WHAT IS INTERNATIONAL CRIMINAL LAW

Introduction:
a. Prohibits certain categories of conduct that are considered to be serious crimes.
b. It also regulates procedures governing investigation, prosecution, and punishment of
those categories of conduct.
c. Also includes laws, procedures and principles relating to modes of liability, defenses,
evidence, court procedure, sentencing, victim participation, witness protection, mutual
legal assistance and cooperation issues.
d. It concerns individuals, rather than states or organisations.

Purpose:
a. To provide justice for the victims.
b. To establish accountability for individual perpetrators.
c. To facilitate restoration of peace.
d. To develop accurate historical records.
e. To deter perpetration of atrocities elsewhere.

What qualifies as international crimes?

a. No definitive list
b. Protection of Peace-aggression
c. Humanitarian Protection during armed conflicts, the regulation of Armed Conflicts, and
the control of weapons.
d. Protection of Fundamental Human Rights-genocide,crimes against humanity, slavery
and related crimes, torture,and unlawful experimentation

Nullum Crimen, Nulla Poena Sine Lege

a. Principle of Legality
b. Enshrined in Article 15 of the ICCPR.
c. Also in Article 22 of the ICC statute
d. No one may be convicted or punished for an act or omission that did not violate a penal
law in existence at the time it was committed.

Ne bis in idem
a. No person should be tried or punished more than once for the same crime.
SOURCES OF INTERNATIONAL CRIMINAL LAW
a. Treaty Law
i. Rome Statute of the International Criminal Court
ii. 1977 Additional Protocol II to the Geneva Conventions (AP II)
iii. Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights)
b. Customary International Law
i. State practice: The state practice must be consistent, uniform and general
among the relevant states, although it does not have to be universal.
ii. Opinio Juris:The state practice must be consistent, uniform and general among
the relevant states, although it does not have to be universal.
c. General Principles of Law
d. Judicial decisions
e. Learned writings

PRINCIPLE OF COMPLEMENTARITY
a. The cornerstone of the Rome Statute system is the principle of complementarity,
whereby the obligation to investigate and prosecute crimes is the responsibility of the
respective State.
b. The Preamble of the Rome Statute recognises that the Court itself is but a last resort for
bringing justice to the victims of genocide, war crimes, and crimes against humanity.
c. Article 17 – issues of admissibility:
i. If it is investigated or prosecuted by the state.
ii. 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.
iii. Person is has already been tried
iv. The case is not of sufficient gravity to justify action by the court.

LEGAL PROCESS IN ICC

3 stages Pre Trial, Trial, and Appeals.
a. Pre Trial:
i. Judges issue warrants of arrest and ensure that there is enough evidence before
a case can go to trial.
ii. Defendant is referred to as suspect (During trial - accused)
iii. Investigation by prosecutor.
iv. Preliminary Examination:
1. Office of the Prosecutor’ (OTP) must conduct a preliminary examination
before investigation to make sure that there is sufficient evidence,
jurisdiction, gravity, and interests of justice.
2. The OTP is one of the four organs of the ICC.
3. Initiated on the basis of a) information sent by individuals or groups,
States, intergovernmental or non-governmental organisations; b) a
referral from a State Party or the United Nations Security Council; or (c) a
 declaration lodged by a State accepting the exercise of jurisdiction by the
Court pursuant to article 12(3) of the Statute.
4. Independent, objective, impartial
v. Investigation:
1. The Office of the Prosecutor will start collecting the necessary evidence
independently, impartially, and objectively
2. The investigation can take as long as needed to gather the required
evidence.
vi. Summons/Warrants:
1. If there is sufficient evidence - prosecutors will request judges to either
issue summons to the suspects to appear to the court voluntarily or issue
arrest warrant.
2. The responsibility to enforce the warrants of arrest remains with the states
as the ICC has no police force.

