Sist oppdatert 31. mars 2007 av TEG
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UiB : Juridisk Fakultet : eksamen : valgemner
Autumn 2006
JUS 361 Final Exam
The following fact situations are hypothetical and for educational purposes only.
The countries and conflicts are real, but recent events and circumstances have been changed or created to provide issues for this exam. You can assume the truth of the information provided when you answer the question, and if you are familiar with the conflict you should not consider any facts outside this summary when you answer the question. Read the questions carefully, and read them again before you hand in your paper.
Exam Question 1
For more than three decades after independence under the leadership of its first president,
Felix Houphouet-Boigny, Ivory Coast was conspicuous for its religious and ethnic harmony and its well-developed economy. All this ended when the late Robert Guei led a coup which toppled Felix Houphouet-Boigny's successor, Henri Bedie, in 1999.
Mr Bedie fled, but not before planting the seeds of ethnic discord by trying to stir up xenophobia against Muslim northerners, including his main rival, Alassane Ouattara.
This theme was also adopted by Mr Guei, who had Alessme Ouattara banned from the presidential election in 2000 because of his foreign parentage, and by the only serious contender allowed to run against Mr Guei, Laurent Gbagbo.
When Mr Gbagbo replaced Robert Guei after he was deposed in a popular uprising in
2000, violence replaced xenophobia. Scores of Mr Ouattara's supporters were killed after their leader called for new elections. In September 2002 a troop mutiny escalated into a full-scale rebellion, voicing the ongoing discontent of northern Muslims who felt they were being discriminated against in Ivorian politics. Thousands were killed in the conflict.
French and UN peacekeepers patrol the buffer zone which separates the north, held by rebels known as the New Forces, and the government-controlled south. Peace talks brokered by other African nations and France have, so far, failed to reunite the country.
Under a 2003 peace deal the government is to disband loyalist militias and pass political reforms. In return, the New Forces are to lay down their weapons. But disarmament has yet to begin.
The ideology of ivoirite (or "Ivoirianness”) as employed as early as 1994 by then
President Henri Konan Bedie. This vague concept excludes foreigners – people who come from outside Ivory Coast or who have at least one parent not born in Ivory Coast – from public jobs and political life. The current president, Larurent Gbagbo, has offered preferential treatment for his ethnic group, the Betes (one of the country's largest), at the expense of non-Ivoirians and other ethnic minorities. By 2002, the animosity between the country's many ethnic groups plus a more severe economic slump helped trigger armed conflict.
France has a long history of involvement in this part of Africa. After ethnic turmoil reached its peak in September 2002--when rebel soldiers attacked the economic capital of
Abidjan and invaded the northern portion of the country--French authorities became involved, in accordance with a military agreement concluded in 1962, two years after Ivory Coast's independence. That document requires France to intervene in the West
African nation in case of "characterized external aggression." Paris initially hesitated because it could not determine whether the attacks came from a foreign country.
For France, a diplomatic solution was essential: Between 15,000 and 18,000 French citizens live in Ivory Coast, and France is the African nation's top trading partner. A little more than a week after the negotiations began in Marcoussis, outside Paris, in January 2003, the parties put together a "tool kit," as Gueye calls it, to end the crisis. Under this agreement, Gbagbo would remain president until the next election in 2005. Until then, he would share power with the main rebel group and let his opponents choose a new prime minister, who would lead the executive branch. Moreover, the rebels would choose the ministers of defense and interior. But on January 25, when the agreement was supposed to be signed, Gbagbo balked, threatening to resign altogether. Finally, after negotiating with French President Jacques Chirac, French Foreign Minister Dominique de Villepin, Gabonese President Omar Bongo, and U.N. Secretary-General Kofi Annan, the rebels and Gbagbo agreed the president would control the selection of a prime minister but would relinquish power over the ministries of defense and interior.
