12 Prosecution

PROSECUTOR VS. GENERAL VANDE

Before the International Criminal Court at the Hague

OCTOBER 2017
 TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................................... i
STATEMENT OF FACTS........................................................................................................ 1
SUMMARY OF THE PLEADINGS......................................................................................... 3
PLEADINGS................................................................................................................................ 4
A. PRELIMINARY MATTERS................................................................................................. 4
1. STANDARD OF PROOF............................................................................................... 4
2. NATURE OF THE CONFLICT.................................................................................... 4
2.1 All charges against Vande took place in the
context of and were associated with an non-
international armed conflict (NIAC)................................................................. 4
2.1.1 There was an NIAC between the TAF and the FKA........................ 4
2.1.2 The minimum requirement of intensity has been met ..................... 4
2.1.3 The FKA possessed the requisite organization ................................ 5
2.2 The involvement of Hakova did not internationalize
the armed conflict in Kouka ................................................................... 5
2.2.1 Hakova is not a sovereign state ........................................................ 5
2.2.2 Involvement of Hakovan officers in FKA failed the
overall control test .. 5
2.2.3 Nessuno documents are inadmissible as evidence ......................... 6
2.3 There is a nexus between the 3 charges against
Vande and the conflict in Kouka ........................................................... 6
2.4 Vande is aware of factual circumstances that
established the existence of an NIAC .................................................... 6
B. CHARGES . 7
COUNT 1: VANDE BEARS RESPONSIBILITY FOR INDUCING THE
COMMISSION OF THE WAR CRIME OF DIRECTING ATTACKS
AGAINST THE INDIVIDUAL CIVILIANS OR THE CIVILIAN
POPULATION AS SUCH................................................................................................ 7

Page 2 of 25
 1. Vande induced the attack directed on civilians............................................................ 7
2. TAF committed the war crime of directing attacks against civilians..................... 7
2.1 The TAF launched the attacks ................................................................................... 8
2.2 The object of the attack was a civilian population or individual civilians not
taking direct part in hostilities .......................................................................................... 8
2.2.1 The attack violated the Principle of Distinction ........................................... 9
2.2.2 The attack violated the Principle of Proportionality ................................. 9
2.3 The attack was intended to be carried out on a non-military objective .................... 9
2.4 Vande was aware of the Civilian Status of the Population or Individuals............... 10
2.5. Vande was aware of the Circumstances that Established the Existence of the
Armed Conflict ................................................................................................................. 10
COUNT 2: VANDE IS RESPONSIBLE AND LIABLE ON THE BASIS OF
COMMAND RESPONSIBILITY FOR THE WAR CRIME OF RAPE.................... 11
1. Vande bears command responsibility for the commission of the war crime of
rape by his subordinates .................................................................................................. 11
1.1 Effective Control ........................................................................................................... 11
1.2 Knowledge .................................................................................................................... 11
1.3 No reasonable and necessary measures taken ............................................................. 12
2. The senior officers of TAF committed rape ....................................................................... 12
2.1 Human Rights Watch and The Guardian reports are admissible and sufficient to prove
the commission of rape ........................................................................................................ 12
2.2 The subordinates of Vande perpetrated rape ............................................................... 12
2.3. The protection against rape applies to victims within the same armed forces ............. 13
3. Vande knew that the rape committed by his subordinates happened in the
context of a NIAC............................................................................................................... 13
COUNT 3: VANDE, THROUGH ANOTHER PERSON, ORDERED THE
DISPLACEMENT OF THE OMBRIAN RESIDENTS IN KOUKA
UNDER OPERATION BLANC....................................................................................... 14
1. Vande, through another, ordered the displacement.................................................. 14
2. Vande made the order in his capacity as an individual, jointly with
another or through another person, regardless of whether that other
person is criminally responsible................................................................................... 14

Page 3 of 25
 3. Ombrian residents are civilians.................................................................................... 15
4. Such order was not justified by the security of the civilians involved or
by military necessity..................................................................................................... 16
5. Vande as Chief of Defence Staff is in a position to effect displacement
when he gave the order to implement Operation Blanc............................................ 16
6. Vande is aware that the displacement of civilians occurred in the context
of a NIAC....................................................................................................................... 16
PRAYER FOR RELIEF ......................................................................................................... 17

