2 Prosecution
Prosecutor v. Gerard Vande October 2017
TABLE OF CONTENTS Cover Page……………………………………………………………………………………….1 Table of Contents…………………………………………………………………………………2 INDEX OF AUTHORITIES……………………………………………………………………..5 I.
Treaties and Conventions……………………………………………………………………5
II. United Nations Resolutions and Other Documents………………………………………….5 III. International Cases and Arbitral Decisions………………………………………………….5 IV. Municipal Case………………………………………………………………………………6 V. Other Books……………………………………………………….............……………6 VI. Journal Articles………………………………………………………………………………6 STATEMENT OF FACTS……………………………………………………………………….8 SUMMARY OF PLEADINGS………………………………………………………………..11 A. War crime of rape on the basis of command responsibility…………………………….11 B. War crime of intentionally directing attacks against the civilian population or against civilians not taking direct part in hostilities and ordering the displacement of the civilian population on the basis of individual Criminal responsibility………...………………....……...12 PLEADINGS AND AUTHORITIES………………………………………………………13 I.
The contextual elements common to the war crimes charged……………………………...13 A. The existence of non-international armed conflict in the present dispute………………13 1.
The Free Koukan Army (FKA) was an organized armed group fighting against the Government of Toukanov (Organization Requirement)………….13
2.
The conflict between the Free Koukan Army (FKA) lasted from March 25, 2014 until January 28, 2016 (Intensity Requirement)…………….14 Page 2 of 23
II. General Vande is criminally liable for directing attacks against the Ombrians…………….14 A. General Vande directed the attack against Ombrian Civilians…………………………15 B. The object of the attack were local Ombrians not taking direct part in the hostilities….15 C. General Vande intended the local Ombrians not taking direct part in hostilities to be the object of the attack…………………………………………………………………….16 D. General Vande was aware of factual circumstances that established the existence of armed conflict……………………………………………………………………...17 III. General Vande is liable for the war crime of rape on the basis of command responsibility..17 A. TAF soldiers committed the war crime of rape……………………………………17 1 Actus Reus and Mens Rea………………………………………………………17 2 The war crime of rape extends to cover combatants in the same armed forces…18 B. General Vande bears command responsibility under Article 28 of the ICC Rome of Statute…………………………………………………………………………………18 1. General Vande is a military commander having effective command and control over the TAF soldiers who committed the war crime of rape…………………19 2. General Vande failed to exercise proper control over the TAF which resulted to the commission of the war crime of rape…………………………………..20 3. General Vande, owing to the circumstances at the time, should have known that TAF soldiers were committing the crime of rape…………………………20 4. General Vande failed to take the necessary and reasonable measure within his power to prevent or repress the commission of the war crimes or submit the matter to competent authorities for investigation and prosecution……...21
Page 3 of 23
IV. General Vande is criminally liable in ordering the displacement of the Ombrians………....21 A.
General Vande ordered the displacement of Ombrian Civilians……………………..21
B. The order of General Vande was not justified by the security of the local Ombrians neither by military necessity………………………………………….……………...22 C. General Vande, as the minister of defence, effected the displacement of local Ombrians by implementing Operation Blanc……………………………………………..22 D. General Vande was aware of the Armed Conflict between the FKA and the Toukanovan Government………………………………………………………………….. 23
CONCLUSION/ PRAYER FOR RELIEF……………………………………………………...23
Page 4 of 23
INDEX OF AUTHORITIES
I.
