The International Criminal Court (ICC) has the jurisdiction. The case is referred to it by the Security Council acting under Chapter VII of the United Nations Charter.[1] ICC has jurisdiction in all cases except when investigation is being or has been done by the National Court.[2] The writ of mandamus, does not amount to an initiation of an investigation. Jurisdiction is also conferred upon ICC when national legal systems are unable to exercise jurisdiction[3] including unjustified delay[4],. 18 months lapsed from the commission of genocide. The Libertarian Prosecutor’s failure to pursue the matter in Libertarian court within that period of time amounts to unjustified delay.
2. JACOB SMITH (JS) IS CRIMINALLY LIABLE FOR GENOCIDE UNDER ARTICLE 6 (a)
Genocide is, inter alia, the act of killing members of a national, ethnical, racial or religious group with the intent to destroy in whole or in part, the said group[5] JS fulfilled these elements :
a) Killed one or more persons
On 30 June, JS had killed members of the Arantic religion in Zimbaloon region by ordering[6] carpet bombing.
b) Such persons belonged to a particular national, ethnical, racial or religious group
The victims of the carpet bombing are the members of the Arantic religion who shared the same religion and mode of worship.[7]
c) Intended to destroy, in whole or in part
Genocide requires special intent which refers to the intent to destroy, in whole or in part, the members of the said groups.[8] JS had a clear intention to cause the genocidal act.[9] His widely circulated instruction “I will be happier if no Arantic stays alive” clearly demonstrated genocidal intent.[10] To destroy “in part” includes a campaign to kill members of the group in a small geographic area.[11] Killing Arantics in nine villages of the Zimbaloon sufficiently constitute the intent to destroy physically.[12]
d) The conduct could by itself effect such destruction
It can be inferred from the physical acts and weapons used[13] by JS that by employing the bomb, all members of Arantic would be destroyed in whole or in part.
3. JS IS LIABLE FOR CRIMES AGAINST HUMANITY UNDER ARTICLE 7 (1) (a)
a) Killed one or more persons
Murder refers to “willful killing” or “knowing killing”.[14] In this case, JS had murdered the civilians in the Zimbaloon region by carpet bombing.
b) The conduct was committed as part of a widespread attack directed against a civilian population
The crime requires multiple commissions of acts in furtherance of an attack,[15] which are part either of a government policy or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Full scale anti-Arantic witch-hunting was triggered after the carpet bombing.
c) Knew or intended
JS was aware that the death of the civilian population in nine villages of the Zimbaloon region will occur in the ordinary course of events when he used indiscriminate weapon.[16]
4. JS IS CRIMINALLY LIABLE FOR ATTACKING SCHOOLS AND A 14TH SWAHELIAN FORT UNDER ARTICLE 8 (2) (b) (ix)[17]
a) Directed an attack against buildings dedicated to education and historic monument
On 30 June, JS made an attack against several protected objects namely schools and a 14th century Swahelian fort.[18]
b) Intended that such buildings to be the object of attack
He was aware that the effect of his conduct will occur in the ordinary course of events[19] i.e. he knew that by carpet bombing the target area, it evidently would destroy everything in the area including the schools and the Redfort.
c) The conduct took place in the context of an international armed conflict and he was aware of such circumstances exist
Direct military involvement by Karatanga troops rendered the Libertarian conflict to be an international armed conflict. [20] JS must have known that his conduct took place in this context.
5. RAMSEY MCGIBBON (RM) IS CRIMINALLY LIABLE FOR THE WAR CRIME OF EMPLOYING PROHIBITED GASES UNDER ARTICLE 8 (2) (b) (xviii)
The used of poisonous gas is outlawed[21] and all the elements required are fulfilled:
a) Used poisonous gas which caused death through its asphyxiating properties
.The asphyxiating effect[22] of the poison gas caused the death of Manos Tshombe (MT) and his 220 followers.
