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GERARD VANDE IS CRIMINALLY RESPONSIBLE AS PERPETRATOR BY


MEANS FOR ORDERING THE COMMISSION OF THE WAR CRIME OF
ATTACKING PROHIBITED BY ARTICLE 8(e)(i) OF THE ROME STATUTE.
Definition of Ordering
Ordering implies a superior subordinate relationship between the person giving the order and the
one executing it. In other words, the person in a position of authority uses it to convince another
to commit an offence. In certain legal systems, including that of Rwanda, ordering is a form of
complicity through instructions given to the direct perpetrator of an offence. Akayesu, (Trial
Chamber), September 2, 1998, para. 483
* Here a person ordering a crime is not merely an accomplice, but a perpetrator by means. In
fact, Article 2(3)(b) of the 1996 Draft Code was intended to provide for the criminal
responsibility of mid-level officials who order their subordinates to commit crimes.*It is important
to note the close relationship that sub paragraph (b) has with Article 28 which governs command
responsibility. The first alternative in subparagraph (b), orders, complements the command
responsibility provision in Article 28. In the Article 28 provision the superior is liable for an
omission while in the case of an order to commit a crime (Article 25(3)(b)) the superior is liable
for commission for having ordered. (Source: Rome of the Statute Level of Participation ,page
269.)

ELEMENTS OF ACQUIRING LIABILITY AS PERPETRATOR BY MEANS


(https://www.hrw.org/reports/2004/ij/icty/6.htm)
ORDERING

(1) generally

Krstic, (Trial Chamber), August 2, 2001, para. 601: Ordering entails a person in a position of
authority using that position to convince another to commit an offence.

(2) order may be explicit or implicit, and proven through circumstantial evidence

Blaskic, (Trial Chamber), March 3, 2000, para. 281: It is not necessary that an order be given in
writing or in any particular form. It can be explicit or implicit. The fact that an order was given
can be proved through circumstantial evidence.

(3) order need not be given directly to person who performs the offense

Blaskic, (Trial Chamber), March 3, 2000, para. 282: [A]n order does not need to be given by the
superior directly to the person(s) who perform(s) the actus reus of the offence. [W]hat is important
is the commanders mens rea, not that of the subordinate executing the order.

(4) no formal superior-subordinate relationship required


Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 388: [N]o formal superior-
subordinate relationship is required for a finding of ordering so long as it is demonstrated that
the accused possessed the authority to order.

(5) irrelevant whether the illegality of the order was apparent on its face

Blaskic, (Trial Chamber), March 3, 2000, para. 282: [I]t is irrelevant whether the illegality of the
order was apparent on its face.

Gerard Vande is criminally responsible on the basis of Article 25(3)(b)1 for ordering the attack on
the Ombrian people on 10 November 20142, which is a war crime prohibited under Article 8(e)(i)
of the Rome Statute.3

1.1. The elements of the war crime are satisfied.


The war crime of ordering an attack against civilians requires five elements4 to concur, all of
which are satisfied in the case. The two elements relating to the context of a non-international
armed conflict and the accuseds knowledge of such fact have already been shown.

1.1a The perpetrator directed an attack/ Gerard Vande directed an attack. (Elements of Crimes,
International Criminal Court, ICC-PIDS-LT-03-002 (2011) )

An Attack is defined as acts of violence against the adversary, whether in offence or in defence.
(Article 49 (1) of Additional Protocol 1 to the Geneva Conventions of 1949, 1977 ).The facts show
that General Gerard Vande directly ordered in defence of the convoy by ordering for its protection
with all necessary means disregarding other circumstances, such as the life of the civilian.( par. 16
of the Compromi). Therefore, General Gerard Vande then ordered the attacked on 10th day of
November 2015. ( Paragraph 16 of the Compromi)
* Prosecutor v. Dario Kordi and Mario erkez, Case No. IT-95-14/2-A, Judgement (AC), 17
December 2004, para. 47:

