The
Moot Problem
IN
THE INTERNATIONAL CRIMINAL COURT
PREAMBLE
1. This
is the final stage of the trial before a Trial Chamber of the International
Criminal Court (“ICC”). The Presiding Judge has declared that the submission of
the evidence is closed, and the parties are now to make their closing
statements in accordance with Rule 141 of the Rules of Procedure and
Evidence of the ICC. At this stage, both the Prosecution and the Defence agree
that the evidence supports the facts as set out below, and there is no
longer any issue of fact in dispute between them. In their closing
statements, the Prosecution and Defence are therefore addressing disputed issues
of law only.
2. Teams
acting for the Prosecution will be known as the “Prosecution”. Teams acting for
the Accused, Mr Jupiter, will be known as the “Defence”.
3. Teams
should confine themselves to the facts supplied. The facts are entirely
fictitious.
4. Teams
may be assisted by looking at case law of the International Criminal Court, the
International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the
Special Court for Sierra Leone. Other pronouncements from regional Tribunals
and Bodies, along with National Constitutional Courts, might also be relevant.
5. The
problem is not intended to raise questions of procedure before the ICC. Procedural
questions should be ignored.
6. Although
issues of admissibility and jurisdiction are not normally dealt with in ICC
proceedings in closing statements at the end of a trial, counsel should in
this instance address issues regarding either the admissibility or the
jurisdiction.
7. Counsel
are advised to consider not only the Rome Statute of the ICC, but also the
Elements of Crimes adopted under Article 9 of the Statute.
8. The Commonwealth Secretariat (“the
Secretariat”) shall be receiving requests for clarifications on the problem
question up to Friday 21st March 2014. The Secretariat shall circulate all the
questions put to the Secretariat as well as any replies which it has given to
all the participants through the National Coordinator.
THE BACKGROUND
The
accused, Mr Jupiter (also known as ‘the Colonel’), is a citizen of Botaland, a
state which signed the Rome Statute on 13 October 2007 and has not yet ratified
it. Moreover, Botaland is one of the 49 United Nations member states which are
not party to the Convention for the Prevention and Punishment of the Crime of
Genocide. From November 2003 Botaland has been the theatre of an armed conflict.
Historically,
Botaland was a colony of the Kingdom of the Night which responded to any
tensions within the territory of Botaland with the use of armed force against
the local population. When Botaland gained independence from the Kingdom of the
Night in 1977, the Moonies, the largest religious group, came to power. While
the Moonies constitute around 75% of the population, the remainder are Sundaes
(20%), and followers of other denominations (5%). However, in Melancholia, a
region of Botaland very rich in oil and other natural resources, the Sundaes constitute
the largest group within the territory (90%), while the Moonies constitute just
10% of the regional population. In Sun Town, the capital of the region, and
also the part of Melancholia with the highest concentration of oil, the
majority of the population is Moony. The central government, in compliance with
a number of agreements signed during the decolonization period, has allowed Multinational
Corporations to exploit the natural resources in return for significant
benefits for the Moony communities across Botaland. The Sundaes, who were not
consulted during the talks preceding the agreements and have no formal
connections with the transnational corporations acting in the region, are excluded
from any benefits.
In
October 2003 a group of Sundae soldiers within the Botaland army decided to form
an independent armed force and founded the so-called Army for the Independence
of Melancholia (AIM). The main purpose of AIM was to take control over the
natural resources concentrated in Sun Town. The members of AIM organised
themselves according to the structure of the national army, therefore, from the
very beginning they had an organised hierarchical structure, which mirrored the
chain of command of the national armed forces.
On 13
November 2003, the day on which the Sundaes celebrate the anniversary of the
victory against the Moonies in the famous 1005 battle, AIM committed a series
of attacks on Sun Town, where a great number of Moonies lived in peace,
practising their religion and cultivating their own lands. After this attack, the
Botaland central government decided to send a special military unit to the
region for the purpose of re-establishing order. The governmental forces faced serious difficulties in
maintaining control over Sun Town, which is the area where all the crimes
relevant for this case were committed. Unfortunately, the military conflict
between the two sides has continued since then and has been determined to
constitute a non international armed conflict.
The
accused, one of the founders of AIM, used to be a soldier within the Botaland
army for 20 years. He was one of the chief architects in the establishment of
AIM’s military structure and his significant military expertise contributed substantially
to AIM’s advancement. Mr Jupiter was very well known and respected within the Sundae
community and, having a prominent role in AIM, was referred to as ‘the
Colonel’. He was responsible for
the establishment of AIM’s headquarters, which were situated in a valley 50
miles outside Sun Town. All accommodation for high-ranking military officials,
including the accused, as well as the soldiers’ barracks was situated at the
headquarters. Mr Jupiter also contributed to the setting up of military
training facilities in Mount Venus, close to the headquarters.
