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CONTENT

HCMULAW MOOT COURT COMPETITION 2015


MOOT PROBLEM ....................................................................... 7
Nguyn Th c Tm
MEMORIAL FOR THE DEFENDANT .................................... .14
Phan V Khnh Vy ng Hong Nhn
MEMORIAL FOR THE DEFENDANT .................................... .22
No. 12
*
EDITORIAL BOARD
1.
2.
3.
4.
5.
6.
7.

Nguyn Th Nh Nh
Hong Bch Nga
L Th Thu Hin
Nguyn Minh Trang
Nguyn Hong Nam
Trng Vn Quyn
Hunh Th Bo Trn

ADVISORY BOARD
Cao V Minh Faculty of
Administrative Law;
L Vit Sn Faculty of
Administrative Law;
Trn Thanh Tho Faculty of
Criminal Law;
Mai Th Lm Faculty of
Administrative Law;
Trn Th Thu H Faculty of
Administrative Law;
Nguyn Th Ngc Lan
Faculty of Commercial Law;
V Hng T Faculty of
Administrative Law;
Nguyn Ngc Hng Phng
Faculty of Civil Law;
V Hng t Faculty of
International Law.

V T Hoa Ho L Khi Nguyn


MEMORIAL FOR THE DEFENDANT .................................... .27
Trn Th Ngc H Nguyn Ngc Ngn
MEMORIAL FOR THE PROSECUTOR .................................. .33
Nguyn Thc Anh Hunh M Linh
MEMORIAL FOR THE PROSECUTOR ................................... 40
V T Hoa Ho L Khi Nguyn
MEMORIAL FOR THE PROSECUTOR .................................. .48
ng Nguyn Tr Thnh Nguyn Chu Tn
THE 2ND NATIONAL MOOT COURT
COMPETITION 2014
MOOT PROBLEM ..................................................................... 59
International Committee of the Red Cross (ICRC)
MEMORIAL FOR THE DEFENDANT .................................... .68
L Ngc Bo Trang Trn Bch Ngc
MEMORIAL FOR THE PROSECUTOR .................................. .79
L Ngc Bo Trang Trn Bch Ngc
THE 13TH INTERNATIONAL MOOT COURT
COMPETITION 2015
MOOT PROBLEM ..................................................................... 93
International Committee of the Red Cross (ICRC)
MEMORIAL FOR THE DEFENDANT .................................. .103
L Ngc Bo Trang Trn Bch Ngc
MEMORIAL FOR THE PROSECUTOR ................................ .112
L Ngc Bo Trang Trn Bch Ngc
APPROACHING A MOOT PROBLEM ................................. .121
Kelisiana Thynne Fork Yow Leong
Teerapat Asavasungsidhi
INTERVIEW WITH MEMORIALS JUDGES ........................ 131

PREFACE

As the International Humanitarian Law Moot Court Competition - Vietnam


National Round 2015 is heating up, the Editorial Board has made the decision to
present all articles related to the Moot Court Competitions in this months edition. In
this issue, the best memorials of the HCMC University of Laws students will be
introduced, namely the 2014 National Competitions best memorials, the 2015
Regional Competitions memorials and the 2015 HCMULaw Moot Court
Competitions six best memorials; especially, an article written by the Legal Advisors
of the International Committee of the Red Cross (ICRC) about skills approaching a
Moot Problem, which is specifically contributed to this special issue, will also be
included.
We hope to provide our readers with an overview of the Moot Court Competitions
which greatly helps you understand and master legal skills and experiences as mooting
activities are considered the very first steps of practical approach to the participants
studies.

Sincerely,
Editorial Board.

- 3-

HO CHI MINH CITY UNIVERSITY OF LAW

MOOT COURT COMPETITION 2015


HO CHI MINH CITY, 23rd 25th MAY 2015

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. THOMAS BEMTO


before the International Criminal Court at the Hague
Author of the Moot Problem
NGUYN TH C TM
INSTRUCTIONS
1. The hearing takes place pursuant to
Article 61 of the Rome Statute
(confirmation of charges). At this stage, the
Prosecutor has to support each charge
with sufficient evidence to establish
substantial grounds to believe that the
person committed the crime charged.
2. The case is entirely fictional. Teams
should confine themselves to the facts
supplied. Neither the Prosecution nor the
Defense may introduce new facts. The
Moot Problem includes all the facts
supported by the evidence that has been
presented before the Court. Teams may
nonetheless draw reasonable inferences
from the evidence produced. They may
also question the credibility or weight of
the evidence.
3. Teams should not hand anything to
judges unless asked to by a judge.
4. The problem is not intended to raise
questions of procedure before the ICC.
Procedural questions should be ignored.
5. The problem is not intended to raise
questions relating to the jurisdiction of the

ICC. The jurisdiction of the ICC should be


assumed. Counsel may in this instance
address issues regarding the admissibility
of the case under Article 17 of the Rome
Statute if relevant.
6. Applicable law: In accordance with
Article 21 of the Rome Statute, the Court
shall apply:
a) In the first place, the Rome Statute,
Elements of Crimes and its Rules of
Procedure and Evidence;
b) In the second place, where
appropriate, applicable treaties and the
principles and rules of international law,
including the established principles of the
international law of armed conflict;
c) Failing that, general principles of
law derived by the Court from national
laws of legal systems of the world
including, as appropriate, the national laws
of States that would normally exercise
jurisdiction over the crime, provided that
those principles are not inconsistent with
this Statute and with international law and
internationally recognized norms and
standards.

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Sinh vien va Khoa hoc phap ly so 12


The Court may apply principles and the
rules of law as interpreted in its previous
decisions.
THE CASE
Background
1. The Federal Republic of Utopia
(FRU) once consisted of two republics,
namely Nordland and Sudland. Nordland is
located to the north of Sudland. In 1980,
the FRU disintegrated with the two FRU
constituent
republics
becoming
independent States. The capital of
Nordland is Nordville and that of Sudland
is Sudville.
2. The population in Sudland is mainly
composed of two ethnic groups with
different languages and religions. The
Sudlandians, which make up 75% of the
population, and ethnic Nordlandians. The
majority of the latter community lives in
Crimania, which is located in the northern
part of Sudland bordering Nordland. Until
2010, Crimania was under Sudland control,
although it enjoyed complete autonomy in
managing its internal affairs. The
Sudlandian central government was in
charge of its defense and foreign affairs.
3. Sudland is blessed with vast natural
resources such as oil and minerals. It had
been one of the most developed regions of
the FRU well before its independence.
Between 2002 and 2010, Sudland was
ruled by a military government led by

General George Belisaris and General


Thomas Bemto, with General Belisaris
acting as the countrys President. During
this period, General Bemto chaired the
powerful Crisis Military Commission,
which acted as the de facto government of
the country. General Bemto also acted as
Commander-in-chief of the Peoples Army
of Sudland (PAS) and the Sudlandian
police. Since 1990, Sudland adopted a new
policy which prompted the growth of a
successful high-tech industry and led to
unprecedented economic growth in recent
years.
4. However, Crimania, where ethnic
Nordlandians constitute nearly 90% of the
population, is generally lagging behind in
terms of development. The situation in
Crimania is blamed partly on its remote
location, but also because of governmental
policies. The Sudlandian government has
long accorded preferential treatment to
ethnic Sudlandians and enterprises in
various sectors. The rate of higher
education in Crimania has been the lowest
compared to other regions. Ethnic
Nordlandians felt marginalized and
resentment towards the Sudlandian central
government.
5. Nordland has a homogenous
population. Nordlandians speak the same
language and share similar cultural
practices with their fellow Nordlandians in
Crimania.
Therefore,
since
its

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Sinh vien va Khoa hoc phap ly so 12


independence,
Nordland
has
been
contesting Sudland sovereignty over
Crimania. President Andrew of Nordland
was elected in 2006. Benefiting from a
large and young population, labor-intensive
industries in Nordland have grown rapidly.
Many Nordlandians also started doing
business in neighboring countries such as
Sudland. Although Nordland is not as
wealthy as Sudland, it is regarded as an
emerging economic power.
Operation Shield
6. In January 2010, Nordland was struck
by a political crisis which led to large-scale
civil unrests against the Andrew
government. In order to divert the
populations resentment towards the
government, President Andrew ordered the
Nordland Armed Forces (NAF) to take
control of Crimania. On 12th January 2010,
the NAF invaded Crimania and quickly
gained control of Cappa, the capital city of
Crimania, with no armed resistance.
7. On 15th January 2010, the NAF
obtained surrender from the Governor of
Crimania. A Military Administration was
established to govern Crimania under the
supervision of the NAF. On the same day,
General Belisaris vividly condemned
Nordlands act of aggression and seized
the United Nations Security Council. The
Sudlandian ambassador and the diplomatic
staff in Nordville were immediately called

back to Sudland. On the following day, the


Sudlandian government severed all
diplomatic relations with Nordland.
8. On 22nd March 2010, General
Belisaris approved Operation Shield,
which was suggested by the Crisis Military
Commission. It aimed at regaining control
of Cappa. General Bemto was in charge of
the operation. General Belisaris, who was
running for election, instructed General
Bemto that We have to win this war
quickly. Crimania is either a gain or a pain
for the election campaign.
9. In an internal meeting of the Crisis
Military Commission, there was a general
agreement that recapturing Cappa was the
utmost priority. It was decided that artillery
attacks and air strikes would be used to
shock,
disorient,
disrupt
the
Nordlandians, before undertaking the
takeover of the city.
10. On 27th March 2010, General Bemto
ordered the PAS to engage in a vigorous
attack with artillery and air support. On 27th
and 28th March 2010, hundreds of
projectiles were fired into Cappa.
According to local media news channels,
there seemed to be bombs exploding all
over the city. With the support of the air
strikes and artillery shelling, the main force
of the PAS took control of the western part
of Cappa. The rest of the city remained
under the control of the NAF.

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Sinh vien va Khoa hoc phap ly so 12


City hall of Cappas takeover
11. The PAS forces eventually gained
control over Cappa on 1st April 2010.
However, the PAS faced with strong
resistance from the local Nordlandians
community.
12. Jeanne Blanche, a 50-year-old
Professor of Political Science at the
University of Cappa, was an outspoken
supporter of the incorporation of Crimania
to Nordland. Since 2007, she had made
several speeches prompting Nordlandians
to defend Crimania to the last man. She
was also one of the leaders of the Occupy
Cappa, a civil disobedience campaign
against the Sudlandian government.
13. On 4th April 2010, the Occupy
Cappa protesters occupied the city hall of
Cappa. General Bemto issued a public
announcement to protesters to clear the hall
within two hours: If by 6 p.m. the
lawlessness doesnt cease, we shall be
forced to use all means to bring order.
Nevertheless, the riot police encountered
violent resistance from the protesters.
According to the Sudland State-owned
newspaper Bevestia, opposition activists
armed with bats and iron rods allegedly
beat two policemen to death. They also
used improvised weapons such as axes and
hammers.
14. Following the warning from General
Bemto for all women and children to leave

the city hall, police advanced on thousands


of protesters with guns, a water cannon and
an armored personnel carrier. Tents
housing protesters were burned. Police
justified their actions by stating they were
conducting operations in an anti-terror
campaign against individuals who had
clearly armed themselves.
15. Later at night, it was reported that
police had broken through the protesters
barricades on the eastern side of the city
hall. Protesters threw fireworks and petrol
bombs, and lit fires to block off police. The
building was then occupied by police
forces, and the 3rd floor was set on fire. The
fire then spread to the 4th floor, with people
trapped inside; firefighters then arrived to
help. Four protesters were killed by police
when storming the building, as reported by
a Nordlandian journalist via Twitter. The
staff in the city hall later confirmed there
were no deaths due to the fire, and the
building was evacuated.
16. The spokesman of General Belisaris
stated that calling further for armed
conflict is a great crime. General Bemto
also stated in a press conference that
Organizers of mass protests will be held
accountable. We will demand the heaviest
punishment both for those who revved
people up to take part in todays action and
for those who organized and controlled
them.

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Sinh vien va Khoa hoc phap ly so 12


17. In the early morning of 5th April
2010, the wounded were sent to the Cappa
Hospital. Bevestia reported that 65 activists
were killed and 180 injured. Among the
Sudlandian police, 7 were killed and 20
injured, 3 of them in serious condition.
18. The Nordville Daily Express, a
famous
newspaper
in
Nordland,
subsequently published a series of
interviews with some of the protesters. One
of them, Susan Aung, said that the
Sudlandian
police
were
shooting
indiscriminately at innocent civilians. She
claimed that she was holding a banner and
peacefully protesting with others, when
bullets came at their direction and one of
the protesters was shot dead right in front
of her. A priest from Sudland said bullets
were flying around and at some points he
could no longer tell whether they were
from the police or the protesters.
Treatment in the Bergen Prison

had been protesting her arrest and


advocating freedom of speech. On 13th
May 2010, Professor Blanche embarked on
a hunger strike, only sipping water from
time to time.
21. The news of her hunger strike soon
got through to the major media in Nordland
and Sudland. President Andrew termed
Blanche as a national hero and awarded
her a medal for her extraordinary valor.
In the meantime, other detainees started to
join the hunger strike. By 17th May 2010,
16 detainees were on strike. Sudlandian
authorities, pushed by the international
attention that the strike was attracting,
pressed General Bemto to solve the issue.
He then appointed Ervine Bric as a warden
to supervise all the operations in the Bergen
Prison. Bric sent a letter to General Bemto,
stating that Something needs to be done.
We started to lose control ever since
Blanche was here.

19. At the end of April 2010, ten


students of Professor Blanche were arrested
by the Sudlandian police while distributing
leaflets in public places. She was herself
arrested on 1st May 2010 after the
declaration of a state of emergency.

22. On 24th May 2010, after consultation


with General Bemtos staff, Bric decided to
put Professor Blanche and some of her
students in solitary confinement for a
month. They were denied communication
with others, except medical professionals in
case of emergency.

20. Professor Blanche and her students


were detained in the Bergen Prison, one of
the most controversial prisons controlled
by the Sudlandian police. Ever since her
first day in detention, Professor Blanche

23. Professor Blanche was finally


released on 2nd July 2010 right before the
closing of Bergen Prison. She then gave an
interview to Global News, an independent
newspaper. Since I left Bergen, I have not

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Sinh vien va Khoa hoc phap ly so 12


been able to sleep without sleeping pills. It
is terrible, Blanche said, They get what
they want without having to hit me. One
of her students added that there were at
least 4 halls, approximately 12 cells per
hall, and a separate row of solitary cells for
female detainees. The cells measured about
2 square meters, with a ceiling height of
about 4 meters. A light at the top of the cell
(about 40 Watts) was on 24 hours a day.
Each cell has a toilet and a sink inside. The
floor was made of what most prisoners
described as chalk. Prisoners were
generally given a blanket, a pair of slippers,
and a disposable cup. The walls of the cell
were all white. Some prisoners were
granted 20 minutes a day in a caged
outdoor area, but others never saw the open
air except on their way to and from the
Court. After all this time, I would mark
the days on the wall. On the fifteenth day,
they threw my clothes into my cell and
drove me out. I saw sky. I told the sky that
I appreciated it now, he concluded his
story.
Referral to the International Criminal
Court
24. At the end of 2010, the Belisaris
government was discredited and eventually
had to step down. Nordland and Sudland
reached a ceasefire agreement under the
auspices of the United Nations. Following
the election of a new government, General
Bemto was placed under house arrest for

suspected crimes committed against the


people in Crimania. In May 2011,
Nordland and Sudland agreed to jointly
refer the situation between 1st January and
31st December 2010 of Crimania to the
International Criminal Court. However, the
status of Crimania has not yet been
definitively agreed upon.
25. The Pre-trial Chamber now holds a
hearing to confirm the following charges
on which the Prosecutor intends to seek
trial. The hearing is held in the presence of
the Prosecutor and Mr. Thomas Bemto, as
well as his counsel.
Count One
Article 8(2)(b)(i) and Article 25(3)(a) of
the Rome Statute
Regarding the conduct against the
protesters occupying the city hall of Cappa,
Mr. Thomas Bemto is criminally
responsible for committing, as an
individual, jointly with another or through
another person, the war crime of
intentionally directing attacks against the
civilian population as such or against
individual civilians not taking direct part in
hostilities;
Count Two
Article 8(2)(a)(ii) and Article 28(a) of
the Rome Statute
Regarding the treatment of detainees in
the Bergen Prison, Mr. Thomas Bemto, as

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Sinh vien va Khoa hoc phap ly so 12


a military commander, is criminally
responsible for the war crime of torture or
inhuman treatment of persons protected
under the provisions of the relevant Geneva
Convention.

1966 International Covenant on Civil


and Political Rights
1966 International Covenant on
Economic, Social and Cultural Rights
1969 Vienna Convention on the Law

NOTE

of Treaties

At all material times, the following


treaties were in force for Nordland and
Sudland:

1984 United Nations Convention


against Torture
1998 Statute of the International

United Nations Charter


1949 Geneva Conventions and their
1977 Additional Protocols I & II

Criminal Court

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Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. THOMAS BEMTO


MEMORIAL FOR THE DEFENDANT
PHAN V KHNH VY
NG HONG NHN
1. Nature of the armed conflict
In Lubanga case, it was held that an IAC
takes place between two or more States.1 The
armed conflict taking place from 12th January
2010 to 1st April 2010 was no doubt of
international character as the two parties to the
conflict, Nordland and Sudland, are two
different States. Nevertheless, the part after 1st
April when protesters in Crimania fought
against Sudland police should be considered an
internal conflict as the group of protesters in
Crimania had the same nationality with that of
Sudland police force.
The internal armed conflict breaking out
within a territory can turn into an IAC if
participants in an internal armed conflict act on
behalf of other State to the armed conflict.2
Nonetheless, in order to qualify as de facto of
other State, it is necessary to prove the ability
of specific instructions concerning the
commission of that particular act had been
issued by that State to the individual or group.3
In the present matter, the Nordlandians
protesters in Crimania fought against Sudland
1

2
3

ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-803 (14 May


2007), para. 209.
Id. at 209.
ICTY, Prosecutor v. Tadi, IT-94-1-A (15 July 1999), para.
137.

military after Sudland gained control over


Cappa.4 There was no evidence to assume that
their act was instructed by the Nordland
government. Nor did Nordland have a role in
organising, coordinating or planning the
military actions of the military group, in
addition to financing, training and equipping or
providing operational support to that group,
which is a condition for a group to be regarded
as de facto of a State.5 Hence, the nature of
armed conflict when the alleged crime took
place was national.
2. Applicable law
International Humanitarian Law ("IHL")
applies in IAC. United Nations Convention
against Torture and International Covenant on
Civil and Political Rights ("ICCPR") are also
applied.
3. Substantive crime
Even if the international nature of the armed
conflict could be proven, there is not
substantial ground to believe that Bemto
committed the charged war crime.
A. Count 1: Mr. Thomas Bemto
("Bemto") is not criminally responsible for
committing, as an individual, jointly with
4
5

- 14 -

Moot Problem, para. 11.


Id. at. 137.

Sinh vien va Khoa hoc phap ly so 12


another or through another person, the war
crime of intentionally directing attacks
against the civilian population as such or
against individual civilians not taking direct
part in hostilities under Article 8(2)(b)(i)
and Article 25(3)(a).
Pursuant to The Elements of Crimes
("EoC"), the war crime of intentionally
directing attacks against the civilian population
as such or against individual civilians not
taking direct part in hostilities requires five
elements which Mr. Bemto failed to meet the
second and the third.
3.1. The civilian population did take
direct part in the hostilities
IHL describes the term hostilities as the
resort to means and methods of injuring the
enemy.6
The object of the attack was the protesters
occupied the city hall of Cappa a civilian
population under Article 50(1) and (2) AP I.
However, according to Article 51(3) AP I,
civilians are protected against attacks unless
and for such time they take direct part in
hostilities. The notion of direct participation in
hostilities includes three cumulative criteria,7
which were met by the act of the protesters,
namely: (1) The harm resulted must attain a
certain threshold (2) direct causal link between
the act and the harm must be proven (3) the act
was specifically designed to support a party to
the conflict and to the detriment of another.8

a. Certain threshold of harm.


This threshold can be reached by causing
harm of a specifically military nature. In this
context, military harm should be interpreted as
encompassing essentially any consequence
adversely affecting the military operations or
military capacity of a party to the conflict.9
Here, in order to prevent the PAS forces to
actually gain control over Cappa, the local
Nordlandians resisted by doing campaign
against the Sundlandian government. On 4th
April 2010, the Occupy Cappa protesters
occupied the city hall,10 causing a riot which
the Sudlandian police had to step in. It was
transparent that due to the strong resistance, the
protesters had adversely affected the aim of
Operation Shield that is regaining control
over Cappa.11
b. Causal link
Direct participation in hostilities implies a
direct causal relationship between the activity
engaged in and the harm done to the enemy
when and where the activity takes place.12
Direct causation should be understood as
meaning that the harm in question must be
brought about in one causal step.13
Herein, the protesters' violence resistance
directly resulted in 7 dead, 20 injured, 3 of
them in serious condition;14 the building was in
9
10
11
12

7
8

ICRC, Interpretive Guidance on the notion of Direct


Participation
in
Hostilities
under
International
Humanitarian Law, Nils Melzer, p. 57.
Id. p. 46.
Id. p. 46.

13

14

- 15 -

Id. p. 47.
Moot Problem, para. 13, line 1.
Moot Problem, para. 8, line 2.
Yves Sandoz (ed.), Commentary on the Additional Protocols
of 8 June 1977 to the Geneva Conventions of 12 August
1949, Martinus Nijhoff Publishers, 1987, para. 1679.
ICRC, Interpretive Guidance on the notion of Direct
Participation
in
Hostilities
under
International
Humanitarian Law, Nils Melzer, p. 53.
Moot Problem, para. 17, lines 2-3.

