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THE NETHERLANDS INTERNATIONAL CRIMINAL COURT THE HAGUE

PROSECUTOR,

Plaintiffs,

-vs-

ICC CASE NO. 1234-17

GENERAL GERARD VANDE, Accused.

x-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -x

DECISION

Comes now, the decision of International Criminal Court for the above-stated case, hereby promulgated:

THE PARTIES

1. Plaintiffs, Ombrians of Kouka and low-ranking officer of Toukanov Armed Forces (TAF), suffered during the Martial Law in Toukanov and deprived of rights as human beings.

2. Accused, General Gerard Vande, is the Chief of the Defence Staff, the highest-ranking and senior-most military officer in the TAF, under Toukanovan law.

STATEMENT OF FACTS AND THE CASE

1. Two main religions, the Boubha religion and Ombri religion, have coexisted in Atlanpik, a region facing the Atlanpik sea. The Boubhans insist that all aspects of the society such as economy, education, family, health, justice, politics, and others should be guided by the Boubhan Commandments. Nine million Boubhans and 4.2 million Ombrians lived in the Federal Republic of Toukanov and Hakova, which was founded as a single state after World War II. Mr. Daniel Arlet’s election to presidency in 2009 created turmoil in Hakova due to the realization of his campaign promise to amend the federal constitution to declare Boubha as the Federal Republic’s official religion. He was part of the radical Boubha party “Boubha United Front”. The Boubhan-dominated federal parliament passed the said amendment following his

election. In response, the Hakovan parliament declared independence on April 10, 2009, then established the Republic of Hakova. Ombrians serving the Federal Army undertook allegiance to the new Republic and created the Hakovan Defence Army (HDA). In at most three months, the HDA unstoppably imported advanced weapons through Hakova’s ports in the Atlanpik Sea.

2. President Arlet publicly stated that he condemns the unilateral declaration of independence by Hakova and refuses to recognize Hakova as an independent State. Subsequently in August 5, 2010, the federal parliament passed another amendment that changed the Federal Republic’s name to the Boubhan State of Toukanov, recognizing Hakova as its autonomous region. Federal institutions including the parliament were then integrated with those of the former state of Toukanov’s. Fundamentally, the federal government was transformed into a centralized government controlled by the Boubhans. The Federal Army was reformed as the Toukanov Armed Forces (TAF). It was led by the Toukanov Central Command, which had key members in President Arlet as Commander-in-Chief, Mr. Stan Emdal as Minister of Defence Staff, and General Gerard Vande as the Chief of the Defence Staff -- the highest-ranking and senior-most military officer in the TAF, under Toukanovan law. He advises the two other high officials on all defence matters and is responsible for the use of force and command of all military operations by the TAF. On another note, while the economy of Toukanov shrank due to reduced exports, that of Hakova continued to grow still through its fully developed shipping industry.

3. Although by June 2017, 138 out of 176 countries that had diplomatic relations with the former Federal Republic already recognize the Republic of Hakova, the latter has not yet been accepted into the United Nations.The government restructuring came with harsher religious policies in Toukanov. For instance, in schools, only orientation courses on the Boubha religion were offered, and children were permitted to speak only the Toukanov dialect. Moreover, government cut down on public funding that sustained Ombrian religious sites. As a result, the Ombrians in Toukanov, especially those in Kuoka felt marginalized and oppressed.

4. The Ombrian population in Kuoka province has been demanding publicly a referendum to decide the future of Kuoka, right from the time of the independence of Hakova. The people have specifically been in favor of the idea of accession to the Republic of Hakova. Preference to such heightened at most in early March 2014 after a Boubhan policeman shot and killed 15-year-old Ombrian boy who allegedly attacked him. The district court decided to not subject the policeman to trial, provoking the tens of thousands of Ombrians in Kuoka to protest for justice and independence. Without delay, President Arlet announced a state of emergency in the province and declared martial law on March 25, 2014. TAF troops were deployed for Kuoka to control the protests and manage the crowd

along with the police, subsequently aggravating the violent situation. Dozens of Ombrians in the place then felt subdued and began to mobilize against the TAF and police. They did this through a resistance movement called Free Kuokan Army (FKA), of which they appointed themselves as majors and colonels.

