Moot Problem
4th Red Cross International Humanitarian Law Moot (2006)
Moot Problem
1. The Situation
1.1 Homeland is a relatively small, landlocked, developing country. In the west, there are low mountains, gradually sloping to a large eastern plain. The Deep River runs from the mountains across the plain, and is the main channel for communication. The capital city, Capitalville, is in the west, at the foot of the mountains. The other large city, Portville, is to the east. Portville is on the Deep River, and is the main port for imports and exports along the Deep river. The majority of its people live by agriculture, mining, or other primary industries. Most of the products are used locally, while some are exported. The people of homeland belong to a variety of ethnic groups, who speak different languages. The two main groups are the Mountainfolk, who live mainly in the west, and the Plainsfolk, who live mainly in the east. Other smaller ethnic groups are the Riverfolk, the Fieldfolk, and the Forestfolk. There are traditional rivalries between the ethnic groups.
1.2 Politically, Homeland is a monarchy. The king is a constitutional monarch, and political power rests with the Parliament headed by the Prime Minister and a Cabinet. In order to balance the ethnic rivalries, the Prime Minister has usually been chosen from among the smaller ethnic groups. In 2003, the Prime Minister was a Forestfolk. In the Cabinet, the other ministers have been chosen approximately proportionately to the size of the ethnic groups. The two equal official languages are the languages of the Mountainfolk and the Plainsfolk. The balance between the ethnic groups is very difficult, and there are many political tensions.
1.3 To build national unity, Homeland has for some years maintained a National Army with a policy of universal conscription of both men and women. Conscripts must serve for ten months full-time in the army, or ten years in the Homeland Home Guard. Members of the Home Guard train each year for two weeks and each month for one evening. Conscripts may continue in the army as volunteers, and members of the Home Guard may also continue as volunteers after their term of compulsory service.
2. The Prison
2.1 Stonegate Prison is a women’s prison, holding mostly long-term prisoners convicted of serious offences. It is located in a mountain valley in the west of the country, some distance from Capitalville. The nearest town is Stonebridge Town. The prison comprises an old square building, built around a courtyard, and a few small outbuildings. The prison includes a small training factory, making clothing.
2.2 The Warden of Stonegate Prison is Commandant Grey. Commandant Grey has been working in the prison service for many years, and is close to retirement. Of the prison service’s commandants, she has the longest working history. She is assisted by an Assistant Commandant, and a number of Senior Guards and Guards, both women and men. The prison has a very limited supply of light weapons, of the kind appropriate for control of prisoners.
2.3 The Prison Service is a civilian service, under the control of the Ministry of Justice. Prison officers are organised in a hierarchy, and their ranks have ceremonial equivalence with the hierarchy for police and with the army hierarchy. The equivalent ranks are:
|
Prison Service |
National Army |
|
Director |
General |
|
Assistant Director |
Colonel |
|
Commandant |
Major |
|
Deputy Commandant |
Captain |
|
Assistant Commandant |
Lieutenant |
|
Senior Guard |
Sergeant |
|
Guard |
Soldier |
Other ranks have not been included, as they are not relevant. Those included may be relevant.
3. The outbreak of hostilities
3.1 On 8 August 2003, the King and the Prime Minister are assassinated by unknown assailants. The Crown Prince and some other members of the Royal family flee from Homeland. The political structure quickly breaks down, and fighting erupts between the Mountainfolk and the Plainsfolk. Each folk blames the other for the assassinations. The Mountainfolk form an interim government in the west of Homeland, headed by General Orange, who was Minister for Military Affairs in the Homeland government. Their capital is Capitalville. The Plainsfolk form an interim government in the east of Homeland. Their capital is Portville. Each government claims to be the rightful government of Homeland. Each government claims that it is committed to restoring the monarchy, and restoring democracy. Each government forms an army, using the available personnel and material from the former National Army. Both expand conscription to increase the size of the armies.
3.2 Fighting is at first limited, and then both intensifies and expands as each army becomes better organised. Many civilians, especially Riverfolk, Fieldfolk, and Forestfolk, flee as refugees to neighbouring countries.
3.3 In the west of Homeland, General Orange becomes Prime Minister, Minister for War, and Minister for Justice in the interim government. Stonegate prison is at all relevant times located in the territory controlled by this government.
