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12 Prosecution
PROSECUTOR VS. GENERAL VANDE Before the International Criminal Court at the Hague
OCTOBER 2017
TABLE OF CONTENTS INDEX OF AUTHORITIES.....................................................................................................
i
STATEMENT OF FACTS........................................................................................................
1
SUMMARY OF THE PLEADINGS.........................................................................................
3
PLEADINGS................................................................................................................................ 4 A. PRELIMINARY MATTERS.................................................................................................
4
1. STANDARD OF PROOF............................................................................................... 4 2. NATURE OF THE CONFLICT....................................................................................
4
2.1 All charges against Vande took place in the context of and were associated with an noninternational armed conflict (NIAC)................................................................. 4 2.1.1 There was an NIAC between the TAF and the FKA........................ 4 2.1.2 The minimum requirement of intensity has been met ..................... 4 2.1.3 The FKA possessed the requisite organization ................................ 5 2.2 The involvement of Hakova did not internationalize the armed conflict in Kouka ................................................................... 5 2.2.1 Hakova is not a sovereign state ........................................................ 5 2.2.2 Involvement of Hakovan officers in FKA failed the
overall control test ……………………………………………………..
2.2.3 Nessuno documents are inadmissible as evidence .........................
5 6
2.3 There is a nexus between the 3 charges against Vande and the conflict in Kouka ........................................................... 6 2.4 Vande is aware of factual circumstances that established the existence of an NIAC .................................................... 6 B. CHARGES ……………………………………………………………………………………. 7 COUNT 1: VANDE BEARS RESPONSIBILITY FOR INDUCING THE COMMISSION OF THE WAR CRIME OF DIRECTING ATTACKS AGAINST THE INDIVIDUAL CIVILIANS OR THE CIVILIAN POPULATION AS SUCH................................................................................................ 7 Page 2 of 25
1. Vande induced the attack directed on civilians............................................................ 7 2. TAF
committed the war crime of directing attacks against civilians.....................
7
2.1 The TAF launched the attacks ................................................................................... 8 2.2 The object of the attack was a civilian population or individual civilians not
taking direct part in hostilities .......................................................................................... 8 2.2.1 The attack violated the Principle of Distinction ........................................... 9 2.2.2 The attack violated the Principle of Proportionality .................................
9
2.3 The attack was intended to be carried out on a non-military objective .................... 9 2.4 Vande was aware of the Civilian Status of the Population or Individuals...............
10
Armed Conflict .................................................................................................................
10
2.5. Vande was aware of the Circumstances that Established the Existence of the COUNT 2: VANDE IS RESPONSIBLE AND LIABLE ON THE BASIS OF
COMMAND RESPONSIBILITY FOR THE WAR CRIME OF RAPE.................... 11 1. Vande bears command responsibility for the commission of the war crime of rape by his subordinates .................................................................................................. 11 1.1 Effective Control ........................................................................................................... 11 1.2 Knowledge .................................................................................................................... 11 1.3 No reasonable and necessary measures taken ............................................................. 12 2. The senior officers of TAF committed rape .......................................................................
12
2.1 Human Rights Watch and The Guardian reports are admissible and sufficient to prove
the commission of rape ........................................................................................................ 12 2.2 The subordinates of Vande perpetrated rape ............................................................... 12 2.3. The protection against rape applies to victims within the same armed forces ............. 13 3. Vande knew that the rape committed by his subordinates happened in the context of a NIAC............................................................................................................... 13 COUNT 3: VANDE, THROUGH ANOTHER PERSON, ORDERED THE DISPLACEMENT OF THE OMBRIAN RESIDENTS IN KOUKA UNDER OPERATION BLANC....................................................................................... 14
1. Vande, through another, ordered the displacement..................................................
14
2. Vande made the order in his capacity as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible................................................................................... Page 3 of 25
14
3. Ombrian residents are civilians....................................................................................
15
4. Such order was not justified by the security of the civilians involved or by military necessity.....................................................................................................
16
5. Vande as Chief of Defence Staff is in a position to effect displacement when he gave the order to implement Operation Blanc............................................
