1

INTERNATIONAL CRIMINAL LAW MOOT COURT COMPETITION,

2014

IN THE INTERNATIONAL CRIMINAL COURT

AT
THE HAGUE, NETHERLANDS

CASE CONCERNING INTERNATIONAL CRIMINAL AND HUMANITARIAN LAWS

THE PROSECUTOR
V.
COLONEL JINGO CRACKLE

ON SUBMISSION TO THE INTERNATIONAL CRIMINAL COURT

MEMORIAL for the PROSECUTION

ALS 2 / M 26

TABLE OF CONTENTS
TABLE OF CONTENTS..............................................................................................................3
LIST OF ABBREVIATIONS......................................................................................................5
INDEX OF AUTHORITIES........................................................................................................6
STATEMENT OF JURISDICTION........................................................................
STATEMENT OF FACTS..........................................................................................................11
ISSUES...........................................................................................................................................13
SUMMARY OF ARGUEMENTS...............................................................................................13
WRITTEN ARGUEMENTS..........................................................................................................15
1.

IN THE LIGHT OF PROPOSED CHARGES, THE JURISDICTION OF THE COURT

1.1

Colonel Jingo Crackle is Liable within the meaning of Article 25(3) (a) of the Statute..............15

1.2
Colonel Jingo Crackle is responsible for Crimes Against Humanity under Article 7(2) of the
International Criminal Court Statue............................................................................................................17
(i )The conduct was committed as part of a widespread or systematic attack directed against a civilian
population: .......................................................................................................................................................17
(i).(a). Attack...................................................................................................................................................18
(i).(b). Directed Against.................................................................................................................................18
(i).(c). Widespread or Systematic..................................................................................................................18
(i).(d). Purpose of Attack Immaterial............................................................................................................19
(i)(e). Presence of Policy..................................................................................................................................19
(ii) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread
or systematic attack directed against a civilian population: Element 4 fulfilled...........................................19
(ii).(a). Knowledge...........................................................................................................................................19
(ii)(b). Intention...............................................................................................................................................20
1.3

Colonel Jingo is liable for War Crimes under Article 8...............................................................20

1.3.1 Colonel Jingo is liable for Intentionally directing attacks against the civilian population as per
Article 8 (2)(b)(i) Elements fulfilled ..........................................................................................................20
1.3.2

Wilful Killing under Article 8(2)(a)(i)...........................................................................................20

1.3.3

Destruction of property under Article 8(2)(b)(xiii) ....................................................................21

1.3.4

Rape under Article 8 (2)(b)(xxii) of the Statute ...........................................................................21

1.4

Responsibility of Commander and Other Superiors as per Article 28.........................................22

3

2.

LEGALITY OF THE ARREST OF COLONEL JINGO CRACKLE

(i)
(ii)
(iii)
3.
(i)
(ii)
(iii)
(iv)

Principle of Universal Jurisdiction..................................................................................................23

Arrest at Astram legal ......................................................................................................................24
No State official immunity to Colonel Jingo Crackle.....................................................................24
Scope of Victim Participation
Victim Is a Natural live person.......................................................................................................26
Crimes Within the jurisdiction of the ICC
The notion of harm
Harm as a result of the alleged crime

PRAYER......................................................................................................................................30

LIST OF ABBREVIATIONS

RPE-

Rules for Procedure and Evidence

HLF-

Hist Liberation Front

ICTY-

International Criminal Tribunal for the former Yugoslavia

ILC-

International Law Commission

ICC-

International Criminal Court

ICTR-

International Criminal Tribunal for

Am J. Intl L.-

American Journal of International Law

UNSCR-

United Nations Security Council Resolution

U.N-

United Nations

UDHR-

Universal Declaration of Human Rights

UN Doc.-

United Nations Document

ILR-

International Law Reports

Intl Mil Trib.-

International Military Tribunal

UNGAOR-

United Nations General Assembly Official Records

ICRC-

International Committee of the Red Cross

ICCPR-

International Covenant on Civil and Political Rights

ECHR-

European Court of Human Rights

INDEX OF AUTHORITIES

ARTICLES
1

Christopher Joyner, Arresting Impunity: The Case for Universal

Jurisdiction in Bringing War Criminals to Accountability.

Comments on Aspects of ICTY Trial Decision in the Prosecutor v.

Tihomir Blaskic, (2000)

Crimes Against Humanity in the Jurisprudence of the International Criminal

Tribunals for the Former Yugoslavia and for Rwanda by Guenael Mettraux,
Harvard International Law Journal, Vol 43, Number 1, 2002

Crimes Against Humanity in the Jurisprudence of the International

Criminal Tribunals for the Former Yugoslavia and for Rwanda by
Guenael Mettraux, Harvard International Law Journal, Vol 43,
Number 1, 2002

First Report of The Prosecutor Of The International Criminal Court To The UN

Security Council Pursuant To UNSCR 1970 (2011)

K. Ambos, Triffterer, Commentary on the Rome Statute of the ICC (1999)

M. Cherif Bassiouni,Crimes against Humanity (Dordrecht/Boston/ London:

Martinus Nijhoff Publishers 1992)

Massimo Renizo, CRIMES AGAINST HUMANITY AND THE

LIMITS OF INTERNATIONAL CRIMINAL LAW, 2011

Peter Malanczuk, Akehursts Modern Introduction to International

Law (London and New York: Routledge 7th ed.1997), p. 113

10 S. Zappala, `The Rights of Victims v. the Rights of the Accused,

Journal of International Criminal Justice 8 (2010), 137-164

BOOKS
1. International law reports 102,103,104,105 Lauterpacht and Greenwood
Grotius Publications Cambridge University Press
2. International criminal law and human rights- Claire de Than and Edwin
Shorts Published in 2003 by Sweet and Maxwell Ltd
Published by Sweet and Maxwell published in 2003
6

3. Introduction to international law- 10th edition J G Starke published by

Butterworths and Co. Publishers 1989
4. International Human Rights Law Edited by Daniel Moeckli, Sangeeta Shah,
Sandesh Swakumara
5. Encyclopaedia Of Human Rights Issues Since 1945- Winston E. Langley
6. A Modern Introduction to International Law Michael Akehurst 6th edition;
Publishers George Allen Unwin (Publishers)Ltd 1987
7. International Court of Justice. Its Functioning and Settlement of Inter
Disputes- Chandan Bala- Deep and Deep publications, 1997, New Delhi
8. Human Rights and Humanitarian Law- Developments in Indian and
International Law- South Asia Human Rights Documentation Centre Oxford
University Press.
9. A Manual of International Humanitarian Laws; Edited by Sanajaoba
Foreword by Vincent Nicod Regency Publications
10. Geohard Werle- Principles of International Criminal Law- Published by
T.M.C Asser Press The Hague Netherlands 2005
11. Priceton Principles of Universal Jurisdiction
12. Blackstones International: Human Rights Documents- 1st Edition-P.R
Ghandi- Blackstones Press- 1999- Universal Law Publishing
13. Civil Liberties & Human Rights in England & Whales- David Feldman;
Oxford University Press New York- 1993
14. Introduction to International Humanitarian Law- Rose Verghese, M.K
Balachandra, Published ICRC New Delhi, 1997
15. Essential Human Rights Cases- 2nd Edition- Susan Nash and Mark Furse;
Jordon Publishing Ltd, Bristol 2002.
16. Human Rights- U.N. Gupta
17. Massimo Renizo, Crimes Against Humanity And The Limits Of
International Criminal Law, 2011

