DEFENCE S OUTLINE OF SUBMISSIONS

Transcription

1 INTERNATIONAL TRIBUNAL FOR CAPULETA AND MONTAGUIA BETWEEN: THE PROSECUTOR and PETRO ESCALUS AND MICHAEL ABRAHAM DEFENCE S OUTLINE OF SUBMISSIONS SENIOR COUNSEL JUNIOR COUNSEL James Hogan Harrie Bantick Summary of Submissions: 1 The Tribunal has the jurisdiction to hear and decide the present matter. 2 The treatment experienced by the detainees at the Livna Camp does not meet the thresholds for inhuman treatment, wilfully inflicted great suffering, or serious injury to body and health under Articles 4(b) and 4(c) of the Statute. 3 In the alternative, Commander Escalus is not criminally responsible for the crimes committed at the Livna Camp within the meaning of the Statute. 4 The elements of the crime contained in Article 5(d) of the Statute and Article 57 of Additional Protocol I are not satisfied by the attack on the Amarga Factory. 5 In the alternative, Colonel Abraham is not criminally responsible for the attack on the Amarga Factory within the meaning of the Statute. Furthermore, if criminal responsibility is established, then justice requires a mitigation of punishment under Article 10(4) of the Statute.

2 Submission 1 Jurisdiction of the Tribunal 1 The Defence accepts the jurisdiction of the International Tribunal for Capuleta and Montaguia ( the Tribunal ) to hear and decide the present matter: Prosecutor v Duško Tadić (Appeals Chamber, Jurisdiction) IT-94-1-AR72, ( Tadić Jurisdictional Appeal ), [65]-[70]. Submission 2 The Escalus Indictment Underlying Crime 2 The treatment experienced by the detainees at the Livna Camp does not meet the thresholds for inhuman treatment, wilfully inflicted great suffering, or serious injury to body and health under Articles 4(b) and 4(c) of the Statute. 2.1 Inhuman treatment involves the infliction of severe physical or mental pain or suffering or acts that [cause] serious mental or physical suffering or injury or [constitute] a serious attack on human dignity : ICC Elements of Crimes, Article 8(2)(a)(ii)-2; Prosecutor v Delalić et al (Trial Chamber) IT T ( Delalić Trial ), [516]-[544]; Prosecutor v Kordić & Čerkez (Trial Chamber) IT-95-14/2-T ( Kordić & Čerkez Trial ), [256]. 2.2 Such treatment, when done intentionally, is typically (but not always) equivalent to wilfully causing great suffering or serious injury to body or health for the purposes of Article 4(c): ICC Elements of Crimes, Articles 8(2)(a)(ii)-2, 8(2)(a)(iii); Geneva Convention IV, Article 147; Delalić Trial, [506]-[511]; Kordić & Čerkez Trial, [244]-[245]. 2.3 The wording of the Statute and the previous application of these offences in other criminal tribunals insist on a strict reading of Articles 4(b) and 4(c): Delalić Trial [24]-[26], [158]- [171], [506]-[511], [516]-[544]; Prosecutor v Thomir Blaškić (Appeals Chamber) IT A ( Blaškić Appeal ) [576]-[578]; Kordić & Čerkez Trial, [773]-[802]. 2.4 The treatment of the detainees at the Livna Camp did not amount to inhuman treatment, great suffering, or serious injury to body and health for the purposes of Article 4 of the Statute The living conditions at the Livna Camp, while poor, did not qualify as inhuman treatment or impose great suffering for the purposes of the Statute Forced labour does not automatically qualify as inhuman treatment or the imposition of great suffering or serious injury, and the circumstances of the labour at the Livna Camp did not meet the thresholds required under Articles 4(b) and 4(c): Commentary to Geneva Convention III, 266-9; Commentary to Geneva Convention IV, 293-8; Geneva Convention IV, Article 51; Blaškić Appeal, [593]-[597] The level of injury and mistreatment suffered by the detainees during the digging of the trenches, while deplorable, does not meet the requisite thresholds for great suffering or serious injury to body or health under international humanitarian law: Tadić Jurisdictional Appeal, [94]-[95]. 1

