COMPENDIUM OF CASE LAWS

 Prosecutor v. DuškoTadić, Case No. IT-94–1-A, ¶ 656 (Int’l Crim. Trib. for the
Former Yugoslavia July 15, 1999).

 FACTS - The Accused is “a citizen of the former Yugoslavia, of Serb ethnic

descent, and a resident of the Republic of Bosnia and Herzegovina at the time of
the alleged crimes”. The Accused was charged with 31 individual counts of
persecution, murder, beatings and other offences alleged to have been committed in
1992 in the Prijedor district (northwestern part of the Republic of Bosnia and
Herzegovina) and more specifically at the Omarska, Keraterm and Trnopolje
camps, in Kozarac and in the area of Jaskici and Sivci. In all cases the Accused was
charged with individual criminal responsibility. The Accused pleaded not guilty and
“raised a defence of alibi” saying “that he was elsewhere when each of those acts
[referred to in the counts] is said to have occurred..”
 JUDGEMENT - On May 7, 1997, the Trial Chamber II found Tadić guilty on 9
counts and partially guilty on 2 counts. Tadić and the prosecution appealed on a
number of grounds.One of the arguments required the court to determine whether
or not the court was legitimate in its exercise of jurisdiction. Tadić argued that the
court was illegitimately created through the United Nations Security Council. His
argument was based upon separation of powers. He essentially argued that the
Security Council was an executive governmental branch and thus did not have the
power to create a judicial body

 The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, ¶

81, (Int’l Crim. Court March 4, 2009)
 FACTS- From March, 2003 to at least 14 July 2008, a protracted armed conflict not
of an international character existed in Darfur between the Government of Sudan
(GoS) and several organised armed groups, in particular the Sudanese Liberation
Movement/Army (SLM/A) and the Justice and Equality Movement (JEM). A core
component of that campaign was the unlawful attack on part of the civilian
population of Darfur – belonging largely to the Fur, Masalit and Zaghawa groups –
who were perceived to be close to the organised armed groups opposing the
Government of Sudan in Darfur. The campaign was conducted through GoS forces,
including the Sudanese Armed Forces and their allied Janjaweed militia, the
Sudanese Police Forces, the National Intelligence and Security Service (NISS) and
the Humanitarian Aid Commission (HAC). It lasted at least until the date of the
filing of the Prosecution Application on 14 July 2008.
 JUDGEMENT- Pre-Trial Chamber I found that there are reasonable grounds to
believe that Omar Al Bashir acted with specific intent to destroy in part the Fur,
Masalit and Zaghawa ethnic groups.
  The term “systematic” pertains to “the organized nature of acts of violence and to
the improbability of their random occurrence.” The term “systematic” has been
understood as either an organized plan in furtherance of a common policy, which
follows a regular pattern and results in a continuous commission of acts or as
“patterns of crimes” such that the crimes constitute a “non-accidental repetition of
similar criminal conduct on a regular basis.

 Prosecutor v. Jean-Pierre Bemba Gombo

 FACTS- The crimes were committed in Central African Republic ("CAR") from
on or about 26 October 2002 to 15 March 2003 ("2002-2003 CAR Operation") by
a contingent of Mouvement de Libération du Congo ("MLC") troops. Mr Bemba
was a person effectively acting as a military commander with effective authority
and control over the forces that committed the crimes. Sentenced, on 21 June 2016,
to 18 years of imprisonment.
 JUDGEMENT- Found guilty, on 21 March 2016, of two counts of crimes against
humanity (murder and rape) and three counts of war crimes (murder, rape, and
pillaging)
 The Court observed that the term “widespread” refers to “the large scale nature of
the attack, as well as to the number of victims”. It must be “massive, frequent,
carried out collectively with considerable seriousness and directed against a
multiplicity of victims. It involves an attack carried out over a large geographical
area or an attack in a small geographical area directed against a large number of
civilians.

 Prosecutor vs. Ali Kushayb ICC-02/05-01/07-3

 FACTS - According to Prosecution’s case files, Ali Kushayb was one of the most
senior leaders of the tribal hierarchy in the Wadi Salih Locality, a member of the
Popular Defence Force (PDF) and senior leader Militia/Janjaweed leader. The
Prosecutor submits that it is reasonably believed that Mr. Kushayb commanded
thousands of Militia/Janjaweed and thus implemented the counter-insurgency
strategy of the Government of Sudan, leading to the commission of war crimes and
crimes against humanity. In particular the Prosecutor alleges that Mr. Kushayb
enlisted fighters as well as arming, funding and providing food and other supplies
to the Militia/Janjaweed. This also amounts to his assistance in furthering the
common plan carried out by the Sudanese Armed Forces and the Militia/Janjaweed
to attack the civilian populations of Darfur, primarily the Fur, Zaghawa and Masalit
populations. Additionally, the Prosecutor alleges that it is reasonably believed that
Ali Kushayb personally participated in some of the attacks against civilians in the
towns of Kodoom, Bindisi, Mukjar and Arawala, where the killing of civilians,
rapes, tortures and other cruel treatments, pillaging of towns and destruction of
properties of civilian population occurred.
  JUDGEMENT - The warrants of arrest were issued in this case on 27 April 2007.
The suspects are still at large.
 Lack of sufficient evidence is no cause of conviction and becomes a stronger case
of acquittal. In the Ali Kushayb case there was no sufficient evidence against the
accused and hence it resulted in an acquittal.

