I thank you very much for your participation in the class, and I hope we all have learned something.
In this post there will be two general parts: the final exam explanation and the grades.
THE FINAL EXAM EXPLANATION
Is it true, what the King said? Why? Counsel your King!
Most of you are correct in answering this question. Hurray!!! Yes, it is true, that the sources of IHL are customary international laws so are binding nonetheless. Other creative answers may involve using jus cogens as basis, or even universal jurisdiction of other states, interesting.
Although, what many of you may have missed is the instruction to counsel your king. This question, really, is not merely about whether really your king was right. You are expected to give him advise on what to do. I did not put much weight on this part of the question, but I made sure good answers do not go unappreciated.
Just one note. Some told their king that “IHL does not limit our options, it is simply to protect certain persons”. This is untrue, because it is a basic principle of IHL that the methods and means of warfare are not unlimited. There are a number of means and methods of warfare that would definitely contribute to you winning a war but are unlawful. The easiest example: tossing a nuke at your enemy.
Respond to that general’s question!
Yes, many of you are also correct on this question, yay!! While the distinction between military and civilians is essential in IHL, but the Principle of Distinction is all about distinguishing between combatants and non-combatants.
Bearing in mind the principle of proportionality and all that entails with it, give your instructions!
For this question, you must make an assessment on how to minimize civilian casualties while also trying to take the city. This will involve a number of considerations, including:
Making sure of the location and nature of your targets and potential civilian casualties, from which you base the direction and strategies of your attack(s)
Assessing the necessity and possibilities of conducting warnings to the civilians.
Assessing the means and methods of warfare, making sure that the weapons and strategies used are strong enough to achieve the objective but not too strong as to result in excessive casualties.
Making sure before hand that the troops are well briefed that they should avoid killing non-combatants, and that there is a system implemented to punish those that end up killing civilians.
Making sure that there is a good system of monitoring throughout the conduct of battles, so that the strategies can be maintained, troops getting carried away can be controled, and unexpected change of circumstances can be anticipated
The problem that some students had was the lack of explaining themselves in the points they offered. Certainly, I cannot expect students to manage to think of all the points above (especially those I do not expect to have extensive experience in war movies and games). All I wish to see is a thorough understanding as to what are the things to be considered to ensure the proportionality of an attack. The first three would make me happy enough.
Is this genocide? Why?
It is unfortunate that most students answered this incorrectly. The proper answer to this is that this is not genocide. Most of you have correctly identified that the crime of genocide requires an “intent to destroy in whole on in part”, which is why I still gave credit to you. However, the major mistake is when the facts are applied. I am sure that a lot of you will disagree with me and probably come and protest, but that’s fine.
The fact that all the victims are Bininis do not yet justify a classification as genocide, thats first. What about the “kill them all” command? But the targets are only Bininis! Yes, this is a tricky one. Yet, there is no evidence in any part of the scenario of any intentions to eliminate the Bininis –as a tribe—as a whole or in part. The only evidence shows that the commander is paying back what the Bininis did in another city of Bununus as retaliation. No evidence shows that he intends to systematically eliminate Bininis in order to reduce their numbers in part or in whole.
This is what may be difficult to understand regarding the crime of genocide. It is a crime of intention more than a crime of action. The killing of an entire city may, in fact, reduce in part or even in whole a particular group. But if the elimination of that particular group –due to the identity of that group per se—was not the intention behind that killing, then it may not necessarily fall under the crime of genocide.
Submit your argument why, due to the amnesty, the ICC cannot put you on trial! (10 pts)
In this question, quite a number of you unfortunately stumbled and for many reasons (some more than one reasons at the same time). A lot of you explain –some very comprehensively—why amnesties are important for peace and reconciliation. This question is NEVER about whether or not amnesties for (alleged) war crimes is acceptable or not. The question is whether or not the ICC can accept it. You are arguing before the ICC, and therefore you must use their legal basis. This is not an academic forum where you can simply toss out any academic or policy argument you can think of.
I am not closing the possibility of anyone successfully proving that Article 53(1)(c) is indeed relevant, maybe one can submit this as a claim that the prosecutor fails to consider their job. To what extent is this useful? Not sure, but at least it would require more effort of analysis.
A more convincing argument may be those based on Article 17, where a State who has already investigated a case and decided not to proceed it (with a number of requirements, of course), cannot be considered as “unwilling and/or unable”. Therefore, in the line of this argument, the case should not be admissible.
So, basically I made a simple average between your mids and finals. However, I also added some bonuses which include extra participation bonus, seminar participation, “dramatic grade increase bonus”, and other achievement bonuses.
If you have any further questions or if you feel unsatisfied with your results or if you are just curious as to the details of your scores, please do not hesitate to let me know. I am open to appointments from Monday afternoon, but you must contact me first just to make sure that I am available because you might find me just sitting at my desk but I am busy with something else.
Lecturer at the International Law Department, Fakultas Hukum, Universitas Gadjah Mada
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