Your written assignment is due at the beginning of the final class session. Please number and staple your pages, and include your name at the top of the first page of the brief. While you may discuss the assignment with your classmates, you are to write the brief on your own. Most of the materials you will need to do the assignment are contained in the course pack, but you are encouraged to do additional outside research via the internet if you’d like to supplement these sources. You should cite to the facts contained in the Trial Chamber judgment below and to legal authorities from the reading assignments. Cites should be in the body of the brief (do not use footnotes).
Your oral argument will be limited to five minutes. Consistent with appellate style, the judges (Professor Herdman) will ask you questions during your presentation. Following the oral argument on each issue, the judges will deliver a brief oral judgment.
International Criminal Court
Prosecutor v. Renfeld, Murray, Ratray, and Impaler
Judgment of Trial Chamber II
Judges Javier (Mexico), Robertson (UK), and Kim (Japan), Presiding.
1. This case arises out of a situation involving three small countries located next to each other in central Europe: the State of Shelly to the north, the Stoker Republic in the center, and the Republic of Jabba in the south. See map below. Each country has a population of about 1 million. In July 2002, the Stoker Republic and the Republic of Jabba ratified the Rome Statute establishing the ICC. The State of Shelly, on the other hand, is not a party to the International Criminal Court.
2. The ICC Prosecutor brought this case against several citizens of the Stoker Republic (Renfeld, Murray, and Ratray) and a citizen of the State of Shelly (Impaler) who were charged with committing war crimes and crimes against humanity in the territory of the Stoker Republic. The Stoker Republic has not challenged the jurisdiction of the ICC on grounds of admissibility/complimentarity, and pursuant to the ICC’s indictments and request for surrender, the Stoker Republic promptly transferred the four individuals to the ICC for trial. The trial commenced before Trial Chamber II on January 1, 2013, and concluded on March 1, 2013. The Court now renders its judgment, based on the following findings of fact and conclusions of law:
3. Each of the three countries is composed of two ethnic groups – Lykins and Vampires. The Lykins make up 40 percent of the population of the State of Shelly, 70 percent of the population of the Stoker Republic, and 60 percent of the population of the Republic of Jabba.
4. The Lykins of the Stoker Republic are very prosperous, dominate national politics, and live mostly in the large cities of the southern portion of the country. The Vampires of the Stoker Republic, in contrast, are mostly bat guano miners, who live in poor villages in the northern mountainous region known as Carpathia, which borders the State of Shelly.
5. Because the Stoker Legislative, Executive, and Judicial Branches are dominated by Lykins, nearly all public spending projects (such as construction of schools, roads, power plants, and water treatment plants) occur in the southern portion of the country, and the Vampires of Stoker are treated as second-class citizens, subject to discriminatory treatment, and generally excluded from employment in the public sector. To keep the Vampire population in line, in 2005, the government of the Stoker Republic established Camp Garlic, a well-fortified military base in Carpathia, manned by over 1,500 armed soldiers, all of whom were of Lykin ethnicity.
6. An opinion poll taken in Carpathia in 2010 by Amnesty International indicated that most of the Vampires of the region favored the formation of an independent Carpathian state. In January 2011, the Vampires of Carpathia formed the Vampire Liberation Organization (VLO), whose purpose was to pursue the achievement of independence for the Carpathian region. The State of Shelly was sympathetic to the VLO cause, and has provided weapons and financial assistance to the Organization, and sanctuary to its members.
7. Several thousand Carpathian Vampires volunteered to serve in the VLO militia, a paramilitary force created to pursue independence by force of arms. VLO militia personnel are known to wear a dark-colored hooded sweatshirt to distinguish them from the civilian population. During the month of March 2011, the VLO militia launched a series of attacks against convoys going to or from Camp Garlic in an effort to attract world-wide media attention to the plight of the Carpathian Vampires. Twelve Lykin soldiers and seventy-five VLO militia members were killed in the fighting.
III. The Criminal Liability of Defendants Renfeld, Murray, and Ratry
8. In response to the Vampire attacks, on April 1, 2011, the President of Stoker (who serves as Commander and Chief of the Stoker army) ordered the commander of Camp Garlic, Col. Renfeld, to “take whatever action is necessary to vanquish the Vampire insurgency in Carpathia.” Col. Renfeld, in turn, met on April 2, 2011, with his senior advisor, Lt. Col. Murray, and Murray’s assistant, Lt. Ratray, to formulate a plan “for destroying the VLO.” During the meeting, the three officers agreed that troops under their command would round up all Carpathian Vampires reasonably suspected of being members or supporters of the VLO militia and imprison them at the detention facility at Camp Garlic. Due to the remote location of Camp Garlic, the detainees would not be provided counsel or access to a judicial hearing, but would be able to make their case to Col. Renfeld, who would order a detainee’s release if he was convinced that the detainee did not pose a threat to the Stoker Republic. Based on the April 2 meeting, the trial Chamber finds that Defendants Renfeld, Murray, and Ratray were involved in a Joint Criminal Enterprise to arbitrarily arrest and unlawfully detain the Carpathian Vampires.