16
6. Vande is aware that the displacement of civilians occurred in the context of a NIAC....................................................................................................................... PRAYER FOR RELIEF .........................................................................................................
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16 17
INDEX OF AUTHORITIES INTERNATIONAL TREATIES AND CONVENTIONS 1933 Montevideo Convention on the Rights and Duties of States Page 5 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 Pages 8, 9, 15 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609 Pages 8, 9, 15 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 17 Page 6 UN General Assembly, Rome Statute of the International Criminal Court, July 17, 1998 ISBN No. 92-9227-227-6 ………………….. Page 6 U.N. DOCUMENTS International Criminal Court, Elements of Crime, 2013, ISBN No. 92-9227-232-2 Page 14 UN OCHA Civil-Military Coordination Section, Use of Military or Armed Escorts for Humanitarian Convoys, 14 September 2001 Page 10 Page 5 of 25
JUDICIAL AND ARBITRAL DECISIONS ICJ Report, Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 8 July 1996, [1996] Rep. 226, at 257 Page 8 M.C. v. Bulgaria,.39272/98, Council of Europe: European Court of Human Rights, (3 December 2003), Page 12
Prosecutor v. Ante Gotovina et al. T-Ch I, IT-06-90-T, ICTY (15 April 2011) Page 14 Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 (9 June 2014) Pages 14 Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 (4 January 2017) Page 13 Prosecutor v. Boškoski, Trial Chamber II,Trial Decision (10 July 2009) Pages 4, 5 Prosecutor v. Callixte Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/10, (16 December 2011) Pages 4, 8, 9 Prosecutor v. Délic, T.Ch, IT-04-83-T (15 September 2008) Pages 11, 12 Prosecutor v. Germain Katanga, (Judgment pursuant to article 74 of the Statute), ICC-01/04-01/07-3436-tENG, Tr. Ch. II,(7 March 2014) Page 8 Prosecutor v. Harun and Kushayb, PT-ChI, 27April 2007) Page 7 Prosecutor v. Jean-Paul Akayesu, T.Ch 1, ICTR-96-4-T (2 September 1998) Page 12 Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, P-T Ch II, (15 June 2009) Pages 4, 5 Page 6 of 25
Prosecutor v. Katanga (Decision on Confirmation of Charges) ICC-01/04-01/07, P-T Ch I (30 September 2008) Pages 4, 6, 7 Prosecutor v. Kenyatta, PT-Ch. II, ICC-01/09-02/11 (23 January 2012) Page 12 Prosecutor v. Kordic and Cerkez, T. Ch, IT-95-14/2-T (26 February 2001) Page 11 Prosecutor v. Oric, Trial Chamber, ICTY-03-68-T, T Ch II (30 June 2006) Page 11 Prosecutor v. Radislav Krstic, IT-98-33-T, ICTY (2Aug 2001) Page 7 Prosecutor v. Stanislav Galic - Case No. IT-98-29-T Page 9 Prosecutor v. Strugar, T.Ch, IT-01-42-T (31 January 2005) Page 11 Prosecutor v. Thomas Lubanga Dyilo, (Decision on the confirmation of charges), P-T Ch I (29 January 2007), Page 15 Prosecutor v. Tihomir Blaskic, IT-95-14-T, ICTY (3Mar 2000) Page 7 Prosecutor v. Zdravko Tolimir, T.Ch II, IT-05-88/2T, ICTY (12 December 2012) Page 14 BOOKS Black's Law Dictionary, 9th, ed., 2009. Page 7 Dörmann, K., & Doswald-Beck, L. (2008). Elements of war crimes under the Rome Statute of the International Criminal Court: sources and commentary. Cambridge: Cambridge University Press. Page 14
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Longman, T., & Takirambudde, P. (1998). Proxy targets: civilians in the war in Burundi. New York: Human Rights Watch. Page 15 Mettraux, G. (2008). Perspectives on the Nuremberg Trial. Oxford: Oxford University Press. Page 11 Pictet, J. S., & Uhler, O. M. (1994). Geneva convention IV: relative to the protection of civilian persons in time of war: commentary. Geneva: International committee of the Red Cross. Page 16
STATEMENT OF FACTS The Federal Republic of Toukanov and Hakova has two major religions, the Ombri and Boubha. Majority of the Ombrians reside in Hakova while most Boubhans in Toukanov. Upon his election as President in 2009, Daniel Arlet declared Boubha as the state religion which led to Hakova proclaiming independence. By 2017, 138 countries recognized the Republic of Hakova which is not a United Nations member. A constitutional amendment renamed the Federal Republic as the Boubhan State of Toukanov and referred to Hakova as an autonomous region. The Federal Army was regrouped as the Toukanov Armed Forces (TAF). Kouka is a Toukanovan province mostly populated by Ombrians who felt oppressed after the government restructuring. The Ombrians publicly demanded accession to Hakova. On March 2014, martial law was declared in Kouka which led to an escalation of violence. The Free Koukan Army was formed by Ombrian veterans based in Kouka, composed of majors and colonels. They recruited members, obtained high-powered weapons and gained control over half of Kouka.
