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I.

THE WAR CRIMES WERE COMMITTED IN THE CONTEXT OF A NON-

INTERNATIONAL ARMED CONFLICT, THE FACTUAL CIRCUMSTANCES OF WHICH,


GENERAL AMIR WAS AWARE OF
1. THE

WAR CRIMES WERE COMMITTED IN THE CONTEXT OF A NON-INTERNATIONAL ARMED

CONFLICT

An armed conflict not of an international character is one that takes place in the territory
of a State when there is protracted armed conflict between governmental authorities and
organized armed groups or between such groups. The term does not apply to situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other
acts of a similar nature.1
International humanitarian law applies from the initiation of such armed conflicts and
extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in
the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international
humanitarian law continues to apply in the whole territory of the warring States or, in the case of
internal conflicts, the whole territory under the control of a party, whether or not actual combat
takes place there.2
The terms protracted armed conflict between [][organized armed groups] focuses on
the need for the armed groups in question to have the ability to plan and carry out military
operations for a prolonged period of time.3
In the case of Dyilo, the Pre-Trial Chamber found that an armed conflict was considered
protracted when it lasted from at least June 2003 to December 2003, 4 a period of six months.
In the case of Bemba, the hostilities that lasted from for five months, from October 2002 to

1 Rome Statute, Article 8, 2(f)


2 Tadi, 70, "Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction"
3 Lubanga,234, PTJ; Bemba, 233, PTJ
4 Ibid, 227

March 20035 were also considered protracted. In both cases, the armed conflicts were also
considered to reach the required level of intensity.6
Organized armed groups must be under responsible command implying some degree of
organization of the armed groups, capable of planning and carrying out sustained and concerted
military operations and imposing discipline in the name of a de facto authority, including the
implementation of the Protocol.7
In Alin, there is a protracted armed conflict occurring from 15 March 2013 to 6
December 2013,

a period of nine months, between the ADF and ALA, the former being the

armed forces of Alin9 and the latter a group which was self-proclaimed as a voluntary force
striving for a free Alin through armed struggle. ALA has for its leader Colonel Aziz Nur.10
After the initial attack of ALA on 15 March 2013, it was able to take control of the local
administrative council11 and was able to rapidly expand control over several towns in the
southern part of the country.12
Since April 2013, the Air Defence Force has been bombing alleged ALA bases, including
some residential areas where ALA militants were suspected to be. The resulting civilian
casualties were reported by international media and condemned by the UN Secretary-General.
5 Bemba, 249, PTJ
6 Lubanga, 227; Ibid.
7 Lubanga, ,232, PTJ; Bemba, 234, PTJ; International Committee of the Red Cross,
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949, Geneva, Sandoz, Swinarski and Zimmermann (eds), 1986, paras.
446-4470.
8 Facts, 5, 25, 26
9 Facts, 1
10 Facts, 5
11 Ibid
12 Facts, 6

On 10 July 2013, the UN Secretary-General called on parties to exercise restraint and on 20 July,
the UN Security Council, acting under Chapter VII of the Charter of the United Nations, issued
Resolution X, calling for the end of violence; demanding for the Alini government to comply
with their obligation under international law including humanitarian law, human rights and to
ensure the rapid and unimpeded passage of humanitarian assistance; the establishment of an
International Security Support Force (ISSF) to protect civilians and civilian populated areas
under threat of attack in Alin, and to maintain security; lastly, it authorized the Member States
participating in the ISSF to take all necessary measures to fulfill its mandate.13
2. THE FACTUAL CIRCUMSTANCES OF WHICH, GENERAL AMIR WAS AWARE OF
Of the above mentioned facts, which are indicative of an armed conflict not of international
character, Gen. Amir was aware. Being the head of the ADF and a close political ally of
President Yousef Aflan,14 Gen. Amir was consulted by the President when he decided to launch
an offensive to neutralize ALA.15 Gen. Amir also attended meetings 16 discussing the military
operations of the ADF, showing that he was aware of the factual circumstances that established
the existence of an armed conflict.17
II. THERE IS SUFFICIENT GROUND TO BELIEVE THAT AMIR FAILED TO PREVENT
OR PUNISH HIS SUBORDINATES FROM COMMITTING THE WAR CRIME OF RAPE.
A. HE

IS LIABLE FOR THE ACT OF HIS SUBORDINATES ON THE BASIS OF COMMAND

RESPONSIBILITY.

