CASE BRIEFS

The Prosecutor v. Callixte Mbarushimana

Background:
Callixte Mbarushimana is a Rwandan national allegedly of Hutu ethnicity. It is alleged that Mbarushimana is associated with
the Forces Democratiques pour la Liberation du Rwanda, an armed group designed to oppose the Rwandan government
politically and militarily. The prosecution alleges that that the suspect is a member of the groups policy-making committee.
Case:
The prosecution alleges that, in January 2009, the FDLR hierarchy launched a campaign aimed at attacking the civilian
population and creating a humanitarian catastrophe in the Kivu provinces of the Democratic Republic of Congo, in order to
draw the worlds attention to the FDLRs political demands. This resulted in several war crimes and crimes against humanity.
The FDLR adopted a policy to deny the attacks and blame the government forces instead.
As alleged, suspect as Executive Secretary of the group did: (1) Individually responsible for the implementation of this part
of the FDLR strategy; (2) He had full knowledge of the attacks; (3) He issued press releases that deny responsibility of the
attacks; (3) Engaged in international peace talks that portray FDLR as the peace-seeking group.
Defense submits that evidence fails to support the findings that the attacks were carried out by the FDLR.
Court:
The standard of substantial grounds to believe means strong grounds for believing, such that the Prosecution must offer
concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific allegations. It must be beyond
mere theory or suspicion.
On confirmation hearing, the Chambers consideration of the evidence is not undertaken for the purposes of determining the
guilt of the innocence of the accused. A wholesale assessment as to the admissibility of each item of evidence at this stage
would unjustifiably delay the proceeding and give rise to an inappropriate pre-determination of evidentiary matters which
should be properly decided in light of the whole of the evidence presented at trial.
However, there is no legal support that inconsistencies, ambiguities or contradictions in evidence should be resolved in
favor of the Prosecution. The defense may present its own evidence and the Chamber will then assess the credibility and
weigh of this evidence in light of the whole of the evidence submitted for the purposes of the confirmation hearing.
On anonymous witness and summaries of witness statements
Such evidence may be taken to have a lower probative value in order to counterbalance the disadvantage that it might
cause to the Defence. Anonymous hearsay contained in witness statements will be used only for the purposes of
corroborating other evidence.
Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities In and Against
Nicaragua, 27June1986, I.C.J. Reports 1986
On the instance that several conflicts can exist side by side (as stated in the Prosecution Memorial):
In this case, both conflicts of an international character and of a non-international character existed. The conflict between
the contras forces and those of the Government of Nicaragua is an armed conflict which is not of an international character
while the actions of the United States in and against Nicaragua fall under an armed conflict of an international character.
FACTS:
After the fall of the Government of President Anastasio Somoza Debayle in July 1979, a Junta of National Reconstruction
and an 18-member government was installed by the body which had led the armed opposition to President Somoza, the
Frente Sandinista de Liberacion Nacional (FSLN). The new Government was described as a democratic coalition.
Certain opponents of the new Government, primarily supporters of the former Somoza Government and in particular exmembers of the National Guard, formed themselves into irregular military forces, and commenced a policy of armed
opposition, though initially on a limited scale. The various movements subsequently became organized into two main
groups: the Fuerza Democratica Nicaraguense (FDN) and the Alianza Revolucionaria Democratica (ARDE).
At first, the United States favored the democratic coalition government but on 1981 this attitude changed because there
were reports of involvement of the Government of Nicaragua in logistical support, including provision of arms, for guerrillas
in El Salvador. Thereafter, the United States Government pulled out their economic aid and had since been giving support to
the contras, a term employed to describe those fighting against the present Nicaraguan Government. In the 1983 budgetary
legislation enacted by the US Congress, a specific provision was made for funds to be used by United States intelligence
agencies for supporting directly or indirectly, military or paramilitary operations in Nicaragua.
According to Nicaragua, the contras have caused it considerable material damage and widespread loss of life, and have
also committed such acts as killing of prisoners, indiscriminate killing of civilians, torture, rape and kidnapping. It is
contended by Nicaragua that the United States Government is effectively in control of the contras, that it devised their
strategy and directed their tactics, and that the purpose of that Government was, from the beginning, to overthrow the
Government of Nicaragua.

The United States has not filed any pleading on the merits of the case, and was not represented at the hearings devoted
thereto.
Prosecutor vs. Pavle Strugar [INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA]
Facts: (Primary reason for the conflict was territorial dispute. Croatia wanted to have independence)
In September 1991, hostilities between the JNA and Croatian forces began in the south coastal area of Croatia. A blockade
of Dubrovnik was established from 1 October 1991 and the JNA (Yugoslav Peoples Army) started its offensive towards
Dubrovnik. There were air raids on the town. They were not frequent but their intensity increased in the course of shelling.
JNA jets were flying over the Old Town at a low altitude but did not target the Old Town. Many people sought shelter in the
hotels of Dubrovnik, the monasteries of the Old Town, and the Rupe Museum. The transmitter was hit, leaving Dubrovnik
without any power or water supplies. Until the end of December, Dubrovnik relied on fresh water supplied by boats and
electricity from the few electric generators. The JNA forces under the Accuseds command launched combat operations to
advance closer on the city of Dubrovnik in particular from 23 to 26 October 1991 and from 9 to 13 November 1991. Both
times, the wider city of Dubrovnik in general, and its historic Old Town in particular, were shelled.
On October 23 24, the JNA started a sustained artillery bombardment of Dubrovnik, including the Old Town within the city
walls. The shelling began around noon and lasted for about an hour. Until then the inhabitants had thought that they were
safe in the Old Town as it had UNESCO status. The shelling caused damage to several buildings in the Old Town. On
October 26, JNA sent a text to both the EC mission and the representatives of the town of Dubrovnik entitled: The
recommendations for the Normalization of Life in Dubrovnik and ensuring the safety of the city of Dubrovnik. The text
contained 11 points which were to be implemented by 20:00 hours on October 27, 1991. This serves as an ultimatum to the
city, demanding its surrender and the removal of elected officials from Dubrovnik. The JNA advance displaced about 15,000
refugees from the areas it captured. About 7,000 people were evacuated from Dubrovnik by sea in October; the rest took
refuge in hotels and elsewhere in the city. On November 1991, the JNA activities were focused in the area of Dubac, Bragt,
Gornji Bragt, Donji Brgat, and Zarkovica. On 7 November, the JNA issued a new ultimatum demanding the surrender of
Dubrovnik by noon. The demand was rejected and Joki announced that the JNA would only spare the Old Town from
destruction. The Fort Imperial was attacked by the JNA on 9, 10 and 13 November. By 13 November 1991, the JNA
effectively held all the territory around the wider city of Dubrovnik, except for Mount Sr|, the dominant topographical feature
of Dubrovnik immediately above the Old Town, where there is a fortress from Napoleonic times. These attacks were
followed by a lull which lasted until the end of November when the European Union Monitoring Mission (ECMM) mediated in
negotiations between the JNA and Croatian authorities in Dubrovnik. Also in November, Dubrovnik began receiving the
largest deliveries of humanitarian aid since the beginning of the siege.
Court:
Accused, Pavle Strugar, a retired Lieutenant-General of the then Yugoslav Peoples Army (JNA), is charged in the
Indictment with crimes allegedly committed on 6 December 1991, in the course of a military campaign of the JNA in the area
of Dubrovnik in Croatia in October, November and December of 1991. It is alleged that in the course of unlawful artillery
shelling by the JNA on the historic Old Town of Dubrovnik on 6 December 1991, two people were killed, two were seriously
wounded and many buildings of historic and cultural significance in the Old Town were damaged. These allegations support
the six charges in the Indictment of violations of the laws or customs of war under Article 3 of the Statute of the Tribunal,
namely murder, cruel treatment, attacks on civilians, devastation not justified by military necessity, attacks on civilian
objects, and destruction of institutions dedicated to, inter alia, religion, and the arts and sciences.
It is alleged that the Accused is guilty of each of these six counts on two distinct bases. First, pursuant to Article 7(1) of the
Statute as to individual criminal responsibilty, that he personally ordered the shelling of the Old Town, and also that he
personally aided and abetted the shelling. However, the evidence does not establish that the Accused ordered the shelling
of the Old Town. The Chamber finds that it has not been proved that the Accused aided and abetted (Art. 7 (1), ICTY) the
unlawful shelling of the Old Town. Secondly, he is accused as a superior responsible for the criminal conduct of the forces
under his command pursuant to Article 7(3) of the Statute.
The Accuseds liability is alleged to arise out of the position he then held as commander of the Second Operational Group (2
OG). As their superior commander, the Accused had both legal and effective control of the JNA forces who conducted the
military action at Dubrovnik, including the shelling of the Old Town. He failed to act to stop the attack on 6 December 1991
when he could and should have done so, and afterwards he failed to ensure the perpetrators were punished. He is guilty
under superior responsibility for (a) attacks on civilians, a violation of the laws or customs of war, under Article 3 of the
Statute; and for (b) destruction or willful damage done to institutions dedicated to religion, charity and education, the arts
and sciences, historic monuments and works or art and science, a violation of the laws or customs of war, under Article 3 of
the Statute.
Command responsibility has three elements, namely: (1) superior-subordinate relationship; (2) the superior knew that the
offense was committed; and (3) superior failed to punish the act. In this case, all three elements concurred.
The Prosecutor vs. Germaine Katanga
Decision on the confirmation of charges PTC II
Facts:

The conflict began in the Djugu territory in the Democratic Republic of the Congo (DRC), it then spread Irumu territory in the
Ituri district Ituri has a population of 3.5 to 5.5 million people, and includes at least 18 different ethnic groups, the largest
being the Alur, the Bira, the Hema, and the Lendu, as well as the latter's southern sub-group, the Ngiti. The Hema/Gegere
and Lendu groups are concentrated in Djugu territory, while the Hema and Ngiti groups are found in Irurnu territory.
Ituri is rich in natural resources, including gold, oil, timber, coltan, and diamonds. In fact, the most important gold mine in the
DRC and in Central Africa is located there. Competition over control of Ituri's resources has been a major reason for the
continued conflict in the region. In the summer of 1999, tensions arose over disagreements about the allocation of land in
Ituri and the appropriation of its natural resources. During the second half of 2002, renewed violence flared up in several
parts of the district, including the conflict among the Hema, the Lendu, and the Ngiti.
Germain Katanga was the FRPI's top commander of all Ngiti armed forces and Mathieu Ngudjolo Chui the FNI military
leader of all the Lendu fighters based in military camps south of Bunia.
In the fall of 2002, combatants predominately of Lendu and Ngiti ethnicity organised themselves as the FNI and FRPI as a
means of fighting other combatants, who were predominately of Hema ethnicity and had organised themselves under the
Union des Patriotes Congolais ("the UPC") and the Forces Patriotiques pour la Libration du Congo ("the FPLC"). FRPI was
formed in late 2002 and became known as such in early 2003, whereas the FNI was formed and became known as such in
December 2002. Both militias were created and were then active between two key events in Ituri: the capture of the city of
Bunia by the UPC on or about 9 August 2002, and its recapture by the FNI and FRPI seven months later, on or about 6
March 2003.
It was a military attack on the Bogoro Village in the Ituri district which brought about the commission of the war crimes and
crimes against humanity charged against the accused. The crimes were the result of acts committed during and in the
aftermath of this attack.
Said attack was allegedly perpetrated by the FNI and FRPI groups, acting with a common purpose in launching the attack.
The prosecution established the objective and subjective elements of the crimes charged. However, apart from
substantiating that there existed a protracted armed conflict in the Ituri territory during the period relevant to the crimes
charged, they did not take a definite stand as to the nature of the armed conflict. Instead they charged both accused
alternatively in case what occurred was an international armed conflict or a non-international armed conflict. For the purpose
of confirming each of the counts, the prosecutor made us of testimonies by anonymous and named witnesses who were
also victims of the crimes.
There were challenges to the evidence submitted by the prosecution but only a few were considered by the Court to warrant
exclusion. Hearsay evidence, proces verbal, UN and NGO reports, uncorroborated witness summary statements and even
prosecution deceased sources, among many others, were admitted in light of their possible probative value in assessing the
evidence as a whole. Said was accordingly consistent with the Chambers employment of the evidentiary standard of
substantial grounds to believe based on Article 61(7) of the Rome Statute and established in the Lubanga Case as that
required for a hearing on the Confirmation of Charges.
The Prosecution submitted that Germain Katanga and Mathieu Ngudjolo Chui are each criminally responsible under article
25(3) (a) of the Statute for these war crimes and crimes against humanity.
PROSECUTIONS CHARGES:
1 Murder as a crime against humanity - killings of at least two hundred civilian residents of, or persons present in the
Bogoro Village.
2 Wilful killing as a war crime in the case of an international armed conflict, or murder as a war crime in the case of an
armed conflict not of an international character killing of at least two hundred civilian residents of, or persons
present at Bogoro village, including Suzanne Mabone and Maria Babona.
3 Inhumane acts constituting a crime against humanity - intentional infliction of serious injuries upon civilian residents
of, or persons present at Bogoro village in the Ituri district, including Witnesses 132 and 287.
4 Inhuman treatment as a war crime in the case of an international armed conflict, or cruel treatment as a war crime
in the case of an armed conflict not of an international character - suspects committed inhuman or cruel treatment
of civilian residents of, or persons present at Bogoro village, including Witness 268; treatment included detaining
these persons, threatening them with weapons, and imprisoning them in a room filled with corpses of men, women,
and children
5 War crime of using children to participate actively in hostilities in an international armed conflict, or war crime of
using children to participate actively in hostilities in the case of an armed conflict not of an international character use of children included the use of Witnesses 28 and 157 during the attack on Bogoro village.
6 Crime against humanity of sexual slavery following the attack on Bogoro village - enslavement of civilian female
residents of, or civilian women present at Bogoro village, including Witnesses 132 and 249 following the Bogoro
attack.
7 Sexual slavery constituting a war crime in the case of an international armed conflict, or sexual slavery constituting
a war crime in the case of an armed conflict not of an international character - enslavement of civilian female