Over the past month, the Ivoirian capital has plunged into chaos, with mobs attacking foreigners, or anyone who does not meet the standard of "ivoriness" as determined by the mob. Young "patriots" financed by the president took their anger to the streets and the police did nothing to stop them, it appeared they had the tacit approval of the president.
Foreign shopkeepers and their families and Muslims from the north were all targets of the mobs, and the government controlled radio station fueled the conflict by announcing the locations of foreigners who were trying to flee. The death toll over the past week alone is said to be over 2,000. Mobs also vandalized French institutions in Abidjan, screaming that the French were behind a plot to depose their president. French and UN peacekeepers in the area are reporting their opinions that the situation is set to explode and get much worse if no action is taken.
At an emergency meeting of the United Nations Security Council, the President of France today declared acts of genocide were now underway in the Ivory Coast and he made an impassioned plea for intervention. He stated that it is "the legal obligation of all nations" to prevent and stop the slaughter, and that “we must not repeat the mistakes of Rwanda."
He offered French troops to lead an initial force of 5,000 UN troops under the authority of a UN Security Council Resolution. The Security Council is now set to debate the issue.
Questions: Does International Humanitarian Law (IHL) apply to this situation, and if so, what type of conflict is underway? What level of protection under IHL should be available to the civilian shopkeepers in Abidjan? What rights and responsibilities do French troops and UN Peacekeepers have, those who are already on the scene?
Is the French President correct about the issue of genocide? Are there any other alternatives in terms of legal analysis of the situation? If crimes have been committed, what courts might have jurisdiction?
From the point of view of one of the members of the Security Council, what advice and options will you provide to the Council? Your final comments do not have to be strictly legal, you can briefly discuss the military, diplomatic or other aspects of the problem.
Exam question 2
NATO News Clip1 : On 28 September 2006, the North Atlantic Council gave final authorisation for the NATO-led International Security Assistance Force (NATO-ISAF) to expand its area of operations to 14 additional provinces in the east of Afghanistan, boosting NATO's presence and role in the country. The decision follows consultations with non-NATO countries that are contributing troops to the mission.
With this further expansion, NATO-ISAF will assist the Government of Afghanistan in providing security throughout the whole of the country. “Today's decision to expand the mission to the whole country, coupled with substantial offers to equip the Afghan army, are more examples of the progress we are making to help Afghstan build a better future", said NATO Secretary General Jaap de Hoop Scheffer. The number of troops under NATO command will increase from the current 20,000 to over 30,000. Most of these forces are already in place in Afghanistan. They will be transferred to NATO command once the Activation Order is issued by General Jones.
AP News Clip 2: Dateline Kabul, Oct 4, 2006. NATO Combat operations continued in
Southern Afghanistan today, with F-16 Aircraft of the United States and the Netherlands sharing the responsibility for 25 combat sorties against suspected Taliban targets. NATO spokesman Major Jeff Jones stated that last night NATO Aircraft struck six targets in Kandahar Province, all of which were buildings and camps known to be harbouring Taliban militants. Major Jones stated: "Before the target list was approved, we made sure that we had accurate intelligence on the enemy in the camps. Unfortunately, the Taliban often place their strongholds in or near civilian villages. But we do everything possible to avoid casualties, and we use precision weapons and night vision devices to be as accurate as possible." Major Jones declined to answer questions about a report in the Dutch press last week that Dutch aircraft had been selectively declining missions because of the risk of civilian casualties.
HRW Press release Oct 5, 2006, At least twenty-five, and possibly as many as thirty-five, Afghan civilians died when U.S. bombs and gunfire hit their village, Chowkar-Karez, on the night of October 3, Human Rights Watch said today. None of the witnesses interviewed by Human Rights Watch knew of Taliban or Al-Qaida positions in the area of the attack.
