You are on page 1of 25

3Defense

Prosecutor vs. Mr. Tony Gusman


Before the International Criminal Court at The Hague

October 2014

TABLE OF CONTENTS
TABLE OF CONTENTS......................................................................................................ii
INDEX OF AUTHORITIES................................................................................................iv
STATEMENTS OF FACTS................................................................................................vii
SUMMARY OF PLEADINGS.............................................................................................1
PLEADINGS.........................................................................................................................2
NO INTERNATIONAL ARMED CONFLICT EXISTED...................................................2
I. ADMIRAL TONY GUSMAN IS NOT LIABLE FOR THE WAR CRIME OF
STARVATION UNDER ARTICLE 8 (B) (XXV) AND ARTICLE 25 (3) (A).................3
A.

There is no deprivation to civilians of objects indispensible to their survival.


3

B.

There is no intention to starve civilians as a method of warfare..............5

C.

No individual criminal liability exist under Article 25 (3) (a) of the Rome
Statute. 7

II.
ADMIRAL TONY GUSMAN IS NOT LIABLE OF THE WAR CRIME OF
ATTACKING CIVILIANS UNDER ARTICLE 8 (B) (I) AND ARTICLE 28 (A)...........7
A.

The attack was of military necessity............................................................8

B.

The alleged attacks did not target civilians.................................................9

C.

The element of intent is missing.............................................................10

D.

Gusman is not responsible under Article 28(a).........................................11

III. Admiral Tony Gusman is not liable for the war crime of causing widespread, long-term
and severe damage to the natural environment under Article 8 (b) (iv) and Article 25 (3) (a).
.........................................................................................................................................12
A.

Military advantage is great.........................................................................12

B.

Environmental damage is not clearly excessive........................................13

C.

The mental element is not present.............................................................14

D.

Gusman is not responsible under Art. 25 (3) (b)......................................15


Page ii of xiii

PRAYER FOR RELIEF......................................................................................................17

INDEX OF AUTHORITIES
Treaties
Lieber Code of 1863
Protocol additional to the Geneva Convention of 12 August 1949, And relating
to the protection of victims of international Armed conflicts (Protocol I) of 8
June 1977
Page iii of xiii

8, 10
3, 4, 6, 9,

Rome Statute of International Criminal Court


United Nation Convention on the Law of the Sea

5, 13, 14, 15
5

Jurisprudence
Hamdan v Rumsfeld, 548 U.S. 557 (2006) at 6.
Haradinajtrial Judgement, Para.60.
ICC, Lubanga Trial Judgement, Paras.533,534
ICC, Bemba Decision on Confirmation of Charges, Paras.410, 411

2
2
2
11

ICC Mudacumura decision on the Prosecutors application under Art.58


15
ICTR, Akayesu Judgement para.642
16
ICTR, Appeals Chamber, Kamuhanda v. The Prosecutor, "Judgement", 19
16
September 2005, ICTR-99-54AA, para. 75
ICTY, Blaskic Trial Judgment, Para.38.
ICTY Jokic-Miodrag Trial Judgement, March 18, 2004
ICTY, Kordic Judgment, Para. 326-328
ICC, Lubanga Trial Judgement, Paras.533,534
ICTY, Limaj Trial Judgement, Para.90;
ICTY, Simic, Tadic and Zaric,October 17, 2003, Para.135
ICTY, Mrksic Trial Judgement, Para.407
Prosecutor v Akayesu, Case No. ICTR-96-4-T (Trial Chamber) September 2.

10
7
8
2
2
7
2
4

1998
Prosecutor v. Delalic (Celebici), Case No. IT-96-21-T, Judgment, para.378
Prosecutor v. Delalic, Trial Judgment para.393.
Prosecutor v. Tadic (Appeal on Jurisdiction) ICTY (1997) at 70
Prosecutor v. Stanislavgalic, Trial Chamber I, IT-98-29-T (5 Dec 2003), para.