residents of, or civilian women present at Bogoro village, in the Ituri district, including Witnesses 132 and 249,
following the Bogoro attack.
8 Rape constituting a crime against humanity - rape of civilian female residents, or civilian women present at Bogoro
village, including Witnesses 132 and 249 following the Bogoro attack.
9 Rape constituting a war crime in the case of an international armed conflict, or rape constituting a war crime in the
case of an armed conflict not of an international character - rape of civilian female residents of, or civilian women
present at Bogoro village, including Witnesses 132 and 249 following the Bogoro attack.
10 Outrages upon personal dignity constituting a war crime in the case of an international armed conflict, or outrages
upon personal dignity constituting a war crime in the case of an armed conflict not of an international character outrages were committed upon the personal dignity of civilian female residents, or civilian women present at Bogoro
village, including Witness 287.
11 War crime of intentionally directing an attack against the civilian population of Bogoro village in the case of an
international armed conflict, or the war crime of intentionally directing an attack against the civilian population of
Bogoro village in the case of an armed conflict not of an international character - suspects intentionally directed the
attack against the civilian population of Bogoro village and against individual civilians not taking direct part in
hostilities, including Suzanne Mabone, Matia Babona, Witnesses 132, 249, 268 and 287.
12 Pillaging constituting a war crime in the case of an international armed conflict, or pillaging constituting a war crime
in the case of an armed conflict not of an international character - pillaging occurred at Bogoro village.
13 Destruction of property constituting a war crime in the case of an international armed conflict, or destruction of
property constituting a war crime in the case of an armed conflict not of an international character - destruction
occurred in Bogoro village and its vicinity.
FINDINGS OF THE COURT:
1 EXISTENCE OF INTERNATIONAL ARMED CONFLICT
The Chamber adapted on the definition used by the Chamber in the Lubanga Decision. Said decision stated that an armed
conflict is international in character if it takes place between two or more States; this extends to the partial or total
occupation of the territory of another State, whether or not the said occupation meets with armed resistance. In addition, an
internal armed conflict that breaks out on the territory of a State may become international - or, depending on the
circumstances, be international in character alongside with an internal armed conflict - if (i) another State intervenes in that
conflict through its troops (direct intervention), or if (ii) some of the participants in the internal armed conflict act on behalf of
that other State (indirect intervention).
Pursuant to this reasoning, the Chamber found that there exists sufficient evidence to establish substantial grounds to
believe that between August 2002 and May 2003, an armed conflict took place in the territory of Ituri between a number of
local organised armed groups, including, inter alia, the Union des Patriotes Congolais ("the UPC")/Forces Armes pour la
Libration du Congo ("th FPLC"),315 th Front Nationaliste et Integrationniste ("the FNI"), the Force de Rsistance
Patriotique en Ituri ("th FRPI") and th Parti pour l'Unit et la Sauvegarde de l'Intgrit du Congo ("the PUSIC").
These armed groups: (i) had a certain degree of organisation, insofar as such groups acted under a responsible command
and had an operative internal disciplinary system; and (ii) had the capacity to plan and carry out sustained and concerted
military operations, insofar as they held control of parts of the territory of the Ituri District.
There is also sufficient evidence to establish substantial grounds to believe that Uganda directly intervened in this armed
conflict through the Ugandan People Armed Forces ("the UPDF"). The evidence presented establishes direct participation of
significant numbers of UPDF troops in several military operations on behalf of different armed groups including the UPC
takeover in Bunia in early August 2002, the FNI/FRPI takeover in Bogoro in February 2003 and of Bunia in early March
2003.
There is also sufficient evidence to establish substantial grounds to believe that Uganda was one of the main supplier of
weapons and ammunitions to these armed groups and that the respective recipients' ability to successfully attack other
groups was aided by this Ugandan military assistance.
As a result, the Chamber found that there is sufficient evidence to establish substantial grounds to believe that the conflict
that took place in Ituri District between, at least, August 2002 and May 2003, was of an international character. The
Chamber however was unable to find that the evidence is sufficient to establish substantial grounds to believe that Rwanda
and/or the central government of the DRC directly intervened in the armed conflict in the territory of Ituri district between
August 2002 and May 2003.
2 RAPE AND SEXUAL ENSLAVEMENT
The Chamber found that there are substantial grounds to believe that the war crimes of rape and sexual slavery, as denned
in article 8(2)(b)(xxii) of the Statute, were committed by FNI/FRPI members in the aftermath of the 24 February 2003 attack
on the village of Bogoro.
In reaching this finding, the Chamber took into account, inter alia, the following evidence:

Witness 249, a Hema civilian woman: She was abducted, undressed, and raped by an Ngiti combatant at the
village of Bogoro. Following death threats, she became the 'wife' of an Ngiti combatant, and was repeatedly
raped. She had a child as a result of these rapes during her captivity.
b Witness 132, a Hema civilian woman: She fled the village of Bogoro during the attack and was still in hiding
when she was abducted by the combatants. She was repeatedly raped at the site of her abduction and while in
captivity. She had a child as a result of these rapes during her captivity.
3 ACCUSED ARE CRIMINALLY RESPONSIBLE UNDER ART 25(3)(A) INDIRECT PERPETRATION
The Chamber noted that the drafters of the Rome Statute sought to establish a mode of commission in article 25(3)(a) of the
Statute which encompasses the commission of a crime through a non-innocent individual (i.e. responsible) acting as an
instrument. Accordingly, contrary to suggestions of Germain Katanga's Defence at the hearing on 11 July 2008, assigning
the highest degree of responsibility for commission of a crime that is, considering him a principal to a person who uses
another, individually responsible person to commit a crime, is not merely a theoretical possibility in scarce legal literature,
but has been codified in article 25(3)(a) of the Statute.
The chamber went on to establish the objective criteria for the mode of commission that is indirect perpetration:
1 Control over the organisation
The chamber ruled that for the purposes of the Decision, the control over the crime approach is predicated on a notion of a
principal's "control over the organisation".
2 Organised and hierarchical apparatus of power
The Chamber found that the organisation must be based on hierarchical relations between superiors and subordinates. The
organisation must also be composed of sufficient subordinates to guarantee that superiors' orders will be carried out, if not
by one subordinate, then by another. These criteria ensure that orders given by the recognised leadership will generally be
complied with by their subordinates.
3 Execution of the crimes secured by almost automatic compliance with the orders
In addition, particular characteristics of the organised and hierarchical apparatus must enable the leader to actually secure
the commission of crimes. In essence, the leader's control over the apparatus allows him to utilise his subordinates as "a
mere gear in a giant machine" in order to produce the criminal result "automatically"
The court applied the elements as follows:
A Germain Katanga and Mathieu Ngudjolo Chui had control over the organisation
The Chamber found that there was sufficient evidence to establish substantial grounds to believe that, from the beginning of
2003 until his integration into the FARDC, Germain Katanga:
i
served as de jure supreme commander of the FRPI;
ii
had de facto ultimate control over FRPI commanders, commanders who sought his orders for obtaining or
distributing weapons, and ammunitions and was the person to whom other commanders reported.
Secondly, the Chamber found that there was sufficient evidence to establish substantial grounds to believe that, from the
beginning of 2003 until he was integrated into the FARDC, Mathieu Ngudjolo Chui:
i
served as de jure supreme commander of the FNI;
ii
had de facto ultimate control over FNI commanders, commanders who sought his orders for obtaining or
distributing weapons and ammunitions; and was the person to whom other commanders reported.
Lastly, Although some reports and documents were signed by Floribert Ndjabu Ngabu as the President of the FNI,
Witnesses 12,160, 250 and 267 stated that:
i
Floribert Ndjabu Ngabu acted as President of the political wing of the FNI/FRPI;
ii
Germain Katanga and Mathieu Ngudjolo Chui acted independently of the President of the FNI;
iii
even as a coalition, they fought separately and their alliance was shortlived;
iv
both Germain Katanga and Mathieu Ngudjolo Chui signed official documents, peace agreement and/or decided
on the amnesty of their fighters.
B The FRPI and the FNI were hierarchically organised groups
FRPRI
i
ii