13 Facts, 12
14 Facts, 1
15 Facts, 6
16 Facts, 8, 19, 21
17 Elements of Crime, Article 8

1. Effective Control
The test of effective control is defined as the material ability to prevent or punish criminal
conduct,18 however that control is exercised.19 There is also effective control when a subordinate
is immediately answerable to his superior.20 The official position of the suspect21 and giving
orders22 may be factors of determining effective control.
Superior-subordinate relationship may arise from the formal or de jure status of a
superior or from the existence of de facto powers of control.23 Corollary, where the superior
exercises de jure authority, effective control may be presumed on prima facie basis.24
A superior who has effective control but fails to exercise it bears superior responsibility.25
General Amir is heading the ADF since 1980 26 and he prohibited the manifestation
planned by the demonstrators and instructed the ADF to take any necessary measures to prevent
it27 which was followed by the ADF 28. This shows effective control on the part of General Amir
over the ADF.
18 Delali, 256, AJ
19 Delali, 256, TJ
20 Halilovi, 63,TJ
21 Katanga, 65
22 Strugar, 256, AJ
23 Limaj, 522, TJ
24 Muvunyi, 475, TJ
25 elebii 266, AJ
26 Facts, 1
27 Facts, 8
28 Facts, 9

2. Knowledge
There are two forms of knowledge in superior responsibility cases, actual knowledge and
constructive or imputed knowledge meaning that the superior possessed information that would
at least put him on notice of the present and real risk of such offences and alert him to the need
for additional investigation to determine whether such crimes were about to be committed or had
been committed by his subordinates.29
Knowledge may be presumed if a superior had the means to obtain the relevant
information of a crime and deliberately refrained from doing so. 30 As soon as the superior has
been put on notice of the risk of illegal acts by subordinates, he is expected to inquire about
additional information, rather than doing nothing or remaining willfully blind.31
The position of a superior may serve as indicia of his awareness32 and the knowledge of one
exercising de jure authority is easier to prove considering that he is a part of an organized
structure with established reporting and monitoring systems.33
On the day following the demonstration, after the NTC Building have been searched by
the ADF the previous midnight on which date the alleged acts of rape were committed, Gen.
Amir had a meeting with Colonel Adada 34, the commander of ADF in Orkan. 35 During this
meeting, never did General Amir inquired about the outcome of his order to take any necessary
measure to prevent the demonstration. He only told Col. Adada that they should always stay
29 elebii 223, 241, AJ
30 International Criminal Law & Practice Training Materials, Modes of Liability:
Superior Responsibility (International Criminal Law Services) 17
31 Ori, 321-323, TJ
32 Blaki, 56, TJ
33 Kordi, 428, TJ
34 Facts, 10-11
35 Facts, 6

vigilant in the fight against terrorists and that they should be pro-active. 36 He therefore had the
means to obtain the relevant information of a crime and deliberately refrained from doing so.
3. Failure to take reasonable and necessary measures
Necessary measures are the measures appropriate for the superior to discharge his
obligation, showing that he genuinely tried to prevent or punish. Reasonable measures are those
reasonably falling within the material or actual powers of the superior.37
A superior is expected to adopt proportionate 38 and timely39 measures. Breach of duty
must be such as to be tantamount to acquiescence or toleration of the crimes.40
Breaches of commanders duties have been found by the military tribunals set up in the
aftermath of WW II to include the failure to secure reports that military actions have been carried
out in accordance with international law.41 Despite meeting with Col. Adada immediately after
the event, General Amir did not secure reports as to whether or not the operations of the ADF
were in accordance with international law.42
In addition, a week after the acts of rape on June 13, 2013 at the NTC Building, other acts
of sexual violence, including rape and the threat of, committed by pro-government militants in a
subsequent raid conducted by ADF were reported by Human Rights Protection, an international

36 Facts, 11
37 Halilovi, 63, AJ
38 Hadihasanovi,1777, TJ
39 Kordic, 445-446, TJ
40 Yves Sandoz and others, Commentary on the Additional Protocols to the Geneva
Conventions (Martinus Nijhoff Publications 1987) 3541
41 Strugar, 374, TJ
42 Facts, 11

NGO, Al Jazeera and BBC.43 The facts show does not show that Gen. Amir made any effort to
submit the matter to the competent authorities for investigation and prosecution.44
B.