Page 4 of 25
 INDEX OF AUTHORITIES

INTERNATIONAL TREATIES AND CONVENTIONS

1933 Montevideo Convention on the Rights and Duties of States

Page 5

International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed
Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3
Pages 8, 9, 15

International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International
Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609
Pages 8, 9, 15

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966,
United Nations, Treaty Series, vol. 999, p. 17
Page 6

UN General Assembly, Rome Statute of the International Criminal Court, July 17, 1998 ISBN
No. 92-9227-227-6 ..
Page 6

U.N. DOCUMENTS

International Criminal Court, Elements of Crime, 2013, ISBN No. 92-9227-232-2

Page 14

UN OCHA Civil-Military Coordination Section, Use of Military or Armed Escorts for

Humanitarian Convoys, 14 September 2001
Page 10

Page 5 of 25
JUDICIAL AND ARBITRAL DECISIONS

ICJ Report, Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 8 July
1996, [1996] Rep. 226, at 257
Page 8

M.C. v. Bulgaria,.39272/98, Council of Europe: European Court of Human Rights, (3 December

2003),
Page 12

Prosecutor v. Ante Gotovina et al. T-Ch I, IT-06-90-T, ICTY (15 April 2011)
Page 14

Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 (9 June 2014)

Pages 14

Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 (4 January 2017)

Page 13

Prosecutor v. Bokoski, Trial Chamber II,Trial Decision (10 July 2009)

Pages 4, 5

Prosecutor v. Callixte Mbarushimana, Decision on the confirmation of charges,

ICC-01/04-01/10, (16 December 2011)
Pages 4, 8, 9

Prosecutor v. Dlic, T.Ch, IT-04-83-T (15 September 2008)

Pages 11, 12

Prosecutor v. Germain Katanga, (Judgment pursuant to article 74 of the Statute),

ICC-01/04-01/07-3436-tENG, Tr. Ch. II,(7 March 2014)
Page 8

Prosecutor v. Harun and Kushayb, PT-ChI, 27April 2007)

Page 7

Prosecutor v. Jean-Paul Akayesu, T.Ch 1, ICTR-96-4-T (2 September 1998)

Page 12

Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, P-T Ch II, (15 June 2009)
Pages 4, 5

Page 6 of 25
Prosecutor v. Katanga (Decision on Confirmation of Charges) ICC-01/04-01/07, P-T Ch I (30
September 2008)
Pages 4, 6, 7

Prosecutor v. Kenyatta, PT-Ch. II, ICC-01/09-02/11 (23 January 2012)

Page 12

Prosecutor v. Kordic and Cerkez, T. Ch, IT-95-14/2-T (26 February 2001)

Page 11

Prosecutor v. Oric, Trial Chamber, ICTY-03-68-T, T Ch II (30 June 2006)

Page 11

Prosecutor v. Radislav Krstic, IT-98-33-T, ICTY (2Aug 2001)

Page 7

Prosecutor v. Stanislav Galic - Case No. IT-98-29-T

Page 9

Prosecutor v. Strugar, T.Ch, IT-01-42-T (31 January 2005)

Page 11

Prosecutor v. Thomas Lubanga Dyilo, (Decision on the confirmation of charges), P-T Ch I (29
January 2007),
Page 15

Prosecutor v. Tihomir Blaskic, IT-95-14-T, ICTY (3Mar 2000)

Page 7

Prosecutor v. Zdravko Tolimir, T.Ch II, IT-05-88/2T, ICTY (12 December 2012)
Page 14

BOOKS

Black's Law Dictionary, 9th, ed., 2009.