b. Trial:
i. During the trial the Trial judges hear the evidence from the Prosecutor, Defence,
and the Victims’ lawyers, render a verdict, and if a person is found guilty, the
sentence and decision on reparations.
ii. Victims of crimes have the right to participate in the proceedings and can be
represented by a lawyer
iii. Burden of Proof: Defendant is considered innocent until proven guilty. The
burden of proof lies with the Prosecutor.
c. If a case is closed without a verdict of guilt, it can be reopened if the Prosecutor presents
new evidence.
CRIME OF GENOCIDE
Introduction:
a. ICC’s inclusion of the crime of genocide and its definition is largely inspired by the
Genocide Convention of 1948, the Geneva Convention of 1949 and the application of
the crime of genocide by the *ad hoc* Tribunal in Rwanda.
b. Genocide: For the purpose of this Statute, "genocide" means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:
i. Killing members of the group;
ii. Causing serious bodily or mental harm to members of the group;
iii. Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
iv. Imposing measures intended to prevent births within the group;
v. Forcibly transferring children of the group to another group.
c. Under Article 25(3)(b) of the Statute, anyone who orders, solicits, or induces someone
who committed the acts of genocide, is also guilty of genocide. ie. following illegal orders
of superiors is not a defence to genocide.
d. Intent is essential to be proved to convict a person for genocide.
e. However, this form of intent is very difficult to prove.

Specific Intent:
a. Specific intent is an element of the crime, and requires that the perpetrator clearly
intended the result to be charged.
b. In the case of genocide, the perpetrator must intend that his or her actions will result in
the destruction, in whole or in part, of a protected group.
c. The intent must be present at the moment the acts are committed.
d. Simply to harm the group or discriminate against the group, or even to commit
discriminatory killings cannot be considered to be specific intent.
e. The specific intention of the perpetrator must be “to destroy” the protected group.
f. “To destroy” means the physical and biological destruction of a protected group.
g. Very difficult to find the “evidence of specific intent.” Often it must be inferred from
evidence like official statements and public documents.

Protected Group:
a. National, Ethnic, Racial, Religious group
b. Political groups are excluded from the definitions of targeted groups that could qualify as
genocide. But it can be considered a crime against humanity.
c. The prosecution must prove either that the victim belongs to the targeted group, or that
the perpetrator believed that the victim belonged to the group. However, these groups
are not defined in the conventions.
d. Definitions have emerged from international jurisprudence, which has been relied upon
by the Court.
i. National group: a collection of people who are perceived to share a legal bond
based on common citizenship, coupled with reciprocity of rights and duties.
 ii.Ethnic group: a group whose members share a common language or culture”
iii.Racial group: a group “based on the hereditary physical traits often identified
with a geographic region, irrespective of linguistic, cultural, national or religious
factors.”
iv. Religious groups: a group “whose members share the same religion,
denomination or mode of worship”.
e. Jurisprudence indicates that when determining whether a group is a protected group, it
should be “assessed on a case-by case basis by reference to the objective particulars of
a given social or historical context, and by the subjective perceptions of the
perpetrators.”

Stages of Genocide:
a. Classification: Create distinctions between two groups based on ethnicity, race, religion,
or nationality.
b. Symbolisation: Provide ways to identify the groups.
c. Discrimination: It denies civil rights, voting rights, and citizenship of the group.
d. Dehumanisation: It is the activity that compares the target group with animals, insects, or
diseases.
e. Organisation: Organise in a different manner to perpetrate atrocities against a certain
group.
f. Polarisation: To polarise the target group, the stronger group uses hateful propaganda.
An attempt always acts to create a gap between the two groups.
g. Preparation: In the preparatory step, perpetrators plan for ethnic cleansing, purification,
or counter-terrorism of the targeted group.
h. Persecution: In the persecution stage, members of the target group are separated from
the general populace based on ethnicity and religion, and transferred to ghettos,
concentration camps, or barren regions.
i. Extermination: In this stage, mass killings take place that reflects the perpetrators’
dehumanisation of their victims. This activity is perpetrated by State officials, armed
groups, or the dominant group as a whole.
j. Denial: In this final stage, genocidal perpetrators attempt to deflect blame onto victims,
by hiding or destroying evidence, opposing investigations, and intimidating witnesses. If
they are unsuccessful for suppressing evidence, actively deny their roles in inciting,
conspiring, organizing, and committing genocide.

