permanent." Lastly, "the fact that the enumeration of the duties of medical personnel is limitative by no means implies, however, that a member of the medical staff may only be assigened to one of these duties : he may be employed on several, or even on all of them, provided that he is debarred from duties not included in the list". The Commentary I further notes that "medical personnel are to be respected and protected at all times and in all places, both on the battlefield and behind the lines, and whether retained only temporarily by the enemy or for a lengthy period .To enjoy immunity, they must naturally abstain from any form of participation even indirect- in hostile acts." (ICRC, Commentary I on Geneva Convention, p. 218-221).
P.10.1. Evidence of attacking a doctor.
P.10.2. Evidence of attacking a nurse.
A. Legal source/authority and evidence:
ICRC, Customary International Law, Volume II : Practice, Part I, p. 504:
"147. In its report in 1993, the UN Commission on the Truth for El Salvador held that the summary execution of a Spanish doctor who had entered El Salvador to work as a doctorfor the FMLN was a flagrant violation of IHL and human rights law.( )162. The Commission described the summary execution of a French nurse working in an FMLN hospital by a unit of the Salvadoran Air Force as a deliberate attack on medical personnel in violation of IHL.163"
"162 UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, Annex, pp. 89-92.
163UN Commission on the Truth for El Salvadore, Report, UN Doc. s/25500, 1 April 1993, Annex, pp. 87-89."
[B. Evidentiary comment]:
P.10.3. Evidence of attacking a surgeon.
P.10.4. Evidence of attacking a dentist.
P.10.5. Evidence of attacking a chemist.
P.10.6. Evidence of attacking orderlies.
P.10.7. Evidence of attacking stretcher-bearers.
P.11. Evidence of attacking staff engaged in the administration of medical units and establishments.
A. Evidentiary comment:
"These are the persons who look after the administration of medical units and establishments, without being directly concerned in the treatment of the wounded and sick. They include office staff, ambulance drivers, cooks (male or female), cleaners, etc ( ) They too must be exclusively assigned to the Medical Service". The Commentary I further notes that "medical personnel are to be respected and protected at all times and in all places, both on the battlefield and behind the lines, and whether retained only temporarily by the enemy or for a lengthy period .To enjoy immunity, they must naturally abstain from any form of participation even indirect- in hostile acts." (ICRC, Commentary I on Geneva Convention, p. 219-221).
P.11.1. Evidence of attacking office staff.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 586:
"926. In a communication to the press issued in 2001 following the killing of six ICRC staff members by unidentified assailants in the DRC, the ICRC condemned "in the strongest terms this attack and the flouting of the red cross emblem"955
"955ICRC, Communication to the Press No. 01/14, Six ICRC staff killed in Democratic Republic of the Congo, 27 April 2001."
[B. Evidentiary comment]:
P.11.2. Evidence of attacking an ambulance driver.
P.11.3. Evidence of attacking a cook.
P.11.4. Evidence of attacking a cleaner.
P.12. Evidence of attacking chaplains.
A. Evidentiary comment:
This obligation is covered by Article 9 of Additional Protocol II. Furthermore, "it is clear from the text of the Convention that chaplains need not be exclusively or even partially assigned to the wounded and sick. They are protected as chaplains, even when- as most often happens- their duties extend to the forces as a whole. Like medical personnel, they must obviously abstain from all hostile acts( ) On the other hand, chaplains, to be accorded immunity, must be attached to the armed forces. They do not attach themselves the relationship must be an official one". (ICRC, Commentary I on Geneva Convention, p. 220).
A. Evidentiary comment:
This protection deals with the staff of societies belonging to a belligerent country which assist the Medical Service of their own armed forces. Furthermore, "[e]ven if National Red Cross Societies are by far the most important of the societies assisting Medical Services, they are not the only ones. A certain number of other recognized societies provide services of a similar nature". There are certains condictions for granting the medical personnel of voluntary relief societies the same immunity as medical personnel of the armed forces. These are : (a) The Red Cross Society or other society must be duly recognized by the Government of its home country; (b) the Government must also authorize the society to lend its assistance to the Medical Service of the armed forces in time of war; (c) the Government which has authorized one or more societies to assist its Medical Service must, at the latest before actually employing their personnel, notify all other signatory States of the fact in peace-time, or its adversary in time of war; (d) the staff of voluntary societies must, in time of war, be "subject to military laws and regulations"; (e) the staff of voluntary societies must be employed on the same duties as the personnel of the medical services. Finally, (f) they are to operate under the "responsibility of the State and it is from the military authorities that they will receive their badges and identity cards." (ICRC, Commentary I on Geneva Convention, p. 224-228).
