In the continent of Edzidzi there is an ongoing war between the states of Nguvunia (State A) and Dhaifunia (State B), escalated from territorial dispute over an area at the border between the two states.
The contested territory at the root cause of the conflict is located on a portion of land, which, according to a treaty stipulated between the two countries over a 100 years ago (Treaty of Amity), belongs to Nguvunia (State A). For more than 50 years, however, Dhaifunia (State B) has exercised de facto control over the territory, which Nguvunia did not contest until recently.
The military resources of Nguvunia (State A) are significantly larger than those of Dhaifunia (State B). The border area between the states is however very mountainous, giving Dhaifunia a huge defensive advantage. If Nguvunia would be able to proceed safely through the mountainous front, the forces of Dhaifunia (State B) would be no match for those of Nguvunia (State A) in a direct confrontation.
Nguvunia (State A) is not a party to the Rome Statute of the ICC nor to the Geneva Conventions on the laws of war, but did ratify the UN Charter, the UN Convention against Torture, and the International Covenant on Civil and Political Rights.
Dhaifunia (State B) ratified all the previous mentioned instruments.
After a military operation, two soldiers of Nguvunia (State A) managed to capture a military officer of Dhaifunia, who became a war prisoner. The prisoner was brought to a military post of Nguvunia located in the contested territory.
Commander Jumla, in charge of the military personnel based at the post, orders the two officers to interrogate the prisoner in order to find out where the main ammunition storages are located. The soldiers assured Jumla that they would do anything to find out where the ammunitions are located.
The two soldiers did not perpetrate any violence, but they threatened the prisoner to kill his wife and children, and even staged the death of his wife. As a consequence, the prisoner broke down and revealed that almost all the ammunition used to supply the front troops were stored in the church of a small village in the contested territory.
As the village cannot be successfully reached by ground troops, Commander Jumla plans an airstrike to bomb the church. Since he does not want to reveal his knowledge about the arsenal, he announces that a dozen of villages close to the frontier will be evacuated, hoping that although damages to properties seem unavoidable, no civilian blood will be shed.
Although some 800 civilians are evacuated from the village where ammunitions are stored, another 300 announce that they will stay where they are, and that if Nguvunia (State A) wants to destroy the arsenal, they will have to take their lives with it. The attack proceeds, the church is bombed, and as the massive weapon storage explodes, the whole village is destroyed without a single survivor.
The loss of the ammunition storage makes further resistance meaningless, and Dhaifunia (State B) capitulates within a few weeks.
The Security Council, which followed the situation closely, refers the situation to the ICC Prosecutor, who starts investigations against Commander Jumla, and others.
The Commander is outraged. He claims that being the highest-ranking official of Nguvunia’s (State A) army, his official position grants him immunity from any prosecution. Furthermore, he argues that the attack on the arsenal was fully in line with International Humanitarian Law. Jumla claims that he took all the necessary precautionary measures and that the civilians who decided to remain in the village should not enjoy civilian protection under International Humanitarian Law since they formed a voluntarily shield by staying in the village.
Please develop an essay:
You are a legal advisor of the ICC Prosecutor. She asks you whether you think that prosecution against Commander Jumla could be successful. Explain to her whether you think he can be prosecuted under any of the articles of the Rome Statute and why. (You may disregard the crime of aggression while doing so).
Please take into consideration the following questions while drafting your essay:
Do mental abuses perpetrated meet the threshold of torture under the CAT/ICCPR?
Are the rules of the Geneva Conventions applicable as customary international law to State A, even if it is not a party to the Conventions?
Does the attack represent a breach of International Humanitarian Law and a war crime? Do civilians directly participate in hostilities and are the actions of State A proportionate? (Please consider the Rome Statute, the Geneva Conventions, commentaries of the Committee of the Red Cross, jurisprudence of the ICTY, and/or secondary sources).
Is the commander responsible for the abuses even if he did not commit them directly?
Does the ICC have jurisdiction over the crimes discussed due to the fact that State B ratified the Rome Statute and de facto controls the territory on which the crimes were committed?