THERE IS SUBSTANTIAL GROUND TO INDICT GEN. HASSAN AMIR OF THE WAR

CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST PERSONNEL,

INSTALLATIONS, MATERIAL, UNITS OR VEHICLES INVOLVED IN A

PEACEKEEPING MISSION BY COMMISSION THROUGH ANOTHER.

Under the ICC Statute, the war crime of intentionally directing attack has the following

objective elements, (1) the perpetrator directed an attack, (2) The object of the attack was

personnel, installations, material, units or vehicles involved in a humanitarian assistance or

peacekeeping mission, (3) Such personnel, installations, material, units or vehicles were entitled

to that protection given to civilians or civilian objects under the international law of armed

conflict.

1. ALL THE ELEMENTS OF THE WAR CRIME ARE PRESENT.

a. The ADF directed an attack to the ISSF Compound

Thewar crime ofattacking civilians, as in the case of the crime of attacking peacekeepers,

does not require any harmful impact on the civilian population or on the individual civilians

targeted by the attack, and is committed by the merelaunchingoftheattackagainstacivilian

populationorindividualciviliansnottaking directpartinhostilities,whohavenotfallenyetintothehands

oftheattackingparty.1 The ADF, in pursuit of attacking ALA bases launched attacks in civilian

areas near the ISSF Compound on the morning of 15 September, 2015. One hundred identified

ADF soldiers attacked the ISSF base which resulted to the killing of eight ISSF personnel and

wounded twenty.2 A press statement3 is given by an ISSF soldier that the first rocket hit them

while preparing for dinner hence unguarded and ill-equipped against any act of violence against

them.

Furthermore, the doctrine of Distinction4 provides that parties to the conflict must at all

times distinguish between the civilian population and combatants in order to spare the civilian

populations as a whole, nor individual civilians may be attacked. Attacks may be directed solely

1 TheProtectionofPeacekeepersandInternationalCriminalLaw: LegalChallengesandBroaderProtection page 595 Alice Gadler https://www.germanlawjournal.com/pdfs/Vol11-No6/PDF_Vol_11_No_06_585-608_Alice_Gadler.pdf2 Facts¶15-163 Facts ¶174 Module 8 War Crimes

against military objectives including combatants.But in contrary, the attack mde by ADF made

no distinction whether it would prejudice civilian areas and injure civilians themselves.

b. The ISSF is a peacekeeping mission in accordance to the charter of the United

Nations

Peacekeeping is a technique designed to preserve the peace, however fragile, where

fighting has been halted, and to assist in implementing agreements achieved by the peacemakers.

Over the years, peacekeeping has evolved from a primarily military model of observing cease-

fires and the separation of forces after inter-state wars, to incorporate a complex mode of many

elements – military, police and civilian – working together to help lay the foundations for

sustainable peace.5

The three elements6 , consent of the parties, impartiality and lack of force used, necessary

to prove that an organization is a peacekeeping mission are present in this case.

Consent

The humanitarian situation in Alin summoned international attention resulting to the decision of

the UN Secretary- General to call all the parties in Alin to exercise their power of restraints 7.

President Aflan consented on the presence of the International Security Support Force when it

announced the compliance of the government with the Resolution X issued by the Security

Council acting under Chapter VII of the Charter of the United Nations. It allows the

establishment of ISSF base in Astor. 8

Impartiality

The peacekeeping force is to remain impartial in their dealings with the parties, which should not

be confused with absolute neutrality. This impartiality must involve the “adherence to the

principles of the Charter and the objectives of a mandate. 9The ISSF, as provided by the

Resolution X, was mandated to protect civilians and civilian populated areas under threat of

5 Peacekeeping Principles and Guidelines, p. 18.6 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon Augustine Gbao, Judgment ¶2257 Facts ¶128 Facts ¶139 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon Augustine Gbao, Judgment ¶227

attack in Alin, and maintain security. 10 It is actually consists of Military Observers Unit (MOU)

A Civilian Police Force (CPU), and a Protection Force Unit (PFU).11 Throughout the outbreak,

the ISSF was merely protecting the civilian areas which were also being attack by ADF forces.