1
Article 25(3)(a) of the Rome Statute
2
Par. 16 of the Compromi
3
Article 8 (e) (i) of the Rome Statute

4
Elements of Crimes, International Criminal Court, ICC-PIDS-LT-03-002 (2011).
"47. The term attack is defined in Article 49 of Additional Protocol I as "acts of violence against
the adversary, whether in offence or in defence".49 Therefore, in determining whether an unlawful
attack on civilians occurred, the issue of who first made use of force is irrelevant."
"49. This definition applies to the crime of unlawful attacks against civilian objects as well."

DEFENSE: Vasiljevic, (Trial Chamber), November 29, 2002, para. 30: The concepts of attack
and armed conflict are distinct and independent. Quoting the Appeals Chamber in Tadic: The
two the attack on the civilian population and the armed conflict must be separate notions,
although of course under Article 5 of the Statute the attack on any civilian population may be
part of an armed conflict.
the attack may be, but need not be, part of the armed conflict
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 86: [T]he attack could
precede, outlast, or continue during the armed conflict, but it need not be a part of it.
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 233: The attack has been
defined as a course of conduct involving the commission of acts of violence. The attack can
precede, outlast, or continue during the armed conflict, but need not be a part of the conflict under
customary international law.

1.1b The object of the attack was a civilian population as such or individual civilians not taking
direct part in hostilities./ The Ombrian population, as civilian in nature, at the time of the attack ,
was protected. (Elements of Crimes, International Criminal Court, ICC-PIDS-LT-03-002 (2011).)
Civilians and all persons not taking part in combat may under no circumstances be
the object of attack and must be spared and protected. 5 In case of doubt whether a person is a
civilian, that person shall be considered to be a civilian.6 The protection from attack afforded to
individual civilians continues until such time as they take direct part in hostilities, that is until they
engage in acts of war which, by their very nature and purpose, are likely to cause actual harm to
the personnel or materiel of the enemy forces.7The jurisprudence is also clear that the presence of
individual combatants within the civilian population attacked does not necessarily change the fact
that the ultimate character of the population remains a civilian one. In determining whether the
presence of soldiers within a civilian population deprives the population of its civilian character,
the number of soldiers, as well as whether they are on leave, must be examined.8

55
(According to the Geneva Conventions of 1949 and their Additional Protocols of
1977)
6
Article 50(1) of Additional Protocol I

7
Article 51 of Additional Protocol I

8
Prosecutor v. Radovan Karadi, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on
24 March 2016 Volume I of IV (TC), 24 March 2016, par 453
Thus, in order to establish that unlawful attacks against civilians have been committed, the
Chamber has to find that the victims of these attacks were civilians and that they were not
participating in the hostilities.''9 The presence of certain non-civilians among the targeted
population does not change the character of that population. It must be of a "predominantly civilian
nature".( Tadic Trial Judgement, para 638; Blaskic Trial Judgement, para 214.) Further, Article 50
(1) of Additional Protocol I provides for the assumption that in case of doubt whether a person is
a civilian, that person shall be considered to be a civilian.( Kordic Appeals Judgement, paras 48-
51.. Prosecutor v. Kupreskic et al., Case No. IT-95-16 (Trial Chamber), January 14, 2000, para.
549: [T]he presence of those actively involved in the conflict should not prevent the
characterization of a population as civilian and those actively involved in a resistance movement
can qualify as victims of crimes against humanity.

Finally, before criminal responsibility can be incurred for the unlawful attacks on the civilian
population or individual civilians, the Chamber has to find that they have resulted in the death or
serious injury to body or health of the victims in question.''10

[W]hen establishing whether there was an attack upon a particular civilian population, it
is not relevant that the other side also committed atrocities against its opponents civilian
population. The existence of an attack from one side against the other sides civilian population
would neither justify the attack by that other side against the civilian population of its opponent
nor displace the conclusion that the other sides forces were in fact targeting a civilian population
as such. Each attack against the others civilian population would be equally illegitimate and
crimes committed as part of this attack could, all other conditions being met, amount to crimes
against humanity. A submission that the other side is responsible for starting the hostilities
would not, for instance, disprove that there was an attack against a particular civilian
population. Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 87-88.

