历次稿子及修改vievie-oral一罪控方1st

1、If I may, your excellencies, I will move on to the first charge concerning the war crime of excessive incidental loss, injury, or death. In the first part, Ill address the issues in five aspects according to the elements of the crime. And then I will move on to General Reeds individual responsibilit

2、y. Now I will begin with my first part. According to the EoC, Article 8(2)(b)(iv)this crime requires five elements1.The perpetrator launched an attack.2. The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe

3、damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 3. The perpetrator knew that the attack would cause incidental death or injury to civilians or

4、damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 4. The conduct took place in the

5、 context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Because Because Article 8(2)(b)(iv)1.The perpetrator launched an attack.2. The attack was such that it would cause incidenta

6、l death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated

7、. 3. The perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to

8、 the concrete and direct overall military advantage anticipated. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.Because my college lifang ha

9、s already addressed the type of the conflict existed in the present case. The following three charges were all based on the international armed conflict.For the first element, namely the perpetrator launched an attack, in this case, the AAF and NIA directed the attackAP1, 49(1AP1, 49(1). Attacks mea

10、ns acts of violence against the adversary, whether in offence or in defence.Violence: the unlawful exercise of physical force or intimidation by the exhibition of such force.Additional Protocol oneThe second element is that the attack causes excessive incidental civilian loss. Excessive means the di

11、sproportion is clearly discernible. The proportion is between the loss and the anticipated military advantageMilitary advantage can only consist in ground gained and in annihilating or weakening the enemy armed forces.ICRC commentary article 52. In another word, the military advantage gained from th

12、e particular military activity must be weighed against the probable civilian losses.Galic Trail Judgement, ICTY, para.37Also ICRC commentary article 52.2028.2028Military advantage can only consist in ground gained and in annihilating or weakening the enemy armed forces.ICRC commentary article 52.Gal

13、ic Trail Judgement, ICTY, para.37Also ICRC commentary article 52.2028.2028In the case of Article 52 there must be a definite military advantage for every military objective that is attacked. In the case of Article 57 Link (Precautions in attack) this condition must also be fulfilled, but in addition

14、, the military advantage which should also be concrete and direct must be weighed against the civilian losses and damage which could result from an attack.To decide whether the attack is proportionate, we have some standards: first, whether the attack was repeated; Case Kupreskic ICTY.para.526Howeve

15、r, in case of repeated attacks, all or most of them falling within the grey area between indisputable legality and unlawfulness, it might be warranted to conclude that the cumulative effect of such acts entails that they may not be in keeping with international law. Indeed, this pattern of military

16、conduct may turn out to jeopardise excessively the lives and assets of civilians, contrary to the demands of humanity.second, whether the military advantage was concrete and direct; third, whether the precautions have been takenCase Kupreskic ICTY.para.526However, in case of repeated attacks, all or

17、 most of them falling within the grey area between indisputable legality and unlawfulness, it might be warranted to conclude that the cumulative effect of such acts entails that they may not be in keeping with international law. Indeed, this pattern of military conduct may turn out to jeopardise exc

18、essively the lives and assets of civilians, contrary to the demands of humanity.Case Galic, para.37; 58When seeking to establish whether the proportionality principle is violated, the Prosecution urges the Trial Chamber to analyze the “concrete and direct military advantage” at the level of each sni

19、ping and shelling incident, and to consider whether the precautionary provisions contained in Article 57 ofAdditional Protocol I were complied with.The practical application of the principle of distinction requires that those who plan or launch an attack take all feasible precautions to verify that

20、the objectives attacked are neither civilians nor civilian objects, so as to spare civilians as much as possible.The facts in this case satisfied the three standards:(1)In this case, Bings apartment was attacked twicePara.27 the first two sentences. with the second only half an hour after the first.

21、 According to the case Kupreskic, the attack then turned to excessive. (2)The anticipated military advantage here were the production line in the BAS factory and Neil Bing in his own apartment. However the production line was just being set up and no explosive devices had been assembled yet. Besides

22、, Bing was not in the apartment at that time.In the middle of para.25 and 27. The anticipated military advantage was hard perceptible and not concrete and direct.The concrete and direct was intended to show that the advantage must be “substantial and relatively close”, and that “advantages which are

23、 hardly perceptible and those which would only appear in the long term should be disregarded”. ICRC Commentary, para. 2209. (3)In the present caseThe second sentence in para.23., Alphonian reconnaissance drones were circling above Kiesh to observe targets, assess the damages and advise the commander

24、s of artillery units how to adjust their fire. Then the AAF and NIA should be well-informed of the civilians around the targets. However the artillery shells fell on the BAS factory just half an hour after the quitting time. And Bings apartment was attacked twice at 6:00 and 6:30. Given the tPara.27

