LAW 583 - INTERNATIONAL LAW II

FINAL ASSESSMENT

NAME: MUHAMMAD DANIAL BIN ABD MAJID

MATRICS NUMBER: 2018663504

GROUP: LWB06B

LECTURER’S NAME: PROFESOR MADYA DR TUNKU INTAN MAINURA BT TUNKU

MAKMAR
 UiTM’s Academic Integrity Pledge

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_ danial
__________________________

Name: Muhammad Danial Bin Abd Majid

Matric Number: 2018663504
Programme code: LW 224
Faculty / Campus : UITM SHAH ALAM
*Students are required to sign one pledge for each course taken.
The first issue is whether the act of Isroloi Colonel Shaitona of ordering missile attacks to
bombard Gozo on the basis that Gozo was the location where Paliswan's troops were hiding
the captured Isroloi soldiers and a hideout for Paliswan soldiers breaches the Principles of
Distinction and Proporinality under International Humanitarian Law.

Under Common Article 2 of the Geneva Conventions, the conventions are applicable to all
cases of armed conflict which may arise between two High Contracting States. In Tadic’s
case,1 an armed conflict exists whenever there is resort to armed force between states. Under
Article 1(3) of the Additional Protocol I (AP I), the protocol shall apply to situations stated
under Common Article 2. Thus, in the event there is a resort of armed force between 2 states,
the event is an international armed conflict thus the Geneva Conventions and the Additional
Protocol I is applicable to protect persons who do not take part in hostilities such as civilians.

Civilians are defined under Article 50 of AP I and in Prosecutor v Tihomir Blaskic2 as

persons not belonging in the category of combatants while combatants are defined under
Article 43 of AP I as a member of armed forces of a party to the conflict.

Among the mechanisms to protect persons who do not take part in hostilities under
International Humanitarian Law is the Principle of Distinction where the principle sets out the
obligation of the combating parties to distinguish between military and civilian objectives.
Civilian objects is defined under Article 52(1) of AP I as objects which are not military
objectives. Military objectives are limited under Article 52(2) of AP I to objects which by their
nature, location, purpose or use make an effective contribution to military action and whose
destruction, capture or neutralization offers a definite military advantage. Thus any objects
that do not fulfil the requirements of contributing to military action and its destruction do not
give any military advantage, is a civilian object.

Another mechanism to protect persons who do not take part in hostilities under International
Humanitarian Law is the Principle of Proportionality where it functions to exclude civilians from
the harms of warfare and to enable avoidance or limitation of civilian casualties. An example
of the application of this principle can be seen in The Public Committee against Torture in
Israel v The Government of Israel,3 where it is held that a proportionate attack is an attack
which is directed against a military objective with non-disproportionate means or means only
suited to destroying that objective. In Israeli strike against Hamas leader Salah Shehadeh,4

1
IT-94-1.
2
IT-95-14-T.
3
Supreme Court of Israel, 14 December 2006.
4
Journal of Conflict & Security Law, Vol. 17, No. 1 (2012), pp. 147-173.

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the measure to drop a 1-tonne bomb to kill Shehadeh which also killed 14 others and injured
a further 70 is considered disproportionate and indiscriminate as the measure caused
unnecessary and excessive collateral damage. Thus, it can be construed that the Principle of
Proportionality sets out the obligation for combating states to conduct their fights with zero or
minimal casualties caused to the civilian population.

The Proportionality Principle is enshrined under Article 51(1) of AP I, where the civilian
population is entitled to general protection against dangers arising from military operations.
Thus, to effect the protection under Article 51(1), Article 51(2) of AP I provides that the
civilian population shall not be the object of attack.

Protection under Article 51(1) is also effected by prohibiting indiscriminate attacks. Under
Article 51(4) of AP I, indiscriminate attacks includes attacks which employ a method or means
of combat which would strike military objectives and civilians without distinction. Indiscriminate
attacks are further extended under Article 51(5)(a) of AP I, where an attack by bombardment
by any methods or means of a number of clearly separated and distinct military objectives
located in a city containing a similar concentration of civilians or civilian objects as a single
military objective or (b) an attack which may be expected to cause incidental loss of civilian
life, injury to civilians and damage to civilian objects which would be excessive in relation to
the concrete and direct military advantage anticipated are also considered indiscriminate
attacks. In the UN Secretariat respect for human rights in conflict survey in 1973,5 weapons
that had been discussed to have indiscriminate effects includes missiles. In International
Criminal Tribunal Yugoslavia, Stanislav Galić,6 the act of shelling artillery within Sarajevo
which causes civilian casualties and destruction of civilians objects is against Article 51 of
AP I. This shows that civilians and civilians objects are never to be targeted.