the FRPI was organised into camps within the Irumu territory, in the Walendu Bindi collectivit and that
each of these camps had a commander;
Germain Katanga was the commander of the Aveba camp which served as the headquarters of the FRPI;

iii
iv

the FRPI was a military structured organisation divided into sectors, battalions and companies;
FRPI commanders had the ability to communicate with each other through hand-held short range radios;
there was also a phonic at Germain Katanga's headquarters in Aveba; Germain Katanga notably used
these assets to give his orders;
Germain Katanga, in his powers as a superior leader, had the ability to jail and adjudicate - for instance, he
executed 12 FRPI soldiers for creating troubles at Lake Albert, and punished an Ngiti soldier for raping an
Ngiti woman.

FNI
i

the FNI was organised into camps within the Ezekere groupement and that each of these camps had a
commander;
ii
Mathieu Ngudjolo Chui was the commander of the Zumbe camp that served as the central camp in the
Ezekere groupement;
iii
the FNI was a military structured organisation divided into sectors, battalions, companies, platoons and
sections;
iv
FNI commanders had the ability to communicate with each other through two way radios (Motorola);
Mathieu Ngudjolo Chui used a phonic and even appointed a phonic operator; and it is notably through
these assets that Mathieu Ngudjolo Chui gave his orders;
v
Mathieu Ngudjolo Chui, in his power as a superior leader, had the ability to jail and adjudicate. For instance,
he punished an FNI soldier for sexually enslaving a Lendu woman.
C Compliance with Germain Katanga ana Mathieu Ngudjolo Chui's orders was "ensured".
There is sufficient evidence to establish substantial grounds to believe that the FNI and the FRPI were large organisations
each providing its leaders with an extensive supply of soldiers. In this regard, the Chamber has taken into consideration the
statement of Witness 250 according to which four battalions of the FRPI, hence a total of approximately 1,000 soldiers, took
part in the attack against Bogoro village, whereas one battalion and half of the FNI, hence a total of approximately 375
soldiers, took part in the attack against Bogoro village.
At the same time, because the soldiers were young, were subjected to a brutal military training regime and had allegiance to
the military leaders of their ethnic groups, they were likely to comply with the orders of those leaders almost automatically,
without asking any questions.
D Germain Katanga and Mathieu Ngudjolo Chui agreed on common plans
i
since their creation in late 2002, because of the traditional links between Lendu and Ngiti ethnic groups, the
FNI and FRPI, fought together;
ii
in early 2003, there was an agreement or common plan between Germain Katanga, leader of the FRPI,
and Mathieu Ngudjolo Chui, leader of the FNI, to attack the village of Bogoro by "wiping out" the village of
its UPC military elements and of the Hema civilians;
iii
Germain Katanga, and Mathieu Ngudjolo Chui, through Commander Boba Boba and others under his
command, met in Aveba in early 2003 and planned the attack against the village of Bogoro;
iv
after the meeting in Aveba, a written plan was handed over to Mathieu Ngudjolo Chui.735 The plan was
distributed to commanders by both Germain Katanga and Mathieu Ngudjolo Chui;
v
a few days before the attack against the village of Bogoro, Germain Katanga and other commanders visited
Mathieu Ngudjolo Chui at the Zumbe Camp.The day after Germain Katanga's visit to the Zumbe camp,
Mathieu Ngudjolo Chui informed the soldiers that they were going to attack Bogoro; and
vi
the day before the attack, Germain Katanga, Mathieu Ngudjolo Chui and other commanders met at Cobra
Matata's camp in Bavi and from there, on the eve of the attack against the Bogoro village, moved to
implement the common plan as they took their respective positions in Medhu and Kagaba.
In relation to the crimes of rape and sexual slavery, the majority of the Chamber found that although the evidence tendered
by the Prosecution is not sufficient to establish substantial grounds to believe that the agreement or common plan
specifically instructed the soldiers to rape or sexually enslave the civilian women there, the majority of the Chamber found
that there is sufficient evidence to establish substantial grounds to believe that, in the ordinary course of events, the
implementation of the common plan would inevitably result in the rape or sexual enslavement of civilian women there.
E Coordinated essential contribution by each co-perpetrator resulting in the realisation of the objective elements of the
crime
The Chamber finds that there is sufficient evidence to establish substantial grounds to believe that from the meeting in
Aveba to the day of the attack against the village of Bogoro on 24 February 2003:
i
after agreeing on the plan, Germain Katanga and Mathieu Ngudjolo Chui had direct responsibility for its
implementation, which includes:

a. ordering the militias to "wipe out" Bogoro village;

b. the distribution of the plan of the attack to FRPI and FNI commanders;
c. the distribution of weapons and ammunitions.
(ii)
Germain Katanga played an overall coordinating role in the implementation of the common plan, in particular, by:
a. having direct and ongoing contacts with the other participants in the implementation of the common plan;
b. personally travelling to Beni to obtain weapons and ammunitions;
c. distributing the weapons and ammunitions not only to the FRPI commanders754 but also to the FNI;
d. organising the meeting at his Aveba camp where the attack against Bogoro village was planned.
(iii)
Germain Katanga personally performed other tasks in the implementation of the common plan, in particular, by
encouraging the soldiers under his command through military parades in his presence during which songs with hate-filled
lyrics were sung.
(iv)
Mathieu Ngudjolo Chui played an overall coordinating role in the implementation of the common plan, in particular,
by:
a. having direct and ongoing contacts with the other participants in the implementation of the common plan;
b. travelling to Beni to obtain weapons and ammunitions;
c. sending Commander Boba Boba on his behalf to the meeting at Aveba Camp, and staying in contact with him through a
phone.
d. obtaining weapons and ammunitions as part of the outcome of the meeting at Aveba camp; and
e. distributing the weapons and ammunitions to FNI camps.
(v)
Mathieu Ngudjolo Chui personally performed other tasks in the implementation of the common plan, in particular, by
encouraging the soldiers under his command through military parades in his presence during which songs with hate-filled
lyrics were sung.
F.
The suspects were aware of the factual circumstances enabling them to exercise joint control over the crimes or
joint control over the crimes through another person
The Chamber finds that there is sufficient evidence to establish substantial grounds to believe that, Germain Katanga and
Mathieu Ngudjolo Chui:
i
as the highest commanders of the organisations, were aware of the specific role that they played within the
FRPI and FNI, respectively;
ii
were aware of the hierarchically organised character of their respective organisations;
iii
were aware of the circumstances allowing automatic compliance with the orders due to: a. the size of the
organisations, composed mainly of low level and interchangeable soldiers; b. the brutal training undergone
by the soldiers, specially children under the age of fifteen years; and c. the allegiance of the soldiers to the
military leaders of their ethnic groups.
The Chamber further finds that there is sufficient evidence to establish substantial grounds to believe that Germain Katanga
and Mathieu Ngudjolo Chui:
i
intentionally agreed on the plan to "wipe out" Bogoro and commanded their respective troops to attack
Bogoro village;
ii
were aware of their coordinating role in the implementation of the common plan;
iii
were aware of the essential nature of their coordinating role in the implementation of the common plan and
their ability to frustrate the implementation of the plan by refusing to activate a mechanism leading to the
soldiers' almost automatic compliance with the orders.
G The suspects were mutually aware and mutually accepted that the implementation of the common plans would
result in the realisation of the crimes
The Chamber finds that there is sufficient evidence to establish substantial grounds to believe that from the Aveba meeting
in early 2003 to the day of the attack on 24 February 2003, Germain Katanga and Mathieu Ngudjolo Chui, as part of the
common plan to "wipe out" Bogoro, intended: a. to carry out the attack against the civilian population of the Bogoro village;
b. to carry out the killings or murder of the civilian population of Bogoro village; and c. to destroy properties.
The majority of the Chamber found that there is sufficient evidence to establish substantial grounds to believe that from the
Aveba meeting in early 2003 to the day of the attack on 24 February 2003, Germain Katanga and Mathieu Ngudjolo Chui
knew that, as a consequence of the common plan, rape and sexual slavery of women and girls would occur in the ordinary
course of the events. Accordingly, in the view of the majority of the Chamber, this conclusion, in relation to the crimes
against humanity of rape and sexual slavery of women and girls, is also substantiated by the fact that: (i) rape and sexual
slavery against of women and girls constituted a common practice in the region of Ituri throughout the protracted armed
conflict; (ii) such common practice was widely acknowledged amongst the soldiers and the commanders; (iii) in previous

