Pre trial judgements

In assessing whether items were appropriated for private or personal use, the Chamber will consider all relevant factors, including, for example, the nature, location and purpose of the items, and the circumstances of their appropriation.

Finally, considering the factual findings in this case, the Chamber does not consider it necessary to contemplate the other justifications for the appropriation of property under international humanitarian law. The Accused is charged with criminal responsibility for the commission of war crimes in the context of an armed conflict not of an international character pursuant to Articles 8 2 c i murder , 8 2 e vi rape and 8 2 e v pillaging.

The Chamber further notes that while it is possible for distinct conflicts to be taking place within one territory, the mere fact of involvement of different armed groups does not mean that they are engaged in separate armed conflicts.

In this regard, the Chamber notes that Trial Chambers I and II found that an armed conflict may be considered internationalised when it is established that armed groups are acting on behalf of a foreign government.

While mindful that Article 1 1 of Additional Protocol II requires the armed groups to exercise control over the territory and to be under responsible command, Trial Chambers I and II considered that the Statute does not include such requirements.

None of these factors are individually determinative. Noting further that the list set forth by Trial Chambers I and II is not exhaustive and that Trial Chambers I and II suggested applying this test with some flexibility, the Chamber finds no substantial contradiction between the two approaches.

This is in contrast to Article 8 2 d , stated to apply to Article 8 2 c , which does not include such a requirement. When assessing whether an armed conflict not of an international character was protracted, however, different chambers of this Court emphasised the duration of the violence as a relevant factor. This corresponds to the approach taken by chambers of the ICTY.

The Chamber follows this jurisprudence. In the view of the Chamber, this conclusion is further supported by the drafting history of Article 8 2 f. The armed conflict alone need not be considered to be the root of the conduct and the conduct need not have taken place in the midst of battle. Article 28 a codifies the responsibility of military commanders and persons effectively acting as military commanders. The Chamber considers that Article 28 is designed to reflect the responsibility of superiors by virtue of the powers of control they exercise over their subordinates.

These responsibilities of control aim, inter alia , at ensuring the effective enforcement of fundamental principles of international humanitarian law, including the protection of protected persons and objects during armed conflict. Historically, this is most clearly seen in the context of military commanders, whose individual criminal responsibility has been recognised in domestic law, in jurisprudence since at least the aftermath of the Second World War, and was subsequently reflected in Article 86 of Additional Protocol I to the Geneva Conventions.

The accused must have been either a military commander or a person effectively acting as a military commander. These individuals are not formally or legally appointed as military commanders, but they will effectively act as commanders over the forces that committed the crimes. The accused must have had effective command and control, or effective authority and control, over the forces who committed the crimes. Any lower degree of control, such as the ability to exercise influence — even substantial influence — over the forces who committed the crimes, would be insufficient to establish command responsibility.

By virtue of his position, the commander must be senior in some sort of formal or informal hierarchy to those who commit the crimes. Whether or not there are intermediary subordinates between the commander and the forces which committed the crimes is immaterial; the question is simply whether or not the commander had effective control over the relevant forces.

The Chamber considers that the question of whether a commander had effective control over particular forces is case specific. Conversely, some factors may indicate a lack of effective control over forces, such as i the existence of a different exclusive authority over the forces in question; ii disregard or non-compliance with orders or instructions of the accused; or iii a weak or malfunctioning chain of command.

The commander failed to take all necessary and reasonable measures within his power. The duty of the commander to take all necessary and reasonable measures to prevent or repress the crimes committed by his forces, or to submit the matter to the competent authorities for investigation and prosecution, rests upon his possession of effective authority and control. Under Article 28 a ii , three distinct duties are imposed upon commanders: i preventing the commission of crimes; ii repressing the commission of crimes; or iii submitting the matter to the competent authorities for investigation and prosecution.

For example, a failure to prevent the crimes, when the commander was under a duty to do so, cannot be remedied by subsequently punishing the perpetrators. The scope of the duty to prevent depends on the material power of the commander to intervene in a specific situation. This is dependent on the circumstances at the relevant time. The Pre-Trial Chamber identified relevant measures which include: i ensuring that the forces are adequately trained in international humanitarian law; ii securing reports that military actions were carried out in accordance with international law; iii issuing orders aiming at bringing the relevant practices into accord with the rules of war; and iv taking disciplinary measures to prevent the commission of atrocities by the forces under the commander's command.

The Chamber concurs with the Pre-Trial Chamber that the duty to repress also encompasses an obligation to punish forces after the commission of crimes. In the event the commander holds disciplinary power, he is required to exercise it, within the limits of his competence. If the commander has no power to sanction those who committed the crimes, he has an obligation to submit the matter to the competent authorities.

