2 Prosecution

Prosecutor v. Gerard Vande

October 2017
 TABLE OF CONTENTS

Cover Page.1

Table of Contents2

INDEX OF AUTHORITIES..5

I. Treaties and Conventions5

II. United Nations Resolutions and Other Documents.5

III. International Cases and Arbitral Decisions.5

IV. Municipal Case6

V. Other Books.............6

VI. Journal Articles6

STATEMENT OF FACTS.8

SUMMARY OF PLEADINGS..11

A. War crime of rape on the basis of command responsibility.11

B. War crime of intentionally directing attacks against the civilian population or against

civilians not taking direct part in hostilities and ordering the displacement of the civilian

population on the basis of individual Criminal responsibility..........12

PLEADINGS AND AUTHORITIES13

I. The contextual elements common to the war crimes charged...13

A. The existence of non-international armed conflict in the present dispute13

1. The Free Koukan Army (FKA) was an organized armed group fighting

against the Government of Toukanov (Organization Requirement).13

2. The conflict between the Free Koukan Army (FKA) lasted from

March 25, 2014 until January 28, 2016 (Intensity Requirement).14

Page 2 of 23
II. General Vande is criminally liable for directing attacks against the Ombrians.14

A. General Vande directed the attack against Ombrian Civilians15

B. The object of the attack were local Ombrians not taking direct part in the hostilities.15

C. General Vande intended the local Ombrians not taking direct part in hostilities

to be the object of the attack.16

D. General Vande was aware of factual circumstances that established the

existence of armed conflict...17

III. General Vande is liable for the war crime of rape on the basis of command responsibility..17

A. TAF soldiers committed the war crime of rape17

1 Actus Reus and Mens Rea17

2 The war crime of rape extends to cover combatants in the same armed forces18

B. General Vande bears command responsibility under Article 28 of the ICC

Rome of Statute18

1. General Vande is a military commander having effective command and

control over the TAF soldiers who committed the war crime of rape19

2. General Vande failed to exercise proper control over the TAF which

resulted to the commission of the war crime of rape..20

3. General Vande, owing to the circumstances at the time, should have

known that TAF soldiers were committing the crime of rape20

4. General Vande failed to take the necessary and reasonable measure

within his power to prevent or repress the commission of the war crimes

or submit the matter to competent authorities for investigation and prosecution...21

Page 3 of 23
IV. General Vande is criminally liable in ordering the displacement of the Ombrians....21

A. General Vande ordered the displacement of Ombrian Civilians..21

B. The order of General Vande was not justified by the security of the local

Ombrians neither by military necessity....22

C. General Vande, as the minister of defence, effected the displacement of

local Ombrians by implementing Operation Blanc..22

D. General Vande was aware of the Armed Conflict between the FKA and

the Toukanovan Government.. 23

CONCLUSION/ PRAYER FOR RELIEF...23

Page 4 of 23
 INDEX OF AUTHORITIES

I. Treaties and Conventions

Elements of Crimes, 9 September 2002, ICC-ASP/1/3.14

Geneva Conventions of 12 August 1949, 8 June 1977, 1125 U.N.T.S. 3.18

Protocol II Additional to the Geneva Conventions of 12 August 1949,

8 June 1977, 1125 U.N.T.S. 609........18

Rome Statute of the International Criminal Court, 17 July 1998,

A/CONF.183/9....19,21

II. United Nations Resolutions and Other Documents

Draft Additional Protocol II submitted by the ICRC to the Diplomatic

Conference leading to the adoption of the Additional Protocols, Article 25.16

Sliedregt, supra notw 28, at 186; Summary Record of the 7 sf Meeting of the

Committee of the Whole, UN Doc. A/CONF. 183/C.1/SR.1..........20

III. International Cases and Arbitral Decisions

International Criminal Court

Prosecutor v. Bemba, Decision, 15June2009,Case No. ICC-01/05-01/08...14,19,21

Prosecutor v. Ntaganda, Confirmation of Charges, 9June2014, Case No.