CASES
1. Behan v. State of Zimbabwe Supreme Court. 4th September, 1991
2. Blagojevic and Jokic (Trial CAhamber), 17 January 2005
3. Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo,

4. ICTY, Judgment , The Prosecutor v. Dragoljub Kunarac and others , IT-96-23

and IT-96-23/1-T
5. ICTY, Jugdment, The Prosecutor v. Furundzija;
6. Lubanga Dcision,
7. Prosecutor v. Erdemovic, Case No. IT-96-22, Sentencing Judgment (Nov. 29,
1996)
8. Prosecutor v. Hadzihasanovic, and Kubura,
9. Prosecutor v. Martic, Case No IT-95-14-14/2-T para, 326 (Feb 26 2001),
10. Prosecutor v. Sefer Halilovic Case No. IT-01-48-T
11. Prosecutor v. Tadic, CASE No. IT-94-1, Judgment; ILC 43rd session
12. Prosecutor v. Thomas Lubanga Dyilo
13. Prosecutor v. Tihomir Blaskic, (2000)
14. Tadic (Appeals Chamber), 15 July 1999
15. Prosecutor V. Jean-Pierre Bemba Gombo, No.: ICC-01/05-01/08 Date: 15 June
2009
16. Wiwa v. Royal Dutch Shell Petroleum (Shell), US District Court for the
Southern District of New York (28 February 2002)

STATUTES AND CONVENTIONS

1. Additional Protocol I
2. Charter of the International Military Tribunal at Nuremberg (1945) (Nuremberg Charter)
3. ICTY Appeals Chamber, Decision of the Defense Motion for Interlocutory
Appeal on Jurisdiction
4. ILC 43rd session at 265-66; Art II of Statutory Non-Applicability Convention.
5. Rome Statute

6. Rules of Procedure and Evidence

STATEMENT OF FACTS
Colonel Jingo Crackle was the chief of the Kimatan army, Kimatan being a state that
seceded from Nooba on its partition in the 1950s itself. The HLF rebels under the
leadership of Luke Skittle, whose aim was cessation to Kimatan started to organise
themselves causing havoc in Sutas.
After Lama Sukis victory speech against the Hist community, the Kimatan army
increased its activities around the border under the command of Colonel Jingo Crackle.
He was also the protector of Luke Skittle, the HLF leader. On 25th February 2010, a
series of explosions took place throughout Sutas, sabotaging police stations, security
installations manned by Noobian officers and Dij residential areas. HLF was on a
rampage, also claiming responsibility for the bombings. Thousands of Sutas Dijs were
killed as a result of the explosions, including women and children. Hundreds of Dij
women were raped by HLF rebels. Tens of thousands of Sutas Dijs emigrated as a
result of violence.

Nooba has alleged that the HLF rebels were being trained in Kimatan and was aided by
the Kimatan army. To subdue the violence caused by the rebel forces in Sutas, army
control was increased. The increased activities of the Noobian army further aggravated
the violence leading to large amount of casualties in the Sutas region of Nooba.
A coalition of international human rights organisations including Human Rights Watch,
the International Federation for Human Rights, and the Amnesty International reported
the use of heavy arms, explosive and chemical weapons in populated areas with no
discrimination between civilians and army. The HLF rebels under the command of
Colonel Jingo Crackle are engaged in ethnic cleansing by exterminating Sutas Dijs.
Kimatan is a member of the United Nations, is a party to the Geneva Conventions of
1949, the Convention on the Prevention and Punishment of the crime of Genocide,
1948, the International Convention on Civil and Political Rights, 1966 and other
International Humanitarian Law Conventions which prohibit the use of certain weapons
during the hostilities. Kimatan is also a state party to the ICC statute since 2000. On 29th
November 2013 UN Security Council convened an emergency meeting to redress the
situation in Sutas, Acting under Chapter VII of the United Nations Charter and Article
13 (b) of Rome Statute, the council vide Resolution 2019 referred the situation since 24

October 2009 to the International Criminal Court (ICC) and urged all states to cooperate with the Court, whether or not it was party to the Rome Statute.
Then on 15th January 2014, the Prosecutor submitted to the pre-trial chamber an
application for an arrest warrant against Colonel Jingo Crackle pursuant to Article 58 of
the statute. The Prosecutors application was against Colonel Jingo Crackle since 25 th
January 2010, The accused with HLF jointly committed, as a joint criminal enterprise,
within the meaning of Article 25(3) (a) of the statute Crimes against Humanity under
Article 7(2), of war crimes under Article 8(2)(b)(i), wilful killings under Article
8(2)(a)(i), destruction of property under Article 8(2)(b)(xiii) and committing rape
under Article 8(2)(b)(xxii) and responsibility of the commander and the other superior
of HLF and their actions in Sutas under Article 28 of the Statute.
Also, on 2nd February 2014, Colonel Jingo Crackle visited Meran, a Hist majority
country and a non-state party to attend a multi religious conference which was on the
border with Astram, a state party to Roman Statute. Colonel Jingo Crackle remained in
Meran territory, when he was approached by private security staff for a security check.
Understanding it to take place in Astram, he refused, and was thereby forcibly removed,
his name discovered on the ICC warrant when he was identified, and taken into custody
at Astram on 3 February 2014. On 4 February 2014, the accused claimed unlawful
arrest and abduction to Astram in a surrender hearing which the National Court and
responsible Minister of Astram rejected in light of Article 59 (4) of the Rome Statute.

Hence the present matte before the Honourable court.

10

ISSUES

(i)

In the light of proposed charges, the jurisdiction of the Court.

(ii)

The legality of the arrest of Colonel Jingo Crackle and the question of appropriate
remedy, if any; and
The scope of participation for victims W01-W84. Victims have announced the
intention to submit additional evidence in relation to HLF atrocities during
Confirmation Hearing.

(iii)

SUMMARY OF ARGUMENTS
1. Colonel Jingo Crackle is Liable For the Charges under The Jurisdiction Of
the Court.
The HLF under the command of Colonel Jingo Crackle of Kimatan engaged in ethnic
cleansing by extermination of the Sutas Dijs making it liable for crime against
humanity under Article 7(2) of the Rome Statute, The accused directed an attack in the
Sutas region with the help of HLF by supporting its activities as well as providing it
with weapons and committed war crime under Article 8. Civilian population was
attacked, rapes took place of women in Sutas, bombings led to destruction of property
all under the commander responsibility of Jingo Crackle.
He was in an indirect manner controlling and aiding them by providing weapons from
Kimatan providing the required mens rea and actus rea for the crimes
2. The Arrest Of Colonel Jingo Crackle is Lawful
The rationale for such arrest is the principle of universal jurisdiction for international
crimes. Colonel Jingo Crackle with the HLF committed large number of atrocities in the
Suta region of Nooba. Dije women were raped by the rebels, large scale ethnic
cleansing by extermination and many other grave crimes took place which concern
international community as a whole thus, making Colonel Jingo Crackle liable under the
jurisdiction of the Court. As a party to the Rome Statue, Astram fulfilled its State Party
obligations and there can be no question of illegality. There can be no immunity as an
official of Kimatan under Article 27 of the ICC.
11

3. Victims Should Be Allowed to Participate in the Proceedings of the Court

The rules and provisions of the ICC grant the right to victims to participate in various
levels of proceedings. Victims of the Sutas region whose personal interests were gravely
affected by the atrocities of HLF have established a sufficient link between the harm
suffered by the perpetrators: Colonel Jingo for actively supporting the havoc and HLF
for committing the same.