b) Took place in the context of international armed conflict and he was aware of it
The crime occurred after the carpet bombing and in the midst of the massive Arantic ‘witch hunting’. Hence RM was aware that his act would take place in the context of an international armed conflict.[23]
6. SANO NBONGA (SN) IS INDIVIDUALLY LIABLE FOR CRIMES AGAINST HUMANITY UNDER ARTICLE 7 (1) (A) AND ARTICLE 25 (3) (C)
1. Killed or Aided in the killing of one or more persons
In this case, RAF had murdered[24] the civilians in Zimbaloon by way of carpet bombing. Joining the attack on Zimbaloon Region amounts to killing or aiding the RAF and the Karatanga volounteers to commit crimes against humanity consistent with Article 25 (3) (c)
2. The conduct was committed as part of a widespread attack directed against a civilian population
The conduct constitutes one of multiple commissions of acts in furtherance of an attack, which are part of either a government policy or of a wide practice of atrocities condoned by a government or a de facto authority. The facts indicate the existence of a policy against Pro-Tshombe supporters and Arantics tolerated by the government
3. Knew or intended
To know means to have awareness of the consequences that will occur. To have intent is associated to the consequence and the conduct itself.[25] SN knew and intended as he was involved in a crime which carries grave consequences.
.
7. SANO NBONGA (SN) IS INDIVIDUALLY LIABLE FOR THE WAR CRIMES OF ATTACKING CIVILIANS UNDER ARTICLE 8(2)(b)(i)
Directed an attack against the civilian population
SN attacked the civilian population of Zimbaloon Region[26] and in doing so, had acted in violence.[27] It resulted in deaths or serious injury to the civilian population.[28]
Intended the civilian population to be the object of attack
The civilian status of the population killed or seriously injured should have been known by SN.[29] He was aware that death or serious bodily injury would evidently take place in the ordinary course of an attack.[30]
Took place in the context of international armed conflict and he was aware of it
As mentioned above direct military involvement by Karatanga troops rendered the Libertarian conflict to be an international armed conflict. [31] SN must have known that his conduct took place in the international armed conflict.
8. JOSEPH RABUKO (JR) BEARS THE CRIMINAL RESPONSIBILITY FOR THE ACTS OF GENOCIDE AND WAR CRIMES IN LIBERTARIA
I. JR is criminally Liable as a Superior Under Article 28(b)
JR who was a civilian superior[32] had exercised his “authority and control” by appointing Patton Kanube (PK) as the Chief of the Libertarian Armed Forces (LAF). Effective authority and control[33] was established when JR ordered PK to take “whatever action necessary to quell the fighting” and to “eliminate the Pro-Tshombe militancy” which PK followed.
JR had “consciously disregarded the information” that his subordinates were committing genocide and war crimes due to the alerting report in the Astoria Times which he responded to by saying that it was one-sided. He never denied the existence of his subordinates’ conduct.
JR failed to take all “necessary and reasonable measures”[34] within his power because he did not repress the Army when the Astoria Times reported of the outrages against humanity. He failed to at least refer the matter to the competent authorities for further investigation.
II. JR is Individually Liable Under Article 25 of the Statute
Article 25 (3) (c)
JR abetted by “facilitating the commission of a crime by being sympathetic thereto”.[35] This refers to encouragement of the commission of the crimes:[36] His presence with the requisite level of authority constituted assistance in the form of moral support. He abetted the crimes by appointing PK, a Naasthist, as the Chief of the LAF and gave him further authorization “to take whatever action necessary to eliminate the pro-Tshombe militancy”.
JR must have been aware that his general authorization will cause atrocities hence establishing his accomplice liability.[37]
9. PK IS CRIMINALLY RESPONSIBLE FOR THE WAR CRIMES AND ACTS OF GENOCIDE IN LIBERTARIA
I. PK is Liable as a Superior Under Article 28(a)
As Chief of the LAF, PK possessed de jure authority[38] to effectively “command and control”[39] his subordinates including RAF. The contract between Libertaria and the International Security Inc. (ISI) placed the partners of ISI and the Libertarian Army within a military hierarchy[40]. Hence, PK had control over RAF although they were trained by JS and ISI. The fact that RAF reported back[41] to PK about the technical flaw in the bomb established effective control.
PK failed to supervise his subordinates since JS’ instruction for RAF to kill all Arantics was successfully circulated among the non-Arantic rank and file of the Army. He should have known[42] about any unlawful instructions among his subordinates entailing radical impact to the civilian population.
