Beruflich Dokumente
Kultur Dokumente
The Prosecutor
... Prosecution
v.
Kivuos Luhar, et al
Defendant
TABLE OF CONTENTS
TABLE OF CONTENTS... 1
INDEX OF AUTHORITIES. 2
LIST OF ABBREVIATIONS.7
STATEMENT OF JURISDICTION. 8
STATEMENT OF ISSUES... 9
STATEMENT OF FACTS................ 10
SUMMARY OF PLEADINGS. 12
PLEADINGS... 14
PRAYER.
39
INDEX OF AUTHORITIES
CASES
1. Prosecutor v. Strugar, Case No. IT- 01-42-T (ICTY Trial Chamber-II, January 31, 2005).
2. Fritzsche, IMT Judgment, 22 The Trial of German Major War Criminals: Proceedings
of the International Military Tribunal Sitting at Nuremberg Germany (1946).
3. Government of Israel v. Adolf Eichmann, 36 I.L.R. 5 (D.C. (Jm.) 1961).
4. Prosecutor v. Ahman Harun & Ali Kushyab, Case No. ICC-02/05-01/07 (Decision on the
Prosecution
21. Prosecutor v. Seromba, Case No. ICTR-2001-66-I (ICTR Trial Chamber-I, December
13, 2006).
22. Prosecutor v. Staki, Case No. IT-97-24-T (ICTY Trial Chamber-II, July 31, 2003).
23. Prosecutor v. Tadic, IT-94-1-AR72 (Decision on the Defense Motion for Interlocutory
Appeal on Jurisdiction, 2 October 1995).
24. Prosecutor v. Vasiljevi, Case No. IT-98-32-A (ICTY Appeals Chamber, February 25,
2004).
25. Prosecutor v. Zejnil Delali et al., Case No. IT-96-21-A (ICTY Appeals Chamber,
February 20, 2001).
26. Prosecutor v. Duko Sikirica et al, Case No .IT-95-8-1(Judgment on Defense Motions to
Acquit).
27. Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 ( Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Jean-Pierre Bemba Gombo, 15 June 2009).
28. Prosecutor v. Katanga et al., Case No. ICC-01/04-01/07.
29. Prosecutor v. Naletilic et al., Case No. IT-98-34-T (31 March 2003).
30. Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-125 (Decision
on the Prosecutions Application for a Warrant of Arrest against Omar Hassan Ahmed
Al Bashir, 4 March 2009).
SHORT WORKS
1. FATOU BENSOUDA, Gender and Sexual Violence Under the Rome Statute, in From
Human Rights to International Criminal Law: Studies in Honour Of An African Jurist,
The Late Judge Laty Kama, 401-417 (Emmanuel Decaux et. al. (eds.), Leiden/Boston,
2007).
2. M.H. ARSANJANI, Reflections on the Jurisdiction and trigger mechanisms of the
International Criminal Court, in: Reflections on the International Criminal Court:
Essays in The Honour of Adriaan Bos (H.von Hebel et al. (eds.), TMC Asser Press,
The Hague, 1999).
3. VELERIE OOSTERVELD AND CHARLES GARRAWAY, The Elements of Genocide, in The
International Criminal Court: Element of Crime and Rules of Procedure and Evidence
(Roy Lee et al. (eds.), New York, 2001).
TREATIES
1. Convention on Prevention and Punishment of the Crime of Genocide, (1948) 78
U.N.T.S 277.
STATUTES
1. International Criminal Court, Elements of Crime, 2011.
2. Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955
(1994).
3. Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc.
S/RES/827 (1993).
4. The Rome Statute, 2002.
INTERNET SOURCES
1. http://www.hiil.org
2. http://www.icc-cpi.int
3. http://www.iccnow.org
4. http://www.icty.org
5. http://www.ilsa.org
6. http://www.ssrn.com
7. http://www.un.org
8. http://www.unictr.org
9. http://www.westlawinternational.com
LIST OF ABBREVIATIONS
Art.