12

WRITTEN ARGUEMENTS
1. IN THE LIGHT OF PROPOSED CHARGES, THE JURISDICTION OF THE
COURT
Jurisdiction relates to whether a crime within the jurisdiction of the Court has been or is being
committed. It requires an assessment of (i) temporal jurisdiction (date of entry into force of the
Statute, namely 1 July 2002 onwards, date of entry into force for an acceding State, date specified in
a Security Council referral, or in a declaration lodged pursuant to article 12(3); (ii) material
jurisdiction as defined in article 5 of the Statute (genocide; crimes against humanity; war crimes;
and aggression); and (iii) either territorial or personal jurisdiction, which requires that the crime
occur on the territory or by a national of a State Party or a State not Party that has lodged a
declaration accepting the jurisdiction of the Court, or otherwise arises from a situation referred by
the Security Council.1 In the present case, the events have been reported since 24th October, 20092
satisfying the temporal jurisdiction of the Court. Also, the crimes charged are well within the
purview of Article 5 of the Statue. Kimatan ratified the Rome Statue since August 20003 and the
accused is a national to this State Party thereby, establishing the Courts territorial jurisdiction as
per Article 12(b).
1.1 Colonel Jingo Crackle is Liable within the meaning of Article 25(3) (a) of the Statute
The ICTY Trial Chamber in the Tadic4 case held that, to hold criminally liable as a perpetrator
only the person who materially performs the criminal act would disregard the role as co-perpetrators
of all those who in some way made it possible for the perpetrator physically to carry out that
criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as
aiders and abettors might understate the degree of their criminal responsibility. The main feature of
the objective concept5 of criminal responsibility is that principals to a crime are not limited to those
who physically carry out the objective element of the offence, but also include those, who, in spite
of being [remote] from the scene of the crime, control or mastermind its commission because they
decide whether and how the offence will committed. Colonel Jingo Crackle being the protector of

First Report of The Prosecutor Of The International Criminal Court To The UN Security Council Pursuant To
UNSCR 1970 (2011)
2
Proposition 10
3
Proposition 9
4
Prosecutor v.Tadic (Appeals Chamber), 15 July 1999, see also see also Blagojevic and Jokic (Trial Chamber), 17
January 2005
5
Lubanga Dcision, 330

13

Luke Skittle6, the leader of HLF aided and controlled the activities of the rebel group by not only
increasing support by employing army at the borders but also controlling the flow of weapons into
the Sutas from Kimatan7. Individuals may be held criminally responsible regardless of their role
and capacity in the commission of the crime.8 The Joint criminal enterprise is a mode of individual
criminal liability.9
(i)

The existence of a common criminal plan or purpose - All individuals who contribute to
the carrying out of crimes in execution of a common purpose may be subjected to criminal
liability. The critical element was established when Colonel Jingo Crackle became the
protector of the leader of HLF. The implementation of the common plan embodied a
sufficient risk that, if events follow the ordinary course, a crime will be committed10 which
so happened in the Sutas.

(ii)

The accused and the other co-perpetrator(s) must carry out essential contributions in a
coordinated manner which results in the fulfilment of the material elements of the crimeThe requirement of an essential contribution lies at the heart of indirect co-perpetration11.
As a principal co-perpetrator, Colonel Jingo made essential contributions12 to HLF by
supplying them with weapons and training them as alleged by Nooba.

(iii)

The accused must have control over the organisation- That indirect perpetration can only be
consistent with customary international law if the indirect perpetrator dominates the direct
perpetrator sufficiently so as to justify attributing to him the latters conduct as though it
were his own.13 The HLF was an organisation is based on hierarchical relationships between
superiors and subordinates14 with Colonel Jing at the top. He was the mastermind of the
criminal plan.15

Proposition 6
Proposition 7
8
Prosecutor v. Tadic, CASE No. IT-94-1, Judgment; Nuremberg Principles I and III (affirming any person who
commits a crime under international law is responsible and liable for it); ILC 43 rd session at 265-66; Art II of Statutory
Non-Applicability Convention. See also Crimes Against Humanity in the Jurisprudence of the International Criminal
Tribunals for the Former Yugoslavia and for Rwanda by Guenael Mettraux, Harvard International Law Journal, Vol
43, Number 1, 2002
9
H. Olasolo, The Criminal Responsibility of Senior POLITICAL AND Military Leaders as Principles to International
Crimes 2009.
10
Lubanga Trial Chambers view, ICC-01/04-01/06-2842, paras. 984, 987, 1021
11
The Prosecutor v. William Samoei Ruto And Joshua Arap Sang No.: ICC-01/09-01/11
Date: 24 July 2012
12
Ibid.
13
K. Ambos, Triffterer, Commentary on the Rome Statute of the ICC (1999), pp. 479-80.
14
Supra 8, ICC-01/09-01/11-433, para. 14
15
Cassese, Antonio, Paola Gaeta and John R.W.D. Jones (eds). 2002. The Rome Statute of the International
Criminal Court: A Commentary, Vol. I. Oxford University Press, p. 794.
7

14

1.2 Colonel Jingo Crackle is responsible for Crimes Against Humanity16 under Article 7(2)
of the International Criminal Court Statue
Permits exist for any state to exercise universal jurisdiction over persons suspected of committing
crimes against humanity17 and every state may prosecute violations of modern fundamental norms
of international law, particularly those relating to war crimes and crimes against humanity. 18The
Hist Liberation Front (HLF) under the command of Colonel Jingo Crackle of Kimatan engaged in
ethnic cleansing by extermination of the Sutas Dijes.19 Also, crimes against humanity are a
violation of international law, directly punishable under international law itself (and thus universal
crimes), and they may be dealt with by national courts or by international tribunals20 like the ICC.
(i )The conduct was committed as part of a widespread or systematic attack directed
against a civilian population
(i).(a). Attack: To bring an act under the purview of Crimes against humanity, there should be a
commission of the acts of Murder,21 against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that
are universally recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Court. The HLF under the
command of Colonel Jingo Crackle attacked many civilians in the state of Sutas during its