4. At Stonegate Prison: the events of September 2003
4.1 On 25 September 2003, west Homeland forces under the command of General Orange capture a number of prisoners in a small battle not far from Stonebridge Town. Unable to supervise the prisoners during the battle, they deliver them to Stonegate Prison. Commandant Grey accepts these prisoners, but is not sure what procedure to take. Until now, all prisoners have been female civilian prisoners, sent after trial in civilian courts. It is about thirty years since she completed her military training, and she does not remember the content of the 1949 Geneva Conventions. She has never heard of the 1977 Protocols. She tries to telephone her superiors in Capitalville, but because of the fighting there is no communication. On 28 September, the fighting concludes. The same day, some west Homeland soldiers come to Stonegate prison, and take the male prisoners. They tell Commandant Grey that they will return for the female prisoners.
4.2 On 29 September, a delegation from the International Committee of the Red Cross visits Stonegate Prison. Commandant Grey accepts the visit, and co-operates with the delegate, Delegate Green. Delegate Green is able to meet with the female prisoners captured in battle, and with all other prisoners. Delegate Green discusses with Commandant Grey the procedure to be used in future for prisoners, and gives Commandant Grey copies of the Geneva Conventions and Protocols written in both the Plainsfolk and Mountainfolk languages. Commandant Grey posts these prominently in the prison, and mentions them to the staff.
4.3 On 30 September troops of the west Homeland army arrive, and take the remaining female prisoners captured in battle, leaving only regular civilian prisoners in the camp.
5. The directives from General Orange
5.1 Conditions in the prison deteriorate. Some younger guards are called up for military service. Some guards flee, especially those of Plainsfolk origin. Supplies of food, electricity, and water become intermittent, because of the fighting. Commandant Grey often tries to communicate with her superiors, but without any result. Then, on 18 October 2003, an order arrives signed by General Orange, with the following directives:
(a) Prisoners with less than six months’ sentence yet to serve are pardoned, and are to be released.
(b) Prisoners with any term of sentence yet to serve who are willing to volunteer for the west Homeland army are to be released to the nearest army unit.
(c) The prison training factory is to be used for making military uniforms.
(d) The prison is to establish its own food supply.
(e) A detachment of the Home Guard will be sent to the prison, to supplement the prison guards.
Commandant Grey complies with each of these directives.
5.2 A detachment of eleven members of the Home Guard arrives in November. They are too old or in some other way unsuitable for active military service. They are uniformed, armed with a supply of light weapons, and have their own vehicle. The detachment is commanded by Lieutenant Blue, and includes one sergeant and nine soldiers. Lieutenant Blue explains to Commander Grey that the Home Guard are not civilians, and wish to live as a military unit, under military discipline. Using locally available materials, they erect five huts, grouped together about half a kilometre from the prison. Around these huts, they erect a strong fence, with its own gate.
5.3 Commandant Grey then arranges that the detachment will erect another perimeter fence which encloses the prison, the detachment’s huts, and a large area of land in between. This area is developed as a small farm. The prisoners are assigned to grow vegetables and raise goats, chickens and rabbits. Some of the prisoners are farmers, as are some of the Home Guard, and the work proceeds well. The area has two gates, one leading to the prison, and the other to the detachment’s hut area.
5.4 Commandant Grey prepares a roster for guarding the prison, combing regular guards and Home Guard. She also prepares her own timetable for regular visits to all areas of the prison, including the detachment’s huts. Lieutenant Blue tells her that, for anything regarding the prison, she is in charge, and he accepts the rostering. But Lieutenant Blue adds that the detachment’s huts are a military area, and she is not in charge there. She may only visit by prior arrangement. Commandant Grey accepts this, as she is unsure of the requirements of military law. Lieutenant Blue invites her to visit the detachment area once a week for a meal in the detachment mess. She is not invited to visit any other buildings, and does not try to visit any other buildings.
6. The events of January to March 2004
6.1 The prison receives no further prisoners from combat, but does receive new civilian prisoners. Prison discipline is maintained, and because of the garden food supplies are adequate. However, supplies other than food, and supplies of electricity and water, become more limited. Communication becomes more and more difficult, and Commandant Grey can rarely contact her superiors in Capitalville.
6.2 On 5 February 2004, while Commandant Grey is routinely inspecting the vegetable garden, a prisoner, Prisoner Purple, quietly tells her that military prisoners are being held in the detachment area, and are being abused. As Prisoner Purple is a Plainsfolk, and has sometimes made trouble in the past, Commandant Grey is reluctant to believe her. However, she does ask Lieutenant Blue whether this claim is true. Lieutenant Blue denies that military prisoners are being held in the detachment area, and so the question of abuse, he says, is irrelevant. Commandant Grey then asks one of her prison guards, Guard Indigo, who seems to get on well with the Home Guard, to enquire further. However, Guard Indigo tells her that he is unable to get any information. Commandant Grey takes no further action.