25、 the first two sentences.In the middle of para.25 and 27.The concrete and direct was intended to show that the advantage must be “substantial and relatively close”, and that “advantages which are hardly perceptible and those which would only appear in the long term should be disregarded”. ICRC Comme

26、ntary, para. 2209.The second sentence in para.23.In a conclusion, the attack was disproportionate and caused excessive incidental civilian loss.And then I will move on to the third element, the AAF and NIA knew the attack would cause loss, injury or death and it was disproportionate. According to th

27、e ICC StatuteICC Statute, article 30(3)For the purposes of this article, knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. Know and knowingly shall be construed accordingly. and case Galic, the knowledge here means awareness that such

28、an attack would cause excessive incidental loss.Case Galic. Para.59To establish the mens reaof a disproportionate attack the Prosecution must prove, instead ofthe above-mentioned mens rearequirement, that the attack was launched wilfully and in knowledgeof circumstances giving rise to the expectatio

29、n of excessive civilian casualties. And a well-informed perpetratorCase Galic, ICTYPara58The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack.In determining whether an attack was proportionat

30、e it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack. should make a reasonable use of the in

31、formation available to him to expect the excessive civilian casualties resulted from the attack. As mentioned above, the perpetrator was well-informed of the targets. They should have observed the lights in the BAS factory. And the hit was at 18:00, only half an hour after the quitting time, there c

32、ould be still workers in the factory. Besides the perpetrators knew that Bings apartment was in a residential area which was a civilian object. ICC Statute, article 30(3)For the purposes of this article, knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary

33、 course of events. Know and knowingly shall be construed accordingly.Case Galic. Para.59To establish the mens reaof a disproportionate attack the Prosecution must prove, instead ofthe above-mentioned mens rearequirement, that the attack was launched wilfully and in knowledgeof circumstances giving r

34、ise to the expectation of excessive civilian casualties.Case Galic, ICTYPara58The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack.In determining whether an attack was proportionate it is nec

35、essary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.The 4th and 5th elements are also satisfied. An ar

36、med conflict is international if it takes place between two or more States.Common Article 2(1), Geneva Conventions.In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise bet

37、ween two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. In this casePara.16 and 21, General Reed was in charge of the operation thunderstorm which was approved by the Alphonian government aiming at regaining the control over the city Kiesh. He app

38、roved a list of targets for artillery attacks and air strikes, including the BAS factory and Bings apartment. The operation was an important part of the armed conflict between the AAF and the DKF. Therefore, the attack against the BAS factory was part of the international armed conflict and the AAF

39、and NIA was in the knowledge that their conduct was part of the artillery attacks and air strike against the city Kiesh.Common Article 2(1), Geneva Conventions.In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of

40、 any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.Para.16 and 21If I may, your excellencies, I will move on to my second part, General Reed bears individual responsibility for the crime. A person s

41、hall be criminally responsible and liable for punishment for a crime if that person commits such a crime jointly with another.ICC statutes article 25(3)(a) The co-perpetration has the following elementsCase lubanga, ICC: (1) The objective elements includes the existence of an agreement or common pla

42、n between two or more persons and the coICC statutes article 25(3)(a)Case lubanga, ICCIn this case, the Operation Thunderstorm was planned by a group which was consisted of the Alphonian Defence Minister Tom Atom, the Head of National Intelligence Agency (NIA), Perry Ash, General Reed, his deputy, C

43、olonel Harvey Simms as well as other military staff. In a meeting of 7 January 2009, it was decided that artillery attacks and air strikes would be used.Para.20 General Reed approved the list of targets for artillery attacks and air strikes, including the BAS factory and Bings apartment. He ordered

44、AAF to attack the factory and agreed with Ash using armed drones to attack Bings apartment. Para.20We can conclude that the operation was planned by a group including Reed. Reed did order and participate in the attack aiming at Kiesh according to the decided plan. (2) The subjective element is that

45、the suspect must fulfill the subjective elements of the crime in question. Reed should know that the attack would cause excessive loss. While planning the Operation Thunderstorm, it was decided that artillery attacks and air strikes would be used to “shock, disorient, disrupt the Bethuisians”. And R

46、eed realized that collateral damages cannot be avoided. As mentioned above, Reed was well-informed, when attacking kiesh including the BAS factory and Bings apartment, he should have expected the excessive loss of civilians. Therefore, the above facts met the elements of the individual responsibilit

47、y.In a word, General Reed bears the individual responsibility for the crime.需要准备的问题：法源根据：ICC: Article 211. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the

48、principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that woul