Article
G.S.C.
Honble.
Honourable
I.C.C.
I.C.T.R.
I.C.T.Y.
I.L.C.
Mr.
Mister
O.T.P.
S.A.F.
S.C.
Security Council
Sec.
Section
Statute
Rome Statute
U.N.
United Nations
Vol.
Volume
Z.L.F.
STATEMENT OF JURISDICTION
It is hereinafter most respectfully submitted that the Prosecutor of this International Criminal
Court has the jurisdiction to exercise this petition under Article 13(b) of the Rome Statute of
the International Criminal Court, 2004. Article 13(b) of the Statute states as follows The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in
accordance with the provisions of this Statute if:
[]
(b) A situation in which one or more of such crimes appears to have been committed is referred
to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United
Nations.
STATEMENT OF ISSUES
ISSUE 1: WHETHER THE HONBLE COURT HAS JURISDICTION TO HEAR THE MATTER
WHETHER THE MATTER IS ADMISSIBLE BEFORE THE COURT?
AND
STATEMENT OF FACTS
1. Pangaea is the largest continent comprising of over 80 States. On 26 January, 2000 the
Xaroian Empire broke into three independent countries Zogmai, Sonada and Tukhda. The
Xaroian influence led to the introduction of democracy in the three Pangaean nations.
2. In 2004, Sonada witnessed a revolution. The army stepped in and took over the operations
of the Government. On the other hand, Tukhda witnessed three successive inconsistent
coalition governments only to witness the same fate as Sonada. The army took over the
governance of Tukhda in 2007 and it appointed a 15-member Revolutionary Council headed
by the Army Chief.
3. Kehsihba Mavihs, was a Xaroian Leader and was elected as the Prime Minister of Zogmai
in the 2013 elections. He passed an ordinance to nationalize all mining activities in the
country. However, the President of the country, Kivuos Luhar, acting in contravention to
the provisions laid down in the Constitution rejected the request of the Cabinet. This led to
separate factions of supporters for both the President and the Prime Minister. The state of
affairs in Zogmai begin to retrograde. The Bawlis led by Luhar got utmost support of the
neighbouring radical Bawli Leaders. The Prime Minister of Sonada, General Raknahj
Atimorap, assisted the Bawli group of Zogmai by sneaking in arms, ammunitions and troops
in civilian clothes.
4. On 25th day of August, 2014, Kehsihba Mavihs died when his car was ambuscaded. The
Pro-Mavihs Xaroians believed that this was executed by the Pro-Luhar militants who had
crossed the borders of Tukhda. A national emergency was proclaimed by the President, who
appointed General Radam Idnar as the chief of the Zogmain armed forces by Luhar. He was
authorised to take all the necessary actions required to suppress the civil war and extirpate
all the pro-Mavihs militancy by the official order of 28th August, 2014.
5. Nayas Mavihs stepped into the shoes of the late Kehsihba Mavihs and took over the
leadership of the Pro-Mavihs insurgents. He raided the cluster of nine villages in Chumta.
The tribes of Chumta were believed to be the firm supporters of the President. The entire
population of 15000 including women and children were beheaded. Even the UNESCO
protected ancient Bawli temples were completely ruined.
6. Under the command of General Idnar, the SAF were led by Lt. General Tyrion Pega and
partners of the GSC to mount an attack on the Xaroian villages of the Pekka region. Nayas
10
Mavihs, along with 150 of his supporters, somehow, managed to flee. A regiment of SAF
led by Col. John Bolton, a partner in GSC, traced them down and killed them.
7. By the end of December, 2014, the civil war had taken away the lives of over a million in
Zogmai. The majority of the victims were the Xaroians. Young Xaro boys were forced to
convert and join the SAF. Xaro girls were kidnapped and were forced to cohabit with them
so that they would bear Bawli children. Brutality crossed its limits as in some cases, the
Xaroian children were forced to mutilate and murder their family members. Any hesitation
would lead to death.