Treaties and Conventions Elements of Crimes, 9 September 2002, ICC-ASP/1/3…………………………….14 Geneva Conventions of 12 August 1949, 8 June 1977, 1125 U.N.T.S. 3…………….18 Protocol II Additional to the Geneva Conventions of 12 August 1949, 8 June 1977, 1125 U.N.T.S. 609……..…………………….…...………………..18 Rome Statute of the International Criminal Court, 17 July 1998, A/CONF.183/9…….………………………………………………………...19,21
II. United Nations Resolutions and Other Documents Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 25…….16 Sliedregt, supra notw 28, at 186; Summary Record of the 7 sf Meeting of the Committee of the Whole, UN Doc. A/CONF. 183/C.1/SR.1………..........………20
III. International Cases and Arbitral Decisions
International Criminal Court Prosecutor v. Bemba, Decision, 15June2009,Case No. ICC-01/05-01/08……...14,19,21 Prosecutor v. Ntaganda, Confirmation of Charges, 9June2014, Case No. ICC-01/04-02/06……………………………………………………………..…..18
Page 5 of 23
International Criminal Tribunal for the Former Rwanda Prosecutor v. Akayesu, Trial Judgment, 2September1998, Case No. IT-96-23&23/1...17 Prosecutor v. Kayishema and Ruzindana, Trial Judgment, 21May1999, Case No. ICTR-95-1-T ………………………………………………………..20 Prosecutor v. Musema, Judgment and Sentence, 27 January 2000, Case No. ICTR-96-13-A………………………………………………………..…13
International Criminal Tribunal for the Former Yugoslavia Prosecutor v. Blaskic, Trial Judgment, 29JULY2004, Case No.ICTY-IT-95-14-T…16 People v. Boskoski, Trial Judment, 10July2008, Case No. IT-04-82-T……………13,14 Prosecutor v. Delalic, Trial Judgment, 16November1998, Case No. IT-96-21-T…..20 Prosecutor v. Hadzihasanovic and Kubura, Trial Judgment, 15March2006, Case no. IT-01-47-T………….....………………….....…………………………...19 Prosecutor v. Strugar, Trial Judgment, 31January2005, Case No. IT-01-42-T……..21 Prosecutor v. Tadic, Decision on the Defence Motion, 2Oct1995, Case No. IT-94-1-AR72………………………………………………………….13 Prosecutor v. Tadic, Trial Judgment, 7May1997, Case No. IT-94-1-T……………..13
IV. Municipal Case Military Prosecutor v. Omar Mahmud Kassem And Others, Trial Judgment, 13 April, 1969, Military Court sitting in Ramallah, Israel………...………….15
Page 6 of 23
V. Other Books Military manuals of Argentina , Australia, Belgium , Benin , Cameroon , Canada, Colombia , Croatia , Dominican Republic , Ecuador ,France, Germany , Hungary, Indonesia, Israel , Italy , Kenya, South Korea , Madagascar , Netherlands , New Zealand , Russia, South Africa, Spain , Sweden , Togo, United Kingdom and United States………………………………………………………………………………15, 16
VI. Journal Articles Direct participation in hostilities: Questions and Answers. International Committee of the Red Cross 02-06-2009 FAQ……………………………………………16 Henckaerts, Jean-Marie and Doswald-Beck, Louise. Customary International Humanitarian Law Volume I: Rules. Cambridge, International Committee of the Red Cross………………………………………..............…………………..23 Rule 14 of the ICRC’s 2005 Study of Customary International Humanitarian………..15
Page 7 of 23
STATEMENT OF FACTS Background The Federal Republic of Toukanov and Hakova was established as a single State after the Second World War. Its population was composed of believers of two religious groups: the Bhouba and the Ombri religion. Almost all the Boubhans resided in the state of Toukanov, while the state of Hakova was predominantly inhabited by Ombrians. In 2009, Mr. Daniel Arlet, belonging to a radical Boubha party, was elected President of the Federal Republic. The Boubhan-dominated federal parliament soon declared Boubha as the official religion of the Federal Republic. In response, the parliament of Hakova proclaimed independence on 10 April 2009, and established the Republic of Hakova. The Hakovan Defence Army (HDA) was formed by the Ombrians within the Federal Army who pledged their allegiance to the Republic of Hakova. President Arlet refused to recognize Hakova as an independent state. In 5 August 2010, the federal parliament changed the Federal Republic’s name to the Boubhan State of Toukanov, and referred to Hakova as an autonomous region of Boubhan State. The Federal Army was regrouped as the Toukanov Armed Forces (TAF). General Gerard Vande, the highest-ranking and