PK was under a duty to prevent or repress crimes by taking necessary and reasonable measures. PK’s failure to do so indicates that he was in breach of his duty and liable for the crimes committed.
II. PK is Individually Liable Under Article 25 of the Statute
Article 25 (3) (c)
PK’s presence with the requisite level of authority, in addition to his deliberate ignorance of the abovementioned crimes committed by RAF and by permitting the use of resources under his control to facilitate the perpetration of a crime[43] to constitute moral support.[44]
10. MISTAKE OF FACT
JS is being charged for war crimes and genocide. The mental element involved is knowledge, which means to be aware of its consequences in ordinary course of events.[45] JS was physically and mentally engaged in the act of carpet bombing. He was aware by the commission of the act, destruction is expected in any ordinary course of events. JS alleged that there was a technical problem in the release mechanism.[46] This is not sufficient to negate his mental element as he has the mens rea to employ the unlawful method of warfare.
[1] Art. 13 (b), Ibid
[2] Art. 17 (1) (a), the Statute
[3] Art. 17 (3), the Statute
[4] Art. 17 (2) (b), Ibid
[5] Art. 6 (a), the Statute
[6] Art. 25 (3) (b), the Statute
[7] Akayesu, ICTR-96-4, para 515 and Kayishema and Ruzindana, ICTR-95-1, para. 98
[8] Supra no. 3, para. 497
[9] Ibid, paras 517-18
[10] Para. 13, line 3 of the facts.
[11] Krstic, IT-98-33, para. 590
[12] Sixth Committee, 83rd Meeting, at 200 and 206
[13] Supra no. 7, paras 93 and 533; Supra no. 7, para. 523
[14] Art. 30, the Statute
[15] Art. 7 (2) (a), the Statute
[16] Supra no. 11
[17] See also ICRC, Customary International Humanitarian Law, Volume I, Rule 38
[18] Art. 56, Hague Regulations
[19] Art. 30 (2) (b), the Statute
[20] Rajic, IT-95-12-R61.
[21] Supra no.27
[22] Chemical and Bacteriological (Biological) Weapons and the Effects of the Possible Use, UN Doc.A/7575/Ref. 1, p. 5
[23] Supra no. 16
[24] Art. 30, the Statute
[25] Art. 30, the Statute
[26] Dario Kordic and Mario Cerkez, IT-95-14/2-PT, p.48
[27] Art. 49 (1) AP I
[28] Supra no. 7, para. 180
[29] Ibid
[30] Art. 30 (3), the Statute
[31] Supra no. 16
[32] US v Pohl et al. (case 4), VTWC, 958-1163, p.1011; US v Brandt et al. (Medical Case, case 1), II TWC, p.171-300
[33] Delalic et al., Judgment, Appeals Chamber, February 20, 2001, para. 256
[34] Supra no. 22 para. 333, Baglishema, Judgment, Trial Chamber, June 7, 2001, para. 47
[35] Supra no. 3, para. 484
[36] Semanza, Trial Chamber, May 15, 2003, para. 384
[37] Furundzija, Judgment, December 10, 1998, Trial Chamber, para. 245
[38] Supra no. 28, para. 193
[39] Art 28 (a), the Statute
[40] Essay: Special Operations Forces and War Crimes by Guerillas, Gregory R. Bart, U.S. Navy, Bepress Legal Series at http://www.law.bepress.expresso/eps1907
[41] Supra no. 3, p.12
[42] Art. 86(2), AP I 1949
[43] Blagojevic, (Appeals Chamber), May 9, 2007, para. 127
[44] Supra no. 33, para. 199
[45] Art. 30, the Statute
[46] Ibid
By: Mahyuddin bin Daud Source: http://www.articlesbase.com/law-articles/the-case-concerning-the-prosecutor-of-the-icc-against-joseph-rabuko-patton-kanube-jacob-smith-ramsey-mcgibbon-sano-nboga-the-applicant-1377352.html keyword: asphyxiation
Final Year Law Student, International Islamic University Malaysia
The Case Concerning THE PROSECUTOR OF THE ICC Against JOSEPH RABUKO, PATTON KANUBE, JACOB SMITH, RAMSEY MCGIBBON , SANO NBOGA (the Applicant)
1. JURISDICTION AND ADMISSIBILITY
The International Criminal Court (ICC) has the jurisdiction. The case is referred to it by the Security Council acting under Chapter VII of the United Nations Charter.[1] ICC has jurisdiction in all cases except when investigation is being or has been done by the National Court.[2] The writ of mandamus, does not amount to an initiation of an investigation. Jurisdiction is also conferred upon ICC when national legal systems are unable to exercise jurisdiction[3] including unjustified delay[4],. 18 months lapsed from the commission of genocide. The Libertarian Prosecutor’s failure to pursue the matter in Libertarian court within that period of time amounts to unjustified delay.