11
11
2
14

58.
Prosecutor v. Strugar, Case No.IT-01-42-T (2005), para. 311.

14

Books and Journals


Commentaries on additional protocol I, Kunt Dorman,
Elements of Crime, International Criminal Court
ICRC Commentary on additional Protocol I
ICRC, Commentaries, No. 309, Part III, Sec. V (67) (a).
ICRC, Law of Armed Conflict
ICTY, Final Report to the Prosecutor by the Committee Established to Review
the NATO Bombing Campaign, para. 50.
Mark A. Drumbl, Waging War Against the World: The Need to Move From War
Crimes to Environmental Crimes, 22 FORDHAM INTL L. J. 122, 128 (1998).
The hostages trial, 8 law rep. Trials war criminals 34, 69 (1948)
Page iv of xiii

3
3, 5, 6, 7
3, 12
8
6
12

13
15

W.J. Fenrick, "Article 8(2)(b)(iv), in: O. Triffterer (ed.), Commentary on the

13

Rome Statute of the International Criminal Court, 1999, 197.

STATEMENTS OF FACTS
Background
1. Astro, Casa and Bereto border the Middle Sea with Casa located to the northwest of
Astro, facing the east coastline of Bereto.
2. Between 2003 and 2010, Astro was ruled by a military government led by General
Ayana and Admiral Gusman, with Ayana acting as the countrys President.
3. The Yukule Archipelago has been until 2008, under Bereton control and in charge of
Page v of xiii

its defence and foreign affairs, although it enjoyed complete autonomy in managing
its internal affairs.
4. Yukule Island, the only inhabited part of the Archipelago, populated by 1.5 million,
is also home to large bird populations. Oil and tourism are its main sources of
revenue Foodstuff is mainly imported from nearby countries, but there is a small
agricultural production mainly fruits and vegetable on the island.
5. Since the 1980s, Astro has been contesting Bereton sovereignty over the
Archipelago, based on its coasts proximity and the unlawful annexation of the
Archipelago after the Second World War.
6.

On 4th February 2008, the Astron Armed Forces invaded the same and quickly
gained control of Port Solferino.

7. On 10th February 2008, the Governor of the Archipelago voluntarily surrendered;


and a Military Administration was established to govern the Archipelago directly
under the supervision of the Crisis Military Commission. However, a resistance
militia, was formed and led by Colonel Spartan from the Bereton army. They used
guerrilla tactics, including the use improvised explosive devices along the main
roads of the island. Bereto was the main source of military supply to the resistance.
8. Facing an increasingly volatile situation in Yukule, on 1st July 2008, the Military
Administration established check-points in key areas of the island. Flow of goods in
and out of Yukule is also controlled while Anti-Astro attacks were still on rise. In
one incident, an ambulance carrying wounded Astron soldiers was hit by roadside
bombs, killing All 5 wounded soldiers; one nurse and one doctor. On several
occasions, fishing boats were caught transporting weapons and explosive devices to
Yukule. Astron vessels also suffered from surprise attacks from Yukulean fishing
boats.
Control measures
9. The Administration announced on 1st September 2008 that all foreign ships entering
a Maritime Control Zone had to request prior authorization from the Military. The
activities of local fishermen are also limited to 6 nautical miles offshore. Only
Page vi of xiii