Rwandan Genocide (ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir)

a. Background
i. Tutsi: Minority population- held most power and land - due to favouritism towards
them when Rwanda was under Belgian rule.
ii. Hutus: Majority population
iii. The Tutsis tribe of people gained a large dominance over the Hutus - By the late
18th century, a single Tutsi-ruled state occupied most of the present day
Rwanda.
iv. 1959 –Rwanda was given independence by Belgium.
 v. Hutu majority won the election - Hutus used power to begin to take rights/power
away from the Tutsi minority.
vi. Violence broke out causing many Tutsis to flee the nation.

b. The Genocide
i. Rwandan Patriotic Front (RPF) created by Paul Kagame to fight for Tutsi rights in
Rwanda
ii. Civil war breaks out as RPF attacks Rwandan army.
iii. Civil war ends as RPF and Hutu govt. try to make peace.
iv. Hutus in the army and govt. begin to gather arms and train militias in preparation
for mass killings.
v. The assassination of Rwandan president became the catalyst of the genocide.
vi. The Rwandan Armed Forces (FAR) and Hutu militia begin killing Tutsis and Hutu
moderates.
vii. There was widespread sexual violence against women and girls during the
genocide.

c. Role of International Organisations

i. The role of the U.N. in the Rwanda genocide was very neutral.
ii. All the nations collectively failed to do anything about the Rwandan Genocide
and remained silent while innocent Rwandans were being slaughtered.
iii. The United States did not even refer to it as a Genocide, but rather as “genocidal
acts” or “killings.

d. Prosecutions
i. November 8, 1994, U.N. establishes International Criminal Tribunal for Rwanda
in Arusha, Tanzania
ii. Sept. 2, 1998: ICTR 1st ever conviction for genocide judgment of Jean-Paul
Akayesu for inciting violence against Tutsis

Rape Characterised as Genocide

a. Prosecutor v. Jean-Paul Akayesu
i. an attempt to define rape within international law.
ii. Highly innovative, since this was the first time that an international criminal
tribunal had formulated a definition of rape, this definition has been used as a
starting point for subsequent international criminal tribunal reflections on how
rape can be categorised.
iii. It provided a clear and progressive definition of rape where none had existed
before in instruments of international law;
iv. It was the first case that involved prosecution of rape as a component of
genocide;
v. It contributed to a growing dialogue about sexual violence in war and discourse
about its role in preventing future abuses of women in conflict zones;
 vi. Most importantly, it moved certain instances of rape toward inclusion within a
category of crimes (genocide, torture, war crimes, crimes against humanity) that
have jus cogens status and are prosecutable on the basis of universal
jurisdiction. In short, crimes that have reached jus cogens status “do not need a
nexus of war and do not require ratification of a treaty” for prosecution.
b. In the case of Rwandan genocide,
i. According to the Trial Chamber, targeted for rape because they were members of
the Tutsi ethnic group.
ii. The rapes were therefore considered as genocide within this context.
WAR CRIMES
Introduction:
a. The term “war crimes” is employed in relation to serious violations of the laws and
customs of war. These are serious violations of international humanitarian law that
endanger protected persons or objects, or breach important values.
b. Its roots are grounded in international humanitarian law, traditionally known as jus in
bello (the law of war).
c. Although international humanitarian law and international criminal law are partly
autonomous fields with distinct objectives, many of the foundations of the laws of war
have been reshaped through criminal adjudication. The roots of humanitarianism can be
traced back to ancient India
d. Those ancient laws, which were enshrined in the code of law of Manu and his Dharma
Sastra (or Manusmriti), established rules for the conduct of rulers towards their peoples.
e. War crimes take place only during an international or internal armed conflict.
f. They can be committed by military and civilians.
g. Large-scale abuses of human rights often occur during war. Serious violations of this
kind are considered war crimes.

Soldier’s Rule:
a. 1. Only engage military objectives. Do not attack civilians or civilian objects.
b. When engaging military objectives, ensure that expected collateral damage is not
excessive to the expected military advantage.
c. Take all feasible precautions to avoid or minimise collateral damage.
d. Do not use unlawful weapons or engage in unlawful methods of warfare.
e. Collect and care for the wounded and dead, whether friend or enemy.
f. Treat all people humanely and respect their fundamental rights. Provide for and do not
harm those who surrender, are detained or are otherwise under your control.
g. Do not take hostages or use human shields.
h. Do not displace the civilian population unless required for their own security or
imperative military reasons. Safeguard any civilian population that is displaced.
i. Respect civilian property. Do not loot or steal.
j. Respect women. Do not commit or permit rape or sexual abuse against anyone.
k. Ensure children have the aid and care they require. Never recruit children into your
armed forces or use them in hostilities.
l. Respect and protect medical personnel and objects, including those bearing the Red
Cross/Red Crescent/Red Crystal, and other symbols of humanitarian agencies.
m. Allow and facilitate impartial humanitarian relief for civilians.
n. Allow and facilitate impartial humanitarian relief for civilians in need.

