Part – I

Various allegations have been made in this particular case, including acts of mass murder,
sexual torture, and persecution, particularly against the Carnian Ethnic Group. We will be
analysing whether these acts by President Rojar and General Silva qualify as crimes against
humanity and genocide under international law, particularly under the Rome Statute of the
International Criminal Court.

Crime Against Humanity (Article 7 of the Statute)

Article 71 of the Rome Statute defines a Crime Against Humanity as any systematic or
widespread attack such as murder, extermination, enslavement, deportation, torture, rape, and
persecution against the civilian population with the knowledge about the attack. Also, there is
no requirement that such an attack should be related to an armed conflict.

Thus, if we examine the article, it mentions the acts such as murder, torture, rape, persecution
etc. conducted in a systematic manner against civilian population having a knowledge of the
attack constitutes to crime against humanity.

The requirements of the Crime Against Humanity that we can infer are:

• Attack against Civilian Population

• Widespread in nature
• Knowledge of the attack

Application to the Present Case

• Attack against Civilian Population

The civilians were particularly targeted in this present case, especially those belonging
to the Carnian group. These attacks happened on a large scale, and there were acts such
as murder, sexual violence, and persecution against a large number of people. This falls
under the definition of an attack against a civilian population.

• Widespread and Systematic

The attack was systematic and a lot of people were subject to torture including sexual
attack and murder
• Knowledge of the Attack

1
Article 7, Rome Statute of the International Criminal Court, 1998
 The General as well as President Rojar was aware about the attack and knew the
consequences of their actions.

Also, in the case of “Prosecutor v. Tadić (ICTY)2”, the court confirmed that crimes against
humanity require an organized attack policy, not necessarily governmental in origin. Also, in
“Prosecutor v. Kunarac3”, the ICTY emphasized that the “widespread” element relates to the
scale of the attack, while the “systematic” element relates to methodical organization. In the
“Bemba Case4” (ICC), command responsibility and the failure to prevent or repress crimes also
formed the basis for liability under crimes against humanity.

In light of the facts and the case laws mentioned, the present case falls under the ambit of
Article 7 of the Rome Statute.

Genocide (Article 6 of the Rome Statute)

Genocide is the crime defined in Article 65 of the Rome Statute and in a treaty of that name
adopted in 1948 as acts (such as murder, causing serious bodily or mental harm, or deliberately
inflicting on a group conditions of life calculated to cause its destruction in whole or in part)
undertaken with the intent of destroying, in whole or in part, a national, ethnical, racial or
religious group.

Genocide is characterised by the “special intent” or dolus specialis to annihilate the group as
such. the Carnians, who constitute an oppressed race in Vesperia, are a protected group under
international law.

Prohibited Acts Committed:

Most of the provisions set out below in article 6 have been enacted in the present case:

• Genocide: Numerous slaughters and mass executions of Carians;

• Inflicting serious bodily or mental harm: Documented cases of torture and rape;
• Deliberate imposition of life-threatening conditions

2
Prosecutor v Dusko Tadić, IT-94-1-T, Trial Chamber Judgment (7 May 1997), para 648.
3
Prosecutor v Dragoljub Kunarac et al., IT-96-23-T & IT-96-23/1-T, Judgment (22 February 2001), para 421
4
Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Trial Chamber III Judgment (21 March 2016),
para 171–183.
5
Article 6, Rome Statute of the International Criminal Court, 1998
 • Use of rape as a genocidal tool:

In Prosecutor v. Akayesu6 (ICTR), the court held that sexual violence may be a method of
genocide where it is used to cause serious harm with the intent to destroy. In Prosecutor v.
Krstić7 (ICTY), the Srebrenica massacre was classified as genocide based on targeted killings
and forced removals designed to eliminate a community. Jelisic and Kayishema cases
emphasize that public speeches encouraging extermination are strong evidence of genocidal
intent.

Thus, President Rojar and General Silva are culprit under Genocide.

2.

The Liability of General Silva falls under the Article 28 of the Rome Statute

Article 288 of the Rome Statute is also central to any consideration of Silva’s responsibility. It
also makes military commanders criminally liable if they knew or should have known that
their subordinates were committing crimes, but failed to prevent them or refer the matter for
investigation.