Sinh vien va Khoa hoc phap ly so 12


fire,15 consequently preventing the PAS from
truly recapturing Cappa.
c. Belligerent nexus
Belligerent nexus relates to the objective
purpose of the act. The purpose is expressed in
the design of the act or operation and does not
depend on the mindset of every participating
individual.16
When the Nordland Armed Forces
("NAF") invaded Crimania on 12th January
2010, they met no armed resistance from the
people in Crimania and quickly gained control
over Cappa.17 Only 3 days after the invasion of
NAF, Governor of Crimania surrendered and a
Military Administrative was immediately
established to govern Crimania under the
supervision of the NAF.18
However, things were different when the
PAS forces took back their control over Cappa.
They faced strong resistance from the local
Nordlandians community, including Occupy
Cappa protesters. Amongst the leaders of the
Occupy Cappa, there was Professor Blanche,
an outspoken supporter of the incorporation of
Crimania to Nordland. Also, in the clash with
the Sudlandian police, protesters allegedly beat
two policemen to death, threw fireworks and
petrol bombs,19 lit fires to block off police.20
Hence, there is sufficient evidence to believe
that their act of violent resistance was to
15
16

17
18
19
20

Moot Problem, para. 15, line 4.


ICRC, Interpretive Guidance on the notion of Direct
Participation
in
Hostilities
under
International
Humanitarian Law, Nils Melzer, p. 59.
Moot Problem, para. 6, lines 4-5.
Moot Problem, para. 7, lines 1-3.
Moot Problem, para. 13, lines 5-6.
Moot Problem, para. 15, lines 2-3.

support Nordland
Sudlandian.

and

to

detriment

of

Since the three criteria of taking direct part


in hostilities were met as demonstrated, the
protesters clearly taking direct part in
hostilities, thus making them temporary,
activity-based loss of protection.21 The second
element of this crime was thus not satisfied.
3.2. The perpetrator did not intend the
civilian population to be the object of the
attack
The attack would also be lawful as they were
not indiscriminate in nature under Article 51(4)
and (5) AP I and all feasible precautions had
been taken under Article 57(2)(a).
a. Article 51(4) describes attacks that
are indiscriminate in nature as:
(a) those which are not directed at a specific
military objective; (b) those which employ a
method or means of combat which cannot be
directed at a specific military objective; or (c)
those which employ a method or means of
combat the effects of which cannot be limited
as required by this Protocol;
The act of the police was to carry out
Operation Shield with the purpose of
regaining control over Crimania. Therefore,
they had to stop the riot, clear the hall of Cappa
and ultimately, take over Cappa the capital of
Crimania. The police used guns, water cannon
and armored personnel carrier;22 these weapons
21

22

- 16 -

ICRC, Interpretive Guidance on the notion of Direct


Participation
in
Hostilities
under
International
Humanitarian Law, Nils Melzer, p. 44.
Moot Problem, para. 14, lines 2 3.

Sinh vien va Khoa hoc phap ly so 12


were in nature capable of distinguishing
civilian and military targets.23
b. Furthermore, under Article 57(2),
Mr. Thomas Bemto, as a General who decided
upon an attack, had already taken all feasible
precautions to prevent erroneous or arbitrary
targeting.
Under Article 57(2)(a), Mr. Bemto as a
General who in charge of the Operation
Shield has to:
i.

Verify that the objective is military


objective under Article 52(2) and is not
prohibited by AP I to attack.

The city hall of Cappa is the office of the


Crimania government, in order to regain
control over Cappa, taking over the City hall
would definitely offer military advantage.24
ii.

Take all feasible precaution in the


choice of means and methods of attack
to minimize incidental loss of civilians'
lives and injuries.

The police was using guns, water cannon


and armored personnel carrier, these were
weapons chosen in order to avoid or minimize
collateral casualties. The time of the attack had
also been taken into consideration.25 The attack
was to be carried out after work hours (after 6
p.m26).
iii.

23

24
25

26

Refrain from deciding to launch any


attack which may be expected to

ICI, Legality of the threat or use of nuclear weapons,


Advisory Opinion, 8 July 1996, para. 78.
AP I, Article 52(2).
Jean-Franois Quguiner, Precautions under the Law
Governing the Conduct of Hostilities, International Review
of the Red Cross, Vol. 88, No. 864, December 2006, p. 800.
Moot Problem, para. 13, line 3.

cause incidental loss, which would be


excessive in relation to the concrete
and direct military advantage
anticipated;
Using guns, water cannon and armored
personnel carrier, it is apparent that the loss
likely to occur was expected to be smaller than
the advantage anticipated. There was loss
occurring
as
the
protesters
reacted
aggressively, not following the advance
warning.
Also,
under
Article
57(2)(b),
if
circumstances do not permit, Mr. Bemto must
give an effective advance and within
reasonable time.27 In this case, the
announcement was issued openly, within a
reasonable time two hours, clearly adding the
fact that the police would use all means to
bring order if by 6 p.m. the riot will not cease.
Therefore Mr. Bemto fulfilled his duty to give
advance warning. The third element of this
crime was thus not satisfied.
In sum, Mr. Bemto could not be held
criminally liable for the war crime of attacking
civilians under Article 8(2)(b)(i) given that
second and the third elements of the war crime
are not met.
3.3. Alternatively, even if all the
aforementioned elements of alleged crime
were fulfilled, Mr. Bemto could not be held
individually criminal responsible for ordering
the commission of the crime under Article
25(3)(b)
27

- 17 -

Jean-Franois Quguiner, Precautions under the Law


Governing the Conduct of Hostilities, International Review
of the Red Cross, Vol. 88, No. 864, December 2006, p. 80708.

Sinh vien va Khoa hoc phap ly so 12


Article 25(3)(a) put criminal responsibility
on the person who: (i) physically carries out all
elements of the offence (commission of the
crime as an individual); (ii) has, together with
others, control over the offence by reason of
the essential tasks assigned to him
(commission of the crime jointly with others);
(iii) has control over the will of those who
carry out the objective elements of the offence
(commission of the crime through another
person).
a. Bemto himself did not participate in
the attack as a physical perpetrator.
As presented by the fact, Bemto did not
physically participate in the conflict, he thus
cannot be held liable as an individual.
b. There was a lack of plan and
agreement between Bemto and others.
It has been emphasized that commission of
the crime jointly with others must contain a
plan or an agreement between more than one
person.28 Herein, though the operation was
carried out to gain control over Cappa, there
was no agreement made in advance between
Mr. Bemto and others that civilians would be
also the object of the attack in case they joined
the combat. In fact, the involvement of the
protesters in Crimania was beyond Sudland
Government's anticipation.
c. Bemto did not intend the crime to
take place.
When ordering the protesters in Cappa to
clear the hall, although Bemto said he would
28

ICC, Prosecutor v. Katanga,


September 2008), para. 522.

ICC-01/04-01/07

(30

use all means to bring order, he could not have


anticipated things would escalate to the extent
of civilians' lives. In fact, all means intended by
Bemto were capable of distinguishing between
civilians and combatants, indicating that he did
not have intention of targeting civilian
population not taking direct part in hostilities.
B. Count 2: The EoC requires six or five
elements in order for the suspect's offenses
to qualify as war crimes of torture or
inhuman
treatment
respectively.
Nonetheless, the evidence available was not
sufficient to support the charge against Mr.
Bemto.
3.4. The prisoners who were allegedly
tortured or inhumanely treated were not
protected under Article 4 of the fourth
Geneva Convention
It could be argued that those protesters were
protected under the Article 4 of the fourth GC.
However, the law requires that such protection
status can only be granted to a person if he
finds himself in the hands of a Party to the
confect or Occupying Power of which they are
not nationals".
Here, all the protesters shared the same
nationality with the armed force of the other
party, meaning that they were all nationals of
Sudland. Therefore, those persons were not
protected persons under Article 4 of the fourth
GC.
Although in Tadi case the Tribunal had held
that if the perpetrators are acting on behalf of
the State which does not extend diplomatic
protection for the victims and to which the

- 18 -

Sinh vien va Khoa hoc phap ly so 12


victims do not owe allegiance, those victims
are granted protection under Article 4.29
Herein, while it was transparent the victims did
not owe allegiance to the Sudland government
as they were fighting against the Sudland
government, there was no indication that the
diplomatic protection had disappeared. In the
very beginning, Sudland government was still
in charge of Crimania's foreign affairs and
defense, including diplomatic protection.30
Hence, the protesters in Crimania were not
protected persons under Article 4 of the fourth
GC.
3.5. The act of inflicting severe physical
or mental pain or suffering upon one or more
persons cannot be proven
"Severe mental pain or suffering" refers to
the presence of "prolonged mental harm", "of
substantial duration", "lasting months or even
years".31 In this case, all the treatments applied
during the detention of the protesters failed to
meet those requirements to qualify as torture or
inhuman treatment.
Though the arrested were put in solitary
confinement, it is widely accepted that solitary
confinement itself is not in inhuman treatment
and may be justified when preventing collusion
between prisoners.32 Herein, the method was
only employed after Professor Blanche and her
29

30
31

32

ICTY, Prosecutor v. Tadi, IT-94-1-A (15 July 1999), para.


164-166.
Moot Problem, para. 2, lines 4-6.
Hernn Reyes, The Worst Scars are in the Mind:
Psychological Torture, International Review of the Red
Cross, Vol. 89, No. 867, September 2007, p. 597.
Knut Drmann, Elements of War Crime under the Rome
Statute of the International Criminal Court: Sources and
Commentary, Cambridge University Press, 2003, p. 68.

students went on and tried to expand the


hunger strike. Hence, it herein should be
treated as a reasonable method applied to halt
the hunger strike, which would have otherwise
caused a much more detrimental harm to the
protesters.
Moreover,
solitary
confinement
is
considered inhuman treatment or torture in
only special situations, one of which is where
prisoners were unable to stand upright or lie
down, where they could be held for several
weeks; being forced to kneel or sit immobilized
for long periods.33 Here, according to the
prisoners, each cell measured 2 meters and the
height of each cell was 4 meters,34 which did
not prevent them from acting normally.
Another is when they are isolated from the
social contact, denied of all kind of
communication. In the present matter, the
detainees were not completely deprived of their
social contact as they were allowed to have
medicals professional care35 and some also had
20 minutes a day outdoor.36
The detention conditions in Bergen Prison
did not amount to torture or inhuman
treatment, even with the use of a light in each
cell which operated 24 hours a day, which are
likely to be considered sleep deprivation.
Although sleep deprivation was held to amount
to inhuman treatment by the European Court,
the previous decision did not state to which
extent the act was considered torture or
33

34
35
36

- 19 -

Report for North Korea, Country Reports on Human Rights


Practices 2004, released by the Bureau of Democracy,
Human Rights, and Labor, 28 February 2005.
Moot Problem, para. 23, line 6.
Moot Problem, para. 23, line 10.
Moot Problem, para. 22, line 3.

Sinh vien va Khoa hoc phap ly so 12


inhuman treatment. In fact, it was held to
amount to inhuman treatment when combined
with others use of wall-standing, hooding,
subjection to noise, food and drink
deprivation.37 Herein, in the absence of the
above-mentioned, there was no substantial
ground to believe that the act committed
amounted to the war crime of torture or
inhuman treatment.
3.6. The offence was not conducted to
serve prohibited purposes
As stated above, the decision of Bric upon
the treatment to the prisoners in Bergen was a
necessary method to halt the hunger strike,
serving no prohibited purposes pursuant to the
EoC such as extracting information, confession
or
coercion,
intimidation
or
other
discrimination.
3.7. The circumstances under which the
alleged war crime under Article 8(2)(a)(ii)
was prosecuted were not associated with the
armed conflict
In Katanga case, the Court held that the
criminal conduct must be "closely related to the
hostilities" in order to qualify as a war crime.38
Herein, Professor Blanche and her students
were arrested when they were distributing
leaflets in public places.39 Also, the decision of
Bric to put those people in solitary confinement
in fact only arose after the hunger strike broke
out in the Bergen Prison. It was conducted with
a view to stopping the hunger strike led by
37

38

39

ICTY, The Prosecutor v. Delali, Case No. IT-96-21-T (16


November 1998), para. 463.
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06 (29 January
2007), para. 288.
Moot Problem, para. 19, lines 1-2.

Professor Blanche, thereby mitigating the


consequences that would otherwise have
happened. Hence, there is no substantial
evidence to prove the presence of a clear nexus
between the offenses and the armed conflict.
3.8. Mode of criminal responsibility
Even all the aforementioned elements could
be proven; Thomas Bento was not criminally
responsible for the crime he was charged as a
commander or other superiors.
a. Actus reus: Bemto did not have
effective control over the Bergen Prison when
the criminal conduct took place.
"Effective control" refers to "the material
ability to prevent or punish criminal
conduct".40 Before the suspected offence took
place, Bemto had already appointed Bric as the
warden to supervise all the operation in Bergen
Prison.41 Thus, it was Bric, not Bemto, who
effectively controlled the staffs in Bergen
Prison where the criminal offence was
conducted.
b. Mens rea.
Article 28(a) requires that the perpetrator
knew or should have known the commission of
the crime. In this case, there is no evidence
inferring his awareness of the force's conduct
in the prison. As presented by the fact, Bric
only sent a letter to Bemto saying that
something needed to be done and giving no
hint that he would commit the torture or
40

41

- 20 -

ICC, Prosecutor v. Bemba, ICC-01/05-01/08 (15 June 2009),


para. 415.
Moot Problem, para. 21, line 6.

Sinh vien va Khoa hoc phap ly so 12


inhuman treatment against the detainees.42
Bric's decision to apply solitary confinement
resulted from the discussion with Bemto's staff,
not with Bemto.43 Furthermore, means of
communication available when the offence
took place was letter-exchanging.44 Therefore,
in the absence of reporting and monitoring
system Bemto was by no means put on notice
that the offenses would be committed.45

PRAYER FOR RELIEF


Having proved the lack of constituents of
each crime, The Defendant therefore
respectfully requests The Honorable Court to
deny to confirm the charges against
Mr.Thomas Bemto under Article 8(2)(b)(i) and
8(2)(a)(ii).
Respectfully submitted,
Defendant.

42
43
44
45

Moot Problem, para. 21, lines 7-8.


Moot Problem, para. 22, lines 1-2.
Moot Problem, para. 21, lines 7-8
ICC, Prosecutor v. Bemba, ICC-01/05-01/08 (15 June 2009),
para. 431.

- 21 -

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. THOMAS BEMTO


MEMORIAL FOR THE DEFENDANT
V T HOA HO
L KHI NGUYN
1. Nature of an armed conflict

The armed conflict occurred from 1 April,


2010 was not international in nature.
In Tadc case, the ICTY held that an armed
conflict not of an international character exists
whenever there is a resort to armed violence
between governmental authorities and
organized armed groups.1 Thus, the armed
conflict commenced between Sudlandian
government and the Occupy Cappa
protesters was not of an IAC.
For this reason, the suspected conduct of
torture exercised on detainees was not
associated with an IAC, as well.
2. Applicable law

International Humanitarian Law (IHL),


including Geneva Conventions and Additional
Protocols.
3. Bemto is not individual responsible for the
crime of intentionally direct attack against
individual civilians not taking direct part in
hostilities under Article 8(2)(b)(1)

Alternately, even if the nature of the armed


conflict was international in character, Bemto
was not liable for the alleged crime under
Article 8(2)(b)(i).

3.1. The attack directed against Occupy


Cappa was not unlawful.
i. The Occupy Cappa protesters arming
themselves lost their protection.

Civilians shall enjoy special protection in


times of armed conflict, unless and for such
time as they take a direct part in hostilities.2
The protesters at first occupied the city hall of
Cappa then mounted violent resistance against
the police force,3 which caused great harm for
the Sudlandian police. For instance, two
policemen were beaten to death;4 activists
armed with improvised weapons such as axes,
hammers, petrol bombs and fireworks, as well
as, lifted fires to block off police.5 From this
point of view, the Occupy Cappa protesters
in no doubt lost their protected status on
account of taking direct part in hostilities.
ii. Alternately,
indiscriminate.

Prosecutor v. Tadic, IT-94-1-AR75, para. 70.

attack

was

not

Indiscriminate attacks are of a nature to


strike military objectives and civilians without
distinction6 and excessive in relation to the
concrete and direct military advantage
anticipated.7 Indiscriminate attacks may qualify
2
3
4
5
6

the

- 22 -

AP I, Art. 51(3).
Facts, para. 13.
Ibid.
Ibid. paras. 13,15.
AP I, Art. 51(4).
AP I, Art. 51(5).

Sinh vien va Khoa hoc phap ly so 12


as attacks directed at civilians8 and
disproportionate attacks may give rise to the
inference that civilians were the object of the
attack.9
In the course of the attack, the Sudlandian
police did properly follow the principle of
distinction set out under IHL. In fact, the police
employed the attack only after evacuating all
women and children from the city hall.10
Besides, the weapons used by the police, such
as guns, a water cannon and an armored
personnel carrier,11 as their nature, can be
directed at specific military targets, as well as,
their impacts can be limited.
Regarding the proportionality, feasible
precautions must be taken to spare and avoid or
minimise incidental loss of life, injury and
damage to civilians.12

to resort physical force to bring order.


Moreover, as to minimize the influence of the
attack, the Sudlandian police had firefighters
rescue people trapped in fire, evacuated the
building,16 and thereafter sent wounded to the
hospital to boot.17
In addition, for the reason that the civilians
are not individualized, collateral civilian
damage is not unlawful if the conditions of the
rule of proportionality are respected.18 There
was no creditable source to confirm that the
deaths of innocent people were resulted from
the acts of the police. Nonetheless, even if
these casualties had occurred, such attack
would not have been considered as attacks
against the innocent civilians.
Hence, there was no indiscriminate attack
directed at the civilians.

General Bemto as well as the Sudlandian


police genuinely took all precautionary
measures. Prior to an attack, a public
announcement was given requesting protesters
to cease the lawlessness,13 as well as, calling
for all women and children to leave the city
hall.14After the warning, at first, the police in
fact resisted the activists without armed force,
which then led to the deaths of two
policemen.15 For this reason, they necessitated

3.2. Alternately, the Sudlandian police did


not intend to make civilians protesting peacefully
to be object of the attack

3.3 Alternately, even if all the aforesaid


elements of alleged crimes were fulfilled, Bemto is
not guilty on the basis of individual responsibility
under Article 25(3)(a)

9
10
11
12

13
14
15

Prosecutor v. Galic, supra note 73 at 57.


Ibid. at 60.
Facts, para. 14.
Ibid.
AP I, Art. 57(2)(a)(ii); ICRC, Study on Customary International
Humanitarian Law, Rule 15, Rule 18, Rule 19; ICTY,
Prosecutor v. Kordi and erkez, IT-95-14/2-A (17 December
2004), para. 686.
Facts, para. 13.
Ibid. para. 14.
Ibid. para. 13.

It can be concluded that the inference of the


perpetrators intent are given rise from the
discrimination and the lack of precautions.19
As the fact in this case that the attack did not
indiscriminate in nature and all feasible
precautionary measures were taken, the
Sudlandian police had no intention to direct
attacks against the civilians.

16
17
18
19

- 23 -

Ibid. para. 15.


Ibid. para. 17.
EOC, p. 136; Ohlendorf case.
Prosecutor v. Marti, IT-95-11-R61 (8 March 1996), para. 31.

Sinh vien va Khoa hoc phap ly so 12


To establish responsibility under Rome
Statute Article 25(3)(a), the perpetrator must
through another person to commit the crime20
and fulfill the mental element of the crime he is
charged with.21 Mens rea requires the
perpetrator: (i) mean to engage in the conduct;
and (ii) was aware that the crime would be
committed in the ordinary course of events.22
Here, Bemto had given advance warning
about the upcoming attack;23 nevertheless, he
issued the order with the intention of settling
down the lawlessness but without the intention
of commission of the crime.
An individual in a position of authority
orders an act or omission with the awareness of
the substantial likelihood that a crime will be
committed in the execution of that order.24 As
the Commander-in-Chief, Bemto gave the
orders without knowing that the execution of
such order would lead to the commission of the
crime since the consequences were beyond
Bemtos military anticipation. As a result, the
existence of the attack was not in Bemtos
knowledge.
Consequently, Bemto does not bear
individually responsible for the crime under
Article 8(2)(b)(i).
4. Bemto is not responsible as the
commander for the war crime of torture under
Article 8(2)(a)(ii), Rome Statute.
20
21
22
23
24

Ibid. para. 488.


Prosecutor v. Ntaganda, at 121.
ICC, Art. 30(2).
Facts, para. 13.
Prosecutor v. Blaki, supra note 71 at 42; ICTR, Prosecutor v.
Karera, ICTR-01-74-A (2 February 2009), para. 211.

4.1. The solitary confinement treatment was


not unlawful.
a. The decision to put those detainees in
solitary confinement was justified.

Solitary confinement is permissible for


reason of prison management.25 Administrative
segregation is used as an internal tool for
isolating prisoners variously defined as
potentially dangerous, disruptive or otherwise
posing a management problem.26
Seeing that professor Blanche and 16
detainees embarked on hunger strike, the
operation in Bergen Prison started to lose
control.27 It can be implied that if there was no
measure taken, more prisons would involve in
the strike and the situation in Bergen would be
worse. For this reason, the decision on
segregation treatment was made, which was
necessary, and thus justified.
b. The solitary confinement conditions in
Bergen Prison did not fall under required minimum
standards.

Detention conditions falling below the


minimum standards, set out by Human rights
instruments, may constitute cruel, inhuman or
degrading treatment or punishment.28
There was no liable ground to establish that
the segregation conditions in Bergen Prison
25

26

27
28

- 24 -

ECiHR, Ensslin, Baader and Raspev.FRG, Decisions and


Reports, vol. 14, p. 64; ECiHR, McFeeley et al. v. UK,
Decisions and Reports, vol. 20, p. 44; ECiHR, Kro c her and
Mo llerv. Switzerland, Decisions and Reports, vol. 34, p. 24;
CM Res DH (83) 15.
Knut Drmann, Elements of War Crimes under the Rome
Statute of the International Criminal Court: Sources and
Commentary, 2003, Cambridge University Press, p. 132, 68
Facts, para. 21.
Sharon Shalev, A sourcebook on solitary confinement, vol.
4.2, para. 3, lines 4-5.

Sinh vien va Khoa hoc phap ly so 12


were below the minimum standards. In fact, all
of the construction features of the solitary units
were indicated by one of the detainees,29 not by
any professional investigation. Thus, it is
doubtfully to state that the confinement
conditions did not meet the requirements set
out by the international instruments.
c. The detainees were not inflicted with
severe physical or mental pain or suffering from
the inhuman treatment.