A. Evidentiary comment:
The ICRC Commentary I notes that the "personnel of neutral voluntary societies will enjoy the same protection as the medical personnel of the belligerent they are assisting The society must be recognized by its Government, and authorized to assist the Medical Service of a belligerent." Furthermore, "Neutral personnel are to be subjected to military laws and regulations, and will be attached for practical purposes to the Medical Service of the belligerent [the society] must work under the responsibility of the belligerent authorities. Finally, such personnel ( ) must be employed on the same duties as the permanent personnel of the Medical Service of the armed forces, namely on the search for, or the collection, transport of treatment of the wounded and sick of the armed forces, the prevention of disease in the forces, the administration of medical units and establishments, and service as chaplains attached to forces." (ICRC, Commentary I on Geneva Convention, p. 230-231).
A. Evidentiary comment:
This is a special category of the personnel of the military only employed for part of their time on medical duties and are called up by their officers on occasion and for the purpose of searching or looking after the wounded. For the remainder of their time they are assigned to military duties. According to the ICRC Commentary, "such auxiliary personnel must be actual members of the armed forces and cannot belong to the Red Cross Society or other relief society". A real training for performing medical duties must have been acquired beforehand. Furthermore, "auxiliary personnel are immune if they are carrying out their medical duties at the time when they come into contact with the enemy or fall into his hands. This provision must not be interpreted too literally. A bandsman detailed for medical duties but wating his turn and not actually engaged in treating the wounded at the moment when his unit is captured, must nevertheless be respected and protected. (ICRC, Commentary I on Geneva Convention, p. 221-224).
P.16. Evidence of attacking medical units and establishments.
A. Legal source/authority and evidence:
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 213:
"Objects and facilities entitled to display the emblem are:
Medical units and establishments, ( )
B Evidentiary comment:
This rule is implicit in common article 3 of the Geneva Conventions and explicit in the Second Additional Protocol, article 11(1). "The term "medical units" refers to establishments and other units, whether military or civilian, organised for medical purposes, be they fixed or mobile, permanent or temporary. The term includes, for example, hospitals and other similar units, blood transfusion centres, preventive medicine centres and institutes, medical depots and the medical and pharmaceutical stores of such units." (ICRC, Customary International Humanitarian Law, Volume I : Rules, p. 95).
P.16.1. Evidence of attacking a hospital.
A. Legal source/authority and evidence:
UN Security Council, Res. 467, 21 April 1980, §3:
"The Security Council, ( ) condemns the deliberate shelling of the headquarters of [UNIFIL] and more particularly the field hospital, which enjoys special protection under international law".
[B. Evidentiary comment]:
P.16.2. Evidence of attacking a blood transfusion centre.
P.16.3. Evidence of attacking a preventive medicine centre or institutes.
P.17. Evidence of attacking ICRC premises.
P.17.1. Evidence of bombing an ICRC compound.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 586:
"927. In 2001, following the bombing of a ICRC compound by US aircraft in Kabul, the ICRC recalled that "international humanitarian law obliges the parties to the conflict to respect the red cross and red crescent emblems.956"
"956ICRC, Communication to Press No. 01/43, ICRC warehouses bombed in Kabul, 16 october 2001."
[B. Evidentiary comment]:
P.17.2. Evidence of destructing an ICRC delegation.
A. Legal source/authority and evidence:
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 585:
"918. In 1993, the Brazilian Red Cross condemned the destruction of the ICRC delegation in Huambo (Angola).947"
"947Brazilian Red Cross, Communication to the Press, 17 August 1993"
[B. Evidentiary comment]:
A. Evidentiary comment:
This rule is implicit in article 3 of the Geneva Conventions and explicitely set forth in the Second Additional Protocol, article 11(1). " "Medical transports" refers to any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation under the control of a competent authority of a party to the conflict. This includes means of transportation by land, water or air, such as ambulances, hospital ships and medical aircrafts.141These vehicules, ships and aircraft must be exclusively assigned to the conveyance of the wounded, sick and shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies." (ICRC, Customary International Humanitarian Law, Volume I: Rules, p. 100).