Referring to the issue above, since the armed conflict is between 2 states that are parties to
the Geneva Conventions and their Additional Protocol, the conventions and AP I applies to
both states throughout this issue thus Isrolo is under obligation to distinguish between military
and civilian objects when launching an attack. Since Gozo fulfils the requirement of having the
nature and purpose to make an effective contribution to military action for Paliswan as it is the
hiding place for Paliswan soldiers and the partial destruction of Gozo would give military
advantage to Isrolo by enabling the rescuing of their soldiers, Gozo is a military object
according to Article 52(2) of AP I thus Isrolo’s attack is not against the Principle of Distinction.

5
UN Doc. A/9215, 21 November 1973, p 209.
6
IT-98-29.

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However, according to the 1973 Survey, the use of missile is indiscriminate. The use of missile
attack on a city that is very likely to still have civilians can predictably cause civilian harm and
casualties such as in Salah Shehadeh’s case, is an indiscriminate attack according to Article
51(4)(c) and Article 51(5)(a) and (b) of AP I thus applying The Public Committee against
Torture in Israel v The Government of Israel such measure that is not limited to achieving
military objective cannot be deemed to be proportionate. Applying Galic’s case, such attack
violates the protection provided to civilians provided under Article 51(1) of AP I thus the attack
by Isrolo is not proportionate and against the Principle of Proportionality.

The second issue is whether the use of FIREREX by Isrolo which causes permanent blindness
on Gozo civilians amounts to breach of the Principle of Necessity under International
Humanitarian Law.

The Principle of Distinction sets out the obligation of the combating parties to distinguish
between military and civilian objectives. Civilians are defined under Article 50 of AP I and in
Prosecutor v Tihomir Blaskic as persons not belonging in the category of combatants while
combatant are defined under Article 43 of AP I as a member of armed forces of a party to the
conflict.

Under the Principle of necessity, the usage of certain measures by a combating state in a
conflict can be made permissible. This can be seen in the Hostage case,7 where the principle
of military necessity allows parties to apply any amount of force necessary to compel the
complete submission of the enemy with the least expenditure of time, life and money provided
that the force is subject to the law of wars, the force is no greater than needed to achieve this
and the force is not prohibited.

Under Article 35(2) of AP I, weapons, projectiles and material and methods of warfare of a
nature to cause superfluous injury or unnecessary suffering are prohibited. In the Juan de
Fuca Strait Incident, the use of a weapon that causes eye blindness to the US servicemen
is considered to be a weapon that causes unnecessary suffering.

Referring to the issue above, since the use of FIREREX causes permanent blindness to any
human target, applying Juan de Fuca Strait Incident, FIREREX can be considered to be a
weapon that causes unnecessary suffering thus it is a type of weapon within the definitions of
Article 35 of AP I. Since the use of FIREREX by Isrolo is against Article 35 of AP I, it is a

7
(1948) 11 TWC 757.

3
measure not within the law of war thus do not fulfil the requirements in Hostage Trials case
to be within the ambit of military necessity thus the use of FIREREX by Isrolo cannot be
considered to be a measure taken in necessity and against the principle of necessity.

Since Isrolo uses FIREREX on civilians which according to Article 50 of AP I and Blaskic’
case are peoples not within the definition of combatants under Article 43 of AP I, it is an
attack civilian population and not military targets in Gozo thus Isloro’s attack is against the
Principle of Distinction.

The third issue is whether the destruction of power plants, house of worship and hospitals
within Gozo by Isrolo amounts to breaches of the Principle of Distinction under International
Humanitarian Law.

The Principle of Distinction sets out the obligation of the combating parties to distinguish
between military and civilian objectives. Civilian objects is defined under Article 52(1) of AP
I as objects which are not military objectives. Military objectives are limited under Article 52(2)
of AP I to objects which by their nature, location, purpose or use make an effective contribution
to military action and whose destruction, capture or neutralization offers a definite military
advantage. Thus any objects that do not fulfil the requirements of contributing to military action
and its destruction do not give any military advantage, is a civilian object.

Under Article 53(a) of AP I, it is prohibited to commit any acts of hostility directed against
places of worship which constitute the cultural or spiritual heritage of peoples. Under Article
52(3) of AP I, if there is doubt as to whether an object which is normally dedicated to civilian
purposes such as a place of worship is being used to make an effective contribution to military
action, it shall be presumed that such place is not being used to make an effective contribution
to military action.

