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It is a body of International Law assigned to prohibit certain categories of conduct commonly viewed as atrocities and to make the perpetrators of such atrocities accountable.
The main thrust of IHL are as follows:
a. sparing those who do not[1] or no longer[2] directly[3] participate in hostilities;
b. restricting it to the amount necessary to achieve the aim of the conflict, which independently of the causes fought for[4] c
an only be to weaken the military potential of the enemy.
JUS IN BELLO VS. JUS AD BELLUM
A: Jus in Bello is the law that governs the way warfare is conducted. It is purely humanitarian; it seeks to lessen the harm caused by the war itself. Jus ad bellum, seeks to limit the resort to
force between states; sets the criteria that has to be consulted whether states can enter into war or if war is permissible in their current situation.
A: The Geneva Law is a body of rules that is highly devoted for the protection of those involved in armed conflict, which includes their individual rights and duties. The Hague Law, on the
other hand, handles the conduct of hostilities between states. It is designed to regulate the means and methods of warfare, and sets the rights and duties of each state during times of war.
members of armed forces; they take If they have fallen in to enemy hands
part in hostilities (but still must a.) They become prisoners of war (cannot be convicted if they participated in hostilities)
observe IHL) b.) Can be interned until the end of active hostilities
Must be the focus of attacks. c.) May be criminally prosecuted for criminal acts/ war crimes committed before internment
d.) Protected by IHL
If wounded, sick or shipwrecked
If parachuting out of distress
If protected against some means and methods of warfare while fighting.
Conduct of Hostilities:
all other persons other than As civilians, in the hands of the enemy
combatants; they do not take direct
part in hostilities (but still have a.) Do not enjoy prisoner of war status
rights to be respected) b.) May be prosecuted by the detaining state for any acts of violence committed during the conflict; includes war
Never the focus of attacks crimes.
Mere participation is punishable. c.) Rights and treatment during detention are governed by humanitarian law, human rights law, and domestic law.
Against attacks and effects of hostilities.
Conduct of Hostilities
Enjoy immunity of attack; unless they participated in the hostilities
Taking direct part in hostilities: loss of immunity; criminal prosecution under domestic law
Ceased to participate: may regain immunity.
Prohibitions: BOTH combatant and civilians
Taking of hostages
Act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects
protected against direct attack (Threshold Of Harm)
There must be a direct causal link between the act and the harm likely to result either from the act, or from a coordinated military operation of which that act constitutes an integral part
(Direct Causation)
The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (Belligerent Nexus)
RULES PRECAUTIONS
MILITARY OBJECTIVES: Rule 20. Advance Warning. Each party to the conflict must give effective advance
a. by their nature, location, purpose or use make an effective contribution to military warning of attacks which may affect the civilian population, unless circumstances
action, and do not permit.
b. whose partial or total destruction, capture or neutralization, in the circumstances
ruling at the time, offers a definite military advantage. Specific restrictions placed on the warring party in the preparation of an
attack.
The term applied to the inhabitants of People who are gathering or Saboteurs are persons Additional Protocol I defines a mercenary as a person who:
a territory which has not been attempting to gather information in undertaking activities behind
occupied, who on the approach of the territory controlled by an adverse the lines of an adverse Party to a) is specially recruited locally or abroad in order to fight in an
enemy spontaneously take up arms to party through an act undertaken on commit acts of destruction. armed conflict;
resist the invading troops without false pretenses or deliberately in a
having had time to organize clandestine manner. Sabotage is allowed under IHL, b) does, in fact, take a direct part in the hostilities;
themselves into regular armed forces. to the extent that the object of
The definition includes combatants sabotage is a legitimate c) is motivated to take part in the hostilities essentially by the
who wear civilian attire or who wear objective. desire for private gain and, in fact, is promised, by or on behalf
the uniform of the adversary but of a Party to the conflict, material compensation substantially in
excludes combatants who are excess of that promised or paid to combatants of similar ranks
gathering information while wearing and functions in the armed forces of that Party;
their own uniform.
