03defense-2-2

03Defense

THE PROSECUTOR

v.

GENERAL ARTHUR REED

November 2013

TABLE OF CONTENTS

INDEX OF AUTHORITIESi

STATEMENT OF FACTS1

SUMMARY OF PLEADINGS5

PLEADINGS

PRELIMINARY FINDINGS7

I. TYPE OF ARMED CONFLICT

A. The conflict between AAF and PAB/DKF forces constitutes an

international armed conflict.

7

SPECIFIC CHARGES

I. REEDS INDIVIDUAL CRIMINAL RESPONSIBILITY THROUGH IMMEDIATE PARTICIPATION, CO-OPERATION, AND INTERMEDIARY PERPETRATION DO NOT EXIST. 8

A. Reed did not commit the war crime of excessive incidental death, injury, or damage.10

1. As to Element 1, the attack is justified by military necessity and mistake of fact.11

2. As to Element 2, the attack was proportional and reasonable.12

3. As to Element 3, Reed did not know the attack would cause

excessive damage.12

4. As to Element 4 and 5, an international armed conflict existed.

12

II. REEDS INDIVIDUAL CRIMINAL RESPONSIBILITY THROUGH INSTIGATING DOES NOT EXIST.13

A. Reed did not commit the war crime of attacking protected objects.14

1. As to Element 1, the attack is justified by tu quoque, duress, self-defense, and belligerent reprisal.14

2. As to Element 2 and 3, the hospital and the college are military objects.15

3. As explained, Elements 4 and 5 exist.

16

III. REED IS LIABLE NEITHER UNDER MILITARY COMMANDER NOR SUPERIOR CRIMINAL RESPONSIBILITY16

A. Reed did not commit the war crime of inhuman treatment.17

1. As to Element 1, the pain was only incidental17

2. As to Element 2 and 3, relating to torture, the detainees were

protected persons and the accused knows.17

3. As explained, Elements 4 and 5 exist. 18

B. Reed did not commit the war crime of torture. 1. In the absence of the war crime of inhuman treatment, the war crime of torture cannot exist.1818

2. Even assuming severe pain presence, it was not for obtaining a confession or punishment.18

PRAYER20

INDEX OF AUTHORITIESI. TREATIES

A. International Treaties

Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (adopted in 1964) 75 UNTS 31 (Geneva Convention I) 7, 18

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted in 1949) 75 UNTS 85 (Geneva Convention II)7, 18

Geneva Convention relative to the treatment of prisoners of war (adopted in 1949) 75 UNTS 135(Geneva Convention III)7, 18

Geneva Convention relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV)7, 18

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS 3 (Additional Protocol I)7, 8, 15, 16, 18

B. Regional Treaties European Treaties

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)15

II. STATUTES

1998 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 01 July 2002 )2187 UNTS 90 (ICC Statutes)11, 13, 17, 18

III. INTERNATIONAL CASES AND DECISIONS

A. International Court of Justice Publications

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 267

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v U.S.)(Judgment)[1986] ICJ Rep 148

B. International Criminal Tribunals for the Former Yugoslavia and Rwanda

Prosecutor v. Jean-Paul Akayesu (Trial Judgment) ICTR-96-4-T (2 September 1998)13

Prosecutor v. Tihomir Blaki (Trial Judgment) ICTY-95-14 (3 March 2000)13, 14

Prosecutor v. Tihomir Blaki (Appeal Judgment) ICTY-95-14 (29 July 2004)14

Prosecutor v. Muci, Delic and Lanzo Celebii Camp (Appeal Judgment) ICTY-96-21 (20 February 2001)9, 16, 17

Prosecutor v. Zejnil Delalic and others (Trial Judgment) ICTY-96-21-T (16 November 1998)19

Prosecutor v. Stanilav Gali (Trial Judgment and Opinion) ICTY-98-29-T (5 December 2003)14

Prosecutor v. Dario Kordic (Trial Judgment) ICTY-95-14/2-T (26 February 2001)13, 15

Prosecutor v. Radislav Krsti (Trial Judgment) ICTY-98-33 (22 August 2001)9, 14

Prosecutor v. Zoran Kupreki et al. (Decision of Evidence of Good Character of the Accused and the Defence of Tu Quoque) ICTY-95-16 (17 February 1999)15

