Argumentation in International Humanitarian Law - Case Study Example

Prosecutor's Argument Guru X and Tutu violated the International Humanitarian Law and the Rome Statute. Particularly, the leader of the Black Panthers committed war crimes which fall under the purview of Article 8 of the Rome Statute in relation to Article 3 of the same Statute and which are common to the four Geneva Conventions of 12 August 1949. Specifically, they are any of the acts done against persons who are not a party in the hostilities. This includes members of armed forces who have surrendered or considered as hors de combat by physical infirmity, wounds, detention or any other cause: " (i) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;" The act of Guru X in giving orders to Tutu to kill the two civilian guards fall within the meaning of War Crime under paragraph (e) Article 8 of the Statute of Rome to wit: "(e)Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;" (emphasis supplied) It is clear that the fighting in Ruritania may not be considered as conflicts of an international character. However, the facts of the case clearly states that the element of the crime as defined above is satisfied. The civilian guards did not take part in any hostilities such that they fall within the ambit of the above-mentioned provision. Moreover, Guru X by directing Tutu to recruit child below fifteen years of age had violated the same provision particularly: " (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;" It is worthy to note the Report of the Preparatory Committee on the establishment of an International Criminal Court on the Draft Statute for the International Criminal Court, addendum 1, UN Doc. /CONF.183/2/Add.1, p. 21. The employment of children to support the front line, or activities at the front line itself, would be included within the said provision. In the instant case, Samba (13 yrs) and Yade (14 yrs) were chosen as personal bodyguards of Guru X because they are the strongest 'junior Panthers. This act clearly violates the above-stated provision. In the case of Prosecutor v. Lubanga, Decision on the confirmation of charges, 29 January 2007 the ICC pronounced that Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) are applicable even if children are employed to safeguard the physical safety of military commanders (Par. 263). It might be argued that the recruitment taken by the Black Panthers is not covered under the purview of conscription and enlistment. In this regard, the disquisition in the same case is illuminating thus: "The Rome Statute prefers the terms "conscripting" and "enlisting" to "recruitment". In light of the foregoing, the Chamber holds the view that "conscripting" and "enlisting" are two forms of recruitment, "conscripting" being forcible recruitment, while "enlisting" pertains more to voluntary recruitment. It follows therefore that enlisting is a "voluntary" act, whilst conscripting is forcible recruitment. In other words, the child's consent is not a valid defence." (par 246-247). Hence, whether or not the enticement of the children to join the Black Panthers was done through force or by the voluntary acts of the former, the same is prohibited by the Statute. Although the plan of Guru X to forcibly compel the captured prisoners of the Black Panthers to join them were not followed by his second in command-Tutu, the setting up of recruitment centers in safe places within Ruritania, taking into account the fact that the Black Panthers did not even bother to ascertain the ages of the recruits, clearly violated the Statute, even though the conflict in the country is not international in character. Looking now into the individual liability of the offenders, Guru X has the command responsibility, under customary international law, to answer for any acts committed by his subordinates. In the case of Prosecutor v. Blaki (par 306) the Appeals Chamber of the International Criminal Court (ICC for brevity) ruled that Art. 7(1) of the Statute requires that in the event a person orders an act or omission with the consciousness of the increased probability that an offense will be committed in the carrying out of that command, has the responsibility for the consequence of such order because there is always a possibility that violations could occur" (par. 41). In the given case, there is the mens rea in the mind of Guru X when he, at the point of a gun to Tutu, ordered the execution of the two civilian guards. This is clearly a war crime of murder prohibited by the Statute. On the other hand, Tutu cannot escape liability by invoking duress; that he was forced to perform the act to save his own life. Erdemovic is the seminal case wherein the ICC rejected the defense of duress in war crimes. It cannot be gainsaid that Tutu acted as subordinate and in the performance of his duty as a member of the Black Panthers. In sum, Guru X and Tutu's acts indubitably show that several violations of the Statute have been violated and they should be held to answer therefor. Defense' Argument The charges of the prosecution are bereft of support in fact and in law. The following refutations are advanced for the defense of Guru X and Tutu to wit: The ICC has no jurisdiction to take cognizance of the case since the conflict is not within the purview of the Statute of Rome. Hence, any act committed in the furtherance of the Black Panther's cause is exclusively within the domestic jurisdiction of the Ruritania. Assuming but not admitting that ICC may properly take cognizance of the case, the individual liability of Guru X and Tutu chargd by the prosecution must perforce fail. Jurisdiction