Under Article 19 of the First Geneva Convention, it is stated that under no circumstance
should fixed medical units such as hospitals may be attacked and shall at all times be
respected and protected by the parties to the conflict

Referring to the above issue, the power plants do not fulfil the requirements of having the
nature, location, purpose or use make an effective contribution to military action for Paliswan
and the destruction of the power plants does not show any military advantage gained by Isrolo
thus makes the power plants to not be military object according Article 52(2) of AP I thus is
actually a civilian object. The attack on houses of worship by Isrolo breaches Article 53(a).
even if there are possibilities of Paliswan activity near the mentioned houses of worship, such

4
doubts should be disregarded according to Article 52(3) of AP I. Attack on hospitals by Isrolo
breaches Article 19 of the First Geneva Convention as hospitals can never be subjected to
an attack under any circumstances. All of these acts amounts to breach of the Principle of
Distinction as the attacks breached Isloro’s obligation to not target civilian objects.

The fourth issue is whether the act of Isroloi soldier of killing Paliswan children when they
threw rocks, debris and Molotov cocktail at Isoloi soldiers breaches the Principle of Necessity
under International Humanitarian Law.

Under Article 50(1) of AP I and in Prosecutor v Tihomir Blaskic, civilians is defined as

persons not belonging in the category of combatants. Combatant is defined under Article 43
of AP I as a member of armed forces of a party to the conflict. If there is doubt as to whether
a person is a civilian, that person is to be considered to be a civilian. Under 51(3) of AP I,
civilians is entitled to enjoy the protection afforded under Article 51 unless they take a direct
part in hostilities.

In The Public Committee against Torture in Israel v The Government of Israel, act of a
civilian of bearing arms either openly or concealed, who is on his way to the place where he
will use them against the army, at such place, or on his way back from it, is a civilian taking
an active part in the hostilities. However, a civilian who generally supports the hostilities
against the army is not considered as taking a direct part in the hostilities.

Under Article 77(1) of AP I, children shall be protected against any form of indecent assault
and the Parties to the conflict shall provide them with the care and aid they require, whether
because of their age or for any other reason. Under Article 77(2) of AP I, the Parties to the
conflict shall take all feasible measures in order to prevent children who have not attained the
age of fifteen years to take a direct part in hostilities and shall refrain from recruiting them into
their armed forces. Under Article 77(3) of AP I, if children who have not attained the age of
fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they
shall continue to benefit from the special protection accorded by this Article regardless if they
are being prisoner of war or not. Under Article 77(5) of AP I, persons who had not attained
the age of eighteen years at the time the offence related to the armed conflict was committed
cannot be dealt with the death penalty. The provisions under Article 77 showed the extent of
special treatment children receive in times of conflict where even if they took direct part in
hostilities, they are still to be treated as children. Thus it can be construed that children being
special persons within the conventions are to be dealt with utmost care and in almost any
circumstance must be protected from causing harm to them.

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The principle of military necessity can be seen in the Hostage case, where the principle of
military necessity allows parties to apply any amount of force necessary to compel the
complete submission of the enemy with the least expenditure of time, life and money provided
that the force is subject to the law of wars, the force is no greater than needed to achieve this
and the force is not prohibited.

Referring to the issue above, Isroloi soldiers claimed that the children they killed were children
soldiers. Applying Article 77(2) of AP I, there is nothing to show that the act of those children
were on behalf or under orders of Paliswan or the children had been recruited by Paliswan,
thus it cannot be said that the children were child soldiers according to the meaning under
Article 43 of AP I. Applying The Public Committee against Torture in Israel v The
Government of Israel, the act of the children of throw those rocks, debris and Molotov
cocktails out of anger towards Isrolo soldiers is not an act of bearing arms against Isrolo but
is merely to show hostility towards an invading enemy thus cannot be considered to be an
direct part in hostilities thus their protection under Article 51(3) of AP I never ceased which
makes the act of killing the children by Isrolo soldiers to be a violation of the protection entitled
to the children under Article 51 of AP I.

Article 77(1),(3) and (5) showed the wide extent of protection afforded to children thus can
be construed that children are a special group of persons under the conventions possibly due
to their frailty and the combating parties are under obligation to take all measures necessary
to not cause harm to children. Thus, the acts of Isrolo soldiers to kill the children when their
acts do not pose a serious threat to the lives of Isrolo’s soldiers is an act of employing
unnecessary and greater use of force than required to the children thus cannot be deemed to
be within the principle of military necessity in Hostage Case thus is an unnecessary measure.

The fifth issue is whether the act of Private Jahati and Corporal Neraki who acted under the
command of Major General Mentaloyo of beating, torturing and withholding food and water to
prisoners of war and civilian prisoners, killing women and children in the camps and burning
holy scriptures as psychological intimidation towards Paliswan soldiers amount to violations
of International Humanitarian Law.