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On August 30, 2014, General Vande, the TAF’s highest-ranking military officer, publicly declared to eliminate all persons associated with the FKA. Vande never concealed his abhorrence of the Ombri religion. Lannister Enterprises, a transport company whose trucks have been the subject of repeated criminal acts in FKA-controlled areas by Ombrian civilians, sought the protection of the TAF. On November 10, 2014, a convoy of Lannister trucks, protected by a platoon of TAF forces, and two armoured vehicles, set off to Biro, the capital of Kouka. Vande instructed the task force’s leader to protect the convoy with all necessary means. As the convoy entered the FKA-controlled area, 200 Ombrian civilians stopped and attempted to rob the trucks. Following warning shots from the TAF, shots were fired from the middle of the crowd. The TAF opened fire at the civilians as they fled. 110 civilians died and 30 injured. In January 2015, there was a mutiny within the TAF. The mutiny was partly a result of the soldiers’ dissatisfaction with the large-scale sexual abuse and rape within the TAF from March 2014 until December 2015 according to similar reports by the Human Rights Watch and the Guardian.Vande promoted the mutineers and established the Boubha Guards, a unit directly reporting to him. The Boubha Guards executed Vande’s Operation Blanc, a military strategy which forced Ombrians to attend Boubhan religious classes three times a day. The 80,000 who failed to do so were imprisoned. Others fled for fear of detention. On December 14, 2015, Arlet was impeached after public displeasure over human rights abuses. The new government negotiated a cease-fire agreement with the FKA on the condition that the situation in Kouka would be referred to the International Criminal Court. After investigation, Vande was surrendered to the Court. Hence, this case before the Court.
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II. SUMMARY OF THE PLEADINGS All three charges are in the context of and associated with a non-international armed conflict.
The involvement of the self-proclaimed Hakovan government does not affect the nature of the conflict between TAF and KFA as a non-international armed conflict under international law.
General Vande induced the commission of the war crime of directing attacks against civilians.
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His authority over his subordinates coupled with his public speeches encouraging the elimination of Ombrians prove that he induced TAF soldiers to commit acts against Ombrian civilians that violate the principles of proportionality and distinction. General Vande is criminally liable for the war crime of rape on the basis of command responsibility. Despite being aware of the rapes committed by his subordinates, he failed to take necessary measures against them. The reports from independent organizations are sufficient to confirm the charge against General Vande. General Vande, through his Operation Blanc, indirectly and unlawfully displaced the Ombrian residents of Kouka. Operation Blanc is not justified by military necessity nor was it for the security of civilians. He implemented it simply because of his abhorrence against Ombrians and desire to eliminate them in Kouka.
III. PLEADINGS A. PRELIMINARY MATTERS 1. STANDARD OF PROOF The Prosecution will provide evidence demonstrating a clear line of reasoning underpinning its specific allegations against General Vande [“Vande”] in accordance with the 1
evidentiary standard of substantial proof, as provided for in Article 61(7) of the Statute. 1
Prosecutor v. Germain Katanga et al., ICC-01/04-01/07, P-T Ch I (30 September 2008) ¶65
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2. NATURE OF THE CONFLICT 2.1 All charges against Vande took place in the context of and were associated with a Non-International Armed Conflict (NIAC). 2.1.1 There was an NIAC between the TAF and the FKA. 2
NIAC is a “protracted armed conflict...within a state.” To qualify as an NIAC, two criteria must be met: a) intensity of the armed violence and b) organization of the armed groups.