Rule of Proportionality
a. When engaging military objectives, ensure that expected collateral damage is not
excessive to the expected military advantage.
b. Attacks may only be directed at military objectives (persons or objects)
c. Proportionality Test: Is the attack expected to cause collateral damage which would be
excessive in relation to the concrete and direct military advantage anticipated? If yes, the
attack must not be conducted as planned.
d. Collateral damage is the combination of any injury to civilians, death to civilians or
damage to civilian property resulting from the use of force.
CRIMES AGAINST HUMANITY
Introduction:
a. The concept of crimes against humanity captures some features of genocide, such as
the idea of extermination.
b. Crimes against humanity were codified for the first time in the Charter of the Nuremberg
Tribunal.
c. The UN General Assembly endorsed the concept of CAH in 1946
d. The content of crimes against humanity has evolved since WWII through the
jurisprudence of the ICTY, ICTR and ICC.
e. Crimes against humanity were codified for the first time in the Charter of the Nuremberg
Tribunal, and later endorsed by the UNGA in 1946.
f. The content of crimes against humanity has evolved since WWII through the
jurisprudence of the ICTY, ICTR and ICC.
g. The ICTY and ICTR Statues prohibit the following underlying offences that can constitute
CAH:
i. Murder: is unlawfully and intentionally causing the death of a human being - need
to prove mens rea
ii. Extermination: is killing of persons on a massive scale - need to prove mens rea
same as murder - Extermination must also be collective, and not just directed
towards singled out individuals (except, unlike in genocide, the accused does not
need to intend to destroy a group or part of a group).
iii. Enslavement: the exercise of any or all of the powers attaching to the right of
ownership over a person (actus reus) and the intentional exercise of said powers
(mens rea). [1956 Slavery Convention.] - Can exist without torture - lack of
consent is not an element
1. Sexual slavery is not listed as a separate underlying crime at the ICTY
and ICTR, but it is at the ICC.
iv. Deportation: is the forced displacement of persons by expulsion or other forms of
coercion from the area in which they are lawfully present - men’s rea required -
the displacement must take place under coercion.
1. Deportation consists of the forced displacement of individuals beyond
internationally recognised state borders. In contrast, forcible transfer may
consist of forced displacement within state borders.
v. Imprisonment: the deprivation of liberty of the individual without due process of
law, as part of a widespread or systematic attack directed against a civilian
population.
1. The ICTY has held that the deprivation of liberty must be without due
process of law, and the ICC Statute says that it must be “in violation of
fundamental rules of international law".
vi. Torture: is the infliction, by act or omission, of severe pain or suffering, whether
physical or mental.
vii. Rape
viii. Persecutions on political, racial and religious groups
ix. Other inhumane acts
Elements of Crimes Against Humanity under International Law
A crime against humanity is committed when: the accused commits a prohibited act that is part
of an “attack”, which is "widespread” or “systematic” and “directed against any civilian
population”; and when there is a link or “nexus” between the acts of the accused and the attack.

a. Widespread or Systematic:
i. Widespread or systematic” describes the character of the attack, particularly its
scale.
ii. “Widespread” refers to large-scale nature of an attack, primarily reflected in the
number of victims.
iii. May include a massive, frequent, large-scale action, carried out collectively with
considerable seriousness and directed against a multiplicity of victims.
iv. “Systematic” refers to the organised nature of the acts of violence and the
recurrence of similar criminal conduct on a regular basis.
1. It involves “a pattern or methodical plan” that is “thoroughly organised and
following a regular pattern”.
v. Only one must be proven. So a crime against humanity could be committed as
part of a large-scale attack against a civilian population resulting in many deaths,
or as part of regular and methodical violence or crimes with fewer victims.
vi. Only the attack as a whole, not the accused’s individual acts, must be
widespread or systematic.
vii. Factors to consider when determining whether an attack is “widespread or
systematic” include the: number of criminal acts; existence of criminal patterns;
logistics and resources involved; number of victims; existence of public
statements related to the attacks; existence of a plan or policy targeting the
civilian population; means and methods used in the attack; foreseeability of the
criminal occurrences.