3 Submission 3 The Escalus Indictment Attribution of Responsibility 3 In the alternative, Commander Escalus is not criminally responsible under Articles 10(3), 12(a), or 12(b). 3.1 Commander Escalus is not criminally responsible for the acts of the Military Police at the Livna Camp as a superior under Article 10(3) The relationship between Commander Escalus and the Military Police stationed at the Livna Camp did not constitute a superior-subordinate relationship: Prosecutor v Ljube Boškoski & Johan Tarčulovski (Trial Chamber) IT T ( Boškoski & Tarčulovski Trial ), [404]-[411]; Prosecutor v Mrkšić et al. (Trial Chamber) IT-95-13/1 ( Mrkšić Trial), [557]-[561] In the alternative, Commander Escalus neither know, nor had reason to know, that the Military Police at the Livna Camp were committing violations of Articles 4(b) and 4(c) under the Statute: Boškoski & Tarčulovski Trial, [412]-[414]; Mrkšić Trial, [562]- [564] In the alternative, Commander Escalus took the necessary and reasonable measures expected of his position to prevent the lesser degree of mistreatment of which he was aware: Boškoski & Tarčulovski Trial, [415]-[418]; Mrkšić Trial, [565]-[568]; Blaškić Appeal, [70]-[77]. 3.2 Furthermore, Commander Escalus is not criminally responsible for the acts of the Military Police as a military commander under Article 12(a) Commander Escalus did not have effective command and control over the Military Police stationed at the Livna Camp: Boškoski & Tarčulovski Trial, [404]-[411]; Mrkšić Trial, [557]-[561]; Prosecutor v Milutinović et al (Trial Chamber) IT T ( Milutinović Trial ), [117]-[118] In the alternative, Commander Escalus neither knew nor should have known of the crimes committed by the Military Police: Boškoski & Tarčulovski Trial, [412]-[414]; Mrkšić Trial, [562]-[564]; Milutinović Trial, [119]-[120] In the alternative, Commander Escalus took all necessary and reasonable measures within his power to prevent or repress the mistreatment and to submit the matter to the competent authorities for investigation and prosecution: Boškoski & Tarčulovski Trial, [415]-[418]; Mrkšić Trial, [565]-[568]; Blaškić Appeal, [70]-[77]; Additional Protocol I, Article 87(1). 3.3 Lastly, Commander Escalus is not criminally responsible for the acts of Military Police for the purposes of Article 12(b) Commander Escalus neither knew, nor consciously disregarded, the information that indicated his subordinates were committing crimes under the Statute: Prosecutor v Kayishema et al (Trial Chamber) ICTR-95-1 ( Kayishema Trial ) [225]-[228]; 2

4 Boškoski & Tarčulovski Trial, [412]-[418]; Mrkšić Trial, [562]-[564]; Milutinović Trial, [119]-[120] In the alternative, these crimes concerned activities outside his effective control: Boškoski & Tarčulovski Trial, [404]-[411]; Mrkšić Trial, [559]-[561]; Milutinović Trial, [117]-[118] In the alternative, Commander Escalus took all necessary and reasonable measures within his power to prevent or repress the committed mistreatment and to submit the matter to the competent authorities for investigation and prosecution: Boškoski & Tarčulovski Trial, [415]-[418]; Mrkšić Trial, [565]-[568]; Blaškić Appeal, [70]-[77]; Additional Protocol I, Article 87(1). Submission 4 The Abraham Indictment Underlying Crime 4 The elements of the crime contained in Article 5(d) of the Statute and Article 57 of Additional Protocol I are not satisfied by the attack on the Amarga Factory. 4.1 The bombing was a proportionate attack against a legitimate military objective The immense and singular nature, location, purpose and use of the factory to the conflict designated it as a legitimate military objective, whose total or partial destruction offered a direct and concrete overall military advantage in the ruling circumstances: Additional Protocol I, Article 52(2); Blaškić Appeal, [333]; Prosecutor v Stanislav Galić (Trial Chamber) IT T ('Galić Trial'), [51] The bombing was a surprise attack, such that the circumstances did not permit effective advance warning to be given of the attack and its potential civilian impact: Additional Protocol I, Article 57(2)(c) No choice between objectives existed: Additional Protocol I, Article 57(3) The anticipated incidental civilian death was not clearly excessive in relation to that concrete and direct overall military advantage anticipated: Additional Protocol I, Article 57(2)(a)(iii); Prosecutor v Boškoski & Tarčulovski (Appeals Chamber) IT A ('Boškoski & Tarčulovski Appeal'), [46]; Prosecutor v Milan Martić, (Trial Chamber) IT T ('Martić Trial'), [69]; Prosecutor v Stanislav Galić (Appeals Chamber) IT A ('Galić Appeal'), [190] Proportionality is determined by examining whether a reasonably well informed person in the perpetrator's circumstances, making reasonable use of the information available to them, could have expected excessive civilian casualties to result from the attack: Galić Trial, [58] Where legitimate military objectives are proportionately attacked, and expected incidental civilian losses are not clearly excessive in relation to the concrete and direct military advantage anticipated, the action is not unlawful: Additional Protocol I, Article 51(5)(b); Public Committee against Torture in Israel et al v Government of Israel et al Judgment (December ) 3

