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Protocol is silent on this point, should not be considered to be a licence to attack."

Moreover, while a civilian enjoys no protection so long as his or her participation in hostilities lasts, afterwards "as he no longer presents any danger for the adversary, he may not be attacked… [and] in case of doubt regarding the status of an individual, he is presumed to be a civilian."

The Commentary further emphasises the importance of the prohibition on acts or threats of violence whose primary purpose is to spread terror. It states that,

"Attacks aimed at terrorising are just one type of attack, but they are particularly reprehensible. Attempts have been made for a long time to prohibit such attacks, for they are frequent and inflict particularly cruel suffering upon the civilian population."

The above chronology of the military campaign conducted by the Serbian/FRY forces, as well as the specific incidents/attacks described, demonstrate in the clearest of terms that this fundamental prohibition has been violated time and time again in Kosovo. Without seeking to enter a discussion of the applicability of Additional Protocol II per se, it is submitted that article 13(2) reflects customary international law and comes within the scope of Article 3 of the Statute of the International Tribunal. Thus, those persons responsible for the attacks on Senik, Vranic, Susica, Junik, Lodja, Gornje Obrinje and countless other locations are liable to be prosecuted before the International Tribunal for violations of the laws or customs of war.

In addition, as has been discussed at the beginning of this report, common article 3 of the Geneva Conventions is considered as falling within the ambit of Article 3 of the Statute and it is evident that its provisions have also been violated in the course of the conflict. In particular, the above factual description leaves no doubt that persons taking no active part in the hostilities have not received the requisite humane treatment and have indeed been subjected to violence to life and person, including murder and cruel treatment and outrages upon personal dignity, involving humiliating and degrading treatment.

Moreover, the specific prohibitions enumerated in Article 3 of the Statute have clearly been violated during the course of the Serbian/FRY campaign. In particular, it is evident that many of the above-described attacks involved the wanton destruction of towns and villages, devastation not justified by military necessity, the bombardment of undefended dwellings, and the plunder of private property. For all of these violations of the laws or customs of war there must be individual accountability.

Insofar as these attacks and incidents demonstrate a widespread or systematic nature, they are also considered as crimes against humanity, within the jurisdiction of the International Tribunal by virtue of Article 5 of the Statute. Particularly relevant is Article 5(h), which relates to the prohibition on persecution. In its Opinion and Judgment in the Tadic case, Trial Chamber II found that

"… persecution can take numerous forms, so long as the common element of discrimination in regard to the enjoyment of a basic or fundamental right