Arguments Prosecution

8/11/2019 Arguments Prosecution

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Arguments

Prosecution vs Colonel Jingo Crackle

1) The court has jurisdiction to try Colonel Jingo Crackle and thecharges are justified

a) Colonel Jingo Crackle was from Kimatan. Kimatan has been a stateparty to the ICC Rome Statute since August 2000. Arrest warrant was

issued by the court for the arrest of Colonel Jingo Crackle as on 22nd

January 2014. As Kimatan being a state party to the ICC Roman

statute, by Article 59(1) of the Rome ICC Statute, an arrest or

surrender must be done as per the laws . Therefore, Kimatan was

liable to arrest and surrender Colonel Jingo crackle in the first place as

soon as warrants were out.

The court had jurisdiction over Colonel Jingo Crackle because Kimatan

itself had accepted this jurisdiction. As the state was a pro Roman ICC

statute state, the jurisdiction applied in the same and thus arrest beingtaken place at any point of time would be proper and lawful and

would not give rise to any cause of action. In the given scenario, we

can see that Colonel Jingo Crackle was carried to Astram by a private

security agency. It is said that he was carried forcibly. We should keep

in mind is that though there might be a possibility of abduction and

unlawful transfer of Colonel Jingo Crackle to Astram, this does not

bring doubt over the nature of the charges or the progress of the

proceeding of the ICC. We infer this because of the liability of the sate

of Kimatan to handover Colonel Jingo Crackle. Even in the present

scenario, the arrest of Colonel by the Astram authorities is totally

justified under article 59(4) of the Roman Statute.

b) The problem is an international one and therefore interferenceof ICC is justified

The Appeals Chamber of the ICTY in Tadic categorically noted that an internalarmed conflict becomes an international one, where another State intervenes in thatconflict through its troops.(Prosecutor v. Tadic, T-94-1-A, Judgement, 15/07/1999, para. 84.)

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The Appeals Chamber of the ICTY in Tadic, noted that control by a State oversubordinate armed forces, militias or paramilitary units can render the latter to beregarded a de facto organ of the State (Prosecutor v. Tadic, T-94-1-A, Judgement,15/07/1999, para. 137.)

However, the State need not issue specific orders or directions to each individualoperation. (Prosecutor v. Tadic, T-94-1-A, Judgement, 15/07/1999, para. 137.)2. A Trial Chamber of the ICTY in Blaskic, seized on a range of factors to find ample

proof to characterize the conflict as international based on Croatias direct

intervention in Bosnia-Herzegovina. ( Prosecutor v. Blaskic, IT-95-14, Judgement,

03/03/2000, paras. 75, 76 and 94)


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3. Thus we can say that as there was an involvement on part of kimatan into Nooba

by way of alleged help to HLF and also an alleged weapon flow across the

border, this becomes a matter of international interest and thus the interference

of the ICC is justified.

c) The charges against Colonel Jingo Crackle are justified

Kimatan and Nooba have a long history of political unrest, wars and

skirmishes over the subject of Sutas. It has led to major loss of life and

property and both the countries have paid dearly for it. There havebeen previous allegations that the Kimatan government and Army

were supporting the HLF (Hist Liberation Front) to fight in Sutas.

Due to the victory Speech of Lama Suki which was condemned by

Kimatan government and Hist religious groups, the Kimatan Army

increased its activities around the border under the command of

Colonel Jingo Crackle. Colonel Jingo Crackle was also known as the

protector of Luke Skittle who was the head of the HLF.

Thus there was a strong link between Colonel Jango Crackle and Luke

Skittle. It was by the help and under the guidance of Colonel Jingo

Crackle that the HLF had survived and was well equipped to combat

with the Nooba army forces.

This was the after effect of the victory speech of Lama Suki , in which

he invited all Dije people to come together and join hands and get rid

of the Hists.

Colonel Jingo Charlie has been charged under Article 25(3)(a) which

has held him responsible for all the crimes and atrocities committed

by Luke Skittle as he was working under the supervision and guidance

of Colonel Jingo Crackle.