THE MEMBERS OF ALINI DEFENCE FORCES COMMITTED ACTS OF RAPE

1. Actus Reus
Rape is physical invasion of a sexual nature, committed on a person under circumstances
which are coercive.

45

Circumstances in most cases charged as either war crimes or crimes

against humanity will be almost universally coercive and true consent will not be possible46
Rape is committed when the invasion is done by force, or threat of force, such as that
caused by violence or detention.47
Members of the ADF, while searching the NTC Building committed acts of violence. A
demonstrator testified later that she was taken with several other women to the basement of the
building where they were raped repeatedly before being transferred to a detention facility
operated by the Ministry of Security and that she was released only on 17 June 2013. Two other
women described in detail how they were arrested outside the NTC, taken to the detention
facility to be interrogated, and raped there by soldiers before being let go the following
morning.48

43 Ibid.
44 Rome Statute, Article 28(a)(ii)
45 Akayesu, 688, TJ
46 Kunarac, 130, AJ
47 Elements of Crime, Article 8 (2) (e) (vi)-1
48 Facts, 10

There are also reports by Human Rights Protection, Al Jazeera, and BBC that in a raid
conducted by the ADF the week following 13 June 2013 several women were victims of sexual
violence, including rape and threat of.49
2. Mens Rea
Dolus directus of second degree refers to the intention that the perpetrator must be aware of all
the consequences that will occur from his conduct in the ordinary course of events.50 With this
mens rea, it is sufficient that the person be aware that the material elements of the crimes will be
the almost inevitable outcome of his acts or omissions 51. Otherwise stated, the perpetrator
foresees certain consequences of the criminal act as a certainty and brings about those
consequences even though that is not what he wanted or desired to bring about. 52 The fact that
Gen. Amir, in his prohibition of the manifestation, instructed the ADF to take any necessary
measures to prevent it, the acts of rape are indicative of the intention of the perpetrators.
III. THERE IS SUBSTANTIAL GROUND TO INDICT GEN. HASSAN AMIR OF THE WAR
CRIME

OF

INTENTIONALLY

DIRECTING

ATTACKS

AGAINST

PERSONNEL,

INSTALLATIONS, MATERIAL, UNITS OR VEHICLES INVOLVED IN A PEACEKEEPING


MISSION BY INDIVIDUAL CRIMINAL RESPONSIBILITY.
A. ALL THE ELEMENTS OF THE WAR CRIME ARE PRESENT
1. The ADF directed an attack to the ISSF Compound

49 Facts, 11
50 Rome Statute, Article 30
51 Bemba, 358-359
52 Van der Vyver, Johan, The International Criminal Court and the Concept of Mens
Rea in International Criminal Law (June 15, 2004). University of Miami International
& Comparative Law Review, Vol. 12, p. 57, 2004; Emory Public Law Research Paper

Thewar crime ofattacking peacekeepers, does not require any harmful impact on the
peacekeepers targeted by the attack, and is committed by the merelaunchingoftheattack.53 The
ADF, in pursuit of attacking ALA bases launched attacks in civilian areas near the ISSF
Compound on the morning of 15 September, 2015. One hundred identified ADF soldiers
attacked the ISSF base which resulted to the killing of eight ISSF personnel and wounded
twenty.54 A press statement55 is given by an ISSF soldier that the first rocket hit them while
preparing for dinner; hence unguarded and ill-equipped against any act of violence against them.
The Doctrine of Distinction56 provides that parties to the conflict must at all times
distinguish between the protected persons and properties and combatants in order to spare those
not taking any direct part in the hostilities. Attacks may be directed solely against military
objectives including combatants. Contrary to this, the attack made by ADF was launched against
protected persons.57
2. The ISSF is a peacekeeping mission in accordance to the Charter of the United Nations
Peacekeeping is a technique designed to preserve the peace, however fragile, where
fighting has been halted, and to assist in implementing agreements achieved by the peacemakers.
Over the years, peacekeeping has evolved from a primarily military model of observing ceasefires and the separation of forces after inter-state wars, to incorporate a complex mode of many
elements military, police and civilian working together to help lay the foundations for
sustainable peace.58

