The ICTY Statue

In 2004, the government of the Democratic Republic of the Congo (DRC) referred the DRC situation to the international criminalcourt ICC. A few months ago, a bench of the ICC issued an arrest warrant for Callixte Mbarushimana, the Executive Secretary of the Democratic Forces for the Liberation of Rwanda FDLR and member of the FDLR Steering Committee. The Prosecutionalleges that Callizte Mbarushimana, along with the other members of the FDLR Steering Committee, are responsible for crimesincluding war crimes and crimes against humanity for the events that occurred in Kivu region of the DRC from January to September 2009.
The FDLR is the group that most recently succeeds the Rwandanese rebel groups and genocidaries that fled to the DRC after the 1994 Rwanda genocide. The FDLR’s goal is to remove the government agreed to conduct joint military operations on DRC territory against the FDLR which launched in January 2009. The steering Committee of the FDLR responded with force in order to create a humanitarian catastrophe such that the FDLR would gain leverage and concessions of political power in the region. Accordingly, the FDLR steering committee implemented a regulation that whenever the population were mixed with the state military of the DRC, and refused to flee, they would be targeted and killed. The Prosecution’s request for an arrest warrant described the following:
“FDLR units committed crimes… through one of two discernible patterns: they attacked and razed villages, and they assaulted civilians before and after such attacks….in both scenarios, the FDLR perpetrated killings, rape, and other forms of sexual violence, inhumane acts and persecution….which produced a humanitarian catastrophe. Over one million people were displaced in the DRC… the FDLR abducted civilians, intending to use them as human shields against the impending attack….FDLR killed dozens for civilians in the villages of the Kivu region…. The FDLR assaults…razed the villages and attacked civilians once the military opposition had been neutralized… the FDLR deliberately perpetrated attacks on completely undefended places, burning them to the ground…FDLR committed rapes and other sexual atrocities….During these attacks, the FDLR made extortive demands for concessions of political power… the group’s laying down of its arms…is conditional on negotiations… contributed to the FDLR, are over 700 killings, 290 cases of rape and over 7000 houses or other structures destroyed:…

“The FDLR is not political party; it is solely a combatant force dedicated to committing crimes to gain political power….Mbarushimana is one of the highest-ranking members in the FDLR’S political structure.”

Based on the above facts, please provide answer and analysis to the questions:

1) Assuming the ICTY Statue was applicable to the facts as described, would these facts sustain a cumulative conviction for rape as a war crime and torture as a war crime, inflicted through rape?
2) Of the three modes of liability in International criminal law: joint criminal enterprise, aiding and abetting, and command responsibility, which mode of responsibility would be your primary theory for prosecuting Mbarushimana for the war crime of attacks against the civilian population committed by the FDLR? Explain why you would rely on that mode of liability over the other two.
3) Article 7 of the Rome Statue provides fro prosecuting persecution as a crime against humanity on the additional discriminatory ground of gender. Thus, in this case, the Prosecution alleges Mbarushimana is responsible fro persecution on the basis of gender through torture, rape, inhumane acts and inhumane treatment. Assuming instead that the ICTY Statue was applicable to this case and that the Chamber finds an act of discrimination that denies a fundamental right, would these facts sustain a conviction for persecution as a crime against humanity? If not, what other evidence/facts would be necessary to sustain that conviction?


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