and subsequent attacks against the civilian population, the militias led and used by the suspects to perpetrate attacks
repeatedly committed rape and sexual slavery against women and girls living in Ituri; (iv) the soldiers and child soldiers were
trained (and grew up) in camps in which women and girls were constantly raped and kept in conditions to ease sexual
slavery;(v) Germain Katanga, Mathieu Ngudjolo Chui and their commanders visited the camps under their control,
frequently received reports of the activities of the camps by the camps commanders under their command, and were in
permanent contact with the combatants during the attacks, including the attack on Bogoro; (vi) the fate reserved to captured
women and girls was widely known amongst combatants; and (vii) the suspects and the combatants were aware, for
example, which camps and which commanders more frequently engaged in this practice.
TADIC CASE
THE VERDICT
- Out of 31 counts, Tadic has been found not guilty on 20 counts (9 murder counts because of insufficient evidence and 11
counts charging Grave Breaches of the Geneva Convention of 1949 declared inapplicable) and guilty on 11 counts
(persecution and beatings).
- This judgement was the first determination of individual guilt or innocence in connection with serious violations of
international humanitarian law by an international tribunal. For the victims of the armed conflict in the Prijedor area, the
verdict represents the first ever judicial condemnation of the "ethnic cleansing" policy.
- The Accused is a citizen of the former Yugoslavia, of Serb ethnic descent, and a resident of the Republic of Bosnia and
Herzegovina at the time of the alleged crimes. He was charged with persecution, murder, beatings and other offences
alleged to have been committed in 1992 in the Prijedor district (northwestern part of the Republic of Bosnia and
Herzegovina) and more specifically at the Omarska, Keraterm and Trnopolje camps, in Kozarac and in the area of Jaskici
and Sivci.
- In all cases the Accused was charged with individual criminal responsibility. He pleaded not guilty and raised a defence of
alibi, saying that he was elsewhere when each of those acts was said to have occurred.
FACTUAL AND LEGAL FINDINGS COUNT BY COUNT
Count 1 : Persecution. Accused guilty.
- Tadic participated in the attack on Kozarac and the surroundings areas and in the collection and forced transfer of civilians
to detention camp. He participated in the calling-out of four Muslim men from a column of civilians and the beatings, callingout, separation and forced transfer of non-Serb civilians. He participated in the beating of a Muslim policeman in Kozarac.
He kicked one Muslim prisoner and beat another while they were held at the Prijedor military barracks, and killed two
Muslim policemen in Kozarac.
- At the Omarska camp, Tadic took part in the beating of Edin Mrkalj and Senad Muslimovic in the administration building
and the hangar building, respectively. At the Keraterm camp, he took part in the beatings of the prisoners and in one massbeating of prisoners.
- He also participated in the transfer to and in the initial confinement of non-Serbs in camps generally, and in the Trnopolje
camp in particular. However, he did not take an active role in the continued confinement of non-Serbs in the Trnopolje camp.
- As to the alleged participation of the accused in the seizure, selection and transportation of individuals for detention, it was
found that Tadic participated and was aware that the majority of surviving prisoners would be deported from Bosnia and
Herzegovina.
- The Trial Chamber said that the acts of the accused constitute persecution. It noted the horrendous treatment inflicted on
the non-Serb population of opstina Prijedor on the basis of religion and politics. A policy to terrorize the non-Serb civilian
population of opstina Prijedor on discriminatory grounds was evident and its implementation was widespread and
systematic throughout. The events described under Count 1 occurred within this context of discrimination.
- Tadic was one of the first SDS member in opstina Prijedor and, in his own estimation, a trusted SDS member who was
asked to run a crucial plebiscite in the Kozarac area. As organizer of the plebiscite in Kozarac and President of the local
SDS, the accused had knowledge and supported the plan for a Greater Serbia. He himself admits this knowledge and
support for the plan when he describes himself as an enthusiastic supporter of the creation of Republika Srspka. His acts
occurred during an armed conflict, were taken against civilians as part of a widespread or systematic attack on the civilian
population in furtherance of a policy to commit these acts, and the accused had knowledge of the wider context in which his
acts occurred.
- Tadic is thus guilty of a Crime against Humanity.
Counts 6, 7, 10, and 11: Killings, beatings and sexual mutilation in Omarska
- He was one of the men who severely beat Emir Beganovic and Senad Muslimovic.
- He was also present on the hangar floor when three victims were called out and attacked, and he attacked Jasmin Hrnic
with a knife, took part in the attack upon and the beating of Emir Karabasic, and took part in the beating of Jasmin Hrnic.
- As to the assault upon and the sexual mutilation of Fikret Harambasic, he was on the hangar floor on this occasion, but did
not take any active part in the assault and the mutilation. However, regarding the totality of the acts charged, it was found
that in some instances, he was himself the perpetator, and in others, he intentionally assisted directly and substantially in