5. Since April 2014, more and more demonstrations took place in Kouka in spite of the martial law. Confrontations between the FKA, the demonstrators and the policemen of Toukanov resulted in at least 300 casualties of demonstrators, 50 TAF soldiers and policemen. Every conflict was aired on the international media and the pressure brought about by the broadcasts prevented the Toukanov authorities from making more hostile moves. The FKA then recruited 2,000 men and women who were divided into three battalions and gathered firearms for their surprise attack on Teria which happened on June 20, 2014. The battle lasted for three days with the FKA seizing control of Teria and making it its base. After two months, the FKA had gained control of half of the Koukan territory, including Biro. In these areas, the FKA expelled the Boubhan government officials and set up its own local authorities and social services.

6. The Hakovan government denied any link between itself and the FKA but two news agencies stated that the HDA had been transferring weapons to the FKA through the cross-border corridor close to Tena since June 23, 2014. Hakova military uniform symbols were spotted on tanks and trucks by the Boubhans still residing in FKA-occupied parts of Kouka. Correspondents from Reuters and AFP that were at the FKA controlled area witnessed repeated manoeuvres by the HDA at the Hakova-Toukanov bored including the deployment of hundreds of tanks and thousands of men towards the border. They also stressed that youngsters from Kouka travel across the border and were given military training in Hakova.

7. On August 30, 2014, President Ariel convoked an emergency meeting of the Toukanovan Central Command when he was overwhelmed by the turn of events that were happening pretty damn fast. During the meeting, he instructed General Gerard Vande to regain control of the whole Kouka province and to crush the Omrbian terrorists by all means. He then proceeded to declare in front of the cameras his threats against the FKA terrorists. General Vande possesses 19% of the shares in Lannister Enterprises. He had vast connections in the transportation industry. He was also renowned as a true believer of Boubha and donates one third of his salary to the National Boubha Centre every year. General Vande never concealed his abhorrence of the Ombri religion. He would often state in his blog that the Ombri religion poses a threat to the Boubhans and that it must be eradicated. The Lannister Enterprises’ profits dwindled greatly since June 2014 because every time their trucks arrive in FKA-controlled areas in Kouka, the local Ombrians would assault the drivers and steak

their truck and food. As a result, a lot of their employees resigned and the investors withdrew their funds in the company.

8. On October 15, 2014, the Wall Street Journal interviewed Mr. Lannister about the problem that their company was facing. He stated in the interview that they would push through with their business in spite of the attacks by the Ombrian locals. The TAF agreed to keep their trucks safe and he has General Vande to thank for that. On Novermber 10, 2014, a convoy of Lannister Enterprises’ trucks set off to Biro with a TAF task force consisting of two armored vehicles with .50 caliber machine guns and a platoon of TAF soldiers. Before they departed, the leader of the task force received a direct order from General Vande instructing him to protect the convoy with all necessary means. The moment the convoy entered the FKA-controlled area, they were forced to stop by roadblocks. More than 200 local Ombrians then approached the convoy and attempted to rob the trucks as usual. The TAF soldiers, outnumbered by the Ombrians, fired warning shots with the intention to disperse the crowd but shots were fired at the convoy from the middle of the crowd, killing a TAF soldier and a truck driver. The TAF soldiers and armored vehicles immediately retaliated and the Ombrians fled the scene. The convoy then withdrew to the TAF-controlled area and the TAF operational report revealed that 10 TAF soldiers and three drivers from Lannister Enterprises were killed. The local media announced that 110 Ombrian civilians lost their lives while 30 were injured.