goods exclusively used for civilian purposes would be allowed into Yukule.
10. Casa Radio reported that through the Astron Ministry of Healths monitors, the
Administration can estimate the quantity of food products allowed in and distributed
to the different areas of Yukule; its fishermen were allowed to sail at least 12 to 15
nautical miles from shore to catch larger shoals.
11. On the 15th November 2009, Solferino was severely attacked by militia. Dozens of
Astron soldiers and the deputy of the Administration were killed belligerently. A
number of wounded militia members were seeking shelter in the offices of several
humanitarian organizations. The next day, Admiral Gusman announced suspension
of all imports for security reasons.
12. The Peppermint Express vehemently accused Astro of deliberately starving Yukules
population and appealed for immediate international intervention, which was soon
reprinted by the international media. The next day, their chief editor was taken for
suspicion of colluding with Bereto. Gusman ordered to release the chief editor and
restored the website two days later.
Operation Blue
13. On 15th April 2010, ten NGOs formed a coalition under the name of Free Yukule
Movement (the Movement), led by the Bereton Sacred Fighters, a listed terrorist
group chaired by Jonas Borman.
14. The Movement announced that it had chartered a Casa registered vessel, Nirvana, to
deliver humanitarian packages to Yukule. Their aim was to send a message of
alarm to the international community.
15. The Bereton government expressed support for the alleged just cause of the
Movement. Thirty employees of Sphinx, a Bereton private security company
composed of former Bereton, were hired to escort to the convoy.
16. On July 1st, 2010, Nirvana, set sail for Yukule. On board were 200 passengers
citizens from Astro, Casa, Bereto and ten other countries; human rights activists and
anti-Astron protestors and Sphinx guards.
Page vii of xiii

17. Gusman received intelligence that Nirvana also had a stock of rifles, ammunition
and grenades on board. He appointed Commander Hanson to lead a troop of 60
marines to defend the Maritime Control Zone which under no circumstances be
compromised.
18. As Nirvana approached Port Solferino, it was informed that they will be allowed to
enter the controlled maritime zone if they submit their cargo for inspection and
control their passengers. Ignoring repeated warnings, it proceeded headland,
prompting Hanson to issue a final warning via radio that all available measures
would be taken to prevent unlawful entry and finally issued an order to board and
seize Nirvana.
19. A skirmish ensued upon boarding. Sphinx guards and passengers alike violently
resisted the commando, causing Commander Hanson to order his troops to open
fire. An hour lasted before the Sphinx guards surrendered. Casualties were
accounted for; the wounded treated; and everyone on board taken into custody.
20. Astro conducted an inquiry into Operation Blue, where Hanson pleaded self-defense
in ordering to open fire. The marines testified that some of the passengers were
heavily armed, violent, and specially-trained in combat activities, giving them
reason to believe that they were Bereton soldiers; and that most of the activists and
Sphinx guards disposed of their weapons in the water before surrendering.Hanson
was cleared of any responsibility and it was determined that Operation Blue was
lawfully conducted to ensure national security and self-defence.
Oil Spills and Oil Fires
21. Bereton deployed a naval task force on August 25, 2010 and an intensive air
campaign was launched against the Astron forces.
22. Unable to stop the attack, Rear Admiral Freedman consulted with Admiral Gusman
and was instructed to resort to all resources available to stall the enemy. On the
24th of September 2010, Freedman ordered Captain Ardent to open the valves of
three oil terminals and for three tankers to discharge oil on the western side of the
island, while Astro's ships moved eastward toward the Astron coast.
Page viii of xiii

23. Bereton naval forces were slowed down considerably, but managed to land on the
poorly defended southern port of Yukule on October 15. The following day, Gusman
commanded Ardent to take all measures possible to stop the advancement of the
Bereton forces. Oil storage tanks burst into flames.
24. In January 2011, the UNEP pointed out that the oil spills and fires could have a
major effect on the reef habitation offshore Yukule. Dr. Sulivan from the CMEPA
assured the public that the damage was not devastating, that it may take a few years
for the environment to return to its former state.
25. A study on Yukule's coral reefs conducted by a team from the national science
institutes from Astro, Bereto and Casa concluded that there was no significant
difference found between the species or families of oiled and non-oiled reefs off the
Yukulean coastline.
Referral to the ICC
26. At the end of 2010, Gusman was placed under house arrest while Astro and Bereto
agreed to jointly refer the situation of Yukule to the ICC. There has been no
definitive agreement as to the status of the Archipelago.
27. A hearing was conducted in the presence of the Prosecutor along with Tony Gusman
and his counsel to answer the following charges made against him.

Page ix of xiii

SUMMARY OF PLEADINGS
In criminal prosecution, the guilt of the accused must be proven beyond reasonable
doubt.