the common purpose of inflicting physical suffering upon them and thereby aided and abetted in the commission of the
crimes and is therefore individually responsible for each of them. He was therefore found guilty of cruel treatment and
inhumane acts.
- As to the alleged deaths of Fikret Harambasic, Emir Karabasic, Jasmin Hrnic and Enver Alich which allegedly resulted from
the assaults upon them, the Prosecutor failed to elicit clear evidence from witnesses about the condition of the four
prisoners after they had been assaulted, and to establish that any of these four prisoners died from injuries received in the
assaults made on them in the hangar.
- Tadic was found guilty of a violation of the laws and customs of war for his participation in the beatings and other grievous
acts of violence inflicted on Enver Alic, Emir Karabasic, Jasko Hrnic, Senad Muslimovic, Fikret Harambasic and Ermir
Beganovic, none of whom were taking part in the hostilities. He was also found guilty of a crime against humanity: the
beatings and other acts of violence which were suffered by the six victims were committed during an armed conflict as part
of a widespread or systematic attack on a civilian population. The accused intended for discriminatory reasons to inflict
severe damage to the victims' physical and human dignity.
Counts 13 and 14: Beating of Sefik Sivac in Omarska
- Sefik Sivac was beaten and the accused was part of the group that threw Sefik Sivac onto the floor after he had been
beaten and that Sefik Sivac later died from these injuries. He intentionally assisted directly and substantially in the common
purpose of the group to inflict severe suffering upon Sefik Sivac.
- Tadic was therefore guilty of a violation of the laws and customs of war (cruel treatment on a prisoner who did not take
active part in the hostilities) and of a crime against humanity (inhumane act committed during an armed conflict as part of a
widespread and systematic attack on a civilian population and intended for discriminatory reasons to inflict severe damage
to the victim's physical integrity and human dignity).
Counts 16 and 17: Beatings at Omarska
- Tadic severely beat and kicked Hakija Elezovic and severely beat Salih Elezovic. He was therefore guilty of a violation of
the laws and customs of war (cruel treatment of two Muslims neither of whom were taking active part in the hostilities) and
of a crime against humanity (inhumane act committed during an armed conflict as part of a widespread...xxx)
Counts 19 and 20: Abuse of prisoners in Omarska
- As to the allegations that the accused was a member of a group of Serbs beating prisoners and forcing them to drink water
from the ground like animals, the accused was not named by the Prosecution's witness as part of the group.
- As to the allegation that the accused discharged the contents of a fire extinguisher into the mouth of a man in a barrow, no
evidence has been furnished of such discharge, and the Prosecution failed to establish that the man [in the barrow] was
alive.
Counts 22 and 23: Beating and abuse of Hase Icic in Omarska
- Tadic was part of a group of Serbs who beat and kicked Hase Icic until he was unconscious. Therefore guilty of a violation
of the laws and customs of war (cruel treatment of a Muslim not taking active part in the hostilities) and of a crime against
humanity (inhumane act committed during an armed conflict as part of a widespread...xxx)
Counts 30, 31, 33 and 34: 5 killings and 8 beatings in Jaskici and Sivci
- As to the alleged killing of 5 men taken from their homes, accused was part of the group of Serbs who rounded up the men
in the village. But it cannot be satisfied beyond reasonable doubt that the accused had any part in the killing of the five men
or any of them. Nothing is known as to who shot them or in what circumstances. (Thererore, immaterial that he rounded up
the men.)
- He took part in the brutal and violent beating of Beido Balic, Sefik Balic, Ismet Jaskic and Salko Jaskic.
TADIC'S DEFENCE OF ALIBI
- Dusko Tadic raised a defence of alibi to each of the counts charged, claiming he was somewhere else at the time of the
alleged acts. He testified under solemn declaration that he had never been to the Omarska or Keraterm camps nor had he
participated in ethnic cleansing in Kozarac. He testified that he had been to Trnopolje on five occasions but was never
inside the camp.
- The Trial Chamber did not appreciate this alibi, saying that the evidence of the Defence witnesses who happened to be in
Kozarac during the attack attests only to their not having seen the accused in Kozarac while they were there. Such
evidence was found to be insufficient to prove the alibi.
- Furthermore, numerous credible witnesses have testified that they saw the accused at the Omarska camp and Tadic's
assignment to the Orlovci checkpoint (a part of his alibi) would not preclude him from carrying out what the Prosecution
described as his "higher duty" as a traffic policeman to implement ethnic cleansing to achieve a Greater Serbia.
Prosecutor vs. Thomas Lubanga Dyilo (Pre-trial Chamber)
Facts:
In the summer of 1999, tensions developed as a result of dispute over the allocation of land in Ituri and the appropriation of
natural resources. During the second half of 2002, there was renewed violence in various parts of the district.

The FPLC was established and Thomas Lubanga Dyilo became its Commander-in-Chief. Even prior to the founding of the
FPLC, the UPC already actively recruited children under the age of fifteen years in significant numbers and subjected them
to military training in its military training camp in Sota, amongst other places. Even while under house arrest at some point,
Dyilo continued to exercise powers over the adoption and implementation of policies.
After the founding of the FPLC, they continued to systematically enlist and conscript children under the age of fifteen years
in large numbers to train them and use them to participate actively in hostilities, including as bodyguards for senior FPLC
military commanders.
The FPLC had a recruitment policy wherein a large number of children were forced to join the FPLC, wherein the FPLC
allegedly forcibly recruited groups of children in several localities. These forced recruitments were carried out by FPLC
commanders wherein Dyilo himself was said to have participated in one occasion. Some children in fact volunteered to join
the ranks of the FPLC while some were made available by their parents. Some joined out of the desire for revenge after the
loss of a close relative. The FPLC accepted them, thus implementing an enlistment policy.
The children began military training the day following their arrival at the camp, with the military training lasting up to two
months. The children were subjected to rigorous and strict discipline, including lengthy and exhausting physical exercises
which lasted all day. This included saluting, marching, taking up positions and running, as well as compelling them to sing
aggressive military songs. They were also trained in the use of firearms and were given military uniforms, firearms and
ammunitions at the end of their training. They were then considered fit for combat and were sent in the front line to fight.
Some had to kill while others lost their lives in combat. Some of the children were used as bodyguards by FPLC
commanders and Dyilo himself used them as well. Some children also guarded the general staff headquarters.
Kristine Peduto in fact has testified that Thomas Lubanga Dyilo visited the training camp in which he is seen encouraging
new recruits to finish their training and to prepare for combat. She further testified that she thought that the Child
Demobilization Decree for the Hema community (forced recruitment) was a public relations operation. She even met Dyilo in
person, stating that she was shocked to have seen armed children guarding the premises of Dyilos residence. Several
witnesses and evidences (a video) also show Dyilos visits in the camp.
The conduct in question took place in the context of and was associated with an armed conflict. A war crime has been
committed there being a nexus between the criminal act in question and the armed conflict.
Court:
Thomas Lubanga Dyilo is criminally liable for the crimes listed in the Document Containing the Charges as co-perpetrator,
jointly with other FPLC officers and UPC members and supporters for enlisting and conscripting children into the armed
forces or using them to participate actively in hostilities. [Article 8 (2) (b) (xxvi) and Article 8 (2) (e) (vii) of the statute]
***Co-perpetration is based on joint control over the crime. It is rooted in the principle of the division of essential tasks for
the purpose of committing a crime between two or more persons acting in a concerted manner. Hence, although none of the
participants has overall control over the offense because they all depend on one another for its commission, they all share
control because each of them could frustrate the commission of the crime by not carrying out his or her task. Objective
elements include: (a) existence of an agreement or common plan between two or more persons; and (b) co-ordinated
essential contribution by each co-perpetrator resulting in the realization of the objective elements of the crime. Subjective
elements include: (a) suspect must fulfill the subjective elements of the crime charged; (b) the suspect and the other coperpetrators must all be mutually aware and mutually accept that implementing their common plan may result in the
realization of the objective elements of the crime; and (c) the suspect must be aware of the factual circumstances enabling
him or her to exercise joint control over the crime.
As to the admissibility of evidences (testimonies):
The generally accepted solution in the international criminal tribunals is to provide for the exclusion of evidence by judges
only in cases in which very serious breaches have occurred, leading to substantial unreliability of the evidence presented.
The defense submits that it is unable to have access to the sources which provided the information contained in a number
of items included in the Prosecution List of Evidence. The evidences were anonymous hearsays, and it is impossible for the
defense to ascertain the truthfulness and authenticity of the information therein contained. Should these be inadmissible as
evidence? Or should they only be treated to have limited probative value?
Under article 69 (4) of the Statute, the chamber has the discretion to rule on the admissibility of any evidence, while taking
into account the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair
evaluation of the testimony of a witness. The chamber notes that there is nothing in the Statute or the Rules which expressly
provides that evidence which can be considered hearsay from anonymous sources is inadmissible per se. The chamber
states that for the purpose of the confirmation hearing, it is possible to use such evidences. Regarding the anonymous
hearsay evidences, the Chamber will determine their probative value in light of other evidences which was also admitted for
the purpose of the confirmation hearing. However, mindful of the difficulties that such evidence may present to the defense
in relation to the possibility of ascertaining its truthfulness and authenticity, the Chamber decides that, as a general rule, it
will use such anonymous hearsay evidence only to corroborate other evidence.
According to the defense, the attestations of birth to prove the age of the six child soldiers whose cases are detailed in the
document containing the charges are inadmissible and invalid under Congolese law, given that under the law the age of a

