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2011
CASE STUDY: THE SITUATION IN MACAGUA

President Karaba of the Union party, a former leader of the New Life militia, has ruled the
state of Macagua since 1986. By amending the Constitution on the basis of emergency
measures, he has managed to hold on to power by giving himself control over all spheres of
public administration. Despite his more than questionable methods, over the years President
Karaba has ensured a certain economic prosperity for the country by combining coffee
exports at gold prices, inflation control and job creation.

The sharp fall in coffee prices at the end of the 2000s hit Macagua's fragile economy hard.
The entire population paid the price, finding itself destitute and living in extreme poverty
overnight. Panic-stricken and faced with growing pressure from the streets, President Karaba
and his team announced presidential elections for April 2011. His aim was to regain control
and avoid the bloody conflicts that have plagued other countries in the region with similar
problems.

Swiss correspondent Bastien Juillard was sent to Macagua to cover the elections. He was
there when the clashes broke out. He explains the situation in Macagua's capital on the eve of
the elections and in the days that followed.

This is how he describes the run-up to the elections in one of his first articles.

"As soon as I arrived in the country, through my discussions with the Macagueeses, I quickly
realised that political and inter-community tension was still palpable and latent. The signing
of the Tamatia Peace Accords between the various factions that took part in the last armed
conflict in 1986 changed nothing.

There is no doubt that the election speeches made by the various political parties echo the
themes that were at the root of the bloody conflicts that ravaged the country in the 1980s. This
political instrumentalization of the different peoples that make up Macagua is regrettable. The
rhetoric establishes clear ethnic divisions. In the streets, tempers flare. People, most of whom
are unemployed, confront each other's points of view throughout the day, sometimes leading
to physical confrontation.

In mid-March, I met Chief Dukuu of the Akwaba community, a well-known opponent of

President Karaba. He told me that he had been hit on the head by a bar during clashes
between his community and the Akroso community, to which the President belongs. He also
told me that the National Armed Forces (NAF) had intervened during these clashes and that
five of his advisers had been arrested and were now being held at the central barracks.

In a subsequent article, Bastien Juillard describes the dramatic events that marked election
day and the period that followed. Here are a few extracts:
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"What I saw continues to trouble my conscience and keeps coming back to me. It's Sunday 24
April 2011, the day set for the announcement of the results of the presidential elections. I'm in
the capital and I'm watching the crowd outside the stage where Mr Sivilien, the opposition
party's presidential candidate, is due to make a speech. This is the same place where Mr
Sivilien gave a speech three weeks earlier to win the confidence of his supporters and
reassure his external allies, which include some of the country's neighbours, including the
very rich neighbouring country of Pumcoto.

Then the events unfolded at incredible speed. Gunfire could be heard in the distance and the
sound of 4X4 engines came closer. The crowd became restless and ran in all directions. NAF
men disembark from their 4X4s. Some fired into the air, others fired directly into the crowd,
which contained no armed elements! Some grabbed a group of three women and two young
girls and took them away. With a lot of luck, I managed to escape the chaos and save my skin.
That day, 25 to 30 people were killed and many more injured. It was the beginning of a human
catastrophe.

...

President Karaba contested the results given by the National Electoral Commission and
declared himself the winner of the elections. He ordered the NAF, who remained loyal to him,
to destroy all opposition. He describes Mr Sivilien as a renegade and a terrorist. He promised
a substantial reward to anyone who could catch him dead or alive.

....

On the other hand, the information I was able to gather on the ground confirms that the New
People's Forces (NFP), the main armed opposition group whose leader is also close to Mr
Sivilien, are well organised and have successfully repelled numerous NAF assaults during the
same period. According to some sources, the attack on Mr Sivilien's tribune was simply a
reprisal for an offensive undertaken by the NFP that resulted in significant military losses for
the NAF.