Admiral Tony Gusman is not criminally liable, as he has no control over his

subordinates who committed; ordered and/or contributed to the various atrocities. These
atrocities did not satisfy the elements of the war crimes of starvation as a method of warfare;
attacking civilians; causing of excessive incidental death, injury, or damage during an armed
conflict that violates the international humanitarian law.

Page 1 of 16

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. 1To overcome this presumption, the onus is
on the prosecution2 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,
Lubanga6established two requisites which should be satisfied, to wit: organization of the
party and protraction of the conflict. There is organization when the following factors are
present:

the force or groups internal hierarchy, the command structure and rules, the

insurance of political statements, the military equipment availability, the ability to plan and
carry out military operations, the extent of military involvement. 7 On the other hand,
protraction8 is present when these factors are satisfied: seriousness of attacks, spread over

Rome Statute, Art 66 (1)

Ibid. Art 66 (2)

Ibid. Art 66 (3)

Tadic Appeals, 70.


Hamdan v Rumsfeld, 6.

Lubanga,533,534.

Limaj,90; Haradinaj,60.

Mrksic, 407
Page 2 of 16

territory, period of time, extent of government forces, mobilization and the distribution of
weapons.9In this case, both requisites are satisfied.10
.I

ADMIRAL TONY GUSMAN IS NOT LIABLE FOR THE WAR CRIME OF

STARVATION UNDER ARTICLE 8 (B) (XXV) AND ARTICLE 25 (3) (A)


.A

There is no deprivation to civilians of objects indispensible to their

survival.
1.

In war crime of starvation as a method of warfare, the perpetrator must deprive

the civilians of objects indispensible to their survival. 11 Starvation means the action exposing
people to famine, i.e. extreme and general scarcity of food. 12 There is deprivation when the
supply of some essential commodity, of something necessary for the sustenance of the civilian
population to exist, which includes food stuffs, agricultural areas for the production of food
stuffs, crops, livestock, drinking water instillations and supplies, irrigation works, 13 medicine
and blankets14 are insufficient or inadequate.
2. In observance of the principle of proportionality, the civilians must not be
subjected to any attack and shall be protected against consequences arising from military
operations.15 Protection signifies the duty to ward off dangers and prevent inflicting harm or
damages.16
3.

In, Akayesu, it is defined that members of civilian population are people who

are not taking any active part of hostilities, including members of the armed forces who laid
down their arms.17 Thus they must be distinguished to military objects. While the
9

Ibid.para. 538.

10

Compromis, Par.7, 8.

11

EC, ICC

12

ICRC, Commentary on Additional Protocol I

13

Art 54 (2), Protocol I

14

Dorman, Commentaries on Additional Protocol I

15

Art.51, Additional Protocol I

16

Rules of War

17

Akayesu, 582
Page 3 of 16

importation of goods are being controlled and tightened, Admiral Gusman pronounced that
goods absolutely for the use of civilians are permissible. 18 Accordingly, the civilians needs
were not deprived and they were distinguished from military objects.
4. Thus, at the onset of Yukules surrender to the Astro19 the measures taken by
the Military Administration were imposed to Astro as the Administrator of the Yukule
Archipelago. Due to the unpredictable situation of Yukule the restriction in the importation of
goods was regulated, not prohibited.20 The exercise of restraint on the exchange goods and the
strict rules on import is to stop attacks and abate continued resistance sustained by entry of
weapons.21 The Maritime Control Zone imposed by the Military Government was enforced
within the area of 24 nautical miles from the Yukule 22 or the contiguous zone of the Island,
where a state may declare a contiguos zone to an area not extending beyond 24 nautical miles
in order to enforce and punish any infringements of its customs laws, imigration laws,
sanitary laws, and fiscal laws.23 The requirement for request for prior authorization from the
Military Administration in entering the contiguous zone can then be categorized as a valid
enforcement of customs laws.24 The creation of checkpoints is also an exercise of municipal
regulation. The checkpoint imposed did not intend to deprive the civilians of resources for
survival but only to seize prohibited items.25 The banning of certain fertilizers and pesticide,
which may be used in the production of explosives and the strict scrutiny on imported
construction materials are regulations, as these are products not directly essential to food
sources, but of more significance because it posts as security threat. 26 The importation ban for
fertilizers and pesticide was reasonable given that they are being used as materials for
improvised explosive devices. The suspension importation of humanitarian aid is not to deny
18

