Command Responsibility - Report Example

Introduction

The purpose of this memo is to find out if Eehin, in the context ICC conducted the said crimes, if being a citizen provides him with the immunity to be prosecuted in international criminal court and if the charges are even admissible or not.

Issues

Eehin served in the Majora army, is a mercenary which makes him liable and to be prosecuted in the international criminal court.

Criminal liability

Superior Responsibility

The Roman Statute, Article 28 and the article 7 of ICTY Statute provides superior liability. Both these articles recognize Command responsibility, ability to prevent and avoid criminal situations, subordinates and a control over them and a responsible authoritative position for the punishment of criminals as elements of superior liability Superior liability is also defined and established under the same elements by the International Customary Law and it is supposed to be applicable and implied on armed conflicts internationally and within a country.

Whenever criminal actions of subordinates are allowed and justified by their superior authorities knowing that these actions are criminal and what their consequences would be, they come under the term of criminally responsible for these actions.

According to Eeh, he was following orders given by his superiors and that is command responsibility he pleads for. Command responsibility according to Nuremberg Principal IV should not be considered as an argument from defense but this argument might affect court’s decision and a decrease in punishment could be expected. The international Law considers the one at authoritative seat more responsible for war crimes and actions against humanity since the subordinates are supposed to follow orders and complete tasks assigned to them. This brings Eeh under either conditional or absolute liability. Eeh could plead for conditional liability and use command responsibility as a defense if he knew that orders he was given were illegal. In case of absolute liability, command responsibility cannot be used as a defensive argument but can lead to a shorter sentence. In Eeh’s case, He comes under absolute liability and conditional liability could not be applied to him

No one is to be given immunity, everyone who commits a war crime should be prosecuted even if he or she was acting under superior order as stated by Principle 1 of International Law Commission. Whereas if we study Principle IV, it clearly states that one does not gets rid of responsibility if they were given a choice to either obey the given orders or not to do so. Also, when a crime against humanity and genocide is to be considered, the perpetrator/criminal/convict should know the consequences the actions they are going to do and should be aware of the fact that their actions can contribute directly or indirectly to genocide.

Military operation in the light of or explained as self-defense cannot be justified as explained by the ICTY in prosecutor vs. Kordic % Cerkez. The international tribunal mentioned explicitly that whenever a military operation disguised as self-defense is to be justified, the tribunal must be satisfied with proof of imminent or relative threat which brought about that operation.

Co-perpetrators

Eeh in this case should be prosecuted as a co perpetrator since being a part and veteran of a different nation’s army, he worked and cooperated with a different organization bring about genocide and crimes against humanity. This can also be explained under the light of Article 7 (1) of Statute of ICTY which defines criminal responsibility as: act of commission of a crime and making that crime possible renders a person criminally responsible. When there is an involvement of many people in committing a crime, they can be prosecuted in a joint criminal enterprise. The statute of Rome Article 25 (3) (c) in the paragraph (d) states that co perpetrators are group of people acting with the same intention and aim and all the people in the group know about and aware of the consequences of their actions which was illustrated in a very similar case in 2005 Prosecutor vs Fatmir. This makes Eeh a co perpetrator since He was working with the government of Majora with a same aim of genocide and He was aware of his illegal actions.

Individual criminal liability

The court provides the judge of an international tribunal or a commission to summon witnesses if required. Also, the United Nation’s Security Council has the authority and mandate by the members of UN to form a court if required. The court can be formed and has jurisdiction over the sovereign states of the UN. The court established by the Security Council has power and authority to overrule the decisions and ruling of the highest court of the country it has jurisdiction over.

Eeh in this case is liable to appear before the international tribunal since he is an individual and he acted of his own will as well as within his individual capacities. This can be proved under the examples of Prosecutor vs Tihomir in 1997. The two cases of Eeh and Tihomir are completely different but can be seen running parallel to each other when the decision of summoning a witness or a convict in an international court is to be understood. The charges on Eeh in New York are disregarded when it comes to summoning Eeh in the ICC for judicial proceedings under the light of given example. If there are any problems from the courts in New York, it should be understood that these two cases can be tried at the same time in New York’s court and at the court formed by ICC.