d) is neither a national of a Party to the conflict nor a resident of
territory controlled by a Party to the conflict;
If captured they have a right to be If caught in the act, they may not be Civilian saboteurs or saboteurs In addition, the definition requires evidence that a person
treated as prisoners of war. The leve convicted or sentenced without not wearing uniform do not accused of being a mercenary is
en masse should not be confused with previous trial. receive that protection and risk
resistance movements. being treated as spies. motivated to take part in the hostilities essentially by
the desire for private gain and
PRISONERS OF WAR
The following categories of persons are prisoners of war: Rules governing the treatment and conditions of
. detention of civilian internees under IHL are
a. members of the armed forces of a party to the In particular, they are protected against murder, very similar to those applicable to prisoners of
conflict, including members of militias or torture, as well as cruel, humiliating or degrading war.
volunteer corps forming part of such armed treatment. Those detained for participation in
forces (this includes members of regular armed hostilities are not immune from criminal prosecution The fourth 1949 Geneva Convention and
forces who profess allegiance to a government or under the applicable domestic law for having done so. Additional Protocol I also provide extensive
authority not recognized by the Detaining Power); protection for civilian internees during
b. members of other militias or other volunteer corps international armed conflicts.
that belong to a party to the conflict, provided that The rules protecting prisoners of war (POWs) are
such groups: specific and were first detailed in the 1929 Geneva If justified by imperative reasons of security, a
are under responsible command; Convention. party to the conflict may subject civilians to
have a fixed distinctive sign recognizable at a assigned residence or to internment.
distance;
carry arms openly; and Therefore, internment is a security measure, and
conduct operations according to the law of armed cannot be used as a form of punishment. This
conflict; means that each interned person must be
released as soon as the reasons which
c. civilians who accompany the armed forces provided necessitated his/her internment no longer exist.
they are authorized by the armed force they accompany;
d. members of crews of merchant marine and civilian
aircraft of a party to the conflict who do not benefit from
more favourable treatment under international law;
e. participants in a leve en masse; and
f. the military wounded, sick and shipwrecked who fall
into the hands of an enemy.
(ii) medical personnel of National Red Cross Hence, medical aircraft should not
or Red Crescent Societies and other voluntary carry any equipment intended for the
aid societies duly recognized and authorized collection or transmission of
by a party to the conflict, including the ICRC; intelligence.
CHILDREN WOMEN
International humanitarian law provides general protection for children as persons taking no Like all civilians, women are protected both against abusive treatment by the Party to the
part in hostilities, and special protection as persons who are particularly vulnerable. Moreover, conflict in whose power she finds herself and against effects of hostilities: "A civilian is any
children taking part in hostilities are also protected. person who does not belong to the armed forces" (Article 50, P. 1).
Children shall be the object of special respect and shall be protected against any Under these conditions, they benefit from all the provisions which state the basic
form of indecent assault. The parties to the conflict shall provide them with the care principle of humane treatment, including respect of life and physical and moral
and aid they require, whether because of their age or for any other reason integrity, particularly forbidding coercion, corporal punishment, torture, collective
Children shall be provided with the care and aid they require. penalties, reprisals, pillage and the taking of hostages.
Provide for treatment "without any adverse distinction founded on sex... " It is also
specified that women "shall in all cases benefit by treatment as favorable as that
granted to men"
"Pregnant women and mothers of children under seven years shall benefit by any
preferential treatment to the same extent as the nationals of the State concerned"
(Art. 38, C. IV).
Likewise, "The Occupying Power shall not hinder the application of any preferential
measures... which may have been adopted prior to the occupation in favour of
children under fifteen years, expectant mothers, and mothers of children under seven
years" (Art. 50, C. IV).
PRINCIPLE OF NON-REFOULEMENT
A: is a fundamental principle of international law which forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on
"race, religion, nationality, membership of a particular social group or political opinion" Unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on
certain category of persons, non-refoulement refers to the generic repatriation of people, including refugees into war zones and other disaster locales.