"141The protection of medical ships is governed by the Second Geneva Convention, Articles 22-35, and by Additionnal Protocol I, Articles 22-23. Medical aircraft are dealt with in the next section."
P.18. Evidence of attacking medical transports
A. Legal source/authority and evidence:
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 213:
"Objects and facilities entitled to display the emblem are :
( )
Medical transports, ( )
P.18.1. Evidence of attacking an ambulance.
A. Legal source/authority and evidence:
UN Security Council, Res. 771, 13 August 1992, preamble and §§ 2 and 3:
The Security Council, expressing grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia and especially in Bosnia and Herzegovina including deliberate attacks on .ambulances ( )".
"747. In 1996, in report on the situation of human rights in the Sudan under the title "Human Rights violations- Abuses by parties to the conflict other than the Government of Sudan", the Special Rapporteur of the UN Commission on Human Rights noted that OLS had reported that, despite security assurances from local authorities, a UNICEF ambulance had been ambushed and one of the wounded person it was transporting had been killed.784"
"784UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Sudan, Report, UN Doc. E/CN.4/1996/62, 20 February 1996, § 78."
[B. Evidentiary comment]:
P.18.2. Evidence of attacking medical aircrafts.
A. Legal source/authority and evidence:
"822. In 1996, in a report on the situation of human rights in the Sudan, in a section entitled "Human Rights violations- Abuses by parties to the conflict other than the Government of Sudan", the Special Rapporteur of the UN Commission on Human Rights reported that an ICRC plane was shot and hit when preparing for landing. ( )861."
"861UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Sudan, Report, UN Doc. E/CN.4/1996/62, 20 February 1996, § 78."
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 213:
"Objects and facilities entitled to display the emblem are:
( )
Medical aircraft, ( )
P.18.3. Evidence of attacking hospital ships.
A. Legal source/authority and evidence:
"730. In the Dover Castle case in 1921, a German court acquitted the commander of a German submarine of sinking a hospital ship and killing six members of its crew in violation of the customs and laws of war. The Court found that the commander had sunk the ship in execution of orders and could not, therefore, be held responsible for the ensuing violations of the law.765"
"765Germany, Reichsgericht, Dover Castle case, Judgement, 4 June 1921, p. 429."
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 213:
"Objects and facilities entitled to display the emblem are: ( ) Hospital ships, ( )
[B. Evidentiary comment]:
P.18.4. Evidence of attacking coastal rescue craft.
A. Legal source/authority and evidence:
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 213:
"Objects and facilities entitled to display the emblem are: [ ] Coastal rescue craft, ( )"
3.2.4. Evidence of attacking hospital and safety zones and localities.
P.19. Evidence of attacking hospital and safety zones and localities.
ICRC, Study on Customary Rules of International Humanitarian Law, Volume II: Practice, Part I (2005), p. 587:
"932. According to eye-witness statements collected by the ICRC in 1992, a camp of displaced persons protected by the Red Cross emblem was attacked by an armed opporition group. The ICRC delegates noted that there were no military installations nearby and that the camp was clearly indicated and well known in the region.962"
"962 ICRC archive documents."
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 213:
"Objects and facilities entitled to display the emblem are: [ ] Hospital and safety zones and localities."
The protection awarded to hospital and safety zones and localities are found in Art.3 and Annex I Geneva Convention I and Annex I of Geneva Convention IV.
P.20. Evidence that the object of the attack was using a distinctive emblem.
A. Evidentiary comment:
Other methods of identification indicating protection under the Geneva Conventions are set out in article 18(5) and Annex I of 1993 of the First Additional Protocol.
P.21.1. Evidence of the protected status expressed by light signals,
P.21.2. Evidence of the protected status expressed by radio signals.
P.21.3. Evidence of the protected status expressed by electronic identification.
A. Legal source/authority and evidence:
Knut D?rman, "Preparatory Commission for the International Criminal Court: The Elements of War Crimes Part II: Other serious violations of the laws and customs applicable in international and non-international armed conflicts, IRRC, June 2001 Vol. 83 No 842, p. 470:
"The text adopted essentially reproduces the text of the Rome Statute, with the addition of "or other method of identification indicating protection" in element 1, which requires that the perpetrator attacked an object or place "... using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions". This added wording underscores the fact that a protected status under the Geneva Conventions can also be expressed by other distinctive signs, such as light signals, radio signals or electronic identification.28"
"28 For identification of medical units or transports, see Protocol I, Annex I, Arts 6-9."
