IRAC Assignment - War crime as a grave breach of the Geneva Conventions.
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Course
Conflict and Crimes
Institution
Vrije Universiteit Amsterdam (VU)
This assignment was graded 86/100
IRAC assignment: applying the legal definition of a war crime to a practical case where there is not an International Armed Conflict
International Crimes, Conflict and Criminology 2021/2022
Conflict and Crimes
Joana Inês da Costa Santos
Student number: 27322721
IRAC Analysis Assignment: The Armed Conflict in Maleventum
Issue: The main issue arising from this case is whether torturing the government
army's soldiers under the described circumstances can be qualified as a war crime as a
grave breach of the Geneva Conventions.
Rule: In order for the torture of the soldiers to qualify as a war crime, specifically a
'grave breach of the Geneva Conventions' (Article 8(2)(a)(ii) RS), the following
contextual legal elements must be satisfied:
There must be an international armed conflict: an international armed conflict
is defined as a recourse to violence between the armed forces of two or more
states; However, the intervention of a third state can internationalize a prima
facie internal conflict through:
o Direct intervention of a third state, which means that the third state is
fighting alongside the rebels, against the host state
o Indirect intervention of a third state that can be defined as the use of
rebels by the third state as "proxy" forces to fight the territorial state. In
order to prove so, the third state must pass the "overall control test":
the controlling state has a role in (i) organizing, coordinating, or
planning the general military actions of the military group, and is (ii)
financing, training and equipping, or providing operational support to
that group.
There must be a nexus between the underlying act and the said international
armed conflict: the nexus element means that the underlying act must be
"closely related" to the international armed conflict. To determine this, we
need to consider whether 'the existence of an armed conflict must […] played a
substantial part in the perpetrator's ability to commit [the crime], his decision
to commit it, the manner in which it was committed or the purpose for which it
was committed.';
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