9. In January 2015, dozens of lower-ranking officers and hundreds of soldiers, who were radical Boubhans, mutinied against the higher- ranking officers of TAF, arguing that the widespread corruption among the higher-ranking officers seriously undermined the TAF’s capability in carrying out effective military offensives. The leaders of this revolt pledged their allegiance to General Vande and demanded that the TAF engage with the HDA directly in order to respond to Hakova’s support of the FKA. The mutiny ended in March 2015. During General Vande’s visit to the military camps where the insubordinate troops were based, General Vande promoted several leaders of the mutiny on the spot. Moreover, he established a special unit within the TAF, the “Bouhba Guards”, who report directly to the Toukanovan Central Command and General Vande himself.

10.Investigative journalists of the Guardian reported that the mutiny was in effect partly due to the dissatisfaction of the soldiers with the large-scale sexual abuse within the TAF. The report stated that since the deployment of the TAF to Kouka in March 2014, the youngest and physically weakest soldiers in each regiment of the TAF, both men and women, had been selected and tasked with logistical services. However, these soldiers were regularly raped by higher-ranking TAF officers and some senior soldiers returning from the battle. The report of The Human Rights Watch based on interviews of the wounded TAF soldiers corresponded to the report by the Guardian. General Vande was questioned on this matter by

the Guardian, he stated that his soldiers are all adults and that he is not responsible for their activities during their free time; in addition, he said that as a military commander, his work is to develop strategies to counter the terrorists and to supervise his troops on the ground.

11.In view of the alleged human rights violation, the UN General Assembly decided to establish a Commission of Inquiry on the Situation in June 2015. While the circumstances of food shortage in Kouka and sexual abuses were yet to be verified, the Commission’s preliminary report recorded disturbing practices of the TAF since March 2015. The Commission found that one of the strategies announced by General Vande during his visit to the military camps in March 2015 was in fact “Operation Blanc”, which was led by the Boubha Guards. Consequently, the TAF regained multiple municipalities in Kouka which have been previously controlled by the FKA. TAF soldiers asked the residents individually on their religion. Those who answered as believers of Boubha were greeted and sent back home; on the other hand, the Ombrians were forced to take the commitment to convert to Boubha. Furthermore, within Operation Blanc, General Vande ordered that anyone who did not attend the classes three times a day would be imprisoned after the fifth day of missing class. Many Ombrians had to work long hours and did not have the luxury of time to attend classes.

12.As a result thereof, by October 2015, more than 80,000 Ombrians in the TAF-controlled municipalities in Kouka were detained. Only

a small number of Ombrians converted to Boubha. The

Commission’s preliminary report further underlined that under Operation Blanc, the TAF required the registration and authorization of all religions seeking to practice in public areas. Unauthorized religious practice in public areas would be subject to suppression and imprisonment. However, only the Boubha were registered and authorized to practice. Consequently, thousands of Ombrians in Kouka were arrested for “publicly practicing extremist religion”.

13.General Vande was condemned by the council of the National University of Toukanov for inciting religious hatred by stating: “I

do not hide that I am a devout Boubhan. Our country is faced with

instability and is suffering from poverty. I see only one cause of it,

the Ombri. It is time to eliminate this religion from our country for good.” On November 6, 2015, the UN Security Council passed a resolution condemning the violations of international humanitarian law and abuses of human rights by the TAF and the Toukanovan government, and imposed economic sanctions on Toukanov.

14.On November 28, 2015, an employee of the Toukanov Intelligence Burea, under the pseudonym Mr. Nessuno, disclosed confidential documents pertaining to a mass surveillance programme operated

by the TIB. Wherein, the TIB had access to the content of all the

electronic communications of anybody present in Toukanov. Mr.

Nessuno claims that the Arlet administration intended to use this to suppress its political opponents. Incidentally, some of these documents exposed the secondment of mid-level and high-level Hakovan military officers to FKA ranks since the beginning of 2014. Records showed that these seconded Hakovan officers were involved in the planning and carrying out of the FKA ground operations. The Hakovan government denied any involvement of the HAD in Kouka.