senior-most military officer in the TAF, was the TAF’s Chief of Defence Staff. By June 2017, 138 countries have recognized Hakova. Nonetheless, it has not been admitted to the United Nations until the present day. Kouka is a province of Toukanov, bordering the state of Hakova. It was inhabited by 800,000 Ombrians and 200,000 Boubhans. The Ombrian population in Kouka have been clamoring for a referendum to decide the future of Kouka, since the independence of Hakova. The harsher religious policies caused the Ombrian population in Kouka to feel oppressed and victims of segregation. The desire to accede to Hakova reached its peak when the district court of Kouka refused to prosecute a policeman who gunned down and killed a 15-year old Ombrian boy for suspicion of attacking the policeman, in early March 2014. Tens of thousands of Ombrians protested in the streets. President Arlet announced a state of emergency, and declared Martial Law on 25 March 2014. A Free Koukan Army (FKA) was organized by Ombrian veterans in Kouka as a resistance movement. On 20 June 2014, the FKA seized the city of Teria, near the border of Kouka. The FKA ousted the Boubhan government officials and replaced them with its own government. Page 8 of 23
General Vande was known a devout believer Bhouban and was always vocal of his disdain of the Ombri religion. He has repeated in his personal blog that the Ombri religion must be eliminated as it constitutes a threat to the Bhoubans, and that all Ombrians must be driven away. The Armed Convoy of Lannister Enterprises General Vande owned 19% of the shares of Lannister Enterprises, one of the biggest transport companies in Toukanov. Every time Lannister Enterprises’ trucks arrived in Kouka to deliver food and medical supplies to its Boubhan residents, confrontations would ensue. On 10 November 2014, a TAF task force consisting of two armored vehicles with .50 calibre machine guns and a platoon of TAF soldiers escorted a convoy of Lannister Enterprises’ trucks on their way to Biro, Kouka. General Vande instructed the task force leader to protect the convoy with all necessary means. When the trucks entered the FKA controlled area, some unarmed 200 Ombrians attempted to seize the TAF soldiers’ weapons. The TAF fired a few shots. Shortly after, gun fires were shot from the middle of the crowd, which killed a TAF soldier and a truck driver. The TAF soldiers instantly fired back. The armored vehicles also opened fire as the Ombrians scampered to safety. 10 TAF soldiers and 3 truck drivers were killed, while some 110 Ombrian civilians perished and 30 were injured. Mutiny and the Large-Scale Sexual Abuses within the TAF In January 2015, dozens of junior officers and hundreds of soldiers mutinied against higher-ranking TAF officers. They pledged allegiance to General Vande and demanded that the TAF engage with the HDA directly. In March 2015, General Vande visited the mutineers’ camp and promoted several leaders of the mutiny. He also announced the formation of the “Boubha Guards” composed mainly of the mutineers, who shall report directly to the Toukanovan Central Command, and General Vande. The Guardian reported that the dissatisfaction of the soldiers with the large-scale sexual abuse within the TAF was part of the reason for the mutiny. This started on March 2014 when the TAF was deployed to Kouka. The youngest and physically weakest soldiers were tasked to perform logistical services such as meal preparation, maintenance of supplies, and medical care on the wounded. They were regularly raped by higher ranking TAF officers and returning soldiers. The Guardian’s report was also confirmed by the Human Rights Watch. This practice lasted until December 2015. General Vande, however, dismissed his responsibility over the matter, and claimed that his soldiers were all adults. Page 9 of 23