16

Each of these crimes against humanity have been recognized as crimes under international law in international
conventions or other international instruments, either expressly or as other inhumane acts, including: Declaration of
France, Great Britain and Russia on 24 May 1915 (stating that those responsible for crimes against humanity and
civilization, including massacres of civilians, would be held responsible;
Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties presented
to the 1919 Preliminary Peace Conference (murder and massacres, systematic terrorism, torture of civilians, internment
of civilians under inhuman conditions);
Article 6 (c) of the Charter of the International Military Tribunal at Nuremberg (1945) (Nuremberg Charter) (murder,
deportation and other inhumane acts and persecutions);
Allied Control Council Law No. 10 (1946) (murder, deportation, imprisonment, torture and other inhumane acts and
persecutions); Article 6 (c) of the Charter of the International Military Tribunal for the Far East (1946) (murder,
deportation and other inhumane acts and persecutions); Article 2 (10) of the Draft Code of Offences against the Peace
and Security of Mankind (1954) (murder, deportation and persecutions); Article 5 of the Statute of the International
Criminal Tribunal for the former Yugoslavia (1993) (murder, deportation, imprisonment, persecutions and other
inhumane acts); Article 3 of the International Criminal Tribunal for Rwanda (1994) (murder, deportation,
imprisonment, persecutions and other inhumane acts); Article 18 of the UN Draft Code of Crimes against the Peace
and Security of Mankind (1996) (murder, torture, persecution, arbitrary imprisonment, arbitrary deportation or forcible
transfer of population, forced disappearance of persons and other inhumane acts);
17
M. Cherif Bassiouni,Crimes against Humanity (Dordrecht/Boston/ London: Martinus Nijhoff Publishers 1992), pp.
510-527
18
Christopher Joyner, Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to
Accountability.
19
Proposition 8
20
Peter Malanczuk, Akehursts Modern Introduction to International Law (London and New York: Routledge 7th
ed.1997), p. 113
21
Article 7(1)(a) of the ICC Statute, ICTY, Article 5, ICTR, Article 3

15

conflict with the Nooban authorities. Violence may not always be necessarily, be required 22 in the
commission of an attack and the acts committed in the course of the attack can vary extensively
both in magnitude and in nature.
(i).(b). Directed Against: The term 'directed against' specifies that the civilian population is the
primary target of the attack'. 23 The Dij residential areas being bombed24 and the Dij people being
killed in turn amounts to an attack so directed against the civilian population. The means and
method used in the course of the attack, the status of the victims, their number, the discriminatory
nature of the attack and the nature of the crimes committed in its course is to be considered.25
(i).(c). Widespread or Systematic: An act can be part of either26 a widespread or systematic27attack
and need not be a part of both.28 Widespread refers to the large-scale nature of the attack and the
number of victims.29 It is due to the cumulative effect of a series of acts,30 or due to the effect of a
single act of extraordinary magnitude.31 An act may be one of extraordinary magnitude if it is of
concern to the international community as whole.32 The HLF, under Colonel Jingo Crackle,
attacked thousands of individuals. "Systematic" refers to a pattern of conduct or methodical plan33
based on a common policy.34 The HLF rebels of Sutas under the command of the accused were
indulging in ethnic cleansing so as to exterminate the Sutas Dijs,35 so much so that thousands of
Sutas Dijs had to emigrate36 as a result of the turbulence caused by the HLF. Systematic also
refers to "the organised nature of the acts of violence37 and the improbability of their random

22

Prosecutor v. Kunarac,; Prosecutor v. Kayishema; Prosecutor v. Akayesu,

Prosecutor v. Kunarac
24
Proposition 6
25
Prosecutor v. Semanza ICTR-97-20- T, Prosecutor v. Naletilic IT-98-34-T (31 March 2003)
26
Prosecutor v. Blaskic; Prosecutor v. Rutaganda, Case No. ICTR-96-3, (Dec. 6, 1999); Prosecutor v. Kordic, Case
No. IT-9514/2, Judgement, 178 (Feb. 26, 2001). See also, International Law Commission, Report of the International
Law Commission on the Work of its Forty-Third Session, Apr. 29- July 19, 1991, U.N. GAOR, 43d Sess., Supp. No.
10, at 266, U.N. Doc. A/46/10 (1991); International Law Commission, Report of the International Law Commission on
the Work of Its Forty-Eighth Session, May 6- July 26, 1996, U.N. GAOR, 48th Sess., Supp. No. 10, at 94-95, U.N. Doc.
A/51/10 (1996).
27
Crimes of War- Crimes Against Humanity By M. Cherif Bassiouni
28
Prosecutor v. Akayesu; Prosecutor v. Semanza; Prosecutor v. Rutaganda, Case No. ICTR-96-3;Prosecutor v.
Kunarac,
29
Prosecutor v. Kunarac,
30
Gunal Mettraux, International Crimes and the Ad Hoc Tribunals, (Oxford: Oxford University Press, 2005), pp.
147-174
31
See ILC 48th Sess., Supra n. 42, at 94-95, quoted in Blaskic, 206
32
Finalized draft text of the Elements of Crimes, U.N. Preparatory Comm'n for the Int'l Criminal Court, U.N. Doc.
PCNICC/2000/1/Add.2 (2000)
33
Mohamed Elewa Badar, From The Nuremberg Charter To The Rome Statue: Defining The Elemest Of Crimes
Against Humanity, 5 San Diego Int'l L.J. 73 (2004)
34
Prosecutor v. Tadic, 648; Prosecutor v. Akayesu
35
Proposition 8
36
Proposition 6
37
Prosecutor v. Kordic
23

16

occurrence." The fact that an attack was widespread could itself be evidence of the systematic
nature of the attack since a widespread attack generally relies on some form of planning.
(i).(d. Purpose of Attack Immaterial: Circumstances in which civilian casualties were foreseeable38
and there was disproportionate use of force still, would meet the test of 'directing attacks against a
civilian population', even if the object of the attack might have been non-civilians.39 The Amnesty
International reported use of heavy arms, explosive and chemical weapons in populated areas with
no discrimination between civilian and army.40
(i)(e). Presence of Policy: Article 7(2)(a) of the ICC Statute only requires "a State or organizational
policy,41 and not both. Organizational policy requirement42 includes non-state like, private, nonpolitical organizations as well. It need not be "explicitly formulated or be the policy of a State" in
order to fulfil the "systematic" aspect of an attack. Such a policy need not be proactive and can be
deduced from the way in which the acts occur. It may be implemented by a deliberate failure to take
action, which is consciously aimed at encouraging such attack.
(ii) The perpetrator knew that the conduct was part of or intended the conduct to be part of
a widespread or systematic attack directed against a civilian population
(ii).(a). Knowledge: The knowledge can be actual or constructive43 and may be inferred from a
concurrence of concrete facts, such as the political circumstances in which the acts occurred, the
nature of the crimes committed and the degree to which they are common knowledge.44 The ICC
Statute does not require that the accused's knowledge encompass the required nexus between his
conduct and the attack against the civilian population, only that there existed an attack.45 Tribunals
have inferred defendants' knowledge of an attack from its scale and systematic nature.46 He need
not know the specific details of the attack.47 As such he was the Protector of Luke Skittle,48 and the
military commander of Kimatan, and hence he had effective control over the HLF.

