POL 309-800, International Law
SUNY Oswego | Spring 2021
Dr. Craig Warkentin
Ch. 10, The Use of Force Including War (550-586)
actus reus (580)
in limine (559)
mens rea (568)
obiter dictum (569)
nullum crimen sine lege (566)
The Statute of the International Criminal Tribunal for the Former Yugoslavia (article 7, paragraph 4) makes it clear that the defense of acting on the orders of a superior officer will not justify a violation of the laws of war but may mitigate the punishment. Do you think a soldier who has killed unarmed civilians should be acquitted when he was ordered to shoot the civilians by a superior officer and was told that he would be shot if he did not carry out the killings?
Do you think it makes any difference that Erdemovic knew that even if he was shot, the unarmed civilians would not be spared?
The Chamber found that "these acts took place in the context of and were associated with a non-international armed conflict" and that "there is no evidence in the record of any foreign intervention in opposition to the Malian forces in the relevant time period, nor have the parties claimed that there was any involvement by another State that could potentially affect the classification of the conflict." Why does this matter? Recall the distinction between the law applicable in international armed conflict (IAC) and the law applicable in non-international armed conflict (NIAC). This distinction remains relevant in the ICC Statute. Compare articles 8(2)(a)&(b) with articles 8(2)(c)&(e).
The Chamber also notes, "With respect to the requirement that the armed violence must meet a certain minimum level of intensity to be distinguished from mere internal disturbances and tensions, the Chamber notes that the fact that these groups exercised control over such a large part of Mali for such a protracted period—with the resulting effect on the civilian population concerned—clearly demonstrates a sufficient degree of intensity of the conflict." Why does this matter? Articles 8(2)(d)&(f) of the Rome Statute reflect this, excluding application of the Statute's war crimes provisions to "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature." Why are states reluctant to apply humanitarian law in such situations?
Unlike the ICTY and the ICTR, the ICC also has jurisdiction to prosecute the crime of aggression. Aggression is a criminal violation of the jus ad bellum (i.e., a violation of the jus ad bellum that gives rise to individual criminal responsibility). Its inclusion in the Rome Statute was not without controversy. At the time of the Statute's adoption in 1998, the negotiating states were unable to agree on a definition for the crime of aggression, As a result, although the crime was included in the Statute, it was left undefined, and inoperative, pending agreement on a definition. A definition was finally agreed at the ICC Review Conference in Kampala in 2010. Owing to continued resistance by a number of powerful states, including the United States, the aggression amendment included additional hurdles to activation of the Court's jurisdiction over this crime. These hurdles were finally overcome in late 2017, and the Court's jurisdiction over aggression became operative in July 17, 2018, 20 years after the adoption of the Rome Statute. Why do you suppose the US and other permanent members of the Security Council were resistant to conferring upon the ICC jurisdiction to prosecute aggression?
Read article 2 and article 6(1) of the ICTR's Statute on the Tribunal's website [https://unictr.irmct.org]. What did the Tribunal require that the Prosecution prove to satisfy the elements of genocide? Had Simba killed anyone himself?
Does there need to be direct evidence of intent to commit genocide? On what facts did the Tribunal rely to prove Simba's genocidal intent?
What elements must be shown to demonstrate a joint criminal enterprise? What had Simba done that demonstrated he was part of a joint criminal enterprise?
Read article 3 of the ICTR's Statute. What does the Tribunal mean by "Crimes Against Humanity"?
What does the Tribunal mean by "Extermination"? Why was Simba found guilty of extermination?