Throughout the CAR Operation, the MLC troops allegedly committed crimes of murder, rape, and pillaging against the civilian population. Mr Bemba also commanded military operations, issuing orders to the units in the field, such as to attack or to progress to a certain location, and followed the progress of operations closely. Mr Bemba could, and often did, communicate orders or instructions directly to commanders in the field without going through the hierarchy, with the General Staff usually being informed and following-up afterwards, if required.

Generally, however, Mr Bemba did not direct operations at the tactical level or issue orders regarding the specific manoeuvres of the various units in the field. Mr Bemba held ultimate authority over sanctioning, arresting, and dismissing senior political leaders and military officers, as well as soldiers, in the MLC and the ALC.

In respect of murder as a war crime, the Chamber notes that these victims, who were not armed and were not taking part in hostilities, were killed in their homes, in the absence of armed groups other than the perpetrators. Accordingly, [ The Chamber has found that perpetrator s appropriated items of property […] without […] consent […]. Regarding the requirement that the appropriated items are intended for personal or private use, the Chamber recalls that MLC soldiers personally used pillaged goods, in particular, food, beverages, and livestock, as well as furniture, and other wooden items, that could be burned as firewood.

The Chamber has further found that MLC troops traded certain pillaged goods for other items, such as alcohol, or forced civilians to buy back goods taken from them or their neighbours.

In light of the foregoing considerations, taken together, the Chamber finds beyond reasonable doubt that the perpetrators of the acts identified above intended to appropriate the property for private or personal use. Further, the Chamber notes the consistent evidence that MLC soldiers committed many acts of pillaging throughout the CAR Operation and throughout the areas in which they were present.

In light of the above considerations, taken together, the Chamber finds beyond reasonable doubt that the appropriation of civilian property by MLC soldiers in the CAR was on a large scale with grave consequences for the victims. Accordingly, noting its findings below on the contextual elements of war crimes, the Chamber finds beyond reasonable doubt that MLC soldiers committed the war crime of pillaging a town or place in the CAR between on or about 26 October and 15 March Quick Access to Mass.

Law Library main site. Post Content Apr 12 Written By: Sharon at Middlesex. Recent Posts Feb 20 Dec 10 Nov 13 Join the conversation. We want to hear from you. Connect with us. Search Posts Search for:. This meeting occurs prior to the beginning of the trial, after being served with a lawsuit. The parties involved in the meeting may include:. Other parties may be included in pretrial hearings, due to the fact that these meetings are intended to help clear up any issues and administrative details that can be handled prior to the actual trial.

This allows the parties to focus on the most important legal issues of the case without being distracted by smaller matters. Because of this, pretrial hearings benefit all parties involved.

Pretrial hearings may be used in criminal cases as well as civil cases. Although often required by court, either party involved in the case may request that a pretrial hearing is set in order to ensure that such a meeting occurs. Importantly, some jurisdictions may also refer to pretrial hearings as pretrial conferences. As previously discussed, the purpose of a pretrial hearing is to resolve any simple issues before the court case actually begins in order to allow the trial itself to proceed more effectively.

The parties are allowed to exchange information which aids in the trial preparation, should the case still need to go to trial after a pretrial hearing. In some cases, a pretrial hearing allows to reach a settlement and avoid the time and expense of a trial altogether. Additionally, pre-trial hearings help the judge fully understand the issues and parties to the case, as well as establish their authority.

Several things may happen at a pretrial hearing. First, the judge may establish some basic rules regarding how the case is to proceed, as well as set a schedule for the trial and any other pretrial matters.

Second, the parties may argue over what evidence should or should not be included at trial, as well as whether specific witnesses should be used at the trial. The parties may also request a change of venue. That is, they may ask the presiding judge to dismiss the trial entirely or rule on specific points of law that are especially favorable to their client. The issues that are to be decided at trial may be identified and then narrowed.

The exact rules can differ from case to case and even from judge to judge. Pretrial conferences usually take place at the beginning of a case, but always after all pleadings have been filed and before trial.

Some states allow a magistrate or civil court officer to sit in for the judge. Both sides are typically required to file a memorandum with the court before the first pretrial conference, identifying their witnesses and listing the exhibits they intend to enter into evidence at trial.

These documents give the judge a summarized idea of the contents of the case and the issues that must be dealt with at the case management pretrial conference. A case management conference is a type of pretrial conference that happens very early in the proceedings.

The judge will typically create a calendar during this conference with deadlines for each side to finalize certain pretrial actions. The deadlines are entered into a scheduling order. The judge might also pencil in a proposed trial date at this point, but the date is rarely set in stone.