53 TheProtectionofPeacekeepersandInternationalCriminalLaw: LegalChallengesand
BroaderProtection page 595 Alice Gadler
https://www.germanlawjournal.com/pdfs/Vol11-No6/PDF_Vol_11_No_06_585608_Alice_Gadler.pdf
54 Facts15-16
55 Facts 17
56 Module 8 War Crimes
57 Facts15-16

The three elements59 , consent of the parties, impartiality and lack of force used,
necessary to prove that an organization is a peacekeeping mission are present in this case.
Consent. The humanitarian situation in Alin garnered international attention resulting to the
decision of the UN Secretary- General to call all the parties in Alin to exercise their power of
restraints

60

. President Aflan consented on the presence of the International Security Support

Force when it announced the compliance of the government with the Resolution X issued by the
Security Council acting under Chapter VII of the Charter of the United Nations. It allows the
establishment of ISSF base in Astor. 61
Impartiality. The peacekeeping force is to remain impartial in their dealings with the parties,
which should not be confused with absolute neutrality. This impartiality must involve the
adherence to the principles of the Charter and the objectives of a mandate. 62 The ISSF, as
provided by the Resolution X, was mandated to protect civilians and civilian populated areas
under threat of attack in Alin, and maintain security. 63 It consists of Military Observers Unit
(MOU), a Civilian Police Force (CPU), and a Protection Force Unit (PFU). 64 Throughout the
outbreak, the ISSF was merely protecting the civilian areas which were also being attack by ADF
forces. Upon the first attack made in the civilian area near ISSF compound, the ISSF
58 Peacekeeping Principles and Guidelines, p. 18.
59 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon
Augustine Gbao, Judgment 225
60 Facts 12
61 Facts 13
62 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon
Augustine Gbao, Judgment 227
63 Facts 12
64 Facts 13

immediately requested the cessation of the attack but it went unheeded. Furthermore, before the
occurrence of the attack on September 15, 2013, the ISSFs PFU had several confrontations with
ADF units as the military group was firing at areas where civilians were concentrated. 65 Any
offense made by ISSF was only made to protect the civilian areas and to maintain security, in
compliance with the mandate of the UN Security Council as embodied in Resolution X.
Non- use of force except in self- defence. The peacekeepers are only authorized to use force in
self-defence. It is now settled law that the concept of self-defence for these missions has evolved
to include the right to resist attempts by forceful means to prevent the peacekeeping operation
from discharging its duties under the mandate of the Security Council. 66 A request by the ISSF
for the cessation of the attack of the military to the civilian area near their compound went
unheeded which resulted to the firing of the anti- aircraft machineguns at the fighter jets from the
ISSF compound. This counter-attack of the ISSF is an act of self- defense for the protection of
their base as well as the the nearby civilian population, consistent with their UN set mandate.
3. The ISSF is entitled to that protection given to civilians or civilian objects under the
international law of armed conflict.
As found and established above, the ISSF is only allowed to use force necessary for selfdefense, and in order to protect the civilian population under the threat of attack of the ADF. To
ensure the protection and security of the civilians, the ISSF was divided into several groups
which each have their distinct duties. Accordingly, the CPU, composed of merely 80 members
and mandated to maintain public security was the only group armed with light weapons 67which
shows that ISSF is well aware of the fact that they are there merely to ensure safety and security
of the populace and not to use heavy weaponry, and instead turn to light ones in case the
necessity arose.

65 Facts 14
66 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon
Augustine Gbao, Judgment 228
67 Facts, 13

No evidence was presented to show that ISSF directly participated in the hostilities or
used force beyond for that of self-defence. On the contrary, evidence indicates that, when faced
with hostility, ISSF personnel will retaliate only after attacks were made against the civilian
population. Never did they initiate any attack against the ADF. Again, a witness from the ISF
testified in press that they were just preparing for dinner when the first rocket hit them showing
lack of initiative to fight from their camp. 68
4. The necessary Mens Rea is present
Mens rea for purposes of prosecutions in the ICC is based on the civil law distinction
between dolus directus , dolus indirectus and dolus eventualis. Dolus directus is present when the
perpetrator foresees the harmful consequences of the criminal act and wants to bring about those
consequences.69In the Lubanga case, PTC I asserted that reference to the intention and
knowledge in a conjunctive way requires the existence of a volitional element on the part of the
suspect. The volitional element refers first to situations in which the suspect (i) knows that his
acts or omissions will materialize the material elements of the crime at issue; and (ii) undertakes
these acts or omissions with the concrete intention to bring about the material elements of the
crime.70
The perpetrators under the authority of Gen. Amir upon the attack to the civilian area
suspected to be ALA bases foresees the harmful consequence of damaging and attacking the
ISSF Compound. The attack is an act of retaliation by the perpetrators against ISSF when the
latter fired back after the ADFs attack on the civilian area thereby establishing the intent to make
such.71
68 Facts, 15, 21
69 Johan Van Der Vyver The International Criminal Court And The Concept Of Mens Rea In
International Criminal Law

