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軍事學校學生及設施在武裝衝突法上之地位－以國防大學為例
The status of military cadets and facilities in the Law of Armed Conflict-A case study of National Defense University
摘要
根據國際習慣法原則，無論是否簽署日內瓦公約及其他公約，各國均須遵守武裝衝突法之規範。細繹武裝衝突法內容，對於作戰方法與手段有諸多限制，其中關於攻擊對象僅限於「戰鬥員」及「軍事目標」，非戰鬥員及非軍事目標均不得加以攻擊。軍事學校學生與設施之性質，自與其在武裝衝突法上之法律地位密切相關。就軍事學校學生而言，雖隸屬國防部，且完成基礎教育後將依法初任軍官或士官，但在學期間不具現役軍人身分，故非屬戰鬥員，當武裝衝突發生之際，屬依法受保護對象不得攻擊。在軍事學校設施方面，就國防大學而言，因與武裝衝突法所規範之軍事目標定義不符，除屬例外情形，原則上非屬軍事目標。另運輸車輛等其他軍事裝備，則視其用途不同，而影響軍事目標之認定。至於攻擊軍事目標所生之附帶損害，武裝衝突法雖未明文禁止，如顯屬過度者則屬違法，殆無疑義。
並列摘要
According to the principles of customary international law, all countries must abide by the norms of the Law of Armed Conflict, regardless of whether they are signatories to the Geneva Conventions. There are numerous restrictions on the methods and means of combat in the LOAC. Among them, military attacks should be directed at "combatants" and "military objectives" only, and attacks on noncombatants and non-military targets are prohibited. The nature of military cadets and facilities is closely relevant to their legal status in the Law of Armed Conflict. As far as military cadets are concerned, they are subordinate to the Ministry of National Defense and will become commissioned or non-commissioned officers after basic training. However, they do not possess active-status during study so they are non-combatants and shall not be targeted by law when there is an armed conflict. With regard to military academy facilities, the National Defense University does not conform to the definition of military targets stipulated by LOAC and is a nonmilitary target unless exceptional circumstances. As for its military equipment such as vehicles for transportation, their purposes determine whether they are military objectives. Regarding the collateral damages caused by attacking military objectives, they are generally lawful as long as they are not excessive.