The Problem
The Problem
Background
On the territory of the once-glorious Kingdom of “Grandosia” there are now two States.
When the Kingdom dissolved, the “Automons”, who for a long time believed they had been repressed by the ruling Grandosians, broke away in a bitter war of national liberation. They subsequently formed the new State of “Governia” in the north-western part of the former kingdom. The remaining parts of Grandosia subsequently formed the State of “New Grandosia”.
Governia was soon accepted by the international community and joined the United Nations shortly after being officially recognised by New Grandosia.
The people and government of New Grandosia see their new State as the successor to the Kingdom of Grandosia and whilst the official policy of New Grandosia was to leave the past behind, there are ethnic and political tensions in the relationship with Governia. The majority of the citizens of New Grandosia are of Grandosian ethnicity and have traditionally been part of the ruling class. However, a considerable number of Grandosians also reside in Governia, which appears to be mainly ruled by the majority who are of Automon descent.
In the last few years, tension has increased. A new government in New Grandosia has stepped up the rhetoric, claiming a need to “reintegrate” the minority Grandosian population of Governia back into New Grandosia.
In a massive propaganda campaign, New Grandosia alleges the Automons are responsible for ruining the economy of the once-glorious kingdom. There are also unsubstantiated rumours that the Grandosian minority has been the subject of torture and other forms of abuse.
As a result, the relationship between the States, as well as their citizens, becomes more and more hostile. After weeks of diplomatic upheaval, in March 2003, the armed forces of New Grandosia attack Governia, purportedly in response to the alleged failure of Governia to protect their minority Grandosian population from heavily armed bandits said to be threatening their livelihood.
Following the years of ethnic tension, the attack provokes the outbreak of a full-scale war. The majority population of Governia feels threatened by the aggressive propaganda aimed at it, and calls for the cleansing of Governia of those with links to New Grandosia and the old Kingdom.
The war itself is fought with extreme violence and there is support from the citizens of the warring States for their ethnic representatives.
Both sides introduce a system of internment for their respective minority populations and transfer the inhabitants of whole villages to internment camps. Violence is widespread and the atmosphere is one of hostility.
Numerous killings occur, with the armed forces of New Grandosia in particular showing little restraint. Stories of units going on killing sprees through villages and internment camps are reported around the world.
While the international community calls for an end to the violence and for subsequent proceedings against those allegedly responsible for unlawful killings and widespread violence, the government of New Grandosia claims to be fighting only against terrorists that have been threatening the security of its people.
The case:
MC, a commander in the New Grandosian armed forces, has long been an outspoken supporter of the Grandosian claim for sovereignty over the whole territory of the former Kingdom. He is both famous and feared for his outspoken comments and colourful language, especially when referring to those running the State of Governia.
On
In the interview, broadcast later that day, MC comments on the ongoing violence and fighting, indicating that some people will only learn “the hard way”. He goes on to say:
“The Automons have taken our land and they must be punished. We have embarked on a punitive expedition that will provide the same fate for them that every criminal must expect. They have taken our land and our people and they must now fear the consequences, pay the price - each and every single one of them. If the curse of God that surely runs through the veins of every Automon is to finally come to an end, there is only one way. We must all work to see that this is achieved. Only then can we, the Grandosians, be free.”
The interview meets with strong criticism from the government of Governia, which accuses MC of adding fuel to a fire that has already set both States aflame.
The fighting continues ferociously and thousands become victims. However, no side seems to be gaining momentum. On 5 July 2003, MC orders his troops, who by now compromise only a handful of well-trained soldiers and large numbers of poorly trained young recruits, to attack the town of Zemba close to the capital of Governia. He tells his soldiers to take the town “under any circumstances”, as its demise, so close to the capital, will undoubtedly crush the spirits of the Governian forces.
Later that day, as he walks amongst the troops readying for battle, he notices that one of his Units has requisitioned an ambulance. He also notices some medics clothes and a number of ‘Red Cross’ armbands strewn on the ground. He takes no further notice of the incident, as he is preoccupied with preparing his troops. In a final speech before battle MC again confirms his commitment to the cause of winning over the Automons by “all possible means”.