PROHIBITED WEAPONS DURING ARMED CONFLICT
Weapons that are by nature indiscriminate are those that cannot be directed at a military objective or whose effects cannot be limited as required by international humanitarian law. The prohibition of
such weapons is also supported by the general prohibition of indiscriminate attacks.
INDISCRIMINATE WEAPONS:
Weapons that have indiscriminate effects, strike military objectives and civilians indiscriminately or cannot distinguish between military objectives and civilians,
Additional Protocol I prohibits the use of weapons which are of a nature to strike military objectives and civilians or civilian objects without distinction. This prohibition was reaffirmed in
the Statute of the International Criminal Court. It has also been included in other instruments.
This rule is set forth in many military manuals. Violations of this rule constitute an offence under the legislation of several States. This rule is also supported by official statements and
reported practice. This practice includes that of States not, or not at the time, party to Additional Protocol I.
The prohibition of weapons which are by nature indiscriminate is also recalled in numerous resolutions adopted by the UN General Assembly, as well as in some resolutions adopted by the
OAS General Assembly. The rule has also been recalled by several international conferences.
Examples of ruses of war are: a. feigning an intent to negotiate under a flag of truce;
b. feigning surrender;
a. camouflage (natural, paints, nets, smoke); c. feigning incapacitation by wounds or sickness;
b. displays (decoys, feints); d. feigning civilian or non-combatant status;
c. simulations and mock operations; and e. feigning protective status by the use of signs, emblems or uniforms of the United
d. dissemination of false information. Nations or of a neutral or other State not party to the conflict;
f. Making improper use of the emblem of the red cross, red crescent or red
crystal.
SEA WARFARE USE OF RUSE OF WAR SEA WARFARE: PROHIBITION AGAINST PERFIDY
Ruses of war are permitted. Warships and auxiliary vessels, however, are prohibited from Perfidy is prohibited. Acts inviting the confidence of an adversary to lead it to believe
launching an attack whilst flying a false flag, and at all times from actively simulating the status of: that it is entitled to, or is obliged to accord, protection under the rules of international law
applicable in armed conflict, with intent to betray that confidence, constitute perfidy.
(a) hospital ships, small coastal rescue craft or medical transports; Perfidious acts include the launching of an attack while feigning:
(b) vessels on humanitarian missions;
(c) passenger vessels carrying civilian passengers; (a) exempt, civilian, neutral or protected United Nations status;
(d) vessels protected by the United Nations flag; (b) surrender or distress by, e.g., sending a distress signal or by the crew taking to life
(e) vessels guaranteed safe conduct by prior agreement between the parties, including cartel rafts.
vessels;
(f) vessels entitled to be identified by the emblem of the red cross or red crescent; or
(g) vessels engaged in transporting cultural property under special protection.
NAVAL BLOCKADE
Blockade
93. A blockade shall be declared and notified to all belligerents and neutral States.
94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.
95. A blockade must be effective. The question whether a blockade is effective is a question of fact.
96. The force maintaining the blockade may be stationed at a distance determined by military requirements.
97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules
set out in this document.
98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.
99. A blockade must not bar access to the ports and coasts of neutral States.
100. A blockade must be applied impartially to the vessels of all States.
101. The cessation, temporary lifting, re-establishment, extension or other alteration of a blockade must be declared and notified as in paragraphs 93 and 94.
102. The declaration or establishment of a blockade is prohibited if:
(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or
(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.
103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage
of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as
the International Committee of the Red Cross.
104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to
prescribe technical arrangements, including search, under which such passage is permitted.
(b) small craft used for coastal rescue operations and other medical transports;
(c) vessels granted safe conduct by agreement between the belligerent parties including:
(i) cartel vessels, e.g., vessels designated for and engaged in the transport of prisoners of war;
(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the
survival of the civilian population, and vessels engaged in relief actions and rescue operations;
(d) vessels engaged in transporting cultural property under special protection;
(e) passenger vessels when engaged only in carrying civilian passengers;
(f) vessels charged with religious, non-military scientifc or philanthropic missions, vessels collecting scientific data of likely military applications are not protected;
(g) small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection;
(h) vessels designated or adapted exclusively for responding to pollution incidents in the marine environment;
(i) vessels which have surrendered;
(ij) life rafts and life boats
1. International armed conflicts exist whenever there is resort to armed force between two or more States.
2. Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such
groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must
show a minimum of organisation.