person may only be determined by his/her record of birth. Also they do not fully comply with Congolese law; these
attestations nevertheless have probative value since they were issued by the Congolese authorities. While birth certificates
issued by the competent authorities in accordance with domestic legislation are the best means of proving a persons age,
they do not constitute the sole means of providing such proof. A more flexible approach for determining the admissibility and
probative value of such evidence is the only approach which is consistent with the requirement to fully respect the
specificities of the cultures and customs of the worlds different people. The probative value of the attestations shall be part
of the assessment of the totality of evidence for the purpose of the confirmation hearing. Such attestations are to be
corroborated by other evidences such as childrens own statements.
Defense challenged the credibility and reliability of childrens statements and Kristine Pedutos testimony, on which the
prosecution relied to substantiate the charges against Thomas Lubanga Dyilo. The chamber recalls that in application of
Article 69 (4) of the statute, the chamber may rule on the relevance or admissibility of any evidence, taking into account,
inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair
evaluation of the testimony of a witness, in accordance with the Rules of Evidence and Procedure. In exercising its
discretion and in accordance with the jurisprudence of the ICTR, the chamber declares that it will attach a higher probative
value to those parts of the childrens and Kristine Pedutos evidence which have been corroborated.
Defense pointed out that nowhere in the statements taken by an OTP investigator is it mentioned that the witnesses took an
oath. They submit that before the international tribunals, a representative of the Registry is present when a deposition is
taken. The ICTY practice to which the defense refers on the admission of written statements and transcripts in lieu of oral
testimony applies to the trial phase, and not applicable in the context of a confirmation hearing.
Acquittal of Zejnil Delalic (APPEAL JUDGEMENT IN THE ELEBII CASE)
Summary of Decision
- The trial related to events which took place in 1992 in a prison camp near the town of elebii, in central Bosnia and
Herzegovina.
- The 4 accused, Zejnil Delali, Zdravko Muci, Hazim Deli, and Esad Lando, were charged with numerous counts of
grave breaches of the Geneva Conventions of 1949 under Article 2 of the Tribunals Statute and of violations of the
laws or customs of war under Article 3.
- The victims were the Bosnian Serb detainees in the elebii camp.
- Delali was alleged to have co-ordinated the activities of the Bosnian Muslim and Bosnian Croat forces in the area
and later to have been the Commander of the First Tactical Group of the Bosnian Army. He was alleged in that
capacity to have had authority over the elebii camp. He was found not guilty on all counts, on the basis that he did
not have sufficient command and control over the elebii camp and its guards to found his criminal responsibility as a
superior for the crimes which they committed in the camp.
- Muci was found by the Trial Chamber to be the Commander of the elebii camp, and he was found guilty under
the principles of superior responsibility for crimes committed by his subordinates, including murder, torture and inhuman
treatment. He was also found guilty of personal responsibility for the unlawful confinement of civilians.
- Deli was found by the Trial Chamber to have acted as the Deputy Commander of the camp, and he was found guilty
on the basis of personal responsibility for crimes including murder, torture and inhuman treatment.
- Lando was found by the Trial Chamber to have been a guard at the camp, and he was found guilty of committing
offences including murder, torture and cruel treatment.
Discussion
- The armed conflict in Bosnia and Herzegovina at the relevant time was international, as the Bosnian Serb forces
fighting in Bosnia and Herzegovina were under the control of the Federal Republic of Yugoslavia. The prosecution
established that the foreign intervening party was in overall control of the local forces.
- For the purposes of Article 2 of the Statute, the victims were persons protected under the relevant Geneva
Convention. A person may be accorded protected person status, notwithstanding the fact that he is of the same
nationality as his captors. The nationality of the victims for the purpose of the application of Geneva Convention IV should
not be determined on the basis of formal national characterisations, but that the nationality should take into account
the differing ethnicities of the victims and the perpetrators and their bonds with a foreign intervening State.
- Deli challenged the Tribunals jurisdiction to prosecute grave breaches of the Geneva Conventions because, it was
submitted, Bosnia and Herzegovina was not a party to the Conventions until after the relevant events, having acceded
to them subsequently. The Appeals Chamber held that Bosnia and Herzegovina succeeded to the Geneva Conventions,
with the effect that it is considered to be a party to the treaty from the date of its succession or independence, which was
prior to the relevant events. Even without a formal act of succession, Bosnia and Herzegovina would automatically have
succeeded to the Geneva Conventions, as they are treaties of a universal multilateral character relating to fundamental
human rights.
- The appellants challenged the jurisdiction of the Tribunal to prosecute violations of Article 3 common to the Geneva
Conventions under Article 3 of the Statute. The Appeals Chamber held that the violations of the laws or customs