Article 4 of the Fourth Geneva Convention provides for the protection toward any persons
not taking active part in the conflict namely persons who at a given moment and in any manner
whatsoever, find themselves, in case of a conflict, in the hands of a Party to the conflict or
Occupying Power.

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Among the protection afforded towards these persons are provided under Article 13 of the
Third Geneva Convention where it states that prisoners of war must at all times be humanely
treated and any unlawful act that would cause death or seriously endanger their health is
prohibited. The prisoners of war must be protected, particularly against acts of violence or
intimidation. Under Article 26 of the Third Geneva Convention, it is provided that prisoners
of war is to be given sufficient amount of food and drinking water.

Under Article 27 of the Fourth Geneva Convention, protected persons shall at all times be
humanely treated and protected against acts of violence or threats with respect to their
persons and religious convictions and practices. Under Article 32 of the Fourth Geneva
Convention, each of the High Contracting Party is prohibited from taking any measure as to
cause the physical suffering or extermination of protected persons in their hands. This
prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or
scientific experiments not necessitated by the medical treatment of a protected person, but
also to any other measures of brutality.

Under Article 76(1) and 77(1) of AP I, women and children are granted special respect and
are to be protected against any indecent assault.

Referring to the issue above, the act of beating the prisoners of war and civilians by Private
Jahati and Corporal Neraki is a breach of Article 13 of the Third Geneva Convention and
Article 27 of the Fourth Geneva Convention respectively as those prisoners are infringed
of their protection under the conventions. The beatings of the civilian prisoners also is a breach
of Article 32 of the Fourth Geneva Convention as civilian prisoners cannot be subjected to
any measures of brutality.

Next, the act of withholding food and water for the prisoner of war and civilians by Private
Jahati and Corporal Neraki amount to a breach of Article 13 of the Third Geneva
Convention and Article 27 of the Fourth Geneva Convention respectively as it is
infringement of their rights towards having food and water under the conventions.

Next, the act of killing women and children by Private Jahati and Corporal Neraki is a violation
of their protection provided under Article 76(1) and 77(1) of AP I respectively.

The act of burning of holy text and scriptures as psychological intimidation by Private Jahati
and Corporal Neraki towards the Paliswan prisoners is a breach of Article 27 of the Fourth
Geneva Conventions as the Paliswan prisoners are infringed of their entitled rights under the

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Fourth Convention to be humanely treated and protected against violent acts with respect to
their religious convictions and practice.

The sixth issue is whether the International Criminal Court may bring Colonel Shaitona, Major
General Mentaloyo, Private Jahati and Corporal Neraki to trial for their acts stated in the issues
above.

Under Article 5(c) of the Rome Statute, the International Criminal Court (ICC) has jurisdiction
over war crimes and under Article 12(1) of the Rome Statute, a state which is a party to this
statute thereby accepts the jurisdiction of the ICC with respect to the crimes in article 5.

Under Article 8(2)(a) of the Rome Statute, war crimes means grave breaches of the Geneva
Conventions such as (i) wilful killing and (ii) torture or inhuman treatment. Under Article
8(2)(b) war crimes are also extended to any of the following acts namely (ii) intentionally
directing attacks against civilian objects, (iv) intentionally launching an attack in the knowledge
that such attack will cause incidental loss of life or injury to civilians or damage to civilian
objects which would be clearly excessive in relation to the concrete and direct overall military
advantage anticipated, (ix) Intentionally directing attacks against buildings dedicated to
religion and hospitals, and (xx) Employing weapons, projectiles and material and methods of
warfare which are of a nature to cause superfluous injury or unnecessary suffering or which
are inherently indiscriminate in violation of the international law of armed conflict.

Individual responsibility is provided under Article 25(2) of the Rome Statute, a person who
commits a crime within the jurisdiction of the Court shall be individually responsible. Under
Article 25(3)(a) of the Rome Statute, a person shall be criminally responsible for a crime
within the jurisdiction of the court if that person commits a crime as an individual

Superior responsibility is provided under Article 28(a) of the Rome Statute, a military
commander shall be criminally responsible for crimes within the jurisdiction of the court,
namely war crimes, committed by forces under his effective command and control as a result
of his or her failure to exercise control properly over such forces, where that commander either
knew or should have known that the forces were committing such crimes and that military
commander failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to the competent authorities for
investigation and prosecution. Similar laws can be seen applied in Re Yamashita8 where the

8
327 U.S. 1 (1946).

8
military tribunal then uses the same criteria to determine whether responsibility is attributed to
the then commander of the Japanese army General in the Philippines.