70 Badar, Mohamed Elewa, The Mens Rea Enigma in the Jurisprudence of


International Criminal Court, in Larissa van den Herik, Carsten Stahn, (eds) The
Diversification and Fragmentation of International Criminal Law (Martinus Nijhoff
Publishers), 2012, p. 509
71 Facts, 15

B. GENERAL HASSAN AMIR SHOULD BE INDICTED ON THE BASIS OF


INDIVIDUAL CRIMINAL LIABILITY
Under Art. 25 (3)(a) of the ICC Statute, the perpetrator behind the perpetrator liability
is based on control on hierarchal organization72comprising sufficient fungible subordinates
ensuring automatic compliance with the leaders will.73 The combination of co- perpetration
based on joint control and indirect perpetration through other persons is a mode of liability that is
best suited for the cases of senior leaders 74. In this form of participation, the perpetrator by
means holds a superior position.75
The objective requirements common to both co-perpetration (or "direct" co-perpetration)
and indirect co-perpetration based on the notion of joint control over the crime are: (a) the
existence of an agreement or common plan between two or more persons; and (b) the coordinated essential contribution by each co-perpetrator resulting in the realization of the
objective element of the crime.
1. Existence of an agreement of a common plan can be inferred from the alleged coordinated essential contribution of General Amir resulting in the realization of the
objective elements of the crime.
The existence of an agreement or common plan need not to be explicit arid "can be
inferred from the subsequent concerted action of the co-perpetrators.76
72 Antonio Cassesse, Cassesses International Criminal Law (3 rd edn, OUP 2008)
178; Kai Ambos, Treatise on International Criminal Law Volume 1; Foundations and
General Part (OUP 2013) page 159
73 Katanga (n15), 511
74 Ibid, 492
75 Gerhard Werle,Principles of International Criminal Law (TM, Asser Press 2005)
123
76 Situation In Darfur, Sudan In The Case Of The Prosecutor V. Bahar Idriss Abu Garda Pre
Trial Chamber I February 8, 2010180

After the instruction of Gen. Amir to Colonel Adada on 14 June 2013 to always stay
vigilant in the fight against terrorists and always be pro-active, there were several raids
committed by ADF soldiers in their pursuit of ALA members.77 Subsequent actions by the troops
and Gen. Amir together with Colonel Adada show the common plan of making the eliminations
of terrorists and ISSF in the country. After the encounter in the morning where civilian areas
suspected to be ALA bases where directly attacked in search of ALA members, one hundred
identified ADF soldiers attacked the ISSF base itself, despite the previous request of ISSF to
Gen. Amir to cede the attacks78
Hence, Amir was aware of the fact that what they were attacking were civilian residences
and the ISSF base but they still continue on their attack. After the attack, the presence of these
high ranking officials were spotted, Colonel Adada outside the compound while the attack is
going on,79 and Gen. Amir was supervising ADF operations during or after the said attack.

80

The

subsequent declaration of President Aflan of the resentment81with the international force


strengthened the conclusion that they want to remove ISSF in the country. Hence, Amirs words
and subsequent actions and supervision resulted to the objective of attacking ISSF compound.
Herein, General Hassan Amir is the head of the Alini Defense Force (ADF) since1980, 82
and thus he had control over the crimes committed by his troops as a result of his authority over
his military organization83.