The facts show that the attacked was directed to population civilian in nature. The
protection from attack afforded to individual civilians continues until such time as they take direct
part in hostilities, that is until they engage in acts of war which, by their very nature and purpose,

9
Prosecutor v. Radovan Karadi, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on
24 March 2016 Volume I of IV (TC), 24 March 2016, par 452
10
Prosecutor v. Radovan Karadi, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on
24 March 2016 Volume I of IV (TC), 24 March 2016, par 455
are likely to cause actual harm to the personnel or materiel of the enemy forces.( Prosecutor v.

Radovan Karadi, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016

Volume I of IV (TC), 24 March 2016, par 453). The existence of an attack from one side against the
other sides civilian population would neither justify the attack by that other side against the
civilian population of its opponent nor displace the conclusion that the other sides forces were in
fact targeting a civilian population as such. (Kunarac, Kovac and Vokovic, (Appeals Chamber),
June 12, 2002, para. 87-88. [T]he presence of those actively involved in the conflict should not
prevent the characterization of a population as civilian and those actively involved in a resistance
movement can qualify as victims of crimes against humanity. (Prosecutor v. Kupreskic et
al., Case No. IT-95-16 (Trial Chamber), January 14, 2000, para. 549).Hence, the act of TAF in
response to the provocation of some Ombrian people is not justified when they employ opened fire
while the Ombrians fled the scene in Koukan Area.

1.1.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.
For the attack to constitute an unlawful attack on civilians, the Prosecution has to show that it was
directed against individual civilians or the civilian population. Whether this is the case can be
determined from a number of factors, including the means and methods used in the course of the
attack, the status and the number of victims, the distance between the victims and the source of
fire, the ongoing combat activity at the time and location of the incident, the presence of military
activities or facilities in the vicinity of the incident, the nature of the acts of violence committed,
the indiscriminate nature of the weapons used, and the extent to which the attacking force has
complied or attempted to comply with the precautionary requirements of the law of war. In this
respect, the jurisprudence is also clear that both indiscriminate attacks and disproportionate attacks
may qualify as attacks directed against civilians or give rise to an inference that an attack was
directed against civilians. This is to be determined on a case by case basis, in light of the available
evidence.'' 11
It is . . . irrelevant whether the accused intended his acts to be directed against the targeted
population or merely against his victim. It is the attack, not the acts of the accused, which must
be directed against the target population and the accused need only know that his acts are part
thereof.12

11
Prosecutor v. Radovan Karadi, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on
24 March 2016 Volume I of IV (TC), 24 March 2016, par 454
12
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 103
It is . . . settled that the motives of the accused are not relevant in this context.13
There is no apparent requirement in the jurisprudence . . . that the perpetrator must approve of
the context in which his acts occur, as well as have knowledge of it. [T]he perpetrator must
knowingly commit crimes against humanity in the sense that he must understand the overall
context of his act.14
[K]nowledge of the political context in which the offence fits may be surmised from the
concurrence of a number of concrete facts and these are: [a] the historical and political
circumstances in which the acts of violence occurred; [b] the functions of the accused when the
crimes were committed; [c] his responsibilities within the political or military hierarchy; [d] the
direct and indirect relationship between the political and military hierarchy; [e] the scope and
gravity of the acts perpetrated; [f] the nature of the crimes committed and the degree to which they
are common knowledge.15
It follows that the mens rea specific to a crime against humanity does not require that the agent
be identified with the ideology, policy or plan in whose name mass crimes were perpetrated nor
even that he supported it. It suffices that he knowingly took the risk of participating in the
implementation of the ideology, policy or plan. This specifically means that it must, for example,
be proved that: [a] the accused willingly agreed to carry out the functions he was performing; [b]
that these functions resulted in his collaboration with the political, military or civilian authorities
defining the ideology, policy or plan at the root of the crimes; [c] that he received orders relating
to the ideology, policy or plan; and lastly [d] that he contributed to its commission through
intentional acts or by simply refusing of his own accord to take the measures necessary to prevent
their perpetration.16