b. Policy/Organisational Requirements
i. Before the ICTY, it has been held that as a matter of customary law that it is not
required to show that the attack was carried out as part of a policy or plan.
ii. However, at the ICC, the attack must be committed “pursuant to or in furtherance
of a State or organisational policy to commit such attack”, and requires that “the
State or organisation actively promote or encourage such an attack against a
civilian population”.
iii. It is not required that the policy be adopted by the highest level of the state;
policies adopted by regional or local state organs could be sufficient.
iv. The non-state organisations can, for the purposes of Article 7(2) of the Rome
Statute, devise and carry out a policy to attack a civilian population.
THE PROSECUTOR VS. THOMAS LUBANGA DYILO
Facts:
a. In May 1997, President Kabila came to power in Zaire and renamed the state the
Democratic Republic of the Congo (DRC). By the time of his assassination in 2001, at
least ten conflicts ravaged the territory, with the majority taking place either in Ituri or in
the district in which it is located.
b. The conflicts in Ituri were initially economically motivated as the area is rich in resources
until they progressed to ethnic hostilities between the principal tribes of the region, the
Hemas and the Lendus. Hema’s were favoured by Belgium during its colonisation of the
area, and remained the landowning and business elite. Following an attempt by Hemas
to evict Lendu inhabitants from their land, armed confrontation broke out. The Hemas
received the support of the Ugandan army (UPDF), whilst the Lendus formed their own
militias.
c. The Union Patriotique du Congolais was created in 2000, with Lubanga as its President.
He remained commander in chief of its armed wing, the Front Patriotique pour la
Libération du Congo (FPLC).
d. Lubanga is alleged to have conscripted, enlisted and used children under the age of 15
in the context of these hostilities.

Issues Involved:
a. Considering that the distinction between conscription and enlistment is whether the act
was committed with compulsion, can a child consent to enlistment?
b. Is there a distinction between ‘active participation’ in hostilities as an element of the
offence of using child soldiers and ‘direct participation’ in hostilities under international
humanitarian law?
c. Does sexual violence against children fall within the scope of active participation?

Specific Legal Rules and Provisions:

a. Articles 8(2)(b)(xxvi), (e)(vii) and 25(3)(a) of the Statute of the International Criminal
Court.

Procedural History:
a. In March 2004, the President of the Democratic Republic of the Congo (DRC) referred
the situation in the State to the Prosecutor of the ICC.
b. On 10 February 2006, Pre-Trial Chamber I issued an arrest warrant for Lubanga for
committing, as co-perpetrator, the war crime of enlisting and conscripting children under
the age of 15 and using them to participate in hostilities as members of the armed group,
the Force Patriotique pour la Libération du Congo.
c. On 16 March 2006, Lubanga was transferred to the ICC. The charges against him were
confirmed on 29 January 2007 and the trial commenced on 26 January 2009.
d. Trial Chamber I delivered its verdict on 14 March 2012.