of the Court in relation to the crime. It is clear that the incident of the killing of the two civilian guards took place in Ruritania. Hence, it is the courts of justice of Ruritania which should hear the case, especially that there were no communications from Ruritania that local forum's court deferred to the jurisdiction of ICC. Moreover, the compelling fact that the two guards went out of their line of duty to follow the two children militates against the jurisdiction of the latter Court. Granting but not conceding that indeed, the Black Panthers were the ones who executed the two civilian guards, they were only acting in the defense of the integrity of their camp at that time, considering that the guards were also armed. Hence, this cannot amount to war crimes as punished under the statute. This cannot be altogether be compared with other jurisprudence of the ICC which involved wholesale execution of innocent civilians. To reiterate, the two guards were armed. The war crime of murder as advanced by the prosecution is untenable as there were no mens reum in the minds of the defendants at that time. As to the conscription and enlistment of children as prohibited by the Statute, the facts show that the children were all employed as couriers of food and logistics from one camp to another. This is clearly not punishable under the Statute as explained in the case of Prosecutor v. Lubanga (par 262) to wit: "In this respect, the Chamber considers that this article does not apply if the activity in question is clearly unrelated to hostilities. Accordingly, this article does not apply to food deliveries to an airbase or the use of domestic staff in married officers' quarters. (emphasis) With reference to the two children, Yabe and Samba, it is equivocal that they are being used as bodyguards. If they were indeed employed as bodyguards of Guru X, they should have been tagged along when Guru X and Tutu went to the mines. Ergo, the acts advanced by the prosecution are not war crimes as defined by the Statute of ICC. Individual Liability While it is true that under international law, there is the principle of Command Responsibility. However, this principle is inapplicable to the instant case. As previously stated, the two civilian guards went out of their tour of duty when they followed the two children to the place where the Black Panthers were camped at that time. This would be presumed that they were in uniform and armed. As the situation in Ruritania is volatile such that anyone who is armed and may not be properly identified, it is but natural for the Black Panthers to protect the integrity of their camp. The latter is fighting for a political ideology adverse to that of the constituted government, hence, any armed person who draws near their presence must prepare for any violent attack. This is what happened in this case. As to the liability of Tutu, it cannot be gainsaid that he acted under duress when he allegedly shot the two civilian guards. He at that time thought, with a gun in his head being held by Guru X, that the two guards would be killed anyway, by the other Black Panthers who are apprehensive of their presence. The dissenting opinion of Judge Cassese in the Erdemovic case is worth mentioning to wit: "Were he to comply with his legal duty not to shoot innocent persons, he would forfeit his life for no benefit to anyone and no effect whatsoever apart from setting a heroic example for mankind (which the law cannot demand him to set): his sacrifice of his own life would be to no avail. In this case the evil threatened (the menace to his life and his subsequent death) would be greater than the remedy (his refraining from committing the crime, i.e., from participating in the execution)" (par. 44). In this case, the prosecution cannot argue that the two guards can be considered as innocent civilians. Although the ICC ruled that duress is not a defence in war crimes, that ruling in this case is inapplicable. For one, it is maintained that the subject acts are not within the definition of war crimes prohibited under the Statute. Assuming that it can be, the facts of Erdemovic involved multitude of civilians who were ruthlessly massacred in Bosnia. Surely, this incident in Ruritania is a mere fraction of the events which took place in the former Republic of Yoguslavia. The liability with regard to conscription and enlistment of children cannot be proven in this case. Guru X did not plan to enlist children to take part in active hostilities in the conflict in Ruritania. The children were merely employed as help to carry food and logistics between camps. This employment is not punishable under the Statute. To recapitulate, the ICC has no jurisdiction because there is no war crime to speak of which would fall under the purview of the Statute. The acts that were allegedly committed by Guru X and Tutu are not punishable under the same Statute. Works Cited Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, http://www.icrc.org/ihl.nsf/FULL/380OpenDocument, 1 Dec. 2007 Prosecutor v. Blaki, ICC Case No.:IT-95-14-A Date: 29 July 2004, http://www.un.org/icty/blaskic/appeal/judgement/index.htm, 1 Dec. 2007 Prosecutor v. Drazen Erdemovic, ICTY (Appeals Chamber), Judgment of October 7, 1997, http://www.un.org/icty/erdemovic/appeal/judgement/erd-aj971007e.htm, 1 Dec. 2007 Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Document Containing the Charges, Article 61(3)(a), August 28, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-356-Anx2_English.pdf., 1 Dec. 2007 Rome Statute, www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf, 1 Dec. 2007 Read More