THERE IS SUBSTANTIAL GROUND TO INDICT GEN.

HASSAN AMIR OF THE WAR

CRIME

OF

INTENTIONALLY

DIRECTING

ATTACKS

AGAINST

PERSONNEL,

INSTALLATIONS, MATERIAL, UNITS OR VEHICLES INVOLVED IN A PEACEKEEPING

MISSION BY COMMISSION THROUGH ANOTHER.
Under the ICC Statute, the war crime of intentionally directing attack has the following
objective elements, (1) the perpetrator directed an attack, (2) The object of the attack was
personnel, installations, material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission, (3) Such personnel, installations, material, units or vehicles were entitled
to that protection given to civilians or civilian objects under the international law of armed
conflict.
1. ALL THE ELEMENTS OF THE WAR CRIME ARE PRESENT.
a. The ADF directed an attack to the ISSF Compound
Thewar crime ofattacking civilians, as in the case of the crime of attacking peacekeepers,
does not require any harmful impact on the civilian population or on the individual civilians
targeted by the attack, and is committed by the merelaunchingoftheattackagainstacivilian
populationorindividualciviliansnottaking directpartinhostilities,whohavenotfallenyetintothehands
oftheattackingparty.1 The ADF, in pursuit of attacking ALA bases launched attacks in civilian
areas near the ISSF Compound on the morning of 15 September, 2015. One hundred identified
ADF soldiers attacked the ISSF base which resulted to the killing of eight ISSF personnel and
wounded twenty.2 A press statement3 is given by an ISSF soldier that the first rocket hit them
while preparing for dinner hence unguarded and ill-equipped against any act of violence against
them.
1 TheProtectionofPeacekeepersandInternationalCriminalLaw: LegalChallengesand
BroaderProtection page 595 Alice Gadler
https://www.germanlawjournal.com/pdfs/Vol11-No6/PDF_Vol_11_No_06_585608_Alice_Gadler.pdf
2 Facts15-16
3 Facts 17

Furthermore, the doctrine of Distinction4 provides that parties to the conflict must at all
times distinguish between the civilian population and combatants in order to spare the civilian
populations as a whole, nor individual civilians may be attacked. Attacks may be directed solely
against military objectives including combatants.But in contrary, the attack mde by ADF made
no distinction whether it would prejudice civilian areas and injure civilians themselves.
b. The ISSF is a peacekeeping mission in accordance to the charter of the United
Nations
Peacekeeping is a technique designed to preserve the peace, however fragile, where
fighting has been halted, and to assist in implementing agreements achieved by the peacemakers.
Over the years, peacekeeping has evolved from a primarily military model of observing ceasefires and the separation of forces after inter-state wars, to incorporate a complex mode of many
elements military, police and civilian working together to help lay the foundations for
sustainable peace.5
The three elements6 , consent of the parties, impartiality and lack of force used, necessary
to prove that an organization is a peacekeeping mission are present in this case.
Consent
The humanitarian situation in Alin summoned international attention resulting to the decision of
the UN Secretary- General to call all the parties in Alin to exercise their power of restraints 7.
President Aflan consented on the presence of the International Security Support Force when it
announced the compliance of the government with the Resolution X issued by the Security

4 Module 8 War Crimes

5 Peacekeeping Principles and Guidelines, p. 18.
6 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon
Augustine Gbao, Judgment 225
7 Facts 12

Council acting under Chapter VII of the Charter of the United Nations. It allows the
establishment of ISSF base in Astor. 8
Impartiality
The peacekeeping force is to remain impartial in their dealings with the parties, which should not
be confused with absolute neutrality. This impartiality must involve the adherence to the
principles of the Charter and the objectives of a mandate. 9The ISSF, as provided by the
Resolution X, was mandated to protect civilians and civilian populated areas under threat of
attack in Alin, and maintain security. 10 It is actually consists of Military Observers Unit (MOU)
A Civilian Police Force (CPU), and a Protection Force Unit (PFU). 11 Throughout the outbreak,
the ISSF was merely protecting the civilian areas which were also being attack by ADF forces.
Upon the first attack made in the civilian area near ISSF compound, the ISSF immediately
requested the cessation of the attack but it went unheeded. Furthermore, before the occurrence of
the attack on September 15, 2013, the ISSFs PFU had several confrontations with ADF units as
the military group was firing at areas where civilians were concentrated. 12 Any offense made by
ISSF were only made to protect the civilian areas and to maintain security, in compliance with
the mandate of Resolution X.
Non- use of force except in self- defence
The peacekeepers are only authorized to use force in self-defence. It is now settled law
that the concept of self-defence for these missions has evolved to include the right to resist
attempts by forceful means to prevent the peacekeeping operation from discharging its duties
8 Facts 13
9 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon
Augustine Gbao, Judgment 227
10 Facts 12
11 Facts 13
12 Facts 14