Compromis, Par. 11

19

Compromis, Par. 7

20

Compromis, Par. 8

21

Compromis, Par. 9

22

Compromis, Par. 9

23

Art. 33 (2), UNCLOS

24

Ibid.

25

Compromis, Par. 9

26

Compromis, Par. 12
Page 4 of 16

the civilian population to their sources of basic essentials but it is construed that the militia
members are seeking help to the supplier of humanitarian aid.27
.B

There is no intention to starve civilians as a method of warfare.

1.

Starvation as a method of warfare must be intentional. 28 Intent is a mental

element29 that will ascertain the purpose to use a particular means to affect such result.
However, although it may not be easy to prove, the existence of intent may be inferred from
relevant facts and the totality of the circumstances.30 The sole purpose of starving the civilian
population must to deny them for their sustenance value.
2.

The control measures by Military Administration pointed to impede the supply

of weapon to the Militia, pressure the population to disengage from the unrest

31

and prevent

creation of explosive materials intended to be used against them32 were operative on their part.
The Military Administration suspended the importation of all goods including humanitarian
aids from the time when Militia attacked the Military Administration which caused the death
of Astron soldiers and deputy of the Administration force. 33 This action is brought upon
security reason wherein the wounded members of Militia were seeking upon shelters to
humanitarian organizations34 and to prevent the entry of weapons wherein those objects are in
direct support for the Militia. The members of the Militia is distinguished from protected
person, even if, these Militia members were wounded they are not part of the protected person
for they did not yet cease to the act of hostility. To be protected wounded or sick persons,
whether military or civilian, who because of trauma, disease or other physical or mental
27

Compromis, Par. 16

28

Art. 8 (2)(b)(xxv), Rome Statute

29

EC, ICC

30

EC, ICC

31

Compromis, Par. 9

32

Compromis, Par. 12

33

Compromis, Par. 16

34

Compromis, Par. 16
Page 5 of 16

disorder or disability, are in need of medical assistance or care and refrain from any act of
hostility.35 Humanitarian organization as a rule shall not take any side in armed conflict 36
hence from the act of Militia resorting shelter to the said organization would help the Militia
from recovering and advance a further attack. Also the act of banning of goods is justified
under Scorched Earth Policy wherein such act is lawful when the civilian objects are used in
direct support of military action of the adverse party.37 Consequently, the administration in its
full capacity perform its duty to protect the need of civilians by resuming the importation of
goods and other essential supplies two months after the said attack, 38 with this effort and from
relevant facts the Military administration do not manifest intent to deprive the Yukuleans of
essentials for their survival as a warfare method but rather its action was directed exclusively
for preventive mechanism and security measure.
.C

No individual criminal liability exist under Article 25 (3) (a) of the Rome

Statute.

1. In, Jokic Miodrag, individual criminal responsibility attaches to person who


planned, instigated, ordered, committed or otherwise aided and abetted in planning,
preparation or execution of crime.39 Admiral Guman did not perform any of the abovementioned acts that would institute him as liable. The charges attached to Admiral Gusman
using starvation as a method of warfare was not planned for such control measures arise from
certain circumstances, he did not in any means induce anyone or command to deprive the
civilians their basic commodities nor committed a crime for such intent to deprive civilians
are not established to be existing.

.II
ADMIRAL TONY GUSMAN IS NOT LIABLE OF THE WAR CRIME
OF ATTACKING CIVILIANS UNDER ARTICLE 8 (B) (I) AND ARTICLE 28 (A).