Prosecutor v Miroslav Kvocka (Trial Judgment) ICTY-98-30/1- (1 April 1999)9

Prosecutor v. Fatmir Limaj et al. (Trial Judgment) ICTY-03-66-T (30 November 2005)11, 15, 17

Prosecutor v. Mladen Naletili & Vinko Martinovi (Trial Judgment) ICTY-98-34-T (31 March 2003)7

Prosecutor v. Milomir Staki (Appeal Judgment) ICTY-97-24 (22 March 2006)10

Prosecutor v. Duko Tadi (Appeal Judgment) ICTY-94-1-A(15 July 1999)7, 9

C. International Criminal Court

Prosecutor v. Katanga et al. (Decision on the Confirmation of the Charges) ICC-01/04-01/07 (30 September 2008)13

Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of the Charges) ICC-01/04-01/06 (29 January 2007)13

D. European Court of Human Rights

Ireland v. The United Kingdom (5310/71) [1978] ECHR 1 (18 January 1978)18

IV. NON-GOVERNMENTAL AND OTHER INTERNATIONAL ORGANISATIONS

A. United Nations Documents

UNGA Report of International Law Commission on the Work of its Forty-Eighth Session UN GAOR, 51 Sess, Supp. No. 10, U.N. Doc. A/51/10 (1996)13

B. International Yearbooks

Greek Case, 1967 (1972) 12 European Yrbk C of E 18618

V. BOOKS

Ambos K, Individual Criminal Responsibility in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, Baden-Baden: Nomos Verlagsgesellschaft (1999)9, 10, 14

Bothe M, Partsch KJ, Solf W, New Rules for Victims of Armed Conflicts: commentary on the Two 1977 Protocols additional to the Geneva Conventions of 1949 The Hague (Martinus Nijhoff Publishers 1982)11

Eser A, Individual Criminal Responsibility in Antonio Cassese, Paola Gaeta & John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 784 (Oxford University Press, 2002)9, 10, 12, 13, 14

Kalshoven F, Bellgerent Reprisals (Leiden, Sijthoff, 1971)11, 15

Triffterer O, Article 32, in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, (Hart Publishing Oxford 1999) 11

Williams G, Textbook of Criminal Law (London, Stevens, 2nd ed. 1983) 15

VI. JOURNAL ARTICLES

Carnahan B, Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity [1998] 92 AJIL 21311

Kalshoven F, Belligerent Reprisals Revisited [1990] 21 NYIL 4411

Werle G and Jessberger F, Unless Otherwise Provided: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law [2005] 3 JICJ 3517

VII. ONLINE

International Criminal Court (ICC), Elements of Crimes (2011) accessed 29 September 201312, 13

STATEMENT OF FACTS

Distinct sovereigns

Alphon and Bethuis are distinct independent states. Alphons Challenge

Alphons population comprises a mixture of Alphonians and Bethuisians in Kebia, southeastern Alphon that borders Bethuis. They vary in language and religion. It enjoys economic growth through high-tech industry policies. But Kebia straggles development due to its remote location. Thus, Bethuisians felt marginalized and begrudged the government.

But Alphon tried leveling disparities until hope ignited upon the discovery of rare and high-tech-industry-significant metal called "urie" in Kebia. Bethuisians thought they would not profit from its exploitation. Consequently, the idea of reuniting with Bethuis intensified.Bethuis opportunistic scheme

Bethuis shared the same language and culture with Bethuisians in Kebia. Bethuis worsened the Kebian mentality against Alphon by identifying Kebia as its lost province. The Bethuis urged Alphon to hold a referendum on Kebias future. With urie deposits discovery, Bethuis became fiercer on Kebias right to self-determination.

Bethuis pampers Kebia's tantrums

The Bethuisian People's Movements (BPM) accelerated in Kebia. Neil Bing, BPMs leader conferred Colonel rank by the Bethuisian National Assembly (BNA), regularly discussed the future of the BPM with Bethuis. Bing deepened Kebian animosity against Alphon by impressing that its government greedily exploited Kebias resources.

Bing recruited people to form the paramilitary group Democratic Kebian Front" (DKF). Through the support of Bethuis, Ventures, a Citrea-based multinational security and military company, was hired to train recruits and weapons were supplied to the DKF.

In June 2008, with the killings caused by mass BPM demonstrations, Alphon condemned Bethuis intervention in Alphons internal affairs, reiterating Kebia as an integral part of Alphon.