Page 7

Drmann, K., & Doswald-Beck, L. (2008). Elements of war crimes under the Rome Statute of
the International Criminal Court: sources and commentary. Cambridge: Cambridge University
Press.
Page 14

Page 7 of 25
Longman, T., & Takirambudde, P. (1998). Proxy targets: civilians in the war in Burundi. New
York: Human Rights Watch.
Page 15

Mettraux, G. (2008). Perspectives on the Nuremberg Trial. Oxford: Oxford University Press.
Page 11

Pictet, J. S., & Uhler, O. M. (1994). Geneva convention IV: relative to the protection of civilian
persons in time of war: commentary. Geneva: International committee of the Red Cross.
Page 16

STATEMENT OF FACTS

The Federal Republic of Toukanov and Hakova has two major religions, the Ombri and
Boubha. Majority of the Ombrians reside in Hakova while most Boubhans in Toukanov.
Upon his election as President in 2009, Daniel Arlet declared Boubha as the state religion
which led to Hakova proclaiming independence. By 2017, 138 countries recognized the Republic
of Hakova which is not a United Nations member.
A constitutional amendment renamed the Federal Republic as the Boubhan State of
Toukanov and referred to Hakova as an autonomous region. The Federal Army was regrouped as
the Toukanov Armed Forces (TAF).
Kouka is a Toukanovan province mostly populated by Ombrians who felt oppressed after
the government restructuring. The Ombrians publicly demanded accession to Hakova. On March
2014, martial law was declared in Kouka which led to an escalation of violence.
The Free Koukan Army was formed by Ombrian veterans based in Kouka, composed of
majors and colonels. They recruited members, obtained high-powered weapons and gained
control over half of Kouka.

Page 8 of 25
 On August 30, 2014, General Vande, the TAFs highest-ranking military officer, publicly
declared to eliminate all persons associated with the FKA. Vande never concealed his abhorrence
of the Ombri religion.
Lannister Enterprises, a transport company whose trucks have been the subject of
repeated criminal acts in FKA-controlled areas by Ombrian civilians, sought the protection of the
TAF.
On November 10, 2014, a convoy of Lannister trucks, protected by a platoon of TAF
forces, and two armoured vehicles, set off to Biro, the capital of Kouka. Vande instructed the
task forces leader to protect the convoy with all necessary means. As the convoy entered the
FKA-controlled area, 200 Ombrian civilians stopped and attempted to rob the trucks. Following
warning shots from the TAF, shots were fired from the middle of the crowd. The TAF opened
fire at the civilians as they fled. 110 civilians died and 30 injured.
In January 2015, there was a mutiny within the TAF. The mutiny was partly a result of
the soldiers dissatisfaction with the large-scale sexual abuse and rape within the TAF from
March 2014 until December 2015 according to similar reports by the Human Rights Watch and
the Guardian.Vande promoted the mutineers and established the Boubha Guards, a unit directly
reporting to him.
The Boubha Guards executed Vandes Operation Blanc, a military strategy which forced
Ombrians to attend Boubhan religious classes three times a day. The 80,000 who failed to do so
were imprisoned. Others fled for fear of detention.
On December 14, 2015, Arlet was impeached after public displeasure over human rights
abuses. The new government negotiated a cease-fire agreement with the FKA on the condition
that the situation in Kouka would be referred to the International Criminal Court. After
investigation, Vande was surrendered to the Court. Hence, this case before the Court.

Page 9 of 25
 II. SUMMARY OF THE PLEADINGS

All three charges are in the context of and associated with a non-international
armed conflict.

The involvement of the self-proclaimed Hakovan government does not affect the
nature of the conflict between TAF and KFA as a non-international armed conflict
under international law.

General Vande induced the commission of the war crime of directing attacks
against civilians.

Page 10 of 25
 His authority over his subordinates coupled with his public speeches encouraging
the elimination of Ombrians prove that he induced TAF soldiers to commit acts against
Ombrian civilians that violate the principles of proportionality and distinction.

General Vande is criminally liable for the war crime of rape on the basis of
command responsibility.

Despite being aware of the rapes committed by his subordinates, he failed to take
necessary measures against them. The reports from independent organizations are sufficient
to confirm the charge against General Vande.

General Vande, through his Operation Blanc, indirectly and unlawfully

displaced the Ombrian residents of Kouka.

Operation Blanc is not justified by military necessity nor was it for the security of
civilians. He implemented it simply because of his abhorrence against Ombrians and desire
to eliminate them in Kouka.

III. PLEADINGS

A. PRELIMINARY MATTERS
1. STANDARD OF PROOF

The Prosecution will provide evidence demonstrating a clear line of reasoning

underpinning its specific allegations against General Vande [Vande] in accordance with the
1
evidentiary standard of substantial proof, as provided for in Article 61(7) of the Statute.