35

Article 8, Additional Protocol I

36

ICRC, Law of Armed Conflict

37

Art. 54, Additional Protocol I

38

Compromis, Par. 16

39

Jokic Miodrag, 56
Page 6 of 16

The war crime of attacking civilians requires five elements, but the alleged conducts
failed to meet these requisites.40

.A

The attack was of military necessity.


1.

As stated in Kordic and Cerkez, Prohibited attacks are those launched

deliberately against civilians or civilian objects in the course of an armed conflict and are not
justified by military necessity. They must have caused deaths and/or serious bodily injuries
within the civilian population or extensive damage to civilian objects.41
2.

Military necessity admits of all direct destruction of life or limb of armed

enemies, and of other persons whose destruction is incidentally unavoidable in the armed
contests of the war.42
3.

In this case, the attack was resorted because of military necessity. Under the

San Remo Manual and the laws that it codifies, blockades are a legitimate tool in armed
conflicts. Of particular relevance here, Part III, Section V(67)(a) states that merchant vessels
that attempt to run a blockade can be not just boarded but actually attacked43 (i.e. fired upon):
Merchant vessels flying the flag of neutral States may not be attacked unless they
are believed on reasonable grounds to be carrying contraband or breaching a
blockade, and after prior warning they intentionally and clearly refuse to stop, or
intentionally and clearly resist visit, search or capture.
4.

A maritime blockade is in effect off the coast of Yukule defined as the area

within 24 nautical miles from the Yukule Island coastline had to request prior authorization
from the Military Administration.44 Such blockade has been imposed, as Yukule is currently
in a state of armed conflict with the Anti-Astro protestors, using guerilla tactics; including

40

EC, ICC.

41

Kordic, 326-328.

42

Article15, Lieber Code

43

ICRC, Commentaries

44

Compromis, Par. 9
Page 7 of 16

laying improvised explosive devices along the main roads of the island. 45 And which in
several occasions have perpetuated attacks against civilians.46
5.

The above descriptions clearly show that Commander Hansons command of

boarding47 Nirvana was in accordance with Customary IHL and is a valid military necessity
since the collateral damage was unavoidable. Furthermore, attacks were not only warranted,
but were even launched only after advanced warnings, 48 and were perpetuated only after the
Nirvana proceeded towards Port Solferino, breaching the blockade of a controlled maritime
zone.49
.B

The alleged attacks did not target civilians.

1.

Military objectives are limited to those objects which by their nature, location,

purpose or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite
military advantage.50
2.

In this case, Nirvana,51 is located 24 nautical miles away from Port Solferino, 52

is alleged to have been carrying a stock of weapons, notably rifles, ammunition and
grenades,53 and have breached a blockade, and after prior warning intentionally and clearly
refuse to stop, or intentionally and clearly resist visit, search or capture. Its location, purpose
and use provide an effective contribution and attacking it offers a definite military
advantage. Thus, despite the unavoidable damage to civilians, 54 the attack did not target
civilians.
45

Compromis, Par. 7.

46

Compromis, Par. 8.

47

Compromis, Par. 26.

48

Compromis, Par. 26.

49

Compromis, Par. 9.

50

API, Art. 52(2).

51

Compromis, Par. 21.

52

Compromis, Par. 26.

53

Compromis, Par. 24.


Page 8 of 16

.C

1.

The element of intent is missing.

The mens rea, of individual criminal responsibility is lacking. In Blaskic, it

was held that the mens rea of recklessness incorporates (i) the awareness of a risk that the
result or consequence will occur or will probably occur, and (ii) the risk must be unjustifiable
or unreasonable. The mere possibility of a risk that a crime or crimes will occur as a result of
the actor's conduct generally does not suffice to ground criminal responsibility.55
2.

Gusman is the acting Commander-in-Chief of the Armed Forces, 56 his risk of

appointing Commander Hanson to lead Operation Blue because of the received intelligence
about Nirvana carrying stocks of weapon was reasonable because its purpose is to strictly
implement the inspection and regulation within the Maritime Controlled Zone given the
description of the vessel.