Because of this instability, Alphon declared Kebia under a state of emergency and posted several AAF units under the command of Gen. Arthur Reed. Bethuis responded by reinforcing its military presence at the border.

The DKF seized local government buildings in Kebia and attacked military compounds in Kiesh, Kebias main city. Bethuis sent 2000 troops from the People's Army of Bethuis (PAB) led by Col. Ian Rose. Within three days, the DKF/PAB, gained control over Kiesh and eastern Kebia and 2000 new PAB troops were stationed in Kiesh.

In AAF-controlled Kebia, there were civilian casualties, including soldiers. Suspected "terrorists" were arrested and detained in the Westwood Prison where Jackson Wall was prison warden.

Alphons responsible exercise of sovereignty

Alphon approved "Operation Thunderstorm" on 15 December 2008, aiming to regain control over eastern Kebia, of which Reed was in charge of. Defense Minister Tom Atom; the Head of National Intelligence Agency (NIA), Perry Ash; Reed; his deputy, Col. Harvey Simms; and other military staff agreed that recapturing Kiesh was the utmost priority.

Meanwhile, the DKF/PAB units seized Kiesh, established a command center in a local government building, and made Kiesh their control center for communication and logistics. They conducted artillery attacks against Rica, resulting in the death and injury of civilians to which Alphon declared to reserve all means to react.

At a meeting on 25 February 2009, Ash reported that civilians started to leave Kiesh to take refuge in the countryside and the implementation of a curfew prevented movements in the city. Atom warned that given their limited supply of ammunition; they should act promptly. Reed replied they would use them efficiently. He sanctioned a list of targets, with detailed coordinates for each, determined on the basis of all available information. These targets included the DKF/PAB command center, the army barracks, the main communication center, Bing's residence, and the BAS factory. Alphons responsible attacks against DKF/PAB

The AAF launched an attack on 17 July, with reconnaissance drones operated by a Special Unit of the NIA observing targets to assess the damages and advise commanders how to adjust their fire. At around 6:00 P.M., 12 artillery shells landed on the BAS factory compound where the normal working hours were 9:00 A.M. -5:30 P.M.

The next day, Ash informed Reed they received reliable information indicating Bing was in his home, patrolled by a PAB detachment. An evacuation plan secured locations in case of long-range artillery attacks and a bomb shelter was constructed for civilians. Ash and Reed agreed to use armed drones to attack Bing's apartment for target precision.

On the same day, the first and the second missiles were launched. Both hit the building; however, Bing had already left his apartment at the time of attack. The two-day-attack enabled the AAF to subdue the western part of Kiesh but the rest of the city remained DKF/PAB-controlled.Reasonable attacks at the Municipal Hospital

On 20 July, the AAF moved towards the DFK/PAB-controlled Rosemount district. The next day, the AAF combed the area to eliminate potential threats. Ash informed Reed that eyewitnesses saw Bethuisian soldiers taking refuge at the Municipal Hospital and Kebia Military College. Reed deployed a squad to the area, dutifully reminding their commander "any threat should be eliminated, but non-threatening persons should be spared.

While the AAF was approaching the Hospital, a Ventures guard fired shots before his supervisor intervened. After the exchange, the AAF finally entered the hospital. Reed ordered the wounded to be treated.Humanitarian treatment of Westwood Prison detainees

The AAF forces eventually subjugated Kiesh despite resistance from the Bethuisian community. Thomas Mange, an old University of Kebia history professor, delivered several speeches against Alphon. He and five of his students were arrested and detained at the Westwood Prison.

While detained, Mange led a hunger strike to which 26 detainees joined. Nonetheless, the health of detainees was paramount, thus, medical treatment was provided.

When the professor's health deteriorated, he was placed under medical supervision and forced feeding. This procedure required inserting a "10 French" tube through Mange's nose that threaded down into Manges stomach. After every feeding, he was observed for up to 60 minutes to ensure the prevention of vomiting.

When Mange resumed taking liquid nutritional supplements, 12 other hunger strikers also ended their strike.

