Geneva convention 1979

That An International Armed Conflict Existed For The Purpose Of The Applicability Of The Geneva Convention.

The International Criminal Court has been empowered to try cases involving the commission of War Crimes and Crimes against humanity by virtue of Article 5 of the Rome Statute of the International Criminal Court. It is well settled that to constitute a War crime within the meaning of the ICC Statute it is of essence that the conduct in question must have taken place in the context of and must have been associated with an International Armed Conflict.
“War Crimes” are provided for under Article 8 of the Statute and includes grave breaches of the Geneva Conventions of 12 August, 1979.
For the applicability of the provisions of the IV Geneva Convention, two conditions must be met: (1) the armed conflict must be international in nature ; (2) the crimes must be committed against "protected persons" within the meaning of Article 4 of the Geneva Conventions of 1949(relative to the Protection of Civilian Persons in Time of War. Geneva).

1.4 Under International law, a conflict is international if it takes place between two or more States. Furthermore, an internal armed conflict may become international if another State intervenes through its troops or if some of the participants to the conflict act on behalf of another State.

1.5. Thus, an armed conflict which seems prima facie to be internal in nature can become international if a State intervenes "directly" in another State. The Trial chamber in the case of Nicaragua v United States held that an intervention by a foreign state is prohibited by International law if:

It impinges upon matters as to which each state is permitted to make decisions by itself freely (e.g., choice of its political or economic system or adoption of its own foreign policy); and
It involves interference in regard to this freedom by methods of coercion especially force (e.g., provision of indirect forms of support for subversive activities against the state subject of the alleged intervention.

1.6. The Intelligence Reports provided by the Government of Durako clearly establish direct and indirect involvement of the Government of Nimbusland in the armed conflict in Durako. The State of Nimbusland is the sponsor of the activities of CLA in Durako and the CLA cadres were acting as agents of Nimbusland in clashes between the Durako Government and CLA armed forces. CLA has been receiving constant financial support from Nimbusland particularly for the purchase of arms, and logistic support in the form of assistance in purchasing weapons and the provision of military equipment.

1.7. It must be further noted that an armed conflict can also be internationalized when some participants actually act on behalf of another State. The proper standard to establish such an indirect intervention is " overall control” as laid down in the Prosecutor v. Tadic case.

1.8. “Overall Control” by a State over subordinate armed forces or militias or paramilitary units may be of an overall character when a State (or, in the context of an armed conflict, the party to the conflict) has a role in organizing, co-coordinating or planning the military actions of the military group, in addition to financing, training and

equipping or providing operational support to that group. “Overall control” is thus established when acts of armed forces, militia or paramilitaries may be ascribed to a foreign State.

1.9. In the present case, the control exercised by Nimbusland over the Durako forces is established in light of the following elements: (1) the nationalistic and expansionist political views of the prime Minister of Nimbusland (2) the sharing of these goals and aspirations by the CLA leaders ; (3 ) the financial and military assistance flowing from Nimbusland.

1.10. Thus, the first jurisdictional prerequisite for the application of Article 2 of the IV Geneva Convention that the conflict must be international by the intervention of another state in that conflict through direct deployment of its troops or by indirect intervention so as to exercise overall control over one of the parties to the conflict is thus satisfied in the instant case. Nimbusland by supporting the CLA materially technically and militarily is indulging in proxy war with State of Durako and is indirectly intervening so as to exercise overall control.

Ii. The Detainees Were Protected Persons Within The Meaning Of Article 4 Of The Geneva Convention.

The second requirement of Article 2 is that the victims or properties subject to violations be protected within the meaning of Article 4 the Geneva Conventions (relative to the Protection of Civilian Persons in Time of War) Geneva, 1949.

The Trial Chamber in the Prosecutor v. Tihomir Blaskic stated that the nationality requirement contained in the Geneva Conventions should not be given an overly strict or formal interpretation.