Torture presupposes an in human


treatment causing very serious and cruel
suffering.30
Prolonged incommunicado detention may
facilitate the perpetration of inhuman treatment
as torture.31 In fact, although they were decided
to place in segregation for a month32, some of
the victims said he was there only for 15
days.33 Hence, the precise time of the victims
detention was not verified, which cannot be
regarded as inhuman treatment.
Segregation of persons in detention is not in
inhuman treatment34 and may, itself, cause
psychological and physiological effects.35
Since there was insufficient evidence to
29
30

31

32
33
34

35

Facts, para. 23.


ECtHR, Ireland v. UK, Publications of the European Court of
Human Rights, Series A: Judgments and Decisions, vol. 25, p.
66; 58 ILR 188 at 265; ECtHR, Aksoyv. Turkey, Reports of
Judgments and Decisions, 1996-VI, p. 2279.
U.N. Commission on Human Rights resolution 2003/32,
Torture and other cruel, inhuman or degrading treatment or
punishment, April 23, 2003, E/CN.4/2003/L.11/Add.4, para.
14.
Facts, para. 22.
Ibid. para. 23.
Knut Drmann, Elements of War Crimes under the Rome
Statute of the International Criminal Court: Sources and
Commentary, 2003, Cambridge University Press, p. 132, 68.
Sharon Shalev, A sourcebook on solitary confinement,
vol.2.3, p. 15.

establish that solitary confinement treatment in


this case constitute inhuman treatment, the
suffering of professor Blanche36 was just the
actual impact of being in isolation.
Thus, the detainees were not inflicted with
severe physical or mental pain or suffering
from the inhuman treatment.
Consequently, the solitary confinement was
justified.
4.2. Alternately, the detainees were not
protected person of Geneva Conventions.

Art. 4 GC IV defines protected persons as


those who . . . find themselves . . . in the hands
of a Party to the Conflict or Occupying Power
of which they are not nationals. At the time
being arrested, as Crimania still belonged to
Sudland, the victims nationalities were the
same as the captors. Hence, they not owned the
protected status under Geneva Conventions.
4.3. Even if all these aforesaid elements of
alleged crimes were fulfilled, General Bemto
could not be held responsible as a superior for
Brics actions under Article 28(a)

Military superior may be held criminally


responsible for acts of their subordinates.37 To
prove superior responsibility of General
Bemto, following elements must be fulfilled:
(i) a superior subordinate relationship; (ii) the
mental element: knowledge or constructive
knowledge; (iii) The failure to take necessary
and reasonable measures to prevent the crime,
or to punish the perpetrator.38
36
37
38

- 25 -

Facts, para. 23.


Art. 28, Rome Statute.
Art. 28, Rome Statute.

Sinh vien va Khoa hoc phap ly so 12


The Defendant does not contest that there is
a superior-subordinate relationship between
General Reed and Warden Wall. However, the
mens rea elements are absent.
Effective control is perceived as material
ability to prevent, repress and submit the
matter to the competent authorities
commission of offence and failure to exercise
such ability of control gives rise to criminal
responsibility.39 These measures are limited to
those within their power.40 However, the
superior is not obliged to do the impossible,41
such as: the superiors duty to prevent only
arises from moment he acquires knowledge or
has reasonable grounds to suspect that crime is
being or is about to be committed.42
The ability could be seen via two elements:
(i) he has general information to put him on
notice of crime committed by subordinates or
of possibility of occurrence of unlawful acts43
and (ii) such available information is sufficient
to justify further inquiry or investigation.44 A
superior can be held criminally responsible
only if some specific information was in fact
available to him that would provide notice of
offences committed by his subordinates.45
39
40

41

42

43
44

45

Id. para. 415.


Prosecutor v. Delalic et al. (Judgement) IT-96-21-T, T.Ch. (16
November 1998), para. 395.
Prosecutor v. Oric (Judgement) IT-03-68-T, T. Ch. II (30 June
2006), para. 329.
Prosecutor v. Strugar (Judgement) IT-01-42-T, T. Ch. II (31
January 2005), para. 373.
Id. para. 434.
Prosecutor v. Limaj et al. (Judgement) IT-03-66-T, T.Ch. II (30
November 2005), para. 525.
Prosecutor v. Delalic et al. (Judgement) IT-96-21-T, T.Ch. (16
November 1998), para. 393.

There is no evidence showing that General


Bemto was noticed of the solitary confinement
treatment used with Professor Blanche and
other detainees. Brics reported only the
situation of detainees hunger strike and told
Bemto hes about to do something. General
Bemto didnt know Brics decision. Even in
the unlikely case that Bemto knew about the
treatment, he did not know or have reason to
know that it would constitute the war crime of
torture or inhuman treatment. Solitary
confinement, in this case, was for keeping
other detainees out of reach of the hunger strike
of Professor Blanche and her students.
Thus, without the mens rea, General Bemto
does not bear the superior responsibility for the
treatment in Bergen Prison.
PRAYER FOR RELIEF
The Defendant respectfully requests the
Honourable Court to declare that there are
substantial grounds to believe that Bemto is not
responsible for the following crimes:
1. The war crime of intentionally directing
attacks against the civilian population as such or
against individual civilians not taking direct part in
hostilities, as the role of commander.
2. The war crime of torture or inhuman
treatment of persons protected under the provisions
of the relevant Geneva Convention, as the role of
commander.

- 26 -

Respectfully submitted,

Defendant.

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. THOMAS BEMTO


MEMORIAL FOR THE DEFENDANT
TRN TH NGC H
NGUYN NGC NGN
1. Statement of jurisdiction
Count 1. Regarding the conduct against the
protesters occupying the city hall of Cappa,
Mr. Thomas Bemto is criminally responsible
for committing, as an individual, jointly with
another or through another person, the war
crime of intentionally directing attacks against
the civilian population as such or against
individual civilians not taking direct part in
hostilities, under Article 8(2)(b)(i) and Article
25(3)(a) of the Rome Statute.
Count 2. Regarding the treatment of
detainees in the Bergen Prison, Mr. Thomas
Bemto, as a military commander, is criminally
responsible for the war crime of torture or
inhuman treatment of persons protested under
the provisions of the relevant Geneva
Convention, under Article 8(2)(a)(ii) and
Article 28(a) of the Rome Statute.
2. Count one
The Prosecution is unable to establish that
the Defendant conduct satisfies all necessary
elements of the charged crimes under the
Rome Statute and therefore all charges should
be dismissed.
2.1. Whether the object of the attack
was a civilian population as such or

individual civilians not taking direct part in


hostilities
a. Whether the protesters who were
attacked at city hall are civilians.
After the PAS forces took control again
over Cappa, they faced with strong resistance
from the local Nordlandian community. Those
protesters came from Occupy Cappa, a civil
disobedience campaign against the Sudlandian
government, which was under command of
some Nordlandian leaders. After the conflict
between Sudland and Nordland, this
organization began to activate forcefully. They
not only occupied Cappas city hall, but also
used weapons such as axes and hammers to
fight against the riot police. According to the
Sudland State-owned newspaper Bevestia,
opposition activists armed with bats and iron
rods allegedly beat two policemen to death.
They resisted their government regardless of
warning from authority. The death of two
policemen indicated that the protesters had
attacked aggressively and uncompromisingly
that made a suspicion of their civilian
character.
Under Article 50(1), Additional Protocol I
(AP I) defines civilians and civilian
population: A civilian is any person who does
not belong to one of the categories of persons

- 27 -

Sinh vien va Khoa hoc phap ly so 12


referred to in Article 4(A) (1)(2)(3) and (6) of
the Third Convention and in Article 43 of this
Protocol. In case of doubt whether a person is a
civilian, that person shall be considered to be a
civilian. It means the objects which are in
scope of Article 4(A) (1)(2)(3) and (6) of the
Third Convention and in Article 43 of this
Protocol are neither individual civilians nor
civilian population.
According to Article 4(A)(2) of the Third
Convention, the following is excluded:
"2) Members of other militias and
members of other volunteer corps,
including those of organized resistance
movements, belonging to a Party to the
conflict and operating in or outside their
own territory, even if this territory is
occupied, provided that such militias or
volunteer corps, including such organized
resistance movements, fulfil the following
conditions:
a) that of being commanded by a person
responsible for his subordinates;
b) that of having a fixed distinctive sign
recognizable at a distance;
c) that of carrying arms openly;
d) that of conducting their operations in
accordance with the laws and customs of
war.
Similarly, Article 1 3 of Hague Regulation
1907 also adopted these characters of militias
and volunteer corps, including those characters
mentioned above.1 We should accept that these
signs totally appeared in the action of the
1

protesters, such as having the leaders, arming,


named themselves
From what has been discussed, we can
reach to a conclusion: Occupy Cappa is
belonged to a Party to a conflict under Article
4(A)(2). Thus, the protesters who occupied city
hall are not considered civilians whom are
protected under Article 51 of AP I.2
b. Whether the protesters took directly
part in the hostilities.
Under Article 4(A)(2) of Third Convention,
these protesters were in status of combatants.
This means they totally had the ability to take
directly part in hostilities.3 Indeed, they used
weapons for fighting against Sudlandian
police, causing the death of two policemen.
They also threw fireworks, petrol bombs, and
lit fires to block off police. Those acts
definitely indicated that they had taken directly
part in hostilities. The word "direct" can be
considered acts of war which by their nature or
purpose are likely to cause actual harm to the
personnel and equipment of the enemy armed
forces.4
2.2. Whether the defendant intended the
civilian population as such or individual
civilians not taking direct part in hostilities
According to what have been said, we must
accept that the defendant, Mr. Thomas Bemto,
had the right not to consider the protesters as
civilians and that he was forced into taking
2
3
4

Article 1-3, Hague Convention IV of 1907.

- 28 -

Article 51 of Additional Protocol I.


Commentary of Article 43, API, [1664].
Commentary of Article of Article AP I [1944] What is the
exact meaning of the term "direct" in the expression "take
a direct part in hostilities"?

Sinh vien va Khoa hoc phap ly so 12


sufficient methods to fight the insurgency. It is
the activities of the insurgents themselves that
makes this tactic necessary and therefore it is
the insurgents who are responsible for the
result in civilian casualties. Thus, this element
has not been satisfied.
2.3. Whether this conduct took place in
the context of and was associated with an
international armed conflict
In 2007, a group of people was established
with the aim to fight against the Sudlandian
government. This group had the leaders, named
itself Occupy Cappa. These protesters armed
themselves with weapons such as axes and
hammers and other means of warfare like
fireworks, petrol bombs. In fact, ethnic
Nordlandians have felt marginalized and
resentment towards the Sudlandian central
government for a long time which is caused by
many subjective and objective reasons. For
example, because of its remote location or the
rate of higher education in Crimania has been
the lowest compared to other regions.
Nordlandians are at variance with the disparity
in treatment of government to Sudlandians and
enterprises in various sectors. Occupy Cappa
took use of these reasons to attract people to
participate in their resistance movement. It can
be argued that everyone has the right to fight
for their freedom and their self-determination.5
However, in order to have this right, this ethnic
must prove that they have been treated unfair
or be suppressed for a long time. In this case,
there is not enough evidence to indicate that
5

they were seriously treated unfair, limited their


legal rights or freedom. Further, since 1990,
Sudland adopted a new policy which prompted
the growth of a successful high-tech industry
and led to unprecedented economic growth in a
few years. The unequal growth among
industries in different sectors, areas of a young
economy is predictable. It is possible that
enterprises in some various sectors grew faster
and therefore, were received more preferential
treatment from government. Moreover,
Crimanias geographical position was another
element that prevented central government
from developing education or other activities in
this area.
Actually, the occupation of Occupy
Cappa is only a resistance movement which
might be considered as a way to indicate their
disapproval. However, it had become out of
control and caused extensive damage by both
the impatient solution from government and
the other side.
Thus, the conflict between the Sudlandian
central government and the protesters of
Occupy Cappa is neither international armed
conflict nor association with an international
armed conflict, but an internal armed conflict.
In short, the defendant does not contest the
satisfaction of all elements of Rome Statute. He
did direct an attack during the armed conflict.
However, the defendant cannot be criminally
liable for attacking civilians because their
conduct does not satisfy elements 2, 3 and 4 as
established by the Rome Statute.

Article 1 of International Covenant on Civil and Political


Rights.

- 29 -

2. Count two

Sinh vien va Khoa hoc phap ly so 12


2.1. Whether there is a war crime of
torture or inhuman treatment here
a. The definition of torture and other
inhuman treatment.
According to the definition of torture under
Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment (CAT), torture is any act that
consists of the intentional infliction of severe
pain or suffering, whether physical or mental,
involving a public official and carried out for a
specific purpose, for example with the aim of
punishing or degrading and humiliating a
person, obtaining from him or a third person
information or a confession.6
Similarly, under Federal Criminal AntiTorture Statute, torture means an act
committed by a person acting under the colour
of law specifically intended to inflict severe
physical or mental pain or suffering upon
another person.7 There is a definitely difference
between torture and inhuman treatment, while
torture is completely forbidden, other kind of
inhuman treatment can be take into
consideration and may be argued in certain
circumstances.8 Therefore, the challenge is to
determine which methods are legitimate and
which are illegal, causing pain and suffering
that fall into the category of cruel and
inhuman or degrading treatment or torture.

Article Convention against Torture and Other Cruel,


Inhuman or Degrading Treatment or Punishment (CAT).
Federal Criminal Anti-Torture Statute, 18 USC, Section
2340: https://www.law.cornell.edu/uscode/text/18/2340
International review of Red Cross: The worst scars are in
mind: psychological torture, Hernn Reyers, Volume 89
Number 867 September 2007.

b. Whether solitary confinement


should be considered torture or inhuman
treatment.
It has been stated that it can be difficult to
distinguish torture and inhuman treatment in
general. It is even harder to define
psychological torture. As being concerned,
the definition of torture is firmly based on
severe pain and suffering. The severity of
pain or suffering to qualify as a form of
torture had to be of a high level of intensity.9
With regard to physical suffering, the author of
the memorandum defined severe as having
to rise to a level that would ordinarily be
associated with a sufficiently serious condition
or injury such as death, organ failure or serious
impairment of bodily functions.10
The point here is that the Sudlandian
authorities might use torture seek to narrow the
definition thereof, just focus on physical
severe pain and suffering aspects. And as the
detainees are not assaulted or interrogated,
there is no reason to blame them for causing
serious pain or suffering.
Other
than
physical
torture,
the
psychological torture uses non-physical
methods. It means hurting person by not
9

10

- 30 -

Memorandum from Jay. S. Bybee, Assistant Attorney


General for the Office of Legal Council at the US
Department of Justice, to Alberto Gonzales, Counsel to the
President (1 August 2002), in Karen Greenberg and Joshua
Dratel (eds.), The Torture Papers, Cambridge University
Press, Cambridge, 2005, pp. 172218, extracted from
International review of Red Cross: The worst scars are in
mind: psychological torture, Hernn Reyers, Volume 89
Number 867 September 2007.
International review of Red Cross: The worst scars are in
mind: psychological torture, Hernn Reyers, Volume 89
Number 867 September 2007.

Sinh vien va Khoa hoc phap ly so 12


hurting or touching the body but touching the
mind instead. Solitary confinement, in fact, is
regarded as a typical non-physical method.
However, coming to the next issue, we can see
that this time, the psychological method used
cannot be considered torture, but an
unavoidable solution.
2.2. Whether the treatment to Professor
Blanche and some of her students is torture
or inhuman treatment
a. Whether it is illegal to put
Professor Blanche and her students into
solitary confinement.
Professor Jeans Blanche was one of the
leaders of the Occupy Cappa, she also an
outspoken supporter of the incorporation of
Crimania to Nordland. It acknowledged that
the freedom of Professor Blanche had posed
serious difficulties for the Sudlandian
authorities and understood that they should
have considered it necessary to take
extraordinary security measures to detain her.
At first, the government just wanted to put her
under their control to stop her from leading and
increasing the conflict. However, when she
was kept in ordinary prison, she had caused a
loss of control in the prison by embarking on a
hunger strike which had soon got through the
major media in both Nordland and Sudland,
impacting on other detainees, attracting the
international attention Therefore, solitary
confinement was a last resort and used after
every careful consultation. The reasons given
to justify the decision to her detention in
solitary confinement were her dangerousness,

the need to maintain order and security in the


prison, which since her presence, had been out
of order. Dangerousness here can be defined
as the effect she can cause to other people, as a
statement of General Bemto: We will demand
the heaviest punishment both for those who
revved people up to take part for todays action
and for them who organized and controlled
them. Indeed, based on the effect of Professor
Blanche to Crimania community, in particular
the Occupy Cappa protesters, the Sudlandian
government totally had the right to think that
she might use communications either inside the
prison or on the outside to re-establish contact
with other members of their organization to
spread out the campaign against the
government. It can argued that, even in the
most difficult circumstances, such as the fight
against terrorism and organized crime, the
Convention prohibited in absolute terms torture
and inhuman or degrading treatment or
punishment. However, regarding on what
happened, it is necessary to have an effective
and quickly way to stop the campaign of these
protesters, which had caused intensive loss of
life and property for both the Sudlandian police
and the protesters. Therefore, considering the
purpose of government, the treatment in prison,
it is unavoidable to put Professor Blanche and
some of her students, who organized,
controlled and spread out the conflict into
prison, which can restrict the unnecessary loss.
b. Whether the treatment to Professor
Blanche and her student is torture or inhuman
treatment.

- 31 -

Sinh vien va Khoa hoc phap ly so 12


Regarding in particular the impact and the
danger they posed, it had not been
unreasonable for the authorities to consider
that, in order to ensure safety in prison, they
should be subjected to tighter security controls,
involving constant supervision, limitation on
their contact and communication with the
outside world and some form of segregation
from the prison community. The Court could
not accept and argued that there is a violation
of Articles 3 (prohibition of inhuman or
degrading treatment) and 8 (right to respect for
private and family life) of the European
Convention on Human Rights. However, as
being discussed above, it should be accepted
that the government had to restrict the contact
between the detainees and others to stop the
negative impact on others, and the facts that
they were able to access the medical care in
case of emergency.11 As regard the period they
were kept, in one month, the lack of
communication and other activities did not
attain the sufficient threshold of seriousness
required to constitute torture or inhuman
treatment, in violation of Article 3.12 In a short
time, solitary confinement can be chosen as a
mean to awaken the prisoners. Legislation in
some jurisdictions also permit Court to impose
11

12

Depending on the case and the decision of the Court,


European Court of Human Rights, the cases of Piechowicz
v. Poland (application no. 20071/07) and Horych v. Poland
(application no. 13621/08)
http://hudoc.echr.coe.int/sites/engpress/pages/search.aspx?i=003-39171854525877#{"itemid":["003-3917185-4525877"]}
Depending on the case and the decision of the Court,
European Court of Human Rights, the cases of calan v.
Turkey.
http://hudoc.echr.coe.int/sites/engpress/pages/search.aspx?i=003-47037145709561#{"itemid":["003-4703714-5709561"]}

period of solitary confinement as a part of


sentence for a certain time.13
PRAYER FOR RELIEF
In light of the legal evidences, the
provisions of the Convention and its Protocols
applied and arguments advanced; and in light
of the studies relating to the issue referred to
this case, the ICC should not exercise
jurisdiction over the accused defendant.
Further, defendants cannot be held for the
criminally liable war crime of attacks against
civilians, or the war crime of torture or
inhuman treatment upon other person.
Respectfully submitted,
Defendant.

13

- 32 -

A Sourcebook on Solitary confinement: The decision to


place prisoners and detainees in solitary confinement:
Pakistan Penal Code, Act XLV of 1860, p. 25.

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. THOMAS BEMTO


MEMORIAL FOR THE PROSECUTOR
NGUYN THC ANH
HUNH M LINH

1. Admissibility
Under Article 5(1)(c), the International
Criminal Court (ICC) has jurisdiction over
the suspected war crimes. Moreover, the case
against Mr. Thomas Bemto (Bemto) before
the ICC is admissible under Article 14 as
Sudland and Nordland agreed to jointly refer
the situation of Crimania to the ICC.
2. Type of armed conflict, applicable law
and belligerent nexus
2.1. The international armed conflict
(IAC) between Nordland and Sudland
commenced on 12 January 2010
In Lubanga case, the ICC held that an IAC
takes place between two or more States.1
Hence, the armed conflict arising between
Sudland and Nordland is IAC. In Hague
Convention, a territory is considered being
occupied when it is actually placed under the
authority of the hostile army.2 Cappa, the
capital city of Criminia is gained control by the
Nordland Armed Forces (NAF) on 12th

January 2010;3 on 15th January 2010, the NAF


obtained surrender from the Governor of
Criminia. A Military Administration was
established to govern Crimania under the
supervision of the NAF.4 International
Humanitarian Law (IHL) applies even if the
said occupation meets with no armed
resistance5 and people are fighting against
colonial domination and alien occupation.6 In
this case, the NAF invaded Criminia with no
armed resistance; the condition of occupation
in Criminia was therefore satisfied for an
Occupying Power. On 27th March 2010,
General Bemto ordered the PAS to engage in a
vigorous attack with artillery and air support.7
When an armed conflict occurred, the territory
will be determined in the whole territory of the
warring States.8 Basing on the determination of
the ICC, the territory in this armed conflict
must be the Criminia and the whole territory of
Sudland.
3
4
5

6
1

ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-803 (14 May


2007), para. 209.
International Conference (The Hague), Hague Convention
(IV) Respecting the Laws and Customs of War on Land and
Its Annex: Regulations Concerning the Laws and Customs of
War on Land (The Hague), 18 October 1907, Art. 42.

- 33 -

Moot Problem, para. 6, lines 4 - 5


Moot Problem, para. 7, lines 1 - 3
International Committee of the Red Cross (ICRC), Geneva
Conventions (GCs), 12 August 1949, Common Art.2.
ICRC, Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) (AP I), 8 June
1977, 1125 UNTS 3, Art. 1.
7Moot Problem, para. 10, lines 1 - 2
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2842 (14
March 2012), para. 533.

