International Criminal Law
Question 1
A. There are several modes of the liability that are used for the determination of the liability of the person prosecuted for the international crime. Given the merits of the case in question, the prime minister of Sanchista should be liable for the order issued in reference to the Nisum Campaign. The provisions of the ICTY are designed in the manner so that to address all criminal offences that are committed by the state bodies and relevant executives in the prosecution of particular persons. The article 6 of the ICTY defines that committing of the criminal actions in view of the pillars of this legal document should not be justified been with the fact of the subordination of the orders from one authority to the other. This statement should be interpreted in the manner that the manager of the criminal offence and the executive of the operation will be responsible for the criminal officers. However, the reliance on this approach can diminish the responsibility of the executives as the superior person should be liable for the enforcement of such orders in the reality. The analysis of the command responsibility confirms that the prime minister of Sanchista will divide the responsibility with the other executives. This reasoning grounds on the judgment in case Keyishema and Ruzindana that was determined in 1999. Through the examination of the criminal offences in this case, the chamber of the ICTY came to the conclusion that several forms of the responsibility can be in place as they are not mutually exclusive ("Case Law Of The International Criminal Tribunal For Rwanda: V) Command Responsibility (Article 6(3))").
The scope of the responsibility should be addressed in reference to the mandate of the ICTY in the prosecution of the ethnic conflicts and other violent actions. According to the provisions of the ICTY, the mandate of the Tribunal is to maintain justice in imposition of the liability over the people that are guilty in the infringement of the international law and human rights provisions. Under the text of the ICTY, the Tribunal has the jurisdiction to the consider the cases pertaining to certain territory. With that, it has legal right to consider the cases between the individuals and other legal subjects. In this respect, the business units are not taken into account. Article 2 and 5 of the ICTY defines that there are numerous types of the crimes that are subject of the investigation from the Tribunal. At the same time, the ICTY has discretion to impose personal responsibility over the individual for the planning, investigation, commitment and other forms for the preparation of the criminal activity that is directly specified in the text of the ICTY. With that, the provisions of the ICTY does not contain any reference to the level of the suspects should be subject of the jurisdiction of the Tribunal created under this legal instrument. The merits of the case presume that it is highly important to find the most responsible person for the proliferation of the criminal activity in the region. The position of the prime minister confirms his credibility to the notion of the most responsible person for the development of the Nisum campaign. The functional responsibility implies lack of interference from the state executives in the maintenance of the legal order in the country. In addition to this, the case law of the ICTY implies that the prime minister falls within the scope of the notion “notorious perpetrators”. The prime minister of Sanchista will be found guilty for the development of the Nisum Campaign. He facilitated the usage of the numerous instruments for the spread of the violence in the region. Accordingly, the leadership level of the prime minister has just proved that the person had all relevant capabilities and powers in the prevention of the conflict while the prime minister became the source of this policy on the prosecution of one ethnical group.
The issue of the responsibility of the senior official was addressed additionally by the Appeals Chamber in the investigation of the liability of the senior executives in Kosovo for the creation of the Federal Republic of Yugoslavia. Based on the merits of this case, the Appeals Chamber delivered the decision about the imprisonment of the primary executives for the spread of violent attacks across the country. In addition to this fact, it should be noted that the actions of the prime minister of the region in question can be regarded as the aiding and abetting to the fact that he directed the other people in the region in act in specific manner. There is no errors in the examination of the actions of the prime minister under the provisions of the ICTY in relation to the aiding and abetting practices. Due to the fact that the activity of the movement in the country appeared to be out of the control and severe crimes against the humanity were convicted, the prime minister should be liable individually for this mess ("Convictions For Kosovo Crimes Upheld For Four Senior Serbian Officials").