6.3 In fact, during the period January to March 2004, military female prisoners who are sent to the prison are brought in Home Guard vehicles. Although they are sent to the prison, they are diverted by the Home Guard to the detachment area. There they are routinely humiliated and tortured, and if they are Plainsfolk they are repeatedly raped by the Home Guard. The prisoners are then sent on to other military prisons. About twenty prisoners are maltreated in this way. Three die from the maltreatment, and are buried under one of the huts. The arrival and departure of the prisoners takes place during the night, and no records are kept.
6.4 On 20 March Delegate Green of the International Committee of the Red Cross again visits the prison. Commandant Grey is willing to receive the delegation, but when Lieutenant Blue sees the Red Cross vehicles in which the delegation has travelled, he tells Commandant Grey that he has military orders from General Orange that the ICRC is not to visit the prison, or any part of it. Commandant Grey accordingly refuses the delegation visit, and Delegate Green and other members of the delegation retire to their hotel in Stonebridge Town. Commandant Grey attempts without success to contact her superiors in Capitalville for further information about the military orders mentioned by Lieutenant Blue. Delegate Green also unsuccessfully tries to contact other officials of the International Committee of the Red Cross, and government officials.
6.5 Communications are poor because of an attack by the east Homeland army not far from the prison. Because of the imminent danger to Stonebridge Town, the ICRC delegation is withdrawn on 21 March 2004. The delegation is not able to return before the end of the armed conflict.
7. The end of the armed conflict in late 2004
7.1 The two armies quickly find it difficult to maintain their fighting capacity. The neighbouring states (Goldland, Silverland, Ironland, and Copperland) have fairly successfully placed an embargo on shipments of arms and ammunition and fuel, and both armies are running short of weapons. Limited battles are sometimes fought with simple weapons such as machetes and clubs, but can still be very vicious. Eventually fighting comes to a standstill, as neither army has the capacity to advance. Sporadic and savage skirmishes still take place. Meanwhile there is great suffering among the civilian population as a result of damage and injury caused by armed conflict, and as a result of the failure of essential services such as hospitals and transport. Both armies divert food and medical supplies to their soldiers, causing additional suffering among civilians. Homeland is rapidly exhausted.
7.2 By the late 2004, the neighbouring states are able to bring the leaders of the two sides to the negotiating table. After some time, an agreement is reached between the two sides. Among the terms of the agreement are:
(a) Both sides will cease fighting on 30 November 2004.
(b) The monarchy will be restored, and a temporary government formed with members from all ethnic groups.
(c) The new government will establish a Truth and Reconciliation Commission, with membership from all ethnic groups. The principal tasks of the Commission will be
(i) to ascertain the causes of division prior to the outbreak of conflict, and recommend ways to prevent such division in the future;
(ii) to enquire into the events of the assassination, and recommend who should be prosecuted;
(iii) to enable all who have suffered in the conflict to tell their stories, and to seek reconciliation with their fellow-citizens.
Neighbouring states agree to provide investigative staff to assist in the work of the Commission.
(d) The new government will declare a general amnesty covering all crimes related to the armed conflict. The amnesty is conditional on cessation of fighting, and conditional on full co-operation with the Truth and Reconciliation Commission.
(e) The new government will establish a Special Court, of an international character, with judges, prosecutors and defence counsel from each ethnic group and each accompanied by an independent judge, prosecutor or defender from one of the neighbouring states. The Court will have jurisdiction only over those in leadership positions. The Court is to co-operate with the Commission.
(f) The United Nations and neighbouring states have agreed to provide funding for the work of the Special Court, for the Truth and Reconciliation Commission, and for national reconstruction.
7.3 Lieutenant Blue disappears and the Home Guard detachment disperses. General Orange goes into exile. Commandant Grey continues at her post.
8. The investigations and the indictment
8.1 The Truth and Reconciliation Commission is established in March 2005. Late in March 2005, Commandant Grey writes to the Truth and Reconciliation Commission, advising that she is willing to co-operate with the Commission. All of the members of her regular prison staff do the same. Because of the heavy workload of the Commission, they do not receive a reply.
8.2 The amnesty is also declared by the temporary government in March 2005. As agreed in the negotiations, the amnesty is conditional on cessation of fighting, and conditional on full co-operation with the Truth and Reconciliation Commission. The amnesty provides immunity from suit for all criminal, civil, and administrative suits relating to any action or omission which arises out of the conduct of the armed conflict during the period 9 August 2003 to 30 November 2004.