Sinh vien va Khoa hoc phap ly so 12


2.2. Applicable law
IHL applies in IAC,9 excluding Common
Article 3 of the Geneva Conventions and
Additional Protocol II.
2.3. The nexus between the offences
charged and the IAC existed

3.1. Thomas Bemto committed the war


crime of intentionally directing attacks
against the civilian population as such or
against individual civilians not taking direct
part in hostilities
a. Bemto directed an attack

The nexus existed where the armed conflict


played a substantial role in the perpetrators
decision, in his or her ability to commit the
crime.10 The act of Bemto ordering the PAS to
launch an attack is to regain control of Cappa
and the act of treating detainees in Bergen
Prison is a consequence of the hostilities in
Cappa.

Attack means acts of violence against the


adversary.12

2.4. The awareness of Bemto in factual


circumstances that established the armed
conflict

b. The object of the attack was a


civilian population as such or individual
civilians not taking direct part in hostilities

In Katanga case, the ICC held that the


leader of the military group as a party to the
armed conflict was fully aware of the existence
of the armed conflict.11 Bemto was the leader
of the military government of Sudland;
therefore, he was aware of the factual
circumstances of the armed conflict.

i. Civilian population/civilians not


taking direct part in hostilities

3. Substantive crime
COUNT 1: Thomas Bemto is criminally
responsible for committing, as an individual,
jointly with another or through another
person, the war crime of intentionally
directing attacks against the civilian
population as such or against individual
civilians not taking direct part in hostilities.
9
10

11

GCs, Common Art. 2


ICC, Prosecutor v. Lubanga, ICC-01/04-01/06 (14 May
2007), para. 287
ICC, Prosecutor v. Katanga, ICC-01/04-01/07 (30
September 2008), paras. 385-388

Bemto ordered the PAS to engage in a


vigorous attack with artillery and air support in
order to regain control of Cappa out of the
occupation of Nordland.13 Therefore, this had
constituted an attack.

According to Article 50 and Article 51


Additional Protocols I (AP I), civilians are
protected against attacks as long as they do not
take a direct part in hostilities.
In the whole event, there is no certain
evidence which shows that the protesters
participating in city hall of Cappas takeover
got involved in hostilities. One of the protesters
even claimed that she was protesting
peacefully with others when the polices
bullets came at their direction.14
Therefore, these civilians were still under
the protection of these Articles.
12
13
14

- 34 -

Rome Statute, Art. 49


Moot Problem, para. 10, line 1
Moot Problem, para. 18, line 3

Sinh vien va Khoa hoc phap ly so 12


ii. Indiscriminate attack
Articles 51(4) and 51(5) AP I addresses that
indiscriminate attacks are prohibited and are
those which (1) are not directed at a specific
military objective or (2) employ a method of
combat, the effects of which cannot be limited
as required and consequently, in each such
case, are of a nature to strike military
objectives and civilians without distinction.
In this situation, even if the city hall of
Cappa was considered the specific military
objective, the police forces setting the 3rd floor
on fire15 was still seen as a method of which
the effects cannot be limited.
iii. The requirement to take
precautions with a view to sparing
civilians
According to Article 57 AP I, those who
plan or decide upon an attack shall take all
feasible precautions in the choice of means and
methods of attack with a view to avoiding, and
in any event to minimizing, incidental loss of
civilian life, injury to civilians and damage to
civilian objects.
The police using guns, water cannon16 and
setting protesters tents and the city hall on
fire17 under no circumstances can be
considered necessary precautions.

c. The perpetrator intended the


civilian population as such or individual
civilians not taking direct part in hostilities to
be the object of the attack
The ICTY held that, attack must have been
conducted intentionally in the knowledge, or
when it was impossible not to know, that
civilians were being targeted.18
Bemto issued a public announcement that
he and police force shall use all means to
bring order.19 Hence, Bemto must or should
have known that civilians at the city hall of
Cappas takeover would be the object of the
attack and also intended to target those
civilians.
d. The conduct took place in the
context of and was associated with an IAC
Submitted in II.3
e. The perpetrator was aware of
factual circumstances that established the
existence of an armed conflict
Submitted in II.4
3.2. Bemto bears responsibility as an
individual, jointly with another or through
another person under Article 25(3)(a)
a. Actus reus:

In conclusion, the act of the police force


was taken with the object as a civilian
population as such or individual civilians not
taking direct part in hostilities

Actus reus requires: (i) the perpetrator was


part of a common plan to use force against
civilians with members of his inner circle, who
all shared the intent to commit the crimes, (ii)
the perpetrator and his inner circle, acting in a

15

18

16
17

Moot Problem, para. 15, line 4


Moot Problem, para. 14, line 2
Moot Problem, para. 14, line 3 and para. 15, line 4

19

- 35 -

ICTY, Judgment, The Prosecutor v. Thomir Blaskic, IT-95-14T, para. 180; 122 IRL at 72.
Moot Problem, para. 13, line 3

Sinh vien va Khoa hoc phap ly so 12


coordinated manner, used the forces to carry
out the material elements of the crimes, and
that without the perpetrators actions, the
crimes would not have been committed or
would have been committed in a significantly
different way, and (iii) the perpetrator and his
inner circle, by virtue of their control over the
their forces, exercised joint control over the
will of the members of these forces who were
the direct perpetrators of the crimes.20
General Bemto was in charge of the
Operation Shield which had been approved
by General Belisaris.21 He also warned the
protesters who occupied the city hall of Cappa
that he will use violence22 and used the PAS
force to advance on thousands of protesters
with guns, a water cannon and an armored
personnel carrier.23
b. Mens rea
Mens rea requires (i) the perpetrator to have
committed the crimes with the requisite intent
and knowledge pursuant to article 30 of the
Statute, and (ii) he and the members of his
inner circle were aware of the factual
circumstances that enabled them to exercise
joint control over the commission of the crimes
through members of the forces.24
There are several of reports and statements
indicated that General Bemto wilfully let the
attack be launched. Besides, his public
20

21
22
23
24

ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014),


para.230
Moot Problem, para. 8, lines 1-3
Moot Problem, para. 13, line 3
Moot Problem, para. 14, 15
ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014),
para.230

announcement to protesters proved that he


would use violence against the protesters by
PAS force.
Thus, Bemto has met the requisite elements
of actus reus and mens rea.
Consequently, Bemto is criminally
responsible under Article 8(2)(b)(i).
COUNT 2: Mr. Thomas Bemto is
criminally responsible for the war crime of
torture or inhuman treatment of persons
protected under the provisions of the
Geneva Convention (IV)
3.2. Bemto committed the crime of
torture or inhuman treatment under Article
25(3)(a)
a. Bemto inflicted severe physical or
mental pain or suffering upon one or more
person
i. The conditions of detention was
below common standards
In Kalashnikov v. Russia,25 the Court held
that although there had been no indication of a
positive intention to humiliate the applicant, the
conditions of detention which were described
as less than 7 m2 per detainee26 and the cell
light never turning off - had amounted to
degrading treatment. Besides, in Ananyev and
Others v. Russia,27 it was held that the
detainees were made to remain inside their
cells all the time, except for a one hour period

25
26
27

- 36 -

Chamber judgment Kalashnikov v. Russia 15.07.02


European Committee for the Prevention of Torture
Chamber judgment Ananyev and Others v. Russia 10.01.12

Sinh vien va Khoa hoc phap ly so 12


of outdoors exercise, which
considered inhuman treatment.

was

also

According to the detainees, the cells at


Bergen Prisons solitary confinement measured
about 2 meters and had a light at the top which
was on 24 hours a day;28 some prisoners even
were never allowed outdoor except on their
way to and from the Court.29 Considering the
two cases mentioned above, Bemto and his
troop inflicted a severe physical pain on the
detainees in Bergen Prison.
ii. The detainees were
communication with others

denied

In Baader and Raspe v. FRG,30 complete


sensory isolation coupled with complete social
isolation can no doubt destroy the personality
and therefore constitute inhuman treatment.
Moreover, according to a statement by
European Committee for the Prevention of
Torture, prolonged solitary confinement can
lead to effects such as anxiety, nervousness,
stress, disturbed sleep, difficulties in
concentration and elocution, as well as suicidal
tendencies, depression and paranoid symptoms.
Professor Blanche and her students were put
in solitary confinement from 24th May 2010 to
2nd July 2010, during which they were denied
communication with others except case of
medical emergency.31 Blanche also stated that
she had not been able to sleep without sleeping
pills since she left Bergen. Conclusively, these

detainees are assumed to have received


inhuman treatment during their time in solitary
confinement at Bergen Prison.
b. Such person or persons were
protected under the Geneva Convention (IV)
Article 4(1) of the Geneva Convention (IV)
describes protected persons only by referring
to the difference in nationality between the
persons and the Party or Occupying Power in
whose hands they find themselves.32 However,
in Appeals chamber of Tadic case, 33 the Court
held that those civilians in the occupied
territory who, while having the nationality of
the party to the conflict in whose hands they
find themselves, are refugees and thus no
longer owe allegiance to this Party and no
longer enjoy its diplomatic protection can also
fall under this provision of protected persons;
the lack of both allegiance and diplomatic
protection to this State was regarded as more
important than the formal link of nationality.
Besides, allegiance to a Party to the conflict
and, correspondingly, being controlled by this
Party over persons in a given territory may be
regarded as the crucial test.
Being treated discriminatorily by the
Sudlands governmental policies, the ethnic
Nordlandians in Crimania felt marginalized
and resented towards the Sudlandian central
government.34 In addition, the NAF could
quickly gain control of Cappa without any
32

28
29
30

31

Moot Problem, para. 23, line 6,7


Moot Problem, para. 23, line 10, 11
European Commission of Human Rights Ensslin, Baader
and Raspe v. FRG, Decisions and Reports, vol 14, p.109
Moot Problem, para. 22, line 2, 3

33
34

- 37 -

Those who, at a given moment and in any manner


whatsoever, find themselves, in case of a conflict or
occupation, in the hands of a Party to the Conflict or
Occupying Power of which they are not national
ICTY, Prosecutor v. Tadic, IT-94-1-A (15 July 1999)
Moot Problem, para. 4, line 6

Sinh vien va Khoa hoc phap ly so 12


armed resistance.35 These facts along with the
Occupy Cappa campaign led by Blanche
an outspoken supporter of the incorporation of
Crimania of Nordland36 have proved that the
Nordlandians in Crimania, especially those
detained in the Bergen Prison, no longer owed
allegiance to Sudlandian government.
Therefore, they have fallen under the provision
protected persons of the Geneva Convention
(IV).
c. Bemto was aware of the factual
circumstances that established that protected
status
The Preparatory Commission for the ICC
has stated that the perpetrator needs only to
know that the victim belongs to an adverse
party in order to be believed to have acquired
awareness of the factual circumstances that
established the protected status under Geneva
Convention (IV).
Professor Blanche was one of the leaders of
Occupy Cappa campaign;37 she was also
termed a national hero and awarded a medal
for her extraordinary valour by President
Andrew of Nordlandian government.38 Hence,
Bemto knew, or should have known that
Blanche and her students who distributed
leaflets in public places belong to the adverse
party Nordlandian government.
d. Bemto has either guilty intent or
recklessness
when
imposing
inhuman
treatment on the detainees in Bergen Prison

The Trial Chamber of the ICTY held that


the mens rea constituting all the violations of
Article 2 of the Statute containing the grave
breaches includes both guilty intent and
recklessness which may be likened to serious
criminal negligence.39
Ervine Bric decided to put Blanche and her
students in solitary confinement only after
consultation with Bemtos staff and sending a
letter to Bemto.40 Therefore, Bemto should
have known about this issue; this non-action
has already constituted recklessness of Bemto.
e. The conduct took place in the
context of and was associated with an IAC
Submitted in II.3
f. Bemto was aware of factual
circumstances that established the existence of
an armed conflict
Submitted in II.4
3.3. Bemto bears responsibility as a
military commander under Article 28(a)
a. Actus reus
Actus reus requires: (i) the existence of a
superior-subordinate relationship and (ii)
committed by forces under his or her effective
command and control.41
Ten students of Professor Blanche were
arrested by the Sudlandian police42 who was
under Bemtos control.43
39

35
36
37
38

Moot Problem, para. 5, line 6


Moot Problem, para. 12, 13
Moot Problem, para. 12, line 4
Moot Problem, para. 21, line 2, 3

40
41
42
43

- 38 -

ICTY, Judgment, The Prosecutor v. Thomir Blaskic, IT-95-14T, para. 152; 122 ILR 1 at 64
Moot Problem, para. 21, 22
Article 28(a), Rome Statute
Moot Problem, para. 19, lines 1-2
Moot Problem, para. 3, lines 6-7

Sinh vien va Khoa hoc phap ly so 12


b. Mens rea:

PRAYER FOR RELIEF

Mens rea requires (i) the subjective element


and (ii) the failure to prevent and punish.44
Bemto has the control to the Sudlandian
police so he had to know about the arresting.
He had no command to prevent the arresting
until the Sudlandian authorities pressed Bemto
to solve the issue.45
Thus, Bemto has met the requisite elements
of actus reus and mens rea.

The Prosecutor respectfully requests the


Honourable Court to confirm the charges of the
war crime of intentionally directing attacks
against the civilian population as such or
against individual civilians not taking direct
part in hostilities and torture or inhuman
treatment of persons protected under the
provisions of the Geneva Convention (IV)
against Bemto.

Consequently, Bemto is criminally


responsible under Article 8(2)(a)(ii).

44
45

Article 28(a), Rome Statute


Moot Problem, para. 21, lines 4-5

- 39 -

Respectfully submitted,
Prosecutor.

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. THOMAS BEMTO


MEMORIAL FOR THE PROSECUTOR
V T HOA HO
L KHI NGUYN
1. The admissibility of the case against
Thomas Bemto

The International Criminal Court (ICC)


has jurisdiction over suspected war crime.1
Furthermore, as Nordland and Sudland agreed
to jointly refer the situation between 12
January and 31 December 2010 of Crimania to
the ICC,2 the case against Mr. Thomas Bemto
(Bemto) before ICC is admissible under
Article 14.
2. Nature of the armed conflict.
2.1. There commenced International Armed
Conflict (IAC) on 12 January 2010, in
Crimania

From 12 January 2010 to 1 April 2010:


Existence of an armed conflict of an
international character.
An armed conflict is international if it takes
place between two or more States.3 Thus, the
armed conflict arising between Nordland and
Sudland was IAC.

2
3

UN General Assembly, Rome Statute of the


International Criminal Court (last amended 2010)
(Rome Statute), 17 July 1998, ISBN No. 92-9227-2276, Art 5(1)(c)
Facts, para.24, lines 5-6.
Prosecutor v. Lubanga, ICC-01/04-01/06-803, para.209

From 1 April 2010 on wards: The armed


conflict was still international in nature.
Internal armed conflict is international in
character if the participants act on behalf of a
foreign State.4 The conduct of a group of
persons shall be considered an act of a State
under international law if the group of persons
is (i) in fact, exercising elements of the
governmental authority (ii) in the absence or
default of the official authorities and (iii) in
circumstances, such as to call for the exercise
of those elements of authority.5 Nordland has
been contesting Sudland sovereignty over
Crimania and finally invaded it.6 By the same
token, after the NAF withdrawal, the Occupy
Cappa protesters immediately took over the
city hall of Cappa, Crimania capital.7
Moreover, the Occupy Cappa campaign,
through several speeches, had attempted to call
for the support of the incorporation of
Crimania to Nordland.8 Such conducts of the
Occupy Cappa protesters are attributable to

4
5

6
7
8

- 40 -

Ibid..
Responsibility of States for Internationally Wrongful
Acts 2001, Art.9
Facts, para.5, lines 1-3
Ibid., paras.11,13
Ibid., para.12

Sinh vien va Khoa hoc phap ly so 12


Nordland and thus, there
international armed conflict.

occurred

an

In respect of Count 2, the detainees and


participants of the Occupy Cappa campaign
were arrested and then put in solitary
confinement,9 which took place in context of
and was associated with an IAC as well.
The International Humanitarian Law
(IHL) applies from the initiation of such
armed conflicts and extends beyond the
cessation of hostilities until a general
conclusion of peace is reached, and continues
to apply the whole territory of the warring
State.10 Thus, the territory in this armed
conflict must be Crimania and the whole
territory of Sudland.

Professor Blanche and her students in solitary


confinement in course of the armed conflict
served the purpose of punishment.14
2.4. The awareness of Bemto in factual
circumstances

The leader of the military group as a party


of the armed conflict was fully aware of the
existence of the armed conflict.15 Here, Bemto
was the Commander-in-chief of the Sudlandian
police;16 hence, he was aware of the factual
circumstances of the armed conflict.
3. Substantive crimes
3.1. Bemto is criminally responsible,
through another person, for the war crime of
attacking against the civilians under Article
8(2)(b)(i), Rome Statute.
a. The Sudlandian police directed the

2.2. Applicable law

IHL applies in IAC,11 excluding Common


Article 3 of the Geneva Conventions (GCs)
and Additional Protocol II.
2.3. The nexus between the offences
charged and the IAC existed
The nexus existed where the armed conflict
played a substantial role in the perpetrators
decision, in his or her ability to commit the
crime.12 The acts of Bemto giving the
announcement regarding the attack directed by
the Sudlandian police against protesters were
taken in response to re-establish order in
Crimania.13 Moreover, the decision to put

attack.

Attacks mean acts of violence against


the adversary.17
The Sudlandian police advanced on the
protesters with guns, a water cannon and an
armored personnel carrier, as well as, burnt
their tents housing.18 Those acts were
attributable to the attack against Occupy
Cappa protesters.
b. The object of the attack was civilians
not taking direct part in hostilities.

Some of the protesters were protected under


IHL
14

9
10
11
12
13

Ibid.., paras. 19,22


Prosecutor v. Blaskic, IT-95-14-T, para.64; 122 ILR1at40.
Geneva Conventions, Common Art. 2.
Prosecutor v. Kangtana, ICC-01/04-01/07 para.380
Facts, para.13-15.

15

16
17
18

- 41 -

Ibid.., para.16,19,22.
Prosecutor v. Katanga, ICC-01/04-01/07, paras. 385388.
Facts, para.3, lines 6-7
AP I, Art.49(1).
Facts, para.14.

Sinh vien va Khoa hoc phap ly so 12


Civilians shall enjoy special protection in
times of armed conflict, unless and for such
time as they take a direct part in hostilities.19
Regarding this case, some of the activists
clearly armed themselves with improvised
weapons, such as: hammers, axes, petrol
bombs,20 However, there is insufficient
evidence showing that all of the protesters took
direct part in hostilities, in fact, some of them
were protesting peacefully.21 Besides, the
presence within the activists taking arms
against the police did not deprive those
peaceful protesters of their civilian character.22
Hence, some of the civilians still owned their
protected status under IHL.
Alternately, even if those civilians lost their
protected status, the attack against them was
indiscriminate and disproportionate.
A lawful attack must at least fulfill the
principle of distinction23 and proportionality24
set out under IHL.
In the matter of this case, the Sudlandian
police had no effort to properly comply with
the principle of distinction. For instance,
comparing to the improvised weapons used by
the protesters,25 the weapons employed by the
Sudlandian police, such as guns, an armoured
personnel carrier,26 were much heavier.
19
20
21
22
23

24
25
26

Geneva Conventions, Additional Protocol I, Art.51(3).


Facts, paras. 13,15
Facts, para.18
Geneva Conventions, Additional Protocol I, Art.50(3)
ICRC, Study on Customary International Humanitarian
Law, Rule 1.
Ibid.., Rule 14.
Facts, paras.13,15
Ibid.., para.14

Following the use of those weapons, in fact


here was no need to employ the method of
burning activists tents housing in order to
achieve the military necessity. As a result, their
recklessness in choosing means and methods of
warfare indeed caused a great number of
casualties for the activists,27 which was
excessive in nature.
In addition, the requirement to take all
precautions with a view to sparing civilians and
avoid or minimise the incidental loss of life,
injury and damage to civilians, both in
planning and in carrying out an attack, give rise
to the inference that the principle of
proportionality is respected.28
Concerning the operation, except for the
public announcement issued prior to the
attack,29 there was no warning given to the
protesters after that. Thus, the Sudlandian
police did not attempt to take all feasible
precautionary measures in order to minimise
the impact of the attack.
Therefore, the attack conducted by the
police was directed at the civilians.
c. The Sudlandian police intended
those civilians to be the object of the attack.
It can be concluded that an indiscriminate attack
gives rise to the inference of the perpetrators intent.
Moreover, the intention can also be inferred from

27
28

29

- 42 -

Ibid.., para.17.
AP I, Art. 57(2)(a)(ii); ICRC, Study on Customary
International Humanitarian Law, Rule 15, Rule 18, Rule
19; ICTY, Prosecutor v. Kordi and erkez, IT-95-14/2-A
(17 December 2004), para. 686.
Facts, para.13

Sinh vien va Khoa hoc phap ly so 12


the lack of precautions before and during the
attack.30
In this case, considering that the attack against
the
protesters
was
indiscriminate
and
disproportionate and the police failed to take all
feasible precautions. The police intended the
civilians to be the object of the attack.
d. The conduct happened in an IAC.

Submitted in II(3).

Sudland (PAS) and the Sudlandian police.34 As


a result, he actually owned effective control
over the organization.
Moreover, in fact, the Sudlandian police
took action after the issuance of Bemtos
announcement on bringing order by all
means.35 For this reason, it can be implied that
the polices actions were to exercise the
superiors order automatically.

e. The Sudlandian police was aware of


the factual circumstances that established the
armed conflict.

Submitted in II(4).
3.2. Bemto is individual responsible for
committing the crime through another person
under Article 25(3)(a).

Following the concept of perpetration under


Article 25(3)(a), the acts of Bemto satisfied the
elements of perpetrator by means, which
means the commission of a crime through
another person.31
a. Actus reus

In Katanga case, the objective elements


require: (i) the perpetrator had control over the
organization and organized a hierarchical
apparatus of power;32 and (ii) the execution of
the crime was secured by almost automatic
compliance with the orders.33
General Bemto chaired the powerful Crisis
Military Commission, as well as acted as
Commander-in-chief of the Peoples Army of

Thus, the objective elements were satisfied.


b. Mens rea
The subjective elements required the
commission with intent and knowledge,36
indicating that a person means to engage in the
conduct and is aware that the consequence will
occur in the ordinary course of events.37
Bemto was the one who issued an
announcement on an upcoming attack in the
event that the lawlessness still persisted.38 He
also declared to use all means to bring
order.39 Following that, the attack occurred
right after the evacuation warning for women
and children given by Bemto.40 Those facts
give rise to the inference that he accepted the
possibility of an attack happening and chose to
deploy it in a reckless way, which constitutes
the intent element.
As the Commander-in-chief of the
Sudlandian police,41 Bemto must have known

34
35

30

31
32
33

Knut Drmann, Elements of War Crimes under the Rome


Statute of the International Criminal Court: Sources and
Commentary, 2003, Cambridge University Press, p. 132.
Prosecutor v. Kangtana, para.488
Id. at 500-514.
Id. at 515-518.