The ICC also has the authority to issue the arrest warrant of an individual if he or she fails to appear in a proceeding. Roman Statute, Article 58 provides the prosecutor with the authority to issue an arrest warrant in two situations: 1) the prosecutor has enough evidence that the person to be arrested has committed an international crime and the evidence presented is enough to prove him guilty, 2) the prosecutor had firm belief that arresting the person should help averting a crime i.e. the person to be arrested is planning genocide or crime against humanity arrest is necessary to save him from doing it. The first reason is applied in the case Eeh where enough evidence is available that he is responsible for the genocide in Minoropolis where as another crime can be averted since Eeh has attacked his wife once due to PTSD. Arresting Eeh can save his wife from being attacked and we can say that both the situations apply to Eeh’s situation.

Defenses

The defense arguments valid in an international criminal court are provided by many statutes including the article 31-33 of the Roman Statue, the internal criminal court itself and the international military tribunal of Nuremberg. Study of international law, general principles of law, the special court of Sierra Leone and the ad hoc criminal court of Rwanda provides us with the defense arguments of use in this case (Darcy 17).

When it comes differentiate between an excuse and a justification, we get to see that different criminal law systems throughout the world have made distinctions between them. For example, self-defense is a justification and is coded in most of the international criminal laws and constitutions. Duress on the other hand cannot be used as and cannot be used as a justification and is rather an excuse with the only exception of a scenario when a person is given only to choose between to crimes and no other option is given to him. (Elies 3).

Self-defense on the other hand relieves a person from criminal responsibility and is considered a justification only in a case when the person has a sole intention of defending himself from harm. There was a threat to the life of that person or he would have suffered harm if he did not do what deemed necessary. Use of military, armed conflict and that of force is justified in the cases of self-defense (Heim 168).

Duress is an action or crime committed to avoid harm to one’s self. Harm could be life threatening injury brought about by the opponent if the crime is not committed or to influence the person in committing the crime. Duress was rejected as a justification by ICTY in Erdemovi case since crimes against humanity were committed in that scenario. If duress was to be accepted as a justification in that case, the criminal could have gotten an opportunity to justify his/her actions and crimes against humanity gone unpunished. This would not have set a good precedent for other cases to follow (Krebs 405). For someone to be choosing duress as a justification, he should first prove that he was given no other opportunity but to either commit the crime or harm himself or someone else which is also a crime in any law system. Hence duress in this case is not a justification but mitigation (Heim 170).

Conclusion

Articles of Rome Statute, the ICC have both combined and explained international crimes, crimes against humanity and that committed against humanity. The explanation has been coherent and explicit and the punishments described in detailed in the aforementioned article. Also, the defense arguments are coded in the article 31 and the article provides defense against war crimes, crimes against humanity and genocide. The ICC has jurisdiction over the countries throughout the world and not limited by any statue. It has the jurisdiction to uphold criminal liability of any individual.

Work cited

Heim, Sarah J. "Applicability of the Duress Defense to the Killing of Innocent Persons by Civilians, The." Cornell Int'l LJ.( 2013): 165.Print.

Elies van Sliedregt.”Individual Criminal Responsibility in International Law”.Oxford. (2012).Print.

Paola Gaeta, “The defence of superior orders: The Statute of the International Criminal Court versus customary international law”, European Journal of International Law.10(1999): 172. Print.

Bouchet-Saulnier, F., Brav, L., & Michel, C.The Practical Guide to Humanitarian Law, Lanham, Maryland :Rowman& Littlefield.(2014).Print.

Greppi, Edoardo. "The evolution of individual criminal responsibility under international law."Revue Internationale de la Croix-Rouge/International Review of the Red Cross (1999): 531-553.Print.

Darcy, Shane. "Defenses to international crimes."Routledge.(2011).Print.

Prosecutor v. Dario Kordic, Mario Cerkez (Trial Judgement), IT-95-14/2-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 26 February 2001, available at: http://www.refworld.org/docid/41483e9be.html [accessed 15 December 2014].Print.

Horton, John. “E-learning by design.”Journal of theories of learning 5. 1 (2010): 101-120. Print.

Beatrice, Krebs. “Justification and Excuse in Article 31(1) of the Rome Statute”, Cambridge Journal of International and Comparative Law2 .3 (2013): 382–410.Print.