Under Article 28(b) of the Rome Statute, with regards to superior and subordinate
relationships not described in Article 28(a), a superior shall be criminally responsible for
crimes within the jurisdiction of the court committed by subordinates under his effective
authority and control, as a result of his or her failure to exercise control properly over such
subordinates, where the superior either knew, or consciously disregarded information which
clearly indicated, that the subordinates were committing and the crimes concerned activities
that were within the effective responsibility and control of the superior; and the superior failed
to take all necessary and reasonable measures within his or her power to prevent or repress
their commission or to submit the matter to the competent authorities for investigation and
prosecution. In the Hostage Case, it is stated that a superior cannot simply absolve of his
liability simply by relying on the fact that he had no knowledge of his subordinate actions.

Under Article 33(1) of the Rome Statute, the fact that a crime within the jurisdiction of the
Court has been committed by a person pursuant to an order of a Government or of a superior,
shall not relieve that person of criminal responsibility unless the person was under a legal
obligation to obey orders of the Government or the superior in question, the person did not
know that the order was unlawful and the order was not manifestly unlawful.

Referring to Colonel Shaitona’s act, the act of ordering missile attacks on Gozo when there
are civilians present is an act within Article 8(2)(b)(iv) of the Rome Statute . He also allowed
the use of FIREREX during the attacks and are used on civillians which is an act within Article
8(2)(b)(xx) of the Rome Statute. The attacks also lead to the destruction of houses of worship
and hospitals which is an act within Article 8(2)(b)(ii) and (ix) of the Rome Statute and finally
there were children deaths due to the conduct of Isrolo soldiers which is an act within 8(2)(a)(ii)
of the Rome Statute. Thus, Colonel Shaitona has commited multiple war crimes according
to Article 8 of the Rome Statute. Since, he is the commander of the 4th Regimental Battalion
of Isrolo, applying Article 28(a) of the Rome Statute and Re Yamashita, since a military
commander can be assumed to know of such acts done by his forces during his command
through the publishing of official post-battle reports. With the assumption of having such
knowledge, there is nothing to show that any necessary and reasonable measure to stop and
to punish these acts are taken and also the non-existence of submission of the matter to the
relevant authorities for investigation and persecution of the responsible soldiers causes
Colonel Shaitona to be criminally responsible as a superior for war crimes, committed by

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forces under his effective command and control as a result of his failure to exercise control
properly over such forces.

Referring to the act of Major General Mentaloyo, the ordering for Private Jahati and Corporal
Neraki to beat, torture and cause deaths of the prisoners amount to war crimes according to
Article 8(2)(a)(i) and (ii) of the Rome Statute. Since Major General Mentaloyo is not a
commander of an army, he is merely a superior to Private Jahati and Corporal Neraki. Applying
Article 28(b) of the Rome Statute, since Major General Mentaloyo personally ordered such
acts, it is certain he had knowledge of the acts and there is nothing to show of any steps to
stop these acts being taken and no submission of these acts to the relevant authorities for
investigation and prosecution, Major General Mentaloyo is criminally responsible as a superior
for war crimes, committed by Private Jahati and Corporal Neraki under his effective command
and control as a result of his failure to exercise control properly over them.

Referring to Private Jahati and Corporal Neraki, their acts of beating, torturing and causing
deaths of the prisoners are war crimes under Article 8(2)(a)(i) and (ii) of the Rome Statute.
Thus applying Article 25(2)and (3) of the Rome Statute, both of them are individually
responsible for those acts. However, they can try to apply for defense of comitting such acts
pursuant to an order of a superior under Article 33(1) of the Rome Statute, however since
the acts of torture is inherently unlawful, then Private Jahati and Corporal Neraki could not
possibly rely on the defense under Article 33(1) to relieve their criminal responsibility.

Since Colonel Shaitona, Major General Mentaloyo, Private Jahati and Corporal Neraki have
shown to commit war crimes according to the definitions of Article 8 of the Rome Statute,
applying Sections 5 and 12 of the Rome Statute, since both Isrolo and Paliswan are parties
to the Rome Statute, the ICC have jurisdiction to hear the crimes committed by them.

As the legal adviser to the International Committee of the Red Cross, it is concluded that the
acts of Isrolo of attacking Gozo, using FIREREX, targeting houses of worship and hospital,
killing children and committing atrocities against prisoners are all grave breaches of the
Geneva Convention and its Additional Protocol which amounts to war crime under the Rome
Statute which Isrolo is a party to every conventions mentioned. Thus, the ICC can bring the
persons responsible for allowing such breaches to trial.

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