INTRODUCTION

A is first lieutenant in the regular Afghan army. In late 2021, a blindfolded and hand-cuffed
Taliban fighter is brought to his office. A is very upset because he lost three men in a fire fight
the night before. He assumes that the captive belongs to the forces that attacked his soldiers. He
wants to find out where they hide and recover. But the captive Taliban remains silent. After a
series of threats, A gives a nod to B, one of the guards, who starts beating the captive with a
rubber stick. Yet, he continues to refuse to provide information. This treatment continues for
three hours until he is heavily bruised and faints. He is brought to a detention facility.

Years later, A ends up in a neighboring country and applying for asylum. By accident, video
footage of the beating becomes public. Afghanistan is a party to the Rome Statute of the
International Criminal Court and is unable to prosecute this case.

As the Prosecutor of the International Criminal Court, you are tasked with examining A's
criminal responsibility for one crime under the Rome statute.
Through legal analysis and ethical considerations, we will examine the potential charges against the
perpetrator and the ICC's role in ensuring accountability and upholding the principles of international
humanitarian law.

The crime that A violated under the Rome Statute is torture as a war crime.

War crimes are defined under article 8 (2) of the Rome Statute as;

Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against
persons or property protected under the provisions of the relevant Geneva Convention:

(I) wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried
out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

Torture refers to the intentional infliction of severe physical or mental pain by a public official or with
the consent of a public official with a specific purpose such as obtaining information or confession from
the victim or for reasons of discrimination or to incite fear in the victim.1

1
Article 7(2)(e) of the 1998 Rome Statute of the International Criminal Court (ICC)
Torture is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.2

Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or
punishment.

The prohibition against torture was already recognized under the Lieber Code.3 The international
military tribunal at Nuremberg included ill treatment of civilians and prisoners of war as a war crime.
Common article 3 of the Geneva Convention prohibits cruel treatment and torture and outrages upon
personal dignity in particular humiliating and degrading treatment of civilians and persons hors de
combat. Torture or unhuman treatment and willful causing of great suffering or serious injury to body or
health constitute grave breaches of the Geneva Conventions and are war crimes under the Rome
Statute.

The international criminal tribunal for the former Yugoslavia in the furundzija case and kunarac case
provides further evidence on the customary nature of the prohibition of torture in armed conflicts.

Torture has been used throughout history for different purposes such as to gather information, as
punishment and as a form of intimidation and coercion

In Kunarac4, the Trial Chamber stated in para. 496 of this judgment that: “the presence of a state official
or of any other authority-wielding person in the torture process is not necessary for the offence to be
regarded as torture under international humanitarian law.

The doctrine of command responsibility posits that, when military commanders fail to effectively
prevent, suppress or punish their subordinates’ war crimes the commander may be punished for the
subordinates war crimes.

It permits the prosecution of military commanders for war crimes perpetrated by their subordinates. It
is found in the Hague Conventions IV and X (1907).

In the re yamashita case the U.S supreme court held that commanders are to some extent responsible
for the actions of their subordinates and that military commanders have an affirmative duty to take such
measures within their power and appropriate to the circumstances to protect prisoners of war and the
civilian population from violations.

To what extent are commanders criminally responsible for the illegal actions of their subordinates?

Under the current military justice system, leaders who fail to adequately prevent or punish violations of
the law of war are disciplined instead under the general category of command failures. Stated
differently, these failures are generally punished in the same manner as all other types of command
2
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
3
Lieber Code, Article 16 (cited in Vol. II, Ch. 32, § 1010)
4
https://www.icty.org/en/case/kunarac
failures. In many instances, a commander’s failure—including one that involves a violation of the law of
war—is handled through administrative or other none judicial means. In more serious cases, a
commander may be charged with criminal dereliction of duty.

In the above case, A is a first lieutenant, which means that he is an officer with executive responsibility
for command. When a blindfolded and handcuffed Taliban fighter is brought into his office he assumes
he belongs to the forces that attacked his soldiers which is not the right as he has not conducted a fair
trial on him to determine his status whether he is a combatant, civilian or even a protected person
under the Geneva Convention. The lieutenant uses a series of threats to get a confession from the
Taliban fighter who remains silent and he signals a guard to start beating the captive with a rubber stick.
Beating of a captive to obtain information is defined as torture under the common article 3 of the
Geneva Convention. The treatment continues for three hours until he is heavily bruised and faints this
amounts to serious injury to the body or health and wilful causing of great suffering and cruel and
inhumane treatment.