77 Facts, 11
78 Facts, 15
79 Facts, 17
80 Facts,19
81 Facta, 20
82 Facts, 1
83 Prosecutor vs Bemba (Decision on the Prosecutors Application for a Warrant of
Arrest) ICC- 01- /05-01/08, P-T Ch III (10 June 2008) 78

The perpetration by means presupposes that the person who commits the crime
(intermediary) can be used as an instrument or tool by the indirect perpetrator as the master-mind
or "individual in the background"84. He or she is normally an innocent agent, not responsible for
the criminal act. The perpetrator by means is also considered a principal at common law 85
However, especially in the field of "macrocriminality", i.e., systematic or mass criminality
organized, supported or tolerated by the state, the direct perpetrator or executor normally
performs the act with the necessary mens rea and is fully aware of its illegality. The principal
dominates the direct perpetrators by way of a hierarchical organizational structure.
The ADF Commander in Orkan, Colonel Adada, who is a popular figure among his
forces, reported to General Amir and took instructions from him directly. 86Such fact establishes
the authority and hierarchical ascendancy of General Amir to Colonel Adada and to the latters
troop. During a staff meeting in Orkan, where Colonel Adada was present, Gen. Amir demanded
that measures be taken to end the illegal occupation of the ISSF in the country.87
Hence, in the light of these, Gen. Amir is criminally responsible and must be indicted
under Art. 25(3)(a) of the ICC Rome Statute.
Article 8 (2) (e) (ix) War crime of treacherously killing or wounding
1. The perpetrator invited the confidence or belief of one or more combatant adversaries that
they were entitled to, or were obliged to accord, protection under rules of international law
applicable in armed conflict.
In the course of armed conflict, acts inviting the confidence of the adversary to lead him to
believe that he is entitled to, or is obliged to accord protection under the rules of international
law applicable in armed conflict is a grave breach of trust and amounts as a serious crime under
84 See generally for perpetration by means G. Fletcher, supra note 6, 197-200; H.-H.
Jescheck/Th.Weigend, Strafrecht. Allgemeiner Teil 62, 662 et seq. (5th ed. 1996).

85 See comment to Model Penal Code, supra note 13, 2.06.


86 Facts, 6
87 Facts, 21

the law of war88. Rebels must not feign civilian status while engaging in military operations. 89
Twenty passengers, who were later found to be militants coordinating with ADF, claimed to be
civilians displaced by the fighting near ISSF outpost in Orkan. 90 The vehicles used in the attack
were loaded with personal belongings91 to strengthen the presumption of civilian status. Civilians
are persons taking no active part in hostilities 92 and are afforded protection under Common
Article 3 and Additional Protocol II.93

2. The perpetrator intended to betray that confidence or belief.


After claiming civilian status, the rebels inquired if they could shelter in the ISSF station 94, away
from the increasing conflict in Orkan. The intent of the militants to betray the confidence reposed
on them by the ALA forces in the ISSF outpost can be inferred in the fact that they drove at full
speed and opened fire95 and dozens of grenades and explosives were thrown at the building sand
personnel at the station.96 The intent to betray the confidence was corroborated by the fact that
88 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts art. 37 (1), June 8, 1977, 1125 U.N.T.S. 3 (hereinafter AP I)

89 Prosecutor vs Tadic (Decision on Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-1, 125
90 Facts, 22
91 Ibid
92 The conflicts in Lebanon during 1980s and Somalia after 1991 may be cited as examples of this kind. See Fleck, The
Handbook of Humanitarian Armed Conflicts, (1995),p.221.

93 H.P. Gesser, A Measure of Humanity in Internal Disturbances and Tensions : Proposal for a Code of Conduct,
262 International Review of the Red Cross, (1988), p.44.

94 Facts, 22
95 Facts, 23
96 Ibid

the rebels stormed out of the station once the attack was done 97, implying that the main and only
purpose for their contact in the ISSF station was to carry out the surprise aggression.

3. The perpetrator killed or injured such person or persons.


Treachery is perfected when the accused, after feigning incapacitation by wounds or
sickness98, effectively attacks the off-guarded persons. The surprise attack by the militants
resulted to 10 deaths and 15 injured persons of ISSF soldiers.99

4. The perpetrator made use of that confidence or belief in killing or injuring such person or
persons.
The perpetrator, to abuse his adversarys confidence, needs to know that the victim belonged to
the adverse party.100 The attack was made under the presumption of civilian status. 101 The
confidence of the ISSF troops can be inferred from the fact that the troops peacefully
accommodated the militants102 given the chaotic atmosphere prevailing in the Orkan where the
ISSF outpost was located.103