SUMMARY OF PLEADINGS1. Bethuisian power as ruled in Tadic and the exercise of self-determination under Article 1(4) of the Additional Protocol I internationalized Kebian conflict. 2. The existence and knowledge of an IAC required in Lubanga and Katanga cases are insignificant in the absence of other elements. 3. Reed is not guilty of immediate participation, co-perpetration, or intermediary perpetration absent intention, functional criminal tasks division, and mastermind-agent relationship.4. Reeds attack on the BAS factory and Bings residence were justified by military necessity and mistake of fact; hence, the absence of required mens rea under Article 32, ICC Statute.5. The attacks in Kiesh were reasonable and proportional considering the concrete and direct overall military advantage foreseeable to Reed. 6. Although a superior-subordinate relationship exists, Reed lacks the mens rea required in Blakic regarding ordering, soliciting, or inducing another to commit a crime.7. Attendance of tu quoque, duress, self-defense, and belligerent reprisal justifies the attack in the Municipal Hospital and Kebian Military College.8. Under Article 52(2), Additional Protocol I, Ventures/DKF/PAB effectively transformed the Municipal Hospital and the Military College to military objects by purpose and use.

9. Even if Reed is a de jure person of authority as defined in Celebici, the crime which he should know, prevent, or punish is inexistent.10. The serious pain caused by forced feeding, being incidental to lawful sanctions, is not within the purview of inhuman treatment under Article 7(2)(e), ICC Statute.11. Although the detainees were protected persons under Common Article 3 of the four Geneva Conventions, inhuman treatment is ruled out, as detainees were given protection under Article 27 of Geneva Convention IV and Article 51 of Additional Protocol I.

12. In the absence of inhuman treatment, torture cannot exist as decided by the European Court of Human Rights in Ireland v. The United Kingdom.13. Even assuming severe pain existed, no torture was inflicted for obtaining information, confession, punishment, intimidation or coercion required in Delalic. PLEADINGS

PRELIMINARY FINDINGSI. TYPE OF ARMED CONFLICT

A. The conflict between AAF and PAB/DKF forces constitutes an international armed conflict (IAC)

Common Article 2(1) of the 1949 Geneva Conventions, as retained by Article 1(3) of Additional Protocol I, provides that an armed conflict may arise between two or more sovereign states. But even within a state, it can be internationalized when foreign power sends troops to oppose the local government. Its direction of each individual operation is not required. Overall control is achieved when the foreign state has a role in organising, coordinating or planning military actions, in addition to financing, training and providing operational support to that group. As ruled in the Nicaragua case, military assistance constitutes state intervention.

Led by Bing, BPMs paramilitary group, DKF, enjoyed covert military assistance from the Bethuisian government, namely: (1) hiring of Ventures, a Citrea-based multinational security and military company, to train recruits; (2) trainings in isolated part of Kebia; and (3) supply of weapons. On 5 July 2008, Bethuis sent 2000 troops from the PAB led by Rose to support the DKF. Hence, Bethuis intervened in Alphons internal affairs.

Moreover, Article 1(4) of the Additional Protocol extended the concept of international armed conflict to the exercise of their right of self-determination as BPM, demanded for a referendum on Kebias future.

SPECIFIC CHARGESI. REEDS INDIVIDUAL CRIMINAL RESPONSIBILITY Through IMMEDIATE PARTICIPATION, CO-OPERATION, AND intermediary perpetration DO NOT EXIST

Reed is charged under individual criminal responsibility, for committing a war crime involving the artillery attack and air strikes on Kebia between 17 and 18 July 2009, done either through: (1) immediate participationperpetration as an individual, (2) co-perpetrationperpetration jointly with another person, and (3) intermediary perpetrationperpetration through another person.

The actus reus requires participation in the material elements and the head covers physically perpetrating a crime or engendering an omission. The accused must have acted with awareness of possible results. In this case, Reed neither intended nor foresaw any crime or omission. In fact, he managed the use of artillery ammunition in the most efficient way and approved the list of targets for artillery attacks and air strikes, with detailed coordinates for each target. The targets coordinates were carefully determined through the Alphonian authorities records, pilotless-drones-collected information, and Kiesh informants. Targets were also constantly monitored and artillery spots were deployed with well-trained artillery personnel.

Even assuming that there was crime, immediate participation requires that the perpetrator must act on his own. But Reeds actions relied mainly on Operation Thunderstorm. He depended on the advise of Atom, Ash, Simms, other military staff, and AAF.