In Silva’s case:

He was the leader of a number of military units and had authority over Lieutenant Marco, who
executed many people, committed sexual violence and launched attacks against the civilian
population. There is evidence that Silva had knowledge of these crimes based on reports from
his subordinates. Despite being aware of this, she did nothing to either prevent the crimes or
punish them.

There could also be individual responsibility of General Silva under Article 25(3)(d) 9, which
prohibits, in respect to a group crime, any other act that contributes to the commission of the
crime by the group members with the aim or with the knowledge of the group’s crime. While

6
Akayesu (ICTR-96-4-T), Judgment (2 September 1998), paras 731–734
7
Prosecutor v Radislav Krstić, IT-98-33-T, Trial Chamber Judgment (2 August 2001), para 595.
8
Article 28, Rome Statute of the International Criminal Court, 1998
9
Article 25, Rome Statute of the International Criminal Court, 1998
Silva didn't command or execute the atrocities, his knowledge of and cooperation with
ongoing atrocities were sufficient to involve him in a larger criminal enterprise.

Moreover, under Article 25(3)(b)10, omission-based complicity may constitute criminal

complicity of an act of aiding and abetting—particularly if it was within his power and
responsibility to intervene. By his acquiescence and his continued direction of operations he
made possible the continue perpetration of atrocities.

General Silva is liable in this case

Part II

Use of force is generally prohibited under international law (with some exceptions – including
in particular the right of self-defence) under Article 51(1) of the United Nations Charter. This
article states that a state can defend itself when attacked. In the context of the Ukraine-Russia
hostilities, the relevant legal issue is whether Ukraine can invoke and properly exercise the
right of self-defence against Russia. This article describes the self-defence legal structure,
applies this structure to the Ukrainian context, and considers the contention for and against the
Ukrainian position.

Article 2(4) of the UN Charter prohibits the threat or use of force against the territorial integrity
or political independence of any state. However, Article 51 provides an exception:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security.”

Armed Attack

To trigger the right of self-defense, a state must be the victim of an “armed attack.” According
to the ICJ in Nicaragua, not all uses of force reach this level — it needs to be of a certain
gravity, such as a full-blown military attack or significant backing to armed surrogates. A few
of the acts that have been ascribed to Russia in the Ukraine-Russia conflict can be included.

10
Article 25, Rome Statute of the International Criminal Court, 1998
For the annexation of Crimea in 2014, Russian troops occupied Ukrainian territory, a move
broadly decried as a breach of sovereignty. Russia’s major military, financial, and logistics aid
to Donbass separatists is indirect armed aggression. Even more importantly, the 2022 full-scale
invasion, including heavy aerial bombing and land attacks, is a direct armed invasion. Taken
together, these actions provide sufficient justification for Ukraine’s invocation of the right to
self-defence under Article 51 of the UN Charter11.

Necessity and Proportionality of Ukraine’s Response

Ukraine has pursued a diplomatic and peaceful resolution to the conflict, including through
international bodies and truces. But as gross breaches of international law persist from the
Russian side with ongoing military aggression, which entail attacks on civilian infrastructure
and populated areas, the use of force in response to the need to protect territorial integrity and
civilian life is justified.

The force used by Ukraine has, for the most part, been restrained to self-defence and countering
an invader. There have been few, if any, credible reports of Ukrainian assaults across the
Russian border, and these are usually presented as attacking military facilities rather than any
civilian objective. There is a slight question as to the legality of cross-border raids, but
international law does not forbid responses to threats provided they are proportionate and
defensive, and especially if they are aimed at legitimate military targets.

Applicable Jurisprudence and Consultative Opinions

There are a number of legal precedents that call for Ukraine’s right to self-defence:

• Nicaragua v. USA (1986)12: The International Court of Justice stressed that aid to
armed bands could be an armed attack if it were to reach a significant level. Russia’s
armed and directed separatist role fits with this threshold.
• Advisory Opinion on the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (2004)13: This decision, which cast doubt on Israel’s
right to self-defence in occupied territory, also emphasised that pre-emptive self-
defence applies only to armed attack by a state. In the case of Ukraine, we’re dealing
with an attacker that is a state: Russia.