of war which may fall within Article 3 of the Statute of the Tribunal include violations of common Article 3, that these
violations give rise to individual criminal responsibility, and that they may be prosecuted whether committed in internal
or international conflicts.
Command responsibility
- Muci was convicted for his superior authority as commander of the elebii camp for the crimes committed there. He
argued that command responsibility is limited to de jure commanders, or those superiors with control over
subordinates equivalent to such de jure authority. The Appeals Chamber has rejected that argument, accepting that a
position of de facto command may be sufficient to establish the necessary superior-subordinate relationship, as long as
the relevant degree of control over subordinates is established. The relevant superior-subordinate relationship is
established where the superior has effective control over the persons committing the underlying violations of
international humanitarian law, in the sense of having the material ability to prevent or punish the commission of these
offences. Evidence was shown that Mucic exercised powers of control sufficient to constitute the exercise of de facto
authority over the camp.
- The prosecution appealed against the Trial Chambers interpretation of the requirement that a superior knew or had
reason to know that a subordinate is about to commit crimes or had done so. The Appeals Chamber has concluded
that the phrase reason to know" means that a superior will be charged with knowledge of subordinates offences if
information of a general nature was available to him which would have put him on notice of those offences.
- The prosecution also contended that the ability of an accused to exercise forms of influence should suffice to establish
the relevant superior-subordinate relationship. The Appeals Chamber has concluded that, whilst indirect as well as
direct relationships of subordination will suffice, the relevant standard of effective control over subordinates must be
established, and that any forms of influence which fall short of such control would not suffice.
The Prosecutor v. Bemba Gombo
CASE DIGEST- Decision on the Confirmation of Charges PTC II
FACTS:
On January 7, 2005 the Government of the Central African Republic (CAR) referred to the Court the situation of crimes
committed within its territory since July, 2002. As a result of its investigations, the Office of the Prosecutor (OTP) submitted
an application of a warrant of arrest for Mr. Bemba on May 9, 2008 which was approved under seal by Pre-Trial Chamber III
on May 23. On May 24, Belgian authorities arrested Mr. Bemba who was on Belgian territory, and the seal was lifted. In
2002, the then-president of the CAR, Ang-Felix Patass, who was facing a coup dtat led by the current CAR president,
Franois Boziz, allegedly invited Mr. Bemba and his troops, the MLC, to help stop it. In the course of the intense fighting
between Patasss armies and Bozizs militias, both sides allegedly committed atrocities such as rape, killing, and looting
against the civilian population. Pursuant to Article 25(3)(a) of the Rome Statute, the Prosecutor charged Mr. Bemba as a coperpetrator with President Patass. The prosecution alleged that Mr. Bemba and President Patass committed war crimes
and crimes against humanity in the CAR. The war crimes charged include murder, rape, pillaging, torture and the crime of
outrages upon personal dignity which is the degrading and humiliating treatment of victims. The crimes against humanity
charged include murder, rape and torture.
During the course of the confirmation hearings, the Prosecution presented various evidence to try to establish Mr. Bembas
criminal responsibility as a commander. They contended that Mr. Bembas criminal responsibility could be proved by the fact
that, knowing of the aggressions and assaults committed by his troops he had daily direct contacts with field commanders
he did nothing to stop them or discipline them. The prosecution added that although a military tribunal was established to
judge such crimes, it was a sham because only seven soldiers were tried in relation to the 2002 crimes and they were
released one month after conviction because Mr. Bemba granted them amnesty and re-integrated them into the army. They
argued that if Mr. Bemba had not sent MLC troops, over which he had control, to the CAR, these crimes would not have
been committed. The prosecution relied on witness testimony and videos to illustrate that through various rape cases
including gang rape and public rapes, even in front of the victims family members MLC soldiers degraded, humiliated and
violated the dignity of civilians in CAR. The prosecution alleged that the lasting effect on the civilians of the rapes
demonstrated how humiliating and degrading they were because, for example, allegedly some victims have been rejected
by their communities and many have contracted STDs, HIV or AIDS. Furthermore, the Prosecution pointed out that there
are still thousands displaced. They also argued that MLC troops also engaged in systematic pillaging in an organized
manner, moving from home to home and often accompanying pillaging with violence or assaulting civilians on the roads,
depriving them of all their assets. It also stated that the use of the Lingala language by the MLC soldiers could be used as a
factor to identify them as Congolese. In accordance with Article 25(3)(b) of the Rome Statute, a person is criminally
responsible for a crime within the jurisdiction of the Court if that person orders, solicits or induces the commission of a crime
which in fact occurs or is attempted. The Prosecutor claimed that Mr. Bemba should be held criminally responsible as coperpetrator or accomplice because he was aware of the crimes committed by his troops and that as the alleged President
and Commander in Chief of the MLC, formally and de facto he ordered, solicited and induced the commission of the
crimes. Mr. Bemba allegedly deployed the troops; appointed the commander and gave him orders to conduct operations;
and controlled financial and logistical support and movements of the soldiers in the field, as well as provided them with
weapons and means of communication. The prosecution stressed that the crimes were not random events during their
campaign to combat the rebels, but a systematic and widespread attack against the civilian population of CAR.

For their part, the defense submitted that the charges should not be confirmed because the prosecution had failed to show
the basic elements required to establish criminal responsibility, such as, intent or knowledge on the part of Bemba in
committing such crimes. In the first place, the defense highlighted that both regional and international law recognize that a
sending state, similar to the sending of UN peacekeepers, has no responsibility and thus Bemba had not violated the law
when the MLC assisted a sovereign state to stop a coup dtat. Moreover, the defense counsel affirmed that it was
President Patass who fully supplied MLC troops with food, uniforms, money and transportation; and that all the operational
decisions were made in Bangui, the capital of CAR. Therefore, the Congolese forces were allegedly under the orders of the
head of state of CAR. Furthermore, the defense stressed that following the code of conduct of the MLC, Mr. Bemba
disciplined his men by conducting investigations into allegations of war crimes and setting up a military tribunal which
convicted some of the perpetrators. The defense also asserted that Mr. Bemba also invited human rights groups and UN
Special Representative General Lamine Cisse to request their help in establishing the true facts. By citing different
witnesses, the defense cited evidence to argue that the suspect was unaware of the commission of such crimes and that he
was not informed of them by the military leaders. The defense sought to cast doubt on the validity of the prosecutions
evidence sources inquiries conducted by the UNDP and the Ministry of Social Affairs and suggested witness bias by
pointing out that many of the witnesses were opposed to Patasss regime. In addition, the defense stated that some cases
of alleged rape were instead voluntary sexual relations. It also claimed that the grounds for identifying MLC soldiers
knowledge of the Lingala language were insufficient, as established by an expert report on this language.
FINDINGS OF THE COURT:
At the end of the hearings, the Chamber ordered the parties to file their written submissions by January 26, 2009. The
judges announced that decision for the confirmation of charges will be issued within 60 days of that date and will determine
whether Mr. Bemba will face trial. However, on March 3, 2009 the Chamber issued its Decision Adjourning the Hearing
pursuant to Article 61(7)(c)(ii) of the Statute. The Chamber did not find sufficient evidence that from October 26, 2002 to
March 15, 2003 Mr. Bemba and President Patass jointly committed crimes in the CAR. Instead, the Court found evidence
to suggest that criminal liability for Mr. Bemba could be established as a commander, not as a co-perpetrator. Therefore, the
Court asked the Prosecutor to submit an amended document containing the charges by March 30 alleging Mr. Bembas
individual responsibility as a commander or superior. The amended document submitted by the OTP charged Bemba with
eight counts of war crimes and crimes against humanity. The OTP offered evidence suggesting Bemba was criminally
responsible as a co-perpetrator or in the alternative as a commander or superior for the crimes committed by the MLC in the
CAR.
Based on the Prosecutors submissions, Pre-Trial Chamber III concluded that Mr. Bemba could be criminally liable as a
commander for purposes of confirming the charges for trial because he was in control of the MLC, knew of the attacks after
their commission and failed to prevent or discipline members of the MLC from committing further crimes in the CAR.
However, the Court did not confirm the charges of torture and outrages upon personal dignity as war crimes because the
prosecution failed to provide enough evidence of humiliating and degrading treatment. The Prosecutor relied on the same
evidence establishing the rape charge since rape is also torture and an outrage on personal dignity. Therefore, the Court
decided that the evidence submitted amounted only to rape and not to torture or outrage on personal dignity, thus it did not
confirm these charges.