3
2.1.2 The minimum requirement of intensity has been met. . 4
The intensity of the armed conflict met the relevant standards . The conflict between the two parties existed from the time the TAF forces were deployed in Kouka and the FKA was 5
established, until the signing of the ceasefire agreement. During that time, the confrontations involving the use of high-powered firearms spread all throughout Kouka enabling FKA to seize 6
control of half of the Koukan province.
2.1.3 The FKA possessed the requisite organization. 7
The existence of several factors substantiates FKA as an organized armed group. It was able to recruit approximately 2,000 members and took control of approximately half of the 8
Koukan province through large scale attacks. Ombrian veterans had assumed leadership
Art. 8(2)(f), Rome Statute. Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, P-T Ch II (15 Jun 2009) ¶231; Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, P-T Ch I (16 Dec 2011) ¶103 4 Prosecutor v. Boškoski, Trial Chamber II,Trial Decision (10 Jul 2009) ¶177-193 5 Facts, ¶[8]-[28] 6 Facts, ¶9 7 Boškoski,footnote[4] ¶194-206 8 Facts, ¶[9]-[28] 2 3
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9
positions within the FKA. Both parties exercised their capacity to act on behalf of its members 10
in negotiations through the signing of the ceasefire agreement.
2.2 The involvement of Hakova did not internationalize the armed conflict in Kouka. 2.2.1 Hakova is not a sovereign state. 11
Hakova failed to fulfill all the requisites of a sovereign state under the international law. 2.2.2 Involvement of Hakovan officers in FKA failed the overall control test.
The overall control test requires that the intervening party “has a role in organizing, coordinating, or planning the military actions of the military group, in addition to financing, 12
training and equipping or providing operational support to that group”.
The self-proclaimed Hakovan government merely provided the weapons and the training 13
to the FKA fighters.
The deployment of HDA tanks and men towards the border and the
repeated manoeuvres by the HDA at the Hakova-Toukanov border occurred within Hakovan 14
territory and is therefore irrelevant to the issue.
2.2.3 Nessuno documents are inadmissible as evidence. Evidence obtained by means violating internationally recognized human rights are 15
inadmissible if the admission would seriously damage the integrity of the proceedings. The
Facts, ¶8 Facts, ¶28 11 Art. 1, 1933 Montevideo Convention 12 Gombo, footnote [3], ¶130 13 Facts, ¶11 14 Facts, ¶11 15 Art. 69(7), Rome Statute 9
10
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16
right against unlawful interference with a person’s privacy is internationally recognized. This Court was established to reaffirm the purpose of the United Nations
17
in promoting and
18
encouraging respect for human rights . Thus, the admission into evidence of Nessuno 19
documents would impair the integrity of this Court. 2.3 There is a nexus between the 3 charges against Vande and the conflict in Kouka. The following factors establish that the act in question is sufficiently related to the armed conflict: the perpetrator is a combatant; the victim is a non-combatant; the act may be said to serve the ultimate goal of a military campaign; and the crime is committed as part of or in the 20
context of the perpetrator's official duties.”
21
All the charges against Vande occurred during the NIAC in Kouka and were committed either as part of or in the context of his official duties as the highest-ranking and senior-most 22
military officer in the TAF. All the victims in the charges were either civilians or those who did not directly participate in the hostilities.