15.On December 28, 2015, Congressman Lucion Caron was appointed as Interim President by the Parliament, the Toukanovan government and the FKA signed a cease-fire agreement one month after, on condition that the situation in Kouka from March 25, 2014 to January 28, 2016 would be referred to International Criminal Court, which the Toukanovan government formally did on February 5, 2016.

ISSUES

General Vande was subsequently surrendered to the ICC and was charged with:

a. Count One- with respect to the incident on November 10, 2014, the attack from the convoy, on the basis of individual criminal responsibility for ordering, soliciting or inducing the commission of (Article 25 (3)(b)): the war crime of intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities under Article

8(2)(e)(i).

b. Count Two- with respect to the rapes and sexual abuses within the TAF troops deployed to Kouka province, on the basis of command responsibility (Artucke 28(a)): the war crime if rape under Article 8(2)(e)(vi).

c. Count Three- with respect to the treatment of Ombrian residents in Kouka under Operation Blanc, on the basis of individual criminal responsibility for committing, whether as an individual, jointly with another or through another person (Article 25(3)(a)): the war crime of ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand under Article 8(2)(e)(viii).

DISCUSSION/ARGUMENTS

PROSECUTION

The prosecution argues that the conflict in Toukanov is non- international in nature. This is due to the fact that a Non-International Armed Conflict (NIAC) is a type of armed conflict involving two actors one of which may be classified as a governmental force and the other as a non-governmental armed groups. In this case, the two parties involved in the conflict are: the Toukanov Armed Forces (TAF), the army in Toukanov headed by a supreme military authority which has the responsibility of commanding all military operations and; the Free Koukan Army (FKA), a resistance movement organized by Ombrian veterans.

Furthermore, the prosecution contends that General Gerard Vande, the Chief of the Defence Staff of the TAF, must be charged with the war crimes as he is liable in the attack against the civilians from the convoy which happened on the 10 th of November 2014, the rapes and sexual abuses within the TAF troops and by ordering the displacement of the civilian population.

I. War Crime of Attacks Against Civilians

General Vande should be charged with the war crime of attacking the civilian population. Being the Chief of the Defence Staff, he has the responsibility to command all the operations of the military. This was exemplified when he commanded that the TAF soliders should do “all necessary means” to protect the convoy hence, ordering the attacks against the Ombrians. As the TAF soldiers were mere subordinates to General Vande, they are required to follow all his commands. Under the Principle of Command Responsibility, superiors are responsible for the crimes committed by their subordinates. When the TAF soldiers attacked the civilians, they were merely acting under the order of General Vande. Thus, the crime committed by the TAF soldiers is the responsibility of General Vande making him liable in the crime of attacking the civilian population.

Also, under Article 8(2)(e)(i) of the Elements of Crime, one element of the commission of a crime is that the perpetrator was aware of factual circumstances that established the existence of an armed conflict. General Vande is fully aware that there are hostilities between the FKA-controlled areas and the Lannister Enterprises. He had already foreseen that an attack can actually happen when they entered the FKA-controlled areas.

It was also contended that the object of the attack was a civilian population. This falls under another element of a crime. Civilians are afforded the protection of the law, unless they take a part in the conflict. In this case, the Ombrians are considered individual civilians who did not take part in the hostilities. Their rights as civilians were violated when they were attacked by the TAF forces. They only approached the convoy since they were in need of the goods which the Lannister Enterprises have the obligation to deliver as part of their

duty as a transport company. Given these arguments, General Vande shold be liable for the crime of the attacks against the civilian population.

II. War Crime of Rape

In the view of the prosecution, General Vande was rightfully and legally charged, with respect to rapes and sexual abuses, within the TAF troops deployed to Kouka province. The basis for these charges are: Command Responsibility (Article 28 [a]); and War Crime of Rape (Article 8 [2] [e] [vi]).

Article 8 (2)(e)(vi) states: “Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions”;

Article 28 (a) states: “(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”

When dozens of low-ranking officers and hundreds of soldiers, who were radical Boubhans, mutinied against the higher-ranking officials of TAF, many of them pledged allegiance with General Vande, and the latter promoted several leaders of said mutiny and announced his decision to establish a special unit within the TAF called “Boubha Guards”. This unit is tasked to engage with HDA directly, and if necessary, across the border, in order to respond to Hakova’s support of the FKA.