Trial Chamber II in the Stakic case found that co-perpetration does not have support in customary international law or in the settled ICTY jurisprudence; hence, invalidating the relevant parts of the Trial Judgment. Granting that it still exists, this mode of liability, being characterized by a functional division of the criminal tasks between the different co-perpetrators, who all share the same criminal intent, does not exist in this case. Operation Thunderstorm, as a valid exercise of sovereignty, merely aimed to regain control over eastern Kebia.

Intermediary perpetration is characterized by the predominance of a direct perpetrator who uses an innocent agent, the indirect perpetrator. Reed cannot be considered as a mastermind who employs superior willpower to have the crime executed because he planned and consulted with Operation Thunderstorm. A. Reed did not commit the war crime of excessive incidental death, injury, or damage. The required elements do not concur. At the ICTY, violations have elements each of which must be proved by the Prosecution beyond reasonable doubt. Failure means the accused is entitled to an acquittal.

1. As to Element 1, the attack is justified by military necessity and mistake of fact. Military necessity always involves a deliberate choice. Reeds choice to launch an attack was justified by the pressing situation, which led him to react. The necessity of the measures he took was indispensable for securing the ends of the war. Unfortunately, many workers were on overtime and Bing had already left his apartment at the time of the attack. An offender who lacks knowledge of an essential fact does not posses the mens rea necessary for conviction. The circumstances qualify as mistakes of fact.

2. As to Element 2, the attack was proportional and reasonable. Although, Kiesh sustained damage, the attacks constituted concrete and direct overall military advantage foreseeable to Reed at that time. In fact, reconnaissance drones observed targets, assessed damages, and advised commanders to adjust their fire. 3. As to Element 3, Reed did not know the attack would cause excessive damage. Judgment must be based on information available to the accused. While Reed admitted that collateral damages cannot be avoided, he did not foresee their excessiveness because they planned and executed the use of their ammunitions most efficiently.4. As to Elements 4 and 5, an international armed conflict existed. As submitted under I(A) of the Pleadings, an international armed conflict existed. This armed conflict played a substantial role in the accuseds decision. Reed, being in charge of the operation, was aware of the armed conflict. II. REEDS INDIVIDUAL CRIMINAL RESPONSIBILITY Through INSTIGATINg DOES NOT EXIST

Reed is charged under individual criminal responsibility, for ordering, soliciting or inducing, another to commit an offense the commission of a war crimeboth express and implied acts and omissions, in relation to the attack against the Municipal Hospital in Kiesh, on 20 July 2009.

The mode of ordering a crime presupposes superior-subordinate relationship. This requires proof that a person in authority uses that authority, reasonably implied, to instruct another to commit an offense. There is no form requirement. The accused must have the required mens rea and he must be aware of his orders consequences. Reed, though an authority, had no mens rea when he instructed the squad commander to spare non-threatening persons.

Soliciting means to command another person to commit a crime. This is also absent as Reed instructed only to eliminate legitimate threats.

Inducing a crime means to affect by persuasion. Superior-subordinate relationship is not necessary. Assuming that any subordinates of Reed committed a crime, no inducement happened as the only objective of advancing to Rosemount District was to eliminate potential threats only.A. Reed did not commit the war crime of attacking protected objects. The required elements do not concur. As explained in I(A) of Specific Charges, Reed is entitled to an acquittal.

1. As to Element 1, the attack is justified by tu quoque, duress, self-defense, and belligerent reprisal. The Ventures guard fired first and his supervisor intervened. Under the principle of tu quoque, AAF can do to Ventures/DKF/PAB what they did to them. Duress was present with no adequate means of avoiding that threat. Self-defense was likewise present when the AAF acted reasonably and proportionately to the degree of danger, which is customary. Additionally, the defense of belligerent reprisal can be invoked. AAF attempted to stop Ventures/DKF/PAB to make the Municipal Hospital and the Military College, as shield for military attack, violating international law.

2. As to Elements 2 and 3, the hospital and the college are military objects. The Municipal Hospital and the Military College are clearly military objects because by their use, they make an effective contribution to military action and whose neutralization, offers a definite military advantage for AAF.

