What is IHL?, International humanitarian law is a set of rules regulating armed conflict to reduce unnecessary suffering, Why are Jurisdiction and Admissibility not disputed?, Jurisdiction: Damaroi and Pallavon are members; Admissibility: the case was never tried and Defendant was never tried for this conduct, What is Jurisdiction and Admissibility?, Jurisdiction is whether the court has power to adjudicate; admissibility is whether the court should adjudicate, What are indictments? Is it different from the charges?, A formal written accusation that a person committed a crime, setting out the charges against that person, Why is it not a matter of national jurisdiction?, This Court is not displacing a domestic court because Damaroi did nothing, conducted no investigation, and no prosecution was negotiated in the peace dialogue, What is an IAC?, (Lubanga, PTC I, ¶209 & Geneva Convention Art 2)An international armed conflict occurs when two or more States engage in hostilities through their armed forces, What is a NIAC?, A non-international armed conflict is protracted armed violence between governmental authorities and organized armed groups, or between such groups within a State (Lubanga, PTC I, ¶233 & Geneva Convention Art 3), Does intensity or temporal element matter in determining whether an IAC exists?, No; resort to armed force between two or more States already satisfies the threshold for an IAC, What is war crime?, A war crime is an act or omission committed during an armed conflict (Article 8(1) of RS), What is a military operation?, A specific action limited in time and place (Milosevic, TC III, ¶943), What is a military campaign?, The objectives to be established over a period of time (Milosevic, TC III, ¶927), Is every military operation a military campaign?, No; a military campaign generally encompasses a series of coordinated military operations (Ntaganda, TC VI, ¶664) In Ntaganda, the First Operation and Second Operation were separate in time and place but legally part of the same military campaign because they followed a planned strategy and a logical succession of events, What is a military objective?, (Article 52(2) of AP I) A person, place, or object that helps enemy military operations and whose destruction or capture provides a military advantage, What is your job as Prosecutor?, To formally charge Defendant with specific crimes they allegedly committed, What is the difference between jurisdiction and admissibility?, Jurisdiction is the court’s power to accept the case; admissibility is whether it is appropriate to do so, What is an armed conflict?, A resort to armed forces (Lubanga, TC 1, ¶533), If violence is conducted through the use of a knife as a weapon, is the force not excessive enough that it will result in the non-existence of an armed conflict?, No; even use of a knife is still violence, so if parties attack each other with knives it can give rise to an armed conflict, In the first count, there is no exchange of fire, no participation of the adverse party, and the military campaign failed, so how can you say that there is a matter at hand to be pursued?, Entering another State’s territory is enough to show an IAC existed because it breaches that State’s sovereignty, What is the present case about?, Damaroi and Pallavon are neighbouring States; after President Veyar sought Pallavon’s territory, Defendant formed the Titans to carry out Operation Titan by entering Pallavon to dismantle its air defence system. After the first operation failed due to illness from mosquitos, the Titans were given an experimental drug called Jaku and carried out Operation Titan 2.0 successfully. Once inside Pallavon, Defendant directed attacks against schools, amounting to alleged war crimes of inhuman treatment and attacking civilian objects, What is circumstantial evidence?, Evidence that does not directly prove a disputed fact but allows a reasonable inference about whether the fact exists (Ali Kushayb, TC I, ¶171), What is a nexus?, The link between a specific act of violence or criminal act and an ongoing armed conflict (Katanga, PTC I, ¶380), What is a civilian?, A person who is not an active combatant and is not taking direct part in hostilities (Article 50(1) of AP I), What is civilian population?, A population predominantly consisting of persons not taking direct part in hostilities (Milosevic, AC, ¶50), What is a combatant?, A person who takes direct part in hostilities, What is a militia?, A military or paramilitary force made up of ordinary citizens rather than full-time professional soldiers, If a civilian takes a weapon and shoots people, they would be a combatant, but not a member of an armed force. However, if that person wears the military uniform from a deceased military personnel, would that person be a member of the armed force?, No; wearing a military uniform does not legally make the person a member of the armed force, but they may still be attacked as a combatant, What are armed forces?, Persons fighting for a party during an armed conflict who subordinate themselves to a command (Article 43(1) of AP I), What is an attack?, An act of violence against the adversary, in offense or defense, in any territory (Article 49(1) of AP I), If a military base is placed under a hospital, can the military still attack?, No, because it would violate the principle of precaution since civilian risk in the hospital could not be minimized, What are common elements?, Elements shared between all counts charged to the Defendant, Why do we need to establish common elements?, For efficiency, so the Court can analyze shared requirements once rather than repeat the same analysis for each charge, Is it wise for us to prioritize the efficiency while sacrificing accuracy in the process? As different parts of war crimes can be proved in different ways (hypothetically), No; it does not sacrifice accuracy because the same elements are being established for both counts rather than revisited separately, Why can we rely on past cases? Are they binding?, The Court may apply principles and rules of law as interpreted in previous decisions; they are not binding but used for judicial consistency (Article 