"If there were military targets in the area, we'd like to how what they were," said Sidney Jones, Asia Director of Human Rights Watch. "This is the second instance in less than a week in which we've documented substantial civilian casualties from NATO bombing raids." Among those wounded by the bombing are forty-year-old Sardar Bibi, who lost her husband and six children in the attack; five-year-old Shabir Ahmed, who received severe shrapnel wounds to his head and remains unconscious; Shabir Abed's seven-year-old brother, who was also wounded; and three adult sisters.
According to the highly consistent accounts of the survivors, the bombs came from several aircraft that flew over the village of Chowkar-Karez, which is located in the Buri-Kala area of Kandahar province, some forty kilometers north of the city of Kandahar. The attack began at about 11 p.m. on the night of October 3, 2006. Many of the people in the village then ran out of their homes, afraid that the bombs would fall on the homes. All witnesses stated that aircraft then returned to the area and began firing from guns. Many of the civilians were killed from the firing. The bombing and firing lasted for about one hour.
All of the witnesses interviewed by Human Rights Watch were adamant that there were no Taliban or Al-Qaida positions in the area of the attack, which is in a remote rural area of Afghanistan. In almost all other cases of civilian casualties caused by the US.-led bombing campaign investigated by Human Rights Watch, survivors and witnesses have been forthcoming in identifying Taliban or Al-Qaida military positions located nearby which could have been the target of the attack. It is impossible for Human Rights Watch to verify independently whether Taliban or Al-Qaida military targets existed in the area of Chowkar-Karez village, but the consistent statements of all witnesses and survivors that there were none is notable.
Mushfeqa, aged twenty, was interviewed by Human Rights Watch in a Quetta hospital where she and two sisters were recovering from shrapnel wounds. She explained that she and her extended family had fled from the city of Kandahar to their rural homes in Chowkar-Karez when the NATO bombing campaign began. She told Human Rights Watch, "It was at about 11 p.m. First, one plane came and dropped a bomb. We ran out of the home, because we were afraid to die there. Then, some went back inside. I was at the door, and some of the small children were outside. Then the plane came and it was firing. I saw my mother and my brother shot. My uncle ran to his car to turn off the lights. Then a bomb hit the car and he died. ... When the next bomb came, I was inside the room. I was injured from the shrapnel. "
Shafiqa, a sister of Mushfeqa who was also wounded in the attack, told Human Rights Watch that in total nineteen members of the extended family had died and provided a list of names which included the names provided by Belqais and Mushfeqa as well as others. She confirmed that there had been many civilian casualties in the village, and gave a similar death toll from one family as that given by the family interviewed by Human Rights Watch (see above): "Many people died and many were wounded. Eighteen people died from our neighbourhood, and seventeen others died who were relatives."
A Human Rights Watch representative on the scene identified dozens of unexploded yellow can-shaped objects that appeared to be CBU-87 cluster bombs. Human Rights Watch has warned NATO in the past about the use of such weapons, which are the same color and size as food packets distributed to Afghan civilians.
The incident in Chowkar-Karez village happened a day after twenty-three civilians, the majority of them children, were killed when NATO bombs hit the remote Afghan village of Thori located near a Taliban military base in Oruzgan province. Human Rights Watch reiterated its call to NATO to ensure that it is taking adequate precautions to avoid civilian casualties, and called for an immediate investigation into the bombing raid that hit Chowkar-Karez, located some forty kilometers north of the Taliban stronghold of Kandahar. A further demand was made to stop using cluster bombs which are inherently indiscriminate and should never be used in areas populated by civilians.
Questions: Does International Humanitarian Law (ML) apply to this situation, and if so, what type of conflict is underway? What level of protection under IHL should be available to the civilians in Kandahar Province? What rights and responsibilities does NATO have in carrying out military action?
What about the reports of Dutch aircraft not participating in certain missions? Could there be a different standard between the US and the Netherlands? If so, describe and discuss.
From the point of view of NATO, what advice and options would you provide to the commander? Should there be an investigation? Should NATO stop using cluster bombs? Your final comments do not have to be strictly legal, you can briefly discuss the military, diplomatic or other aspects of the problem.
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