8.3 The Special Court is established in June 2005. Investigators working with the Special Court and with the Commission are advised by victims of the events which took place at Stonegate Prison. The bodies of three victims, Beryl, Pearl, and Jade, are discovered under the huts. They had been tortured to death. Three other living victims, Rose, Violet, and Lily, give evidence that they were tortured and raped.
8.4 Prosecutors are keen to proceed with their task, but many leaders have fled or are in hiding, or have died during the armed conflict. However, Commandant Grey remains at her post. In October 2005, Prosecutors arrest Commandant Grey, and indict her for the following offences:
Under article 3(a) and 3(e) of the Special Statute, and article 6 relating to superior responsibility, criminal responsibility for the deaths of victims Beryl, Pearl and Jade, and criminal responsibility for the treatment of victims Beryl, Pearl, Jade, Rose, Violet and Lily during the period January to March 2004.
9. The Moot problem
9.1 In preparing her defence, Commandant Grey’s defence lawyer asks Delegate Green of the International Committee of the Red Cross to appear as a witness for the defence. Delegate Green refuses to appear, claiming that delegates of the international Committee of the Red Cross are legally exempt from appearing as witnesses. Delegate Green cites Prosecutor v Simic IT-95-9 ICTY 27 July 1999.The Prosecution agrees that this decision is the applicable law.
9.2 The problems raises wide substantive and evidential issues. In order to keep the Moot within reasonable limits, Counsel are only to address the following four questions:
Question 1. Is Commander Grey a leader, within the meaning of article 1 of the Statute of the Special Court?
Question 2. Should the Special Court apply the decision in Prosecutor v Simic? Or should the Special Court stay or strike out the prosecution on the ground that, without the evidence of Delegate Green, Commandant Grey may be denied a fair trial?
Question 3. Is Commandant Grey protected from all suit by the amnesty?
Question 4. Is Commandant Grey the superior, within the meaning of article 6 of the Statute of the Special Court, of those responsible for the crimes alleged?
The prosecution will proceed first on each point. Counsel are addressing a trial chamber of the Special Court on these points.
9.3 The Moot is not intended to raise procedural or evidentiary issues as such. Counsel need not refer to procedural or evidentiary issues, except as these illustrate or incorporate issues of substance.
9.4 At all material times, the Kingdom of Homeland is a party to the 1948 Genocide Convention, and the 1949 Geneva Conventions and the First and Second Additional Protocols of 1977. The Kingdom of Homeland is also a member of the United Nations. The Kingdom of Homeland has not signed or ratified the Statute of the International Criminal Court, the International Covenant on Social, Economic and Cultural Rights, or the International Covenant on Civil and Political Rights. These international agreements may or may not be relevant.
Counsel may not assume that the Kingdom of Homeland is a party to any other international agreements.
Annex. The Statute of the Special Court
The following articles of the Statute of the Special Court for Homeland may or may not be relevant. Articles not given below should be assumed to be irrelevant.
Article 1
Competence of the Special Court
The Special Court shall have the power to prosecute leaders who bear the greatest responsibility for serious violations of international humanitarian law committed in the territory of Homeland from 1 August 2003 to 31 November 2004.
Article 2
Crimes Against Humanity
[omitted]
Article 3
Violations of Article 3 common to the Geneva Conventions
The Special Court shall have the power to prosecute any persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims.
“In the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) collective punishments;
(c) taking of hostages;
(d) acts of terrorism;
(e) outrages upon personal dignity, in particular, humiliating and degrading treatment, rape, enforced prostitution, and any from of indecent assault;
(f) pillage;
(g) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples;
(h) threats to commit any of the foregoing acts.”
Article 4
Crimes against the national laws of the Kingdom of Homeland
[omitted]
Article 5 [omitted]
Article 6
Individual Criminal Responsibility
1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute shall be individually responsible for the crime.
2. The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility not mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Court determines that justice so requires.
Articles 7 to 17 [omitted]
Article 18
The Composition of the Court
Each trial chamber of the Court shall be constituted by one Homeland judge and one or more judges from Goldland, Silverland, Ironland or Copperland.
Each appeal chamber of the Court shall be constituted by two or more Homeland judges and one or more judges from Goldland, Silverland, Ironland or Copperland.
Article 19
Procedure
The Special Court may makes its own Rules of Procedure. In the absence of any Rules, or in interpreting the Rules, the Court shall be guided by the Rules of Procedure of the International Criminal Tribunal for the Former Yugoslavia.
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