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PLEADINGS

It is a well-enshrined right of an accused to be presumed innocent unless the
contrary is proved before the Court and by applicable laws.
1
To overcome this
presumption, the onus is on the prosecution
2
by convincing the Court of the guilt of the
accused beyond reasonable doubt.
3
It is the contention of the defense that the charges
against the accused do not overcome this presumption.

NO INTERNATIONAL ARMED CONFLICT EXISTED
Tadic provides that a non-international armed conflict is a “protracted armed
violence between governmental forces and organized armed groups”.
4
This was
confirmed in Hamdan v. Rumsfield which “reflects the historic view that (international)
war could only take place between states”.
5
In this case, Yukule is not a State, hence,
there can be no international conflict between Astro and Yukule.
Moreover, in order for an armed conflict to be classified as non-international,
Lubanga
6
established two requisites which should be satisfied: “organization” of the
party and “protraction” of the conflict. There is “organization” when the following
factors are present: the force or group’s internal hierarchy, the command structure and
rules, the insurance of political statements, the military equipment availability, the ability

1
Rome Statute, Art 66 (1)
2
Ibid. Art 66 (2)
3
Ibid. Art 66 (3)
4
Prosecutor v. Tadic (Appeal on Jurisdiction) ICTY (1997) at 70.
5
Hamdan v Rumsfeld, 548 U.S. 557 (2006) at 6.
6
ICC, Lubanga Trial Judgement, paras.533,534.
to plan and carry out military operations, the extent of military involvement.
7
On the
other hand, “protraction”
8
is present when these factors are satisfied: seriousness of
attacks, spread over territory, period of time, extent of government forces, mobilization
and the distribution of weapons.
9
In this case, both requisites are satisfied.
10

In the absence of international armed conflict, Gusman cannot be held liable for
the three charges of war crime.


7
ICTY, Limaj Trial Judgement, para.90; Haradinaj Trial Judgement, para.60.
8
ICTY, Mrksic Trial Judgement, para.407
9
Ibid. para. 538.
10
Compromis, para. 7, 8.