The town of Zemba is said to be an important strategic stronghold of the military of the State of Governia as it is densely populated and contains the major train station for Governia, connecting the capital with the rural areas. However, unbeknown to MC, the town has already been cleared of all major military units. Only a handful of soldiers are still in the town as MC’s troops begin their attack, shelling the town with heavy artillery.
After hours of heavy fire and little response, many civilians lie dead in the streets. A number of public buildings have been destroyed. MC’s troops stop their firing and prepare to leave their positions to enter the town. One unit goes ahead as the vanguard, taking the requisitioned ambulance as it is the only vehicle close to hand. The ambulance contains a doctor and several heavily armed young recruits, some wearing Red Cross armbands.
About five minutes from the town, the troops encounter some resistance from snipers and some shots are fired. No one seems to be injured. The vehicle enters the town about an hour after the shelling has stopped. Some of the citizens climb out of their shelters to inspect the damage brought upon the town expecting no harm from what looks like a humanitarian enterprise. Gunshots can be heard in the distance, making the soldiers in the ambulance nervous. When a soldier of Governia’s troops appears on the street among the civilians, shots are fired from the ambulance, killing the soldier and three civilians. The doctor attends to the four but can only pronounce them dead.
The taking of Zemba turns out to have gained MC’s troops no military advantage. In August 2003, the governments of Governia and New Grandosia agree to peace talks, and, with the help of a UN delegation, a peace agreement is secured. The war is over.
In the peace agreement, the governments agree that all criminal prosecutions for offences committed during the war are to be conducted by the International Criminal Court (“ICC”). The Office of the Prosecutor investigates a number of incidents, including those mentioned above.
In September 2003, the ICC issues an arrest warrant for MC in accordance with Art. 58 of the Statute of the ICC (“the Statute”). MC is subsequently arrested and transferred to the ICC, where he now faces trial. The Office of the Prosecutor has issued an indictment against MC, which includes the following charges:
Count 1 Incitement to Genocide-
On 3 June 2003, MC participated in a radio program, broadcast across the territories of the States of Governia and New Grandosia. In this program, MC said the following:
- “The Automons have taken our land and they must be punished. We have embarked on a punitive expedition, which will provide the same fate for them that every criminal must expect. They have taken our land and our people and they must now fear the consequences, pay the price - each and every single one of them. If the curse of God that surely runs in the blood of each Automon is to finally come to an end, then there is only one way. We must all work to see that this is achieved. Only then can we, the Grandosians, be free.”
By this act, MC committed:
Count 1: Direct and Public Incitement to Commit Genocide, punishable under Article 25 (3)(e) of the Statute of the ICC.
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On 5 July 2003, members of MC’s troops used a vehicle bearing distinctive emblems of the Geneva Conventions when entering into the township of Zemba for military purposes. The use of said vehicle led to the death of three civilians in an offensive attack launched by MC’s troops.
MC is criminally responsible for these acts of his subordinates by virtue of his position as a military commander, pursuant to Article 28 (a) of the Statute.
By failing to prevent the commission of this crime or to punish his subordinates or to submit the matter to the competent authorities for investigation, MC committed
Count 2: Violation of the Laws or Customs of War (War crime of improper use of the distinctive emblems of the Geneva Conventions), punishable under Article 8 (2)(b)(vii) of the Statute.
You have been nominated to act as either the prosecutor or defence team for MC in relation to the charges laid against him.
In preparing your arguments you are to assume that:
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- Both States involved in the conflict have signed and ratified the Rome Statute of the International Criminal Court.
- Both States are parties to the Geneva Conventions and their two Additional Protocols.
- Issues of evidence or procedure are not relevant to your argument.
- Only the offences with which MC is actually charged are to be taken into account.
- At no time has the State of New Grandosia been willing to carry out an investigation into the conduct of MC.