1
Prosecutor v. Germain Katanga et al., ICC-01/04-01/07, P-T Ch I (30 September 2008) 65
Page 11 of 25
 2. NATURE OF THE CONFLICT

2.1 All charges against Vande took place in the context of and were associated with a
Non-International Armed Conflict (NIAC).

2.1.1 There was an NIAC between the TAF and the FKA.

2
NIAC is a protracted armed conflict...within a state. To qualify as an NIAC, two
3
criteria must be met: a) intensity of the armed violence and b) organization of the armed groups.

2.1.2 The minimum requirement of intensity has been met.

.
4
The intensity of the armed conflict met the relevant standards . The conflict between the
two parties existed from the time the TAF forces were deployed in Kouka and the FKA was
5
established, until the signing of the ceasefire agreement. During that time, the confrontations
involving the use of high-powered firearms spread all throughout Kouka enabling FKA to seize
6
control of half of the Koukan province.
2.1.3 The FKA possessed the requisite organization.

7
The existence of several factors substantiates FKA as an organized armed group. It was
able to recruit approximately 2,000 members and took control of approximately half of the
8
Koukan province through large scale attacks. Ombrian veterans had assumed leadership

2
Art. 8(2)(f), Rome Statute.
3
Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, P-T Ch II (15 Jun 2009) 231; Prosecutor v.
Callixte Mbarushimana, ICC-01/04-01/10, P-T Ch I (16 Dec 2011) 103
4
Prosecutor v. Bokoski, Trial Chamber II,Trial Decision (10 Jul 2009) 177-193
5
Facts, [8]-[28]
6
Facts, 9
7
Bokoski,footnote[4] 194-206
8
Facts, [9]-[28]
Page 12 of 25
 9
positions within the FKA. Both parties exercised their capacity to act on behalf of its members
10
in negotiations through the signing of the ceasefire agreement.

2.2 The involvement of Hakova did not internationalize the armed conflict in Kouka.

2.2.1 Hakova is not a sovereign state.

11
Hakova failed to fulfill all the requisites of a sovereign state under the international law.

2.2.2 Involvement of Hakovan officers in FKA failed the overall control test.

The overall control test requires that the intervening party has a role in organizing,
coordinating, or planning the military actions of the military group, in addition to financing,
12
training and equipping or providing operational support to that group.

The self-proclaimed Hakovan government merely provided the weapons and the training
13
to the FKA fighters. The deployment of HDA tanks and men towards the border and the
repeated manoeuvres by the HDA at the Hakova-Toukanov border occurred within Hakovan
14
territory and is therefore irrelevant to the issue.

2.2.3 Nessuno documents are inadmissible as evidence.

Evidence obtained by means violating internationally recognized human rights are

15
inadmissible if the admission would seriously damage the integrity of the proceedings. The

Facts, 8
9
10
Facts, 28
11
Art. 1, 1933 Montevideo Convention
12
Gombo, footnote [3], 130
13
Facts, 11
14
Facts, 11
15
Art. 69(7), Rome Statute
Page 13 of 25
 16
right against unlawful interference with a persons privacy is internationally recognized. This
17
Court was established to reaffirm the purpose of the United Nations in promoting and
18
encouraging respect for human rights . Thus, the admission into evidence of Nessuno
19
documents would impair the integrity of this Court.

2.3 There is a nexus between the 3 charges against Vande and the conflict in Kouka.

The following factors establish that the act in question is sufficiently related to the armed
conflict: the perpetrator is a combatant; the victim is a non-combatant; the act may be said to
serve the ultimate goal of a military campaign; and the crime is committed as part of or in the
20
context of the perpetrator's official duties.

21
All the charges against Vande occurred during the NIAC in Kouka and were committed
either as part of or in the context of his official duties as the highest-ranking and senior-most
22
military officer in the TAF. All the victims in the charges were either civilians or those who did
23
not directly participate in the hostilities.
2.4 Vande is aware of factual circumstances that established the existence of an NIAC.