The nationality requirement in article 4 of the Geneva Convention has been interpreted flexibly at the ICTY, in accordance with the overall object and purpose of the Geneva Conventions (that is, to protect all persons not taking a direct part in hostilities). Thus, the focus has shifted from one of nationality to that of allegiance. Civilians, who no longer owe allegiance to the party to the international armed conflict in whose hands they find themselves, shall be accorded the status of “ protected persons ” notwithstanding the fact that they shared the same formal nationality with the perpetrators.

The Celebici Trial Judgment further developed the progressive approach taken in the Tadic Appeal, by holding that Bosnian Serb civilians need not necessarily be viewed as Bosnian nationals for the purposes of the grave breaches provisions.

It is apparent from ICTY jurisprudence regarding the protected person requirement that it is the substance of the relations between the persons and the state that matters most, not formal bonds; 'ethnicity rather than nationality may become the ground for allegiance.

Hence, given the emphasis upon allegiance and not nationality, if a belligerent party unlawfully detains its own civilian nationals, who are allegiant to an adverse party to the conflict, these civilians have the status of protected persons under Geneva Convention IV and their unlawful confinement constitutes a grave breach.

That the members of the Chengo Liberation Alliance (CLA) were acting on behalf of the State of Nimbusland and owed their allegiance to the State of Nimbusland and never considered themselves as nationals of Durako. There existed a real and formal legal link between CLA armed cadres and the State of Nimbusland in so far as the alliance was receiving constant material, technical and military support from Nimbusland.

Thus, although the CLA armed cadres (perpetrators) and their victims may strictly speaking, have shared the same formal nationality (that of Durako) the victims were 'protected persons' because they did not owe allegiance to and did not receive the diplomatic protection of the Nimbusland on whose behalf the CLA armed forces had been fighting.

Charge Of War Crime Of Unlawful Confinement

That The Elements Of Crime For The War Crime Of Unlawful Confinement Are Satisfied In The Instant Matter.

2.1 “ Unlawful Confinement ” of protected persons is a War Crime under Article 8(2) (a) (vii) of the ICC Statute and Article 147 of the Geneva Convention IV. Article 79 of the Convention further provides that the Parties to the conflict shall not confine protected persons, except in accordance with the provisions of Articles 41, 42, 43, 68 and 78.

2.2. It is submitted that the Elements of Crimes required for constituting the offence of “Unlawful Confinement” for the purpose of the above-mentioned provisions are as follows:

(A) The perpetrator confined or continued to confine one or more persons to a certain location.

Element 1 requires that the perpetrator (in this case, the CLA) must have confined the detainees unlawfully i.e. in contravention of the provisions of the Fourth Geneva Convention.

Having identified the relevant standards based on the provisions under the Geneva Convention IV, the Appeals Judgment in The Prosecutor v. Zejnil Delalic & Ors concluded that the offence of unlawful confinement could be committed in one of two ways, namely where:

[An Accused] has no reasonable grounds to believe that the detainees pose a real risk to the security of the state ;(Article 42) or;

(ii) He knows that they have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not). (Article 43)

Thus, the involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful.

In the instant matter, the act of seizure of the prisons in Merul and confinement of the chief and other guards of the prison on 10 May 2007 was unlawful and unjustifiable. The prison chief and the guards did not pose any real threat to the security of CLA so as to afford a reasonable ground for their detention. The detention was uncalled for and in clear breach of the laws of war enshrined under the Geneva Convention.

As regards the detention of Migami-Speaking officials, business people and industrialists on 11 May, 2007, who the CLA claimed to be belonging to the UDF, the same was unlawful and constituted a ‘War Crime’ for the purpose of Article 8 of the ICC Statute. The aim behind the establishment of UDF was to save Durako from disintegration. The members of the United Durako Front by way of their activities or qualifications cannot be held as posing a security threat to the CLA.

According to the second test defined by the Delalic Appeals Judgment , unlawful confinement may also be committed where an individual ‘knows that ‘protected persons’ have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not)’.

No such procedural requirements were met by CLA in affording the requisite procedural safeguards to the detainees and thus, the confinement was “unlawful” within the meaning of Article 8(2) (a) of the ICC Statute.