97 Ibid
98 Richard B. Jackson. Perfidy In Non-International Armed Conflicts Vol. 88 U.S. Naval War College, USA
99 Facts, 23
100 Prosecutor v Katanga (Decision on Confirmation of Charges) ICC-01/04-01/07, PT Ch I (30 September 2008), 297
101 Facts, 22
102 Facts, 23
103 Facts, 22

5. Such person or persons belonged to an adverse party.

President Aflan has stated that the ISSF has been deployed in Alin to assist the ALA in
facilitating a regime change and declared that the ISSF was no longer welcome in Alin and
should leave immediately.104 The ISSF outpost was located in Orkan105 where both troops
belonging to the ISSF and a dozen ALA militants are based.106 The ADF has been at the
offensive, initiating air strikes107 and engaging ALA and ISSF troops in intense exchanges of fire
in suburban Orkan.108

B. General Amir should be charged for said war crime under Article 25 (3)(b).

Ordering, soliciting and inducing refer to a conduct by which a person is influenced by the
other to commit a crime.109 The following elements need to be proved:110

104 Facts, 22
105 Ibid
106 Ibid
107 Facts, 20
108 Facts, 22
109 Prosecutor v Gbagbo (Decision on the confirmation of charges) IC-02/11-01/11, P-T Ch I (12 June 2014), 215
110 Prosecutor v Sylvestre Mudacumura (Decision on the Prosecutors Application under Article 58) ICC-01/04-01/12, P-T Ch II
(13 July 2002), 63

The person is in a position of authority: General Hassan Amir is heading the Alini Defence
Forces since 1980.111 He himself tasked Adada to take measures to be taken to end the illegal
occupation of ISSF in the Republic of Alin 112. His authority can be inferred from the fact that
President Aflan considered his opinion before launching an offensive against ALA113.

The person instructs another person in any form to commit a crime which in fact occurs or is
attempted: There is no requirement that an order be given in any particular form. 114 Hence, Amir
tasking Adada to take measures to end the ISSF occupation in Alini territory qualifies as an order
under this section. Physical presence is not required.115 Orders can be though an intermediary,
and need not give the order directly to the physical perpetrator.116

The order had a direct effect on the commission of the crime: Direct effect would include if the
orders are acted upon.117 The surprise attack on the ISSF outpost was carried on in consonance
with the orders of Amir on October 15, 2013.118 Three injured attackers who failed to escape and
were later on captured by ISSF revealed that they were members of the ADF.119 Imad Mousse,
the leader of the group that carried out the attack, affirmed that the said attack was coordinated
111 Facts, 1
112 Facts, 21
113 Facts, 6
114 Prosecutor v Sylvestre Mudacumura, 64
115 Prosecutor v Milosevic (Judgment) ICTY-98-29/1-A, A Ch (12 November 2009), 290
116 Prosecutor v Dordevic (Judgment) ICTY-05-87/1-T, T Ch II (23 February 2011), 1871
117 Prosecutor v Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor)
ICC-01/04-02/06, P-T Ch II (9 June 2014), 149

118 Facts, 21

and planned by the ADF120 which is headed by Amir121. Also, Adada was an immediate
subordinate to Amir, as inferred in the fact that Adada reports to Amir and took instructions from
him directly122, hence, Amir;s proven authority over the direct perpetrators supports the
conclusion. The superior-subordinate relationship between the person giving the order and the
person executing it123 is distinct from the superior-subordinate relationship characterized by
effective control124 and is informal125

The person is at least aware that the crime will be committed in the ordinary course of events as
a consequence of the execution of or implementation of the order: Amir being informed of the
allegation of crimes is an indicator to the fulfillment of this element. 126 Reports by various NGOs
and other international organizations to the accusations towards forces under his authority
concerning the commission of crimes would serve as an indicator.127 As the general and
commander-in-chief of the ADF, Amir was aware of the crimes which he himself ordered and
intended the resultant consequences.

119 Facts, 23
120 Facts, 24
121 Facts, 1
122 Facts, 6
123 Prosecutor v Blaskic (Judgment) ICTY-95-14-T, T Ch (3 March 2000), 474
124 Prosecutor v Gacumbitsi (Judgment) ICTR-2001-64-A, A Ch (7 July 2006), 182
125 Prosecutor vs Kordic (Judgment) ICTY-95-14.2-T, T Ch (26 Feburary 2001), [445]-[446]
126 Mudacumura (n 84), 67
127 ibid

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