International Criminal Law

Professor: Maja Munivrana Vajda

Exam, January 22, 2013

INSTRUCTIONS:
1. This is partially open-book (first question) and partially closed-book examination
(second question). Please act accordingly and use the sources only when allowed. You
will be given second question only after you answer the first question (you may come
back to it but without using literature).
2. The allotted time is 1 hour and a half.
3. First question carries 25 and the second 15 points. Explain and justify your answers!
Good luck!

Question 1

Following the events in Tunisia and Egypt, which led to the departure of the respective
presidents in the early months of 2011, a series of peaceful protests began in Rubya as well.
On 15 February 2011, Ballafi's security services attempted to deter and repress, by any means,
including the use of lethal force, the demonstration of civilians against Ballafi’s regime. Within
a week, this uprising had spread across the country and Ballafi was struggling to retain control.
Ballafi responded with military force including bombs directed against civilians. From
February 15 until at least 28 February 2011, the Security Forces (units of the security and
military systems,) following a consistent modus operandi, carried out throughout Rubya an
attack against the civilian population taking part in demonstrations against Ballafi’s regime or
those perceived to be dissidents. The obvious aim was to destroy political opposition. Within
the period of less than two weeks the Security Forces killed and injured as well as arrested and
imprisoned hundreds of civilians.
On February 23, 2011, the Chief Prosecutor of the International Criminal Court (ICC) Luis
Moreno-Ocampo addressed the situation in Rubya and the possibilities of bringing Muammar
al-Ballafi, his son Saif-al-Islam Ballafi and former intelligence chief Abduallah Farussi to
justice for possible international crimes:
“The decision to do justice in Rubya should be taken by the Rubyan people. Currently, Rubya
is not a State Party to the Rome Statute. Therefore, intervention by the ICC on the alleged
crimes committed in Rubya can occur only if the Rubyan authorities accept the jurisdiction of
the Court, (through article 12(3) of the Rome Statute). In the absence of such step, the United
Nations Security Council can decide to refer the situation to the Court. The Office of the
Prosecutor will act only after either decision is taken.”
Three days later, on February 26, 2011, the UN Security Council adopted Resolution 1970,
deploring the gross and systematic violation of human rights, including the repression of
peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting
unequivocally the incitement to hostility and violence against the civilian population made from
the highest level of the Rubyan government. The resolution contained inter alia the following
language:
 “4. Decides to refer the situation in the Rubyan Arab Jamahiriya since 15 February 2011 to
the Prosecutor of the International Criminal Court;
5. Decides that the Rubyan authorities shall cooperate fully with and provide any necessary
assistance to the Court and the Prosecutor pursuant to this resolution and, while
recognizing that States not party to the Rome Statute have no obligation under the
Statute, urges all States and concerned regional and other international organizations to
cooperate fully with the Court and the Prosecutor;”
While before his death in October 2011 Muammar Ballafi had absolute, ultimate and
unquestioned control over the Rubyan state apparatus, including the Security Forces, his son
Saif al Islam, although not having an official position, was deemed Muammar’s successor and
the most influential person next to Muammar Ballafi. Saif exercised control over crucial parts
of the State apparatus, including finances and logistics and had the powers of de facto Prime
Minister. Abdullah Al-Farussi exercised his role as the national head of the Military
Intelligence, one of the most powerful organs of repression of Ballafi’s regime in charge of
military camps and Rubyan Armed Forces.
All the evidence point that the three of them conceived and orchestrated a plan to deter and stop
civilian demonstrations against the regime and assumed tasks that led to the commission of the
crimes. Their contributions were essential for the realization of the plan since they had the
power to frustrate the commission of the crimes by not performing their tasks.

Analyze the case – take into account the following questions:

1. Does the ICC have jurisdiction over the crimes committed in Rubya? Discuss the
relevant rules of the Rome Statute and the UN Charter.
2. If you were the chief Prosecutor of the ICC (Luis Moreno-Ocampo retired in the
meanwhile) how would you formulate the charges? Please discuss:
a) What crime has been committed? Explain the elements of the offence you would
charge (both the chapeau and the individual acts).
b) What mode of individual criminal responsibility seems most relevant to the case
at hand?
c) Could you hold Al Farussi responsible (and under what grounds) for rapes that
his troops committed while carrying out his orders to stop civilian
demonstrations and destroy political opponents? There is no evidence that he
ordered commission of rapes, but some available documents show that he at least
subsequently found out that rapes were committed and failed to do anything
about it.
3. Is Rubya obligated to cooperate with the ICC? What can happen if Rubya fails to
cooperate? Are other states not-parties to the Rome Statute under the obligation to
cooperate?
4. Rubya’s new government argues that it intends to prosecute Saif al Islam Ballafi for
the same crimes as soon as the state starts functioning properly again. Is that enough
to successfully challenge the admissibility of the case before the ICC?
 Question 2

Discuss the issue of reparations before the ICC: is the Court entitled to award reparations to the
victims of international crimes (briefly analyze the relevant legal framework)? What are some
of the problems the Court will be facing when trying to compensate victims? In your opinion,
should the Court award reparations on individual or collective basis (or both) and why?