36
37
38
39
40
41

- 43 -

Facts, para.3
Ibid.., para.13,14
Rome Statute, Art. 30(1).
Rome Statute, Art.30(2).
Facts, para.13
Ibid..,
Ibid..para.14
Facts, para.3

Sinh vien va Khoa hoc phap ly so 12


his subordinates would comply with his
announcement automatically.
Hence, Bemto fulfilled both objective and
subjective elements establishing this crime.
Consequently, Bemto bears responsibility
for ordering the commission of the war crime
under Article 8(2)(b)(i).
4. Bemto is criminally responsible as a
commander for the war crime of torture

There is sufficient evidence that detainees


were treated inhumanely regarded as torture,
which constitutes crime under Article 8(a)(ii)
of the Rome Statute, and Bric and Sudlandian
police knew this. Bemto bears command
responsibility under the Rome Statute Article
28(a).
4.1. There was existence of war crime of
torture in this situation:
a. There was sufficient evidence that
civilians were treated inhumanely regarded as
torture
Pursuant to Article 7(2)(e) of the Rome
Statute, torture means the intentional
infliction of severe pain or suffering, whether
physical or mental, upon a person in the
custody or under the control of the accused.
The Bergen Prisons conditions did not conform
to the overarching international human rights
standards.

Detention conditions falling below the


minimum standards, set out by Human rights
instruments, may constitute cruel, inhuman or

degrading treatment or punishment.42 Adequate


ventilation and lighting, including access to
daylight, are among the basic elements
required to ensure the health and well-being of
detainees.43 Additionally, every prisoner shall
have at least one hour of exercise every day in
the open air, and be allowed to associate with
each other,44 along with owing the right to
contact with the outside world.45
One of the victims recalled that some
prisoners had granted 20 minutes a day in a
caged outdoor area, but some had never seen
the open air,46 as well as, they were denied
communication with others.47
For this reason, the conditions in Bergen
Prison undoubtedly fell below the required
minimum standards.
Solitary
suffering.

confinement

caused

severe

Severe is used to describe the gravity of


pain or suffering inflicted.48
According to the researches, solitary
confinement where prisoners spend 22 to 24
hours alone may, itself, causes negative health
effects on both physiology and psychology.49
Additionally,
prolonged
incommunicado
42

43
44
45

46
47
48

49

- 44 -

Sharon Shalev, A sourcebook on solitary confinement,


vol. 4.2, para.3, lines 4-5
The UN Standard Minimum Rules, Rule 11(a), Rule 10.
European Prison Rules (2006 rev.), Rule 27.1, 27.1
The International Covenant on Civil and Political Rights,
Art.17.See also the American Convention on Human
Rights, Art.11
Facts, para.23, lines 10-11
Facts, para.22, lines 3
Knut Drmann, Elements of war crimes under the Rome
Statute of the International Criminal Court, p.63.
Sharon Shalev, A sourcebook on solitary confinement,
vol.2.3, p.15

Sinh vien va Khoa hoc phap ly so 12


detention may facilitate the perpetration of
torture,50 in the view of the fact that complete
sensory isolation coupled with total social
isolation can no doubt destroy the
personality.51
In the Bergen Prison, detainees were held in
unlawful conditions, without communication
and sufficient physical elements for such a long
period, approximately 15 days to a month.52
This can easily break their spirits and threaten
their mental well-being. Indeed, after leaving
Bergen, Professor Blanche had suffered from
insomnia, not able to sleep without sleeping
pills.53
Consequently, it is indisputable that
unlawful confinement in Bergen caused serious
suffering on detainees.
b. Solitary confinement was used as a
form of punishment as torture
Solitary confinement is not a form of torture
unless it causes great physical or mental
suffering of the victim in order to pursue one of
the prohibited purposes of torture.54
Initially, Sudlandian authorities did have
purpose of punishing as they stated: We will
demand the heaviest punishment both for those
[] take part in todays action and []

50

51

52
53
54

U.N. Commission on Human Rights resolution 2003/32,


Torture and other cruel, inhuman or degrading
treatment or punishment, April 23, 2003,
E/CN.4/2003/L.11/Add.4, para. 14.
ECiHR, Ensslin, Baader and Raspev.FRG, Decisions and
Reports, vol. 14, p. 109.
Facts, para.22, line 2
Facts, para.23, line 3
Krnojelac case (IT-97-25)- ICTY 25 June 2001, para.183

organized and controlled them.55 Thereafter,


seeing that detainees kept protesting in the
prison attracting public interest, Bric, after
consulting with Bemtos staff, made the
decision to implement the solitary confinement
treatment.56
For this reason, the said treatment served no
purpose but punishment these detainees.
c. These victims were protected under
IHL
In Tadc case, the ICTY stated that: A
person may be accorded protected status even
if he or she is of the same nationality as his or
her captors.57 The criteria to establish that
protected status are: (i) civilians do not enjoy
the diplomatic protection, and (ii) are not
subject to the allegiance and control of the
State in whose hands they may find
themselves. As to the allegiance, ethnicity may
become determinative of national allegiance.58
At the time being arrested, as Crimania still
belonged to Sudland, the victims nationalities
were the same as the captors. However,
Professor Blanche and her students did not owe
allegiance to Sudland government inasmuch as
their Norlandian ethnic, as well as, their
support of the incorporation of Crimania to
Nordland.59 Furthermore, the detainees
received no diplomatic protection at the time
they were arrested. Thus, regardless of
55
56
57

58
59

- 45 -

Facts, para.16
Facts, para.22
Prosecutor v. Dusko Tadic, IT-94-1-A, para. 166. See also
Geneva Convention IV, Art.4
Ibid..
Facts, para.12

Sinh vien va Khoa hoc phap ly so 12


possessing the same nationality, the detainees
still enjoyed protected status under Geneva
Conventions. .
d. Bric was aware of the factual
circumstances that established that protected
status.
Bric and the Sudlandian police knew that
Blanche and her students were of Nordlandian
ethnic, due to their activities against Sudland
government. Likewise, he also recognized that
they did not owe allegiance to the said
government, as well as not enjoy any
diplomatic protection.
Therefore, Bric was aware that the detainees
owned protected status.
e. The conduct took place in an IAC

Submitted in II.3
f. The Sudland police and Bric were
aware of the factual circumstances that established
the IAC

Submitted in II.4

carry out a military commanding function.61


The suspects official position, which owned
power to issue orders, is indicia for effective
control.62
Bemto was Commander-in-chief of the
Sudlandian police,63 making him have the most
effective control over this force. Moreover, the
fact that he appointed Bric to carry out the
operations in the Bergen Prison controlled by
Sudlandian police,64 proved the superiorsubordinate relationship between Bemto and
the warden. Thus, this requirement was
satisfied.
b. Bemto should have known the police
forces were committing punishment as torture.

This mens rea element recognizes that


superiors actual knowledge may be
established through circumstantial evidence.65
The should have known standard requires (i)
superior has been negligent in failing to acquire
knowledge of his subordinates crimes66 and
(ii) it incurs the superior more of an active duty
to inquire subordinates conduct,67 regardless

4.2. Bemto bears superior responsibility


under Article 28(a)
Bemto is responsible as a superior for the
crime of torture committed by the Sudlandian
police forces since following elements are
satisfied.60
a. Bemto had effective command over the
Sudlandian police.

A superior-subordinate relationship is based


on one person being formally appointed to

61
62
63
64
65

66

67

60

Rome Statute, Art.28(a); Prosecutor v. Bemba, ICC01/05-01/08 (15 June 2009), para. 407.

- 46 -

Prosecutor v. Bemba, para.408


Ibid..
Facts, para.3, lines 6-7
Facts, para.21, line 6
Prosecutor v. Halilovi, IT-01-48 (16 May 2005), para.
66.
Prosecutor v. Bemba,supra note 100 at 432; ICTY,
Prosecutor v. Blaki, IT-95-14-T (3 March 2000), para.
332.
ICTR, Prosecutor v. Kayishema and Ruzindana, ICTR-951-T (21 May 1999), para. 227; O. Triffterer, Commentary
on the Rome Statute of the International Criminal Court
(1999), NomosVerlag, p. 519.

Sinh vien va Khoa hoc phap ly so 12


of information availability at the time on the
commission of the crime.68
69

Given the letter from Bric, Bemto should


have known something severe might happen to
the detainees. Furthermore, the solitary
confinement decision was made after
consulting Bemtos staff.70 Thus, Bemto would
likely have known the crime committed had he
done more investigation.
c. Bemto failed to take all necessary and
reasonable measures to prevent the torture

A commander must take all necessary and


reasonable measures in his power to prevent or
repress the commission of the crimes.71

PRAYER FOR RELIEF


The Defendant respectfully requests the
Honourable Court to declare that there are
substantial grounds to believe that Bemto is not
responsible for the following crimes:
1. The war crime of intentionally directing
attacks against the civilian population as such or
against individual civilians not taking direct part in
hostilities, as the role of commander.
2. The war crime of torture or inhuman
treatment of persons protected under the provisions
of the relevant Geneva Convention, as the role of
commander,

Based on his knowledge duty, Bemto made


no genuine attempt to investigate, prevent or
repress crimes.
Consequently, Bemto is criminally
responsible as superior for crime of torture
under Article 8(a)(ii).

68

69
70
71

E. Van Sliedregt, The Criminal Responsibility of


Individuals for Violations of International Humanitarian
Law (2003), T.M.C. Asser Press, p. 186.
Facts, para.21, lines 7-8
Facts, para.22, lines 1-2
Prosecution v Ntaganda, ICC-01/04-02/06, 9 June 2014,
[164] (Ntaganda).

- 47 -

Respectfully submitted,
Prosecutor.

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. THOMAS BEMTO


MEMORIAL FOR THE PROSECUTOR
NG NGUYN TR THNH
NGUYN CHU TN
1. Preliminary matters
1.1. There was an international
conflict (IAC) between the Nordland and
Sudland.
An armed conflict is considered to be
international in character if it takes place
between two or more States; this extends to the
partial or total occupation of the territory of
another States, whether or not the said
occupation meets with armed resistance.1 In
this case, Nordland and Sudland are two
completely independent States.2 On 12th
January, 2012, Nordland Armed Forces (NAF)
invaded and took control of Cappa, Crimania
by President Andrews decision, which was
due to solve political crisis.3 By this way,
NAF established A Military Administration in
order to control Crimania.4 Therefore, PAS
conducted the Operation Shield to control the
Cappa city.
It can be concluded that clashes have
recently happened inside Crimania, becomes
an international armed conflict.
1.2. The required capacity of both
relevant entities is fulfilled.
1

2
3
4

Lubanga, Pre-Trial Chamber I, Decision on the


Confirmation of Charges, ICC-01/04-01/06 (29Jan2007)
para.209.
Moot Problem, para 1, line 3 and 4.
Moot Problem, para 6.
Moot Problem, para 7, line 1-3.

The existence of command structure and


internal rules, the ability to recruit new
combatants and to undertake organized
military operations, and issuance of political
statements are indicators of organization.5 In
this circumstance, both entities in this conflict
meet all the requirements.
1.3. The level of the conflict is
intensified.
According to Limaj case, length of the
conflict, existence of casualties and nature
of the weapons used demonstrate intensity.6
The clash between Occupy Cappa
organization and Sudlandian government
caused 65 activists killed, 180 injured; 7
Sudlandian policemen killed and 20 injured, 3
of them in serious condition.7 In addition, they
also used artillery and airstrike as the main
methods to solve the conflict.
2. Substantive matters
A. Mr. Thomas Bemto is criminally
responsible for committing, as an individual,
the war crime of intentionally directing
attacks against the civilian population as
such or against individual civilians not
5

6
7

- 48 -

Limaj et al., Trial Chamber, IT-03-66-T (30Nov2005)


paras.90, and 90-134; Boskoski &Tarculovski, Trial
Chamber II, IT-04-82-T (10Jul2008) paras.194-206.
Limaj et al., paras. 90 and 134-167.
Moot Problem,para 7 line 3.

Sinh vien va Khoa hoc phap ly so 12


taking direct part in hostilities under article
8(2)(b)(i).
2.1. The Peoples Armed of Sudland
(PAS) committed the war crime of attacking
civilians.
All five elements of crime under Article
8(2)(b)(i) are fulfilled.
a. The General Bemto directed an
attack.
Attacks are defined as acts of violence
against the adversary in offence or in
defence.8 In the Operation Shield, as the
leader of Crisis Military Commission, which
decided to resort artillery attacks and air strikes
in order to shock, disorient, disrupt the
Nordlandians, implied that he meant to aim at
not only NAF but also Nordlandians in general.
b. The objects were the civilian
population and individual civilians who not
take active part in the hostilities.
PAS, which was under control of General
Bemto, conducted an attack aim at
Nordandians.9
Under Articles 51 and 52 of the AP I, the
civilian population and the individual civilians
not taking direct part in hostilities must be all
protected. Besides, all discriminated attacks
which can affect negatively to these groups are
completely prohibited.10 In fact, the attack was
directed solely against any military target but
directed principally against the entire civilian

population living in Cappa city.11 Moreover,


the attacking with airstrike and artillery are
conducted nearly all over Cappa city, which
can be concluded that this is an
indiscriminating attack. Without considering
about the loss, damages of human lives and
civilians objects, this element can be still
fulfilled.12
In sum, PAS was accused of conducting the
attack at civilian population and individual
civilians not taking direct part in hostilities.
c. The intentional requirement
As regards the subjective elements, in
addition to the standard mens rea requirement
provided in Article 30 of the Statute, the
perpetrator must intend to make individual
civilians not taking direct part in the hostilities
or the civilian population the object of the
attack. This offence therefore, first and
foremost, encompasses dolus directus of the
first degree.13
Under Article 30 of Rome Statue, General
Bemto met the two basic requirements in order
to satisfy the mental element.14 First, he clearly
ordered and engaged the attack which was
planned against the all Nordlandians living in
Cappa city.15 Acknowledged that, he also
understood how the consequences would be
like when the attack was conducted.16
11
12

13

8
9
10

Additional Protocol I (API), Art.49.


Moot problem, para 9, line 3.
AP I article 51(4).

14
15
16

- 49 -

Moot problem, para, line 2-4.


ICC, Prosecutor v. Katanga, ICC-0104-0107 (30 September
2008), para 270.
ICC, Prosecutor v. Katanga, ICC-0104-0107 (30 September
2008), para 271.
Article 30 (2) Rome statue.
Moot problem, para. 10, line 3 and 4.
Moot problem, para 9, line 2 and 3.

Sinh vien va Khoa hoc phap ly so 12


Hence, the mental element is completely
fulfilled unless otherwise provided.17
d. The fourth and the fifth elements
are fulfilled.
The attacks were part of the military
campaign conducted by the NAF/PAS during,
and in the context of, an IAC between
Nordland and Sudland, and all parties were
aware of the circumstances.
2.2. Mr. Bemto who played as leader
role in the Operation Shield, is individually
responsible for directing an attack against
civilians.
Crimes against international law are
committed by men, not by abstract entities, and
only such crimes can the provisions of
international law be enforced, wrote the
Nuremberg Tribunal in 1946. This philosophy
is reflected in Article 25 of the Rome Statute.
In particular, Bemtos responsibility is
individual under Article 25(3)(a) of Rome
Statute. In fact, the Operation Sheld18 was
approved by President of Sudland Belisaris only target on regaining Cappa not attacking
the Nordlandians. Therefore, within two
fundamental elements which are subjective and
objective,19 the provided evidence is enough to
accuse individually Bemto for playing the
leader role in this campaign.
a. Objective elements for commission
of the crime through another person,
regardless of whether that other person is
criminally responsible

i. Control over the organization


In the country which is ruled by military
government, General Belisaris and General
Bemto are the most powerful persons. Unlike
General Belisaris who is the President of
Sudland, General Bemto not only chaired the
powerful Crisis Military Commission, but also
acted as Commander-in-chief of the Peoples
Army of Sudland and the Sudland police.20
Therefore, it is can be easily corrupted and
cause enormous negative impact on the
country.21 In this case, with the dominant
ability in his hand, Mr. Bemto ignored the
instruction approved by President Belisaris and
directed the Operation Shield in his own way.
In detail, as the president of Crisis Military
Commission and the commander of PAS, he
had all means in dominating the commissions
decision and his troops, which all aimed at
Nordlandians.22
In light of the foregoing, it can be concluded
that there are reasonable grounds to believe
that, as a result of his authority over his
military organization, Mr. Bemto had the
means to exercise control over the crimes
committed by PAS troops deployed in the
Cappa city.23
ii. Organized
apparatus of power

18
19

Article 30(1) Rome statue.


Moot Problem, para. 8, line 1 and 2.
ICC, Prosecutor v. Katanga, ICC-0104-0107 (30 September
2008) para. 494.

hierarchical

The security and defense ability of Sudland


consist of two basic forces which were the PAS
and the Sudland police. The strategies and the
20

17

and

21

22
23

- 50 -

Moot problem, para. 3, line 7.


ICC, Prosecutor v. Katanga, ICC-0104-0107 (30 September
2008), para. 501.
Moot problem, para.9 and. 10.
ICC-01/05-01/08-14-teng, para. 78.

Sinh vien va Khoa hoc phap ly so 12


tactics which direct how PAS fights in the war
are all made by Crisis Military Commission.
The details about strategies and tactics are
decided by the highest General in the military
force. By the assumption, General Bemto can
control all of these above. Indeed, Because of
the capacity in appointing who would be in
Crisis Military Commission,24 there would not
be any obstacles blocking him from taking
over this organization and its ability of making
decision. Moreover, he was fortunately also the
man control all the PAS.25 As a result, he did
not meet any recrimination from anybody.
Hence, General Bemto used his control
over the apparatus to execute crimes, which
meant that the leader, as the perpetrator behind
the perpetrator, mobilized his authority and
power within the organization to secure
compliance with his orders.
iii. Execution of the crimes was
secured by almost automatic compliance
with the orders
As a whole, General Bemto committed war
crime through a mechanization which could
not be compromised by any particular
subordinate's failure to comply with an order.26
In fact, in both Crisis Military Commission and
PAS, he had the highest rank and power which
could ensure that his subordinates completely
complied with his orders by using his replacing
ability.27 Moreover, organization develops a
life that is independent of the changing

composition of its members. It functions,


without depending on the individual identity of
the executant, as if it were automatic.28
b. Subjective elements
i. General Bemto was aware of the
attacks and the relevant consequences,
and he and other perpetrators were
mutually aware of and accepted the
circumstances and consequences resulting
from the ordinary course of attacks.29
The element of knowledge and intent30
refers to the notion that Bemto and the other
perpetrators: (i) knew that their actions would
bring be criminal; and (ii) intended to commit
crimes.31
In fact, Bemto was aware of the result from
the operation and its commission. Besides,
others who were under Bemtos control also
knew the plan and decided to wipe out all
Nordlandians by indiscriminate attacks in lieu
of trying to regain the Cappa city.32
ii. General Bemto was aware of the
circumstances enabling him to jointly
control the crime.
Being conscious about the influence of his
decision due to the essential nature of his role,
Bemto directed all his troops to directly attack
all over the Cappa city with the
indiscriminating artillery and airstrike
attacks.33
28

29
24
25
26

27

Moot problem, para. 3, line 5.


Moot problem, para. 3, line 5.
ICC, Prosecutor v. Katanga, ICC-0104-0107 (30 September
2008) para 516.
ICC, Prosecutor v. Katanga, ICC-0104-0107 (30 September
2008) para 516.

30

31
32
33

- 51 -

ROXIN, C., Taterschaft und Tatherrschaft, 8th ed.,Berlin, De


Gruyter, 2006, p. 245.
Ibid, paras.350 and 361; Stakic, Trial Chamber II, IT-97-24-T
(31Jul2003) para.496.
Rome Statute of the International Criminal Court (ICCST),
Art. 30.
Lubunga, para.351.
Moot problem,para. 9, line 3.
Moot problem,para 10, line 1.