Operation Blanc In June 2015, the UN General Assembly established a Commission of Inquiry on the Situation in Toukanov, to look into the recent spate of human rights violations. In its preliminary report dated 27 October 2015, the Commission disclosed the disturbing religious practices of the TAF under its “Operation Blanc”. In September 2015, said practices were spread to other parts of the country. The Operation Blanc which was spearheaded by the Boubha Guards, allowed them to regain control of parts of Kouka. Under Operation Blanc, residents were compelled to converge at the central square and to disclose their religion. Those who admitted to be followers of Ombri, were forced to convert to Boubha, and were required to attend Boubha religious classes and to visit the sanctuaries thrice a day. Pursuant to the power vested on him under Martial law, General Vande commanded that those who failed to attend the classes shall be imprisoned after the fifth day, in unsanitary detention centers. Arrested FKA fighters, Koukan residents who offended a TAF officer or government official, and more than 80,000 Ombrians, in the TAF-controlled municipalities were detained. Under Operation Blanc, religions which sought to practice in public areas were required to register and secure authorization from the TAF. At present, only the Boubha was registered and authorized to practice. Thousands of practicing Ombrians in Kouka were arrested and displaced at the detention centers at the border. On 6 November 2015, the UN Security Council passed a resolution condemning the TAF and the Toukanovan government for violation of international humanitarian law and abuses of human rights, and imposed economic sanctions on Toukanov. The Present Case Against General Vande On 28 December 2015, Congressman Caron, member of a moderate reformist opposition party in the Parliament, was appointed as Interim President. On 28 January 2016, FKA signed a ceasefire agreement with the TAF, provided that the situation in Kouka from 25 March 2014 to 28 January 2016 be formally referred to the International Criminal Court (ICC). The Toukanovan government formally referred it to the ICC on 5 February 2016. On 10 May 2016, the ICC issued a warrant of arrest for General Vande. He was arrested on 12 May 2016, and was surrendered to the ICC in the Hague on 19 May 2016.
Page 10 of 23
SUMMARY OF PLEADINGS
A.
GENERAL VANDE, UNDER COMMAND RESPONSIBILITY, IS
CRIMINALLY LIABLE FOR VIOLATING THE ICC ROME STATUTE FOR THE WAR CRIME OF RAPE As the military commander of the battalion of Toukanov’s Armed Forces,
1.
General Vande is criminally liable for his failure to react to crimes or for taking inadequate measures, in spite of his influential position in the TAF and his demonstrated ability to adopt far-reaching measures under Article 28 of the statute. In any case, his liability therefor is founded upon the principle of command responsibility.
2.
ICC extends protection under international law to cover war crimes committed
within armed forces. Victims of crimes perpetrated by people on the same side of an armed conflict should be protected. Hence, the war crime of rape committed by Senior TAF Soldiers against their young and weak soldiers is clearly within the court’s jurisdiction.
B.
GENERAL VANDE IS CRIMINALLY LIABLE FOR VIOLATIONS OF
THE ICC ROME STATUTE FOR ORDERING THE ATTACKS AND DISPLACEMENTS OF CIVILIANS PERPETRATED BY THE TAF SOLDIERS AGAINST THE LOCAL OMBRIANS
1.
The physical attacks against unarmed civilians, which were committed in the
context of and in association with armed conflict, constitute the war crime of directly attacking civilians under Article 25 of the Statute. They are liable for violating a customary norm of IHL- that of distinguishing between civilians and enemy combatants at all times.
2.
The Operation Blanc is a violation of Article 25 of the Statute. The order of
General Vande of forcing the Ombrians to convert to Boubha, without regard to their Page 11 of 23
ethnicity and religious beliefs, violates the basic human right of these civilians which is prohibited by International Humanitarian Law. Furthermore, the presence of a national unrest does not justify the clear disregard of General Vande of the right of the civilians to practice their religion, and their transfer to detention centres at the border. The series of circumstances lead to the inevitable conclusion that such acts amount to the war crime of forcible displacement.
Page 12 of 23
PLEADINGS AND AUTHORITIES
I.