 Prosecutor v. Kupreskic, Case No. IT-95-16-T, ¶ 549, (Int‟l Crim. Trib. for the
Former Yugoslavia January 14, 2000)
 FACTS - Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović,
Dragan Papić, and Vladimir Šantić were brought before the ICTY for their roles in
the commission of crimes against the Bosnian Muslim population of the village of
Ahmići in Bosnia and Herzegovina. In April 1993, the Bosnian Croat forces
attacked the village, aiming to remove the Muslim inhabitants through the
commission of crimes against them. The attack resulted in the deaths of over a
hundred Muslim inhabitants, numerous others were wounded and Muslim houses
and mosques were destroyed.Trial Chamber II was satisfied that the attack on
Ahmići was targeting the Muslim civilians with the aim to spread terror among
them and assure that they will never return to their homes.
 JUDGEMENT - Trial Chamber II found Zoran Kupreškić, Mirjan Kupreškić,
Vlatko Kupreškić, and Drago Josipović guilty of persecution as a crime against
humanity. Drago Josipović and Vladimir Šantić were further found guilty of murder
and other inhumane acts as crimes against humanity. None of the Accused was
found guilty of war crimes (paras. 770 et seq.).
 The requisite mensrea for the crimes against humanity appears to be comprised by
(1) The intent to commit the underlying offence, combined with (2) knowledge of
the broader context in which that offence occurs.”

 Ngudjolo Chui case

 FACTS - Mathieu Ngudjolo Chui (born 8 October 1970)[1] is a colonel in the
Congolese army and a former senior commander of the National Integrationist
Front (FNI) and the Patriotic Resistance Force in Ituri (FRPI).On 6 February 2008,
he was arrested by the Congolese authorities and surrendered to the International
Criminal Court (ICC) to stand trial on six counts of war crimes and three counts of
crimes against humanity.[2] The charges include murder, sexual slavery and using
children under the age of fifteen to participate actively in hostilities.
 JUDGEMENT - On 18 December 2012, Trial Chamber II acquitted Mathieu
Ngudjolo Chui of the charges of war crimes and crimes against humanity and
ordered his immediate release. The Prosecution appealed the verdict on 20
December 2012. On 27 February 2015, the verdict was upheld by the Appeals
Chamber.
  The court stressed that the ruling does not mean that no crimes were committed in
Bogoro nor does it question what the people of this community have suffered on
that day but that it was difficult to establish Ngudjolo’s guilt beyond reasonable
doubt because the testimony was too hazy and contradictory.

 Prosecutor v. dragoljub kunarac radomir kovac and zoran vukovic , IT-96-23-T& IT-
96-23/1-T
 FACTS - Dragoljub Kunarac, Zoran Vuković and Radomir Kovač participated in a
campaign by Bosnian Serb forces in Foča, an area located south eastern Bosnia and
Herzegovina. Kunarac was the leader of a reconnaissance unit and soldier who had
access to the highest military command in the Foča area. Radomir Kovač and Zoran
Vuković were members of a military unit known as the “Dragan Nikolić Unit”.
Together, the three men played a prominent role in organising and maintaining a
system of rape camps in the eastern Bosnian town of Foča. Their strategy was
recognised as “mostly expulsion through terror”. Kunarac, Vuković and Kovač
were arrested and their trial began on 20 March 2000. During an eight month trial,
sixty-three witnesses came forward to testify, including sixteen survivors of rape,
gang-rape and sexual slavery.
 JUDGEMENT - Through its analysis, the ICTY found Kunarac, Vuković and
Kovač guilty on multiple counts
 It was held that the accused must have had the intent to commit the underlying
offence or offences with which he is charged that he must have known that there is
an attack on the civilian population and that his acts comprise part of that attack or
at least that he took the risk that his acts were part of the attack.

