LAW_36595 International Criminal Justice
International Criminal Justice; Max 2500 words, Oscolo referencing with a bibliography.
Answer the following:
The State of Elmeria (population 1 million) is comprised of two distinct groups: the majority Elmerians (population 975,000) and a small minority of Crystallites (population 25,000). The Elmerians inhabit the flat lowlands that make up 85% of the country’s landmass, whereas the Crystallites inhabit the mountainous region that makes up the remaining 15%. The two groups have coexisted in the region since ancient times.
The two groups are physically indistinguishable and share the same religious beliefs. Crystallites have their own distinct language (though in practice it is rarely used in day- to-day life) and live directly off the lands they farm, in contrast to the mostly urban Elmerian population. Despite being constitutionally protected citizens of Elmeria, the Crystallite population are frequently regarded as second-class citizens and considered something of a curiosity by the urbanised Elmerians.
In January 2022, a serious drought occurs in Elmeria, with the lowland dwelling Elmerians the worst affected. In February 2022, the State military is dispatched to the mountains to reroute the River Depp. The river is the main source of water for the Crystallites: it follows a circuitous route through the mountains, feeding Crystallite farmlands, before flowing directly into the sea. The planned reroute would divert the River Depp to the lowlands, bypassing the Crystallite farmlands. The diversion is overseen General Jason, operating on the instructions of President Freddy, to whom he reports (by email) on a weekly basis. President Freddy is the de jure commander-in- chief of the military, he controls access to resources, is responsible for discipline, and gives final approval for any strategic military decisions.
In late February 2022, several media reports warn of a serious famine in Crystallite communities, placing the survival of the group at risk. The famine has been caused by
the diversion of the River Depp and subsequent lack of water supply to farmlands. General Jason brings these to the attention of President Freddy, who expresses sympathy but tells Jason he “must do whatever is necessary to secure our water supply, however difficult it may be – and that’s an order”.
In March 2022, a group of Crystallites attacks Jason’s camp with rudimentary weapons but are rapidly pushed back. Jason emails Freddy to inform him of these developments and to request further orders; however, he receives no response. The next day, Jason attacks four nearby Crystallite villages, meeting little resistance from the starving inhabitants. He orders the execution of all men aged 10 to 70 (5,000 in total), telling his troops it is “necessary for the defence of our encampment” after the recent Crystallite attacks, and that “nobody will miss these people, anyway”. The killings are efficiently carried out.
The diversion of the River Depp is complete by April 2022. Media reports show that Crystallite villages are by now largely empty, with the inhabitants having either died of famine (roughly 15,000) or at the hands of the military. While a few thousand survivors remain in the mountains, a humanitarian NGO report suggests the inhabitants are “too weak and dissipated to survive as a community”. Freddy releases a statement in which he blames Jason for what has transpired, claiming he “went too far in his attempts to safeguard our water supply” and that “he operated outside my authority”. He takes no further action against Jason, who in turn claims he was “only following orders”.
The situation has come to the attention of the Prosecutor of the International Criminal Court (ICC), of which Elmeria is a Member State (since 2002). The Prosecutor considers that the ICC has jurisdiction over the situation and that any cases would be admissible.
The Prosecutor has asked you for guidance on whether prosecutions for the crime of genocide against (i) Jason, and (ii) Freddy would be likely to succeed. The Prosecutor has requested that, in both cases, you consider the appropriate mode of liability, and any defences or immunities that might apply. The Prosecutor possesses evidence that all the events and conversations described have indeed taken place.
Evidence of independent thought and research;
Ability to construct and present a coherent legal argument;
Identification and knowledge of applicable law and relevant legal principles
Clarity and accuracy of expression and presentation.
Ability to recognise, synthesise and distil information and principles in terms of relevance and importance;
Ability to discuss arguments and to evaluate
Awareness of the broader context within which international criminal law operates