A system of sexual predation has been in place since the troops of the Boubha Guards were deployed in Kouka. Senior-ranking officials will sexually abuse and rape women insubordinate officials. This was proven by the preliminary report recorded by the Commission of Inquiry established by the UN General Assembly, especially tasked to scrutinize the alleged disturbing practices.

This was made known to General Vande, as corroborated by the fact that he was questioned about these immoral practices of his insubordinates and he gave a statement that his soldiers are all adults and that he has no responsibility for their activities during their free time.

Article 8 (2)(e)(vi) being already a fact, we now need to prove and establish the Command Responsibility of General Vande, being liable for atrocities done by his insubordinates, being under his order and command.

General Gerard Vande, as defined by the background facts of the case, being the Defense Staff of the TAF, is the highest-ranking and senior-most officer in the TAF. He advises the president, and the minister of defense on all defense matters and is responsible for the use of force and command of all military operations by the TAF.

Given the abovementioned definition, it is understood that whatever consequence and circumstance arise from the operations of his subordinates, by virtue of his position and command, he shall be responsible for them. The rape and sexual abuse happened when General Vande established the Boubha Guards and deployed them to Kouka to conduct the Operation Blanc (March 2015 December

2015.)

General Vande or the defense may argue that the insubordinates acted in their own capacity and beyond the scope of their duty, hence Vande should not be responsible for them. This is without merit. Assuming that was the case; it must be noted that such bad practice of the insubordinates was made known, through a question, to General Vande. But Vande did not acted upon it. Rather, he denied responsibility for his lower-ranking officials merely because he believes that they did it during their free time. This is not a proper conduct of a superior official over his command. If he was in good faith, he could’ve examined and investigated through his subordinates internally and tried to find out if such allegations of rape and sexual abuse did happen. If such atrocities did happen, a prudent superior would give necessary sanctions to his faulted subordinates, for them to be reconstructed morally. This conduct of a military commander is defined by letter (ii), (a), Article 28 of ICC.

III. War Crime of the Order of Displacement

In the opinion of the prosecution, Operation Blanc, designed by General Vande, is in violation of Article 8 (2)(e)(viii) which provides:

“(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand”;

Operation Blanc, which was spearheaded by the Boubha Guards together with TAF soldiers, flushed all Ombrian residents from their houses to the central square and asked them one by one of their religion. Those who answered as believers of Boubha were greeted and sent back home; whereas the Ombrians were assembled and force to take the commitment to convert to Boubha, which required them to go to the Boubha sanctuaries three times a day. Anyone who did not attend the classes three times will be imprisoned. The imprisonment took place in the newly-built detention centers located more than 200kms away. Only a small number of Ombrians converted to Boubha.

This is in clear violation of Article 8 (2)(e)(viii). The displacement done in Operation Blanc was because of the defiance of the Ombrians to convert their religion and not for their security nor by imperative military reasons. This, res ipsa loquitur, manifests the gruesome intent of Operation Blanc whose primary and absolute goal is to obliterate the Ombrians, by any means necessary.

DEFENSE

The defense argues that the conflict can be classified as an International Armed Conflict (IAC). They contend that there are two states involved, which are the Toukanov and the Hakova. Moreover, the state of Hakova had helped the FKA through transfer of weapons and deployment of hundreds of tanks and thousands of men.

Another main point in their arguments is that General Vande is not guilty of the war crimes being accused to him. It is true that he is the commander of the Toukanov Armed Forces (TAF), but his orders were only directed for the protection of the convoy and the goods to be delivered to the Boubhan people, inhabiting parts of Kouka province, not to inflict injury against the civilians.