2. JACOB SMITH (JS) IS CRIMINALLY LIABLE FOR GENOCIDE UNDER ARTICLE 6 (a)
Genocide is, inter alia, the act of killing members of a national, ethnical, racial or religious group with the intent to destroy in whole or in part, the said group[5] JS fulfilled these elements :
a) Killed one or more persons
On 30 June, JS had killed members of the Arantic religion in Zimbaloon region by ordering[6] carpet bombing.
b) Such persons belonged to a particular national, ethnical, racial or religious group
The victims of the carpet bombing are the members of the Arantic religion who shared the same religion and mode of worship.[7]
c) Intended to destroy, in whole or in part
Genocide requires special intent which refers to the intent to destroy, in whole or in part, the members of the said groups.[8] JS had a clear intention to cause the genocidal act.[9] His widely circulated instruction “I will be happier if no Arantic stays alive” clearly demonstrated genocidal intent.[10] To destroy “in part” includes a campaign to kill members of the group in a small geographic area.[11] Killing Arantics in nine villages of the Zimbaloon sufficiently constitute the intent to destroy physically.[12]
d) The conduct could by itself effect such destruction
It can be inferred from the physical acts and weapons used[13] by JS that by employing the bomb, all members of Arantic would be destroyed in whole or in part.
3. JS IS LIABLE FOR CRIMES AGAINST HUMANITY UNDER ARTICLE 7 (1) (a)
a) Killed one or more persons
Murder refers to “willful killing” or “knowing killing”.[14] In this case, JS had murdered the civilians in the Zimbaloon region by carpet bombing.
b) The conduct was committed as part of a widespread attack directed against a civilian population
The crime requires multiple commissions of acts in furtherance of an attack,[15] which are part either of a government policy or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Full scale anti-Arantic witch-hunting was triggered after the carpet bombing.
c) Knew or intended
JS was aware that the death of the civilian population in nine villages of the Zimbaloon region will occur in the ordinary course of events when he used indiscriminate weapon.[16]
4. JS IS CRIMINALLY LIABLE FOR ATTACKING SCHOOLS AND A 14TH SWAHELIAN FORT UNDER ARTICLE 8 (2) (b) (ix) [17]
a) Directed an attack against buildings dedicated to education and historic monument
On 30 June, JS made an attack against several protected objects namely schools and a 14th century Swahelian fort.[18]
b) Intended that such buildings to be the object of attack
He was aware that the effect of his conduct will occur in the ordinary course of events[19] i.e. he knew that by carpet bombing the target area, it evidently would destroy everything in the area including the schools and the Redfort.
c) The conduct took place in the context of an international armed conflict and he was aware of such circumstances exist
Direct military involvement by Karatanga troops rendered the Libertarian conflict to be an international armed conflict. [20] JS must have known that his conduct took place in this context.