38

Prosecutor v. Kajelijeli, (Judgment and Sentence) ICTR-98-44A-T (1 December 2003) [867]; Semanza [327];
Akayesu, [581].
39
Prosecutor v. Galic, (Appeal Judgment) IT-98-21-A (30 November 2006) [102]
40
Proposition8
41
Art.7(2)(a) of the ICC Statute
42
Canada Criminal Code, R.S.C., ch. C-46 2 (1985)
43
Prosecutor v. Tadic; Prosecutor v. Kupreskic, Case No. IT-95-16-T(Jan 14, 2000); and Kayishema, 134
44
Prosecutor v. Blaskic
45
Art. 30(3) of the ICC Statute
46
Prosecutor v. Vasiljevic
47
Prosecutor v. Kunarac
48
Proposition 4

17

(ii)(b). Intention: Intention of a person exists where he means to engage in a conduct, in which he
has means to cause that consequence or is aware that it will occur in the ordinary course of events.49
Where knowledge of attack is proven, the accused's intention is legally irrelevant.50. Thus, Colonel
Jingo Crackle intended to assist HLF to carry out the attack by supplying weapons 51 to them as he
was aware that the consequence would occur in the ordinary course of events.
1.3 Colonel Jingo is liable for War Crimes under Article 8
1.3.1

Colonel Jingo is liable for Intentionally directing attacks against the civilian
population as per Article 8 (2)(b)(i) Elements fulfilled :52

The perpetrator directed an attack. - Colonel Jingo Crackle under his command, directed an attack
in the Sutas region with the help of HLF by supporting its activities as well as providing it with
weapons. There is absolute prohibition over directing attacks against civilian population.53 The
object of the act was a civilian population as such of individual civilians not taking part in direct
hostilities.54- The large scale extermination of the Dijes of Sutas, rapes of thousands of Dije women
who were not at all part of the continuing violations of human rights in the Sutas. The perpetrator
intended the civilian population as such or individual civilians not taking direct part in hostilities to
be the object of the attack. It was impossible not to know that the civilians55 Sutas people were
being targeted by such an attack.
1.3.2

Wilful Killing under Article 8(2)(a)(i)

The persons were protected under the Four Geneva Conventions56 had not taken part in any
hostilities directly or indirectly, the nationals of Nooba who were indiscriminately killed by the
accused with the aid of HLF. Also the context of armed conflict is international since the Kimatan
Army helped HLF to commit atrocities.57 There was reckless disregard of human life as is evident

49

Article 30(2) of ICC Statute

Prosecutor v. Tadic
51
Proposition 7
52
Approach adopted by Preparatory Committee of the ICC
53
Prosecutor v. Martic, Case No IT-95-14-14/2-T , 326 (Feb 26 2001), See also Articles 51(2), 85(3)(a) AP I and
13(2), AP II
54
In Conjecture with Article 30 of ICC incorporating mental element ; Quotes in W. Fenrick, A First Attempt to
Adjudicate Conduct Of Hostilities Offences : Comments on Aspects of ICTY Trial Decision in the Prosecutor v.
Tihomir Blaskic, (2000)
55
ICTY, Judgment , The Prosecutor v. Tihomir Blaskic, IT-95-14-T, 180
56
See Geneva Convention I, Art 50; Geneva Convention II, Art 51, Geneva Convention, Art 130, Geneva Convention
IV, Art. 147
57
The Celebici(Appeal)stated that the situation in which a state resorts to indirect use of force against another state, by
supporting a party involved in the conflict, is characterized as a proxy war of an international character.
50

18

by the killing of tens of thousands of people in the Sutas and this conduct can be attributed to the
perpetrator. 58
1.3.3

Destruction of property under Article 8(2)(b)(xiii)

The perpetrator destroyed or seized certain property. Widespread attacks took place in the Sutas
region in Dije residential areas, bombings of security installations in the Sutas59 region took place
whose responsibility was claimed by the HLF. The flow of weapons from Kimatan also helped
cause wanton destruction of property. Such property was property of a hostile party.- The property
of the Sutas region was evidently belonging to Nooba, the country who had been involved in
various skirmishes with Kimatan since their partition on religious demographics.
The perpetrator was aware of factual circumstances that established the existence of an armed
conflict.- The HLF favoured cessation of Sutas to Kimatan. Such a major internal security issue of a
neighbouring state (Nooba) cannot be held unnoticed. This implies that Colonel Jingo had sufficient
reason to be aware of the factual circumstances prevailing in the Sutas region of Nooba. There was
extensive destruction and appropriation of property, not justified and carried out unlawfully and
wantonly.60
1.3.4

Rape under Article 8 (2)(b)(xxii) of the Statute

Such physical invasion of a sexual nature,61 rape was committed on hundreds of Dije women by the
HLF rebels62. Committing rape is a forcible act63 which is committed by putting the other person in
danger. Rape is a crime universally recognized as properly punishable under the law of war.64 This
act of sexual violence, but rather a method of warfare, i.e., an instrument of revenge65 which was
used by the HLF rebels to pressurize the Nooban government to adhere to their demands of
accessation to Kimatan. Rape is also prohibited by the 1977 Protocol Additional to the Geneva
Conventions and relating to the Protection of Victims of International Armed Conflicts. Rape as
charged under war crimes is as severe as a rape charged as a crime against humanity. 66 Thus,
Colonel Jingo Crackle is held responsible for War Crimes under Article 8 of ICC Statue

58

Prosecutor v. Mucic, ICTY (Trial Chamber), judgment 16 th november, 1998, Para. 424.
Proposition 6
60
Kordi and erkez (IT-95-14/2-T), 26 February 2001, . 329-347.
61
ICTR, Judgment,, The Prosecutor v. Jan Paul Akayesu, ICTR-96-4-T, 688
62
Proposition 6
63
ICTY, Judgments, The Prosecutor v. Furundzija
64
United States, Court of Military Appeals, John Schultz case
65
The Crime of Rape in the ICTYs and the ICTRs Case-Law by sDoc. dr. sc. Sandra Fabijani Gagro
66
Separate opinion of Judge Cassese, Prosecutor v. Erdemovic, Case No. IT-96-22, Sentencing Judgment (Nov. 29,
1996)
59

19

1.4 Responsibility of Commander and Other Superiors as per Article 28 67

[W]e must accept the principle that he who knows of a crime, and is able and bound to
prevent it but fails to do so, himself commits a crime68
The existence of a superior to subordinate relationship-The HLF did not need to be directly
subordinated to the superior69, Colonel Jingo and superior position for purposes of command
responsibility can be based on de facto powers of control.70
The superior's failure to take the necessary and reasonable measures to prevent the criminal acts of
his subordinates or punish them for those actions.- The HLF kept on carrying out hostilities in the
Sutas by bombings, rapes, ethnic cleansing by extermination. Colonel Jingo Crackle, who was in an
indirect manner or by virtue of his position, senior in some sort of formal or informal hierarchy to
the perpetrators71 did not prevent such criminal acts by his subordinates and instead aided them by
providing weapons from Kimatan72; making the commander responsible for failing to prevent
crimes or deter the unlawful behaviour of his subordinates, in essence purporting a rule of imputed
responsibility or criminal negligence.73 A commander who has failed his duty to ensure that his
troops respect international humanitarian law is held criminally responsible for his own omissions
rather than for the crimes resulting from them.74
The superiors knowledge or reason to have knowledge that a criminal act was about to be
committed or had been committed-. There must be an organized military force because military
organization implies responsible command and this implies command responsibility75 the superior
must have had actual knowledge or a reason to know that his or her subordinates were committing
or was about to commit crimes. Colonel Jingo Crackles gross failure to control subordinates
responsible for atrocities, almost equivalent to tacit permission for their commission will involve
command responsibility. The mere fact that the acts were committed by the HLF, itself does not
absolve Colonel Jingo Crackle of his liability Such command responsibility is shown by evidence
of a pervasive pattern and practice of torture or disappearances76 that took place in the Sutas at the
orders of Colonel Jingo Crackle. Colonel Jingo Crackle is thus held liable under Article 28 of the
ICC Statue.
67