A JOINT CRIMINAL ENTERPRISE EXISTED BETWEEN colonel Jingo

Crackle and Luke Skittle

4. By virtue of article 25(3)(a) of the Rome Statute, a person incurs criminal

responsibility and becomes liable for punishment if he inter alia commits a crime

jointly with another, regardless of whether the latter is criminally responsible.

The Appeals Chamber of the ICTY in Tadic determined that there was customarybasis for joint responsibility in the first category of co-perpetration, where all

participants in the common design possess the same criminal intent to commit acrime and one or more of them actually perpetrate the crime with intent and the


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second category of co-perpetration where crimes are committed by members of thegroup outside its common purpose but as a foreseeable incident of it. (Tadic ICTY A.Ch.15/07/1999, para. 220; Gacumbits i ICTR A. Ch. 7.7.2006, Separate Opinion of JudgeShahabuddeen, para. 40.)

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The actus reus is common to incur such responsibilities and it consists of a pluralityof persons; the existence of a common plan, design or purpose which amounts to orinvolves the commission of an international crime and participation of the accused insuch a common design.(Tadic ICTY A.Ch. 15/07/1999, para. 227.)

The mens reato incur the first category of responsibility is the intent to perpetrate acertain crime (this being the shared intent on the part of all co-perpetrators). (TadicICTY A.Ch. 15/07/1999, para. 228.)

The mens rea to incur the second category of responsibility is the intention toparticipate in and further the criminal activity or the criminal purpose of a group andto contribute to the joint criminal enterprise or in any event to the commission of a

crime by the group. In addition, responsibility of a crime other than the one agreedupon in the common plan arises only if, under the circumstances of the case, it wasforeseeable that such crime might be perpetrated by one or other members of thegroup and the accused willingly took that risk.(Tadic ICTY A.Ch. 15/07/1999, para. 228.)

6. There existed a joint criminal enterprise between Colonel Jingo Crackle and Luke

Skittle. This itself justifies all charges against Colonel Jingo Crackle as he was

the one that encouraged and alleged provide the resources to HLF in oreder to

create unrest and violence in the country.

Charge for Crimes against Humanity

Colonel Jingo Crackle is also liable to be found guilty of Crimes

against humanity under Article 7(2), which consists of attack, which

are intentional and directed to kill the civilian population. Bombs

were planted targeting police station, security posts manned by

Nooban officers and Dije residential areas.though HLF claimed

responsibility, the guidance from Coloned Jango Crackle could not be

doubted.


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Charge for War Crimes

War crimes as under Article 8(b) describes various situations in

which due to the atrocities committed by HLF for which the person

held responsible is Colonel Jingo Crackle.

. THE ACCUSED PERSONS ARE GUILTY OF WAR CRIMES UNDER

ARTICLE 8(2)(b)(i), 8(2)(a)(i), 8(2)(b)(iv), 8(2)(b)(xiii), 8(2)(b)(xxii) AND

8(2)(b)(xx) OF THE ROME STATUTE.

7. The co-perpetrators are guilty of the war crimes under the articles of the Rome

Statute mentioned above by way of committing the crime through another person

A Trial Chamber of the ICTY in a proceeding under rule 61 of the ICTY Rules ofProcedure confirmed the indictment in Martic( ICTY, Review of the Indictment, TheProsecutor v. Milan Martic,IT-95-11-R61,108 ILR 39 at 43.)and ruled that the prohibition onattacking civilians was clearly stated in articles 51(2) and 85(3)(a) of AdditionalProtocol I [hereinafter AP I] in relation to an international armed conflict.(ICTY, Reviewof the Indictment, The Prosecutor v. Milan Martic,IT-95-11-R61, 108 ILR 39 para. 8 at 44; TheProsecutor v. Ivica Rajic, IT-95-12-R61, 108 ILR 141 at 162, para. 48.)