5 ('Israel Judgment'), [42]; Martić Trial, [69]; Galić Appeal, [190]; Prosecutor v Kupreškić et al (Trial Chamber) IT-95-16, [522]; Prosecutor v Hadžihasanović et al (Trial Chamber) IT T, [45]; Blaškić Appeal, [333] While an assessment of proportionality contains subjective elements, a degree of objective guidance may be derived from the terminology of the Statute text Proportionality assessment must be applied to the anticipated calculus between military advantage and incidental civilian loss, judged from the perpetrator s perspective at the relevant time of attack, and is not assessed on the basis of hindsight: Additional Protocol I, Article 57; Galić Trial, [58]. 4.2 Furthermore, proportionality only refers to incidental civilian loss of life or injury The protection of civilians under IHL may cease entirely, or be reduced or suspended, where (i) incidental civilian losses are unavoidable and not disproportionate to the attack of a legitimate military objective conferring a concrete and direct military advantage; or (ii) civilians abuse their rights: Kupreškić Trial [522]; Galić Trial, [50] Civilian protection under IHL only persists as long as those civilians do not directly participate in hostilities ( DPH ): Additional Protocol I, Article 51(3); Juan Carlos Abella v Argentina, Case , Report No. 55/97, Inter.Am C.H.R., OEA/Ser.L./V/II/95 Doc. 7 ('Abella Case'), [178] Voluntary human shielding has been held to constitute DPH and remove protected status: Israel Judgment, [36]; Prosecutor v Radovan Karadžić (Trial Chamber) IT-95-5/18-T, [526] distinguished Other war-sustaining activities may also result in harm reaching the DPH threshold: USA v Salim Ahmed Hamdan, US Military Commission, 19 December 2007, Lawfully targetable combatants may be identified, inter alia, by the open carry of weapons and their activities: Additional Protocol I, Article 44(3), 50; Prosecutor v Dragomir Milošević (Trial Chamber) IT-98-29/1-T ( Milošević Trial ) [946]; Galić Trial [48], [50] All feasible precautions were taken to confirm that the factory was a legitimate military objective, and that the attack would not be expected to cause excessive incidental civilian death in relation to the concrete and direct overall military advantage anticipated: Additional Protocol I, Article 52, 57(2); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, Article 3(10); Abella Case, [178]. 4

6 Submission 5 The Abraham Indictment Attribution of Responsibility 5 In the alternative, Colonel Abraham is not criminally responsible under Article 10(1). 5.1 Colonel Abraham did not act with the requisite mens rea, as he neither knew, nor had reason to know, that the consequences of the attack would likely form a violation of IHL under Article 5(d) of the Statute: Blaškić Appeal, [42], [468]; Galić Trial, [172] Colonel Abraham took all feasible precautions to verify that the Amarga Factory was a legitimate military objective, and that the attack would not be expected to cause excessive incidental civilian death in relation to the concrete and direct overall military advantage anticipated: Additional Protocol I, Article 57(2) Taking all feasible precautions before attack militates against a positive finding of the requisite mens rea beyond reasonable doubt: Galić Trial, [54]; Prosecutor v Prlić et al (Trial Chamber) IT T, [192]; Blaškić Appeal [42]. 5.2 In the alternative, justice requires mitigation under Article 10(4) Obeying an order to commit a war crime may be taken into account in mitigation of punishment: Prosecutor v Drazen Erdemović (Trial Chamber) IT Tbis, 17; Prosecutor v Abilio Soares, Case 01/PID.HAM/AD.Hoc/20002/ph.JKT.PST, Indonesian Ad Hoc Tribunal; Rome Statute of the International Criminal Court, Article 33. So submits the Counsel for the Defence on this day the 3 rd of October 2017: 5

7 DEFENCE CASE LIST Juan Carlos Abella v Argentina, Case , Report No. 55/97, Inter.Am. C.H.R., OEA/Ser.L./V/II/.95 Doc. 7 Prosecutor v Abilio Soares, Case 01/PID.HAM/AD.Hoc/20002/ph.JKT.PST, Indonesian Ad Hoc Tribunal Prosecutor v Delalić et al (Trial Chamber) IT T Prosecutor v Dragan Nikolić (Appeals Chamber) IT-94-2-AR73 Prosecutor v Drazen Erdemović (Trial Chamber) IT Tbis Prosecutor v Dragomir Milošević (Trial Chamber) IT-98-29/1-T Prosecutor v Duško Tadić (Appeals Chamber, Jurisdiction) IT-94-1-AR72 Prosecutor v Enver Hadžihasanović et al (Trial Chamber) Case No IT T Prosecutor v Kordić & Čerkez (Trial Chamber) IT-95-14/2-T Prosecutor v Krnojelac (Trial Chamber) IT T Prosecutor v Kupreškić et al (Trial Chamber) Case No IT Prosecutor v Ljube Boškoski & Johan Tarčulovski (Appeals Chamber) IT A Prosecutor v Ljube Boškoski & Johan Tarčulovski (Trial Chamber) IT T Prosecutor v Milan Martić (Trial Chamber) IT T Prosecutor v Mile Mrkšić (Trial Chamber) IT-95-13/1-T Prosecutor v Milutinović et al (Trial Chamber) IT T Prosecutor v Ntagerura et al (Appeals Chamber) ICTR A Prosecutor v Prlić et al (Trial Chamber) IT T Prosecutor v Radovan Karadžić (Trial Chamber) IT-95-5/18-T Prosecutor v Sefer Halilović (Appeals Chamber) IT A Prosecutor v Stanislav Galić (Appeals Chamber) IT A Prosecutor v Stanislav Galić (Trial Chamber) IT T Prosecutor v Thomir Blaškić (Appeals Chamber) IT A Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices Public Committee against Torture in Israel et al v Government of Israel et al Judgment (December 13, 2006) USA v Salim Ahmed Hamdan, US Military Commission, 19 December