Subsequently, Mr Juillard persisted in staying in Macagua to cover the events. However, he

had to remain hidden because the situation was explosive. It was only a few weeks later that
he was finally able to set off in search of information. Here is part of his account:

"Despite warnings from people in my neighbourhood, I decided to go and cover what was
happening. That's when I found myself in a world that's hard to describe, where every civilian
is wondering what will happen next and what will become of their loved ones.

On my way, I saw the scale of the crisis. Villages have been ransacked and the scorched earth
is still smoking. I pass people in tatters, walking with empty stares. Others are in a state of
hysteria at this disastrous scenario and some are sitting hopeless with their heads in their
hands. In silence, I continue on my way. Eventually I found where all the inhabitants of the
ransacked villages had fled to. Many of them had taken refuge in the village of Okmor on the
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border with the neighbouring state of Pumcoto, while the wounded had been brought together
in a makeshift dispensary (hospital) run by the NAF.

I set off towards the dispensary. At the entrance, something catches my eye. A sorting post had
been set up to receive the wounded. I stayed there for a few hours and noticed that all the
wounded who came from villages or regions used as a base by the opposition were
systematically and ruthlessly put on lorries and never seen again. When I try to find out more,
the person in charge of the post just shrugs his shoulders and tells me that he wants to
preserve care and the few resources available for those who really deserve it.

In the dispensary, a wounded woman asks me for food and water for her and her children. She
tells me that the NFP have burnt down their land and destroyed their farm. I can't help but
feel outraged at these barbaric acts: with harvests already having failed for several seasons
in Macagua, this is the best way to starve them to death!

This woman adds that she has no news of her husband and son, who joined the NAF at the
start of the events. Without their support, and with the loss of her farm, no one knows how she
will cope. None of the people in charge of the dispensary are able to help her or tell her where
to go so that a search can be undertaken.

I then witnessed a surreal scene. As I approached an old man, an ambulance bearing the Red
Cross emblem came speeding into the courtyard. A nurse rushed towards it to take care of the
wounded. The men in NFP uniform then got out of the ambulance and fired at the medical
staff and patients. Five people died before the NAF managed to neutralise them.

Following these events, Mr Juillard was repatriated to Switzerland. In June, the figures
gathered by humanitarian organisations on the ground were staggering: in addition to the tens
of thousands of dead and injured, there were hundreds of thousands of refugees and displaced
persons. President Karaba is doing everything he can to stay in power, but nobody believes
him any more, especially as he has no hesitation in flouting and violating the most
fundamental rights.

In response to this situation, on 20 June the United Nations Security Council adopted a
resolution under Chapter VII of the UN Charter, creating the UN Mission in Macagua
(UNUM). This mission may use all necessary means, including force, to restore and maintain
peace and security in this hard-hit country and region. As soon as they arrived on the ground,
the members of the UNUM were caught up in violent clashes with the NAF. One of the
UNUM's priorities was to find the senior NAF leaders who were well hidden. The UNUM
nevertheless managed to arrest some of them, who were detained at its headquarters before a
decision was taken on their fate. On 9 August 2011, following precise information, a farm
more than 200 kilometres from the capital was surrounded, an assault was launched by the
UNUM and three senior NAF leaders were shot dead. They were in civilian clothes and
carried no weapons.
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Macagua is a party to the four Geneva Conventions, their three Additional Protocols and the
Rome Statute. It is also a party to the main human rights instruments and has not taken any
measures of derogation.

QUESTIONS

1. (3 points) Describe the events and specify the applicable law, in particular with regard
to persons deprived of their liberty, for each of the following periods:
a. Period leading up to the presidential elections ;
b. Election announcement day and the period that followed ;
c. Intervention by UNUM.
2. (2 points) Identify two violations of IHL that Mr Juillard witnessed in the dispensary.
In each case, specify which provisions of the Geneva Conventions and Additional
Protocols or customary law apply. Which of the violations identified could be
prosecuted before the International Criminal Court as war crimes?
3. (1 point) Choose one of the following three questions:
a. Under international humanitarian law, what are the protective emblems and
who can use them?
b. What protection could Mr Juillard enjoy under international humanitarian law?
What are the limits?
c. Comment on the UNUM assault which resulted in the death of three NAF
leaders?