The contextual elements common to the war crimes charged are present
A. Non-international armed conflict exists in the present dispute
Non- International Armed Conflict exists when there is prolonged conflict between government authorities and an organized armed group.1 The minimum level of intensity of the conflict and organization of the armed group must be satisfied.2
1.
The FKA was an organized armed group fighting against the Government of
Toukanov
There is an organization when the armed group is organized to a greater or lesser degree.3 Indications of “organization” include; a) command structure; b) military capacity; c) logistics capacity and d) the ability to speak with one voice.4 In this case, upon the declaration of Martial Law by President Arlet, dozens of Ombrian veterans in Kouka organised a resistance movement which they named the Free Koukan Army (FKA) to fight against the police and the Toukan Armed Forces (TAF), appointing themselves as majors and colonels of the FKA.5 FKA managed to recruit up to 2,000 men and women to take arms, and obtained light weapons including assault riffles, grenades and rocket-propelled grenades (RPGS). 6 The organization requirement was met.
1
Prosecutor v. Tadic, Decision on the Defence Motion, 2Oct1995, Case No. IT-94-1-AR72, ¶70.
2
Prosecutor v. Tadic, Trial Judgment, 7May1997, Case No. IT-94-1-T, ¶562.
3
Prosecutor v. Musema, Judgment, 27 January 2000, Case No. ICTR-96-13-A, ¶97.
4
People v. Boskoski, Trial Judgment, 10July2008, Case No. IT-04-82-T, [‘Boskoski’],¶177.
5
Record, ¶8.
6
Record, ¶9. Page 13 of 23
2.
The conflict between the FKA and TAF lasted from March 25, 2014 until
January 28, 2016 Factors considered in assessing the “intensity” of the conflict include: 1) the gravity and frequency of attacks; 2) duration and extent of the conflict; 3) subjugation of towns; 4) intervention by the United Nations; and 5) deployment of government forces to the crisis area.7 The FKA’s operations are acts of open hostility, the conflict between the TAF and FKA lasted for more than ten months8 which is a sufficient basis that it was protracted.9 The overall dire humanitarian condition in Kouka drew international attention and was condemned by the UN Secretary-Council which led to the adoption of a resolution.10 The threshold of intensity was met.
II. General Vande is criminally liable for directing attacks against the Ombrians In order to make a finding on General Vande’s criminal responsibility with the mode of liability of indirect co-perpetration, the following elements must be fulfilled: (a) The perpetrator directed an attack, (b) The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities, (c) The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack, (d) The conduct took place in the context of and was associated with an armed conflict not of an international character, and (e) the perpetrator was aware of factual circumstances that established the existence of an armed conflict.11
7
Boskoski, ¶194-203.
8
Record, ¶8 and ¶28.
9
Prosecutor v. Bemba, Decision, 15June2009, Case No. ICC-01/05-01/08,[‘Bemba’], ¶235.
10
Record, ¶24.
11
Elements of Crimes, Article 8(2)(e)(I) 9 September 2002, ICC-ASP/1/3. Page 14 of 23
Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.12
A. General Vande directed the attack against Ombrian civilians Additional Protocol I defines “attack” as acts of violence against enemies in offence or defence. In this case, the TAF soldiers open fired the Ombrians using the armored vehicles which resulted to the death of 110 Ombrian civilians.13 Such attack did not adhere to the principles of military necessity, proportionality and distinction in order to minimize civilian casualties. General Vande is liable for the directing such attack because he issued a direct Order to the leader of the task force to adjudge the use of arms without any restriction.14
B. The object of the attack were local Ombrians not taking direct part in the hostilities
Numerous military manuals, including those of States not, or not at the time, party to Additional Protocol II, stipulate that a distinction must be made between civilians and combatants and that it is prohibited to direct attacks against civilians.15 Immunity of civilians from direct attack is one of the basic rules of international humanitarian law.16
12
Rule 14 of the ICRC’s 2005 Study of Customary International Humanitarian.
13
Record, ¶16.
14
Ibid.