In the context of the prohibition on the attack on civilians; even if an attack is directedagainst a legitimate military target, the choice of weapon and its use are clearlydelimited by the rules of international humanitarian law.(ICTY, Review of the Indictment,The Prosecutor v. Milan Martic,IT-95-11-R61,108 ILR 39 at 47, para. 18.)It is an integral part of customary international law that reprisals against the civilian

population as such, or against individual civilians are prohibited in all circumstances,even when confronted by wrongful behaviour of the other party and it must berespected in all armed conflicts.(ICTY, Review of the Indictment, The Prosecutor v. MilanMartic,IT-95-11-R61,108 ILR 39 at 47.)

8. The attack on Dije residential areas in Sutas was wholly unjustified. Therefore,

the co-perpetrators are guilty of the war crime under article 8(2)(b)(i) of the Rome

Statute.

Article 8(2)(b)(xviii) of the Rome Statute is based on the Geneva Protocol of17/07/1925. The Geneva Protocol is interpreted as containing the general prohibition

of all forms of chemical warfare. (M. Bothe, Das volkerrecht l iche Verbot d es Einsatzeschemisch er und biolog ischer Waffen (Koln, Bonn 1973) 86, 49.)As per the reports chemicalweapons and explosives were used not only in military but also in the civil areas thusleading to breach of the iCC Roman Statute.

The Convention on the prohibition of the Development, Production, Stockpiling andUse of Chemical Weapons and on their Destruction of 1993 expressly recognisesthe prohibition of the use of herbicides as a method of warfare. (No. 7 of the Preamble ofthe Convention on the prohibition of the Development, Production, Stockpiling and Use of

Chemical Weapons and on their Destruction of 1993.)


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9. Therefore, the co-perpetrators are guilty of the war crime under article

8(2)(b)(xviii) of the Rome Statute.

10. Owing to the mandate of article 28(a) of the Rome Statute, Colonel Jingo Crackle

incurs criminal responsibility for all the crimes committed by Luke Skittle as he

was under the effective control and authority of Colonel Jingo Crackle.

The arrest was legalThe arrest was totally legal as it took place in Astram. Though Colonel

Jango Crackle was forcefully carried till Astram and then arrested, it was

not the Astram authorities that were involved in this act and thus they are

not responsible. Arrest took place due to the arrest warrants those were

issued in the name of the accused . Kimatan being a party to the Rome

Statue should have had to give up the colonel.

We should also take into account that the people carrying the colonel to

astram was a private security agency, any damage that is to be sought and

any suit for the same does not come under the jurisdiction of the ICC

Roman statute.

Victims have announced intention to participate in the proceedingand give additional evidence

The protection of victims and their participation in the court proceedings

will take place as per procedure under Article 68 of the ICC Roman

Statute.

ICC Victims Participation Scheme Motivated by Desire to Achieve RestorativeJustice

The unprecedented provisions of the Rome Statute governing victims

participation before the International Criminal Court are largely a product of a

much broader movement in recent decades towards the achievement of

restorative justice.9 Generally speaking, restorative justice theory holds that

justice should not only address traditional retributive justice, i.e., punishment of

the guilty, but should also provide a measure of restorative justice by, inter alia,

allowing victims to participate in the proceedings and by providing

compensation to victims for their injuries. While the concept of victimsparticipation is not easily defined, it has been described broadly as victims

having a say, being listened to, or being treated with dignity and respect.Advocates of victims participation in criminal justice mechanisms believe that


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participation has a number of potential restorative benefits, including the

promotion of victims healing and rehabilitation, through a sense of

empowerment and closure that is said to accompany victims participation.

Additionally, some supporters of victims participation claim that theparticipation of victims may assist courts in making a contribution to the

reconciliation of a community or nation more generally. Finally, groups thatsupported a right of victims participation before the ICC argued that victims

involvement will bring the Courts proceedings closer to the personswho have

suffered atrocitiesand increase the likelihood that those most affected by

criminal acts will be satisfied that justice has been done.