What is required is awareness of the factual circumstances to establish the existence of an

armed conflict that is implicit in the terms took place in the context of and was associated with
B. CHARGES
COUNT 1: VANDE BEARS RESPONSIBILITY FOR INDUCING THE COMMISSION
OF THE WAR CRIME OF DIRECTING ATTACKS AGAINST THE INDIVIDUAL
CIVILIANS OR THE CIVILIAN POPULATION AS SUCH

16
Art. 17, ICCPR
17
Preamble, Rome Statute
18
Article 1(3), UN Charter
19
Facts, 27
20
Katanga, footnote [1] [380]-[382]-[383]
21
Facts, [16]-[18]-[21]-[22]
22
Facts, [4]-[16]-[18]-[21]-[22]
23
Facts, [16]-[18]-[21]-[22]

Page 14 of 25
 1. Vande induced the attack directed on civilians.

Inducement encompasses any conduct which leads another person to commit a crime,
24
including solicitation. Public speeches personally encouraging the commission of illegal acts
25 26
are indicative of inducement. As Chief of the Defence Staff, Vande had position and authority
27 28
to convey implicit intent for another to commit an offense as shown by his manifestations of
29
despise against Ombrians through his public speeches and personal blog .

30
Due to prior acts of violence committed by the Ombrians against Lannister trucks ,
31
Vandes order to protect the convoy by all necessary means was interpreted by the troops that
any attack against the convoy are done by FKA terrorists. Vandes knowledge that certain acts
32
may be attributed to Ombrian civilians who are not to be subjected to any attack establish the
mens rea of individual criminal responsibility.

2. TAF committed the war crime of directing attacks against civilians.

All five elements under Article 8 (2) (e) (i) are fulfilled.

2.1 The TAF launched the attacks.

Attacks are acts of violence against the adversary, whether in offence or in
33
defence. The civilian population, as well as individual civilians, shall not be the object of an

24
Black's Law Dictionary, 9th , ed., 2009.
25
Prosecutor v. Harun and Kushayb, PT-Ch I (27April 2007) 90
26
Facts, 4,
27
Prosecutor v. Radislav Krstic, IT-98-33-T, ICTY (2Aug 2001) 601
28
Prosecutor v. Tihomir Blaskic, IT-95-14-T, ICTY (3Mar 2000) 281
29
Facts, 12, 14
30
Facts, 14.
31
Facts 15.
32
Katanga, footnote [1], 807
33
API, Art. 49
Page 15 of 25
 34
attack . To constitute a war crime, it is sufficient to prove that the author directed the
35
attacks toward the civilian population or individual civilians. TAFs attacks, as induced by
Vande, produced 110 civilian deaths.

2.2 The object of the attack was a civilian population or individual civilians not taking
direct part in hostilities.
36
Attacks on civilians are absolutely prohibited by international humanitarian law
37
and unjustifiable by military necessity.

38
A civilian is anyone not a member of the State or non-State armed forces and a
civilian population consists of all civilians as opposed to members of armed forces and
any other legitimate combatants. In case of doubt, an individual must be considered a
39
civilian.

40
The shots fired from the middle of the crowd did not deprive the entire Ombrian
41
population of its civilian character. Reprisals against civilian population are prohibited
in all circumstances, regardless of the behaviour of the other party, since "no
circumstances would legitimise an attack against civilians even if it were a response
42
proportionate to a similar violation perpetrated by the other party.

2.2.1 The attack violated the Principle of Distinction.

34
APII, Art 13 (2)
35
Katanga, PT Ch. I, (6 Jul 2007) 37
36
Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226, at
257 (78)
37
Prosecutor v. Germain Katanga, (Judgment pursuant to article 74 of the Statute), ICC-01/04-01/07-3436-tENG,
Tr. Ch. II,(7 March 2014) 800
38
Katanga, footnote[37] 788
39
Mbarushimana, footnote [3] (16 Dec2011) 148
40
Facts, 16
41
Facts,16
42
Mbarushimana, footnote [3] 143
Page 16 of 25
 Indiscriminate attacks against civilians are prohibited as they enjoy protection
43 44
against dangers from military operations , unless they take a direct part in hostilities.
Indiscriminate attacks are of a nature to strike military objectives and civilians or civilian
45
objects without distinction. Hence, the TAF forces should have distinguished a
legitimate military target from a civilian after the shot was fired from the middle of the
46
crowd.