***

Statute of the International Criminal Court (extracts)

Article 82
War crimes
...
2. For the purposes of the Statute, "war crimes" means :
a) Grave breaches of the Geneva Conventions of 12 August 1949, namely any of the following acts
when directed against persons or property protected by the provisions of the Geneva Conventions:
i) Intentional homicide ;
ii) Torture or inhuman treatment, including biological experiments ;
iii) Intentionally causing great suffering or serious injury to body or health;
iv) The destruction and appropriation of property, not justified by military necessity and
carried out on a large scale in an illegal and arbitrary manner;
v) The act of forcing a prisoner of war or protected person to serve in the forces of an enemy
power;
vi) Intentionally depriving a prisoner of war or any other protected person of the right to a fair
and impartial trial;
vii) Illegal deportation, transfer or detention ;
viii) Hostage taking ;
b) Other serious violations of the laws and customs applicable in international armed conflict within the
established framework of international law, namely, any of the following acts:
i) Intentionally directing attacks against the civilian population as such or against civilians
not taking direct part in hostilities;
ii) Intentionally directing attacks against civilian objects, i.e. objects that are not military
objectives;
iii) Intentionally directing attacks against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance with the
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Charter of the United Nations, insofar as they are entitled to the protection afforded to
civilians and civilian objects under the international law of armed conflict;
iv) Intentionally directing an attack in the knowledge that it will cause incidental loss of civilian
life, injury to civilians, damage to civilian objects or widespread, long-term and severe
damage to the natural environment which would be clearly excessive in relation to the
concrete and direct overall military advantage anticipated;
v) Attacking or bombing, by any means whatsoever, towns, villages, dwellings or buildings
which are not defended and which are not military objectives;
vi) Killing or wounding a combatant who, having laid down his arms or no longer having the
means to defend himself, has surrendered at discretion;
vii) Making improper use of the parliamentary flag, the flag or the military insignia and uniform
of the enemy or of the United Nations, as well as the distinctive emblems provided for by
the Geneva Conventions, and, in so doing, causing loss of life or serious injury;
viii) The transfer, direct or indirect, by an occupying power of part of its civilian population into
the territory it occupies, or the deportation or transfer within or outside the occupied
territory of all or part of the population of that territory;
ix) Intentionally directing attacks against buildings dedicated to religion, education, art,
science or charity, historic monuments, hospitals and places where the sick or wounded
are collected, provided they are not military objectives;
x) Subjecting persons of an adverse party who have fallen into its power to mutilation or to
medical or scientific experiments of any kind whatsoever which are neither motivated by
medical, dental or hospital treatment nor carried out in the interests of those persons, and
which result in their death or seriously endanger their health;
xi) Treacherously killing or wounding individuals belonging to the enemy nation or army;
xii) Declaring that there will be no quarter given;
xiii) Destroying or seizing enemy property, except where such destruction or seizure is
imperatively required by the necessities of war;
xiv) Declaring the rights and actions of nationals of the opposing party extinguished,
suspended or inadmissible in court;
xv) The act by a belligerent of compelling the nationals of the opposing party to take part in
war operations directed against their country, even if they were in the service of that
belligerent before the outbreak of war;
xvi) The looting of a city or town, even if it has been stormed;
xvii) Using poison or poisoned weapons;
xviii) The use of asphyxiating, toxic or similar gases, as well as all similar liquids, materials or
processes;
xix) The use of bullets that expand or flatten easily in the human body, such as bullets whose
hard envelope does not completely cover the centre or is pierced with notches ;
xx) The use of weapons, projectiles, materials and methods of warfare of a nature to cause
superfluous injury or unnecessary suffering or to strike indiscriminately in violation of the
international law of armed conflict, provided that such weapons, projectiles, materials and
methods of warfare are subject to a general prohibition and are included in an Annex to
this Statute, by means of an amendment adopted in accordance with the provisions of
Articles 121 and 123 ;
xxi) Attacks on personal dignity, in particular humiliating and degrading treatment;
xxii) Rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Article 7,
paragraph 2, subparagraph f), enforced sterilisation or any other form of sexual violence
constituting a grave breach of the Geneva Conventions;
xxiii) Using the presence of a civilian or other protected person to prevent certain points, areas
or military forces from being targeted by military operations;
xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and
personnel using, in accordance with international law, the distinctive emblems provided for
by the Geneva Conventions;
xxv) The deliberate starvation of civilians as a method of warfare, by depriving them of goods
essential to their survival, including by intentionally preventing the dispatch of relief
supplies as provided for by the Geneva Conventions;
xxvi) Conscripting or enlisting children under the age of 15 into the national armed forces or
using them to participate actively in hostilities;