Moreover, the elements under Article 8(2)(e)(i) require the establishment of five elements, and three of which are not satisfied. Thus, the accusation of a war crime is not enough for General Vande to be held responsible. It is also a fact that the Ombrians who died in the aggression are civilians, however, they have participated in the conflict when they tried to steal food and arm weapons from the convoy. As a prudent soldier who only want to uphold his duty, which is to protect the trucks until it reached its destination, acted only on his official task. Conflict arose by the first move of the civilians, and when the TAF forces gave warning shots to halt the aggression, the civilians opened fire to the forces. In line with the forces’ duty to protect the trucks and the goods inside, and also with their lives being compromised in the said conflict, soldiers are deemed justified in their act of returning fire, under the doctrine of self-preservation, though civilians were fleeing then, as it is provided. Toukanov was under martial law and to ensure that civilians already ended their up rise, forces continued to fire at the civilians.

For the second charge of war crime, he is not liable for the rapes involving TAF troops and other wrongful acts of his subordinates for he is just the General. The Commander-in-chief, who is President Daniel Arlet, should be responsible for those events in accordance to the principle of command-responsibility because he is the highest leader of the bureaucracy. That the soldiers committed the crime of rape dring their “free time” and therefore cannot be attributed to General Vande. Finally, the defense argues that the General should not be accused of displacing Ombrians for the act of displacement is not permanent in nature and cannot be considered as imprisonment. They argue that the orders of displacement by General Vande were merely conditional and that it were the Bhouba guards who committed an abuse of power.

I.

War Crime of Attacks Against Civilians

The General is not guilty for attacking the civilian Ombrians. For a war crime to be established, under Article 8(2)(e)(i) prescribes five elements and three of which are not present in the conflict happened. The requisites for General Vande be held liable shall concur: (1) he did not directly participated in the aggression, (2) nor he did order the attack and inflict injury, with intent, toward the civilian Ombrians, and (3) those Ombrians who were involved in the conflict took part in the hostilities. It is true that General Vande ordered the troops to protect the goods and convoy but he never, directly, ordered to attack those civilians. Also, those civilians attacked the convoy with the intent to steal the goods which is a good reason for the troops to defend themselves and the convoy, which can be considered as property. They, the TAF members, were under pressure. After firing a warning shot, the Ombrians still proceeded with their attack and killing the driver of TAF which lead the armed forces of an aggressive action. It is only natural for them to react and do whatever it takes to survive and successfully to do their mission. Therefore, those Ombrians is not under the immunity of being protected in times of hostilities because they have participated in the conflict.

Another reason it that the TAF was under duress and acted only on self-defense. Duress can be defined as something which results “from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.” (Article 31, paragraph d, of the Rome Statute of the International Criminal Court)

The civilians (Ombrians), went to the delivery truck full of goods for the Boubhan people of Kouka, tried to steal the same and grab some of the army weapons from the convoy. For this, the Army fired warning shots with the intent to halt the civilians and dispersed them, however, Ombrians answered with gunshot killing a TAF soldier and a truck driver. TAF soldiers under the threat of serious bodily harm and given the fact that the TAF soldiers were outnumbered, the immediate reaction was proportionate to the degree of danger posed by the Ombrians who had the strength to annihilate them had they not fired back.

II. War Crime of Rape

There is an insufficiency of evidence in order to establish actual incidence of penetration, and that even assuming that there were incidence of rapes, there is absence of nexus between the war crimes of rape and NIAC (Non-International Armed Conflict).

According to the case of Prosecutor v. Prestige, it establishes that in order for command-responsibility to be effectively established, if there were indeed incidence of rape during that time, effective control is must established.

Article 61 of the Rome Statute, that there must be sufficient evidence in order to establish a substantial claim that the perpetrator actually committed the crime. In this particular circumstance, *inaudible* recognizes the admissibility of documentary documents, there is no case with the pre-trial stage of the ICC has proceeded in the trial merely on the documentary documents even if *inaudible* it did not confirm the charges merely on the but relying with what other witnesses' testimony

Moreover, Intra-party violence during armed conflict is not covered by International Humanitarian Law (IHL), therefore, intra- military rape and sexual abuse is not a crime against humanity.