5. RAMSEY MCGIBBON (RM) IS CRIMINALLY LIABLE FOR THE WAR CRIME OF EMPLOYING PROHIBITED GASES UNDER ARTICLE 8 (2) (b) (xviii)
The used of poisonous gas is outlawed[21] and all the elements required are fulfilled:
a) Used poisonous gas which caused death through its asphyxiating properties
.The asphyxiating effect[22] of the poison gas caused the death of Manos Tshombe (MT) and his 220 followers.
b) Took place in the context of international armed conflict and he was aware of it
The crime occurred after the carpet bombing and in the midst of the massive Arantic ‘witch hunting’. Hence RM was aware that his act would take place in the context of an international armed conflict.[23]
6. SANO NBONGA (SN) IS INDIVIDUALLY LIABLE FOR CRIMES AGAINST HUMANITY UNDER ARTICLE 7 (1) (A) AND ARTICLE 25 (3) (C)
1. Killed or Aided in the killing of one or more persons
In this case, RAF had murdered[24] the civilians in Zimbaloon by way of carpet bombing. Joining the attack on Zimbaloon Region amounts to killing or aiding the RAF and the Karatanga volounteers to commit crimes against humanity consistent with Article 25 (3) (c)
2. The conduct was committed as part of a widespread attack directed against a civilian population
The conduct constitutes one of multiple commissions of acts in furtherance of an attack, which are part of either a government policy or of a wide practice of atrocities condoned by a government or a de facto authority. The facts indicate the existence of a policy against Pro-Tshombe supporters and Arantics tolerated by the government
3. Knew or intended
To know means to have awareness of the consequences that will occur. To have intent is associated to the consequence and the conduct itself.[25] SN knew and intended as he was involved in a crime which carries grave consequences.
.
7. SANO NBONGA (SN) IS INDIVIDUALLY LIABLE FOR THE WAR CRIMES OF ATTACKING CIVILIANS UNDER ARTICLE 8(2)(b)(i)
SN attacked the civilian population of Zimbaloon Region[26] and in doing so, had acted in violence.[27] It resulted in deaths or serious injury to the civilian population.[28]
The civilian status of the population killed or seriously injured should have been known by SN.[29] He was aware that death or serious bodily injury would evidently take place in the ordinary course of an attack.[30]
As mentioned above direct military involvement by Karatanga troops rendered the Libertarian conflict to be an international armed conflict. [31] SN must have known that his conduct took place in the international armed conflict.
8. JOSEPH RABUKO (JR) BEARS THE CRIMINAL RESPONSIBILITY FOR THE ACTS OF GENOCIDE AND WAR CRIMES IN LIBERTARIA
I. JR is criminally Liable as a Superior Under Article 28(b)
JR who was a civilian superior[32] had exercised his “authority and control” by appointing Patton Kanube (PK) as the Chief of the Libertarian Armed Forces (LAF). Effective authority and control[33] was established when JR ordered PK to take “whatever action necessary to quell the fighting” and to “eliminate the Pro-Tshombe militancy” which PK followed.
JR had “consciously disregarded the information” that his subordinates were committing genocide and war crimes due to the alerting report in the Astoria Times which he responded to by saying that it was one-sided. He never denied the existence of his subordinates’ conduct.
JR failed to take all “necessary and reasonable measures”[34] within his power because he did not repress the Army when the Astoria Times reported of the outrages against humanity. He failed to at least refer the matter to the competent authorities for further investigation.
II. JR is Individually Liable Under Article 25 of the Statute
Article 25 (3) (c)
JR abetted by “facilitating the commission of a crime by being sympathetic thereto”.[35] This refers to encouragement of the commission of the crimes:[36] His presence with the requisite level of authority constituted assistance in the form of moral support. He abetted the crimes by appointing PK, a Naasthist, as the Chief of the LAF and gave him further authorization “to take whatever action necessary to eliminate the pro-Tshombe militancy”.
JR must have been aware that his general authorization will cause atrocities hence establishing his accomplice liability.[37]
9. PK IS CRIMINALLY RESPONSIBLE FOR THE WAR CRIMES AND ACTS OF GENOCIDE IN LIBERTARIA
I. PK is Liable as a Superior Under Article 28(a)
As Chief of the LAF, PK possessed de jure authority[38] to effectively “command and control”[39] his subordinates including RAF. The contract between Libertaria and the International Security Inc. (ISI) placed the partners of ISI and the Libertarian Army within a military hierarchy[40]. Hence, PK had control over RAF although they were trained by JS and ISI. The fact that RAF reported back[41] to PK about the technical flaw in the bomb established effective control.
