Kan ICC pröva åtal för krigsförbrytelser begångna av Malis armé?

För två veckor sedan fick mina studenter i kursen internationell straffrätt skriva tenta. Frågorna rörde Mali, bl.a. huruvida brott begångna av Malis regeringsarmé kan prövas av Internationella Brottmåsdomstolen (ICC). Idag skriver Svenska Dagbladet att "Malis armé anklagas för krigsbrott", en fråga som berördes i tentan. Därför tänkte jag att det kunde vara intressant om jag la upp tentafrågorna och mina typsvar.

Question 1

In April 2012, rebel groups, some with links to al-Qaeda, took control of the large areas of the north of Mali. Mali is a state party to the ICC. On 18 July 2012, the Government of Mali referred the situation in Mali since January 2012 to the ICC. The Government of Mali requested the ICC to investigate alleged crimes perpetrated by the rebels. The situation in Mali has been assigned to Pre-Trial Chamber II.

One of the accusations of the Government of Mali is that the rebels are involved in widespread recruitment of young people, including children under the age of 15, on an enforced basis. Assume that the Prosecutor at the ICC starts an investigation against the leader of the rebel group that is involved in these activities. The Prosecutor claims that the leader has: 1) been informed, on a substantive and continuous basis, of all key aspects of the operations of the rebel group and 2) been involved in all key policy decisions of the group, including military strategy, organization, recruitment and financing. 1a) How would you as a Prosecutor formulate the charges in order to hold the rebel leader responsible, both in terms of the crime prosecuted and the mode of liability? (7,5 p)

Answer: It is the war of conscripting children. It is a non-international armed conflict which makes Rome Statute, article 8(2)(e)(vii) applicable, 5 p

Mode of liability: commission of the crime, article 25(3)(a) of the Rome Statute, 2,5 p

Answers that have only discussed superior/command responsibility has given some, but not full, points. Some of the witnesses are very young and the Prosecution wants to prepare them in substance before giving evidence (witness proofing). The Prosecution also wants to familiarize the witnesses with courtroom procedures (witness familiarization). The defence objects to these practices.

1b) How would you as a judge rule on the issues of witness proofing and witness familiarization? (7,5 p)

Answer: Provide explanation what witness proofing and witness familarization is: 2,5 p Reference to case law, Limaj (ICTY), Karemara (ICTR), Lubanga (ICC), 2,5 p,

Arguments where you explain your position, 2,5 p please note that a decision from a pre-trial chamber (Lubanga) is not binding on other chambers, article 21(2). It is not enough with just a reference to the Lubanga case, you have to explain your view.

See page 462 in the textbook

Question 2

On 20 December 2012 the UN Security Council decided to authorize the deployment of an African-led International Support Mission in Mali (AFISMA) which shall take all necessary measures, among other tasks, to support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups and in reducing the threat posed by terrorist organizations.

In January 2013 France deployed troops in the capital of Mali to provide security and French fighter jets have attacked rebels in the north of Mali.

Question 2a). Assume that a bomb from a French fighter jet hits a village townhouse resulting in a lot of civilian casualties. The French air force claims that an important rebel leader was at the site. At this point of time it is unclear how much information the French military was in possession of and what precautionary measures were taken. Assume that there are also allegations that Government forces have committed international crimes. As indicated above the Government of Mali requested the ICC to investigate alleged crimes perpetrated by the rebels. Does the ICC have jurisdiction over French and Government forces? Is it possible for the Government of Mali to limit the jurisdiction to the rebels? How would you rule on this issue as a judge? (7,5 p)

Answer: Explain the basis for jurisdiction: French soldiers/leaders are under the jurisdiction of the ICC on two possible grounds: ii) territory, article 12(2)(a), (crimes committed in Mali’s territory and Mali is a state party) ii) nationality, article 12(2)(b) (French citizens and France is a state party), 5 p

A possible answer on the second part of the question: There is no basis for Mali’s limitation to rebel forces in the Rome Statute. Otherwise the ICC could be used as a tool against the opponents of a Government. The ICC can exercise jurisdiction over potential crimes committed by Government forces and French forces. The self-referral of Mali activates the Court in relation to the situation in Mali but Mali does not have any control beyond that in relation to specific case selection. 2,5 p

Question 2b). Assume that the French authorities investigate the incident and decides not to initiate a trial against the fighter pilot and his superiors. No reasons for the closure of the investigations are given to the media or the public. Is the case admissible at the ICC? (7,5 p)

Answer: Explain the complementarity principle, reference to article 17 of the Rome Statute, discuss willingness, ability and genuiness in the investigation and purpose of the French investigation (is it shielding?), article 17, 5 p

Argue and motivate whether this specific case is admissible, noting that no reasons for the closure of the investigations are given to the media or the public, 2,5 p