8. Acting under Article 99 of the UN Charter, the Secretary-General convened an emergency
meeting of the Security Council. On the very first day of March, 2015, the Security Council
finally acting under Chapter VII of the Charter, Resolution 1540, declared that a civil war
existed in Zogmai and that; there have been commission of acts of genocide and crimes
against humanity. All the parties to the conflict were commanded to abstain from any such
atrocities. Further, a UN Peacekeeping Force for Zogmai (UNPFZ) was delegated to restore
peace and security.
9. The Prosecutor of the International Criminal Court (ICC) carried out the investigation of the
case in consonance with the Pre-Trial Chamber proceedings. Meanwhile, the Apex Court of
Zogmai has been moved for a writ of mandamus by the Accused persons. A joint trial of all
the Accused persons is scheduled to commence at The Hague from 26th February, 2016.
11
SUMMARY OF PLEADINGS
transferred children to other group. Hence they are liable for committing genocide under
Article 6 of the Rome Statute.
13
PLEADINGS
The International Criminal Court has jurisdiction to try the present matter as per
Articles 5, 11, 12 and 13 of the Rome Statute. The case is also admissible before the
Court as per provisions of Article 17 of the Rome Statute of the ICC.
OTTO TRIFFTERER, Commentary On the Rome Statute of the International Criminal Court, 548 (Hart Publishing,
2nd edn., 2008).
14
Rome Statute of the International Criminal Court, Article 12, U.N. Doc. A/CONF.183/9 (1998). [hereinafter
Rome Statute]
15
committed by nationals of States that are parties to the Statute, then the Court can
automatically exercise jurisdiction upon those persons, no matter where the offences
were committed.
9. The jurisdiction of the ICC will extend naturally to the State of Zogmai as per Articles
12(1) and 12(2)(a), as the offences are committed on the territory of Zogmai which is a
party to the Rome Statute. The alleged commission of offences punishable by the ICC
have been committed by persons who are nationals of Zogmai in the State of Zogmai.
Hence the ICC has both jurisdiction ratione loci and ratione personae to try this matter.
16
what measures shall be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security. Hence Article 13(b) means to say that a
referral can be made by UNSC to the ICC only and only if it has acted in accordance
with provisions of Chapter VII. Therefore, there must be a situation in a State whose
existence would, according to UNSC, lead to any threat of peace shall be determined
by the Security Council. Such situations then shall be voted upon and a Resolution shall
be passed by the UNSC declaring that such a situation exists.
12. In the present case, there were widespread attacks alleged to be committed by Zogmain
armed forces against the civilians present in the State of Zogmai. During the outbreak
of the civil war, the Bawlis led by Luhar got support from radical Bawli leaders from
neighboring places. The Prime Minister of Sonada, General Raknahj Atimorap assisted
the Bawli group of Zogmai by sneaking in arms and ammunitions and troops in civilian
clothes. The involvement and participation of mutineers from the States of Sonada and
Tukhda in the civil war of Zogmai internationalized the issue. Hence, the UNSC acting
under Article 39 of the Chapter VII of the UN Charter passed Resolution 1540 and
declared that a civil war existed in Zogmai. Pursuant to this, a UN Peackeeping Force
for Zogmai (U.N.F.P.Z.) was also deployed with the intent to restore peace and security.
13. Hence, the UNSC referral to the ICC of the situation in Zogmai is completely justified
and has triggered the jurisdiction of the ICC. Now the ICC can take up the matter and
prosecute the criminals for commission of offences punishable under Article 5 of the
Rome Statute.
17
ICC, the issues complementarity and gravity have to be addressed.4 Article 17 states
that the ICC may not proceed with a case only when the concerned States are
investigating or prosecuting in good faith.5 However, this condition is not met in the
present matter.