The Prosecutor v. Jean-Pierre Bemba Gombo, No.: ICC-01/05-01/08 Date: 15 June 2009
Hugo Grotius, On the Laws of War and Peace, 523
69
elebii Appeal Judgment ; Halilovi Judgment, 60, 63.
70
elebii Appeal Judgment ; Kajelijeli Appeal Judgment, 85; Brima et al. Judg-ment, 784.
71
Prosecutor v. Sefer Halilovic
72
Proposition 7
73
1993 report of the Secretary General in regards to the ICTY, 56
74
Prosecutor v. Halilovic, Case No. IT-01-48-T, Judgement
75
Article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia, Statute of the Special
Tribunal for Lebanon, Art. 3(2), Article 6(3) of the ICTR Statute
76
Yamashita Trial 4 War Crimes Trial Reports 1-96
68

20

LEGALITY OF THE ARREST OF COLONEL JINGO CRACKLE

A court had jurisdiction to try any person found in its territorial jurisdiction and lawfully arrested
regardless of the means taken to secure his presence in the jurisdiction.77 Recent rulings have
determined that genocide, slave trading, slavery, forced labour and war crimes are actionable even
in the absence of any connection to the state.78 Irrespective of the fact that the accused was found in
the territory of Meran, the arrest would be considered legal.
(i)

Principle of Universal Jurisdiction - The rationale universal jurisdiction was that

offenders were the common enemies of mankind and all nations have an equal interest
in their apprehension and punishment.79 Colonel Jingo Crackle with the HLF
committed large number of atrocities in the Suta region of Nooba. Dije women were
raped by the rebels80 , large scale ethnic cleansing by extermination81 and many other
grave breaches took place which concern international community as a whole thus,
making Colonel Jingo Crackle liable under the jurisdiction of the Court.
Universal jurisdiction based solely on the nature of the crime without regard to where
the crime was committed, the nationality of the alleged perpetrator, the nationality of the
victim or any other connection to the state exercising such jurisdiction.82 Universal
jurisdiction exists for piracy slavery, war crimes, crimes against peace, crimes against
humanity.83It is now widely accepted that crimes against humanity are subject to
universal jurisdiction.84 Undoubtedly, the crimes like that of war crimes as well as
crimes against humanity were committed by Colonel Jingo Crackle on the people of
Sutas together with the HLF rebels. The rules of International Humanitarian Law are
binding not only on States as such, but on individuals, including members of Armed
Forces, heads of states, ministers and officials.85.Colonel Jingo Crackle held an official
position in the army of Kimatan making him bound by such International Humanitarian
Law obligations.86 By their very nature [some matters] are the concerns of all states. In

77

Behan v. State of Zimbabwe Supreme Court. 4th September, 1991

Wiwa v. Royal Dutch Shell Petroleum (Shell), US District Court for the Southern District of New York (28 February
2002)
79
Demjanyuk [1985] 603 F. Supp. (ND Ohio)
80
Proposition 6
81
Proposition 8
82
Princeton Principle of Universal Jurisdiction
83
Internal Crimal Law and Human Rights by Claire de Than and Edwin Shorts
84
Theodor Meron, 89 Am. J. Intl L.(1995), pp. 554, 569
85
J.G Starke- Introduction to International Law 10th edition, Butterworths
86
The agreement for setting up the Nuremburg Tribunal, dated 8 th August 1945, between Great Britain, the United
States France, and Russia provided in Article 7 of the Charter annexed that: ...The official position of the Defendants
whether, as heads of states or responsible officials in Government departments, shall not be considered as freeing them
78

21

view of the importance of the rights involved, all states can be held to have a legal
interest in their protection, they are obligations erga omnes.87 International Crimes may
be prosecuted by International Courts without reference to Domestic Law by any state in
the world on the basis of Universal Jurisdiction, as a matter of International Law.
(ii)

Arrest at Astram legal That, there existed illegality in the procedure used by the
security staff of Astram in obtaining arrest of Colonel Jingo Crackle cannot be claimed
since that national borders do not prevent the prosecution of those guilty of crimes
against humanity.88 It must then be brought forth that the alleged illegality of the
offender need not affect the legality of his subsequent trial.89 The arrest of Col. Jingo
Crackle is justified in the hands of Astram, as the country had jurisdiction over him.90 A
person brought into the jurisdiction of a court by unlawful means does not automatically
divest the court of jurisdiction91 bargaining(securing the surrender of a suspect) over
regime design is an important factor in the success of the court.92 The doctrine of
universal jurisdiction allows national courts to try cases of the gravest crimes against
humanity, even if these crimes are not committed in the national territory and even if
they are committed by government leaders of other states93 making Astramss conduct
valid. States shall co-operate with each other. It is well settled that all parties to an
armed conflict whether state or non-state actors are bound by international humanitarian
law, even though only states may become parties to international treaties94 As a state
party to the Rome Statue, Astram95 fulfilled its State Party obligations and there can be
no question of illegality.96

(iii)

No State official immunity to Colonel Jingo Crackle- Col. Jingo loses immunity as a
state official as the crimes against humanity do not amount to the acts of the state.
Neither Col. Jingo crackle attracts immunity rationae materiae neither rationae

from responsibility or mitigating punishment. Charter of 19 January 1946, concerning the constitution of the Tokyo
Tribunal.
87
I.C.J., Barcelona Traction Case, ICJR [1970] 3, 3
88
Prosecutor v. Manzorro Scilingo (Adolfo), Final Appeal judgment, Case No 16/2005
89
Eichmann case
90
Moores Digest of International Law, Vol. 4, pg 311 where a fugitive is brought back by any irregular means, he
cannot set up an answer to the indictment the unlawful manner in which he was brought within the jurisdiction of the
court. It belongs exclusively to the government from whose territory he was taken to complain of violation of its rights.
91
Ker v. Illinois (1886); See also Ker-Frisbie Doctrine
92
C. Rudolph, Constructing anAtrocities Regime: The Politics ofWar Crimes Tribunals, (2001) 55 International
Organization 655.
93
Global Policy Forums International Justice and Universal jurisdiction. (available
at:http://www.globalpolicy.org/international-justice/universal-jurisdiction-6-31.html)
94
Prosecutor v Sam Hinga Norman, decision on preliminary motion based on lack of jurisdiction 2004 Appeals
Chamber
95
Proposition 14
96
Under Article 86 of Rome Statue ..States Parties shall, in accordance with the provisions of this Statute, cooperate
fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

22

personae. Also, the shield against prosecution is lost when it trial by a properly
constituted international tribunal such as the ICC is held.97 International law as such
binds every citizen98 and war crimes committed can be perpetrated as a principal or an
accessory, by any person whatever, irrespective of rank or position99 applies completely
to Colonel Jingo Crackle. The accused cannot escape liability with the official immunity.
The authors of these acts cannot shelter themselves behind their official position in order
to be freed from punishment in appropriate proceedings.100 The official position of
defendants, whether as Heads of State or responsible officials in Government
Departments, shall not be considered as freeing them from responsibility or mitigating
punishment.101Since individual responsibility for crimes under international law which
by their very nature and magnitude usually require a degree of involvement on the part
of high-level government officials,102 Colonel Jingo Crackles role can be thus
highlighted. Also, no immunity applies to lawsuits brought against foreign government
ofcials for alleged human rights abuses.103 Under the ICC there exists irrelevance of
any kind of official capacity104 for the nationals of State Parties as is highlighted in
Article 27 of the Statue105. The official capacity thus, does not exempt Colonel Jingo
Crackle from his responsibility.106 In vertical relationships, for instance those between
international courts and tribunals vis--vis state parties, there is no room for immunity107

