Exam in international criminal law

Last week the students in our course "International Criminal Law" had their exam. The course is mostly for international exchange students at Stockholm University but also a couple of Swedish students have attended the course. I have now corrected and graded the exams. Below you may find the questions with model answers.

1. A series of peaceful protests began on 15 February 2011 which Gaddafi's security services attempted to repress. Within a week, this uprising had spread across the country and Gaddafi was struggling to retain control. Gaddafi responded with military force including bombs directed against civilians and other measures such as censorship and blocking of communications. The international community has taken several measures in order to stop Gaddafi.

a. UN Security Council Resolution 1973(2011) forms the legal basis for an military intervention in Libya, demanding “an immediate ceasefire” and authorizing the international community to establish a no-fly zone and to use all means necessary short of foreign occupation to protect civilians. A coalition of 17 states uphold the no-fly-zone and a naval blockade. The international coalition also target ground units belonging to the Libyan government in order to prevent attacks against civilians. During one of the missions a Danish fighter jet bombs a military barrack. The barrack is part of a base from where attacks are launched against civilians. Later it is discovered that the barrack housed more than one hundred child soldiers who are now dead. The children were forcibly recruited by Gaddafi who have used alcohol and narcotics to drug them in order to make them fight. Who can be held criminally responsible for the death of the children and for what crime? (4 p)

Answer: Libya and the international coalition is involved in an international armed conflict (1 p).

One could argue that the children are civilians and as a consequence the pilot of the Danish fighter jet has violated the principle of distinction which is a crime according to article 8(2)(b) of the Rome Statute. (1p) However, one may discuss whether the obligation to take necessary precautions requires that the international coalition knows who is in the barracks. The pilot did not know that it was children, thus the mens rea requirement is potentially lacking and it is probably not a war crime. (1 p). References to individual and/or superior responsibility in article 25 (1 p).

It is a war crime to conscript or enlist children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities, article 8(2)(b)(xxvi). (1 p). It is also a war crime to utilize the presence of civilians to render certain points, areas or military force immune form military operations (1 p) This means that Gaddafi or other Libyan leaders may be held accountable. (Maximum is still 4 points)

Answers based on articles 57 and 77 AP I have also been accepted.

b. The ICC Prosecutor Luis Moreno-Ocampo has 16 May, 2011 requested the judges to issue arrest warrants against the Libyan leader Muammar Gaddafi, the de facto prime minister Saif Al Islam Gaddafi and the Head of the Intelligence Abdullah Al Sanousi from crimes against humanity committed in Libya since February 2011. The situation in Libya was referred to the Court by the UN Security Council. Present arguments against and in support of affording Gaddafi immunity, and which of these arguments are most convincing from your viewpoint. (4 points)

Answer:
In favour of immunity: Customary international law grants immunity to heads of state (0,5 p) Mentioning cases such as the ICJ arrest Warrant Case-Yerodia, (0,5 p) Libya is not a state party (0,5 p)

Against immunity: Article 27 Rome Statute (0,5 p), the Court’s jurisdiction and the arrest warrants are based on UNSC referral (1 p)

Discussion about the fact that Libya is not a state party (1 p)

The distinction between personal and functional immunities is only relevant for proceedings in domestic courts and not in the present example which relates to the ICC.

2. Assume that the ICC Prosecutor presents charges against the Head of the Intelligence Abdullah Al Sanousi for alleged rapes committed by troops under Al Sanousi’s command.

a. Al Sanousi questions whether any rapes have committed by his troops and if any such acts have been committed it was carried out without his knowledge. How would you as a Prosecutor formulate the charges in order to hold Al Sanousi responsible? (2 points)

Answer:
Discussion about superior responsibility, Rome Statute, article 28. There must be i) a superior-subordinate relationship ii) the superior knew or ought to know that crime was or was about to be committed and iii) he/she failed to prevent/punish the crimes. Apply the law to the facts (1 p)
(1 p)

b. During the trial a women testifies that she has been raped by members of the Libyan intelligence service. The defence counsel wants to introduce evidence showing that the women prior to the alleged crime has been promiscuous and have had sex with many men. This would show that the sexual act was based on consent and as such no crime can be proven. Would you as a judge admit (allow) the defence counsel to present such evidence? (2 points)

Answer:
Rule 71 of the ICC RPE provides that a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness (2 p)

3. On September 11, 2001 a series of coordinated suicide attacks by al-Qaeda struck the United States which involved the death of 3 000 persons. As the founder of al-Qaeda Osama Bin Laden has been the prime suspect and he allegedly admitted responsibility for the attack in 2004. Assume that the US. Special Operations Force which was used on 1 May, 2011 did not kill Osama Bin Laden in Pakistan, instead he was captured and brought to the U.S. for trial.

a. Is it possible under international law for an American court to exercise jurisdiction over Osama Bin Laden? If the answer is yes, list all relevant heads of jurisdiction that the American Court could rely upon. (3 p)

Answer:
Territorial principle, the crime was committed on U.S. territory (1 p)
Universal principle, if the act is considered to be an international crime. (1 p) Some states exercise universal jurisdiction over other crimes as well, including terrorism
Discussion whether other principle applies (for example protective principle and passive nationality principle), 1 p

b. Pakistan has initially expressed some discontent that the US. Special Operations Force violated its territory when they arrested Bin Laden. The defence counsel of Bin Laden argues that the case should be declared inadmissible because his client was brought illegally to the U.S. Does this mean that an American court under international law can not proceed with the case against Bin Laden? (2 p)

Answer:
The fact that the abduction may be in violation of international law does not prevent a court from proceeding with the case. This follows from the male captus bene detentus principle (1 p)
Reference to the Eichman case and/or Alvarez-Machain case (1 p)

c. Which international crime(s) may be relevant for the prosecution against Osama Bin Laden? (2 p)

Answer:
Murder as a crime against humanity. Discussion about the contextual elements, was it widespread or systematic? Was it part of a organisational plan or policy? (2 p)