57

The mere possibility of the risk that a war crime may arise

between the marines and Nirvana does not suffice to ground criminal responsibility. It was not
of his knowledge that Nirvana would protest of Astrons occupation to Yukule and their
resistance to the blockade despite of repeated warnings. 58
.D

Gusman is not responsible under Article 28(a).

1.

There was no effective control.

In Bemba, effective control is an element of superior responsibility 59 and must be


obtained by modality, manner or nature by a commander over his forces or subordinates. 60
The standard of it requires commander to have material capability to prevent or punish
criminal acts.61

54

1863 Lieber Code,Article15.

55

Blaskic, 38.

56

Compromis, Par.2.

57

Compromis, Par. 24.

58

Compromis, Par. 26

59

Bemba, 410, 411.

60

Bemba, 410, 411.


Page 9 of 16

In this case, Commander Hanson leading Operation Blue ordered to board and seize
Nirvana and to conduct an open fire, not even asking Gusman for instructions nor
consultations.62 The evidence only shows that Gusman do not have any direct communication
with Hanson during the armed conflict. Thus no evidence showed that Gusman had the
effective control in Operation Blue.
2.

Gusman neither knew nor had reason to know of Hansons acts.

The ICTY, in Delalic, held that a superior can be held criminally responsible only if
some specific information was in fact available to him which would provide notice of
offences committed by his subordinates.63
In this case, Hanson made the decision to board and seize Nirvana, and ordered to
open fire without giving notice to Gusman in any forms. 64 No information could enable
Gusman to conclude in the circumstances that Hanson was going to commit such act. Thus
neither Gusman knew nor had reason to know the alleged crime would be committed.

III. Admiral Tony Gusman is not liable for the war crime of causing widespread, longterm and severe damage to the natural environment under Article 8 (b) (iv) and Article
25 (3) (a)

A. Astros military advantage is great.


1. Under the principle of proportionality collateral damage of an attack cannot be
excessive in relation to the concrete and direct military advantage anticipated. 65 To
establish adherence to this principle, two factors shall be proved, to wit: the military

61

Delalic (Celebici), 378.

62

Compromis, Par. 26.

63

Delalic, 393.

64

Compromis. Par. 27.

65

Commentary on the Additional Protocols to the Geneva Conventions, International Committee of


the Red Cross (ICRC Study), para.2209.

Page 10 of 16

advantage is great and the environmental damage caused is not greater than said
attack.66
2. An ICTY Report confirms that a military advantage should be foreseeable at the
relevant time.67 This is further supported by the Statute which provides that a military
advantage must be substantial and relatively close.68
In this case, the objective of the Astron Force is crystal-clear: to stop the
advancement of the Bereton Forces towards Yukule. 69 This objective is substantial,
foreseeable at the relevant time and relatively close for this involves the sovereign
claim of the Astro over Yukule70 as well as imminent defeat of the Astron Force by the
Bereton Force which launched an intensive military campaign against the former.
3. In Rendulic Trial,71 the Nuremberg Military Tribunal acquitted General Lothar
Rendulic of war crime of causing wanton destruction of the property in Norway in
order to escape the advancing Russian troops on the basis that the military necessity
justified his action.72 In this case, the military necessity is great which justifies the
damage to the natural environment.73
B. Environmental damage is not clearly excessive.
1. Environmental damage should be widespread, long-term and severe. 74 These three
qualities of damage shall be satisfied.75 However, the Rome Statute failed to define
these three qualities while Additional Protocol I only defined long-lasting as a period
66

Ibid.

67

68

69

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing
Campaign, para. 50.