Upon the first attack made in the civilian area near ISSF compound, the ISSF immediately

requested the cessation of the attack but it went unheeded. Furthermore, before the occurrence of

the attack on September 15, 2013, the ISSF’s PFU had several confrontations with ADF units as

the military group was firing at areas where civilians were concentrated.12 Any offense made by

ISSF were only made to protect the civilian areas and to maintain security, in compliance with

the mandate of Resolution X.

Non- use of force except in self- defence

The peacekeepers are only authorized to use force in self-defence. It is now settled law

that the concept of self-defence for these missions has evolved to include the “right to resist

attempts by forceful means to prevent the peacekeeping operation from discharging its duties

under the mandate of the Security Council.13 A request by the ISSF for the cessation of the attack

of the military to the civilian area near their compound went unheeded which resulted to the

firing of the anti- aircraft machineguns at the fighter jets from the ISSF compound. This move

made by the ISSF could only be considered as an act of self- defense for the protection of the

population and of their base showing their eagerness to put a stop on the attack being made by

the ADF.

c. The ISSF is entitled to that protection given to civilians or civilian objects under

the international law of armed conflict.

As found and established above, the ISSF is only allowed to use force necessary for self-

defense, and in order to protect the civilian population under the threat of attack of the ADF. To

ensure the protection and security of the civilians, the ISSF was divided into several groups

which has their distinct duties particularly. Accordingly, the CPU, composed of merely 80

10 Facts ¶1211 Facts ¶1312 Facts ¶1413 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon Augustine Gbao, Judgment ¶228

members and mandated to maintain public security was the only group armed with light weapons 14which shows that ISSF is well aware of the fact that they are there merely to ensure safety and

security of the populace and not to use heavy weaponry, and instead turn to light ones in case the

necessity arose.

No evidence can be deduced that ISSF directly took part on the hostilities or used force

beyond self- defence. On the contrary, the evidence indicates that, when faced with hostility,

ISSF personnel will retaliate only after attacks were made against the civilian population. Never

did they initiate any attack against the ADF. Again, a witness from the ISF testified in press that

they were just preparing for dinner when the first rocket hit them showing lack of initiative to

fight from their camp. 15

Mens Rea

Mens rea for purposes of prosecutions in the ICC is based on the civil law distinction

between dolus directus , dolus indirectus and dolus eventualis. Dolus directus is present when the

perpetrator foresees the harmful consequences of the criminal act and wants to bring about those

consequences.16In the Lubanga case, PTC I asserted that reference to the intention and

knowledge in a conjunctive way requires the existence of a volitional element on the part of the

suspect. The volitional element refers first to situations in which the suspect (i) knows that his

acts or omissions will materialize the material elements of the crime at issue; and (ii) undertakes

these acts or omissions with the concrete intention to bring about the material elements of the

crime.17

The perpetrators under the authority of Gen. Amir upon the attack to the civilian area

suspected to be ALA bases foresees the harmful consequence of damaging and attacking the

ISSF Compound. The attack is an act of retaliation by the perpetrators against ISSF when the

14 Facts, ¶ 1315 Facts, ¶15, 21

16 Johan Van Der Vyver The International Criminal Court And The Concept Of Mens Rea In International Criminal

Law

17 The Diversification and Fragmentation of International Law edited by Larisssa Van de Herick and Carsten Stahn https: // books .google.com.ph/books?id=NxMszJ6x81cC&pg=PA506&lpg=PA506&dq=dolus+indirectus+rape&sour ce=bl&ots=wgUFrEnnkY&sig=IiKjMJzu1Pd F_yJ1iuwbWFVjlPg&hl=en& sa=X&ve d=0CC8Q6AEwA2oVChMInLiW lM72xgIVCiSOCh1dzg_X#v=onepage&q&f=false

latter fired back after the ADFs attack on the civilian area thereby establishing the intent to make

such.18

2. GENERAL HASSAN AMIR SHOULD BE INDICTED ON THE BASIS OF

INDIVIDUAL CRIMINAL LIABILITY

Under Art. 25 (3)(a) of the ICC Statute, the “perpetrator behind the perpetrator liability” is

based on control on hierarchal organization 19comprising sufficient fungible subordinates

ensuring automatic compliance with the leader’s will.20 The combination of co- perpetration

based on joint control and indirect perpetration through other persons is a mode of liability that is

best suited for the cases of ‘senior leaders’21. In this form of participation, the ‘perpetrator by

means’ holds a ‘superior position’.22

The objective requirements common to both co-perpetration (or "direct" co-perpetration) and

indirect co-perpetration based on the notion of joint control over the crime are: (a) the existence

of an agreement or common plan between two or more persons; and (b) the co-ordinated

essential contribution by each co- perpetrator resulting in the realization of the objective element

of the crime.