3. As explained Elements 4 and 5 exist. III. REED IS LIABLE NEITHER UNDER MILITARY COMMANDER NOR SUPERIOR CRIMINAL RESPONSIBILITY

General Reed is charged under responsibility of commanders and other superiors, with respect to treatment of detainees in Westwood Prison, in particular, forced feeding. These types of command responsibility require: (1) hierarchical relationship, (2) a mental element, and (3) failure on behalf of the accused to take the necessary and reasonable measures to prevent the crime or punish the perpetrator.

The existence of a superior-subordinate relationship is characterized hierarchical relationship which exists by virtue of a persons de jure or de facto position of authority. The superiors effective control must be established such that substantial influence over subordinates is not a sufficient. Thus, criminal responsibility is not incurred. While superior-subordinate relationship exists, there is no evidence that Reed did not have effective control over his subordinates. He even had communication with the prison warden.

It must be proved that the superior had actual knowledge or constructive knowledge. As gleaned from the compromise, there is no crime to know, prevent, or punish. The detainees were treated ethically and with great care.

A. Reed did not commit the war crime of inhuman treatment.The required elements do not concur. As explained in above, Reed is entitled to an acquittal.

1. As to Element 1, the pain was only incidental. The serious pain arose only from incidental lawful sanctions and was committed sans intent. The act was done for the heath and well-being of Mange and other detainees.

2. As to Elements 2 and 3, the detainees were protected persons and the accused knows. Although the detainees were protected persons, inhuman treatment does not exist in the absence of the first element. The detainees were even given humane treatment and general protection from military operations. 3. As explained, Elements 4 and 5 exist.B. Reed did not commit the war crime of torture.1. In the absence of the war crime of inhuman treatment, the war crime of torture cannot exist. Torture covers only intentional infliction of severe pain. It differs from inhuman treatment in the intensity inflicted. The suffering of detainees was only incidental to lawful sanctions. Torture, an aggravated inhuman treatment, presupposes a deliberate inhuman treatment causing very cruel suffering. 2. Even assuming severe pain presence, it was not for obtaining a confession or punishment. The ICTY ruled the following purposes are part of customary international law: (a) obtaining a confession; (b) punishing victim: or (c) discriminating against the victim. But none of these was an objective of Reed.PRAYER

The Respondent submits that it has not been proven beyond reasonable doubt that General Reed committed the crimes as charged. The Respondent hereby requests the Trial Chamber to declare General Reed not guilty of all the three charges.

RESPECTFULLY SUBMITTED

Counsel for Respondent Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (adopted in 1964) 75 UNTS 31 (Geneva Convention I), Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (adopted in 1964) (Geneva Convention I), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted in 1949) 75 UNTS 85 (Geneva Convention II), Geneva Convention relative to the treatment of prisoners of war (adopted in 1949) 75 UNTS 135 (Geneva Convention III) and Geneva Convention relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV) Common Article 2(1); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS 3 (Additional Protocol I) art 1(3).

Prosecutor v. Duko Tadi (Appeal Judgment) ICTY-94-1-A(15 July 1999), para 84.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 26, para 404.

Prosecutor v. Mladen Naletili & Vinko Martinovi (Trial Judgment) ICTY-98-34-T (31 March 2003), para 198.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v U.S.)(Judgment)[1986] ICJ Rep 14.

Compromis (C) 9.

C9.

C9.

C9.

C9.

C11.

C9.

Additional Protocol I, art 4.

C9.

C47.

Albin Eser, Individual Criminal Responsibility, in Antonio Cassese, Paola Gaeta & John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 784 (Oxford University Press, 2002).

Ibid 771.

Kai Ambos, Individual Criminal Responsibility in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, Baden-Baden: Nomos Verlagsgesellschaft (1999) 475-492, 478f.

Tadic (n 2) para 188; Prosecutor v Miroslav Kvocka (Trial Judgment) ICTY-98-30/1- (1 April 1999), paras 250 and 251.

Prosecutor v. Radislav Krsti (Trial Judgment) ICTY-98-33 (22 August 2001), para. 601, referring to (Tadic Appeal Judgement), para 188.

Prosecutor v. Muci, Delic and Lanzo Celebici (Appeal Judgment) ICTY-96-21 (20 February 2001), para 327.

C20.

C21.

C22.

C22.

Ambos (n 18) 479; Eser (n 16) 789.

C16.

C18.

C23.

Prosecutor v. Milomir Staki (Appeal Judgment) ICTY-97-24 (22 March 2006), para 62.