Commentary on the Additional Protocols to the Geneva Conventions, International Committeeof the
Red Cross (ICRC Study), para.2209

Compromis, para. 39
Compromis, para. 5
71
The Hostages Trial, 8 LAW REP. TRIALS WAR CRIMINALS 34, 69 (1948).
72
Mark A. Drumbl, Waging War Against the World: The Need to Move From War Crimes to
Environmental Crimes, 22 FORDHAM INTL L. J. 122, 134 (1998).
73
Compromis, para. 39.
74
Rome Statute, Art. 8 (2) (b) (iv) and Additional Protocol I, Art. 35 (3).
75
W.J. Fenrick, "Article 8(2)(b)(iv), in: O. Triffterer (ed.), Commentary on the Rome Statute
of the International Criminal Court, 1999, 197.
Page 11 of 16
70

of at least decades.76 Jurists agree that the definition supplied under Additional
Protocol I lies in qualifying the damage.77
In this case, the damage that was caused by Astro was estimated to take a few
years.78 Clearly, this fails to prove that damage is long-lasting as what the
Additional Protocol I provides.
C. The mental element is not present.
1. The requisite mens rea as provided under the Rome Statute are: (1) the perpetrator
knew that the attack would cause widespread, long-term and severe damage to the
natural environment; and (2) the perpetrator knew that such environmental damage
would be clearly excessive. To warrant conviction, these two elements should be
proved.79
2. In Galic, the ICC held that knowledge of the circumstances requires that the
perpetrator assess the possible casualties based on requisite information which enables
him to know the excessive damages as a consequence of the attacks.80
In this case, Gusman merely gave Freedman a general order.81 It was Freedman who
had the direct control of the military actions taken by the Astron Force. 82 Gusman,
therefore, had no immediate means to know the surrounding circumstances since
Freedman had the direct command on the ground.
3. Strugar83 confirms that a perpetrator is liable for the attack if he has direct intent to
damage or destroy. In this case, Astro was forced by circumstances to employ such
attack with the belief that they would be able to stop the advancement of the Bereton
Force towards Yukule.84
76

Supra note 6 at 128.


Supra note 6 at 128.
78
Compromis, para. 42.
77

79

Rome Statute, Art. 8 (2) (b) (iv).


ICTY, Prosecutor v. Stanislav Galic, Trial Chamber I, IT-98-29-T (5 Dec 2003), para. 58.
81
Compromis, para. 36.
82
Compromis, para. 37.
83
ICTY, Prosecutor v. Strugar, Case No. IT-01-42-T (2005), para. 311.
84
Compromis, paras. 36, 39.
Page 12 of 16
80

Rendulic Trial85 proves that an accused is not liable for an attack if he believes that
this is necessary to win the war. In this case, Astro was compelled to institute the
scorched-earth policy to prevent Bereto from advancing.
D. Gusman is not responsible under Art. 25 (3) (b).
Mudacumura laid down the elements for establishing liability under Art. 25(3)(b).86
One of these elements was not satisfied.
1. The requisite actus reus is not present.
To prove the requisite actus reus under this article, it must be established that
Gusmans order has direct effect on the commission of the alleged crime.
Kamuhanda87 qualifies that the order shall have direct and substantial authority
over the perpetrator of the crime. Akayesu88 and Mudacumura89 further provides
that in order to be liable under this article, the evidence must prove in what
capacity the accused supported the act and the order has direct effect on the
commission and attempted commission of the crime.
In this case, Gusman only gave general order. After such order was given, Gusman
never performed succeeding acts to show that he influenced the military actions
taken by Astron Force on the ground. Moreover, there were no clear proofs to
show in what capacity Gusman supported the act nor how the order affected the
commission and attempted commission of the crime.

85

Supra note 5 at 69.


ICC, Mudacumura, Decision on the Prosecutors Application under Article 58, para.63.
87
ICTR, Appeals Chamber, Kamuhanda v. The Prosecutor, "Judgement", 19 September 2005,
ICTR-99-54AA, para. 75
88
ICTR, Akayesu Judgement para.642
89
ICC Mudacumura decision on the Prosecutors application under Art.58
Page 13 of 16
86

PRAYER FOR RELIEF


Wherefore, the defense prays that this Honoroble Court, render judgement finding the
accused not guilty of the crime charged.
Counsel of Defense

Page 14 of 16

Page 15 of 16