B. Evidentiary comment:
As article 18(2) of the First Additional Protocol points out, it is the responsibility of the State to "endeavour to ensure" correct identification of the protected personnel and objects. Furthermore, it is important to remember here that the essence of the crime is an attack against a protected person or property identifiable by any recognized means of identification. However, attacks against protected persons or objects using the signals defined in Annex I to the First Additional Protocol constitute a war crime only if the technical means to receive the signals and therefore to proceed to identification were available. (D?rman, Elements of War Crimes under the Rome Statute, p. 362 and p. 451).
3.4. The object of the attack was not a military objective.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 53:
"53. Article 52(1) of Additional Protocol I prohibits explicitly attacks or reprisals on civilian objects. It defines civilian objects as "all objects which are not military objectives". Further, Article 52(1) defines military objectives as "limited to 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". ( ) The Appeals Chamber notes that the imperative "in case of doubt" is limited to the expected conduct of a member of the military. However, when the latters criminal responsibility is at issue, the burden of proof as to whether an object is a civilian one rests on the Prosecution."
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 523:
"523. In the case of clear abuse of their rights by civilians, international rules operate to lift that protection which would otherwise be owed to them. Thus, for instance, under Article 19 of the Fourth Geneva Convention, the special protection against attacks granted to civilian hospitals shall cease, subject to certain conditions , if the hospital "(is used) to commit, outside (its) humanitarian duties, acts harmful to the enemy", for example if an artillery post is set up on top of the hospital."
B. Evidentiary comment:
One of the fundamental rules of international humanitarian law is the distinction between civilian and military objectives. This applies to objects and personnel using the distinctive emblem of the Geneva Conventions, who are civilians. Since no jurisprudence on this is to be found, the case law from articles 8(2)(b)(i) and (ii) that is equally applicable to articles 8(2)(e)(ii) is included in the following.
P.22. Evidence of the object lacking strategic importance.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 411:
"411. Although the village of Ahmici had no strategic importance which justified the fighting, it was however of particular significance for the Muslim community in Bosnia. [ ]"
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 184, 288:
"184. The presence of these various independent observers, who were alert to observe activities in the Old Town especially any military operations, highlights the improbability that the Croatian defenders would establish or utilise defensive positions in the Old Town, or fire artillery or other weapons from the Old Town, and that any such activity could go undetected. No one of the witnesses from these independent interests who gave evidence observed any defensive positions, any military activity, or any artillery or other firing from the Old Town on 5 or 6 December 1991.597"
"597. Lars Brolund, T 874; Per Hvalkof, T 2218-2219."
"288. The Chamber has found that the Old Town was extensively targeted by JNA artillery and other weapons on 6 December 1991928 and that no military firing points or other objectives, real or believed, in the Old Town were targeted by the JNA.929 Hence, in the Chambers finding, the intent of the perpetrators was to target civilians and civilian objects in the Old Town. [ ]"
"928. See supra, para 214.
929. See supra, paras 193-194."
Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003, para. 508:
"508. The witnesses indicated further that, despite occasional outgoing ABiH fire from hospital ground, the SRK attacks were in fact directed at the hospital and served no military purpose. As result of the incident reported to Cutler, Harding re-visited the Kosevo hospital in January 1993 to assess whether it was being shelled as result of SRK counter-battery fire, or deliberately targeted.1740 He could not find any of the distinctive traces usually left by mortars.1741 On the basis of his observations at the Hospital, Harding concluded that:
"1740. Mole, T. 11140; Harding, T. 4371-2.
1741. Harding, T. 4371-3.
1742. Harding, T. 4372."
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 203:
"203. The firing positions described in the preceding paragraphs are located various distances from the Old Town. All are outside the Old Town. Some of them are so remote from the Old Town that any attempt to neutralise them by the JNA forces, even using the most imprecise weapons, could not affect the Old Town. As regards the positions which are closer to the Old Town, the Chamber heard expert evidence as to which positions in the vicinity of the Old Town, if targeted by the JNA, would give rise to a risk of incidental shelling of the Old Town."