Article 7(1) of the Rome Statute states that crimes against humanity means:

“any attack of the following acts (including rape, sexual slavery, enforced prostitution, etc.) when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack.”

Article 8 of the same Statute also defined war crimes as primarily dealing with grave breaches of the Geneva Convention (III), which only covers civilian victims. The requirement that the victims be civilians is significant, for non-civilians are not protected by IHL.

The case of Prosecutor v. Sesay is therefore commanding when the Special Court for Sierra Leone concludes that “the law of armed conflict does not protect members of armed group from acts of violence directed against them by their own forces (par. 1451),” because IHL was never intended to criminalize intra-party violence (par. 1453).

In the instant case, nowhere in the compromise that a civilian was raped during the conduct of hostilities. What makes this more ridiculous is that reports of the alleged rape were only based on pure hearsay and speculative evidence i.e based on unverified reports. Not even a single alleged victim came out in open to attest to the veracity and truthfulness of such reports. Even those reports claimed that the alleged victims were members of the TAF and not civilians. ‘A man or woman enter into a forcibly sex would confide everything if chance, assurance and protection are given to them’ but to this case no one came out, thus, it is presumed such reports were only made for the purpose of corrupting General Vande.

Supposing but not recognizing that intra-military rape is a crime against humanity, under international case law on de jure (in law) commanders, only Prisoners Of War camp commander and executive commanders can be made liable on the crimes committed by their subordinates.

In line to the preceding argument, if there was a crime that was committed, the one that should bear responsibility as the superior is President Daniel Arlet as he is the commander-in-chief of the Toukovan Armed Forces and not General Vande, who was the Chief of Staff of TAF and only acted on behalf of the former. His position

was merely advisory and cannot directly influence the decision of the President upon measures to be taken by the armed forces against the Free Kouka Army (FKA) rebels of the province. Clearly Generl Vande’s position was neither prisoner of war camp commander nor executive commander.

Furthermore, the violence and/or crime committed by General Vande’s subordinates, in this case his high-ranking officers and some senior soldiers, acted beyond what was tasked to them by their General, which was only to reclaim lost territories from the FKA, and which cannot be attributed to the General as act of himself. As the senior officers committed crimes outside their official duty, General Vande was not responsible anymore to this unlawful and animalistic acts. Hence, an officer or subordinate acted beyond the scope of his jurisdiction or assigned duty, is personally acted on his own capacity and therefore be solely held liable for the crimes he had committed.

III. War Crime of the Order of Displacement

The required elements of crime under Article 8(2)(e)(viii) are not satisfied. Article 8(2)(e)(viii) of the ICC prohibits the displacement of the civilian population in the context of a non- international armed conflict, unless the security of the civilians involved or imperative military reasons so demand.

This conduct is prohibited under the same terms in Article 17 Additional Protocol II and reflects customary international humanitarian law. The elements of the said crime are:

1. The perpetrator ordered a displacement of a civilian population;

2. Such an order was not justified by the security of the civilians

involved or by military necessity;

3. The perpetrator was in a position to effect such displacement by

giving such order;

4. The conduct took place in the context and was associated with a

non-international armed conflict; and

5. The perpetrator was aware of factual circumstances that established

the existence of an armed conflict.

Element 1 is not satisfied for there was no displacement in this case. It is a requirement under the first element that there should be a displacement of a civil population. Displacement presupposes a forcible and unlawful transfer of the inhabitants of the occupied territory. In the case at bar, there was no unlawful transfer of population. The order of displacement was provisionary in nature and that it is pursuant to public law.

The Ombrian inhabitants of the municipalities regained by FKA was not forcibly removed out of the territory. In fact, General Vande was under the authority vested upon him through the Martial Law move the civilians to a detention centre.

Hence, there must be an aim to permanently remove inhabitants. Thus if mere detention or imprisonment is committed

against inhabitants, there is no displacement to speak of. Furthermore, it was the Bhouba guards who abused their powers and not General Vande. From this, General Vande cannot be held liable.