Ambos (n 18) 479 and Eser (n 16) 790.

C16.

Ambos (n 18) 479 and Eser (n 16) 793f.

C18.

Prosecutor v. Fatmir Limaj et al. (Trial Judgment) ICTY-03-66-T (30 November 2005), para 5.

Ibid.

Burrus Carnahan, Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity [1998] 92 AJIL 213, 218.

C20

C20.

M Bothe, KJ Partsch, W Solf, New Rules for Victims of Armed Conflicts: commentary on the Two 1977 Protocols additional to the Geneva Conventions of 1949 The Hague (Martinus Nijhoff Publishers 1982) 194.

C25.

C27.

1998 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 01 July 2002) 2187 UNTS 90 (ICC Statutes) art 32; Otto Triffterer, Article 32, in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (Hart Publishing Oxford 1999) 895-914.

Eser (n 16) 938.

C29.

International Criminal Court (ICC), Elements of Crimes (2011) accessed 29 September 2013

C23.

ICC (n 46).

C20.

C20.

C22.

Prosecutor v. Reed, Defense Memorial, I(A).

Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of the Charges) ICC-01/04-01/06 (29 January 2007), para 287; Prosecutor v. Katanga et al. (Decision on the Confirmation of the Charges) ICC-01/04-01/07 (30 September 2008), para 380.

C16.

ICC (n 46) art 8, Introduction.

ICC Statute, art 25(3)(b); Eser (n 16) 795.

Prosecutor v. Jean-Paul Akayesu (Trial Judgment) ICTR-96-4-T (2 September 1998), para 482.

Prosecutor v. Tihomir Blaki (Trial Judgment) ICTY-95-14 (3 March 2000), para 280.

C47.

UNGA Report of International Law Commission on the Work of its Forty-Eighth Session U.N. GAOR, 51 Sess, Supp. No. 10, U.N. Doc. A/51/10 (1996), 20, para 8.

Prosecutor v. Dario Kordic (Trial Judgment) ICTY-95-14/2-T (26 February 2001), para 388.

Krstic (n 20), para. 601; Prosecutor v. Stanilav Gali (Trial Judgment and Opinion) ICTY-98-29-T (5 December 2003), para 168.

Blakic (n 58), para 281.

Blakic (n 58), para 282.

Prosecutor v. Tihomir Blaki (Appeal Judgment) ICTY-95-14 (29 July 2004), paras 41-42.

C10.

C33.

Ambos (n 18) 480f; Eser (n 16) 796.

C33.

Ambos (n 18) 480f; Eser (n 16) 796.

Ambos (n 18) 480f.

C33.

Limaj (n 35), para 5.

C34.

Prosecutor v. Zoran Kupreki et al. (Decision of Evidence of Good Character of the Accused and the Defence of Tu Quoque) ICTY-95-16 (17 February 1999).

Ibid, para 16.

Glanville Williams, Textbook of Criminal Law (London, Stevens, 2nd ed. 1983) 503.

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art 2(2).

Prosecutor v. Dario Kordic (Trial Judgment) ICTY-95-14/2-T (26 February 2001), para 451.

C32.

Additional Protocol I, art 12(4).

Frits Kalshoven, Belligerent Reprisals Revisited [1990] 21 NYIL 44; Frits Kalshoven, Bellgerent Reprisals (Leiden, Sijthoff, 1971) 1-44.

C33.

Additional Protocol I, art 52(2).

C47.

Celebici (n 21), para 303; ICRC Commentary on Additional Protocol I, para. 3544.

Celebici (n 21), para 193.




C10.

C39.

Celebici (n 21), paras 223, 241.

C42.

Limaj (n 35), para 5.

ICC Statute, art 7(2)(e).

Gerhard Werle and Florian Jessberger, Unless Otherwise Provided: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law [2005] 3 JICJ 35.

C40.

C42.

Geneva Convention I, II, III, and IV, Common art 3.

Geneva Convention IV, art 27.

Additional Protocol 1, art 51.


Ireland v. The United Kingdom (5310/71) [1978] ECHR 1 (18 January 1978) 66.

C42.


Greek Case, 1967 (1972) 12 European Yrbk C of E 186.

Ireland v. The United Kingdom, 66.

Prosecutor v. Zejnil Delalic and others (Trial Judgment) ICTY-96-21-T (16 November 1998), para 459.

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