LA SALUD BUCAL DEL NIÑO EN EDAD ESCOLAR

Pillage is the systematic and violent appropriation by members of the armed forces of movable public or private property that belongs either to persons protected by humanitarian conventions (civilians, wounded and sick, shipwrecked, and prisoners of war) or to the adverse state or party itself. Parties to the conflict are under an obligation to take all necessary measures to protect the wounded, the dead, or any persons exposed to grave danger from pillage and ill treatments.³¹ Pillage is a war crime, as established by the statutes and judgments of the Nuremberg and Tokyo Military tribunals as well as by the Rome statue of the ICC. It is a grave violation of the Geneva Conventions. It takes the form of “extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly”³². It is also forbidden in both international and internal conflict by the Geneva conventions and their Additional protocols as well as by customary IHL.³³

It is important to distinguish between pillage which is always prohibited and requisition which is an authorized form of appropriating property.

In the Tutu and Stella case (Prosecutor v. Miaden Naletilic) the trial chambers of the ICTY considered that pillage was “lawful and unlawful appropriation of property” and

31 Article 4 of the convention for the protection of cultural property in the event of armed conflict 1954

32 Article 50 of the Geneva Convention of 1949

33 Article 8 (2)(b)(xvi) Rome Statute of ICC

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that it may affect both private and public property. It further explains that the term pillage is general in scopes, comprising not only large scale seizure of property within the frame work of systematic economic exploitation of occupied territory but also acts of appropriation committed by individual soldiers for their private gain.³⁴

34 Judgment of ICTY (2003), 12

133 CHAPER 5

LAWFUL AND NON-LAWFUL TARGETS

Parties to an armed conflict must at all times distinguish between civilian population and combatants and between civilian objects and military objectives. Customary law derived from the Hague Regulations of 1899 and 1907 dictates that in military operations all necessary steps must be taken to spare cultural property from damage, unless it is constitutes a military objective¹. The statute of the International Criminal Court echoes this rule by branding it a war crime to intentionally direct “attacks against buildings dedicated to religion, education, art, science or charitable purposes, or historic monuments, provided they are not military objectives². In the case of property of great importance to the cultural heritage of every people, the 1954 Hague Convention and the 1999 Second Hague Protocol dictate a prohibition on targeting or using such property for purposes which are likely to expose it to destruction or damage, unless doing so is imperatively required by military necessity.³ All these demand that targets must be distinguished.

1. Article 56 of the Hague Regulations refers to „institutions dedicated to religion, charity and education, the arts and sciences” and prohibits “destruction or willful damage done to installations of this character, historic monuments, works of arts and science”. The norm of Customary International Law is deemed applicable in International and Non-International armed conflict (Rule 38 A and Rule 39, Customary International Humanitarian Law, Vol. 1 Supra note 29 at 127 and 131.

2. Rome Statute Article 8 (2)(b)(ix)

3. 1954 Hague Cultural Property Convention Article 4 and 1999 Second Hague Protocol Article 6.

There are minimal differences between the two regimes in the conditions established for waiving the immunity and they do not change the basic loss of protection that follows from any military use of the property. The differences relate to the level of command at which an attack has to be ordered, the warning to be given and the requirement that a reasonable time be given to the opposing forces to redress the situation. The prohibition against attacking property of great importance to the cultural heritage of every people unless imperatively requires by military necessity is deemed to be a norm of customary international law applicable in both international and non-international armed conflict (Rule 38B, customer IHL, Vol. Supra note 29 at 127).

134 5.1 Criteria for Becoming Military Objective

Attacks shall be limited to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization in the circumstances ruling at the time, offers a definite military advantage⁴.