11
UN Charter, 1945
12
[1986] ICJ Rep 14, para 195
13
[2004] ICJ Rep 136, paras 138–139
Arguments in Favour

• Russia’s invasions fall under the ambit of armed attack under the UN Charter
• Ukraine’s action is an act to regain control over its territory
• Ukraine’s actions are more of self-defense actions and will be considered as an
exception
• Many States and international organisations like NATO have recognised Ukraine’s right
to self-defense

Arguments Against

• Ukraine’s act lacked proportionality while exercising self defense

• Ukraine’s action can cause escalation and can lead to a threat to international peace
and security

Conclusion

Ukraine has solid international legal grounds in order to confirm and invoke the right of self-
defense vis-à-vis Russia. military strikes -from the annexation of Crimea to the 2022 full-scale
invasion- amount to armed attacks under Article 51 of the UN Charter and applicable ICJ case-
law. The Ukrainian military response seems to meet that test for necessity and proportionality,
particularly when attempts to achieve a peaceful settlement have not gone very far. Even if
some measures, such as cross-border attacks, raise more specific issues, the basic right for
Ukraine to defend itself against continued aggression is quite clear according to standards of
international law.

Part III

The role of victims is increasingly central to discussions in, and practices of, international
criminal law. Victims of conflict have, in many ways, been drivers of transitional justice. to
prosecute the perpetrators of the world's most horrendous crimes and to bring some form of
justice and solace to their victims. The establishment of the International Criminal Court and
the adoption of the Rome Statute of the International Criminal Court in 1998, followed by the
ratification by the countries, has given a historical shift in the realm of international criminal
law.
The establishment of the ICC under the Rome Statute can be seen as a turning point in the
international criminal justice system, with victims not considered as mere passive beneficiaries
of justice, but seen as actors in the course of justice. Article 68 (3) of the Rome Statute
stipulates, “where the personal interests of victims are affected, the Court shall permit their
views and concerns to be presented and considered”. This provision changed the basic status
of the victim, from a mere ‘witness’ to a ‘participant’ who has its procedural rights.

Victim participation is governed under Articles 68, 75, and 79 of the said statute at the ICC.
Victims are allowed to put forward their views at different stages of the proceedings, especially
when their personal rights are infringed. In practice, the victims are represented by lawyers and
don’t directly involve themselves. ICC has set standards for victim participation in such a way
that it does not affect the rights of free trial for the accused. Thus, participation is subject to
judicial approval.

One of its most significant innovations is its reparations system, as represented in Article 75.
It provides for the Court to impose reparations against a perpetrator, which are categories of
relief that can be awarded to victims from the convicted person, such as restitution,
compensation, and rehabilitation. Art 79 creates importance of Trust Fund For Victims (TFV)
The article 79 establishes the important role of the Trust Fund of Victims (TFV) to implement
reparations particularly unveiled the convicted person is penniless.

The Court highlighted the collective nature of reparations in Prosecutor v Thomas Lubanga
Dyilo (Lubanga) (2012) and ordered symbolic and community-based reparations for victims
of child soldier recruitment in the DRC. Likewise, in Prosecutor v. Germain Katanga (2017),
the ICC awarded groups and individual reparations to victims of a village massacre,
demonstrating the court’s nuanced understanding of a wide range of harms.

Benefits of Victim Participation

• By giving voice to the ones who are directly affected, it enhances the democratic
legitimacy of the ICC.
• The Court can think about restorative justice and have a better perspective if there is
victim participation.
• Victim testimonies bring out the truth and help the prosecution in the trial.
• It promotes the healing process by giving victims narrative control.

Limitations
 • Victim Participation causes unnecessary delay in the procedure.
• There are representation issues that undermine the purpose of inclusion.
• Selective access and eligibility cause hierarchies in victimhood and go against the
democratic legitimacy of the ICC.
• It leaves a negative impact on the free trial of the case and creates a favourable
perception for the victims.

Way Forward and Conclusion

The ICC has established a victim-oriented international justice where its norms are restorative
and transitional. Victim participation and reparations complicate trials considerably but are
essential in ensuring that justice is not only done but is also seen to be done by those who have
suffered most from mass atrocity crimes. To enhance the effectiveness, the Court should spend
more on legal representation infrastructure, simplify procedure rules, and devise context-
sensitive reparative approaches. Moreover, when local communities and civil society actors are
more broadly engaged, the legitimacy and sustainability of reparations can be enhanced. As a
result, victim participation at the ICC constitutes both international criminal law’s moral and
legal change.