9. During the month of April 2011, the troops of Camp Garlic rounded up over 5,000 Vampire men, women, and children in a series of raids on the villages of Carpathia, all of whom were wearing or had in their possession a grey, dark blue, or black hooded sweatshirt. Pursuant to Lt. Col. Murray’s explicit orders, those Vampires who tried to resist arrest in any way were shot on the spot. Lt. Ratray admitted at trial that he and the soldiers in his unit shot and killed some two hundred resisting or fleeing Vampires during the roundup; most of them were unarmed, a dozen were children under the age of 15. Col. Renfeld testified that he had not authorized and did not condone these killings, but admitted that he did not subsequently subject Lt. Col. Murray to any disciplinary proceedings after learning of his order “because it was not clear to me that it constituted an unlawful order.” Lt. Ratray, in turn, testified that he was not comfortable carrying out Lt. Col. Murray’s order, especially with respect to children, but that he reluctantly did so after Murray admonished him in front of other soldiers that “anyone who questions my order is to be summarily shot along with the Vampires.” The Trial Chamber rejects Ratray’s obedience to orders and duress defense. The Trial Chamber finds the killing of the 200 Vampires to be a war crime and a crime against humanity, and holds that Renfeld, Murray, and Ratray are all guilty of its commission under the principles of direct participation, joint criminal enterprise, and command responsibility.
10. During the roundup of the Vampires, Lt. Ratray’s scout told him that he had observed a large number of armed VLO militia men entering the 1,000 year-old historic Carpathian Cathedral, suggesting that the VLO was using it as a military headquarters. Immediately upon hearing this news, Ratray said “we’ve got a chance to end the Vampire uprising here and now” and ordered his men to “fire mortars at the Cathedral until it is completely demolished.” At trial Lt. Col. Murray testified that he had personally inspected the ruins of the Cathedral after its destruction but saw no guns, hooded sweatshirts, or any other evidence that it had been used by the VLO as a base of operation. Concluding that a mistake had been made, Murray warned Lt. Ratray to be more careful in the future and reassigned him to guard duty at Camp Garlic. Based on Murray’s testimony, we find Ratray guilty of the war crime of destroying a historic cultural and religious site. In so doing, we reject Ratray’s attempt to raise a mistake of fact/military necessity defense.
11. A week after the Vampires were imprisoned at Camp Garlic, they orchestrated a mass hunger strike to protest their incarceration. Three weeks later, after a dozen Vampires died of starvation, Lt. Ratray ordered his subordinates to force feed the hunger-striking prisoners. They accomplished this by tying the prisoners to their bed and feeding them through tubes pushed down their nasal passages into their stomachs. After enduring this extremely unpleasant procedure for a few days, the prisoners called off their hunger strike. Again, Col. Renfeld testified that he had not authorized and did not condone this action, but that he did not intervene to stop the force-feeding process after learning of his order “because that was Murray’s responsibility, not mine, since Ratray reports to Murray and is not in my direct chain of command.” Further Renfeld said that it was not clear to him that force-feeding under these circumstances was in violation of the laws of war or a crime against humanity. Lt. Col. Murray in turn claimed that he took no action because he was on personal leave at the time of the incident. The Trial Chamber deems the force-feeding of the prisoners to be a war crime and crime against humanity, and holds that Renfeld, Murray, and Ratray are guilty of its commission on the basis of their direct responsibility and/or command responsibility.
IV. The Abduction of Vladimir Impaler and the Admission of Evidence Provided by Jonathan Harker.
12. After talking to some of the detainees at Camp Garlic, Col. Renfeld learned that the leaders of the VLO were two mysterious figures known only by the nom de guerre "Nosferatu" and "Dracula." Nosferatu reportedly served as the VLO militia's military commander, and Dracula headed the VLO's political activities.