2.2.2 The attack violated the Principle of Proportionality.

A disproportionate attack is launched with awareness that incidental loss of life or

injury to civilians will or may occur as a result. The civilian population is not the target of
47
the attack but only an incidental consequence thereof. Even if the Ombrian were not the
48
target, opening fire at fleeing Ombrian civilians is still an incidental consequence falling
within the war crime of attacking civilians.

Vande had reasonable use of the information available to him, thus he could have
49
expected excessive civilian casualties to result from the attack.

2.3 The attack was intended to be carried out on a non-military objective.

Intention could be inferred from the fact that Vande wanted to exact revenge on
50 51
both civilians and the belligerent FKA. Biro was an FKA-controlled area and before

43
APII, Art 13
44
AP II Art. 13 (3),
45
API, Art. 51 (4)
46
Facts, 16
47
Mbarushimana,footnote[3] 142
48
Facts, 16
49
Prosecutor v. Stanislav Galic - Case No. IT-98-29-T
50
Mbarushimana, footnote [3] 143
51
Facts, 9
Page 17 of 25
 the departure of the convoy for Biro, Vande gave a direct order to the task forces leader
52
to protect the convoy using all necessary means.

The act of Lannister Enterprises is not a humanitarian relief because it failed to

satisfy the principles of humanitarian action, specifically the principles of impartiality
53
and neutrality since it was only for the Boubhans living in Biro. Even if the act was a
humanitarian relief, as a general rule, humanitarian convoys do not use armed or military
54
escorts.

2.4 Vande was aware of the Civilian Status of the Population or Individuals.

Vandes decision to assign a military escort is predicated on the conduct of

violence imputed on Ombrian civilians made on previous Lannister convoys entering
55
FKA-controlled territories.

2.5. Vande was aware of the Circumstances that Established the Existence of the
Armed Conflict.

Vandes decision to assign a TAF task force to protect the Lannister convoy is
predicated on his knowledge of the previous attacks, by the same group of Ombrians, on
Lannister trucks upon entering FKA-controlled areas. Furthermore, he issued statements
in his personal blog that all Ombrians must be removed as they constitute danger to the
Boubhans.

COUNT 2: VANDE IS RESPONSIBLE AND LIABLE ON THE BASIS OF COMMAND

RESPONSIBILITY FOR THE WAR CRIME OF RAPE

52
Facts,16
53
Facts, 15
54
UN OCHA Civil-Military Coordination Section, Use of Military or Armed Escorts for Humanitarian Convoys, 14
September 2001
55
Facts, 9.
Page 18 of 25
1. Vande bears command responsibility for the commission of the war crime of rape by his
subordinates.

1.1 Effective Control

56
Factors such as the official position of the suspect , the power to promote, replace,
57
remove or discipline any member of the forces , and the capacity to make changes in the
58
command structure indicate the existence of effective control. Vande, as the highest military
official in the TAF, promoted several mutineers in March, 2015 and created a special unit
59
directly reporting to him.

1.2 Knowledge

60
The commander can be held liable for having actual knowledge of the crime. Indicia
relevant for gathering knowledge can be the scope of the illegal acts, time during which they
61
took place, the location of the commander at the time, and the availability of reports.

The rape and sexual abuse of the TAF soldiers happened from March, 2014 to December,
2015. Within this interval, Vande visited the camps where the large-scale sexual abuse took
place. These crimes became common knowledge when they were reported by the Guardian and
62
the Human Rights Watch..

1.3 No reasonable and necessary measures taken

56
Prosecutor v. Kordic and Cerkez, T. Ch, IT-95-14/2-T, ICTY (26Feb 2001) 438
57
Prosecutor v. Dlic, T.Ch, IT-04-83-T, ICTY (15Sep 2008) 62
58
Prosecutor v. Strugar, T.Ch, IT-01-42-T, ICTY (31Jan 2005) 397
59
Facts, 18.
60
Prosecutor vs Oric, T.Ch II, IT-03-68-T, ICTY (30Jun 2006) 321
61
Mettraux, G. (2008). Perspectives on the Nuremberg Trial. Oxford: Oxford University Press.214
62
Facts,18
Page 19 of 25
 63
A commander has the duty to repress the commission of crimes by his subordinates.
This duty also includes two others: a) stopping the commission of the ongoing crimes and b)
64
punishing the perpetrators after such commission. Vande failed to fulfill these duties when he
did nothing to stop the large-scale sexual abuse and refused to punish the subordinates after
65
knowledge of such.