For the clarification of the nature of the measures of the police officers in the eexecution of the orders of the prime minister, it should be noted that his actions will be assessed in reference to the doctrinal approach on the joint criminal enterprise liability. In fact, the provisions of the ICTY do not state expressly about the usage of the joint enterprise liability for the prosecution of the criminals for certain types of the crimes. Besides, article 7 of the ICTY sets out that the persons that have contributed to the preparation, instigate, committing or any other form of the planning or execution of any type of the criminal activity aimed to perpetuate the humanity, will give rise to the appearance of the individual responsibility. From this perspective, the prosecution of the prime minister and following executives of the violent actions in Sanchista will be accomplished in compliance with the joint enterprise responsibility.
B. In addition to the fact that the prime minister will be subject of the criminal investigation under the joint criminal enterprise approach as the mode of the liability, the same instrument will be used for the investigation of the role of the executives in the fulfilment of the subordinate orders of the prime minister. It is clear that the initial claim on the violent actions was presented by the prime minister while the police officers and other executives just decided to fulfil the strategy on the prosecution of one ethnic group in favour of the other with the following rape of the women. In this respect, it should be noted that the usage of the joint criminal enterprise implies that the individuals will be responsible for the international crimes. The merits of the case evidence about the extensive violation of the rights of females and males of Teschi. However, it is clear that there is not suitable tool that will allow to cover all police officers and other executives that participated in the realization of the abusive practice of the prime minister. With that, the adoption of the decision in Tadic case in 1999 only reaffirmed the importance of the usage of the joint criminal enterprise in the investigation of the abusive practices (van der Wilt 91-108). In addition to this fact it should be stated that the notion of the joint criminal responsibility should be applied to the actions of the soldiers that received instructions from the prime minister to commit the crime against humanity in violation of the basic pillars of the human rights. The findings in Tadic case will be of sufficient relevance for the investigation of the nature of the actions of the prime minister of Sanchista and local soldiers. According to the merits of Tadic case, the armed men were instructed to remove representatives of one ethnical group by force. This case is landmark in the stipulation of the evidences that should be used for the investigation of the subject matter and interconnection of the claims of the prime minister to the subsequent behaviour of the soldiers.
Given the peculiarities of the actions of the prime minister and soldiers in the allocation of the representatives of one ethnical group in favor of the power of the other, the joint enterprise liability should be confirmed in reference to the actions of the soldiers. For the confirmation of the joint enterprise liability and supplementary doctrine, the group requirements should be met. In fact, the actions of the soldiers can be regarded as organized and followed because of the existence of the coon plan and design. Accordingly, the joint enterprise liability is the most appropriate mode of the liability. The soldiers can no be subject of the command mode or aiding and abetting due to the fact that the eligibility requirements for these modes will not be met.
Question 2
In view of the provisions of the ICTY, it should be noted that the Tribunal exercised direct influence in the creation of the legal environment for the prosecution of the sexual violence against females. In 2001 the ICTY broke the ground in the prosecution of the sexual violence with the adoption of the judgments in the cases The Prosecutor v. Kunarac, Kovac and Yukovic. This case became the first one where the defendant was charged with the international crime committed in form of the prosecution of the sexual violence against the females. The rape as the crime against humanity was extensively committed across the whole territory of Yugoslavia and Rwanda. In this respect, the United Nations Security Council adopted the decision to investigate the nature of the rape as the individual crime against humanity through the operation of the ICTY. The determination of thermal cases by the ICTY has proved that there are several norms in the international legal system that should be respected and enforced in favor of the protection of the rights of the females against the actions of rape and certain sexual violence. According to the observations of the ICTY, the rape and sexual violence should be regarded as illegal activities having the form of the individual crimes committed against humanity. With that, the rape should have the effect of the grave violation of the obligations of the parties to 1949 Geneva Conventions in the protection of the life of civilian population. Hence, the soldiers in this particular case should be charged with the international criminal responsibility for committing an international crime. This reasoning grounds on the judgment in the case Jean - Paul Akayesh where the rape was defined by the judiciaries as the act of the genocide in view of the international legal norms. The adoption of the judgment in the case Akayesu under the legal framework of the ICTY has proved the achievement of significant progress in the regulation of the issues with the sexual violence and rapes. Moreover, this case established new rule as to the obligations of the leaders of the state to be responsible for being the part of the actions falling within the scope of the sexual violent behavior. Therefore, the leader or any other executive will be found responsible for being the part of the process of the observation of the sexual violence against females. In this respect, the prime minister will be subject of the international criminal charges because of the numerous actions pertaining to the appearance of extensive rape and sexual violence. This implies that the prime minister instructed the police officers about the actions that should be exercised against females and then referred for the mere observation of this process. Regardless the fact that the current international law system does not contain any legal notion of the rape, the provisions of the 1949 Geneva Convention should be taken into account. This implies that Geneva Convention of 1949 evidences about the maintenance of prohibition on exposure to any action similarly to take and other type of the indecent practice. Therefore, the soldiers will be charged for the sexual assault that was exercised against females, extensive abuses of their rights and freedoms, acts of coercion and rapes. Moreover, the soldiers will be convicted of the rape in reference to the article 5 of the ICTY Statute that has been designed specifically for the prosecution of rape or any other similar activity.