From Victims Participation in the Investigations of the International

Criminal Court Susana SCouto and Katherine Cleary*(Susana SCouto is the Director and Katherine Cleary is the Assistant

Director of the War Crimes Research Office, American UniversityWashington College of Law)


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Prosecution vs Lama Suki

1) The charges against Lama Suki constitute a cognizable case against

humanity under the statute.Lama Suki was the one to incite genocide through his victory speech. The

statements made by Lama Suki were contrary to the constitution ofNooba and it did disturb the harmony within the state which gave rise to

grave after-effects. He in his victory speech criticized the previous

government on its way to deal only HLF is done. He also called upon the

Dje religious people to join hand against the Hists.

Under Article 6 and also under Article 25(3)(e) Lama Suki was liable for

genocide, as the rebellion was based on religious groups, Lama Suki and

his troops targeted the Hists and thus gave rise to genocide.

LAMA SUKI IS GUILTY OF THE CRIME OF DIRECT AND PUBLIC INCITEMENT TO COMMIT

GENOCIDE.

V. A. The statements made by Lama Suki triggered HLF thus being the cause of

action to the chain of events that occurred post his victory speech

11. The calling by lama Suki to all the Dje people to join hands against the Hist led to

a situation of unrest in the country. This was a hate speech as Lama Suki

mentioned that the Dje should come together and get rid of the Hists.

12. A Trial Chamber of the ICTR in Prosecutor v.Bagilishema,noted that the intent

of an accused person should be determined above all, from his words and deeds

and should be evident from patterns of purposeful actions. (ICTR-95-1A-T 07/06/2001

para. 63.)

Thus in this case we can clearly see that the words gave out the intent and also it

showed that there was a feeling of hatred in the mind of Lama Suki for the Hists.

Later on when he ordered troops to stabilize the situation the troops started extra

judicial killings and they started ill treating the local Hist. This was due to the

orders of Lama Suki. This

13. A Trial Chamber of the ICTR in Prosecutor v. Kayishema and Ruzindana,held

that intent can be inferred either from words or deeds and may be demonstrated

by a pattern of purposeful action and the use of derogatory language towards


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members of the target group can be a relevant indicator.(Case No. ICTR-97-1-T

21/05/1999 paras.93, 527.)

14. The use of such language while instructing the public throws light on the fact that

Lama Suki had the specific intent to commit the crime of genocide, which is

further strengthened by the fact that he led Nooban troops too Sutas and also

gave them special emergency powers which would help them exploit Hists thus

leading to their harassment and termination.

15. A Trial Chamber of the ICTY in Akayesu observed that the direct element of

incitement to commit genocide should be viewed in the light of its cultural and

linguistic content.(Akayesu, ICTR T.Ch. I, 02.09.1998 para. 557)

16. A Trial Chamber of the ICTR in Akayesu observed that the element of public

incitement requires communicating the call for criminal action to a number of

individuals in a pubic place or to members of the general public at large.(Akayesu,

ICTR T.Ch. I, 02/09/1998 para. 555)

The victory speech incident resembled the same thing.

GUILTY OF WAR CRIMES

Lama Suki was guilty of war crimes under article 8(2)(a)(ii)&(vii) which wa due to the

unlawful confinement of ten young civillians of Hist religion in Sutas. They were also

humiliated and given inhuman treatment. Though tere actions were carried by the

military, he was responsible for inciting the military by giving a public hate speech

against the Hist and also passing a message to get rid of the hist.

It can be safely inferred that the motivation of these actions of the military was

derived from the speech of Lama Suki. As a learder, he must be held responsible

and prosecuted for the same.


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VIII. LAMA SUKI INCURS CRIMINAL RESPONSIBILITY BY VIRTUE OF ARTICLE 28(a)AND

28(b)RESPECTIVELY.