23
2.4 Vande is aware of factual circumstances that established the existence of an NIAC. What is required is awareness of the factual circumstances to establish the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with” B. CHARGES COUNT 1: VANDE BEARS RESPONSIBILITY FOR INDUCING THE COMMISSION OF THE WAR CRIME OF DIRECTING ATTACKS AGAINST THE INDIVIDUAL CIVILIANS OR THE CIVILIAN POPULATION AS SUCH Art. 17, ICCPR Preamble, Rome Statute 18 Article 1(3), UN Charter 19 Facts, ¶27 20 Katanga, footnote [1] [¶380]-[382]-[383] 21 Facts, ¶[16]-[18]-[21]-[22] 22 Facts, ¶[4]-[16]-[18]-[21]-[22] 23 Facts, ¶[16]-[18]-[21]-[22] 16 17
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1. Vande induced the attack directed on civilians. Inducement encompasses any conduct which leads another person to commit a crime, 24
including solicitation. Public speeches personally encouraging the commission of illegal acts 25
26
are indicative of inducement. As Chief of the Defence Staff, Vande had position and authority 27
28
to convey implicit intent for another to commit an offense as shown by his manifestations of 29
despise against Ombrians through his public speeches and personal blog . 30
Due to prior acts of violence committed by the Ombrians against Lannister trucks , 31
Vande’s order to protect the convoy by all necessary means was interpreted by the troops that any attack against the convoy are done by FKA terrorists. Vande’s knowledge that certain acts 32
may be attributed to Ombrian civilians who are not to be subjected to any attack establish the mens rea of individual criminal responsibility.
2. TAF committed the war crime of directing attacks against civilians. All five elements under Article 8 (2) (e) (i) are fulfilled. 2.1 The TAF launched the attacks. 33
Attacks are “acts of violence against the adversary, whether in offence or in
defence.” The civilian population, as well as individual civilians, shall not be the object of Black's Law Dictionary, 9th , ed., 2009. Prosecutor v. Harun and Kushayb, PT-Ch I (27April 2007) ¶90 26 Facts, ¶4, 27 Prosecutor v. Radislav Krstic, IT-98-33-T, ICTY (2Aug 2001) ¶601 28 Prosecutor v. Tihomir Blaskic, IT-95-14-T, ICTY (3Mar 2000) ¶ 281 29 Facts, ¶12, 14 30 Facts, ¶14. 31 Facts ¶15. 32 Katanga, footnote [1], ¶807 33 API, Art. 49 24 25
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an
34
attack . To constitute a war crime, it is sufficient to prove that the author directed
the
35
attacks toward the civilian population or individual civilians. TAF’s attacks, as induced
by
Vande, produced 110 civilian deaths. 2.2 The object of the attack was a civilian population or individual civilians not taking direct part in hostilities.
36
Attacks on civilians are absolutely prohibited by international humanitarian law and unjustifiable by military necessity.
37
38
A civilian is anyone not a member of the State or non-State armed forces and a civilian population consists of “all civilians as opposed to members of armed forces and any other legitimate combatants”. In case of doubt, an individual must be considered a civilian.
39
40
The shots fired from the middle of the crowd did not deprive the entire Ombrian 41
population of its civilian character. Reprisals against civilian population are prohibited in all circumstances, regardless of the behaviour of the other party, since "no circumstances would legitimise an attack against civilians even if it were a response 42
proportionate to a similar violation perpetrated by the other party.” 2.2.1 The attack violated the Principle of Distinction.
APII, Art 13 (2) Katanga, PT Ch. I, (6 Jul 2007) ¶37 36 Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226, at 257 (¶78) 37 Prosecutor v. Germain Katanga, (Judgment pursuant to article 74 of the Statute), ICC-01/04-01/07-3436-tENG, Tr. Ch. II,(7 March 2014) ¶800 38 Katanga, footnote[37] ¶788 39 Mbarushimana, footnote [3] (16 Dec2011) ¶148 40 Facts, ¶16 41 Facts,¶16 42 Mbarushimana, footnote [3] ¶143 34 35
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Indiscriminate attacks against civilians are prohibited as they enjoy protection 43
44
against dangers from military operations , unless they take a direct part in hostilities.
Indiscriminate attacks are of a nature to strike military objectives and civilians or civilian objects without distinction.
45
Hence, the TAF forces should have distinguished a
legitimate military target from a civilian after the shot was fired from the middle of the crowd.