under the mandate of the Security Council. 13 A request by the ISSF for the cessation of the attack
of the military to the civilian area near their compound went unheeded which resulted to the
firing of the anti- aircraft machineguns at the fighter jets from the ISSF compound. This move
made by the ISSF could only be considered as an act of self- defense for the protection of the
population and of their base showing their eagerness to put a stop on the attack being made by
the ADF.
c. The ISSF is entitled to that protection given to civilians or civilian objects under
the international law of armed conflict.
As found and established above, the ISSF is only allowed to use force necessary for selfdefense, and in order to protect the civilian population under the threat of attack of the ADF. To
ensure the protection and security of the civilians, the ISSF was divided into several groups
which has their distinct duties particularly. Accordingly, the CPU, composed of merely 80
members and mandated to maintain public security was the only group armed with light weapons
14

which shows that ISSF is well aware of the fact that they are there merely to ensure safety and

security of the populace and not to use heavy weaponry, and instead turn to light ones in case the
necessity arose.
No evidence can be deduced that ISSF directly took part on the hostilities or used force
beyond self- defence. On the contrary, the evidence indicates that, when faced with hostility,
ISSF personnel will retaliate only after attacks were made against the civilian population. Never
did they initiate any attack against the ADF. Again, a witness from the ISF testified in press that
they were just preparing for dinner when the first rocket hit them showing lack of initiative to
fight from their camp. 15
Mens Rea

13 Special Court for Sierra Leone Prosecutor vs Issa Hassan Sesay Morris Kallon
Augustine Gbao, Judgment 228
14 Facts, 13
15 Facts, 15, 21

Mens rea for purposes of prosecutions in the ICC is based on the civil law distinction
between dolus directus , dolus indirectus and dolus eventualis. Dolus directus is present when the
perpetrator foresees the harmful consequences of the criminal act and wants to bring about those
consequences.16In the Lubanga case, PTC I asserted that reference to the intention and
knowledge in a conjunctive way requires the existence of a volitional element on the part of the
suspect. The volitional element refers first to situations in which the suspect (i) knows that his
acts or omissions will materialize the material elements of the crime at issue; and (ii) undertakes
these acts or omissions with the concrete intention to bring about the material elements of the
crime.17
The perpetrators under the authority of Gen. Amir upon the attack to the civilian area
suspected to be ALA bases foresees the harmful consequence of damaging and attacking the
ISSF Compound. The attack is an act of retaliation by the perpetrators against ISSF when the
latter fired back after the ADFs attack on the civilian area thereby establishing the intent to make
such.18
2. GENERAL HASSAN AMIR SHOULD BE INDICTED ON THE BASIS OF
INDIVIDUAL CRIMINAL LIABILITY
Under Art. 25 (3)(a) of the ICC Statute, the perpetrator behind the perpetrator liability is
based on control on hierarchal organization

19

comprising sufficient fungible subordinates

16 Johan Van Der Vyver The International Criminal Court And The Concept Of Mens Rea In
International Criminal Law

17 The Diversification and Fragmentation of International Law edited by Larisssa

Van de Herick and Carsten Stahn https: // books .google.com.ph/books?
id=NxMszJ6x81cC&pg=PA506&lpg=PA506&dq=dolus+indirectus+rape&sour
ce=bl&ots=wgUFrEnnkY&sig=IiKjMJzu1Pd F_yJ1iuwbWFVjlPg&hl=en& sa=X&ve
d=0CC8Q6AEwA2oVChMInLiW lM72xgIVCiSOCh1dzg_X#v=onepage&q&f=false
18 Facts, 15
19 Antonio Cassesse, Cassesses International Criminal Law (3 rd edn, OUP 2008)
178; Kai Ambos, Treatise on International Criminal Law Volume 1; Foundations and
General Part (OUP 2013) page 159