Sinh vien va Khoa hoc phap ly so 12


B. General Bemto is criminally
responsible for the war crime of torture or
inhuman treatment of persons protected
under the provisions of the relevant Geneva
Convention.
2.3. General Bemto committed to
psychological torture with Professor Blanche
and her students.
a. General Bemto inflicted severe
mental pain and suffering to Professor Blanche
and her ten students during solitary
confinement.
The concept of torture is any act which
causes severe pain and suffering in order to
obtain information or a confession from the
victims or a third person. Alternatively, it can
be used as punishing persons who has
committed or is suspected of having
committed. In addition, interrogators apply
this action to intimidating or coercing
detainees or satisfy any discriminating
purpose.34
Such actions mentioned above damage the
victims both mentally and physically.35 In this
case, the detainees absolutely suffered from
mental problems. Professor Blanche, in
particular, could not sleep without taking
sleeping pills,36 which was resulted from
detention conditions. The conditions of Bergen
Prisons solitary cell in which she was kept, did
not meet the basic requirements under United
Nations Standard Minimum Rules (UN

SMR).37 In fact, their cells are only about 2


meters,38 compared with the lowest living
space.39 Along with lack of content of air,
lighting condition was also one of the main
factors which caused him suffering exceeding
the unavoidable level inherent in detention.40
Pursuant to SMR Rule 11b, cells must be
provided enough lighting facilities. In this
circumstance, only one 40-watt source of
artificial light is at the top of the solitary cells41
which is insufficient for reading. Additionally,
the cells lights are left continuously all days.42
Finally, the floor, described as chalk,43 does
not ensure detainees health because of poor
sanitary conditions.
In conclusion, the importance of good
prison design and adequate physical provisions
is perhaps best illustrated by examples of
segregation units which fail to meet
international standards.44
As pointed out above, scientists have proved
that such poor conditions made the detainees
talk to themselves and caused nervousness,
hallucination and delusion, confusion,
irrational anger, headaches, especially trouble
sleeping.45 Here, Professor Blanche is a
specific example of trouble sleeping as she
said that she could not sleep without sleeping
37
38
39

40

41
42
34

35

36

Article 1 United Nations Convention Against Torture of


1984.
Article 1 United Nations Convention Against Torture of
1984.
Moot Problem, para 23 line 3.

43
44

45

- 52 -

Rule 10 of UN SMR.
Moot problem, para 23 line 6 and 7.
William Schabas, An Introduction to the International
Criminal Court, Cambridge University Press, 2011, p. 41.
Article3 of the ECHR (Iorgov v. Bulgaria, Judgement of
11/3/2004).
Moot problem, para 23, line 7.
Moot problem, para 23, line 7.
Moot problem, para 23, line 8.
William Schabas, An Introduction to the International
Criminal Court, Cambridge University Press, 2011. page 43.
William Schabas, An Introduction to the International
Criminal Court, Cambridge University Press, 2011. Page 11

Sinh vien va Khoa hoc phap ly so 12


pills. Generally, it is the design and physical
solitary conditions in Bergen prison that are the
primary cause for Ms. Blanches sleeping
problem. The act of keeping detainees in
solitary confinement is type of non-physical
method which does not cause physical feelings,
maims or even touches the body, but touches
the mind instead.46 This non-physical method
is one of two different aspects of
psychological torture.
b. Such persons were protected under
one or more of the Geneva Convention of 1949
Prisoners of war (POWs) and civilians are
protected respectively under GCs III and IV.47
The detainees who went on hunger strike
included of mainly members of the Occupy
Cappa organization.48
POWs of this organization were members
of the armed forces of a Party to the conflict49
and members of organized resistance
movements.50 Furthermore, GC IV is still
applicable in circumstances when victims
possess the same nationality with the
perpetrators. The civilians suspected are
qualified as persons protected either as
Sudlandian or Nordlandian nationals.
c. General Bemtos subjective
purpose is to put Ms. Blanche and some of her
students in solitary confinement.

46

47
48
49
50

Hernn Reyes, The Worst Scars are in the Mind:


Psychological Torture, International Review of the Red
Cross, Vol. 89, No. 867, September 2007, p. 594.
GC III, Art.5.
Moot Problem, para 19 line 1 - 3
GCIII, Art.4(A)(1).
Ibid, Art.4(A)(2).

General Bemto responded to the


requirement of freedom of speech and the act
of hunger strike by his acquiescence on putting
Ms. Blanche in solitary confinement. When she
was arrested, she advocated freedom of speech.
After that, she commenced a hunger strike. Her
action spread out immediately and attracted
other detainees to join the hunger strike. As a
result, it created great impact on public, which
put pressure on Mr. Bemto to solve the
problem. Moreover, they had lost control of
Bergen prison ever since Ms. Blanches
appearance. To solve this problem, Mr. Bric
consulted with General Bemos staffs to decide
to put Ms. Blanche in solitary confinement. By
the way, they put the limitation on all of her
communication rights but some medical
professionals in case if emergency. Overall, in
order to diminish her influence on social
attention, General Bemto had indirectly
ordered Mr. Bric to put Ms. Blanche and some
of students in solitary confinement, along with
denying their communication with others.
d. General Bemto acquiesced to place
Ms. Blanche and some of her students in
solitary confinement.
General Bemto acted as Commander-inchief of the Peoples Army of Sudland (PAS)
and the Sudlandian police.51 Mr. Bemto
therefore had duty of preventing, repressing
and taking action against those under his
control who committed torture Mr. Bric.
Nonetheless, General Bemto did not relieve his
superior of criminal responsibility if he knew
or had reason to know that the subordinate was
51

- 53 -

Moot problem, para. 3, line 6 and 7.

Sinh vien va Khoa hoc phap ly so 12


about to commit such acts or had done so and
the superior failed to take the necessary and
reasonable measures to prevent such acts or to
punish the perpetrators thereof.

over the subordinates who committed the


crimes set out to 8 of the Statute;

2.4. The liability of General Bemto was


the commander responsibility.

Without the subordinate relationship, the


ability of the effective control is hardly to
exercise.55 In fact, Ervine Bric was appointed
as a warden to supervise all the operations in
the Bergen Prison by General Bemtos order.56
Moreover, the commander - subordinate
relationship is generally in form of a de jure or
de facto hierarchal relationship.57 Hence, along
with the strong existence of subordinate
relationship between Mr. Bemto and Bric, Bric
was totally under Bemtos control in order to
commit the crime of torture.

The action and role of Mr. Bemto meet all


five requirements52 under Article 28(a) of the
Statute.

c. The crimes committed by the


subordinates resulted from the Bemto's failure
to exercise control properly over them;

a. Mr. Bemto was a military


commander or a person effectively acting as
such;

The superiors duties are further more than


just in the Article 28(a). Therefore, within the
effective control in their hands, but instead of
taking absolutely and immediately these tasks
considered as proper ones in order to repress,
prevent, submit the matter to the competent
authorities for investigation and prosecution,58
they failed to do so or even, in this case, Mr.
Bemto did not do anything. In fact, besides that
he should have known the illegal action of his
subordinates, he had duty to correct their action
before or during the commission happened.

e. The fourth and sixth element are


fulfilled
General Bemto knew that Professor Blanche
and ten of her students were all under
protection of the Conventions. He was also
aware of the existence of an armed conflict,
since attacks in Cappa city and nearby villages
have been immediately intensified.

Thanks to the military government, General


Bemto played not only the core role in de facto
government but also the leader role in Peoples
Armies of Sudland (PAS).53 In this case, this
element can be still fulfilled because of the
Article 28(a) and its interpretation show that
person effectively acting as a military
commander perform it de facto by exercising
effective control over a group of persons
through a chain of command.54
b. Mr. Bemto had effective command
and control, or effective authority and control

55
52
53
54

ICC, Prosecutor vs Bemba, para 407.


Moot Problem, para 3, line 4-9.
ICC, Prosecutor vs Bemba, para 409.

56
57
58

- 54 -

ICC, Prosecutor vs Bemba, para 414.


Moot problem, para 21, line 6.
ICC, Prosecutor vs Bemba, para 414.
ICC, Prosecutor vs Bemba, para 424.

Sinh vien va Khoa hoc phap ly so 12


Correspondently, their commission of crime
resulted from his failure of taking proper acts.59
d. Mr. Bemto either knew or, owing to
the circumstances at the time, should have
known that the subordinates were committing
or about to commit the crimes set out in 8 of
the Statute

In fact, instead of taking action or even the


incorrect ones,62 General Bemto did not do
anything in order to be presumed on trying to
do something but it went wrong.
PRAYER FOR RELIEF

Despite of the decision of putting Ms.


Blanche and ten of her student to solitary
confinement which was made by Bric after
consulting with Bemto staff,60 Mr. Bemto
must to inquire him all needed information.61

The Prosecution respectively requests this


Honourable Court to adjudge and declare that
General Bemto is criminally responsible under
the Rome Statute for war crimes under Article
8(2)(b)(i) and Article 8(2)(a)(ii).

e. Mr. Bemto failed to take the necessary


and reasonable measures within his or her
power to prevent or repress the commission of
such crime or failed to submit the matter to the
competent authorities for investigation and
prosecution.

Respectfully submitted,

59
60
61

ICC, Prosecutor vs Bemba, para 424.


Moot problem, para 22, line 1, 2.
ICTR, Prosecutor v. Kayishema and Ruzindana, Case No.
ICTR-95-1-T, "Judgment and Sentence",21 May 1999, para.
227 (noting that article 28 (a)of the Statute "imposes a
more active duty upon thesuperior to inform himself of the
activities of his subordinates"); Fenrick, W., "Article 28",
in:O.Triffterer (ed.), Commentary on the Rome Statute of
the International Criminal Court, (NomosVerlag,1999), p.
519.

The Prosecution.

62

- 55 -

Moot problem, para.20,21 and 22.

THE 2ND INTERNATIONAL HUMANITARIAN LAW


MOOT COURT COMPETITION
VIETNAM NATIONAL ROUND
INTERNATIONAL COMMITTEE OF THE RED CROSS
HO CHI MINH CITY, 29th 31st OCTOBER 2014

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. TONY GUSMAN


before the International Criminal Court at the Hague
International Committee of the Red Cross (ICRC)
(This Moot Problem is reprinted under permission of the ICRC)

INSTRUCTIONS
1. The hearing takes place pursuant to
Article 61 of the ICC Statute (confirmation
of charges). At this stage, the Prosecutor has
to support each charge with sufficient
evidence to establish substantial grounds to
believe that the person committed the crime
charged.
2. The case is entirely fictional. Teams
should confine themselves to the facts
supplied. Neither the Prosecution nor the
Defence may introduce new facts. The Moot
Problem includes all the facts supported by
the evidence that has been presented before
the Court. Teams may nonetheless draw
reasonable inferences from the evidence
produced. They may also question the
credibility or weight of the evidence.
3. Teams should not hand anything to
judges unless asked to by a judge.
4. The problem is not intended to raise
questions of procedure before the ICC.
Procedural questions should be ignored.
5. The problem is not intended to raise
questions relating to the jurisdiction of the
ICC. The jurisdiction of the ICC should be
assumed. Counsel may in this instance
address issues regarding the admissibility of
the case under article 17 of the Statute of the
ICC (Statute) if relevant.

6. Applicable law: In accordance with


Article 21 of the ICC Statute, the Court shall
apply
a) In the first place, this Statute,
Elements of Crimes and its Rules of
Procedure and Evidence;
b) In the second place, where
appropriate, applicable treaties and the
principles and rules of international law,
including the established principles of the
international law of armed conflict;
c) Failing that, general principles of law
derived by the Court from national laws of
legal systems of the world including, as
appropriate, the national laws of States that
would normally exercise jurisdiction over the
crime, provided that those principles are not
inconsistent with this Statute and with
international
law
and
internationally
recognized norms and standards.
The Court may apply principles and the
rules of law as interpreted in its previous
decisions.
THE CASE
Background
1. The Republic of Astro, the Kingdom of
Casa and the Republic of Bereto are
bordering the Middle Sea. Casa is located to
the northwest of Astro and faces the east

- 59 -

Sinh vien va Khoa hoc phap ly so 12


coastline of the Republic of Bereto. Bereto is
a highly industrialised country. President
Blake of Bereto was elected in 2009.
2. Between 2003 and 2010, Astro was
ruled by a military government led by
General George Ayana and Admiral Tony
Gusman, with General Ayana acting as the
countrys President. During this period,
Admiral Gusman chaired the powerful Crisis
Military Commission, which acted as the de
facto government of the country. Admiral
Gusman also acted as Commander-in-chief
of the Armed Forces.
3. The Yukule Archipelago (the
Archipelago) lies at about 750 kilometres
east of Bereto, 300 kilometres south of Casa
and 100 kilometres from Astros west coast.
Yukule Island is the largest island of the
Archipelago, and the only one which is
inhabited. Until 2008, the Archipelago was
under Bereton control, although it enjoyed
complete autonomy in managing its internal
affairs. The Bereton central government was
in charge of its defence and foreign affairs.
4. According to a 2008 survey, Yukule
has a population of 1.5 million. The
Archipelago is home to large bird
populations. Massive groups of coral reef
close to the Yukulean shore attract thousands
of tourists every year. The Archipelago is
also known for its large oil reserves on the
land and in the surrounding waters. Oil and
tourism are the main sources of revenue for
Yukule. Fish and other sea products form a
significant part of Yukulers diet. Foodstuff
is otherwise 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. The arguments advanced by
successive Astron governments were based
on the proximity of the Archipelago to
Astros coast and the unlawful annexation of
the Archipelago after the Second World War.
6. In January 2008, Astro was struck by a
political crisis which led to large-scale civil
unrests against the Ayana government. In
order to divert the populations resentment
towards the government, Admiral Gusman
suggested to the Crisis Military Commission
to take control of the Yukule Archipelago.
On 4th February 2008, the Astron Armed
Forces invaded Yukule and quickly gained
control of Port Solferino, the capital city of
Yukule.
7. On 10th February 2008, the Astron
forces obtained surrender from the then
Governor of the Archipelago. A Military
Administration was established to govern the
Archipelago directly under the supervision of
the Crisis Military Commission. However,
there was continued local resistance to
Astros rule. Inhabitants and the remaining
members of the Bereton armed and police
forces on the island formed a resistance
militia, led by Colonel Spartan from the
Bereton army. The militia mostly used
guerilla tactics, including laying improvised
explosive devices along the main roads of the
island. Meanwhile, President Black of Bereto
promoted Spartan to Major General, and
instructed him to drive the invaders out of

- 60 -

Sinh vien va Khoa hoc phap ly so 12


Yukule. 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 checkpoints in key areas of the island. Restraints
were also imposed on the flow of goods in
and out of Yukule. Anti-Astro attacks were,
however, still on rise. In one incident, an
ambulance carrying wounded Astron soldiers
was hit by roadside bombs. All 5 wounded
soldiers, one nurse and one doctor were
killed in the explosion. On several occasions,
fishing boats were caught transporting
weapons and explosive devices to Yukule.
Astron vessels also suffered from surprise
attacks launched from Yukulean fishing
boats.
Control measures
9. With the view to impede the supply of
weapons to the local militia and pressure the
population to disengage from the unrest,
Admiral
Gusmans
Administration
announced on 1st September 2008 that all
foreign ships entering a Maritime Control
Zone defined as the area within 24 nautical
miles from the Yukule Island coastline had to
request prior authorization from the Military
Administration. Astron naval and air forces
started to patrol the area to enforce the
measure.
10. The Military Administration also
limited the activities of local fishermen to 6
nautical miles offshore. Astron vessels
routinely patrolled the Yukulean coastline to
deter fishermen from going beyond the
prescribed limit. In one incident, a boat was

fired at 5 nautical miles from shore, resulting


in the death of a fisherman. The Yukulean
newspaper Peppermint Express reported the
incident and accused the Astron patrol of
reckless use of force against innocent
civilians.
11. Control over the importation of goods
was also tightened. Admiral Gusman
announced that only goods exclusively used
for civilian purposes would be allowed into
Yukule. At Port Solferino, ships bringing
goods to Yukule had their shipload approved
or rejected on a case-by-case basis, with no
reasons given. Items allowed in were always
changing and the Military Administration
refused to publish any list of controlled
goods. Importation of raw materials and
manufactured goods was reduced, and prices
soared.
12. Among other things, the importation
of construction materials such as cement and
steel was curtailed and strictly scrutinized for
the Administrations alleged fear of possible
use by the armed militia. Metal objects, such
as tin cans were banned because melted
metal might be used to make weapons,
according to the Administration officials. As
a result, local farmers ran short of containers
to preserve their food. A range of chemicals
including certain fertilizers and pesticide,
which may be used in the production of
explosives, were also banned.
13. After being unloaded from ships, the
goods were brought by road to different areas
of the island. Because of exchanges of fires
between armed forces and the frequent use of
road bombs, the main roads were severely

- 61 -

Sinh vien va Khoa hoc phap ly so 12


damaged. Repair work was slow due to
scarcity of materials. In some instances,
wheelbarrows and carts had to be used to
deliver goods and materials. Transport of
food and basic necessities was long-delayed
in some areas. Inspection at check-points
slowed down further the distribution of food
and medicine. Captain Ardent, a local
commander in Yukule, claimed that we
monitor supplies closely to prevent them
from being diverted to terrorists, who must
be pressed to surrender.
14. Casa Radio International, a radio
station based in Casa, published a report
leaked from the Astron Ministry of Health.
The report contained data presenting the
minimum intake of calories necessary to
keep Yukule local population alive.
According to Casa Radio International, the
Military Administration used the data to
estimate the quantity of food products
allowed in and distributed to the different
areas of Yukule. The Administrations
officials later stated that such calculation was
intended to better implement import controls.
Yukule Watch, an Astro-based human-rights
group, said that in fact the food distributed to
the local population was short of meeting the
estimated needs.
15. The Yukulean fishermen needed to
sail at least 12 to 15 nautical miles from
shore to catch larger shoals. By September
2009, the total catch had been halved since
the implementation of the control measures
on fishing in 2008, and was still decreasing.
Local food production had been reduced by a
third of its past level because of the
restriction on the import of fertilizers and

pesticides. The local newspaper Peppermint


Express warned that with the stark reality in
local agriculture and fishing sectors, the
population would almost entirely depend on
food import to survive the autumn and winter
of 2009.
16. On 15th November 2009, the Astron
Military Administration in Solferino was
attacked by militia members. Dozens of
Astron soldiers and the deputy of the
Administration were killed. A number of
wounded militia members were seen seeking
shelter in the offices of several humanitarian
organizations. The next day, Admiral
Gusman announced suspension of all imports
for security reasons, including import of
humanitarian aids. The import of food and
other essential supplies started to resume
slowly on 15th January 2010.
17. In February 2010, the International
Committee of the Red Cross (ICRC) noted
that hospitals lacked medical stores and were
not able to maintain their equipment or make
necessary repairs. Islanders posted numerous
complaints about their poor living conditions,
the lack of medical services and medicines
on various social media sites. In some cases,
especially in remote areas, a small ailment
could develop into serious illness for lack of
treatment.
18. A United Nations Development
Programme (UNDP) report dated to 5th
March 2010 stated that damage to sewerage
networks and pumping stations was left
unrepaired. Thousands of Yukulers were
affected according to the UNDP report. The

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Sinh vien va Khoa hoc phap ly so 12


report indicated that the water supply was
largely unfit for consumption in Yukule.
19. On 6th March, the Peppermint
Express, citing reports of the ICRC and
UNDP, accused Astro of deliberately
starving Yukules population and appealed
for an immediate international intervention.
The appeal was soon reprinted by the
international media. The next day, the
website of Peppermint Express was shut
down, its chief editor taken away by Astron
military for suspicion of colluding with
Bereto. Admiral Gusman eventually ordered
to release the chief editor and restored the
website two days later.
Operation Blue
20. On 15th April 2010, ten NGOs (eight
from Bereto and two from Astro) decided to
form a coalition under the name of Free
Yukule Movement (the Movement). The
Movement was led by the Bereton NGO
Sacred Fighters, whose chairman was Mr.
Jonas Borman. Sacred Fighters was listed
by several countries as a terrorist group.
Other members of the Movement included
the Astron NGO Yukule Watch.

Movement. Thirty employees of a Bereton


private security company, Sphinx, were hired
to provide escort to the convoy. All were
former Bereton soldiers. Jonas Borman
explained it was out of security
considerations that Sphinx was hired.
23. On 1st July 2010, Nirvana left a
Bereton port for Yukule. In addition to the 30
armed Sphinx guards, on board were also
200 passengers, among them members of the
Movement and a number of human rights
activists and anti-Astro protestors recruited
through the internet. Most passengers were
Bereton citizens, but some were from Astro,
Casa and ten other countries. Nirvana had
2,000 tons of cargo on board, mostly food,
medicine and basic necessities. During the
voyage, Jonas Borman, together with the
Sphinx guards, regularly briefed the
passengers on measures to be taken in case
of emergency. Jonas Borman told all the
passengers that the mission would proceed to
Yukule regardless of any obstacles.

21. On 30th May 2010, the Free Yukule


Movement announced on its website and
various social media that it had chartered a
Casa registered merchant vessel, Nirvana, to
deliver humanitarian packages to Yukule.
The stated aim was to send a message of
alarm to the international community by
breaking
the
blocking
line
and
confronting the occupying invaders.

24. Meanwhile, Admiral Gusman received


intelligence that the Nirvana was also
carrying a stock of weapons, notably rifles,
ammunition and grenades. He soon
established a commando of 60 marines to
deal with the potential threat. The operation
was named Blue. Gusman appointed
Commander Hanson to lead operation.
During a pre-deployment briefing, Hanson
instructed the marines that the inviolability of
the Maritime Control Zone should under no
circumstances be compromised.

22. The Bereton government expressed


support for the just cause of the

25. In the late evening of 20th July 2010,


when Nirvana was 40 nautical miles from

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Sinh vien va Khoa hoc phap ly so 12


Port Solferino, its master was informed by
radio that he was approaching a controlled
maritime zone and that the ship would not be
authorized to proceed to Port Solferino
unless its cargo was inspected and its
passengers controlled before entering the
zone.

and 15 Sphinx guards were killed, 60 injured,


including guards and passengers. Among the
Astron marines, 10 were killed and 15
injured, 5 of them in serious condition. The
Nirvana was escorted to Port Solferino, and
all Nirvana crew, guards and passengers were
put into Solferinos central prison.

26. Despite of repeated warnings, Nirvana


proceeded towards Port Solferino. Mr.
Borman announced that he would not stop
the ship and protested the Astron occupation
of Yukule. When Nirvana was 24 nautical
miles away from Port Solferino, Commander
Hanson sent a final warning via radio that all
available measures would be taken to prevent
unlawful entry into the Maritime Control
Zone. He then ordered to board and seize the
Nirvana.

29. Some of Nirvanas passengers were


soon released, others held for further
investigation. The Peppermint Express
subsequently published a series of interviews
with some of those who had been released.
One of them, Nobel Peace Prize laureate
Denise Baris, said that the Astron soldiers
were shooting indiscriminately at innocent
civilians on Nirvana. She claimed she was
holding a banner and peacefully protesting
with some other passengers, when bullets
came at their direction and one of the
protestors was shot dead right in front of her.
A priest from Casa said bullets were flying
around and at some point he could no longer
tell whether they were from the Astrons or
the protestors. Sphinx later claimed that all
their guards on board were only carrying
light defensive arms.