1.2.1 ARTICLE 17(1)(A) & (B) ARE NOT APPLICABLE IN THE PRESENT MATTER
15. Article 17 dealing with admissibility issues is the cornerstone of the Rome Statute.
Paragraph 10 of the Preamble and the Article 17(1) state that the ICC established under
this statute shall be complimentary to national criminal jurisdictions, Article 1
reiterates this and Article 17(1) states that a case is inadmissible when it is being
investigated or prosecuted by a state that has jurisdiction over it, or when the case has
already been investigated and the state has decided not to prosecute. In such
circumstances the court may only proceed where the State is unwilling and unable
genuinely to investigate or prosecute the case.6
16. The principle of complementarity contained in article 17 para 1 (a) and/ (b) is one of
the underlying principles of the statute.7The Pre-Trail Chamber 1, has spoken of
complementarity as being the first part of the admissibility test.8The aim of the statute
is not to negate State sovereignty, but provides for inbuilt safeguards to preserve
national interests and judicial integrity on the domestic level.9
17. Before Prosecutor Luis Moreno-Ocampo took over, in July 2003, the Office of the
Prosecutor commissioned an expert study on what it termed complementarity in
practice. Several prominent authorities on international criminal law, both academics
and practitioners, participated in preparing a report.10
Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-8 (Decision on the Prosecutors application for a warrant
of arrest, 10 Feb. 2006), para 29. (Lubanga)
5
Lubanga
6
Rome Statute, Article 17.
7
M.H. ARSANJANI, Reflections on the Jurisdiction and trigger mechanisms of the International Criminal Court,
in: REFLECTIONS ON THE INTERNATIONAL CRIMINAL COURT: ESSAYS IN THE HONOUR OF ADRIAAN BOS 67 (H.von
Hebel et al. (eds.), TMC Asser Press, The Hague, 1999).
8
Lubanga, at para 29.
9
TRIFFTERER, supra note 1 at 606.
10
International Criminal Court Office of the Prosecutor, Informal Expert paper: The principle of
Complementarity in practice, 2003 (March 30, 2009), https://www.icc-cpi.int/iccdocs/doc/doc654724.PDF.
(Informal Expert Paper)
4
18
19
1 said: The first part of the test relates to the national investigations, prosecutions and
trials concerning the case insofar as such case would be admissible only if those States
with jurisdiction over it have remained inactive in relation to that case or are unwilling
or unable, within the meaning of Article 17(1) (a) to (c), 2 and 3 of the Statute 16
21. In the present matter, the State of Zogmai has not initiated any investigation or trial
proceedings against the Accused persons. There has been a complete lack of activity on
the behalf of the judicial system of Zogmai. The State of Zogmai is under the veil of a
National Emergency, which leaves little room for the Judiciary to undertake any form
of investigation or Trial. Further, by December 2014, the lives of several Zogmai
citizens, a majority of which were Xaroians, were lost. The declaration of a civil war by
the United Nations Security Council was made in March 2014 and investigation by the
Office of the Prosecutor was commenced soon thereafter. During this period, there were
no initiatives undertaken by the State of Zogmai to undertake domestic proceedings or
investigations and the Accused persons were neither detained nor were they arrested.
This shows the complete lack of willingness and ability of the State of Zogmai to
undertake domestic proceedings.
22. Determination of unwillingness must be done in accordance with article 17(2) of the
Rome Statute. Article 17(2) sub paragraph 1, states that if a State is engaging in an
investigation or a Prosecution, but is in fact having a sham proceeding to shield the
person concerned from criminal responsibility for crimes within the jurisdiction of the
Court, such a matter shall be admissible.17 Further, if the ICC determines that the
proceedings were not or are not being conducted independently or impartially and are
in fact being conducted in a manner, which is in the circumstances, is inconsistent with
an intent to bring the person to justice the case will be admissible.18The filing of a writ
of mandamus before the Apex Court of Zogmai, by the Accused persons, is only an
attempt to shield the accused persons from a Trial at the ICC. It is merely a ploy to delay
the proceedings, which clearly indicates a violation of due process as required in Article
17(2), making the matter admissible before the ICC.