15
See military manuals (ibid., §§ 10–34 and 173–216), in particular the manuals of France (ibid.,§§ 21 and 188), Indonesia (ibid., § 192), Israel (ibid., §§ 25 and 193–194), Kenya (ibid., § 197),United Kingdom (ibid., §§ 212–213) and United States (ibid., §§ 33–34 and 214–215). 16
Military Prosecutor v. Omar Mahmud Kassem And Others, Trial Judgment, 13 April, 1969, Military Court sitting in Ramallah, Israel (ibid., § 271). Page 15 of 23
Civilian is defined as "any person who is not a member of armed forces".17
Unarmed
local Ombrians were involved in the attack.18 The Ombrians do not fall on any of the numerous military manuals‘definition of combatants.19 In order to constitute direct participation, a violent act must not only be objectively likely to directly cause harm, but it must also be specifically designed to do so in support of one party to an armed conflict and to the detriment of another.20 The act of the Ombrians approaching the convoy, attempting to rob the truck, did not constitute an act of directly taking part in hostilities. The civilians involved were not members of FKA, and the acts were not done to deprive the Boubhans in the conflict areas of food, water and medical supplies.
C. General Vande intended the local Ombrians not taking direct part in hostilities to be the object of the attack In the case of Blaskic21, the Prosecution maintained that the mens rea which characterizes all the violations under the Statute is the intentionality of the acts or omissions, a concept containing both guilty intent and recklessness likeable to serious criminal negligence. Both were present in this case.
17
Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 25 (ibid., § 706). 18
Record,¶16.
19
See, e.g., the military manuals of Argentina (ibid., § 574), Australia (ibid., § 575), Belgium (ibid.,§ 576), Benin (ibid., § 577), Cameroon (ibid., § 578), Canada (ibid., § 579), Colombia (ibid.,§ 580), Croatia (ibid., §§ 581–582), Dominican Republic (ibid., § 583), Ecuador (ibid., § 584),France (ibid., §§ 585–586), Germany (ibid., § 587), Hungary (ibid., § 588), Indonesia (ibid.,§ 589), Israel (ibid., § 590), Italy (ibid., §§ 591–592), Kenya (ibid., § 593), South Korea (ibid.,§ 594), Madagascar (ibid., § 595), Netherlands (ibid., § 596), New Zealand (ibid., § 597), Russia(ibid., § 598), South Africa (ibid., § 599), Spain (ibid., § 600), Sweden (ibid., § 601), Togo (ibid.,§ 602), United Kingdom (ibid., § 603) and United States (ibid., §§ 604–606). 20
Direct participation in hostilities: Questions and Answers. International Committee of the Red Cross 02-06-2009 FAQ. 21
Prosecutor v. Blaskic, Judgment, Case No. ICTY-IT-95-14-T, ¶179. Page 16 of 23
Here, the attempt to rob the Lannister truck by local Ombrians was a usual scenario22 which enabled the TAF to foresee that the same thing would happen upon the setting off of the said trucks on 10 November 2014. Despite this knowledge, General Vande still directed the leader of the task force to protect the convoy with all necessary means 23. General Vande also exhibited recklessness in issuing an unqualified command by ordering the employment of all necessary means to protect the convoy.24
D. General Vande was aware of factual circumstances that established the existence of armed conflict
General Vande was well aware of the existence of armed conflict, being the Chief of the Defence Staff and the highest- ranking and senior- most military officer in the TAF.25 As early as 30 August 2014, General Vande declared in front of the cameras of his intention to destroy the FKA and to eliminate all persons equally associated with the FKA.26
III. General Vande is liable for the war crime of rape on the basis of command responsibility
A. TAF soldiers committed the war crime of rape
1. Actus Reus and Mens Rea
Rape is a physical invasion of a sexual nature, committed against a person under circumstances which are coercive.27 Record shows that since the deployment of the TAF to 22
Record, ¶16.
23
Ibid.
24
Ibid.