IACs are those which oppose "High Contracting Parties", meaning States. An IAC occurs when one or more States have recourse to armed force against another State, regardless of the
reasons or the intensity of this confrontation. Relevant rules of IHL may be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or recognition of the
situation is required. The existence of an IAC, and as a consequence, the possibility to apply International Humanitarian Law to this situation, depends on what actually happens on the
ground.
Non-international armed conflicts, between governmental forces and non-governmental armed groups, or between such groups only. IHL treaty law also establishes a distinction between non-
international armed conflicts in the meaning of common Article 3 of the Geneva Conventions of 1949 and non-international armed conflicts falling within the definition provided in Art. 1 of
Additional Protocol II.
To qualify as NIAC:
First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use
military force against the insurgents, instead of mere police forces.11
Second, non-governmental groups involved in the conflict must be considered as "parties to the conflict", meaning that they possess organized armed forces. This means for example that
these forces have to be under a certain command structure and have the capacity to sustain military operations.12
It is like a mini-Convention within the Conventions as it contains the essential rules of the Geneva Conventions in a condensed format and makes them applicable to conflicts not of an
international character:
It requires humane treatment for all persons in enemy hands, without any adverse distinction. It specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment,
the taking of hostages and unfair trial.
It requires that the wounded, sick and shipwrecked be collected and cared for.
It grants the ICRC the right to offer its services to the parties to the conflict.
It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through so-called special agreements.
It recognizes that the application of these rules does not affect the legal status of the parties to the conflict.
Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. Its full respect is required.
PRINCIPLES OF ICRC
a. HUMANITY
The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavors in its international and national capacity to prevent and
alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship,
co-operation and lasting peace amongst all peoples.
b. IMPARTIALITY
It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavors only to relieve suffering, giving priority to the most urgent cases of distress.
c. NEUTRALITY
In order to continue to enjoy the confidence of all, the Red Cross may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological
nature.
INTERNATIONAL CRIMINAL LAW
Body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable
for their perpetration (local or global).
principally deals with genocide, crimes against humanity, war crimes and crime of aggression
COMPOSITION:
Office of the Prosecutor (OTP)
has four chambers (three Trial Chambers and one
Appeals Chamber)
has 20 permanent judges and 3 ad litem judges
president of the Tribunal is the presiding judge of the
Appeals Chamber
was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002
the Rome Statute was adopted by a vote of 120 to 7, with 21 countries abstaining (China, US and Israel among those in the negative)
as of 1 May 2013, there are 122 states that are parties to the statute at present, the Court has looked into nine situations: the Democratic Republic of the Congo; Uganda; two in the Central
African Republic; Darfur, Sudan; Kenya; Libya; Cte d'Ivoire; and Mali
Main Features
a permanent tribunal
exercise jurisdiction over the most serious crimes of international concern
complementary to national jurisdictions
sits in The Hague, Netherlands (but it may hold sessions elsewhere)
nullum crimen sine lege
nullum poena sine lege
non-applicability of statute of limitations
irrelevance of official capacity
Composition:
Pre-Trial Chamber
at least six (6) judges in the
Chamber; three (3) judges or at least one (1) judge sitting in each Division; confirmation of charges against the defendant/s
Trial Chamber
at least three (3) judges sitting in each Division; trial stage proper
Appeals Chamber
the President and four (4) other judges sitting as one collegial body
Jurisdiction:
Rationae temporis
Rationae Materiae
Rationae loci
Rationae personae
Exercise of Jurisdiction
upon referral by a state party to the Prosecutor;
upon referral by the UN Security Council in accordance with Article VII of the UN Charter; OR no investigation within twelve (12) months from referral
Upon information, the Prosecutor has initiated motu proprio its own investigation
UNABLE:
1) total or substantial collapse of national judicial system;
2) unavailability of its national judicial system;
3) the State is unable to obtain the accused or the necessary evidence and testimony;
4) unable to carry out its proceedings
The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability
of the State genuinely to prosecute.