23. In addition, the act of the Apex Court, by appointing a law officer to as an amicus curia,
during the proceedings at The Hague, demonstrates the assent of the Court in conducting
16
20
the proceedings at the ICC. Thus, the overt acts of the Sate of Zogmai, imply the
presence of uncontested admissibility, in accordance with Article 17.
19
20
R. Murphy, Gravity Issues and the International Criminal Court, 17 C.L.F. 281 (2006).
Lubanga, at para 40
21
endangering international peace and security. Thus, the present matter does not fall
under article 17 (1) for being inadmissible due to insufficient gravity.
21
22
29. It is humbly submitted before this Honble Court that, President Kivuos Luhar, Gen.
Radam Idnar, Lt. Gen. Tyrion Pega, Col. John Bolton and Col. D C Keviv are guilty of
committing the offence of genocide under Article 6 of the Rome Statute of the
International Criminal Court.
2.1 THE INGREDIENTS OF GENOCIDE ARE SATISFIED IN THE PRESENT CASE
Genocide constitutes the most aggravated form of crime against humanity.24 Genocide
means any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, 25 as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.
24
WILLIAM SCHABAS, Genocide in International Law, 128 (Cambridge: Cambridge University Press, 2000).
(SCHABAS 2000)
25
Rome Statute, Article 6; See also, Convention on the Prevention and Punishment of Genocide, Article 2, (1951)
78 U.N.T.S. 277.
23
established.26 This was also the stand taken by the International Criminal Court in the
case of Bashir.27
31. It can be seen that President Luhar authorized Gen. Idnar to take all necessary action to
extirpate all the pro-Mavihs militancy by an official order of 28th August 2014. It was
due to this that Zogmain armed forces went onto massacre anyone who would not
support the cause of the President. Apart from this, the SAF was led by Gen Tyrion
Pega and other partners of GSC to mount attack in Xaroian villages. This all clearly
shows that the Zogmain Armed forces had the intention of destroying.
32. Arguendo there is another approach towards the contextual element under Elements of
Crimes, it can be deduced that emphasis is more on the mental element of perpetrators
knowledge rather than that of his intent. This approach is known as the knowledgebased approach.28 The same gained significant approval by the Pre-Trial Chamber I of
the ICC in the Bashir judgment. In its own words, according to this approach, direct
perpetrators and mid-level commanders can be held responsible as principals to the
crimes of genocide even if they act without the dolus specialis/specific intent to destroy
in whole or in part the targeted group. These people will be liable for committing
genocide as long as they are aware that the ultimate purpose of such a campaign is to
destroy in whole or in part the targeted group.29 Likewise, presence as well as
requirement of the same is also mentioned in Article 30 of the Rome Statute.30
33. President Luhar, Gen. Idnar, Lt. Gen. Tyrion Pega, Col. D. C. Keviv, and Col. John
Bolton knew attacks on Xaroian villages and targeting more and more of Xaroians
during the state of civil war would eventually end up in the groups destruction.
24
Therefore, it means that there must be a quantitative threshold. Apart from this, the
words in whole or in part indicate that the perpetrator need not intend to destroy the
entire group but only a substantial part of it.31 Hence genocide is also committed if a
significant part of the group is destroyed. This significant part may consist of persons
of special significance to the group, such as the leadership of the group.32
35. By the end of December 2014, majority of the people amongst the millions who lost
their lives due to this civil war, were Xaroians. This particular group was targeted the
most by the Zogmain Armed forces acting under the command of Gen. Idnar and Lt.
Gen. Tyrion Pega. It can be stated that this amount constituted a substantial part of
the Xaroian group of people.