Following
a month of planning, at sunrise on 13 November 2003 he directed the attacks on
Sun Town. After this attack, a detailed military plan for the future was drawn
up. In particular, in order to achieve the goals of AIM, the strategic plan
included arrangements for a recruitment drive for the army, a training programme,
obtaining funds and resources, as well as the overall preparation for the
military operations aimed at taking over Sun Town.
On 20
November 2003, Mr Jupiter was a special guest of the radio programme ‘Good
Night Mr Sun’ together with the religious Chief of the Sundae community. The programme
was held on Wonder 100, a radio station that is officially broadcast in the
neighbouring Sundae state of Wonderland but which is picked up by the airwaves
in Melancholia. The factual record does not, however, indicate where the broadcast was recorded. The
programme discussed the situation unfolding in Sun Town and what the Sundaes
could do to support their community. The religious Chief claimed that the
Goddess of the Sun was displeased with the Sundaes for failing to protect Her
Holy Land from contamination. He stressed the importance of religious homogeneity
in the region, in order to please the Goddess and achieve personal salvation.
At a certain point in the discussion, Mr Jupiter intervened and suggested that
a possible way of achieving these aims was to extract the Moony children from
their evil community and convert them in the name of the Goddess of the Sun. In
particular, he stated that “Moony
children are not evil by nature; they become wicked by contamination after
years of evil indoctrination. Therefore, there is still a chance to ensure their
salvation and it is the responsibility of each Sundae to contribute to this
cause”.
The
day after the programme aired, Sundae civilians from cities surrounding Sun Town
started carrying out random attacks on moony families in Sun Town, in order to
abduct Moony children and raise them as Sundaes. The UN Commission of Enquiry in
the region of Melancholia estimated that, between 21 November and 7 December
2003, around 20,000 children under the age of 15 were abducted by members of
the Sundae community. Photo and video evidence taken by independent observers
and presented before the Trial Chamber clearly showed that a number of AIM soldiers
belonging to Colonel Jupiter’s unit, who were identifiable by the sun and axe
tattoos on their arms, provided armed protection to the civilians carrying out
the acts. During these two weeks, no orders were given by Colonel Jupiter in
relation to these acts.
As the
conflict had intensified by late January 2004, a more detailed military plan
was considered to be necessary. On 22 January, AIM’s chief military command – including
the accused - met at the headquarters to discuss the way forward. As a result
of this meeting, ‘Operation Strength 2004’ was drawn up. The main purpose of
the operation was to significantly increase the military power of AIM in order
to conduct large-scale military operations in Melancholia and permanently
establish their control over Sun Town. It was decided that a large number of
civilians needed to be conscripted as soldiers into the army. In order not to
waste strong adults in performing other required tasks, it was decided that
children were needed both at the headquarters and at the training camps to
support non-military operations. At the meeting, the chiefs also discussed
difficulties which civilians were having in controlling the older children who
had been extracted from the Moony population since they had already developed a
strong sense of identity which was proving difficult to overcome. It was
therefore decided that any of these children above the age of 10 be housed near
the headquarters in order to ensure that they did not instigate any disorder
within the sundae communities.
There
is undisputable evidence that from the beginning of February 2004, children between
the ages of 10 and 15 were present at the Sundae training camps and
headquarters. They had been recruited as part of “Operation Strength 2004”
through a door-to-door operation in which children were collected from their
houses and taken to the headquarters and training camps. The accused did not
physically carry out the recruitment operation himself. Under threat of
punishment, the children were forced to carry out a number of activities to
support the army. Young girls aged 10 - 13 performed most of the domestic
chores, including all the cooking for the armed forces both at the headquarters
and the training camps. They were responsible for ensuring that AIM’s forces
were fed and fit for combat. They also accompanied units of soldiers to the
front lines of the hostilities in order to provide them with food and medical
care. Many of the young girls were also required to perform sexual services for
the soldiers although, in accordance with the teachings of the Sundae sacred
Book, no penetration occurred. The
girls were also regularly forced
to take off their clothes and dance naked in front of the soldiers.
Boys aged
10 - 15 generally guarded the headquarters, the training camps and other military
posts. Many commanders had two to three boys permanently assigned to them. The
boys would guard their commanders’ houses and would accompany them in their
jeeps around the camps. AIM also set up special group of young boys whose job
was to covertly follow Moony military personnel in order to obtain sensitive
military information. Since the boys were small and agile, they could carry out
these tasks more easily and with a lower risk of being caught than adults. None
of the children were involved in direct combat with the Moonies.