(B) Such person or persons were protected under one or more of the Geneva Conventions of 1949.

(D) The conduct took place in the context of and was associated with an international armed conflict.

(E) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Ii. That Mr. Albert Wiseman Is Liable For The War Crime Of Unlawful Confinement Under Articles 25 28 Of The Icc Statute.

2.3. It is humbly submitted that Mr. Albert Wiseman is individually responsible for the War Crime of “Unlawful Confinement” under Article 25 of the ICC Rome Statue. Article 25 of the ICC Statute provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the court (War Crime of ‘Unlawful Confinement’ in the instant case) if that person: orders, solicits, or induces the commission of such crime or in any other way contributes to the commission of such a crime by a group of persons acting with a common purpose.

2.4. It is submitted that in order to establish that the accused “ordered”, “planned” or “instigated” crimes within the meaning of Article 25 of the Statute, the following elements must be proved: (i) the actus reus of the crime was committed by a person other than the accused; (ii) the conduct of that other person was in execution of an order or plan of the accused, or instigated by him; and (iii) the accused had the mens rea of the crime.

2.5. “Ordering” implies a superior-subordinate relationship between the person who orders and the one who carries it out. In other words, the person in authority uses that authority to cause another to commit an offence. “Planning” implies that one or several persons plan, design or organize the commission of the actus Reus of a crime.

2.6. Mr. Albert Wiseman acted as an accessory to the principle accused by ordering, and planning the commission of the war crime of “Unlawful Confinement” and thus, is individually responsible for the said crime under Article 25 of the Statute. Mr. Wiseman by virtue of his superior position as the Commander of the CLA armed cadres directed and ordered the subordinate CLA cadres to carry out seizure of the prisons in Merul on 10 May 2007 and subsequent confinement of the UDF members on 11 May, 2007. The statement given by the perpetrator of the crime clearly suggested that the cadres were acting under the orders of Mr. Albert Wiseman.

2.7. The essence of instigating is that the accused must cause another person to commit a crime. Although it must be proved that the instigation was a clear contributing factor to the commission of the crime, it need not be a conditio sine qua non .

2.8. Furthermore, to establish the mens rea of the superior who orders, plans or instigates, it is necessary to prove his direct or indirect intent. The statement given by Mr. Albert Wiseman on 5th November, 2006 evidently showed the intent wherein he declared that the CLA would be resorting to armed violence. Subsequently, on 12th May 2007 the man who led the team of CLA Cadres during the attack on Merul Prisons informed the electronic and print media that they had acted in furtherance of the programme decided by Mr. Albert Wiseman. He further said that the objective behind the attacks was to send a threat to the UDF and to the Government of Durako. Thus, the conduct of the Mr. Albert Wiseman and the CLA Cadres clearly constitute the crime of Unlawful Confinement.

Furthermore, being a superior, the culpability of Mr. Wiseman should be much greater in comparison to that of his subordinates, the reason being that he on the one hand violated his duty to hinder his subordinates from wrongdoing, and, on the other hand, he actively abused his own powers in ordering his subjects to commit a crime. Ordering a crime is certainly the strongest form of instigation.

Iii. That The Confinement Of The Detainees Amounted To Grave Breaches Of The Customary International Humanitarian Law

The Customary International Law requires adequate provisions to be made for the basic needs of persons deprived of their liberty. Rule 118 of the Customary International Humanitarian Law states that persons deprived of their liberty must be provided with adequate food, water, clothing, shelter and medical attention.

This is further supported by Article 142 of Fourth Geneva Convention which makes it obligatory on the part of the detaining party to ensure the security of the Detainees and to provide necessary facilities to the prisoners.

The Detainees in the instant case were confined in unhygienic conditions by stuffing them into small rooms without any proper light and ventilation. The Prisoners were given meals only once a day. They were verbally abused and occasionally beaten by the prison guards who were acting under the orders given to them by the CLA Cadres. Thus, the conduct of the CLA Armed Cadres was in grave violation of the customary international humanitarian law.