36. The Appeals Chamber of the International Criminal Tribunal for former Yugoslavia
opined in Krstic that in order for someone to be held guilty for perpetrating the crime
of genocide, he must have intended to destroy a substantial part of the group. It stated
that the determination of when the targeted part is substantial enough to meet the
requirement may involve a number of considerations such as the numeric size of the
targeted group and its prominence within the group. If a specific part of the group is
emblematic of the overall group, or is essential to its survival, that may support a finding
that the part qualifies as substantial.33
31
WILLIAM A. SCHABAS, The International Criminal Court: A Commentary on the Rome Statute 127 (Oxford
University Press, 2010). (SCHABAS).
32
The Prosecutor v. Duko Sikirica et al, IT-95-8-1, Judgment on Defense Motions to Acquit, para.
80.(Sikirica)
33
Krstic, para. 12.
34
UN Doc. A/C.6/SR.128; B. Van Shaack, The Crime of Political Genocide: Repairing the Genocide
Conventions Blind Spot, (1997) 106 Yale LJ 2259.
25
39. Arguendo in Akayesu, the Trial Chamber of the International Criminal Tribunal for
Rwanda stated that, the list is an ejusdem generis list comprising all stable groups,
constituted in a permanent fashion and the membership of which is determined by
birth.35 The Xaroians, though arrived from a different continent i.e. the continent of
Relling to that of Pangea, can be classified as a stable group as in the groups
membership is determined by birth. Only people who are born to them can be classified
as Xaroians.
35
36
Prosecutor v. Akayesu, Case No. ICTR-96-4-T (ICTR Trial Chamber I, September 2, 1998) (Akayesu).
Prosecutor v. Niyitegaka, Case No. ICTR-96-14-A, (9 July 2004), para. 53.(Niyitegaka)
26
Akayesu.
VELERIE OOSTERVELD AND CHARLES GARRAWAY, The Elements of Genocide, in THE INTERNATIONAL
CRIMINAL COURT: ELEMENT OF CRIME AND RULES OF PROCEDURE AND EVIDENCE 41-56 (Roy Lee et al. (eds.),
New York, 2001).
39
Akayesu, para. 502.
38
27
age of 18. The principle of knowledge-based approach finds a place here as it is stated
that the perpetrator knew or should have known that the person or persons so
transferred were under the age of 18.40
47. Young Xaro boys in civil war stricken Zogmai were forced by the Zogmain armed
forces to convert. Due to this, the population of the Xaro group went on to decline
considerably and this led to destruction, in whole or in part, of the Xaro group. All this
happened with the knowledge of the Defendants and under their command in the
present case.
40
28
43
Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993), annex.
Report of the Secretary-General Pursuant to Paragraph 5 of the Security Council Resolution 808 (1993), U.N.
Doc. S/25704 (1993), para. 47.
45
Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex., Article 4.
(Statute of I.C.T.R.)
46
Prosecutor v. Tadic, IT-94-1-AR72 (Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction,
2 October 1995), para. 141.
47
U.N. Doc. A/CONF.183/C.1/SR.3; UN Doc. A/CONF.183/C.1/SR.4; See also SCHABAS, supra note 32 at
147.
44
29
48
30
56
International Criminal Court, Elements of Crime 2011, ICC-ASP/1/3 at 108, U.N. Doc. PCNICC/2000/1/Add.2
(2000), Crimes against Humanity, Introduction, para. 3.(Elements of Crime)
57
Ibid.
58
Katanga, para. 398.
59
Bemba, para. 81.
60
Ibid.
61
Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827 (1993), annex,
Article 5 (Statute of I.C.T.Y.); Statute of the I.C.T.R., Article 3.