46
2.2.2 The attack violated the Principle of Proportionality. A disproportionate attack is launched with awareness that incidental loss of life or injury to civilians will or may occur as a result. The civilian population is not the target of 47
the attack but only an incidental consequence thereof. Even if the Ombrian were not the 48
target, opening fire at fleeing Ombrian civilians is still an incidental consequence falling within the war crime of attacking civilians. Vande had reasonable use of the information available to him, thus he could have expected excessive civilian casualties to result from the attack.
49
2.3 The attack was intended to be carried out on a non-military objective. Intention could be inferred from the fact that Vande wanted to exact revenge on 50
51
both civilians and the belligerent FKA. Biro was an FKA-controlled area and before
APII, Art 13 AP II Art. 13 (3), 45 API, Art. 51 (4) 46 Facts, ¶16 47 Mbarushimana,footnote[3] ¶142 48 Facts, ¶16 49 Prosecutor v. Stanislav Galic - Case No. IT-98-29-T 50 Mbarushimana, footnote [3] ¶143 51 Facts, ¶9 43 44
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the departure of the convoy for Biro, Vande gave a direct order to the task force’s leader 52
to protect the convoy using all necessary means.
The act of Lannister Enterprises is not a humanitarian relief because it failed to satisfy the principles of humanitarian action, specifically the principles of impartiality 53
and neutrality since it was only for the Boubhans living in Biro. Even if the act was a humanitarian relief, as a general rule, humanitarian convoys do not use armed or military 54
escorts.
2.4 Vande was aware of the Civilian Status of the Population or Individuals. Vande’s decision to assign a military escort is predicated on the conduct of violence imputed on Ombrian civilians made on previous Lannister convoys entering 55
FKA-controlled territories.
2.5. Vande was aware of the Circumstances that Established the Existence of the Armed Conflict. Vande’s decision to assign a TAF task force to protect the Lannister convoy is predicated on his knowledge of the previous attacks, by the same group of Ombrians, on Lannister trucks upon entering FKA-controlled areas. Furthermore, he issued statements in his personal blog that all Ombrians must be removed as they constitute danger to the Boubhans.
COUNT 2: VANDE IS RESPONSIBLE AND LIABLE ON THE BASIS OF COMMAND RESPONSIBILITY FOR THE WAR CRIME OF RAPE Facts,¶16 Facts, ¶15 54 UN OCHA Civil-Military Coordination Section, Use of Military or Armed Escorts for Humanitarian Convoys, 14 September 2001 55 Facts, ¶9. 52 53
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1. Vande bears command responsibility for the commission of the war crime of rape by his subordinates. 1.1 Effective Control 56
Factors such as the official position of the suspect , the power to promote, replace, 57
remove or discipline any member of the forces , and the capacity to make changes in the 58
command structure indicate the existence of effective control. Vande, as the highest military official in the TAF, promoted several mutineers in March, 2015 and created a special unit 59
directly reporting to him. 1.2 Knowledge
60
The commander can be held liable for having actual knowledge of the crime. Indicia relevant for gathering knowledge can be the scope of the illegal acts, time during which they took place, the location of the commander at the time, and the availability of reports.
61
The rape and sexual abuse of the TAF soldiers happened from March, 2014 to December, 2015. Within this interval, Vande visited the camps where the large-scale sexual abuse took place. These crimes became common knowledge when they were reported by the Guardian and 62
the Human Rights Watch..
1.3 No reasonable and necessary measures taken
Prosecutor v. Kordic and Cerkez, T. Ch, IT-95-14/2-T, ICTY (26Feb 2001) ¶438 Prosecutor v. Délic, T.Ch, IT-04-83-T, ICTY (15Sep 2008) ¶62 58 Prosecutor v. Strugar, T.Ch, IT-01-42-T, ICTY (31Jan 2005) ¶397 59 Facts, ¶18. 60 Prosecutor vs Oric, T.Ch II, IT-03-68-T, ICTY (30Jun 2006) ¶321 61 Mettraux, G. (2008). Perspectives on the Nuremberg Trial. Oxford: Oxford University Press.¶214 62 Facts,¶18 56 57
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63
A commander has the duty to repress the commission of crimes by his subordinates.
This duty also includes two others: a) stopping the commission of the ongoing crimes and b) 64
punishing the perpetrators after such commission. Vande failed to fulfill these duties when he did nothing to stop the large-scale sexual abuse and refused to punish the subordinates after knowledge of such.
