Table of contents:
Element:
A. Evidentiary comment:
In the context of a non-internatinal conflict, the reference to protection given under the international law of armed conflict can be problematic. Civilians are protected under article 13(3) of Additionnal Protocol II, and this protection ceases when, and as long as, they take active part in hostilities. There is no similar protection for civilian objects (contrarily to the protection awarded to civilian objects in international conflicts conferred by Article 52(2) of the First Additional Protocol). One may still deduce the same protection awarded to civilian object in a conflict of a non-international character as long as they are not used to make an effective contribution to the military action of a party to a conflict in a conflict. In fact, the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 and the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of an Armed Conflict both apply to international and non-international conflicts and make the distinction between objects that do not make an effective contribution to military action (be it by their use, nature, location or purpose) and military objectives. (D?rmann, Elements of War Crimes under the Rome Statute, p.455).
A. Evidentiary comment:
From article 18 of the Second Additional Protocol, one may infer that relief missions are only protected if they are performing their functions in relation to the victims of the armed conflict and in the manner described at paragraph 2. Futhermore, article 11 of the Second Additional Protocol confers protection to medical units and transports. These lose their protection if they are used to commit hostile acts, outside their humanitarian function. No such explicit rule exists for medical personnel. However, attention must be paid to the comment of the ICRC on article 9 of the Second Additional Protocol, which indicates that respect and protection imply that personnel ( ) must refrain from all acts of hostility and will not themselves be made the object of attacks. Since this comment addresses medical personnel, it may infer that it confers and limit protection to humanitarian assistance missions as well. (D?rmann, Elements of War Crimes under the Rome Statute, p.456-457).
A. Evidentiary comment:
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. (D?rmann, Elements of War Crimes under the Rome Statute, 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.
A. Legal source/authority and evidence:
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.
94 Article 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:
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. Moreover, Article 52(3) of Additional Protocol I provides that in case of doubt as to whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. 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.
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.
