II.

Count Two – THE WAR CRIME OF INTENTIONALLY

DIRECTING ATTCES AGAINST BUILDINGS DEDICATED TO

RELIGION

1. The Required Elements of Crime under Article 8 (2) (b) (ix)

The Elements of Crime for Article 8 (2) (b) (ix) require the

establishment of five elements, three of which are not satisfied.

1.1 Element 1 is not satisfied in that Colonel Michell Nazir

did not direct the attack.

It must be established that the accused in issuing the order intended

to bring about the commission of the crime.1 Colonel Nazir ordered

the Donkan soldiers and Black Dog Security (BDS) personnel to

approach the Butterfly Café and targeted only BLO’s forces.2 He did

not caused, planned, instigated, ordered or committed, or aided and

abetted the planning, preparation or execution of, the destruction or

willful damage3 of Butterfly Temple, an institutions dedicated to

religion. It cannot be said that Colonel Naiz intentionally directed the

attack against Butterfly Temple.

1.2 Element 2 is not satisfied in that the Butterfly Temple

was not an object of attack.

The Statute of the International Criminal Court therefore stresses

that intentionally directing attacks against buildings dedicated to

religion, education, art, science or charitable purposes or historic

monuments is a war crime in both international and non-

international armed conflicts, “provided they are not military

objectives.”4 Upon the arrival of Donkan forces and BDS personnel,

1 Kvocka Trial Judgement, para 252.

2 Facts, 22
3 PROSECUTER v. DARIO KORDI] & MARIO ^ERKEZ, Decision 30 September

1988, par. 58
4 ICC Statute, Article 8(2)(b)(ix) and (e)(iv) (cited in Vol. II, Ch. 12, § 19).
a whistle was blown and a group of people fled form the café to the

Butterfly Temple.5

Article 13 (1) (b) of the Second Protocol to the Hague Convention for

the Protection of Cultural Property states that:

Article 13 Loss of enhanced protection

1. Cultural property under enhanced protection shall only lose

such protection:

a. xxx

b. if, and for as long as, the property has, by its use, become

a military objective.

The BLO used the Butterfly Temple to shield military sites when the

Donkan soldiers and BDS approach the café to attack only BLO’s

forces. Such acts has loss the protection of such property under the

Second Protocol to the Hague Convention of 1954 for the Protection

of Cultural Property in the Event of Armed Conflict 1999. The object

of the attack is the BLO’s forces who fled from the café to the temple,

and not the temple itself.

1.3 Element 3 is not satisfied as Colonel Nariz did not intend

to attack the Butterfly Temple adjoining the Butterfly Cafe

A person has intent where in relation to conduct, that person means

to engage in the conduct and in relation to a consequence, that

person means to cause that consequence or is aware that it will occur

in the ordinary course of events.6 The intention of Colonel Nazir is

only to attack BLO’s forces. The Butterfly Temple was used by the

BLO’s forces to make an effective military contribution as military

object’s shelter. The BDS personnel to rushed into the temple is

5 Facts, 22
6 ICC Statute, Article 30 (2)
search for the people.7 The consequence of damaging the temple,

with ten holy grails were broken, two massive murals were scrubbed,

the main statute was thickly dotted, the door to the Temple was

irreparably damaged, and the wall was riddle with bullets 8 were not

intended. The intended consequence were only to attack the BLO’s

forces and not to cause panic among people in the area.9

In terms of Article 30(1) of the ICC Statute, the requirement of

"intent and knowledge" applies "[u]nless otherwise provided." The

damaging of the temple was not the objective of Donkan soldiers and

BDS, and the incident of BLO’s forces making the temple as shelter

is not indicative of pre-existing knowledge. It cannot be said that

Colonel Nariz meant to engage in the damaging of the Butterfly

Temple.

7 Facts, 22
8 Ibid
9 Ibid