2. The senior officers of TAF committed rape.

2.1 Human Rights Watch and The Guardian reports are admissible and sufficient to
prove the commission of rape.

The similar reports of the Human Rights Watch and the Guardian revealing rape and
sexual abuse within the TAF are considered indirect evidence that should be accorded weight,
for at least two pieces of indirect evidence are sufficient to prove an allegation to the standard of
66
substantial grounds to believe.

2.2 The subordinates of Vande perpetrated rape

Rape is physical invasion of a sexual nature, committed on a person under circumstances

which are coercive and its central elements cannot be captured in a mechanical description of
67
objects and body parts. Coercion constitutes not only physical force or the threat thereof, but
68
may also include the exercise of organizational power. Here, there existed a coercive
circumstance wherein the perpetrators abused their position of superior military power over the
69
victims.

63
Delic, footnote[57] 69
64
Kordic and Cerkez, footnote [56], 446
65
Facts, 18.
66
Prosecutor v. Kenyatta, PT-Ch. II, ICC-01/09-02/11 (23Jan 2012), [82]-[87]
67
Prosecutor v. Jean-Paul Akayesu, T-Ch I, ICTR-96-4-T (2Sept 1998) 688
68
M.C. v. Bulgaria,.39272/98, Council of Europe: European Court of Human Rights, (3 December 2003), 180
69
Facts, 18.
Page 20 of 25
 Investigative journalists of the Guardian reported that a large-scale and systematic sexual
abuse was happening within the TAF wherein the youngest and physically weakest men and
women soldiers in each regiment were being regularly raped by higher-ranking TAF officers and
senior soldiers. These findings have been corroborated by the Human Rights Watch report based
70
on the interviews of wounded TAF soldiers.

2.3. The protection against rape applies to victims within the same armed forces.

The prohibition of rape attained jus cogens status under international law. It will
71
therefore apply even if the victims were members of the same armed forces.

3. Vande knew that the rape committed by his subordinates happened in the context of a
72
NIAC.

Vande acknowledged the rape committed against the youngest and physically weakest
73
soldiers by high-ranking TAF officers some senior soldiers. Further, young soldiers deployed in
Kouka were also picked and sexually abused based on their ranks and performance in the
74
battlefield.

COUNT 3: VANDE, THROUGH ANOTHER PERSON, ORDERED THE

DISPLACEMENT OF THE OMBRIAN RESIDENTS IN KOUKA UNDER OPERATION
BLANC.

1. Vande, through another, ordered the displacement

70
Ibid.
71
Prosecutor v. Bosco Ntaganda, PT-Ch.VI, ICC-01/04-02/06 (4Jan 2017)
51-53
72
See Preliminary Matters
73
Facts, 18.
74
Ibid.
Page 21 of 25
 The conduct of the perpetrator forcing the civilians to leave a certain area is not limited to
75
an order. Limiting element 1 of Article 8(2)(e)(viii) to an order would unduly restrict the actual
76
circumstance of civilian displacement in the course of an armed conflict.
Ombrians were required to attend religious classes and visit Boubha sanctuaries
77
three times a day. Anyone who failed to do so were imprisoned, as ordered by Vande. Others
78
fled for fear of detention in notorious sanitary conditions thus amounting to the forcible
displacement of the Ombrian civilians.

79
People moved without a genuine choice. Fear of violence, duress, detention, psychological
oppression, and other such circumstances may create an environment where there is no choice
80
but to leave, thus amounting to the forcible displacement of people. A person must give consent
81
voluntarily and by his/her free will to be lawfully displaced.