ICC-01/04-02/06....18

Page 5 of 23
 International Criminal Tribunal for the Former Rwanda

Prosecutor v. Akayesu, Trial Judgment, 2September1998, Case No. IT-96-23&23/1...17

Prosecutor v. Kayishema and Ruzindana, Trial Judgment, 21May1999,

Case No. ICTR-95-1-T ..20

Prosecutor v. Musema, Judgment and Sentence, 27 January 2000,

Case No. ICTR-96-13-A..13

International Criminal Tribunal for the Former Yugoslavia

Prosecutor v. Blaskic, Trial Judgment, 29JULY2004, Case No.ICTY-IT-95-14-T16

People v. Boskoski, Trial Judment, 10July2008, Case No. IT-04-82-T13,14

Prosecutor v. Delalic, Trial Judgment, 16November1998, Case No. IT-96-21-T..20

Prosecutor v. Hadzihasanovic and Kubura, Trial Judgment, 15March2006,

Case no. IT-01-47-T.............19

Prosecutor v. Strugar, Trial Judgment, 31January2005, Case No. IT-01-42-T..21

Prosecutor v. Tadic, Decision on the Defence Motion, 2Oct1995,

Case No. IT-94-1-AR72.13

Prosecutor v. Tadic, Trial Judgment, 7May1997, Case No. IT-94-1-T..13

IV. Municipal Case

Military Prosecutor v. Omar Mahmud Kassem And Others, Trial Judgment,

13 April, 1969, Military Court sitting in Ramallah, Israel....15

Page 6 of 23
V. Other Books

Military manuals of Argentina , Australia, Belgium , Benin , Cameroon , Canada,

Colombia , Croatia , Dominican Republic , Ecuador ,France, Germany , Hungary,

Indonesia, Israel , Italy , Kenya, South Korea , Madagascar , Netherlands , New Zealand ,

Russia, South Africa, Spain , Sweden , Togo, United Kingdom and United

States15, 16

VI. Journal Articles

Direct participation in hostilities: Questions and Answers. International Committee