97

Democratic Republic of Congo: ICJ 2001

Report of the International Law Commission on the work of its forty-eighth session, 6 May - 26 July 1996, UN Doc.
A/51/10, p. 16); U.S. v. Montgomery, (11th Cir., 27 September 1985); cited in 80 Am. J. Intl L. (1986), p. 346).
99
Article 2(3) of Draft Convention for the Creation of an International Criminal Court of the London International
Assembly, 1943
100
The United States Prosecutor at Nuremberg and one of the authors of the Charter, explained in his 1945, pp.41-42
101
Article 7 of the Nuremberg Charter
102
Virginia Morris & Michael P. Scharf, 1 The International Criminal Tribunal for Rwanda, p. 249
103
Samantar v. Yousuf, 130 S Ct 2278 (2010).
104
See Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC, Case No. 02/05, Decision Pursuant to Article 87(7) of the
Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court
with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, December 12, 2011, paras. 22-43; UN
Economic and Social Council, Updated Set of Principles for the Protection and Promotion of Human Rights through
Action to Combat Impunity,E/CN.4/2005/102/Add.1, February 8, 2005, principle 27. See also, for example,
President Milosevic and Four other Senior FRY Officials Indicted for Murder, Persecution and Deportation in
Kosovo, International Criminal Tribunal for the Former Yugoslavia press release, May 27, 1999, and Charles Taylor
is subject to criminal proceedings before the Special Court, Special Court for Sierra Leone press release, May 31,
2004,
105
The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International
Criminal Court SarahWilliams and Lena Sherif Journal of Conflict & Security Law (2009), Vol. 14 No. 1, 7192 ; See
In re Goering, 13 ILR 203, 221 (Int'l Mil. Trib. 1946). Provisions stating that official capacity does not amount to a
substantive defence are included in the statutes of several international criminal tribunal
106
Legalist Groundwork for the International Criminal Court: Commentaries on the Statute of the International
Criminal Court by Andreas L. Paulus; EJIL 14 (2003), 843860
107
P.Gaeta, Ofcial Capacity and Immunity, in Cassese/Gaeta/Jones Commentary, at 989 and 991
98

23

so that the most serious crimes of concern to the international community as a whole
must not go unpunished.108
3 SCOPE OF VICTIM PARTICIPATION
According to its Preamble, States Parties to the Statute agreed to create the ICC because they were:
Determined to put an end to impunity for the perpetrators of these [most serious] crimes and thus
to contribute to the prevention of such crimes () Resolved to guarantee lasting respect for
and the enforcement of international justice.109 The Rome Statute and the Rules of Procedure and
Evidence (RPE) of the ICC grant victims an independent role in the proceedings. Victims are not
only seen as potential witnesses of the Prosecution as was the case at the International Criminal
Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda for example
but are now given the possibility to present their views and concerns to the judges.
Formal recognition at the international level that victims are entitled access to the mechanisms of
justice and to prompt redress, as provided for by national legislation, for the harm that they have
suffered has been granted110. Victims of the Sutas region are thus entitled to have their grievances
be put forth. In its January 2006 decision, PTC I recognized its duty to ensure that victim
participation is not prejudicial to or inconsistent with the rights of the Defence. Rome Statute
grants victims an independent voice and role in the proceedings and that it should not be assumed
that victims would be an ally of the Prosecutor.111 Applicants must first qualify as victims under
Rule 85112, and that Rule 85(a), in turn, has four sub-requirements. The various Chambers initially
applied a four-tiered test considering whether:113
(i)

Victim Is a Natural live person -The ICC defines victims as natural persons who have
suffered harm, direct or indirect, as a result of the commission of any crime within the

108

Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force
July 1, 2013, preamble, para. 4.,
109
Rome Statute, Preamble.
110
M. Cherif Bassiouni, International Recognition of Victims Rights, 6 H.R.L. Rev. 203, 247 (2006) (noting that the
UN Victims Declaration was the first international instrument to articulate victims right to access justice and obtain
reparation for their injuries.).
111
Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the Proceedings
of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPRS6, ICC-01/04-101- tEN-Corr
112
The definition of victims in Rule 85 is largely based on existing victim definitions in international law, mainly those
contained in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power47 and in the
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law.
113
Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5
and VPRS 6, Situation in the DRC (ICC-01/04-101-tEN-Corr), Pre Trial Chamber I, 17 Jan. 2006, 79; Fourth
Decision on Victims' Participation, Bemba (ICC-01/05-01/08-320), Pre-Trial Chamber III, 12 Dec. 2008, 30;
Decision on Victims' Participation in Proceedings, Situation in Kenya (ICC-01/09-24), Pre-Trial Chamber II, 3 Nov.
2010, 19, Decision on victims' applications for participation a/0014/07 to a/0020/07 and a/0076/07 to a/0125/07,
Kony, Otti, Odhiambo & Ongwen (ICC 02/04-01/05-356), Pre-Trial Chamber II, 21 Nov. 2008, 7.

24

ICCs jurisdiction114. Certain Chambers have determined that only natural, live persons
may apply to participate in proceedings and not deceased.115 It is very clear that the
applications of the 84 persons claiming to have faced excessive atrocities from the
HLF116 thus fall into the category of such victims as defined by the ICC Statue. The HLF
under the command of Colonel Jingo Crackle carried out extermination by ethnic
cleansing , rape and other humanitarian abuses in the Sutas region making them liable
under the Statue.
(ii)

Crimes Within the jurisdiction of the ICC -The second part of the test under Rule 85
requires the applicant to demonstrate a linkage to a crime within the jurisdiction of the
Court. The crime must be one of the crimes listed in Article 5 of the ICC Statute, e.g.,
genocide, crimes against humanity or war crimes; it must have been committed after the
entry into force of the Statute; and must relate to an alleged crime that either took place
on the territory of a State Party, concerns an accused person who is a national of a State
Party, or is otherwise referred to the Prosecutor by the Security Council acting under
Chapter VII of the Charter of the United Nations. The victims, ipso facto, have been
subjected to war crimes of rape, wilful killings, attack against civilian rape,
population,etc and crimes against humanity of extermination by the rebels under Colonel
Jingos command.