PK failed to supervise his subordinates since JS’ instruction for RAF to kill all Arantics was successfully circulated among the non-Arantic rank and file of the Army. He should have known[42] about any unlawful instructions among his subordinates entailing radical impact to the civilian population.
PK was under a duty to prevent or repress crimes by taking necessary and reasonable measures. PK’s failure to do so indicates that he was in breach of his duty and liable for the crimes committed.
II. PK is Individually Liable Under Article 25 of the Statute
Article 25 (3) (c)
PK’s presence with the requisite level of authority, in addition to his deliberate ignorance of the abovementioned crimes committed by RAF and by permitting the use of resources under his control to facilitate the perpetration of a crime[43] to constitute moral support.[44]
10. MISTAKE OF FACT
JS is being charged for war crimes and genocide. The mental element involved is knowledge, which means to be aware of its consequences in ordinary course of events.[45] JS was physically and mentally engaged in the act of carpet bombing. He was aware by the commission of the act, destruction is expected in any ordinary course of events. JS alleged that there was a technical problem in the release mechanism.[46] This is not sufficient to negate his mental element as he has the mens rea to employ the unlawful method of warfare.
[1] Art. 13 (b), Ibid
[2] Art. 17 (1) (a), the Statute
[3] Art. 17 (3), the Statute
[4] Art. 17 (2) (b), Ibid
[5] Art. 6 (a), the Statute
[6] Art. 25 (3) (b), the Statute
[7] Akayesu, ICTR-96-4, para 515 and Kayishema and Ruzindana, ICTR-95-1, para. 98
[8] Supra no. 3, para. 497
[9] Ibid, paras 517-18
[10] Para. 13, line 3 of the facts.
[11] Krstic, IT-98-33, para. 590
[12] Sixth Committee, 83rd Meeting, at 200 and 206
[13] Supra no. 7, paras 93 and 533; Supra no. 7, para. 523
[14] Art. 30, the Statute
[15] Art. 7 (2) (a), the Statute
[16] Supra no. 11
[17] See also ICRC, Customary International Humanitarian Law, Volume I, Rule 38
[18] Art. 56, Hague Regulations
[19] Art. 30 (2) (b), the Statute
[20] Rajic, IT-95-12-R61.
[21] Supra no. 27
[22] Chemical and Bacteriological (Biological) Weapons and the Effects of the Possible Use, UN Doc.A/7575/Ref. 1, p. 5
[23] Supra no. 16
[24] Art. 30, the Statute
[25] Art. 30, the Statute
[26] Dario Kordic and Mario Cerkez, IT-95-14/2-PT, p.48
[27] Art. 49 (1) AP I
[28] Supra no. 7, para. 180
[29] Ibid
[30] Art. 30 (3), the Statute
[31] Supra no. 16
[32] US v Pohl et al. (case 4), VTWC, 958-1163, p.1011; US v Brandt et al. (Medical Case, case 1), II TWC, p.171-300
[33] Delalic et al., Judgment, Appeals Chamber, February 20, 2001, para. 256
[34] Supra no. 22 para. 333, Baglishema, Judgment, Trial Chamber, June 7, 2001, para. 47
[35] Supra no. 3, para. 484
[36] Semanza, Trial Chamber, May 15, 2003, para. 384
[37] Furundzija, Judgment, December 10, 1998, Trial Chamber, para. 245
[38] Supra no. 28, para. 193
[39] Art 28 (a), the Statute
[40] Essay: Special Operations Forces and War Crimes by Guerillas, Gregory R. Bart, U.S. Navy, Bepress Legal Series at http://www.law.bepress.expresso/eps1907
[41] Supra no. 3, p.12
[42] Art. 86(2), AP I 1949
[43] Blagojevic, (Appeals Chamber), May 9, 2007, para. 127
[44] Supra no. 33, para. 199
[45] Art. 30, the Statute
[46] Ibid
By: Mahyuddin bin Daud
Source: http://www.articlesbase.com/law-articles/the-case-concerning-the-prosecutor-of-the-icc-against-joseph-rabuko-patton-kanube-jacob-smith-ramsey-mcgibbon-sano-nboga-the-applicant-1377352.html
keyword: asphyxiation
Final Year Law Student, International Islamic University Malaysia
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