of the Red Cross 02-06-2009 FAQ16

Henckaerts, Jean-Marie and Doswald-Beck, Louise. Customary International

Humanitarian Law Volume I: Rules. Cambridge, International Committee of the

Red Cross................23

Rule 14 of the ICRCs 2005 Study of Customary International Humanitarian..15

Page 7 of 23
 STATEMENT OF FACTS
Background
The Federal Republic of Toukanov and Hakova was established as a single State after the
Second World War. Its population was composed of believers of two religious groups: the Bhouba
and the Ombri religion. Almost all the Boubhans resided in the state of Toukanov, while the state
of Hakova was predominantly inhabited by Ombrians.
In 2009, Mr. Daniel Arlet, belonging to a radical Boubha party, was elected President of
the Federal Republic. The Boubhan-dominated federal parliament soon declared Boubha as the
official religion of the Federal Republic. In response, the parliament of Hakova proclaimed
independence on 10 April 2009, and established the Republic of Hakova. The Hakovan Defence
Army (HDA) was formed by the Ombrians within the Federal Army who pledged their allegiance
to the Republic of Hakova.
President Arlet refused to recognize Hakova as an independent state. In 5 August 2010, the
federal parliament changed the Federal Republics name to the Boubhan State of Toukanov, and
referred to Hakova as an autonomous region of Boubhan State. The Federal Army was regrouped
as the Toukanov Armed Forces (TAF). General Gerard Vande, the highest-ranking and
senior-most military officer in the TAF, was the TAFs Chief of Defence Staff. By June 2017, 138
countries have recognized Hakova. Nonetheless, it has not been admitted to the United Nations
until the present day.
Kouka is a province of Toukanov, bordering the state of Hakova. It was inhabited by
800,000 Ombrians and 200,000 Boubhans. The Ombrian population in Kouka have been
clamoring for a referendum to decide the future of Kouka, since the independence of Hakova. The
harsher religious policies caused the Ombrian population in Kouka to feel oppressed and victims
of segregation.
The desire to accede to Hakova reached its peak when the district court of Kouka refused
to prosecute a policeman who gunned down and killed a 15-year old Ombrian boy for suspicion of
attacking the policeman, in early March 2014. Tens of thousands of Ombrians protested in the
streets. President Arlet announced a state of emergency, and declared Martial Law on 25 March
2014. A Free Koukan Army (FKA) was organized by Ombrian veterans in Kouka as a resistance
movement. On 20 June 2014, the FKA seized the city of Teria, near the border of Kouka. The
FKA ousted the Boubhan government officials and replaced them with its own government.
Page 8 of 23
 General Vande was known a devout believer Bhouban and was always vocal of his disdain
of the Ombri religion. He has repeated in his personal blog that the Ombri religion must be
eliminated as it constitutes a threat to the Bhoubans, and that all Ombrians must be driven away.
The Armed Convoy of Lannister Enterprises
General Vande owned 19% of the shares of Lannister Enterprises, one of the biggest
transport companies in Toukanov. Every time Lannister Enterprises trucks arrived in Kouka to
deliver food and medical supplies to its Boubhan residents, confrontations would ensue. On 10
November 2014, a TAF task force consisting of two armored vehicles with .50 calibre machine
guns and a platoon of TAF soldiers escorted a convoy of Lannister Enterprises trucks on their
way to Biro, Kouka. General Vande instructed the task force leader to protect the convoy with all
necessary means. When the trucks entered the FKA controlled area, some unarmed 200 Ombrians
attempted to seize the TAF soldiers weapons. The TAF fired a few shots. Shortly after, gun fires
were shot from the middle of the crowd, which killed a TAF soldier and a truck driver. The TAF
soldiers instantly fired back. The armored vehicles also opened fire as the Ombrians scampered to
safety. 10 TAF soldiers and 3 truck drivers were killed, while some 110 Ombrian civilians
perished and 30 were injured.
Mutiny and the Large-Scale Sexual Abuses within the TAF
In January 2015, dozens of junior officers and hundreds of soldiers mutinied against
higher-ranking TAF officers. They pledged allegiance to General Vande and demanded that the
TAF engage with the HDA directly. In March 2015, General Vande visited the mutineers camp
and promoted several leaders of the mutiny. He also announced the formation of the Boubha
Guards composed mainly of the mutineers, who shall report directly to the Toukanovan Central
Command, and General Vande.
The Guardian reported that the dissatisfaction of the soldiers with the large-scale sexual
abuse within the TAF was part of the reason for the mutiny. This started on March 2014 when the
TAF was deployed to Kouka. The youngest and physically weakest soldiers were tasked to
perform logistical services such as meal preparation, maintenance of supplies, and medical care
on the wounded. They were regularly raped by higher ranking TAF officers and returning
soldiers. The Guardians report was also confirmed by the Human Rights Watch. This practice
lasted until December 2015. General Vande, however, dismissed his responsibility over the matter,
and claimed that his soldiers were all adults.
Page 9 of 23
Operation Blanc
In June 2015, the UN General Assembly established a Commission of Inquiry on the
Situation in Toukanov, to look into the recent spate of human rights violations. In its preliminary
report dated 27 October 2015, the Commission disclosed the disturbing religious practices of the
TAF under its Operation Blanc. In September 2015, said practices were spread to other parts of
the country. The Operation Blanc which was spearheaded by the Boubha Guards, allowed them to
regain control of parts of Kouka. Under Operation Blanc, residents were compelled to converge
at the central square and to disclose their religion. Those who admitted to be followers of Ombri,
were forced to convert to Boubha, and were required to attend Boubha religious classes and to
visit the sanctuaries thrice a day. Pursuant to the power vested on him under Martial law, General
Vande commanded that those who failed to attend the classes shall be imprisoned after the fifth
day, in unsanitary detention centers. Arrested FKA fighters, Koukan residents who offended a
TAF officer or government official, and more than 80,000 Ombrians, in the TAF-controlled
municipalities were detained.
Under Operation Blanc, religions which sought to practice in public areas were required to
register and secure authorization from the TAF. At present, only the Boubha was registered and
authorized to practice. Thousands of practicing Ombrians in Kouka were arrested and displaced at
the detention centers at the border.
On 6 November 2015, the UN Security Council passed a resolution condemning the TAF
and the Toukanovan government for violation of international humanitarian law and abuses of
human rights, and imposed economic sanctions on Toukanov.
The Present Case Against General Vande
On 28 December 2015, Congressman Caron, member of a moderate reformist opposition
party in the Parliament, was appointed as Interim President. On 28 January 2016, FKA signed a
ceasefire agreement with the TAF, provided that the situation in Kouka from 25 March 2014 to 28
January 2016 be formally referred to the International Criminal Court (ICC). The Toukanovan
government formally referred it to the ICC on 5 February 2016. On 10 May 2016, the ICC issued
a warrant of arrest for General Vande. He was arrested on 12 May 2016, and was surrendered to
the ICC in the Hague on 19 May 2016.