25
Ibid, ¶4.
26
Ibid, ¶12.
27
Prosecutor v. Akayesu, Trial Judgment, 2September1998, Case No. IT-96-23&23/1, ¶59. Page 17 of 23
Kouka in March 2014, the youngest and weakest soldiers were regularly raped by higher-ranking TAF soldiers and some senior soldiers returning from the battle until December 2015. The war crime was substantiated based on direct interviews of the victims and witnesses.28 Existence of intent and knowledge can be inferred from all relevant facts and circumstances. The TAF higher-ranking officers acted with intent and knowledge as evidenced by the fact that the commission of the crime was done repeatedly. 29 The rate of recurrence of the criminal act reveals the TAF higher-ranking officers’ intention to engage in the criminal conduct.
2. The war crime of rape extends to cover combatants in the same armed forces
All parties to the conflict should, as a minimum, grant humane treatment to their own armed forces.30 The chapeau of Article 8(2)(e) enumerates the crimes therein as being ‘other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’. The fact that the war crime of rape was committed by persons within the TAF should not be a reason to deny the victims protection under the law of armed conflict.31 To limit the protection against rape by excluding members of the same armed group from its coverage, would run counter to the spirit of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.
B. General Vande bears command responsibility under Article 28 of Rome Statute
28
Record, ¶18.
29
Record, ¶18.
30
Common Article 3 of the Geneva Conventions, Protocol II to the Geneva Convention
31
Prosecutor v. Ntaganda, Confirmation of Charges, 9June2014, Case No. ICC-01/04-02/06. Page 18 of 23
A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his effective command and control or effective authority and control as the case may be, as a result of his or her failure to exercise control over such forces, where: (i) That military commander or person either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person 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.32
1) General Vande is a military commander having effective command and control over the TAF soldiers who committed the war crime of rape “Military commander’ refers to a category of persons who are formally or legally appointed to carry out a military commanding function. 33 Being the highest-ranking and senior-most military officer of the TAF, General Vande had broad formal powers on the use of force and command of all military operations by the TAF. 34 Furthermore, he had direct lines of communication to commanders in the field and both could, and did, issue operational orders.35 Accordingly, he is beyond reasonable doubt to have effectively acted as a military commander. Command responsibility is predicated on a superior’s power to control acts of his subordinates.36 Indications of effective authority and control include: a) the official position of the perpetrator; b) power to give orders; c) capacity to ensure compliance; and d) capacity to order
32
Article 28(a), ICC Rome of Statute.
33
Bemba, ¶408.
34
Record, ¶4.
35
Record, ¶16.
36
Prosecutor v. Hadzihasanovic and Kubura, Trial Judgment, 15March2006, Case no. IT-01-47-T, ¶80, ¶795. Page 19 of 23
forces under his command to engage in hostilities.37 The military position of General Vande enabled him to give orders and exact mandatory compliance from his subordinates.
2) General Vande failed to exercise proper control over the TAF which resulted to the commission of the war crime of rape A military commander is criminally responsible for the crimes committed by his subordinates as a result of his failure to exercise proper control over such forces.38 General Vande has an affirmative duty to act within and enforce the laws of war.39 Though he was in material position, he failed to ensure that violations of IHL were prevented.40
3) General Vande, owing to the circumstances at the time, should have known that TAF soldiers were committing the crime of rape The “should have known” standard, is a form of negligence41, satisfied by the failure of the commander to acquire knowledge of his subordinates’ illegal conduct42. It requires an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops 43 and to inquire, regardless of the availability of information at the time of the commission of the crime.44
37
Bemba, ¶417.
38
Bemba, ¶419.
39
Prosecutor v. Delalic, Trial Judgment, 16November1998, Case No. IT-96-21-T, ¶721.
40
Record, ¶18.
41
Bemba, ¶429.
42
Bemba, ¶432.