Existence of an agreement of a common plan can be inferred from the alleged co-

ordinated essential contribution of General Amir resulting in the realization of the

objective elements of the crime.

The existence of an agreement or common plan need not to be explicit arid "can be inferred

from the subsequent concerted action of the co-perpetrators.23

After the instruction of Gen. Amir to Colonel Adada on 14 June 2013 to always stay vigilant

in the fight against terrorists and always be pro- active, there were several raids committed by

18 Facts, ¶1519 Antonio Cassesse, Cassesse’s International Criminal Law (3rd edn, OUP 2008) 178; Kai Ambos, Treatise on International Criminal Law Volume 1; Foundations and General Part (OUP 2013) page 159 20 Katanga (n15), ¶51121 Ibid, ¶49222 Gerhard Werle,Principles of International Criminal Law (TM, Asser Press 2005) 12323 Situation In Darfur, Sudan In The Case Of The Prosecutor V. Bahar Idriss Abu Garda Pre Trial Chamber I February 8, 2010¶180

ADF soldiers in their pursuit of ALA members. 24Subsequent actions by the troops and Gen.

Amir together with Colonel Adada show the common plan of making the eliminations of

terrorists and ISSF in the country. After the encounter in the morning where civilian areas

suspected to be ALA bases where directly attacked in search of ALA members, one hundred

identified ADF soldiers attacked the ISSF base itself despite the previous request of ISSF to Gen.

Amir to cede the attacks25 Hence, Amir is aware of the fact that what they are attacking where

civilian areas and the ISSF base but they still continue on their attack. After the attack, the

presence of these high ranking officials were spotted, Colonel Adada outside the compound

while the attack is going on26, and Gen. Amir supervising ADF operations during or after the said

attack. 27 The subsequent declaration of President Aflan of the resentment 28with the international

force strengthened the conclusion that they want to remove ISSF in the country. Hence, Amir’s

words and subsequent actions and supervision resulted to the objective of attacking ISSF

compound.

Herein, General Hassan Amir is the head of the Alini Defense Force (ADF) since1980,29 and

thus he had control over the crimes committed by his troops as a result of his authority over his

military organization30.

The perpetration by means presupposes that the person who commits the crime

(intermediary) can be used as an instrument or tool by the indirect perpetrator as the master-mind

or "individual in the background"31. He or she is normally an innocent agent, not responsible for

the criminal act. The perpetrator by means is also considered a principal at common law3216.

However, especially in the field of "macrocriminality", i.e., systematic or mass criminality

organized, supported or tolerated by the state, the direct perpetrator or executor normally

24 Facts, ¶1125 Facts, ¶1526 Facts, ¶1727 Facts,¶1928 Facta, ¶ 2029 Facts, ¶ 130 Prosecutor vs Bemba (Decision on the Prosecutor’s Application for a Warrant of Arrest) ICC- 01- /05-01/08, P-T Ch III (10 June 2008) ¶7831 See generally for perpetration by means G. Fletcher, supra note 6, 197-200; H.-H. Jescheck/Th.Weigend, Strafrecht. Allgemeiner Teil § 62, 662 et seq. (5th ed. 1996). 32 See comment to Model Penal Code, supra note 13, § 2.06.

performs the act with the necessary mens rea and is fully aware of its illegality. The principal

dominates the direct perpetrators by way of a hierarchical organizational structure.

The ADF Commander in Orkan, Colonel Adada, who is a popular figure among his forces,

reported to General Amir and took instructions from him directly. 33Such fact establishes the

authority and hierarchial ascendancy of General Amir to Colonel Adada and to the latter’s troop.

During a staff meeting in Orkan, where Colonel Adada was present, Gen. Amir demanded that

measures be taken to end the illegal occupation of the ISSF in the country.34

Hence, in the light of these, Gen. Amir is criminally responsible and must be indicted under

Art. 25(3)(a) of the ICC Rome Statute.

33 Facts, ¶634 Facts, ¶21