Page 10 of 23
 SUMMARY OF PLEADINGS

A. GENERAL VANDE, UNDER COMMAND RESPONSIBILITY, IS

CRIMINALLY LIABLE FOR VIOLATING THE ICC ROME STATUTE FOR THE
WAR CRIME OF RAPE

1. As the military commander of the battalion of Toukanovs Armed Forces,

General Vande is criminally liable for his failure to react to crimes or for taking
inadequate measures, in spite of his influential position in the TAF and his demonstrated
ability to adopt far-reaching measures under Article 28 of the statute. In any case, his
liability therefor is founded upon the principle of command responsibility.

2. ICC extends protection under international law to cover war crimes committed
within armed forces. Victims of crimes perpetrated by people on the same side of an
armed conflict should be protected. Hence, the war crime of rape committed by Senior
TAF Soldiers against their young and weak soldiers is clearly within the courts
jurisdiction.

B. GENERAL VANDE IS CRIMINALLY LIABLE FOR VIOLATIONS OF

THE ICC ROME STATUTE FOR ORDERING THE ATTACKS AND
DISPLACEMENTS OF CIVILIANS PERPETRATED BY THE TAF SOLDIERS
AGAINST THE LOCAL OMBRIANS

1. The physical attacks against unarmed civilians, which were committed in the
context of and in association with armed conflict, constitute the war crime of directly
attacking civilians under Article 25 of the Statute. They are liable for violating a
customary norm of IHL- that of distinguishing between civilians and enemy combatants
at all times.

2. The Operation Blanc is a violation of Article 25 of the Statute. The order of

General Vande of forcing the Ombrians to convert to Boubha, without regard to their
Page 11 of 23
ethnicity and religious beliefs, violates the basic human right of these civilians which is
prohibited by International Humanitarian Law. Furthermore, the presence of a national
unrest does not justify the clear disregard of General Vande of the right of the civilians to
practice their religion, and their transfer to detention centres at the border. The series of
circumstances lead to the inevitable conclusion that such acts amount to the war crime of
forcible displacement.