17. Lama Suki was the prime Minister and the minster of defense of Nooba. The

Nooban army was under his effective command and control. As a result of his

failure to exercise control properly over them, they committed the said war crimes

and crimes against humanity. He either knew, or in the alternative ought to have

known that the forces were committing such crimes because of the victory

speech that he delivered against the Hists. He took no necessary or reasonable

measures within his power to prevent or repress the atrocities of the Nooban

army. There was no investigation being done about the same.

18. Thus, Lama Suki incurs criminal responsibility for the act of the Nooban army. He

had also willfully or carelessly allowed the army to carry on with the atrocities and

no action were taken to condemn the crimes against humanity and war crimes

that were being committed during this period.

2) Doctrine of head of State grants immunity to Lama Suki

The ICC, Bashir, and the Immunity of Heads of State - By Anthony Dworkinand Katherine Iliopoulos

The International Criminal Court announced on March 4, 2009 that it was issuing

an arrest warrant against Sudanese President Omar al-Bashir for masterminding

a campaign of crimes against humanity and war crimes by government troops

and Arab militias in the Darfur region. The announcement, coming eight months

after the Courts prosecutor requested an arrest warrant, marks the first time

that the ICC has sought the arrest of a sitting head of state. The Court decided not

to proceed with the charges of genocide, ruling that there did not exist

reasonable grounds upon which a finding could be made that al-Bashir had the

necessary genocidal intent.

Following the announcement, al-Bashir suspended the operation of 13 aid

organizations in Sudan, saying they had cooperated with the ICC by supplying

information. He later said that he wanted all foreign aid organizations to leavewithin a year. The ICCs announcement and the Sudanese response have


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generated much debate, but there has been comparatively little discussion about

how al-Bashir might be delivered to the Court.

The Arrest Warrant and the Personal Immunity of Incumbent Heads ofState

Announcing its decision to issue an arrest warrant, the Courts Pre-Trial

Chamber I asked the Courts registrar to prepare a request for cooperation forPresident al-Bashirs arrest and transmit it to Sudan, to all States Parties to the

Rome Statute, to all United Nations Security Council members that are not party

to the Statute, and to any other State as may be necessary. The Registrar duly

prepared communications to Sudan, the States Parties, and to those members of

the Security Council not party to the Statute. Presumably it is keeping open the

option of sending a communication to any other state if the need arises.

Welcoming the announcement, the Courts Prosecutor Luis Moreno-Ocampo said

that Sudan was obliged under international law to execute the warrant of arrest

on its territory, and that as soon as Omar al-Bashir travels through international

air space, he can be arrested.

However the question of al-Bashirs arrest may be more complicated than the

Courts requests and the prosecutors statement suggest, because of his position

as Sudans head of state.

Under international law, the doctrine of sovereign or diplomatic immunity

means that certain holders of high-ranking office in a State such as the Head of

State enjoy immunities from jurisdiction in other States, both civil and criminal.

That means that national courts are unable to try a high official of another state

who is suspected of committing crimes no matter how serious as this would

constitute a violation of state sovereignty. The United Nations is based on theprinciple of the sovereign equality of all member states, whereby a state is not

permitted to interfere in affairs that are within the domestic jurisdiction of

another state. Sovereign immunity covers both a head of state and the state itself.

Personal immunity only extends to incumbent heads of state; in the case of DRC

v Belgium, the International Court of Justice said this was necessary in order for

the head of state to be able to exercise his functions effectively.

There is little question that al-Bashir could be prosecuted before the ICC.

According to Pre-Trial Chamber I, al-Bashirs official capacity as a sitting Headof State does not exclude his criminal responsibility, nor does it grant him

immunity against prosecution before the ICC. There are many precedents forinternational courts issuing indictments against sitting heads of state, and Article

27 of the Rome Statute of the ICC explicitly provides that the Statute applies

equally to all persons without distinction based on their official capacity.

Thus even in the present case, though Lama Suki being the sitting head of the

state, he can be brought under the jurisdiction of the ICC and tried.

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