Question 3
Considering the case law under the provisions of the ICTY, the collection of the evidence about the interference of the prime minister in the spread of the crimes against the humanity will have to pass some of the most important steps. These steps are the examination of the actions of the prime minister that resulted in the spread of the criminal behaviour and participation of the other executives in the realization of the criminal plat. Afterwards, the mode of participation under Article 7(1) of the ICTY should be established. Finally, the legal proceedings on the investigation of the responsibility of the prime minister should be grounded on the fact that the common criminal plan on the relocation of one ethnical group to the other territory and subsequent rape of females should be accepted by the pillars of the international law as prohibited per nature. According to the observations of the Appeals Chamber in the Tadic case, the actions of one person can give rise to the development of the criminal behaviour of the other person with the subsequent contribution of both parties to the realization of the criminal plat. In fact, the prime minister properly instructed the soldiers of the national army about the steps that should be followed. With that, the prime minister did not state about the final objective of this policy by reaffirming that the native population should rely on own understanding of the rights of the females and children of the other cultural group. Furthermore, the appearance of the joint criminal enterprise under the ICTY ensures that the actions of the soldiers in this particular case are governed with the principles of the adjudication of the group-based criminality. This approach is suitable for the investigation of the conviction against the physical perpetrators similarly to the case in question. Moreover, the objective elements of the joint criminal enterprise presume on the availability of the following actus reus requirements that should be taken by the judiciaries as the evidence in the case:
Existence of common criminal plan that has been designed specifically for the realization of the violent actions or crimes prosecuted by the international human law;
Participation of the accused people in the implementation of the design or strategy for the committing of the crime that is prohibited with the provisions of the ICTY.
These actus reus requirements should be applied for the evaluation of the actions of the soldiers acting on behalf of the prime minister of Sanchista. Under the plurality of the persons one should understand that the actions of the people can be justified if there is no military activity of formation. Besides, the overview of the situation in the case practice evidences that the rapes and sexual violence has been committed by the members of the national army as the soldiers that were hired directly by the prime minister in the prosecution of Teschi as not native ethnical group. Accordingly, there is no clear strategy as to the plan that should be used by the officers in the prosecution of the people as the criminal actions under the pillars of the international law system. However, the experts define that the plan of Hitler on the prosecution of millions of Jews on the global scale can be regarded as the common plan or design. Coming back to the merits of the case, the prime minister orders such type of the common strategy and design with the instructions on the deportation of all representatives of Teschi while treatment towards females was specified as cruel act depriving of any human approach and respect.
Works Cited
"Case Law Of The International Criminal Tribunal For Rwanda: V) Command Responsibility (Article 6(3))". Hrw.Org. Web. 1 Feb. 2017.
"Convictions For Kosovo Crimes Upheld For Four Senior Serbian Officials". N.p., 2014. Web. 1 Feb. 2017.
van der Wilt, H. "Joint Criminal Enterprise: Possibilities And Limitations". Journal of International Criminal Justice 5.1 (2005): 91-108. Web.