Page 12 of 23
 PLEADINGS AND AUTHORITIES

I. The contextual elements common to the war crimes charged are present

A. Non-international armed conflict exists in the present dispute

Non- International Armed Conflict exists when there is prolonged conflict between
government authorities and an organized armed group.1 The minimum level of intensity
of the conflict and organization of the armed group must be satisfied.2

1. The FKA was an organized armed group fighting against the Government of
Toukanov

There is an organization when the armed group is organized to a greater or lesser

degree.3 Indications of organization include; a) command structure; b) military
capacity; c) logistics capacity and d) the ability to speak with one voice.4
In this case, upon the declaration of Martial Law by President Arlet, dozens of
Ombrian veterans in Kouka organised a resistance movement which they named the
Free Koukan Army (FKA) to fight against the police and the Toukan Armed Forces
(TAF), appointing themselves as majors and colonels of the FKA.5 FKA managed to
recruit up to 2,000 men and women to take arms, and obtained light weapons
including assault riffles, grenades and rocket-propelled grenades (RPGS). 6 The
organization requirement was met.

1
Prosecutor v. Tadic, Decision on the Defence Motion, 2Oct1995, Case No. IT-94-1-AR72, 70.
2
Prosecutor v. Tadic, Trial Judgment, 7May1997, Case No. IT-94-1-T, 562.
3
Prosecutor v. Musema, Judgment, 27 January 2000, Case No. ICTR-96-13-A, 97.
4
People v. Boskoski, Trial Judgment, 10July2008, Case No. IT-04-82-T, [Boskoski],177.
5
Record, 8.
6
Record, 9.
Page 13 of 23
 2. The conflict between the FKA and TAF lasted from March 25, 2014 until
January 28, 2016

Factors considered in assessing the intensity of the conflict include: 1) the gravity
and frequency of attacks; 2) duration and extent of the conflict; 3) subjugation of towns; 4)
intervention by the United Nations; and 5) deployment of government forces to the crisis
area.7
The FKAs operations are acts of open hostility, the conflict between the TAF and
FKA lasted for more than ten months8 which is a sufficient basis that it was protracted.9
The overall dire humanitarian condition in Kouka drew international attention and was
condemned by the UN Secretary-Council which led to the adoption of a resolution.10 The
threshold of intensity was met.

II. General Vande is criminally liable for directing attacks against the Ombrians

In order to make a finding on General Vandes criminal responsibility with the mode of
liability of indirect co-perpetration, the following elements must be fulfilled:
(a) The perpetrator directed an attack, (b) The object of the attack was a civilian
population as such or individual civilians not taking direct part in hostilities, (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, (d) The conduct took place in the context of
and was associated with an armed conflict not of an international character, and (e) the
perpetrator was aware of factual circumstances that established the existence of an armed
conflict.11

7
Boskoski, 194-203.
8
Record, 8 and 28.
9
Prosecutor v. Bemba, Decision, 15June2009, Case No. ICC-01/05-01/08,[Bemba], 235.
10
Record, 24.
11
Elements of Crimes, Article 8(2)(e)(I) 9 September 2002, ICC-ASP/1/3.
Page 14 of 23
 Launching an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated, is prohibited.12

A. General Vande directed the attack against Ombrian civilians

Additional Protocol I defines attack as acts of violence against enemies in offence or

defence. In this case, the TAF soldiers open fired the Ombrians using the armored vehicles which
resulted to the death of 110 Ombrian civilians.13 Such attack did not adhere to the principles of
military necessity, proportionality and distinction in order to minimize civilian casualties.
General Vande is liable for the directing such attack because he issued a direct Order to the
leader of the task force to adjudge the use of arms without any restriction.14

B. The object of the attack were local Ombrians not taking direct part in the hostilities

Numerous military manuals, including those of States not, or not at the time, party to
Additional Protocol II, stipulate that a distinction must be made between civilians and combatants
and that it is prohibited to direct attacks against civilians.15 Immunity of civilians from direct
attack is one of the basic rules of international humanitarian law.16