Furthermore common Article 3 to the Geneva Conventions lays down minimum standards that the parties must respect during a conflict, expressing “the fundamental principle underlying the four Geneva Conventions”, that is, humane treatment.

Charge Of Crime Against Humanity Of Extermination

That Mr. Wiseman Is Liable For The Crime Against Humanity Of Extermination Under Article 7(1) (B) Of The International Criminal Court Statute.

3.1. Extermination, a Crime against Humanity is punishable under Articles 5(b) and 7(1) of the Rome Statute. Extermination refers to a systematic attack directed against a civilian population, leading to death of the victims.

3.2 The elements of this crime, provided for, under Art. 7(1) (b) of the ICC Statute is as follows:

1) The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population.

2) The conduct constituted, or took place as part of, a mass killing of members of a civilian population.

3) The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

4) 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.

3.3. Thus, in order to prove the crime of “Extermination”, it must be first shown that the perpetrator killed one or more persons to bring about the destruction of part of a population. The CLA cadres in the instant case attacked the residential locality in Merul with a view to cause destruction to the Migami-speaking population of Chengo and killed more than 500 people, including several women, children and elderly.

3.4. The subsequent requirement that needs to be proved in order to establish this grave charge against humanity is the presence of an “attack”. The requirement of an attack is further qualified by the terms widespread or systematic against a civilian population. Furthermore, the attack must be directed towards a multiplicity of -potential- victims.

3.5. The widespread character of the crime can be determined on the basis of the gravity and the magnitude of the attack. In Akayasu Judgment, the trial chamber held that the term "widespread" may be defined as " massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims ." Similarly, Trial Chamber II in Kayishema understood "widespread" to mean an attack " directed against a multiplicity of victims ."

3.6. The “ systematic character ” refers to four elements which for the purposes of this case may be expressed as follows:

(a) the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community;

(b) the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another;

(d) the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan”.

3.7. The third requirement is the nexus between the acts of the accused and the attack . Not all crimes committed during the attack constitute crimes against humanity; to count as a crime against humanity, a crime must form part of the attack. A visible link can be established between Mr. Wiseman and the attacks constituting the crime, by the press releases given by CLA, stating that the acts in pursuance to their “liberation” movement were being carried out under the guidance of Mr. Wiseman.

3.8. Furthermore, as Bassiouni writes, Extermination implies both intentional and unintentional killing. The reason for the latter is that mass killing of a group of people involves planning and implementation by a number of persons who, though knowing and wanting the intended result, may not necessarily know their victims. Furthermore, such persons may not perform the actus reus that produced the deaths, nor have specific intent toward a particular victim.”

3.9. The fourth element is that the attack is directed towards any civilian population. The term " any " means that crimes against humanity can be committed against any civilian group regardless of nationality, ethnicity, or any other distinguishing feature. A " population " in this context, is a sizeable group of people who possess some distinctive features that mark them as targets of the attack.

In the Case of The Prosecutor v. Tihomir Blaskic it was observed that “The notion " directed against " puts the emphasis on the perpetrator’s intention rather than on the physical result of his acts.”

3.10. The subsequent requirement is that the act or omission was unlawful and intentional, reckless, or grossly negligent. The mens rea for the offence of extermination is fulfilled once it has been established that the accused intended to commit violence to life or person of the victims "deliberately or through recklessness and the little respect he had for those persons’ lives or integrity.” The intention to wipe out the Migami speaking population can be clearly inferred from the message given by Mr. Wiseman wherein in explicitly stated their plan to remove the stains of non-Chengo domination on the true Chengo people.

3.11. Lastly, The accused must have knowledge of the wider context in which his conduct occurred. It was held in the Blaskic case that the person who has "knowledge’ of the plan at the root of the crimes "is not only the one who fully supports it but also the one who, through the political or military functions which he willingly performed and which resulted in his periodic collaboration with the authors of the plan and in his participation in its execution, implicitly accepted the political context in which his functions, collaboration and participation must most probably have fit.

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