31
32
population and that his or her acts or omissions to act were part of it. Therefore the
knowledge part and the perpetrators awareness can be inferred from circumstantial
evidence, such as: position of the accused in the military.71 It has been held that the
knowledge element should not be interpreted in such a way as to mean that the
perpetrator had knowledge of all the characteristics of the attack or all the precise details
of it. But the mental element in this clause shall be satisfied if the perpetrator intended
to further such an attack by his acts or omissions.72 There is no need for the prosecution
to prove that the accused knew about the details of the attack or approved of the context
in which his or her acts occurred.73
62. President Luhar who issued orders and authorized the attacks on the people knew the
consequences of his actions. Gen. Idnar, Lt. Gen. Tyrion Pega, and Col. John Bolton
were all high ranking military commanders and officials who knew of the attack on the
civilian population as well as on other in the State of Zogmai. Through their position
as commanding officers of the Zogmain armed forces and the SAF, they were in full
knowledge of their acts and the consequences of the same. As far as Col. D. C. Keviv
is concerned, he was part of the Government of Tukhda and his government promoted
the acts of the Zogmain Liberation Front who carried on attacks against the Xaroian
strongholds along the borders of Zogmai. Hence he would have the requisite knowledge
that this promotion of the said group would lead to the destruction of the Xaroian group.
63. Apart from the above requirement, there is no need to prove the presence of
discriminatory intent or motive on the part of the perpetrator for the offence of crimes
against humanity except for the crime of persecution. Persecution is the only offence
under this category that needs the prosecution to prove that the perpetrator had a
discriminatory intent or motive against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender.74
71
33
3.2 ACTS
COMMITTED IN
ZOGMAI,
CRIMES
AGAINST
HUMANITY
The accused in the present case have committed various acts of crimes against
humanity and shall be prosecuted and indicted on the following four counts:
3.2.1. COUNT I - MURDER [ART. 7(1) (A)]
64. Murder as a crime against humanity is punishable under Article 7(1) (a) of the Rome
Statute. The formal requirements under this article is that the perpetrator must have
killed one or more persons, as part of a widespread or systematic attack directed against
a civilian population, and that he had the knowledge. A footnote to this provision in the
Elements of Crimes states that the term killed is interchangeable with the term
caused death.75 This could mean that the act of killing a person or persons may not be
intentional but can also be an involuntary homicide.
65. It has been stated already that the Zogmain armed forces under the active command of
the Defendants, committed acts of murder against civilian population mostly
comprising of Xaroians.
75
34
67. The acts of discriminating against the Xaroians in the present case can be seen
explicitly. The Xaros were both physically as well as mentally tortured. In some cases,
the Xaroian children were made to mutilate and murder their own family members.
This involved a lot of physical torture and mental torture to the young Xaroians.
68. The ad hoc tribunals have recognized that the offence of Rape can be included under
the definition of crime against humanity of torture. They stated that sexual violence
necessarily gives rise to severe pain and suffering, whether physical or mental and in
this way justifies its characterization of the act of torture. 79 The Xaro girls were
kidnapped and were made to cohabit with members of the Zogmain armed forces. Most
cases involved sexual violence as well.
3.2.3 COUNT III - RAPE AND OTHER SEXUAL VIOLENCE [ART. 7(1) (G)]
69. Article 7(1) (g) of the Rome Statue deals with the crimes against humanity of rape and
other sexual offences. The term other sexual offences includes sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization and other offences of
comparable gravity. These crimes are mostly gender neutral (with exception of forced
pregnancy) and they have been added in the Rome Statute to address the problems the
victimization of women in times of mass atrocities.80
70. Forced Pregnancy - It is the only offence under the Article 7(1) (g) that has been
defined. The expression forced pregnancy has been defined as the unlawful
confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic
composition of any population or carrying out other grave violations of international
law.81
71. The Xaro girls were kidnapped and were made to cohabit with the members of the
Zogmain armed forces and SAF. This led to acts of rape and other sexual offences being
committed by the armed forces personnel. The Xaro girls were made to bear Bawli
children which amounts to commission of offences of forced pregnancy. This would in
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turn lead to the destruction of the Xaroian population, in whole or in part, leading to
their decline.