43
Prosecutor v. Kayishema and Ruzindana, Trial Judgment, 21May1999, Case No. ICTR-95-1-T,
¶227. 44
Sliedregt, supra notw 28, at 186; Summary Record of the 7 sf Meeting of the Committee of the Whole, UN Doc. A/CONF. 183/C.1/SR.1, ¶67-¶82. Page 20 of 23
General Vande is duty bound to initiate measures to secure reports that military actions were carried out in accordance with international law.45 Reports broadcasted to the public regarding the occurrence of the crime from Human Rights Watch and international media were left unheeded.46 General Vande cannot implore the defence of ignorance where the absence of his knowledge is the result of negligence in the discharge of his duties.47 General Vande’s verbatim response to an interview of the Guardian48 is already a sufficient manifestation that indeed he was aware of the cases of rape within his troops but chose to disregard the same.
4) General Vande failed to prevent or repress the commission of the war crimes or submit the matter to competent authorities for investigation and prosecution A commander is liable under 28(a) of the Rome Statute for failing to take measures “within his material possibility” and the assessment depends on the superior’s degree of effective control over his forces at the time his duty arises.49 This duty required General Vande to take active steps in order to ensure that perpetrators are brought to justice50 and must not go unpunished51. He never did. His dismissive response to an interview of The Guardian was a blanket condonation of the acts of his troops.
IV. General Vande is criminally liable in ordering the displacement of the Ombrians
A.
45
General Vande ordered the displacement of Ombrian Civilians
Prosecutor v. Strugar, Trial Judgment, 31January2005, Case No. IT-01-42-T, ¶374.
46
Record, ¶18.
47
Bemba, ¶43-S6.
48
Record, ¶18.
49
Bemba, ¶443.
50
Bemba, ¶442.
51
Rome Statute, Preamble, ¶4. Page 21 of 23
Within Operation Blanc, there was an explicit order by General Vande that anyone who did not attend Boubha religious classes three times a day would be imprisoned after the fifth day of missing the class. The displaced victims had no genuine choice to remain or leave. They are imprisoned for not attending Boubha religious classes when they did not have the time to attend because they had to work long hours.52 By General Vande’s Order, more than 80,000 Ombrians in the TAF- controlled municipalities in Kouka were detained close to the Toukanov-Hakova border, all of which were located more than 200 km away from the municipalities recently regained by the TAF, by reason of their religion. The others, for fear of detention, fled to other areas.53 The term “displacement” under the APII and ICC Statute makes no distinction between civilians who have fled beyond the territories of the state or remain within it, classifying the abovementioned scenario to be a form of displacement.
B. The order of General Vande was neither justified by the security of the local Ombrians nor by military necessity
The act is not justified by the security of the civilians involved or imperative military reasons since the civilians involved were displaced on the sole purpose of forcing them to convert to the Boubha religion.54
C. General Vande, as the Minister of Defence, effected the displacement of local Ombrians by implementing Operation Blanc There was displacement of civilians as a result of General Vande’s order to imprison those who did not attend the Boubha religious classes, by virtue of the authority vested on him by the
52
Record, ¶21.
53
Ibid.
54
Ibid. Page 22 of 23
martial law.55 The authority would cover both de jure and de facto authority to carry out the order.56
D. General Vande was aware of the Armed Conflict between the FKA and the Toukanovan Government General Vande under the Toukanovan law, as the Chief of the Defence Staff is the highestranking and senior-most military officer in the TAF.57 General Vande announced himself that Operation Blanc was his strategy to regain territories previously occupied by the FKA. 58
PRAYER FOR RELIEF
The Prosecution respectfully requests this Honourable Court to confirm the charges against General Vande.
Respectfully Submitted,
Agents for the Prosecutor
55
Ibid.
56
Henckaerts, Jean-Marie and Doswald-Beck, Louise. Customary International Humanitarian Law Volume I: Rules. Cambridge, International Committee of the Red Cross. 57 Record, ¶4. 58
Record, ¶20. Page 23 of 23