2. Vande made the order in his capacity as an individual, jointly with another or through
another person, regardless of whether that other person is criminally responsible.
82
The perpetrator was in a position to effect such displacement by giving such an order. It
83
covers an individual who has effective control over a situation. It is sufficient when such order
84
is given within the chain of command.
It is sufficient that the co-perpetrators are aware of the risk of implementing the common
plan, specifically directed at the achievement of a non-criminal goal that will result in the
85 86
commission of the crime, and accept such an outcome. This was evident in Operation Blanc,

75
Prosecutor v. Bosco Ntaganda, PT-Ch.II, ICC-01/04-02/06 (9Jun 2014) 64
76
Ibid.
77
Ibid.
78
Ibid.
79
Prosecutor v. Ante Gotovina et al., T.Ch I, IT-06-90-T, ICTY (15 April 2011) 1738
80
Ibid. 1739
81
Prosecutor v. Zdravko Tolimir, T.Ch. II, IT-05-88/2T, ICTY (12Dec 2012) 795
82
EOC,Article 8(2)(e)(viii)
83
D rmann, K., & Doswald-Beck, L. (2008). Elements of war crimes under the Rome Statute of the International
Criminal Court: sources and commentary. Cambridge: Cambridge University Press, pg. 473
84
Ibid.
85
Prosecutor v. Thomas Lubanga Dyilo, P-T Ch I, ICC-01/04-01/06 (29 Jan 2007), 344
86
Facts, 19
Page 22 of 25
 87
which was spearheaded by the Boubha Guards directly under Vande who admitted that it his
88
military strategy.

3. Ombrian residents are civilians.

89
Ombrian residents of municipalities in Kouka were the subjects of Operation Blanc.
They are deemed civilians, absent of any showing that they were taking part in the hostilities in
90
the area.

4. Such order was not justified by the security of the civilians involved or by military
necessity.

Displacement of a population is allowed when conducted for the security of persons

91
involved or military necessity so demands. When carried out, the civilian population must be
92
received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.

Ombrian civilians not attending Boubha religious classes were imprisoned in unsanitary
93
detention centers, a clear showing that detention itself was the goal in furtherance of a
well-organised purpose to expel Ombrians in Kouka not justified under international law.
94
Military reasons cannot be justified by political motives.

Military necessity exists when the presence of protected persons in an area hampers
95
military operations. Removal of civilians, in a limited sense, is allowed from an expected site of

87
Ibid.
88
Facts, 20
89
Facts,20
90
API, Rule 5, Customary IHL, 50(1)
91
APII Article 17(1)
92
APII Article 17(2)
93
Ibid.
94
Longman, T., & Takirambudde, P. (1998). Proxy targets: civilians in the war in Burundi. New York: Human
Rights Watch, pg. 32
95
Pictet, J. S., & Uhler, O. M. (1994). Geneva convention IV: relative to the protection of civilian persons in time of
war: commentary. Geneva: International committee of the Red Cross., 280.

Page 23 of 25
 96 97
direct combat. However, it does not authorize indefinite detention of civilians, as in Operation
Blanc, strategized to effectively control Ombrians. The removal of civilians cannot be invoked as
an excuse to gain military advantage and holding the population hostage against their will in
98
squalid conditions.

Although forced removal for humanitarian reasons is justifiable in certain situations, it is

not justified where the humanitarian crisis that caused the displacement is itself the result of the
99
perpetrators own unlawful activity.

5. Vande as Chief of Defence Staff is in a position to effect displacement when he gave the
order to implement Operation Blanc.
Vande, being the Chief of Defence Staff, is the highest-ranking and senior-most military
100
officer in the TAF. His order of detention, which caused the displacement, was issued pursuant
101
to the authority vested in him by virtue of the martial law.

6. Vande is aware that the displacement of civilians occurred in the context of a NIAC.
The detention of the Ombrian civilians were made to ensure the suppression of the Ombri
religion and to free Kouka from FKA control; coercion through the threat of being imprisoned
102
for such religious belief.

PRAYER

96
Longman, T., & Takirambudde, P. (1998). Proxy targets: civilians in the war in Burundi. New York: Human
Rights Watch, pg. 31
97
Ibid.
98
Ibid.
99
Prosecutor v. Radovan Karadi, T.Ch, IT-95-5/18-T, ICTY (24Mar 2016) 492.
100
Ibid.
101
Facts,21
102
Facts,21
Page 24 of 25
 The Prosecution respectively requests this Honourable Court to adjudge and declare that
Vande is criminally responsible under the Rome Statute for:

War crimes under Article 8(2)(e)(i), 8(2)(e)(vi) and ,8(2)(e)(viii).

Respectfully submitted,

The Prosecution

Page 25 of 25