Some girls became the ‘wives’ of commanders and high-ranking soldiers of
AIM, while subordinates and soldiers in the lower ranks of the army were not
allowed to have wives. The wives
were expected to obey their husbands, to cook for them, wash their clothes,
endure forced pregnancy, and to care for and bring up children of the
“marriage”. Although not physically constrained, a “wife” who did not perform
the conjugal duties demanded of her was deemed disloyal and could be
disciplined. In return, the “husband” provided food,
clothing and protection to his “wife”, including protection from rape by other men.
The
gravity and seriousness of the crimes perpetrated in Melancholia since November
2003 led the United Nations Security Council to set up a Commission of Inquiry
on Melancholia on 5 November 2005. Following the submission of the Commission’s
report in January 2006 (S/2006/6000), the UN Security Council adopted
resolution 9090 on 2 February 2006, which determined the Botaland situation to
constitute a threat to international peace and security in accordance with
Chapter VII of the UN Charter. The same resolution referred the situation in Botaland
to the Prosecutor of the International Criminal Court as provided for by
article 13.1(b) of the Rome Statute. The UN Security Council resolution also provided
for a minimum sentence of 20 years for the crime of sexual slavery. This
paragraph was inserted as a result of significant lobbying at the UN Headquarters
by a number of feminist organisations. The Prosecutor decided to initiate an
investigation during which three warrants of arrest against suspected military
leaders of AIM –including Mr Jupiter- were authorized by Pre-Trial Chamber II. Following
a decision of Pre-Trial Chamber II in February 2009 - which confirmed the
charges against Mr Jupiter - he is now accused before Trial Chamber I of having
committed a number of crimes within the jurisdiction of the ICC.
THE CHARGES
Mr
Jupiter is accused of:
· Count 1: GENOCIDE, punishable under Articles 6(e) and
28(1) of the Rome Statute.
· Count 2: GENOCIDE, punishable under Articles 6(e)
and 25(3)(e) of the Rome Statute.
·
Count 3: CONSCRIPTING CHILDREN INTO ARMED GROUPS, a
WAR CRIME, punishable under Articles 8(2)(e)(vii) and 25(3)(a) of the Rome
Statute.
· Count
4: USING CHILDREN TO PARTICIPATE
ACTIVELY IN HOSTILITIES, a WAR CRIME, punishable under Articles 8(2)(e)(vii)
and 25(3)(a) of the Rome Statute.
· Count
5: RAPE, a CRIME AGAINST HUMANITY,
punishable under Articles 7(1)(g) and 25(3)(a) of the Rome Statute.
· Count
6: SEXUAL SLAVERY, a CRIME AGAINST
HUMANITY, punishable under Articles 7(1)(g) and 25(3)(a) of the Rome Statute.
· Count
7: RAPE, a WAR CRIME, punishable
under Articles 8(2)(e)(vi) and 25(3)(a) of the Rome Statute.
· Count
8: SEXUAL SLAVERY, a WAR CRIME,
punishable under Articles 8(2)(e)(vi) and 25(3)(a) of the Rome Statute.
· Count
9: COMMITTING OUTRAGES UPON
PERSONAL DIGNITY, IN PARTICULAR HUMILIATING AND DEGRADING TREATMENT, a WAR
CRIME, punishable under Articles 8(c)(ii) and 25(3)(a) of the Rome Statute.
· Count
10: PERSECUTION, a CRIME AGAINST
HUMANITY, punishable under Articles 7(1)(h) and 25(3)(a) of the Rome Statute.
On 5
August 2009, Trial Chamber I issued a decision setting the commencement date of
the Trial against Mr Jupiter for 1 February 2010. The Prosecution and Defence
presented their case between February 2010 and February 2011. In May 2012, the
Judges of Trial Chamber I visited Botaland. They travelled to Melancholia to
visit Sun Town as well as the locations where AIM’s training camps and
headquarters were housed on Mount Venus and in the valley below respectively.
The judicial site visit provided the Chamber with the opportunity to visit the
location of the crimes and visibility for the Court’s work among local
communities.
On 10 September 2012, Trial Chamber I held a Status
Conference pursuant to Regulation 54(a) of the Regulations of the Court where
it established the modalities of the closing arguments under the terms of Rule
141(2) of the Rules of Procedure and Evidence.
In the same Status Conference, it was decided that the
Defence and Prosecution should limit their written and oral submissions to the
following issues:
1. Genocide;
2. The active use of girls in hostilities;
3. Sexual slavery;
4. All jurisdictional issues.
In view of the exceptional nature of the UN Security
Council’s inclusion of the crime of sexual slavery, the Court noted that the parties
may wish to speak to the issue of the sentencing provision in the UN Security Council
resolution during their closing arguments.
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