Court’s Holding and Analysis

a. Although conscripting, enlisting and using child soldiers are separate offences under the
Statute, in the circumstances of the present case conscription and enlistment are dealt
with together. The offence is committed at the moment a child under 15 joins an armed
group, with or without compulsion.
b. Consent is not a valid defence but the manner in which the child was recruited – whether
voluntarily or with compulsion – may be taken into account at sentencing.
c. Active participation is a broader term that includes a greater number of activities than the
notion of direct participation in international humanitarian law. Active participation
includes direct and indirect participation; the decisive factor is whether the support
provided by the child exposes him/her to real danger as a potential target. Whether a
particular activity constitutes active participation is to be decided on a case-by-case
basis.
d. The majority refused to consider whether sexual violence against children can be
included in the scope of using children to actively participate in hostilities due to the
failure of the Prosecution to include it in the charges against the Accused and the Trial
and Appeals Chamber’s decisions not to change the legal characterisation of the facts to
include crimes associated with sexual violence.
e. Trial Chamber I delivered its verdict on sentencing on 10 July 2012, sentencing Lubanga
to 14 years’ imprisonment with credit for the 6 years already served whilst in detention at
the Hague.
THE PROSECUTOR VS. GERMAIN KATANGA
Facts:
a. Between 1999 and 2003, Ituri was the scene of a violent conflict between the Lendu,
Ngiti and Hema ethnic groups. The Hema-dominated Union of Congolese Patriots (UPC)
seized control of Bunia, the district capital, in August 2002. Bogoro was a strategically
important town (where mostly people from the Hema group lived) on the road between
Bunia and the border with Uganda, with a UPC military camp in the middle of the town.
b. On 24 February 2003, hundreds of FNI and FRPI fighters including children under the
age of fifteen circled Bogoro and attacked with machetes, spears, arrows, and heavy
weapons including mortars, rocket-propelled grenades, rocket launchers and
semi-automatic weapons. At least 200 civilians were killed and survivors were
imprisoned in a room filled with corpses, while many women and girls were sexually
enslaved. According to the UN, 173 of the victims were under the age of 18.
c. As reported by the UN, the attack aimed to drive the UPC from Bogoro, but also
appeared to be a reprisal operation against the Hema civilian population for supporting
the UPC; the attack was part of a plan by Lendu and Ngiti rebels to attack predominantly
Hema villages in preparation for an assault on Bunia.
d. Germain Katanga and Mathieu Ngudjolo were believed to be linked to the attack and as
such they were indicted for numerous crimes during the attack, jointly as well as in
person, including:
i. wilful killing as a war crime under article 8(2)(a)(i) of the Statute;
ii. murder as a crime against humanity under article 7(1)(a) of the Statute;
iii. directing an attack against a civilian population as such or against individual
civilians not taking direct part in hostilities, as a war crime under article 8(2)(b)(i)
of the Statute;
iv. destruction of property as a war crime under article 8(2)(b)(xiii) of the Statute;
v. pillaging as a war crime under article 8(2)(b)(xvi) of the Statute, in the knowledge
that this crime would occur in the ordinary course of events;
vi. the war crime of using children under the age of fifteen years to participate
actively in the hostilities, under article 8(2)(b)(xxvi) of the Statute.
vii. sexual slavery as a war crime under article 8(2)(b)(xxii) of the Statute;
viii. sexual slavery as a crime against humanity under article 7(1)(g) of the
ix. Statute;
x. rape as a war crime under article 8(2)(b)(xxii) of the Statute; and
xi. rape as a crime against humanity under article 7(1)(g) of the Statute.

Issues Involved:
a. What was Katanga's role in the attack on Bogoro?
b. What was Katanga's position in the Ngiti militia of Walendu-Bindi collectivité
(community)?
c. Can Katanga be found criminally liable for the alleged crimes?

Specific Legal Rules and Provisions:

Rome Statute of the International Criminal Court:
 a. Individual principal and accessory criminal responsibility (Art. 25(3)(a)/(d)).
b. Crimes against humanity (Art. 7(1)(a), Art.7(1)(g)).
c. War crimes (Art. 8(2)(a), Art. 8(2)(b)(i), Art. 2(b)(xiii), Art. 8(2)(b)(xvi), Art. 2(b)(xxii), Art.
8(2)(b)(xxvi)).

Court’s Holding and Analysis:

a. It was established that on 24 February 2003, Bogoro was attacked by the Ngiti
combatants of Walendu-Bindi collectivité and the Lendu combatants of Bedu-Ezekere
groupement, with reinforcements from the APC. The Chamber has not, however, been
able to affirm that Katanga was present on this day, that he participated in the fighting, or
that he took part in the victory celebrations in the village and/or claimed responsibility for
that victory.
b. The Chamber did find beyond reasonable doubt that Ngiti combatants intentionally
directly targetted the predominantly Hema civilian population of Bogoro on 24 February
2003 and established that numerous crimes against humanity and war crimes - murders,
rapes and destruction of property - had been committed. Furthermore, it was established
that child soldiers were used during the attack. However, no nexus could be identified
indicating that Katanga used these children to participate in the hostilities.
c. Considering Katanga's role in the attack, the Chamber found that he - bearing the titles
President of the Ngiti militia and Commander or Chief of Aveba – was a seasoned and
well-known soldier with undeniable military authority over the collectivité, authority over
administration, oversight, security and public order, and with close ties to priests in the
Walendu-Bindi collectivité. Nevertheless, the effectiveness of his authority over the
supply and distribution of weapons and ammunition to the militia, his duties as facilitator
and negotiator did not, however, allow the Chamber to find beyond reasonable doubt
that Katanga had effective hierarchical power over all the commanders and combatants
of the Ngiti militia in Walendu-Bindi collectivité.
d. Although Katanga's individual responsibility as principal perpetrator could, as such, not
be vested, the Chamber did find him responsible as an accessory to a number of the
crimes. Since he had not only been part of the attacking group which had the common
purpose of eliminating the Hema population of Bogoro but also significantly (through
logistical aid, providing weapons and transportation, enabling the militia to operate) and
intentionally contributed to the commission of the crimes, knowing of the group's intent,
he was found guilty of one count of crime against humanity (murder) and four counts of
war crimes (murder, attacking a civilian population, destruction of property and pillaging).
The Chamber acquitted him of the other charges that he was facing.
e. The Court sentenced Katanga to 12 years' imprisonment with credit for time served in
the ICC's detention centre, approximately 7 years.
THE PROSECUTOR VS. AHMAD AL FAQI AL-MAHADI
Facts:
a. Al Mahdi was a member of Ansar Dine, an Islamist group whose aim is to dictate sharia
law all over Mali. Ansar Dine joined a rebellion in northern Mali led by the National
Movement for the Liberation of Azward (MNLA) in early 2012.
b. In April of the same year, Ansar Dine gained control of Timbuktu and established in
conjunction with Al Qaeda in the Islamic Maghreb the Hisbah, a morality brigade. Al
Mahdi, who has a reputation as an expert in religious matters, was appointed head of
the Hisbah.
c. During the occupation, the Hisbah destroyed nine mausoleums and one mosque in
Timbuktu which they perceived as a visible vice. These buildings were cherished by the
community, were used for the practice of religion, and are considered an important part
of Timbuktu's historical heritage. Hence, these buildings embodied the identity of the city,
which is also known as the “city of 333 Saints“. The buildings were designated as a part
of the national cultural heritage, even named a UNESCO World Heritage site.
d. Al Mahdi oversaw these attacks as the head of the Hisbah, used the men from the
brigade, supervised other attackers who had come to participate in the destruction,
managed financial and material aspects of the attack, was present at all of the sites that
were attacked for moral support and to give instructions, participated personally in the
destruction of at least five sites, and was responsible for the justification given to
journalists.
e. Furthermore, Al Mahdi acted with the knowledge that the targeted buildings were
dedicated to religion, had historical importance, and were non-military objects, which is
proven by his recordings during the destruction of one of the sites.

Findings of the Court:

a. Al Mahdi was charged under Article 8 (2)(e)(iv) of the Rome Statute (lex specialis to
Article 8 (2)(e)(xii)), which punishes "intentionally directing attacks against buildings
dedicated to religion, education, art, science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are collected, provided they are not
military objects". Because it was the first case in which the court applied Article 8
(2)(e)(iv), it wanted to focus on the interpretation of the crime and its elements.
b. Firstly, Al Mahdi and the attackers accompanying him directed an attack on the sites,
resulting in destruction or significant damage. The court clarified that the element of
"directing an attack" encompasses any act of violence against protected objects.
c. Secondly, the chamber qualifies the present buildings of both religious and historical
importance, because of their role in the cultural life in Timbuktu and the status of nine as
UNESCO World Heritage sites.
d. Thirdly, there is no doubt left that Al Mahdi used the attacks as an affront to the values
associated with these buildings.
e. Fourthly, the chamber was confident that these actions took place in the context of and
were associated with a non-international conflict between Malian Government forces and
groups including Ansar Dine.
 f. Emphasising the direct participation in many incidents and the role as a media
spokesperson in justifying the attacks, the chamber was satisfied that Al Mahdi meets
the subjective elements of co-perpetration (Article 25 (3)(a)).

Significance of the Case:

This decision is of particular significance since it constitutes the first international prosecution
exclusively focused on the war crime of destroying cultural heritage. The ruling has been
celebrated as a critical step towards ending impunity for the deliberate destruction of cultural
heritage, a practice that has increased in frequency and is often a deliberate strategy to promote
persecution and cultural cleansing.
PROSECUTOR V. JEAN-PAUL AKAYESU
Facts:
a. The Accused, Jean-Paul Akayesu, was the mayor of Taba, Rwanda.