13. On May 1, 2011, Nosferatu released a tape recorded audio message, broadcast by radio stations across the Stoker Republic, in which he announced that the VLO had stolen plutonium from the breeder reactor in Jabba and had used it to construct a so-called "dirty bomb" (conventional explosives that would disburse the plutonium). The message further stated that the VLO planned to explode the dirty bomb somewhere in Stoker City, the Capitol of the Stoker Republic, in one week unless the Stoker Republic closed down Camp Garlic, pulled all of its troops out of Carpathia, and released all of the detained Vampires by that time. Later that day, the Republic of Jabba publicly confirmed that two canisters containing about three pounds of plutonium were missing from its breeder reactor plutonium storage facility. According to the Jabba nuclear scientists, with that much plutonium, the VLO could easily detonate a dirty bomb in Stoker City, killing tens of thousands of people.
14. As part of its investigation into the theft of the plutonium canisters, on May 2, 2011, the Jabba police rounded up a dozen Vampires in Jabba suspected of association with the VLO. They were taken to a facility known as the Van Helsing Institute, where they were interrogated using “waterboarding” (holding the person’s head under water until he breathes in water, and then resuscitating him) in an effort to get them to disclose the true identities of “Nosferatu” and “Dracula” and the location of the “dirty bomb.” Authorities of the Stoker Republic and the International Criminal Court were in no way involved in these interrogations.
15. During the interrogation, one of the Vampires, a State of Shelly National University Political Science Professor named Jonathan Harker, admitted after a single episode of waterboarding that he was "Dracula," the political leader of the VLO. He said that he was in Jabba to fundraise from Jabba Vampires interested in supporting the VLO. He provided detailed information about the VLO, including disclosing that Nosferatu's true identity was Vladimir Impaler, a citizen of the State of Shelly who was employed as a Professor at the State of Shelly National University Department of Engineering. Harker said that Vladimir Impaler had come up with the plan to steal the plutonium and to explode a "dirty bomb." Harker also disclosed that the plan was that the "dirty bomb" would be hidden beneath the large trash bins next to the Stoker City Football Stadium, and the bomb would be set to detonate at exactly 7:00 pm on May 7, 2008, during the World Cup Qualifying game. Harker's statement was audio recorded. Medical records indicated that he did not suffer permanent physical or psychological harm from the waterboarding. The Republic of Jabba has instituted criminal proceedings against Harker, who remains in their custody.
16. The Jabba police immediately informed their counterparts in the Stoker Republic of the true identity of Nosferatu and the details about the dirty bomb which they had uncovered during their interrogation of Jonathan Harker. They also emailed their counterparts a copy of the audio recording of Harker's statement. The next day (May 4, 2011), the President of the Stoker Republic ordered Col. Renfeld to dispatch a small elite unit from Camp Garlic into the State of Shelly to capture Vladimir Impaler as he was arriving at the Shelly National University on the morning of May 5, 2011. Dressed as ordinary delivery men, the Stoker personnel grabbed Vladimir Impaler just outside the Engineering Building, forced him at gunpoint into the back of an unmarked van, and transported him over the border to Stoker. Impaler suffered a concussion and three broken ribs during the abduction. The Stoker Republic never sought consent from the State of Shelly for Impaler’s arrest, and the government of Shelly has protested that this action constitutes an unwarranted violation of its sovereignty and has demanded the repatriation of its national.
17. At about the same time as Impaler was being captured, the Stoker Republic bomb squad found the "dirty bomb" hidden beneath the trash bins at the Stadium and successfully de-activated it. The plutonium was promptly returned to Jabba.
18. Vladimir Impaler was subsequently charged with attempt to commit a crime against humanity by the International Criminal Court. The Stoker Republic surrendered him and the audio recording of Jonathan Harker’s statement to the ICC for joint trial along with Renfeld, Murray, and Ratray. During the trial, Vladimir Impaler asserted his right to self-representation, but then forfeited the right by launching into frequent political diatribes instead of asking questions on cross-examination. After an initial warning, the Trial Chamber removed Impaler from the Courtroom and assigned stand-by counsel to represent Impaler for the remainder of the trial. Stand-by counsel did not object to the admission of the audio recording. Based on the incriminating statements in the recording, we find Vladimir Impaler guilty as charged.
19. For their crimes, we sentence Col. Renfeld to fifteen years imprisonment, Lt. Col. Murray to twelve years, Lt. Ratray to 10 years, and Vladimir Impaler to 20 years. Lt. Col. Murray’s sentence, however, is reduced to five years pursuant to the plea-agreement entered into between Murray and the Prosecutor under which Murray agreed to (and did) testify against Defendant Ratray.