On 21 January 2016, The Armée de l’air (French Air Force ) (FAF) launched a series of attacks against the Islamic State of Iraq and Syria (ISIS) in the Syrian city of Al-Raqqah. The justification for the FAF attack was in response to confirmed reports that ISIS had begun a campaign to annihilate the entire civilian Kurdish population of Al-Raqqah (estimated to in the order of 2000 people) by the use of chemical weapons. The Kurds are a minority group in Al-Raqqah and have been kept as virtual prisoners in the city after ISIS captured it in 2014. The purpose of the French bombing campaign was to slow down the killing of the Kurds until ground forces of the military wing of the Kurdish Workers Party (PKK) could reach Al-Raqqah from their northern Syrian stronghold of Hasake. While the FAF directed its attack at ISIS military bases in Al-Raqqah, it is well known that ISIS routinely house women and children with them in their military bases. As a result of the FAF bombing, ISIS claimed that the French have killed 36 women and 15 children. The French Government immediately conducted an investigation into the matter which revealed that 5 children were killed in the line of fire but all the adults killed, (both men and women) were at the time ISIS activists.
On 23 January 2016 Turkish military aircraft attacked a column of PKK soldiers while they were in the process of trying to reach Al-Raqqah from Hasake. As many as 300 PKK soldiers were killed. Turkey’s explanation for the attack was that Turkey and NATO both regard the PKK as a terrorist organisation. France also regard the PKK as a terrorist organisation but do not consider the Kurds of Al-Raqqah as members of the PKK. The UN has not declared the PKK a terrorist organisation. The Turkish attack on the PKK column significantly slowed the PKK advance which in turn enabled ISIS to exterminate all 2000 of the Al-Raqqah Kurds. During the course of the airstrike, PKK anti-aircraft fire brought down 8 Turkish aircraft. The pilots of these aircraft managed to eject from their aircraft before the planes crashed. The PKK captured these pilots and handed them over to Syrian Government forces.
On 4 September 2015 Russia, (backed by Syria), sought a resolution of the UN Security Council to give the International Criminal Court (ICC) limited jurisdiction to investigate the Turkish attack on the PKK. The resolution failed to pass the Security Council with the USA exercising its veto. The Syrian Government has agreed to hand over the 8 pilots to the ICC should an arrest warrant be issued. This Security Council deadlock has prompted an angry exchange between the USA and Russia. In an attempt to broker détente between the USA and Russia, Switzerland has requested the ICC to conduct a preliminary investigation into the PKK incident with a view to determining whether or not there is evidence of any international crimes having been committed.
You are employed in the Office of the Prosecutor of the ICC. You have been asked by the Prosecutor to prepare an opinion and address following matters:-
(1) What is the status of the above parties to this conflict and what is the relevant international law applicable to them?
(2) What authority does Switzerland have to request the ICC to investigate this matter?
(3) What (if any) authority would the ICC Prosecutor have to independently investigate and or prosecute the case in the absence of a UN Security Council referral?
(4) Has any international crimes been committed, if so what and by whom? What additional evidence would you require in order to make out the relevant charges?
(5) What information would the Prosecutor need to have in order to justify an application for an arrest warrant? What would the prosecutor need to do in order to have an arrest warrant issued?
(6) What defences might be open to any of the potential accused? Could their national governments move the court to decline to accept jurisdiction? What would be the basis of this application?
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