ensuring automatic compliance with the leaders will.20 The combination of co- perpetration
based on joint control and indirect perpetration through other persons is a mode of liability that is
best suited for the cases of senior leaders 21. In this form of participation, the perpetrator by
means holds a superior position.22
The objective requirements common to both co-perpetration (or "direct" co-perpetration) and
indirect co-perpetration based on the notion of joint control over the crime are: (a) the existence
of an agreement or common plan between two or more persons; and (b) the co-ordinated
essential contribution by each co- perpetrator resulting in the realization of the objective element
of the crime.
Existence of an agreement of a common plan can be inferred from the alleged coordinated essential contribution of General Amir resulting in the realization of the
objective elements of the crime.
The existence of an agreement or common plan need not to be explicit arid "can be inferred
from the subsequent concerted action of the co-perpetrators.23
After the instruction of Gen. Amir to Colonel Adada on 14 June 2013 to always stay vigilant
in the fight against terrorists and always be pro- active, there were several raids committed by
ADF soldiers in their pursuit of ALA members.

24

Subsequent actions by the troops and Gen.

Amir together with Colonel Adada show the common plan of making the eliminations of
terrorists and ISSF in the country. After the encounter in the morning where civilian areas
suspected to be ALA bases where directly attacked in search of ALA members, one hundred
20 Katanga (n15), 511
21 Ibid, 492
22 Gerhard Werle,Principles of International Criminal Law (TM, Asser Press 2005)
123
23 Situation In Darfur, Sudan In The Case Of The Prosecutor V. Bahar Idriss Abu Garda Pre
Trial Chamber I February 8, 2010180

24 Facts, 11

identified ADF soldiers attacked the ISSF base itself despite the previous request of ISSF to Gen.
Amir to cede the attacks25 Hence, Amir is aware of the fact that what they are attacking where
civilian areas and the ISSF base but they still continue on their attack. After the attack, the
presence of these high ranking officials were spotted, Colonel Adada outside the compound
while the attack is going on26, and Gen. Amir supervising ADF operations during or after the said
attack. 27 The subsequent declaration of President Aflan of the resentment 28with the international
force strengthened the conclusion that they want to remove ISSF in the country. Hence, Amirs
words and subsequent actions and supervision resulted to the objective of attacking ISSF
compound.
Herein, General Hassan Amir is the head of the Alini Defense Force (ADF) since1980, 29 and
thus he had control over the crimes committed by his troops as a result of his authority over his
military organization30.
The perpetration by means presupposes that the person who commits the crime
(intermediary) can be used as an instrument or tool by the indirect perpetrator as the master-mind
or "individual in the background"31. He or she is normally an innocent agent, not responsible for
the criminal act. The perpetrator by means is also considered a principal at common law 3216.
However, especially in the field of "macrocriminality", i.e., systematic or mass criminality
25 Facts, 15
26 Facts, 17
27 Facts,19
28 Facta, 20
29 Facts, 1
30 Prosecutor vs Bemba (Decision on the Prosecutors Application for a Warrant of
Arrest) ICC- 01- /05-01/08, P-T Ch III (10 June 2008) 78
31 See generally for perpetration by means G. Fletcher, supra note 6, 197-200; H.-H.
Jescheck/Th.Weigend, Strafrecht. Allgemeiner Teil 62, 662 et seq. (5th ed. 1996).

organized, supported or tolerated by the state, the direct perpetrator or executor normally
performs the act with the necessary mens rea and is fully aware of its illegality. The principal
dominates the direct perpetrators by way of a hierarchical organizational structure.
The ADF Commander in Orkan, Colonel Adada, who is a popular figure among his forces,
reported to General Amir and took instructions from him directly.

33

Such fact establishes the

authority and hierarchial ascendancy of General Amir to Colonel Adada and to the latters troop.
During a staff meeting in Orkan, where Colonel Adada was present, Gen. Amir demanded that
measures be taken to end the illegal occupation of the ISSF in the country.34
Hence, in the light of these, Gen. Amir is criminally responsible and must be indicted under
Art. 25(3)(a) of the ICC Rome Statute.

32 See comment to Model Penal Code, supra note 13, 2.06.

33 Facts, 6
34 Facts, 21