12
Rule 14 of the ICRCs 2005 Study of Customary International Humanitarian.
13
Record, 16.
14
Ibid.
15
See military manuals (ibid., 1034 and 173216), in particular the manuals of France
(ibid., 21 and 188), Indonesia (ibid., 192), Israel (ibid., 25 and 193194), Kenya (ibid.,
197),United Kingdom (ibid., 212213) and United States (ibid., 3334 and 214215).
16
Military Prosecutor v. Omar Mahmud Kassem And Others, Trial Judgment, 13 April, 1969,
Military Court sitting in Ramallah, Israel (ibid., 271).
Page 15 of 23
 Civilian is defined as "any person who is not a member of armed forces".17 Unarmed
local Ombrians were involved in the attack.18 The Ombrians do not fall on any of the numerous
military manualsdefinition of combatants.19
In order to constitute direct participation, a violent act must not only be objectively likely to
directly cause harm, but it must also be specifically designed to do so in support of one party to an
armed conflict and to the detriment of another.20 The act of the Ombrians approaching the convoy,
attempting to rob the truck, did not constitute an act of directly taking part in hostilities. The
civilians involved were not members of FKA, and the acts were not done to deprive the Boubhans
in the conflict areas of food, water and medical supplies.

C. General Vande intended the local Ombrians not taking direct part in hostilities to be the
object of the attack

In the case of Blaskic21, the Prosecution maintained that the mens rea which characterizes
all the violations under the Statute is the intentionality of the acts or omissions, a concept
containing both guilty intent and recklessness likeable to serious criminal negligence. Both were
present in this case.

17
Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the
adoption of the Additional Protocols, Article 25 (ibid., 706).
18
Record,16.
19
See, e.g., the military manuals of Argentina (ibid., 574), Australia (ibid., 575), Belgium
(ibid., 576), Benin (ibid., 577), Cameroon (ibid., 578), Canada (ibid., 579), Colombia
(ibid., 580), Croatia (ibid., 581582), Dominican Republic (ibid., 583), Ecuador (ibid.,
584),France (ibid., 585586), Germany (ibid., 587), Hungary (ibid., 588), Indonesia
(ibid., 589), Israel (ibid., 590), Italy (ibid., 591592), Kenya (ibid., 593), South Korea
(ibid., 594), Madagascar (ibid., 595), Netherlands (ibid., 596), New Zealand (ibid., 597),
Russia(ibid., 598), South Africa (ibid., 599), Spain (ibid., 600), Sweden (ibid., 601), Togo
(ibid., 602), United Kingdom (ibid., 603) and United States (ibid., 604606).
20
Direct participation in hostilities: Questions and Answers. International Committee of the Red
Cross 02-06-2009 FAQ.
21
Prosecutor v. Blaskic, Judgment, Case No. ICTY-IT-95-14-T, 179.
Page 16 of 23
 Here, the attempt to rob the Lannister truck by local Ombrians was a usual scenario22
which enabled the TAF to foresee that the same thing would happen upon the setting off of the
said trucks on 10 November 2014. Despite this knowledge, General Vande still directed the leader
of the task force to protect the convoy with all necessary means 23. General Vande also exhibited
recklessness in issuing an unqualified command by ordering the employment of all necessary
means to protect the convoy.24

D. General Vande was aware of factual circumstances that established the existence of armed
conflict

General Vande was well aware of the existence of armed conflict, being the Chief of the
Defence Staff and the highest- ranking and senior- most military officer in the TAF.25 As early as
30 August 2014, General Vande declared in front of the cameras of his intention to destroy the
FKA and to eliminate all persons equally associated with the FKA.26

III. General Vande is liable for the war crime of rape on the basis of command
responsibility

A. TAF soldiers committed the war crime of rape

1. Actus Reus and Mens Rea

Rape is a physical invasion of a sexual nature, committed against a person under

circumstances which are coercive.27 Record shows that since the deployment of the TAF to

22
Record, 16.
23
Ibid.
24
Ibid.
25
Ibid, 4.
26
Ibid, 12.
27
Prosecutor v. Akayesu, Trial Judgment, 2September1998, Case No. IT-96-23&23/1, 59.
Page 17 of 23
 Kouka in March 2014, the youngest and weakest soldiers were regularly raped by
higher-ranking TAF soldiers and some senior soldiers returning from the battle until
December 2015. The war crime was substantiated based on direct interviews of the victims
and witnesses.28
Existence of intent and knowledge can be inferred from all relevant facts and
circumstances. The TAF higher-ranking officers acted with intent and knowledge as
evidenced by the fact that the commission of the crime was done repeatedly. 29 The rate of
recurrence of the criminal act reveals the TAF higher-ranking officers intention to engage in
the criminal conduct.

