Switzerland the Niyonteze Case Study
Order ID 53563633773 Type Essay Writer Level Masters Style APA Sources/References 4 Perfect Number of Pages to Order 5-10 Pages Description/Paper Instructions
a. Was Rwanda in a state of armed conflict during the period in question? Was the conflict international or non-international? (GC I-IV, Arts 2 and 3; P II, Art. 1)
b. Does Protocol II apply until a peaceful settlement of a conflict is achieved? (P II, Art. 2(2))
c. Does Art. 2 define the field of application ratione personae of Protocol II?
2.
a. Who is protected by Art. 3 common to the Geneva Conventions and by Art. 4 of Protocol II?
b. Does the IHL of non-international armed conflicts protect, in their capacity as persons not taking part in hostilities, only those who are not perpetrators? (GC I-IV, Art. 3; P II, Art. 4)
3.
a. Does the material field of application of the provisions of the Swiss Military Penal Code that concern offences against IHL meet the requirements of the provisions of IHL on grave breaches? Is it more restricted or does it go further? (GC I-IV, Arts 49/50/129/146 respectively) [See Switzerland, Military Penal Code]
b. Does Switzerland have the right to make violations of international agreements punishable even if the agreements themselves do not provide for criminal responsibility? Even concerning acts committed in foreign countries by foreigners against foreigners?
c. Does Art. 109 of the Swiss Military Penal Code [See Switzerland, Military Penal Code] make all violations of the Geneva Conventions punishable? Only grave breaches? Also violations of customary IHL?
d. Is the wording of Art. 109 of the Swiss Military Penal Code sufficiently precise for a provision of criminal law?
4.
a. Why could Mr Niyonteze not be prosecuted for genocide? Because genocide is not an offence in Switzerland? Or because the genocide was committed abroad and Switzerland therefore did not have jurisdiction?
b. Is Switzerland bound by the prohibition of genocide? Is genocide punishable in Switzerland? Is the prohibition of genocide included in the international treaties on the conduct of hostilities or the laws and customs of war? Is genocide prohibited in the event of armed conflict? Only in the event of armed conflict?
c. If a genocide is committed during an armed conflict, does it fall within the scope of Art. 109 of the Swiss Military Penal Code? Only if the armed conflict is international?
d. Why can Swiss courts apply customary international law in the event of an international armed conflict but not of a non-international armed conflict? Is customary international law not part of domestic law in a monist legal system such as Switzerlands?
5. Can a violation of the customary IHL applicable to non-international armed conflicts be punished by Switzerland? Should a violation of Art. 3 common to the Geneva Conventions or of Protocol II be punished in Switzerland, according to these instruments? According to customary IHL as interpreted by the ICTY in the Tadic case on jurisdiction? [See in particular para. 134 of that decision, See ICTY, The Prosecutor v. Tadic [Part A]]
6.
a. Why is a Swiss military court competent to prosecute a Rwandan who committed violations of IHL against Rwandans in Rwanda? Is this prescribed by IHL? Would it be prescribed by IHL if the conflict in Rwanda had been classified as international? (GC I-IV, Arts 49/50/129/146 respectively)
b. Is a Swiss military court competent to prosecute a Rwandan who committed ordinary crimes against Rwandans in Rwanda? Why not?
c. In your country, in what circumstances can violations of IHL also be prosecuted as common crimes?
7. Were Art. 3 common to the Geneva Conventions and Protocol II applicable throughout the territory of Rwanda? Or only where there was fighting between the government and the Rwandan Patriotic Front?