65
2. The senior officers of TAF committed rape. 2.1 Human Rights Watch and The Guardian reports are admissible and sufficient to prove the commission of rape. The similar reports of the Human Rights Watch and the Guardian revealing rape and sexual abuse within the TAF are considered indirect evidence that should be accorded weight, for at least two pieces of indirect evidence are sufficient to prove an allegation to the standard of 66
substantial grounds to believe.
2.2 The subordinates of Vande perpetrated rape Rape is physical invasion of a sexual nature, committed on a person under circumstances which are coercive and its central elements cannot be captured in a mechanical description of 67
objects and body parts. Coercion constitutes not only physical force or the threat thereof, but 68
may also include the exercise of organizational power.
Here, there existed a coercive
circumstance wherein the perpetrators abused their position of superior military power over the 69
victims.
Delic, footnote[57] ¶69 Kordic and Cerkez, footnote [56], ¶446 65 Facts, ¶18. 66 Prosecutor v. Kenyatta, PT-Ch. II, ICC-01/09-02/11 (23Jan 2012), ¶[82]-[87] 67 Prosecutor v. Jean-Paul Akayesu, T-Ch I, ICTR-96-4-T (2Sept 1998) ¶688 68 M.C. v. Bulgaria,.39272/98, Council of Europe: European Court of Human Rights, (3 December 2003), ¶180 69 Facts, ¶18. 63 64
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Investigative journalists of the Guardian reported that a large-scale and systematic sexual abuse was happening within the TAF wherein the youngest and physically weakest men and women soldiers in each regiment were being regularly raped by higher-ranking TAF officers and senior soldiers. These findings have been corroborated by the Human Rights Watch report based 70
on the interviews of wounded TAF soldiers.
2.3. The protection against rape applies to victims within the same armed forces. The prohibition of rape attained jus cogens status under international law. It will 71
therefore apply even if the victims were members of the same armed forces.
3. Vande knew that the rape committed by his subordinates happened in the context of a 72
NIAC.
Vande acknowledged the rape committed against the youngest and physically weakest 73
soldiers by high-ranking TAF officers some senior soldiers. Further, young soldiers deployed in Kouka were also picked and sexually abused based on their ranks and performance in the 74
battlefield.
COUNT
3:
VANDE,
THROUGH
ANOTHER
PERSON,
ORDERED
THE
DISPLACEMENT OF THE OMBRIAN RESIDENTS IN KOUKA UNDER OPERATION BLANC. 1. Vande, through another, ordered the displacement
Ibid. Prosecutor v. Bosco Ntaganda, PT-Ch.VI, ICC-01/04-02/06 (4Jan 2017) ¶ 51-53 72 See Preliminary Matters 73 Facts, ¶18. 74 Ibid. 70
71
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The conduct of the perpetrator forcing the civilians to leave a certain area is not limited to 75
an order. Limiting element 1 of Article 8(2)(e)(viii) to an order would unduly restrict the actual 76
circumstance of civilian displacement in the course of an armed conflict.
Ombrians were required to attend religious classes and visit Boubha sanctuaries 77
three times a day. Anyone who failed to do so were imprisoned, as ordered by Vande. Others 78
fled for fear of detention in notorious sanitary conditions
thus amounting to the forcible
displacement of the Ombrian civilians. 79
People moved without a genuine choice.
Fear of violence, duress, detention, psychological
oppression, and other such circumstances may create an environment where there is no choice 80
but to leave, thus amounting to the forcible displacement of people. A person must give consent 81
voluntarily and by his/her free will to be lawfully displaced.
2. Vande made the order in his capacity as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.
82
The perpetrator was in a position to effect such displacement by giving such an order. It 83
covers an individual who has effective control over a situation. It is sufficient when such order 84
is given within the chain of command.