27. The commando encountered strong


resistance from the Sphinx guards and
passengers when boarding. Three marines
were thrown over the deck head down, some
were seized and stabbed. Activists also used
improvised weapons such as axes, iron bars,
fire extinguishers, etc. The Sphinx guards
fired a few shots to stop the commando from
advancing. Stun grenades taken from the
seized marines were thrown at the
commando and some gunshots were also
fired by activists. Commander Hanson
ordered to open fire.
28. After one hour of intense exchange of
fire, the Sphinx guards surrendered after
running out of ammunition. In the early
morning of 21st July 2010, the marines took
control over the ship. The wounded were
given medical care. In the melee, 30 activists

30. Operation Blue drew international


condemnation. Demonstrations were held in
major cities in Bereto to pressure the
government to take real actions against
Astro. In a press conference, the Bereton
President denounced Operation Blue as
serious
violation
of
international
humanitarian law.
31. Faced with increasing international
pressure, in August 2010, Astro conducted an
inquiry on Operation Blue. Commander

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Sinh vien va Khoa hoc phap ly so 12


Hanson attended the inquiry and pleaded
self-defence in ordering to open fire. He
claimed that most of the people on board
were armed and violent. Some of the marines
testified that some passengers were wearing
military-like fatigues and clearly carrying
heavy firearms. They claimed to believe the
armed men were Bereton soldiers because
they were well-trained in combat activities.
According to the members of the commando,
many activists and Sphinx guards tossed
weapons into the water before surrender.
32. One month after Operation Blue,
Astro issued a statement noting a decline of
militia attacks in Yukule and promised to
loosen the import controls. In September
2010, a report released by the Astron
Ministry of Defence concluded that
Operation Blue was conducted lawfully on
grounds of national security and self-defence.
Commander Hanson was cleared of any
responsibility.
33. The conclusions of the Astron report
were met with skepticism. Bereto, Casa and
various other countries called the inquiry a
sham and urged the United Nations to
conduct an independent investigation. In
October 2010, the UN Secretary-General
appointed a penal of legal experts to
investigate the conduct of Operation Blue.
34. In March 2011, the Expert Panel
produced a preliminary report which
concluded that the Astron commando had
used excessive force. The Panel found that
all casualties suffered by the activists were
caused by gunshots, some of them at pointblank range or from behind. According to the

report, renowned journalist Phil Dumphy was


video recording the events when shot in the
head. An engineer was shot at when trying to
cut off the light system of the vessel. Several
others were injured by gunfire when waving
knives at the soldiers. Some of the Sphinx
guards were killed or wounded when
reaching out to the lifeboats of Nirvana. The
report found no conclusive evidence of a
cache of weapons on board Nirvana.
Oil spills and oil fires
35.
Following
the
post-Nirvana
demonstrations and the weakening of Astros
government, the Bereton government decided
that time had come to recapture Yukule. On
25th August 2010, a Bereton naval task force
set sail for Yukule. On 17th September,
Bereto launched an intensive air campaign
against the Astron land and naval forces in
Yukule, while the Bereton navy engaged
Astron navy on the high seas.
36. On 20th September 2010, the
commander of the Astron fleet, Rear Admiral
Freedman, reported to Admiral Gusman that
he was unable to stop the advancement of the
Bereton Navy. Admiral Gusman told
Freedman to resort to all resources available
to stall the enemy. In the ensuing days,
several pro-government magazines stated
that the Bereton government should reconsider any attempt to disrupt Astros
sovereignty over Yukule, which would only
lead to unforeseen consequences.
37. On 24th September 2010, Captain
Ardent, after consulting Rear Admiral
Freedman, ordered to open the valves of
three oil terminals on the western side of the

- 65 -

Sinh vien va Khoa hoc phap ly so 12


island, while Astros ships moved eastward
towards the Astron coast. Three oil tankers
also started to discharge oil into the same sea
area.
38. The Bereton naval forces were slowed
down by the oil slicks offshore western
Yukule, but on 15th October, the Bereton
forces managed to land on the south beaches
of Yukule. The positions in the southern part
of Yukule were poorly defended, so the
Bereton forces rapidly started to make their
way inland towards Port Solferino.
39. On 16th October 2010, Admiral
Gusman told the Astron paper Hashtag Daily
that the Bereton attacks would only lead to
the destruction of Yukule. Admiral Gusman
told Captain Ardent to take all measures
possible to stop the advancement of the
Bereton forces. On the same day, large oil
storage tanks on a site by the sea near Port
Solferino burst into huge fires (approx. 60
million litres of oil were stored on the site).
Astron soldiers in Yukule retreated to the
mainland.
40. Port Solferino and the surrounding
areas were awash in smoke, soot and ash. A
large amount of the oil found its way to Port
Solferino waterways and into the sea. As the
site was surrounded by landmine fields,
access was difficult and dangerous for
firefighters and civil defence personnel. It
took 10 days to get the fires under control, by
then, several million litres of oil had already
been released into the sea.
41. In January 2011, United Nations
Environment Programme (UNEP) pointed
out that the oil spills could have a major

effect on the massive reef habitation offshore


Yukule. According to UNEP, certain
habitations of coral reefs were extremely
susceptible to hydro carbon pollution.
Thousands of birds in the region were found
dead. Marine turtles, which use the Yukule
Archipelago as nesting sites, were also in
endangered.
42. Meanwhile, Dr. Sulivan from the
Casan Meteorology and Environmental
Protection Administration assured the public
that the damage to the marine environment in
the region was not devastating, but added
that it might take a few years for the
environment to return to its former state. In
June 2011, prominent public health experts
attending an international conference
projected that the air and maritime pollution
in the aftermath of the war would kill
approximately 800 Yukulers in the years to
come.
43. In November 2013, a study on coral
reefs offshore Yukule was concluded by a
joint team consisted of members from
national science institutes of Astro, Bereto
and Casa. Two-way analysis of variance
between those oiled and non-oiled reefs off
Yukulean coastline showed no significant
differences for either species or families.
Referral to the ICC
44. At the end of 2010, the Ayana
government was discredited by the failure in
Yukule and eventually had to step down.
Following the election of a new government,
Admiral Gusman was placed under house
arrest for suspected crimes committed against
the Astron people. In May 2011, Astro and

- 66 -

Sinh vien va Khoa hoc phap ly so 12


Bereto agreed to jointly refer the situation
between 1 January 2008 and 31 December
2010 to of Yukule to the International
Criminal Court. However, the status of the
Archipelago has not yet been definitively
agreed upon.
45. The Pre-trial Chamber now holds a
hearing to confirm the following charges on
which the Prosecutor intends to seek trial.
The hearing is held in the presence of the
Prosecutor and Tony Gusman, as well as his
counsel.
Charge One

Charge three
Article 8(2)(b)(iv) and Article 25 (3)(b) of
the Rome Statute
Regarding oil spills and oil fires from
September 2010 onwards, Tony Gusman is
criminally responsible for ordering the war
crime of intentionally launching an attack in
the knowledge that such attack will cause
widespread, long-term and severe damage to
the natural environment which would be
clearly excessive in relation to the concrete
and direct overall military advantage
anticipated.
NOTE

Article 8(2)(b)(xxv) and Article 25(3)(a)


of the Rome Statute
Regarding the import and fishing control
imposed on Yukule, Tony Gusman is
criminally responsible for committing, as an
individual or jointly with another or through
another person, the war crime of intentionally
using starvation of civilians as a method of
warfare by depriving them of objects
indispensable to their survival, including
wilfully impeding relief supplies as provided
for under the Geneva Conventions;
Charge Two
Article 8(2)(b)(i) and Article 28(a) of the
Rome Statute
Regarding Operation Blue on Nirvana
from 20th to 21st July 2010, Tony Gusman,
as a military commander, is criminally
responsible for the war crime of intentionally
directing attacks against the civilian
population as such or against individual
civilians not taking direct part in hostilities;

Participation to treaties
At all material times, the following
treaties were in force for Astro, Bereto and
Casa:

United Nations Charter


1949 Geneva Conventions and their
1977 Additional Protocols I & II

1969 Vienna Convention on the Law of


Treaties

1976 UN Convention on the Prohibition


of Military or Any Other Use
Environmental Modification Techniques

of

1982 UN Convention on the Law of the


Sea

1998 Statute of the International


Criminal Court

- 67 -

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. TONY GUSMAN


MEMORIAL FOR THE DEFENDANT
L NGC BO TRANG
TRN BCH NGC
1. Type of armed conflict and applicable
law
1.1. There was an international armed
conflict between Astro and Bereto
An International armed conflict existed
between Astro and Bereto from 4 February
2008 to 31 December 2010.
1.2. Applicable law
International
Humanitarian
Law
is
applicable in international armed conflicts,1
excluding Common Article 3 of the Geneva
Conventions (GC) and Additional Protocol
II. Besides, United Nations Convention on the
Prohibition of Military or Any Other Use of
Environmental
Modification
Techniques
(ENMOD) and United Nations Convention
on the Law of the Sea (UNCLOS) are also
applied.
2. Substantive crimes
2.1. Gusman is not guilty for the crime
of intentionally using starvation of civilians as
a method of warfare under Article
8(2)(b)(xxv)

Pursuant to Article 8(2)(b)(xxv) of Elements


of Crimes,2 the war crime of using starvation as
a method of warfare requires four elements
amongst which the AMA failed to meet the
first and the second elements.
i. Starvation did not exist in Yukule
When people lack sustainable physical or
economic access to adequate safe, nutritious,
and socially acceptable food to maintain a
healthy and productive life, food insecurity
exists.3 It is a situation of limited or uncertain
availability of nutritionally adequate and safe
foods or limited or uncertain ability to acquire
acceptable foods in socially acceptable ways.4
Food insecurity was established due to the
following facts: the AMA confirmed its
dependence on the data presenting the
minimum intake of calories necessary to keep
Yukulers alive,5 food was not up to minimum
standard,6 and the shortage of food in the
autumn and winter of 2009 would occur.7
2

a. The Astron Military Administration


(AMA) did not commit the crime of using
starvation of civilians as a method of warfare

International Committee of the Red Cross (ICRC),


Geneva Conventions (GCs), 12 August 1949, Common
Art.2.

6
7

- 68 -

International Criminal Court (ICC), Elements of Crimes


(Elements of Crimes), 2011, ISBN No. 92-9227-232-2.
United Nations, Office for the Coordination of
Humanitarian Affairs occupied Palestinian territory,
Special Focus, August 2009, p. 9.
Gary Bickel, Mark Nord, Cristofer Price, William
Hamilton, John Cook, Guide to Measuring Household
Food Security, USDA Food and Nutrition Service,
Retrieved 1 November 2013.
Moot Problem, para. 14, lines 2-3.
Moot Problem, para. 14, lines 8-9.
Moot Problem, para. 15, lines 7-8.

Sinh vien va Khoa hoc phap ly so 12


On the other hand, starvation is the result of
a severe or total lack of nutrients needed for the
maintenance of life.8 Moreover, a person is
starving if he or she does not get sufficient food
to perform light physical activity.9 As the same
view, starvation may have the ordinary
definition of to cause hunger.10
Here, the AMA confirmed its dependence
on the data presenting the minimum intake of
calories to keep the Yukule population alive.11
By doing this, severe or total lack of
nutrients could not happen and hunger could
not take place consequently. Moreover, the
AMA did not truly deprive food; it limited
the amount of food absorbed by Yukulers.12
Subsequently, they could make all the way
through by carrying out load reductions.13
Additionally, chemical fertilisers and pesticides
were not decisive elements of the growth of
plants. To better the crops, farmers could use
organic fertilisers or animal manure. Thus,
starvation would not occur.
In addition, food insecurity does not
equate to starvation.14
ii. The AMAs deprivation of food
and water was lawful
8

10

11
12
13

14

Laurie J. Fundukian, The Gale Encyclopedia of Medicine


(6 Volume Set), 10 June 2011, ISBN No. 9781414486468.
Bjrn
Lomborg,
The
Skeptical
Environmentalist: Measuring the Real State of the
World, 28 August 2001.
Elizabeth Spelman Llb, Llm, The Legality of the Israeli
Naval Blockade of the Gaza Strip, Web Journal of
Current Legal Issues 2013, para. 248.
Moot Problem, para. 14, lines 2-3.
Moot Problem, para. 16, line 6.
The Turkel Commission The Public Commission to
Examine the Maritime Incident of 31 May 2010, Report
of the Commission for Examining the Maritime Incident
of May 31, 2010 - Part One, January 2010, para. 79.
Id. at 77.

i.
Yukule

A blockade was operated in

Blockade, which is frequently used to


cover diverse and often complex military
operations,15 is a method of warfare.16Imposing
naval blockades is a basic and fundamental
activity of navies.17
Blocking of the approach to the enemy
coast or ports constitutes the purpose of
preventing the ingress and egress of ships and
aircraft of all States.18
Gusmans announcement about preventing
all foreign ships from entering the Maritime
Control Zone, which was defined as the area
within 24 nautical miles from the Yukule
Island coastline, implied the ingress blocking
of ships.19 Furthermore, the AMAs
announcement on limiting the activities of local
fishermen to 6 nautical miles offshore entailed
the egress blocking of ships.20
ii. The blockade was legitimate
for its side-effect character
In order to be illegal, the blockade must
have the sole purpose of starving the
15

16

17

18

19
20

- 69 -

Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and


Andreas Paulus, The Charter of the United Nations: A
Commentary, Vol I 755 (Bruno Simma et al. eds., 2nd
ed.,
2002),
ISBN-13: 978-0199580156 ISBN10: 0199580154.
Y. Dinstein, The Conduct of Hostilities under the Law of
International Armed Conflict, 2nd edition (Cambridge
2010), p. 223.
Bruce A. Elleman & S.C.M. Paine eds, Naval Blockades
and Seapower: Strategies and Counter-Strategies 18052005, 2001 at xviii, Foreword.
International Institute of Humanitarian Law,
Explanation of San Remo Manual on International Law
Applicable to Armed Conflicts at Sea June
1994(Explanation of San Remo Manual), Part IV,
Section II, Preliminary remarks.
Moot Problem, para. 9, lines 3-5.
Moot Problem, para. 10, lines 1-2.

Sinh vien va Khoa hoc phap ly so 12


population.21 Differentiation between the
intention and the result of the blockade seems
to be taken into consideration in Commentary
on Additional Protocols (ICRC).22 If starvation
is the purpose of the blockades establishment,
it breaches Article 54 of AP I. Explanation on
San Remo Manual also implies that if
starvation occurs as a side-effect, it is lawful.23
The aim of the impediment was to divert the
supply of weapons to the local militia and
pressure the population to disengage from the
unrest,24 which contributed to military
advantages. First, Gusman controlled the
importation of goods by declaring that goods
exclusively used for civilian purposes would be
allowed into Yukule,25 which implied his
military targets. Second, for fear of possible
use by the armed militia, some objects were
strictly scrutinised.26
The blockade is set lawfully if it is to
frustrate possible aid to the enemys military
operations or prevent the transport of weapons
or supplies to a military force operating in the
country whose coast is subject to the
blockade.27
21

22

23
24
25
26
27

International Institute of Humanitarian Law, San Remo


Manual on International Law Applicable to Armed
Conflicts at Sea June 1994, Art. 102(a); The President
and Fellows of Harvard College, Manual on
International Law Applicable to Air and Missile Warfare,
Bern, 15 May 2009, ISBN No. 978-0-9826701-0-1, Art.
157(a).
Martin David Fink, Contemporary views on the
lawfulness of naval blockades, Aegean Rev Law Sea
(2011), 1:191215 DOI 10.1007/s12180-011-0021-y, p.
207.
Explanation of San Remo Manual, para. 102.
Moot Problem, para. 9, lines 1-2.
Moot Problem, para. 11, lines 2-3.
Moot Problem, para. 12, lines 1-2.
Constantine John Colombos, The International Law of
the Sea, 1967, p. 716-717; Dinstein, supra note 16 at
769-770.

Here, with a view to the impediment to the


supply of weapons to the local militia and
pressure putting on the population to disengage
from the unrest, Gusman enforced the shiprestricting measures.28 Certain objectives are
also limited for fear of possible use by the
armed militia.29
Military purpose fulfilled but there was a
side-effect of Gusmans actions starvation.
Furthermore, if a blockade has both unlawful
purposes of starvation and lawful military
purposes, it is considered lawful.30 Here, the
blockade included the lawful military purpose;
accordingly, the sole purpose criterion31 was
not satisfied.
Subsequently,
notwithstanding
the
starvation occurrence in Yukule, it was
legitimate for its side-effect character.
iii. The starvation amongst the
civilian population was not an excessive
damage
The provision in paragraph 102(b) of San
Remo Manual is applicable thereby rendering
the blockade illegal if the effect on the civilian
population is excessive in relation to the lawful
military purpose. The San Remo Manual also
recognises that the civilian population in a
territory at war will suffer to some extent.32
Additionally, the fact that considerable damage
has been caused does not necessarily mean that
the damage is excessive.33 In Kupreki case,
civilian protection ceases when collateral
28
29
30
31
32
33

- 70 -

Moot Problem, para. 9, lines 1-5.


Moot Problem, para. 12, lines 1-3.
Explanation of San Remo Manual, para. 102.
Explanation of San Remo Manual, para. 102.
The Turkel Commission, supra note 13 at 90.
Id. at 87.

Sinh vien va Khoa hoc phap ly so 12


In relation to the consequence,
the AMA and Gusman did not mean to
cause the starvation and were not aware
that it would occur in the ordinary course
of events

damage is unavoidable.34 Civilian deaths shall


be deemed as unavoidable losses35 insofar as
the attack is military necessary and precautions
are taken.36
In this case, precautions were taken when
the AMA used the data presenting the
minimum intake of calories to better
implement import control,37 which was
consequently to avoid excessive damage
amongst civilians, especially starvation.
iii. The AMA and Gusman did not
have intention to starve civilians
Gusman is only criminally charged when
the material elements are committed with
intent and knowledge.38
The AMA and Gusman did not
mean to engage in the conduct
The aim of the conduct was to impede the
supply of weapons to the local militia.39 The
result of the conduct mentioned here was not
the starvation amongst the population but the
completion of military operation. Gusmans
announcement excluded his intention of
engaging in the conduct resulting in starvation.
34

35

36

37
38

39

ICTY, Prosecutor v. Kupreki, IT-5-16 (14 January 2000),


paras. 522-523.
Id. at 522-524; ICTY, Prosecutor v. Gali, IT-98-29-T (5
December 2003), footnote 76; ICTY, Prosecutor v.
Blaki, IT-95-14-T (3 March 2000), para. 80; ICRC, Study
on Customary International Humanitarian Law (ICRC
Study on Customary International Humanitarian
Law), 2005, Volume I: Rules, Rule 50.
ICTY, Prosecutor v. Kordi and erkez, IT-95-14/2-A (17
December 2004), para. 686.
Moot Problem, para. 14, lines 2-7.
UN General Assembly, Rome Statute of the
International Criminal Court (last amended 2010)
(Rome Statute), 17 July 1998, ISBN No. 92-9227-2276, Art. 30(1).
Moot Problem, para. 9, line 1.

The AMA and Gusman indeed imposed


restrictions on the import of chemical fertilisers
and pesticides into Yukule.40 These restrictions
were put in place due to the risk that the
identified materials might be used for military
purposes, since the militia could utilise these to
produce explosives as what they did in the
early times.41 Moreover, the limitation on food
and humanitarian aids was for security
reasons,42 not for the intention to starve.
As said, what the AMA and Gusman
wanted
to
happen
after
Gusmans
announcements about goods restriction was the
military fulfillment. They calculated the
minimum intake of calories to keep Yukulers
alive,43 which did not express their awareness
of the fact that starvation would occur as a
consequence.
Hence, they did not intend to starve the
civilians.
b. Alternatively, even if all the
aforesaid elements of the alleged crime were
fulfilled, Gusman is not guilty on the basis of
individual responsibility under Article 25(3)(a)
Gusman was not aware and did not accept
that implementing his plan would result in the
realisation of the objective elements of the
crimes.
40
41
42
43

- 71 -

Moot Problem, para. 12, lines 6-7.


Moot Problem, para. 7, lines 6-8.
Moot Problem, para. 16, lines 5-6.
Moot Problem, para. 14, lines 2-3.

Sinh vien va Khoa hoc phap ly so 12


The confirmation of the AMA on using the
number of minimum intake of calories to keep
the Yukule population alive to control the food
import did not imply his awareness of
starvation in Yukule as a result.44 In contempt
of taken precautionary measures, the starvation
existed in civilians was not in Gusmans
knowledge.
Consequently, Gusman could not be held
individually responsible for the crime of using
starvation as a method of warfare under Article
8(2)(b)(xxv).
2.2. Gusman is not guilty for the crime
of intentionally directing attacks against
individual civilians not taking direct part in
hostilities under Article 8(2)(b)(i)
a. The Astron commando did not
commit the war crime of attacking civilians
Pursuant to Article 8(2)(b)(i) of Elements of
Crimes, the war crime of attacking civilians
requires five elements amongst which the
commando failed to meet the second and third
elements.
i. The object of the attack was not
civilians not taking direct part in
hostilities
The attacking and capturing of
Nirvana by the commando was conducted
lawfully
In exercising their legal rights in an
international armed conflict at sea, belligerent
warships have the right to visit and search
merchant vessels where there are reasonable

grounds for suspecting that they are subject to


capture.45 Merchant vessels are subject to
capture when they commit acts harmful to the
enemy.46 Such acts are defined as acts the
purpose or effect of which is to harm the
adverse Party, by facilitating or impeding
military operations shall be considered acts
harmful to the enemy.47 In this case, based on
the intelligence received about heavy weapons
on board Nirvana48 and the purpose of the ship
to break the blocking line,49 there were
substantial grounds to suspect the ship
subjected to capture. Hence, the commando
had the right to visit and search Nirvana.
Considering the blockade imposed by Astro
lawful under international law, Nirvanas
purpose to breach the blockade50 made it a
legal target to be captured.51
Merchant vessels which are subject to
capture may be attacked if after prior warning,
they intentionally and clearly refused to stop,
or intentionally and clearly resist visit, search
and capture.52 In this case, prior warnings were
given requesting the ship to stop for visit and
search53 but they were all ignored by
Nirvana.54 Furthermore, Borman, the leader of
45

46
47

48
49
50
51
52
53

44

Moot Problem, para. 14, lines 2-7.

54

- 72 -

UNCLOS, Art. 110; Explanation of San Remo Manual,


para. 118.
Explanation of San Remo Manual, para. 146.
International Committee of the Red Cross (ICRC),
Commentary on the Geneva Convention for the
Amelioration of the condition of the wounded and sick
in Armed forces in the field, 1952, p. 201.
Moot Problem, para. 24, lines 1-2.
Moot Problem, para. 21, lines 4-5; para. 23, lines 8-9.
Moot Problem, para. 21, lines 4-5; para. 23, lines 8-9.
Explanation of San Remo Manual, para. 146.
Explanation of San Remo Manual, para. 67.
Moot Problem, para. 25, lines 1-4.
Moot Problem, para. 26, line 1.