Both indiscriminate attacks and disproportionate attacks may qualify as attacks directed against
civilians or give rise to an inference that an attack was directed against civilians.( Prosecutor v.
Radovan Karadi, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24
March 2016 Volume I of IV (TC), 24 March 2016, par 454).Hence, it is provided in the facts that
the TAF soldiers under the order of General Vande employed excessive means in response to the
provocation of Ombrians which took the life of 110 Ombrian people with 30 injured.( par. 14 of
the Compromi)

13
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 187
14
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 185
15
Blaskic, (Trial Chamber), March 3, 2000, para. 258-259
16
Blaskic, (Trial Chamber), March 3, 2000, para. 257
1.1d d. The conduct took place in the context of and was associated with an armed conflict not of
an international character.
On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort
to armed force between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State. International
humanitarian law applies from the initiation of such armed conflicts and extends beyond the
cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal
conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law
continues to apply in the whole territory of the warring States or, in the case of internal conflicts,
the whole territory under the control of a party, whether or not actual combat takes place there."17
Assessing whether the hostilities are of sufficient intensity does not depend on the subjective
judgement and assessment of the parties to the conflict, but on the objective and actual level of
violence involved in the confrontation between warring parties.18
The ICRC Commentary to common article 3 of the Geneva Conventions, which relates to non-
international armed conflicts, lists as a possible indicator of such a conflict "[t]hat the legal
Government is obliged to have recourse to the regular military forces against insurgents
organized as military and in possession of part of the national territory." Jean Pictet
Commentary: Geneva Convention III Relative to the Treatment of Prisoners of War (International
Committee of the Red Cross, 1960). The Defence military expert, Radovan Radinovi asserted in
his expert report that up until the middle of 1998, VJ support to MUP forces involved in fighting
terrorism in Kosovo was sporadic and limited, but that from mid-1998 there was a more extensive
engagement of the VJ in these operations. 3D1116 (Radovan Radinovis Expert Report), para. 8.

1.1e e. The perpetrator was aware of factual circumstances that established the existence of an
armed conflict.
(a) the perpetrator must knowingly participate in a widespread or systematic attack, i.e., have
knowledge of the attack and the nexus between his acts and that context
[T]he accused must have had the intent to commit the underlying offence or offences with which
he is charged, and that he must have known that there is an attack on the civilian population and
that his acts comprise part of that attack, or at least that he took the risk that his acts were part of
the attack. 19

17
Prosecutor v. Duko Tadi, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction (AC), 2 October 1995, para. 70
18
Akayesu Trial Judgement, para. 603.

19
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 102
The perpetrator must knowingly participate in a widespread or systematic attack against a civilian
population.20
The accused must first have knowledge of the general context in which his acts occur and then of
the nexus between his action and that context.21

Part of what transforms an individuals act(s) into a crime against humanity is the inclusion of
the act within a greater dimension of criminal conduct; therefore an accused should be aware of
this greater dimension in order to be culpable thereof. Accordingly, actual or constructive
knowledge of the broader context of the attack, meaning that the accused must know that his act(s)
is part of a widespread or systematic attack on a civilian population and pursuant to some sort of
policy or plan, is necessary to satisfy the requisite mens rea element of the accused.22

20
Blaskic, (Trial Chamber), March 3, 2000, para. 244

21
Blaskic, (Trial Chamber), March 3, 2000, para. 247
22
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 185