21(2) of RS), What is hostilities?, An act of violence, What are factual circumstances?, A series of events where there is a recurring fact with a causal effect between the acts, Why do we need to prove factual circumstances?, To establish that an armed conflict existed and that Defendant was aware of those circumstances before determining whether the conduct constitutes the charged war crime, What is hors de combat?, A person captured by the adverse party, clearly intending to surrender, or too injured or sick to defend themselves (Article 41(2) of AP I), Why can we use other jurisprudence such as ICTY or ICTR?, Because the Court may use other jurisprudence as long as it is consistent with internationally recognized human rights law (Article 21(1)(b-c) jo. Article 21(3) of RS), What are substantial grounds to believe?, The pre-trial ICC evidentiary threshold requiring sufficiently strong evidence to establish a realistic and solid basis for believing the suspect committed the crimes charged (Article 61(7) of RS), What is beyond reasonable doubt?, The highest evidentiary standard at trial requiring proof of guilt so that no reasonable doubt remains after considering all the evidence (Article 66(3) of RS), What is indiscriminate attack?, An attack in which combatants do not distinguish between civilians, civilian objects, and military objectives, amounting to direct targeting of civilians (Galic, AC, ¶132), What is a disproportionate attack?, An attack causing civilian harm that outweighs the anticipated military advantage (Mbarushimana, PTC I, ¶142), What is shelling?, Bombarding an area with artillery or mortar shells (Galic, TC I, ¶639), What is sniping?, Direct fire from small weapons at specific individuals (Galic, TC I, ¶184), What is the difference between individual responsibility and superior responsibility?, Individual responsibility is liability for one’s own acts or omissions; (Article 25 of RS) superior responsibility is liability for subordinates’ crimes when the superior knew or should have known and failed to prevent or punish (Article 28 of RS), What is the difference between ordering, soliciting, and inducing?, (Bemba et al., TC VII, ¶¶75-77) Ordering is instructing a subordinate with authority; soliciting is asking or urging the perpetrator to commit the crime; inducing is persuading or encouraging another person to commit it without necessarily having authority, Does ordering require the position of authority of the Defendant to be established?, Yes, because the Defendant must have authority to instruct subordinates, What does position of authority mean?, A person exercises control over their forces and possesses authority over their recruitment, promotion, removal, and discipline (Mudaccumura, PTC-II, ¶64), If a Defendant orders another platoon in which he has no formal authority over, is that still ordering?, It is not ordering, but it can be considered, What is the difference between launching and directing an attack?, Directing an attack means selecting the target and deciding on the attack; launching an attack means starting the violent act that commits the crime (Ali Kushayb, TC I, ¶709; Katanga, PTC I, ¶275), What is the difference between de facto and de jure?, De facto means in fact; de jure means by law, Is IHL jus in bello or jus ad bellum? What is the difference?, IHL is part of jus in bello, which regulates conduct during armed conflict; jus ad bellum concerns when States may resort to war or armed force, What is causal link?, The link between the act and the harm likely to result from that act or from a coordinated military operation of which it forms an integral part, What is intent?, A person has intent when they mean to engage in the conduct or cause the consequence, or are aware it will occur in the ordinary course of events (Article 30(2)(a-b) of RS), What is mens rea?, The Defendant’s awareness while doing the crime, What is tempus?, The chronological order of the action committed, What is locus?, The location of the crime, whether physical, digital, or untouchable, What is actus reus?, The act of committing the crime, What is dolus?, Dolus consists of a cognitive element, knowledge, and a volitional element, intent, What differentiates between war crimes, crimes against humanity, genocide, and crimes of agression?, War crimes involve acts committed as part of a plan or policy or on a large scale in armed conflict; crimes against humanity involve acts committed as part of a widespread or systematic attack; genocide requires intent to destroy, in whole or in part, a protected group; crimes of aggression involve planning, preparing, initiating, or executing State aggression by a person controlling or directing State political or military action, What are the sources of IL based on RS?, 1st hierarchy: Rome Statute, Elements of Crimes, Rules of Procedure and Evidence; 2nd: treaties and principles of international law; 3rd: national law aligned with the Rome Statute and international law; 4th: judicial decisions (Article 21(1) – 21(2) of RS), Are principles of IHL binding?, Yes; the five principles are embodied in AP I: humanity, distinction, proportionality, precaution, and military necessity, What is the difference between Prosecutor and Defendant?, The Prosecutor presents the charges, while the Defendant argues that the Prosecutor has failed to establish them, If the Court finds that there are no substantial grounds to believe on one of the elements, can we still proceed to trial?, No, because the Prosecutor must prove every element cumulatively, What is the relevance of excessiveness in the “object of the attack” element? Is it in relation to any principles?, Excessiveness helps establish a disproportionate attack, which violates the principle of proportionality because civilian harm cannot be excessive compared to the expected military advantage, What are dual-use objects?, Objects used for both civilian and military purposes, Can a military school be attacked?, It depends on whether it is actually used to train combatants or merely follows a military format while students retain civilian status

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