2. The war crime of rape extends to cover combatants in the same armed forces

All parties to the conflict should, as a minimum, grant humane treatment to their own
armed forces.30 The chapeau of Article 8(2)(e) enumerates the crimes therein as being other
serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law. The fact that
the war crime of rape was committed by persons within the TAF should not be a reason to
deny the victims protection under the law of armed conflict.31
To limit the protection against rape by excluding members of the same armed group from
its coverage, would run counter to the spirit of international humanitarian law, which aims to
mitigate the suffering resulting from armed conflict, without banning belligerents from using
armed force against each other or undermining their ability to carry out effective military
operations.

B. General Vande bears command responsibility under Article 28 of Rome Statute

28
Record, 18.
29
Record, 18.
30
Common Article 3 of the Geneva Conventions, Protocol II to the Geneva Convention
31
Prosecutor v. Ntaganda, Confirmation of Charges, 9June2014, Case No. ICC-01/04-02/06.
Page 18 of 23
 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 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 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.32

1) General Vande is a military commander having effective command and control over
the TAF soldiers who committed the war crime of rape

Military commander refers to a category of persons who are formally or legally appointed
to carry out a military commanding function. 33 Being the highest-ranking and senior-most
military officer of the TAF, General Vande had broad formal powers on the use of force and
command of all military operations by the TAF. 34 Furthermore, he had direct lines of
communication to commanders in the field and both could, and did, issue operational orders.35
Accordingly, he is beyond reasonable doubt to have effectively acted as a military commander.
Command responsibility is predicated on a superiors power to control acts of his
subordinates.36 Indications of effective authority and control include: a) the official position of
the perpetrator; b) power to give orders; c) capacity to ensure compliance; and d) capacity to order

32
Article 28(a), ICC Rome of Statute.
33
Bemba, 408.
34
Record, 4.
35
Record, 16.
36
Prosecutor v. Hadzihasanovic and Kubura, Trial Judgment, 15March2006, Case no. IT-01-47-T,
80, 795.

Page 19 of 23
forces under his command to engage in hostilities.37 The military position of General Vande
enabled him to give orders and exact mandatory compliance from his subordinates.

2) General Vande failed to exercise proper control over the TAF which resulted to the
commission of the war crime of rape
A military commander is criminally responsible for the crimes committed by his subordinates
as a result of his failure to exercise proper control over such forces.38 General Vande has an
affirmative duty to act within and enforce the laws of war.39 Though he was in material position,
he failed to ensure that violations of IHL were prevented.40

3) General Vande, owing to the circumstances at the time, should have known that TAF
soldiers were committing the crime of rape

The should have known standard, is a form of negligence41, satisfied by the failure of the
commander to acquire knowledge of his subordinates illegal conduct42. It requires an active duty
on the part of the superior to take the necessary measures to secure knowledge of the conduct of
his troops 43 and to inquire, regardless of the availability of information at the time of the
commission of the crime.44

37
Bemba, 417.
38
Bemba, 419.
39
Prosecutor v. Delalic, Trial Judgment, 16November1998, Case No. IT-96-21-T, 721.
40
Record, 18.
41
Bemba, 429.
42
Bemba, 432.
43
Prosecutor v. Kayishema and Ruzindana, Trial Judgment, 21May1999, Case No. ICTR-95-1-T,
227.
44
Sliedregt, supra notw 28, at 186; Summary Record of the 7 sf Meeting of the Committee of the
Whole, UN Doc. A/CONF. 183/C.1/SR.1, 67-82.