c) In the case of an armed conflict not of an international character, serious violations of Article 3
common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts
committed against persons taking no active part in the hostilities, including members of armed
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forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention or any other cause:
i) Violence to life and limb, in particular murder in all its forms, mutilation, cruel treatment
and torture;
ii) Attacks on personal dignity, in particular humiliating and degrading treatment;
iii) Hostage-taking ;
iv) Sentences pronounced and executions carried out without a prior judgment rendered by a
regularly constituted court, accompanied by judicial guarantees generally recognised as
indispensable ;

d) Paragraph 2 (c) applies to armed conflicts not of an international character and therefore does
not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic
acts of violence or acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflict not of an
international character, within the established framework of international law, namely any of the
following acts :
i) Intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities;
ii) Intentionally directing attacks against buildings, material, medical units and transport, and
personnel using, in accordance with international law, the distinctive emblems of the
Geneva Conventions;
iii) Intentionally directing attacks against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance with the
Charter of the United Nations, insofar as they are entitled to the protection afforded to
civilians and civilian objects under the international law of armed conflict;
iv) Intentionally directing attacks against buildings dedicated to religion, education, art,
science or charity, historic monuments, hospitals and places where the sick and wounded
are collected, provided that these buildings are not military objectives;
v) The looting of a city or town, even if it has been stormed;
vi) Rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Article 7,
paragraph 2, subparagraph f), enforced sterilisation, or any other form of sexual violence
constituting a serious violation of Article 3 common to the four Geneva Conventions;
vii) Conscripting or enlisting children under the age of 15 into the armed forces or armed
groups or using them to participate actively in hostilities;
viii) Ordering the displacement of the civilian population for reasons related to the conflict,
except in cases where the safety of civilians or military imperatives so require;
ix) Treacherously killing or injuring a combatant;
x) Declaring that there will be no quarter given;
xi) Subjecting persons of another party to the conflict who have fallen into its power to
mutilation or to medical or scientific experiments of any kind whatsoever which are neither
justified by medical, dental or hospital treatment nor carried out in the interest of such
persons, and which result in their death or seriously endanger their health;
xii) Destroying or seizing the property of an adversary, unless such destruction or seizure is
imperatively required by the necessities of the conflict;
xiii) Using poison or poisoned weapons;
xiv) The use of asphyxiating, toxic or similar gases, as well as all similar liquids, materials or
processes;
xv) Using bullets that expand or flatten easily in the human body, such as bullets whose hard
casing does not completely cover the centre or is pierced with indentations.

(f) Paragraph 2 (e) applies to armed conflicts not of an international character and therefore does not
apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of
violence or acts of a similar nature. It applies to armed conflicts in which there is a protracted conflict
in the territory of a State between the authorities of the government of that State and organised armed
groups or between organised armed groups.

...
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January 2012