 Prosecutor v. Alex TambaBrima et al., SCSL-2004-16-T, ¶ 784

 FACTS - Alex Tamba Brima was alleged to have been a member of a group of 17
soldiers which took power by force on 25 May 1997 in Freetown and overthrew the
democratically elected government of President Ahmed Tejan Kabbah. These
soldiers identified themselves as being members of the AFRC (Armed Forces
Revolutionary Council), their leader being Johnny Paul Koroma (see “related
cases”).
 JUDGEMENT - On 19 July 2007 he was convicted and sentenced to 50 years in
prison for committing war crimes and crimes against humanity during the Sierra
Leone Civil War.
 Article 28 of the Rome Statute provides for the command responsibility for civilian
superiors and persons effectively acting superiors. The ad hoc tribunals have held
it is immaterial whether the superior-subordinate relationship is de jure or de facto.

 The Prosecutor v. Ahmad Al Faqi Mahdi , ICC – 01/12- 01/ 15

  FACTS - On 27 September 2016, Trial Chamber VIII found Mr Al Mahdi guilty,
as a co-perpetrator, of the war crime of intentionally directing attacks against
historic monuments and buildings dedicated to religion, including nine mausoleums
and one mosque in Timbuktu, Mali, in June and July 2012. The time he has spent
in detention since his arrest upon the ICC warrant issued on 18 September 2015 will
be deducted from the sentence.
 JUDGEMENT - Found guilty, sentenced to 9 years.
 The chamber unanimously found Mr. Al Mahdi guilty beyond reasonable doubt as
a co- perpetrator of the war crime consisting in intentionally directing attacks
against religious and historic buildings in Timbuktu, Mali, in June and July 2012.
Moreover, Mr. Al Mahdi admitted his guilt that he understood the nature and
consequences of his act and also his admission was voluntary.

 Kahwa Panga Mandro case

 FACTS - According to the allegations brought against Mandro Kahwa Panga, his
party was allegedly responsible for the destabilisation of the district of Ituri.
Furthermore, by setting fire to the medical centre and to schools and churches in
the districts of Zumbe and Bedu Ezekere between 15 and 16 October 2002, Mandro
Kahwa Panga, was accused of being responsible for the death of at least 10 persons.
He was accused of murder, arson and misappropriation of public funds. His arrest
followed that of several other leaders of Ituri militias, including Thomas Lubanga
and Floribert Njdabu Ngabu.
 JUDGEMENT - Although first convicted and sentenced for war crimes and crimes
against humanity in February 2005, the appeals court in the northeastern city of
Kisangani overturned that verdict, saying Chief Kahwa was covered by the
country’s amnesty law
 It has been proven through the testimony of the victims that the troops of the chief
Kahwa attacked Zumbe on his order, while he was the chief of the Hema militia.

 Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, para 7; Lubanga, TC I, ICC-

01/04- 01/06, 24 June 2009, para 4
 FACTS - Children as young as 11 were recruited from their homes and schools to
take part in brutal ethnic fighting in 2002-03. They were taken to military training
camps and beaten and drugged. Girls were used as sex slaves.
 JUDGEMENT - Found guilty, on 14 March 2012, of the war crimes of enlisting
and conscripting children under the age of 15 years and using them to participate
actively in hostilities (child soldiers). Sentenced, on 10 July 2012, to a total of 14
years of imprisonment. Verdict and sentence confirmed by Appeals Chamber on 1
December 2014. On 19 December 2015, Mr Lubanga was transferred to a prison
facility in the DRC to serve his sentence of imprisonment. The reparations
proceedings started on 7 August 2012.
  The prosecution included in its written submissions an analysis of the Statute and
the relevant jurisprudence, arguing that articles 69(3) and (4) create a
straightforward test for the assessment of evidence: the evidence must be relevant,
have probative value and be prima facie reliable.1This means that the initial
evaluation of open source evidence in the investigative stage would have to follow
the same admissibility test.

 Gbagbo case , PTC I, ICC-02/11-01/11, 3 June 2013, para 22

 Gbagbo and Blé Goudé each stand accused of crimes against humanity in the
aftermath of Côte d’Ivoire’s November 2010 presidential elections. Côte d’Ivoire
is a West African nation with about 23 million citizens and a troubling history of
violent bursts fueled by exclusionary sociopolitical rhetoric since the mid-1990s.
Gbagbo’s refusal to cede power to then-challenger Alassane Ouattara engulfed the
country in political violence until April 2011, leaving about 3,000 people dead.
 The Blé Goudé case and Gbagbo case were joined on 11 March 2015. The trial
began on 28 January 2016. The trial continues.
 The admissibility of anonymous NGO reports does not -in any way- predetermine
the Chamber's final assessment of the evidence or the weight to be afforded to it.
Moreover, the Majority reiterates its view that anonymous NGO reports may be
admitted for the limited purpose that the information contained therein may serve
to corroborate other pieces of evidence.