The person concerned has already been tried for conduct which is the subject of the complaint.
Challenging the Admissibility
prior to confirmation of charges, before the Pre-Trial Chamber
after confirmation of charges, before the Trial Chamber decisions on this matter can be appealed to the Appeals Chamber
Ne Bis In Idem / Non Bis in Idem
same charge before the ICC
same charge before another Court
same charge brought to ICC from another Court unless:
a) purpose of shielding
b) partial and not independent national proceedings
PROSECUTOR V. TADIC PROSECUTOR V. JEAN PAUL PROSECUTOR V. LUBANGA - DYILO PROSECUTOR V. JEAN PIERRE
AKEYASU BEMBA - GOMBO
Tadi was arrested by On April 6, 1994, a plane During the Second Congo War, In 2002, Jean-Pierre Bemba Gombo was
German police in Munich in carrying President Juvnal Lubanga was a military commander and President and Commander-in-Chief of the
February 1994. He faced Habyarimana of Rwanda and "minister of defence" in the pro-Uganda MLC when armed conflict broke out in the
twelve counts of crimes President Cyprien Ntaryamira Congolese Rally for Democracy- CAR. He was also the organisations
against humanity, twelve of Burundi crashed at Kigali Liberation Movement figurehead and source of its funding, goals
counts of grave breaches of airport, killing all on board. and aims. Upon receipt of Patasss
the Geneva Conventions, and Following the deaths of the two request, Bemba immediately deployed
ten counts of violations of Presidents, widespread killings, Under Lubanga's leadership, the largely three MLC battalions totalling around
the customs of war, to all of having both political and ethnic Hema, UPC became one of the main 1,500 men to counter Bozizs rebellion.
which he pleaded not guilty. dimensions, began in Kigali and actors in the Ituri conflict between the
His trial was to be held spread to other parts of Rwanda. Hema and Lendu ethnic groups. It Only a few weeks later, eight MLC
together with Goran seized control of Bunia, capital of the combatants entered a community near
Borovnica's, but Borovnica Rwanda is divided into 11 prefectures, gold-rich Ituri region, in 2002,and P119s home where P23 and his family
went missing in 1995 and each of which is governed by a prefect. demanded that the Congolese lived. The soldiers attacked P23s wife,
was later declared dead. The prefectures are further subdivided government recognise Ituri as an P80, in front of their children. One of the
into communes which are placed under autonomous province.Lubanga was soldiers told her that if she resisted, he
On May 7, 1997, the Trial Chamber II the authority of bourgmestres. The arrested on 13 June 2002 while on a would sleep with her 50 times without
found Tadi guilty on 9 counts and bourgmestre of each commune is mission to Kinshasa but he was released stopping. Then, at gunpoint, P80 was
partially guilty on 2 counts. Tadi and appointed by the President of the ten weeks later in exchange for a raped by three soldiers. P23s
the prosecution appealed on a number Republic, upon the recommendation of kidnapped government minister. granddaughter (aged between 10 and 13
of grounds. One of the arguments the Minister of the Interior. In Rwanda, years old)was dragged outside, where
required the court to determine the bourgmestre is the most powerful Human Rights Watch has accused the UPC, soldiers hit her legs with batons before
whether or not the court was figure in the commune. His de facto under Lubanga's command, of "ethnic they took turns raping her. One of P23s
legitimate in its exercise of authority in the area is significantly massacres, murder, torture, rape and mutilation, daughters was raped by four soldiers in
jurisdiction. greater than that which is conferred upon as well as the recruitment of child soldiers". front of her husband, children, brother and
him de jure. UPC are reported to have destroyed 26 villages mother the fifth soldier refused to rape
Tadi argued that the court in one area, killing at least 350 people and her because she was bleeding. Two more
was illegitimately created As bourgmestre, Jean Paul AKAYESU forcing 60,000 to flee their homes.Human rights of his teenage daughters were raped by
through the United Nations was responsible for maintaining law and organisations claim that at one point Lubanga other soldiers. With family members and
Security Council. His public order in his commune. At least had 3,000 child soldiers between the ages of 8 neighbours looking on, P23 was also
argument was based upon 2000 Tutsis were killed in Taba between and 15. He reportedly ordered every family in attacked and raped by three of the soldiers.