(iii)

The notion of harm117 The notions of hurt, injury and damage118 that were suffered by
the nationals of Nooba by the atrocities committed by the HFL rebels under the
command of Colonel Jingo Crackle provide sufficient evidence to convince the court
that harm was caused by such acts to the victims. Displacement of families119 by the
continuous acts of violence of the HLF, destruction and burning of houses120 ,being a

114

Victim Participation in Proceedings before the International Criminal Court by Fiona McKay
Corrigendum to Decision on the Applications for Participation in the Proceedings of Applicants a/0011/06 to
a/0015/06, a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07, Situation in Darfur, Sudan (ICC-02/05-111Corr), Pre-Trial Chamber I, 14 Dec. 2007; Corrigendum to the Decision on the Applications for Participation Filed in
Connection with the Investigation in the DRC , Situation in the DRC (ICC-01/04-423-Corr), Pre-Trial Chamber I, 31
Jan. 2008,, 24-25; Decision on Victims' Participation at the Confirmation of Charges Hearing and in the Related
Proceedings, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-267), Pre-Trial Chamber II, 26 Aug. 2011 . 47
116
Proposition 16
117
Statute, Article 21(3): [t]he application and interpretation of law must be consistent with internationally
recognized human rights. 18.01.2008 Trial Chamber I Decision on Victims Participation, above note 11,. 35.
118
The Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims'
Participation of 18 Jan. 2008, Lubanga ( ICC-01/04-01/06-1432), Appeals Chamber, 11 July 2008, . 31-32.
119
Corrigendum to Decision on the Applications for Participation in the Proceedings of Applicants a/0011/06 to
a/0015/06, a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07, Situation in Darfur, Sudan (ICC-02/05-111Corr), Pre-Trial Chamber I, 14 Dec. 2007, . 40.
120
Decision on Victims' Participation at the Confirmation of Charges Hearing and in the Related Proceedings,
Muthaura, Kenyatta and Ali (ICC-01/09-02/11-267), Pre-Trial Chamber II, 26 Aug. 2011, para. 29; Decision on the
Applications for Participation in the Proceedings of VPRS 1, VPRS 2, etc, Situation in the DRC (ICC-01/04-101-tENCorr), Pre-Trial Chamber I, 17 Jan. 2006, paras. 132 and 162;
115

25

part of hostilities121 taking place in the Sutas region also had psychological effects are a
testimony to the fact that the victims did suffer harm.
(iv)

Harm as a result of the alleged crime-As per rule 85(a) of the Statue, the Chambers have
considered it sufficient to determine whether there are grounds to believe that the
[individual applicant] suffered harm as a result of the commission of those crimes.122 A
sufficient causal link123between the harm suffered by the residents of Sutas and the
crimes for which there are reasonable grounds to believe that Colonel Jingo Crackle is
criminally responsible can be established. Increase of army around the border124and the
flow of weapons from Kimatan through which all kinds of humanitarian abuses were
being carried out by the rebel group under the effective command of Colonel Jingo
Crackle fulfil this criterion. The acts demonstrate that the allege crimes could have
objectively contributed to the harm suffered.125 A causal link between the crime and the
harm suffered exists.126 The codification of victim participation in article 68(3) in the
Rome statute reflects the fact that many court systems around the world have
successfully allowed victims to participate in criminal trials.127 Also, there is nothing
prejudicial per se to the rights of the accused in allowing victim participation in
international criminal proceedings.128 Article 68(3) envisages another criterion wherein
the victims personal interests need to be affected by the acts of the perpetrator. The
acts of violence in the Sutas region led to extermination of the people, rapes of women,
emigration due to violence of tens and thousands of Sutas Dije129 and other crimes
against humanity for which Colonel Jingo Crackle with HLF is held criminally
responsible. The victims were affected by the crime which is sufficient to establish that

121

Decision on the Applications for Participation in the Proceedings of Applicants a/0327/07 to a/0337/07 and
a/0001/08, Katanga & Ngudjolo (ICC01/0401/07357), Pre-Trial Chamber I, 2 April 2008, p. 11.
122
Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5
and VPRS 6, Situation in the DRC (ICC-01/04-101-tEN-Corr), Pre-Trial Chamber I, 17 Jan. 2006 . 124, 135, 153,
167, 176, 186 .
123
Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case the
Prosecutor v. Thomas Lubanga Dyilo, Lubanga (ICC-01/04-01/06-172-tEN), Pre-Trial Chamber I, 29 June 2006, p. 6.
124
Proposition 6
125
Decision on Victims' Participation and Victims' Common Legal Representation at the Confirmation of Charges
Hearing and in the Related Proceedings, Gbagbo (ICC-01/09-01/11-138), Pre-Trial Chamber I, 4 June 2012, para 31.
126
18.01.2008 Trial Chamber I Decision on Victims Participation, above note 11, . 8794; 17.01.2006 PTC I
Decision, above note 10, . 79; also PTC II 10.08.2007 Decision on Victims Applications for Participation (the
identical decision is filed twice: under the Uganda situation and in the case of The Prosecutor v. Joseph Kony (et al.),
the former under ICC-02/04-101, the latter under ICC-02-04-01-05-252, with a review of existing decisions on the issue
in . 12f.).
127
Womens Caucus for Gender Justice, Recommendations and Commentary for the Elements of Crimesand Rules of
Procedure and Evidence
128
S. Zappala, `The Rights of Victims v. the Rights of the Accused, Journal of International Criminal Justice 8 (2010),
137-164, p. 139, See also REDRESS -The Practice of Victim Participation before the ICC: Issues and Challenges p.23
129
Proposition 6

26

their personal interests were sufficient to establish such a personal interest.130 Victims of
the suffering in the Sutas can influence the final formulation of the charges or even to
request measures regarding forfeiture.131 The ICC also provides explicit provisions for
even the Defence to question the victims.132 No infringement of rights thus takes place
when victims are allowed to participate in the proceedings of the Court. In the hearing
on the confirmation of charges, PTC I determined that the victims could participate at
some level.133
International crimes like those of crimes against humanity are those crimes that deny their victims
the status of human being, where this means that they violate basic human rights; second, crimes
against humanity are those that properly concern the whole of humanity, where this means that they
are wrongs for which we are responsible (i.e. accountable) to the whole of humanity.134

130

28.07.2006, Decision on the Applications for Participation in the Proceedings in the case of the Prosecutor v.
Thomas Lubanga Dyilo and of the investigation in the
Democratic Republic of the Congo ICC-01/04-01/06-228, p. 3, See also E. Baumgartner Aspects of victim
participation in the proceedings of the International Criminal Court
131
Rule 92(3) of the RPE provides for notification of the victims about the confirmation of charges hearing, which
implies the right to participate.
132
ICC Rules, Rule 89(1) provides that copies of victims applications shall be made available to both the Prosecution
and Defence counsel, who will have the opportunity to comment on the applications.131 Under Rule 89(2), either the
Prosecution or Defence may request that the Court deny an application to participate on the grounds that the applicant is
not a victim under Rule 85, or otherwise does not fulfill the criteria of Article 68(3).
133
Situation in the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Decision authorising
the filing of observations on the applications for participation in the proceedings a/0004/06 to a/0009/06, a/0016/06 to
a/0063/06 and a/0071/06 ICC-01/04-01/06-463 (Pre-Trial Chamber I, 22 September 2006).
134
Massimo Renizo, Crimes Against Humanity And the Limits Of Internationl Criminal Law, 2011

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PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced, it
is most humbly prayed before this Honble Court that it may be pleased to declare:
1. That Jingo Crackle be held liable for the charges under the jurisdiction of the court.
2. His arrest be considered lawful
3. That victim W01-W84 should be allowed to participate in the proceedings against Colonel
Jingo Crackle.
And pass any other order that it deems fit.
Respectfully submitted by the Agents for the Prosecution.

Prosecution Agent: ALS/M26

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