8.
a. Who are the addressees of IHL of non-international armed conflicts? Who can be said to have violated Art. 3 common to the Geneva Conventions? Protocol II? Anyone committing a prohibited act in a territory where a non-international armed conflict is under way? Does there need to be a link between the armed conflict and the prohibited act? Does the perpetrator have to belong to a party to the conflict? To the armed forces of a party? Does he have to be serving in the civilian administration or in the armed forces?
b. On the question of determining for whom the prohibitions of the IHL of non-international armed conflicts are intended, are you inclined to agree with the Military Appeals Court, the ICTR Trial Chamber, the Swiss Military Court of Cassation or the ICTR Appeals Chamber? [See ICTR, The Prosecutor v. Jean-Paul Akayesu [Part B.]] Does the Swiss Military Court have the right to deviate from ICTR case-law? Does the ICTR not, by virtue of Art. 8(2) of its Statute (adopted by the Security Council under Chapter VII of the United Nations Charter), have primacy over the national courts of all States?
c. According to the ICTR Trial Chambers interpretation, could a doctor in a civilian hospital violate the obligation to care for the wounded laid down in Art. 3(2) common to the Geneva Conventions and in Art. 7 of Protocol II? Could a judge violate the judicial guarantees laid down in Art. 3(1)(d) common to the Geneva Conventions and in Art. 6 of Protocol II? Could a prison guard violate Art. 5 of Protocol II ? Would the ICTR Trial Chambers interpretation render these provisions meaningless?
9.
a. Did Mr Niyonteze violate Arts 3, 146 and 147 of Convention IV and Art. 4 of Protocol II or only some of these provisions?
b. Under the laws of your country, does a prosecution for war crimes involve the need to specify the identity or the number of the victims? In what cases?
c. Do Arts 146 and 147 of Convention IV contain rules that could be directly applied in a monist constitutional system such as Switzerlands? Are these articles applicable to non-international armed conflicts?
10.
a. Why was Mr Niyonteze acquitted of violating his duties as bourgmestre? Were his omissions with respect to the lives of thousands of inhabitants of his community considered to be part of the actions taken that led to charges against him? Were they not punishable under an applicable law? Does a non-military leader not bear penal responsibility owing to his position of authority? (P I, Arts 86(2) and 87)
b. Is the fact that Mr Niyonteze was a bourgmestre an aggravating factor or a mitigating circumstance? Could he have prevented his community from taking part in the genocide even though doing so was badly thought of by those in power? If he had neither called the people to Mount Mushubati nor visited the Kabgayi camp, would he nevertheless have committed a wrongful act by the mere fact of having allowed the genocide to take place in his community?
11. What were the costs and the practical and intercultural problems for Switzerland arising from the prosecution of Mr Niyonteze? Were they worth it? Could Switzerland have handed the case over to the ICTR [See ICTR Statute, Arts 8, 17 and 28, UN, Statute of the ICTR]? What in your view are the advantages and disadvantages of Mr Niyonteze being tried by a Rwandan, international or Swiss court?
RUBRIC
QUALITY OF RESPONSE NO RESPONSE POOR / UNSATISFACTORY SATISFACTORY GOOD EXCELLENT Content (worth a maximum of 50% of the total points) Zero points: Student failed to submit the final paper. 20 points out of 50: The essay illustrates poor understanding of the relevant material by failing to address or incorrectly addressing the relevant content; failing to identify or inaccurately explaining/defining key concepts/ideas; ignoring or incorrectly explaining key points/claims and the reasoning behind them; and/or incorrectly or inappropriately using terminology; and elements of the response are lacking. 30 points out of 50: The essay illustrates a rudimentary understanding of the relevant material by mentioning but not full explaining the relevant content; identifying some of the key concepts/ideas though failing to fully or accurately explain many of them; using terminology, though sometimes inaccurately or inappropriately; and/or incorporating some key claims/points but failing to explain the reasoning behind them or doing so inaccurately. Elements of the required response may also be lacking. 40 points out of 50: The essay illustrates solid understanding of the relevant material by correctly addressing most of the relevant content; identifying and explaining most of the key concepts/ideas; using correct terminology; explaining the reasoning behind most of the key points/claims; and/or where necessary or useful, substantiating some points with accurate examples. The answer is complete. 50 points: The essay illustrates exemplary understanding of the relevant material by thoroughly and correctly addressing the relevant content; identifying and explaining all of the key concepts/ideas; using correct terminology explaining the reasoning behind key points/claims and substantiating, as necessary/useful, points with several accurate and illuminating examples. No aspects of the required answer are missing. Use of Sources (worth a maximum of 20% of the total points). 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