It is sufficient that the co-perpetrators are aware of the risk of implementing the common plan, specifically directed at the achievement of a non-criminal goal that will result in the 85
86
commission of the crime, and accept such an outcome. This was evident in Operation Blanc,
Prosecutor v. Bosco Ntaganda, PT-Ch.II, ICC-01/04-02/06 (9Jun 2014) ¶64 Ibid. 77 Ibid. 78 Ibid. 79 Prosecutor v. Ante Gotovina et al., T.Ch I, IT-06-90-T, ICTY (15 April 2011) ¶1738 80 Ibid. ¶1739 81 Prosecutor v. Zdravko Tolimir, T.Ch. II, IT-05-88/2T, ICTY (12Dec 2012) ¶795 82 EOC,Article 8(2)(e)(viii) 83 D örmann, K., & Doswald-Beck, L. (2008). Elements of war crimes under the Rome Statute of the International Criminal Court: sources and commentary. Cambridge: Cambridge University Press, pg. 473 84 Ibid. 85 Prosecutor v. Thomas Lubanga Dyilo, P-T Ch I, ICC-01/04-01/06 (29 Jan 2007), ¶344 86 Facts, ¶19 75 76
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87
which was spearheaded by the Boubha Guards directly under Vande who admitted that it his 88
military strategy.
3. Ombrian residents are civilians.
89
Ombrian residents of municipalities in Kouka were the subjects of Operation Blanc.
They are deemed civilians, absent of any showing that they were taking part in the hostilities in 90
the area.
4. Such order was not justified by the security of the civilians involved or by military necessity.
Displacement of a population is allowed when conducted for the security of persons 91
involved or military necessity so demands. When carried out, the civilian population must be 92
received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.
Ombrian civilians not attending Boubha religious classes were imprisoned in unsanitary 93
detention centers,
a clear showing that detention itself was the goal in furtherance of a
well-organised purpose to expel Ombrians in Kouka not justified under international law. Military reasons cannot be justified by political motives.
94
Military necessity exists when the presence of protected persons in an area hampers 95
military operations. Removal of civilians, in a limited sense, is allowed from an expected site of
Ibid. Facts, ¶20 89 Facts,¶20 90 API, Rule 5, Customary IHL, 50(1) 91 APII Article 17(1) 92 APII Article 17(2) 93 Ibid. 94 Longman, T., & Takirambudde, P. (1998). Proxy targets: civilians in the war in Burundi. New York: Human Rights Watch, pg. 32 95 Pictet, J. S., & Uhler, O. M. (1994). Geneva convention IV: relative to the protection of civilian persons in time of war: commentary. Geneva: International committee of the Red Cross., ¶280. 87 88
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96
97
direct combat. However, it does not authorize indefinite detention of civilians, as in Operation Blanc, strategized to effectively control Ombrians. The removal of civilians cannot be invoked as an excuse to gain military advantage and holding the population hostage against their will in 98
squalid conditions.
Although forced removal for humanitarian reasons is justifiable in certain situations, it is not justified where the humanitarian crisis that caused the displacement is itself the result of the 99
perpetrator’s own unlawful activity.
5. Vande as Chief of Defence Staff is in a position to effect displacement when he gave the order to implement Operation Blanc. Vande, being the Chief of Defence Staff, is the highest-ranking and senior-most military 100
officer in the TAF.
His order of detention, which caused the displacement, was issued pursuant
to the authority vested in him by virtue of the martial law.
101
6. Vande is aware that the displacement of civilians occurred in the context of a NIAC. The detention of the Ombrian civilians were made to ensure the suppression of the Ombri religion and to free Kouka from FKA control; coercion through the threat of being imprisoned 102
for such religious belief.
PRAYER
Longman, T., & Takirambudde, P. (1998). Proxy targets: civilians in the war in Burundi. New York: Human Rights Watch, pg. 31 97 Ibid. 98 Ibid. 99 Prosecutor v. Radovan Karadžić, T.Ch, IT-95-5/18-T, ICTY (24Mar 2016) ¶492. 100 Ibid. 101 Facts,¶21 102 Facts,¶21 96
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The Prosecution respectively requests this Honourable Court to adjudge and declare that Vande is criminally responsible under the Rome Statute for: War crimes under Article 8(2)(e)(i), 8(2)(e)(vi) and ,8(2)(e)(viii). Respectfully submitted, The Prosecution
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