VIEWS ON THE DECISION

The situation in Toukanov as a non-international armed conflict

Under Article 3 common to the Geneva Conventions of 12 August 1949, two requirements are necessary for such situations to be classified as non-international armed conflicts.

The first requires that the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces. The second states that non-governmental groups involved in the conflict must be considered as "parties to the conflict", meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.

The FKA is an organization that has significant political influence but is not allied to any particular country or state, or any established institution and, possessing organized armed forces with a command structure and the capacity to sustain military operations, qualify as a non-governmental armed group. The TAF, on the other hand, is considered as the main military agent of Toukanov. Both parties are collective in character and satisfies the first requirement when TAF, as a the army of Toukanov, attacked the FKA, which in this case, is considered as the insurgents. Thus, the situation in Toukanov reached a minimum level of intensity when the TAF used military forces against the FKA. Moreover, the second requisite is also attendant, due to the fact that FKA, as a non-governmental group, is considered as a party to the conflict and they also have a certain command structure (appointment of majors and colonels) and organized armed forces (resistance movement). With the two requirements present, the situation can indeed be specified as a non- international armed conflict.

Count One - The 10 November incident

It is true that it was General Gerard Vande who ordered to use all the means necessary for the protection of the Lannister trucks. However the actions of TAF soldiers, specifically injuring the civilians, were done beyond the command of General Vande. Because in fact, the civilians were actually retreating but the TAF soldiers still continued to fire shots. Therefore, the actions of the soldiers will not make General Vande liable for the war crime of attacking the civilian

population since their actions are not necessary to obey the specific order of General Vande.

Count Two - The war crime of rape following the doctrine of command responsibility

The doctrine of command responsibility pertains to a form of responsibility for omission to act: a superior may be held criminally responsible under that doctrine where, despite his awareness of the crimes of subordinates, he culpably fails to fulfill his duties to prevent and punish these crimes.

The commission of one or more crimes attributable to a subordinate is a pre-requisite for the application of that doctrine. In addition, the following requirements have been identified as forming part of the doctrine of superior responsibility under customary international law:

(i) A relationship of superior-subordinate linking the

accused and those who committed the underlying offences

at the time of the commission

of the crime;

(ii) The knowledge on the part of the superior that his

subordinates have committed or taken a culpable part in the commission of a crime or are about to do so; and

and

(iii) A failure on the part of the superior to take necessary reasonable measures to prevent or to punish those crimes.

General Vande’s deliberate refusal to address the rape incidents that took place within the TAF while under his superior command is evidenced through his statement “My soldiers are all adults. I am not responsible for their activities during their free time. As a military commander, my work is to develop strategies to counter the terrorists and to supervise my troops on the ground.”. With the above statement having been established, and with all the requisites mentioned above having been met in the situation, General Vande is indeed guilty of the war crime of rape following the doctrine of command responsibility.

Count Three - With respect to the treatment of Ombrian residents in Kouka under Operation Blanc

The war crime of ordering the displacement of the civilian population for reasons related to the conflict committed by General Vande is embraced under the category of commission of war crime through another person, under Article 25 (3) (a). The said article contains a third alternative of the ICC Statute, establishing criminal responsibility of a perpetrator who uses another person as a tool to commit a crime under international law, regardless of whether the direct perpetrator is liable himself. With the established facts evidencing that General Vande indeed ordered the said displacement,

and that the said crime was indeed committed by the ordered subordinates, which in this case are the Bhouba guards, General Vande shall be charged with individual criminal responsibility.

UNIVERSITY OF SANTO TOMAS Faculty of Civil Law

2017 NATIONAL MOOT COURT COMPETITION ON INTERNATIONAL HUMANITARIAN LAW

Paper Submitted by:

BELTRAN, Justin Santiago L. III CAGALINGAN, Samuel S. GUEVARRA, Benigno Gionne J. II LORENO, Andrea Nicole C. MANLAPID, Glenn Matthew C. MONDIDO, Atheena Mae M. PARBA, Bonn Lorenzo P.