It is commonly understood that by virtue of Article 52.2 AP 1, any object has to satisfy two cumulative conditions in order to qualify as a military objective;

(a) the object has to make an effective contribution to the military action of the defender and

(b) its destruction, capture or neutralization has to offer the attacker a definite military advantage.⁵

A decision as to classification of an object as a military objective and allocation of resources for its attack is dependent upon its value to an enemy nations‟ war fighting or war sustaining effort (including its ability to be converted to a more direct connection) and not solely to its overt or present connection or use.⁶ This includes “war-supporting, manufacturing/export/import” in the list of potential economic targets⁷.Furthermore, the military Commission Instructions issued by the US Department of Defence to facilitate the conduct of military commissions to try captured enemy combatants, also use the term

“war-fighting” when defining military objectives⁸. The „nature‟ of an object symbolizes

4. Article 52 of the First Additional Protocol

5. See for instance, the ICRC Conventionary to APL 2008, uttp://www.icrc.org/ihl.

6. Operational Law Handbook 2005, Chapter 2, ix A.4

7. Ibid. A 1(c)

8. See for instance U S Department of Defence, Military Commissioner Instruction No. 30 April 2003, 5(0)

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its fundamental character. Examples of military objectives by nature includes military aircraft (including military UAC/UCAVs), military vehicles (other than medical transport), missiles and other weapons, military equipment, military fortifications, facilities and depots, warships, ministries of defence and armaments factories.

Application of the „location‟ criterion can result in specific area of land such as mountain pass, a bridge head or jungle trial becoming military objective.

„Location‟ is a somewhat more ambiguous criterion because certain objects form part of infrastructure that, in warfare, must either be seized or destroyed in order to prevent a site from being occupied by the enemy. The example given in the commentary to the First Additional Protocol is that of a bridge.⁹ The problem with applying this criterion to cultural property, however, is that some of the most precious constructions forming part of the cultural heritage of mankind are situated in strategically important locations or are themselves sites that can easily be occupied under the pretext that their control makes an effective contribution to military action. There is reason to fear that

„location‟ could be interpreted in an abusive manner and hence greatly diminish the protection afforded cultural property. Moreover, it has been pointed out that it is really the use of the historic bridge – if one takes the example given by the ICRC commentary – that turns it into a military objective since its attack only becomes imperatively necessary once it is being used by the enemy¹⁰. This concern with the criterion of „location‟ was expressed during the negotiations that led to the adoption of the Second Hague Protocol

9. ICRC Commentary APL, Supra note 13 at para 2021

10. J M Henckaerts, New Rules for the Protection of Cultural Property in Armed Conflict: The Significance of the Second Protocol to the Hague Convention for the protection of Culural Property in the event of armed conflict,,Internatonal Review of the Red Cross (1999)593 at 603

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and in the end; a majority of the delegates rejected it as too broad¹¹. Instead of relying on

„use‟, which some negotiating states felt was too narrow, the drafter introduced a new criterion, that of „function¹². The example that was given to illustrate situation where

„use‟ would be inadequate was that of retreating soldiers who destroyed a cultural wall blocking their retreat despite the fact that it is not used by the enemy. While the example may have some value, it appears rather far fetched and does not seem to justify introducing an entirely new criterion that is already subject to divergent interpretations.

One of the commentator aptly states that;

“In real life, the problem is that cultural property is attacked even when it is not used for any military action or is attacked indiscriminately. In real life, the rule should be simple, cultural property which is not used to make an effective contribution to military action and whose destruction, seizure or neutralization does not offer a definite military advantage cannot be attacked. It is difficult to imagine how military advantage cannot be attacked. It is difficult to imagine how military commanders could teach their solders anything else.¹³

The use of an objective relates to its present function, with the result that a civilian object can become a military objective due to its use by armed forces. “Use” is the customary law criterion that prevails in the legal regime applicable to targeting cultural property as provided by the First Additional Protocol of 1977. Article 53 prohibits the “use” of cultural property in support of military action. Though the provision does not include a waiver of immunity, it has been interpreted as establishing that it is only in case of the protected object “in support of the military effort that loss of

11. For Critical analysis of the drafting history. See J M Henckaerts, at 602 .

12. 1999 Second Hague Protocol, Article 6(a)(1) “that cultural property has by its function, been made into a military objective.

13. J M Henkaerts, op,cit p 260 at 605.

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immunity will ensue.¹⁴ According to the commentary, “if protected objects were used in support of the military effort, this would obviously constitute a violation of Article 53 of the protocol¹⁵. The commentary explains that “it is not permitted to destroy a cultural object whose use does not make any contribution to military action, nor a cultural object which has temporarily served as a refuse for combatants, but is no longer used as such¹⁶.

5.2 Works and Installations Containing Dangerous Forces as Military Target