Page 20 of 23
 General Vande is duty bound to initiate measures to secure reports that military actions were
carried out in accordance with international law.45 Reports broadcasted to the public regarding the
occurrence of the crime from Human Rights Watch and international media were left unheeded.46
General Vande cannot implore the defence of ignorance where the absence of his knowledge is the
result of negligence in the discharge of his duties.47
General Vandes verbatim response to an interview of the Guardian48 is already a sufficient
manifestation that indeed he was aware of the cases of rape within his troops but chose to
disregard the same.

4) General Vande failed to prevent or repress the commission of the war crimes or submit
the matter to competent authorities for investigation and prosecution

A commander is liable under 28(a) of the Rome Statute for failing to take measures within
his material possibility and the assessment depends on the superiors degree of effective control
over his forces at the time his duty arises.49 This duty required General Vande to take active steps
in order to ensure that perpetrators are brought to justice50 and must not go unpunished51. He
never did. His dismissive response to an interview of The Guardian was a blanket condonation of
the acts of his troops.

IV. General Vande is criminally liable in ordering the displacement of the Ombrians

A. General Vande ordered the displacement of Ombrian Civilians

45
Prosecutor v. Strugar, Trial Judgment, 31January2005, Case No. IT-01-42-T, 374.
46
Record, 18.
47
Bemba, 43-S6.
48
Record, 18.
49
Bemba, 443.
50
Bemba, 442.
51
Rome Statute, Preamble, 4.
Page 21 of 23
 Within Operation Blanc, there was an explicit order by General Vande that anyone who did
not attend Boubha religious classes three times a day would be imprisoned after the fifth day of
missing the class. The displaced victims had no genuine choice to remain or leave. They are
imprisoned for not attending Boubha religious classes when they did not have the time to attend
because they had to work long hours.52
By General Vandes Order, more than 80,000 Ombrians in the TAF- controlled municipalities
in Kouka were detained close to the Toukanov-Hakova border, all of which were located more
than 200 km away from the municipalities recently regained by the TAF, by reason of their
religion. The others, for fear of detention, fled to other areas.53 The term displacement under the
APII and ICC Statute makes no distinction between civilians who have fled beyond the territories
of the state or remain within it, classifying the abovementioned scenario to be a form of
displacement.

B. The order of General Vande was neither justified by the security of the local Ombrians
nor by military necessity

The act is not justified by the security of the civilians involved or imperative military reasons
since the civilians involved were displaced on the sole purpose of forcing them to convert to the
Boubha religion.54

C. General Vande, as the Minister of Defence, effected the displacement of local Ombrians
by implementing Operation Blanc

There was displacement of civilians as a result of General Vandes order to imprison those
who did not attend the Boubha religious classes, by virtue of the authority vested on him by the

52
Record, 21.
53
Ibid.
54
Ibid.
Page 22 of 23
martial law.55 The authority would cover both de jure and de facto authority to carry out the
order.56

D. General Vande was aware of the Armed Conflict between the FKA and the Toukanovan
Government
General Vande under the Toukanovan law, as the Chief of the Defence Staff is the highest-
ranking and senior-most military officer in the TAF.57 General Vande announced himself that
Operation Blanc was his strategy to regain territories previously occupied by the FKA. 58

PRAYER FOR RELIEF

The Prosecution respectfully requests this Honourable Court to confirm

the charges against General Vande.

Respectfully Submitted,

Agents for the Prosecutor

55
Ibid.
56
Henckaerts, Jean-Marie and Doswald-Beck, Louise. Customary International Humanitarian
Law Volume I: Rules. Cambridge, International Committee of the Red Cross.
57
Record, 4.
58
Record, 20.
Page 23 of 23