separation of powers. He April 7 and the end of June, 1994, while the area under his control to help the war effort
essentially argued that the he was still in power. The killings in by donating something: money, a cow, or a On 24 May 2008, Bemba was arrested in
Security Council was an Taba were openly committed and so child to join his militia. Belgium. During his trial, 5,229 survivors
executive governmental widespread that, as bourgmestre, were authorised to participate in the
branch and thus did not have Verdict: Although conscripting, proceedings. By January 2010, the ICC
the power to create a judicial Although he had the authority and enlisting and using child soldiers are had received an abundance of evidence on
body. responsibility to do so, Jean Paul separate offenses under the Statute the widespread act of rape, pillaging and
Akayesu never attempted to prevent the (para. 609), in the circumstances of the murder perpetrated by MLC soldiers
ISSUE: Can plea against the killing of Tutsis in the commune in any present case conscription and enlistment
International Tribunal jurisdiction be way or called for assistance from are dealt with together. The offense is Does Bemba Gombo have effective
examined by the International regional or national authorities to quell committed at the moment a child under control?
Tribunal based on the invalidity of its the violence. 15 joins an armed group, with or
establishment by the Security without compulsion (para. 618). Whether a person has effective authority
Council? He knew that the acts of sexual violence, Consent is not a valid defence but the and control rests on that persons material
beatings and murders were being manner in which the child was recruited power to prevent or repress the
Yes. Plea against the International committed and was at times present whether voluntarily or with commission of crimes or to submit the
Tribunal jurisdiction can be examined during their commission. He facilitated compulsion may be taken into account matter to a competent authority. This need
by the International Tribunal based on the commission of the sexual violence, at sentencing (para. 617). not be an exclusive power and multiple
the invalidity of its establishment by beatings and murders by allowing the superiors can be held concurrently
the Security Council. The criteria for sexual violence and beatings and murders Active participation is a broader term that responsible for their subordinates
establishing an International Tribunal to occur on or near the bureau communal includes a greater number of activities than the actions.
includes the establishment in premises. By virtue of his presence notion of direct participation in international
accordance with the proper during the commission of the sexual humanitarian law (para. 627). The ICC quickly noted that Bemba was
international standards, the provision violence, beatings and murders and by President of the MLC and Commander-in
of guarantees of fairness, justice, and failing to prevent the sexual violence, Active participation includes direct and indirect Chief of the ALC during the conflict.
evenhandedness, in full conformity beatings and murders, he encouraged participation; the decisive factor is whether the Acting in those capacities, Bemba
with internationally recognized these activities. support provided by the child exposed him/her possessed a broad range of powers that
human rights instruments. Hence, a to real danger as a potential target. Whether a indicated that he acted as a military
tribunal like the one created in this Issue: Is he Liable for the crime of Rape particular activity constitutes active commander with effective authority and
case must be endowed with primacy (Crime against humanity) participation is to be decided on a case-by-case control over the MLC troops in the CAR.
over national courts. basis (para. 628).
Held: Yes. The Trial Chamber held that He also had direct knowledge that MLC
rape, which it defined as "a physical soldiers were committing widespread rape
invasion of a sexual nature committed on as evidenced by the speech he gave
a person under circumstances which are condemning the brutalising of the
coercive", and sexual assault constitute civilian population in P119 and P23s area.
acts of genocide insofar as they were
committed with the intent to destroy, in
whole or in part, a targeted group, as
such. It found that sexual assault formed
an integral part of the process of
destroying the Tutsi ethnic group and
that the rape was systematic and had
been perpetrated against Tutsi women
only, manifesting the specific intent
required for those acts to constitute
genocide.