4.1. THE ACCUSED ARE INDIVIDUALLY RESPONSIBLE FOR CRIMES COMMITTED UNDER THE
ROME STATUTE
75. Commission of any crime that falls under the jurisdiction shall be punishable as per
Article 25. All the persons who are liable to be prosecuted by the Court, are held
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individually responsible for the crimes perpetrated.86 Liability under Article 25(3)(a) is
referred to as principle and such other liability under Article 25(3) clauses (b), (c) and
(d) are referred to as accessory liability.87
76. The Court not only takes into account the physical perpetrators of the crime but those
who are not present at the scene of the crime, despite them controlling or for being the
mastermind behind the commission of such a crime. This is because they decide as to
whether and how the offence shall be committed.88 Hence the Court can hold those who
physically commit the crime, those who control the will of physical actors and those
who control the offence.89
77. Ordering, soliciting or inducing as per Article 25(3)(b) has been held to be an act of a
person having authority, who uses it to convince another to commit an offence.90 Such
ordering of the commission is closely related to command or superior responsibility,
except for the fact that there need not be any proof of an actual order been given. 91 In
case of Article 25(3)(b), the commanders mens rea is important rather than that of the
subordinate.92 Aiding may refer to some form of physical assistance and abetting
suggests encouragement.93 If the commission is manifested in these forms, then they
might attract a lesser sentence than the forms mentioned earlier.94
78. In the present case, President Luhar and Gen. Radam Idnar shall be held individually
responsible under Article 25(3)(a) for being the mastermind behind the attacks and
controlling the SAF & its activities, respectively. President Luhar shall be additionally
liable under Article 25(3)(b) for expressly giving out Official order to the armed forces
Chief Gen. Idnar, for the suppression of civil war and for extirpation by any means
necessary. Lt. Gen. Tyrion Pega shall be held liable for acts committed by him as well
as the subordinates under him as per Articles 25(3)(a) and (b). As the military
commander or officer, he led the attacks of the SAF on civilian population. As fas as
Col. Bolton and Col. D C Keviv are considered, they shall be liable for aiding the
commission of offences i.e. Col. Bolton for training and leading the SAF and Col.
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Keviv for shielding the activities of ZLF who were responsible for commission of
crimes against Xaroians.
4.2. THE RESPONSIBILITY OF MILITARY COMMANDERS FOR CRIMES COMMITTED UNDER THE
ROME STATUTE
79. The Rome Statute under Article 28(a) talks about the criminal responsibility of the
military commanders. A commander is noted as one who is the person at the highest
level of command, regardless whether there are few soldiers under his or her
command.95 They are either formally or legally appointed as commanders. Such
persons shall be held responsible for crimes committed by his forces. Persons who are
not legally appointed yet carry out the role of a military commander by exercising
effective control, shall also be liable under this provision.96
80. Gen. Radam Idnar, who was the Chief of the Zogmain armed forces and who
commanded the SAF along with Lt. Gen. Tyrion Pega, Col. Bolton and Col. Keviv,
knew about the attacks and other heinous acts that were committed by their subordinates
and their forces upon the Xaroians and other people during the civil war. They have
also failed to take necessary steps to stop such atrocities.
4.3. THE OFFICIAL CAPACITY OF ACCUSED DOES NOT BAR THE JURISDICTION OF THE COURT
81. The jurisdiction of the Court extends to every person equally and the official capacity
of any person attributed to them by customary international law, does not exempt the
Court from trying and prosecuting such persons. This will also not lead for reduction
of any sentence issued on that person by the Court.97
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PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honble Court may:
DECLARE THAT IT HAS THE JURISDICTION TO HEAR THIS MATTER.
DECLARE THAT THE PRESENT PETITION IS ADMISSIBLE.
DECLARE THAT THE ACCUSED ARE GUILTY OF COMMITTING GENOCIDE.
DECLARE THAT THE ACCUSED ARE GUILTY OF COMMITTING CRIMES AGAINST HUMANITY.
And pass any other order that this Honble Court may deem fit in the interests of justice.
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