Sinh vien va Khoa hoc phap ly so 12


the activists on board, announced that the ship
would not stop to protest the Astros
occupation.55
Based on those facts, the commando had the
lawful right to attack and capture the ship.
The
protection

passengers

lost

their

Civilians shall enjoy special protection in


times of armed conflict, unless and for such
time as they take a direct part in hostilities.56
The passengers on board resisted the
commando strongly at first, causing great harm
to the Astron commando. For instance, three
marines were thrown over the deck head down,
some were seized and stabbed; the guards fired
a few shots at the commando; the activists used
improvised weapons such as axes, iron bars,
fire extinguishers to resist the commando;57
etc. As a result, they lost protected status as
they clearly had taken direct part in hostilities.
The attack against
the
passengers on board Nirvana was not
indiscriminate and disproportionate and
the commando had taken all feasible
precautionary measure
Indiscriminate attacks are of a nature to
strike military objectives and civilians or
civilian objects without distinction58 and
excessive in relation to the concrete and direct
military advantage anticipated.59 Regarding the
circumstances on board Nirvana and the
military necessity, the commando acted

properly with respect to the principle of


distinction60 and proportionality61 set out under
International Humanitarian Law. Prior to the
attack, repeated warnings were given
requesting the vessel to stop for visit and
search.62 The commando also took all feasible
precautionary measures during the attack to
spare civilians and minimise the effects of the
attack. With the intention to secure control of
the ship,63 the commando refrained from using
physical force while boarding and only
resorted to use it for self-defence against the
hostilities carried out by the passengers.64 As
soon as the military objective of taking control
of the ship was secured, Hanson and the
marines immediately stopped the attack and
began giving medical care to the wounded65 so
as to minimise the effects of the attack.
Hence, there was no indiscriminate attack
directed at the civilians.
ii. The commando did not intend to
make those passengers on board Nirvana
object of the attack
Intent

56
57
58
59

Moot Problem, para. 26, lines 1-3.


AP I, Art. 51(3).
Moot Problem, para. 27, lines 2-6.
AP I, Article 51(4).
AP I, Article 51(5).

be

inferred

from
66

indiscriminate nature of the attack

the

and the

fulfillment of the duty to take precautionary


measures before and during the attack.67
60

61

62
63
64

55

can

65
66

67

- 73 -

ICRC Study on Customary International Humanitarian


Law, Rule 1.
ICRC Study on Customary International Humanitarian
Law, Rule 14.
Moot Problem, para. 25, lines 1-4; para. 26, line 1.
Moot Problem, para. 26, lines 4-6.
Moot Problem, para. 27, lines 1-7.
Moot Problem, para. 28, line 1.
ICTY, Prosecutor v. Marti, IT-95-11-R61 (8 March
1996), para. 31.
Knut Drmann, Elements of War Crimes Under the
Rome Statute of the International Criminal Court:

Sinh vien va Khoa hoc phap ly so 12


Regarding the case, this attack was not a
discriminate one and the commando took all
feasible precautionary measures, it was
concluded that the commando had no intention
to direct attacks against the civilians.
b. Alternatively, even if all the
aforesaid elements of the alleged crime were
fulfilled, Gusman cannot be held responsible as
a superior for the commandos actions under
Article 28(a)
Gusman is responsible as a superior for the
crime of attacking civilians committed by the
commando since following elements are
satisfied.68
i. Gusman did not know and had no
duty to know about the commandos
actions
This mens rea recognises that a superiors
actual knowledge cannot be presumed69 but
must be obtained by way of direct or
circumstantial evidence.70 The accused is
considered to know if: (i) he has general
information to put him on notice of crime
committed by subordinates or of possibility of
occurrence of unlawful acts,71 including media
and reports prepared by international and non-

68

69

70

71

Sources and Commentary, 2003, Cambridge University


Press, p. 132.
Rome Statute, Art.28(a); ICC, Prosecutor v. Bemba, ICC01/05-01/08 (15 June 2009), para. 407.
ICTY, Prosecutor v Deli, IT-04-83-T (15 September
2008), para. 64 (cited in Bemba, supra note 68 at 418).
ICTY, Prosecutor v. Kordi and erkez, IT-95-14/2-T (26
February 2001), para. 438 (cited in Bemba, supra note
68 at 418).
Bemba, supra note 68 at 434; ICTY, Deli, supra note 69
at 65-66; ICTY, Prosecutor v. Strugar, IT-01-42-T (31
January 2005), para. 370; ICTY, Prosecutor v. Blaki, IT95-14-A (29 July 2004), para. 618; Gali, supra note 35
at 704.

governmental organisations and (ii) such


available information is sufficient to justify
further inquiry or investigation.72
In this case, as being the chairman of the
Crisis Military Commission,73 Gusmans main
responsibility was to govern Yukule and decide
key policies about the Archipelago.74 Based on
that responsibility, he acted with the purpose to
fulfil his duty of defending Yukule as he
established the commando and appointed
Hanson to lead the operation75 in order to deal
with the threat posed by Nirvana.76 After that,
he issued no further orders about the operation
or instructed his subordinates. As a result, he
had no more information regarding the events
of the operation to justify further inquiry or
investigation.
Hence, Gusman neither knew nor had duty
to know about the commandos actions.
ii. Gusman has taken all necessary
and reasonable measure within his
material ability to prevent, repress and
submit the matters to competent
authorities
A military commander will only be
responsible under Article 28(a) of the Statute
for failing to take measures within his material
possibility77 to fulfill his duties.
In this case, Gusman could not fulfill his
duty to prevent as well as to stop78 the crime as
72

73
74
75
76
77
78

- 74 -

ICTY, Prosecutor v. Limaj et al., IT-03-66-T (30


November 2005), para. 505; Kordi and erkez, supra
note 70 at 407.
Moot Problem, para. 2, lines 3-4.
Moot Problem, para. 7, lines 2-3.
Moot Problem, para. 24, line 4.
Moot Problem, para. 24, line 2-3.
Blaki, supra note 71 at 395.
Kordi and erkez, supra note 70 at 446.

Sinh vien va Khoa hoc phap ly so 12


he neither knew nor should have known about
the crime was being committed by his
subordinates.79 Furthermore, the inquiry
conducted by Astron Ministry of Defence
concluded the operation was lawful80 on
grounds of national security and self-defence,
which effectively excluded Gusman from
completing his other duties of punishing his
subordinates81 over the crime or submitting the
matter to competent authorities for
investigation and prosecution.82
Therefore, Gusman has fulfilled his duties
as a military commander.
Consequently, Gusman is not guilty as a
military commander for the war crime of
attacking civilians under Article 8(2)(b)(i).
2.2. Gusman is not guilty for the crime
of intentionally launching an attack in the
knowledge that such attack will cause
widespread, long-term and severe damage to
the natural environment which would be
clearly excessive in relation to the military
advantage
anticipated
under
Article
8(2)(b)(iv)
a. Captain Ardent and his troops did
not commit the war crime of excessive
incidental damage to the natural environment
Pursuant to Article 8(2)(b)(iv) of Elements
of Crimes, the war crime of excessive
incidental damage requires five elements
amongst which Captain Ardent and his troops
failed to meet the second and the third
elements.
79
80
81
82

Deli, supra note 69 at 72.


Moot Problem, para. 31, line 1-2; para. 32, line 2-5.
Kordi and erkez, supra note 70 at 446.
ICC, Rome Statue of the International Criminal Court,
Art. 28(a).

i. The attack did not cause


widespread, long-term and severe damage
to the natural environment of Yukule
Widespread is defined to encompass an
area on the scale of several hundred square
kilometres,83 long-term or long-lasting was
interpreted as a matter of decades,84 and
severe is described to involve serious or
significant disruption or harm to human life,
natural and economic resources or other
assets.85
The actual damage conclusion must be
based not only on reliable sources but also on
various researches conducted objectively,
independently and in high expertise. The
United Nations Environment Programme
(UNEP) reported that the oil spills could have a
major impact on the massive reef habitation,86
but failed to mention to which extent they
spread and affect the habitation. Besides, in
November 2013, a study on coral reefs
offshore Yukule concluded that two-way
analysis of variance between those oiled and
non-oiled reefs showed no significant
differences.87 It can be inferred from the
research that the damage lasted more than three
years since the incident but could not amount
to a decade. Besides, Dr Sulivan from the Casa,
a neutral country in the armed conflict, ensured
83

84

85

86
87

- 75 -

Conference of the Committee on Disarmament,


Understanding relating to Article 1 of the 1976 ENMOD
Convention, UN Doc. A/31/27, 1976.
International Committee of the Red Cross (ICRC),
Commentary on the Additional Protocols of 8 June 1977,
1987, para. 1452.
Conference of the Committee on Disarmament, supra
note at 83.
Moot Problem, para. 41, lines 1-2.
Moot Problem, para. 43, lines 3-4.

Sinh vien va Khoa hoc phap ly so 12


that the damage to the marine environment in
the region was not devastating.88
Therefore, based on those diverse sources,
the damage caused in the attack cannot be
assumed widespread, long-term and severe
damage.
ii. Even if such damage was
considerable, it was not clearly excessive
in relation to the concrete and direct
overall military advantage anticipated
The word excessive does not refer to an
absolute concept and it is always measured in
light of the military advantage that the attacker
anticipates to attain through the attack.89 It is
necessary to assess the importance of the target
in relation to the incidental damage expected: if
the target is sufficiently important, a greater
degree of risk to the environment may be
justified.90
Here, Rear Admiral Freedman informed
Gusman that he was unable to stop the
advancement of the Bereton Navy,91 even
though Astron military forces had already been
mobilised and engaged the enemy on the high
sea.92 In addition, after Astron warning was
widely given,93 Captain Ardent thus had no
alternative but to depend on oil slicks to
prevent Bereton Navy from crossing the
threshold of Yukule Island.94 Despite the
88
89
90

91
92
93
94

Moot Problem, para. 42, lines 1-3.


The Turkel Commission, supra note 13 at 87.
ICTY, Final Report to the Prosecutor by the Committee
Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, para. 19.
Moot Problem, para. 36, lines 1-3.
Moot Problem, para. 35, lines 3-5.
Moot Problem, para. 36, lines 4-7.
Moot Problem, para. 37, lines 1-2.

incident, Bereton Navy still managed to land


and rapidly made their way inland.95 Captain
Ardent in defence of Astros sovereignty over
Yukule therefore decided to start the oil fires
near Port Solferino where the Bereton Navy
headed in with the aim of not letting them
arrive at Port Solferino.96
Hence, with a view to prevent the
immediate threat of the opposing party over the
sovereignty of his country, Captain Ardent
relied on the last resort: oil spills and oil fires
and anticipated that they could have assisted
the achievement of Astron military purpose in
such case of urgency. Here, the anticipated
degree of risk to the environment therefore
may be justified.
iii. Feasible precautionary measures
were sufficiently taken during the attack
It has been emphasised that the obligations
set out under AP I must be evaluated on the
basis of information that is reasonably
available to the relevant decision maker at the
time, which will be influenced by the nature of
the attack being carried out by the States
military force.97 The term feasible should be
understood to be practicable or practically
possible, taking into account all circumstances
ruling at the time, including humanitarian and
military considerations.98
95
96
97

98

- 76 -

Moot Problem, para. 38, lines 1-4.


Moot Problem, para. 39, lines 4-5.
Dan Saxon, International Humanitarian Law and the
Changing Technology of War, Martinus Nijhoff
Publishers, ISBN No. 978-9004229488, p. 166-167.
ICRC Study on Customary International Humanitarian
Law, Rule 22; Explanation of San Remo Manual, para.
46.3.

Sinh vien va Khoa hoc phap ly so 12


In this case, Astro and Captain Ardent did
not take all the precautionary measures
regulated in AP I;99 however, they did take all
the feasible measures to avoid and minimise
the damage in such imperative circumstance.
In spite of the engagement between two
opposing naval forces on the sea,100 under the
threat of disruption of the sovereignty, the
incident of discharging and burning oil
occurred. Nonetheless, the incident took place
on the sea,101 where less people can be found
than on the land. In fact, there were no
recorded deaths in the aftermaths the incident.
Besides, during the fire, Astron soldiers in
Yukule retreated to the mainland to evade the
impact of the attack.102
Furthermore, under AP I, effective advance
warning shall be given of attacks unless
circumstances do not permit.103 A warning
need not be specific and may be general in
order not to endanger the attacking forces or
the success of their mission.104
Via several pro-government magazines,
Astro
had
candidly
expressed
the
determination to defend Yukule at all costs,
that the Bereton disruption to Astros
sovereignty over Yukule would only lead to
unforeseen consequences.105 Regardless of
the warning, the Bereton Navy resolutely
continued the mission to recapture

99
100
101
102
103
104

105

AP I, Art. 57; Art. 58


Moot Problem, para. 36, lines 1-3.
Moot Problem, para 38, line 1; para 39, lines 4-5.
Moot Problem, para. 39, line 6.
AP I, Art. 57(2)(c).
ICRC Study on Customary International Humanitarian
Law, Rule 20.
Moot Problem, para. 36, lines 4-7.

Yukule.106With the enemys rapid progress,


Astro once more issued a warning to Bereto
through Astron paper Hasgtag Daily that the
continuity of the attack would only lead to the
destruction of Yukule.107 Therefore, though
media, Astro manifested its persistent intention
to defend its sovereignty regardless.
Hence, in the danger of the Bereto Navys
advancement, Astro and Captain Ardent took
all feasible precautionary measures to avoid
and minimise the damage which would be
caused by the attack.
Since the damage was not widespread, longterm and severe and clearly excessive to the
military advantage anticipated, the third
element of this crime, which demands the
perpetrator knew the damage and its
excessiveness caused by the attack, was thus
not satisfied.
Thus, Captain Ardent and his troops could
not be held criminally liable for the war crime
of excessive incidental damage given that
second and the third elements of the war
crime108 are not fulfilled.
c. Alternatively, even if all the
aforesaid elements of alleged crimes were
fulfilled, Gusman could not be held
individually criminal responsible for ordering
the commission of the crime under Article
25(3)(b)
i. Actus reus

106
107
108

- 77 -

Moot Problem, para. 38, line 4.


Moot Problem, para. 39, lines 1-2.
Elements of Crimes, Art. 8(2)(b)(iv).

Sinh vien va Khoa hoc phap ly so 12


The actus reus of criminal responsibility
requires the perpetrator to instruct another
person in any form to commit a crime.109
Instructing requires a positive action by the
person in a position of authority.110 Gusman
neither specifically ordered Captain Ardent
directly nor indirectly to cause oil spills and
fires, despite his plan of taking all measure
possible to stall the enemy.
ii. Mens rea
Mens rea requires the perpetrator: (i) mean
to instruct another to commit an offence; and
(ii) was aware that the crime would be
committed in the ordinary course of events as
the consequence of his instructions.111
Here, Gusman had given advance warning
about the destruction of Yukule,112
nevertheless, he issued the order with the
intention of prevent any further advancement
as well as attacks from Bereto but without the
intention of commission of the crime.
An individual in a position of authority
orders an act or omission with the awareness of
the substantial likelihood that a crime will be
committed in the execution of that order.113 As
the highest commander of the AMA, Gusman
gave the orders without knowing that the
execution of such order would lead to the
commission of the crime by Captain Ardent
since the consequences were beyond Gusmans
109

110

111
112
113

military anticipation. Besides, Yukule Island


and its civilians were not the objects of the
attack, but the Bereton Nary. Gusman therefore
did not know that such damage to the Yukules
natural environment would be caused in the
ordinary course of events.
Consequently, Gusman could not be held
individually responsible for ordering the
commission of the crime under Article
8(2)(b)(iv).

PRAYER FOR RELIEF


The Defendant respectfully requests the
Honourable Court to deny to confirm the
charges against Tony Gusman of:
1. The war crime of intentionally using
starvation of civilians as a method of
warfare;
2. The war crime of intentionally directing
attacks against individual civilians not
taking direct part in hostilities;
3. The war crime of intentionally launching
an attack in the knowledge that such attack
will cause widespread, long-term and
severe damage to the natural environment
which would be clearly excessive in
relation to the concrete and direct military
advantage anticipated.

ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June


2014), para. 244.
ICTY, The Prosecutor v. Gali, Case No. IT-98-29-A (30
November 2006), para. 176.
Gbagbo, supra note 109 at 244.
Moot Problem, para. 39, line 2.
Blaki,supra note 71 at 42; ICTR, Prosecutor v. Karera,
ICTR-01-74-A (2 February 2009), para. 211.

- 78 -

Respectfully submitted,
Defendant.

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. TONY GUSMAN


MEMORIAL FOR THE PROSECUTOR
L NGC BO TRANG
TRN BCH NGC
1. Admissibility
Under Article 5(1)(c) of Rome Statue, the
International Criminal Court (ICC) has
jurisdiction over the suspected war crimes.
Moreover, the case against Mr. Tony Gusman
(Gusman) before the ICC is admissible
under Article 14 of Rome Statue as Astro and
Bereto agreed to jointly refer the situation of
Yukule to the ICC.1
2. Type of armed conflict, applicable law
and belligerent nexus
2.1. The international armed conflict
(IAC) between Astro and Bereto
commenced on 4 February 2008, particularly
in the Yukule Archipelago (Yukule)
In Lubanga case, the ICC held that an IAC
takes place between two or more States.2
Hence, the armed conflict arose between Astro
and Bereto is IAC. In Hague Convention, a
territory is considered being occupied when it
is actually placed under the authority of the
hostile army.3 The Archipelago was occupied
under the control of Astro since Astron Armed
1
2

Moot Problem, para. 44, lines 4-6.


ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-803 (14 May
2007), para. 209.
International Conference (The Hague), Hague Convention
(IV) Respecting the Laws and Customs of War on Land and
Its Annex: Regulations Concerning the Laws and Customs of
War on Land (The Hague), 18 October 1907, Art. 42.

Forces (AAF) invasion on 4 February


2008.4 International Humanitarian Law
(IHL) applies even if the said occupation
meets with no armed resistance5 and people are
fighting against colonial domination and alien
occupation.6 In this case, the AAF invaded
Yukule without any armed resistances;7 the
condition of occupation in Yukule was
therefore satisfied for an Occupying Power.
Furthermore, inhabitants and the remaining
members of the Bereton armed and police
forces on the island formed a resistance
militia, led by Colonel Spartan from Bereton
army, used guerilla tactics, including laying
improvised explosive devices along the main
road of the island.8 Those acts of the
resistance militia on the Yukule Island were
used to fight the alien occupation in Yukule
Island Astro. When an armed conflict
occurred, the territory will be determined in the
whole territory of the warring States.9 Based on
4
5

7
8
9

- 79 -

Moot Problem, para. 6, lines 4-5.


International Committee of the Red Cross (ICRC), Geneva
Conventions (GCs), 12 August 1949, Common Art. 2.
International Committee of the Red Cross (ICRC), Protocol
Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International
Armed Conflicts (Protocol I) (AP I), 8 June 1977, 1125
UNTS 3, Art. 1.
Moot Problem, para. 6, lines 4-5.
Moot Problem, para. 7, lines 4-8.
ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-2842 (14
March 2012), para. 533.

Sinh vien va Khoa hoc phap ly so 12


the determination of the ICC, the territory in
this armed conflict must be the Archipelago
and the whole territory of Bereto.
2.2. Applicable law
IHL applies in IAC,10 excluding Common
Article 3 of the Geneva Conventions (GCs)
and Additional Protocol II. Besides, United
Nations Convention on the Prohibition of
Military or Any Other Use of Environmental
Modification Techniques (ENMOD) and
the United Nations Convention on the Law of
the Sea (UNCLOS) apply.
2.3. The nexus between the offences
charged and the IAC existed
The nexus existed where the armed conflict
played a substantial role in the perpetrators
decision, in his or her ability to commit the
crime.11 The acts of Gusman regarding the
import and fishing control imposed on Yukule
and the Operation Blue were taken in response
to stop the supply of weapons to the local
militia.12 Furthermore, regarding oil spills and
oil fires with target comprise in the third count
in response to the advancement of Bereton
Navy to recapture Yukule.13 Here, all
Gusmans acts carried out the war crime of
using starvation as a method of warfare,
leading to the deaths of 30 activists and 15
Sphinx guards,14 and causing a major effect on
the massive reef habitation offshore Yukule.15
10
11
12
13
14
15

GCs, Common Art. 2.


Lubanga, supra note 2 at 287.
Moot Problem, para. 9, line 1.
Moot Problem, para. 36, lines 2-3.
Moot Problem, para. 28, lines 3-4.
Moot Problem, para. 41, line 2.

2.4. The awareness of Gusman in


factual circumstances
In Katanga case, the ICC held that the
leader of the military group as a party of the
armed conflict was fully aware of the existence
of the armed conflict.16 Here, Gusman was the
Commander-in-chief of the AAF;17 hence, he
was aware of the factual circumstances of the
armed conflict.
3. Substantive crimes
3.1. Gusman is criminally responsible
for individually using starvation as a method
of warfare under Article 8(2)(b)(xxv)
a. The Astron Military Administration
(AMA) committed the war crime of
starvation as a method of warfare
In armed conflicts, the right to choose
methods and means of warfare is limited.
Prohibition on using starvation as a method of
warfare reflects the principle of limitation.18
i. The AMAs deprivation of food
and water was unlawful
i. Food and drink are objects
indispensable for the survival of civilians
Under AP I, certain objects whose character
is indispensable to the survival of civilians
get heightened protection.19 Additionally,
foodstuffs, drinking water installations and
supplies and irrigation works are indispensable
to the survival of the civilian population.20
16

17
18
19
20

- 80 -

ICC, Prosecutor v. Katanga, ICC-01/04-01/07


September 2008), paras. 385-388.
Moot Problem, para. 2, lines 4-5.
The Hague, Art. 23(e); AP I, Art. 35(2).
AP I, Art. 54(2).
AP I, Art. 54(2).

(30

Sinh vien va Khoa hoc phap ly so 12


Thus, the act of the AMAs depriving them
from civilian population is unlawful.
ii. The AMA made food and
water in Yukule below minimum standard,
which caused the starvation in Yukule
Starvation does not require starving a
population to death, what is prohibited is using
starvation as a weapon to annihilate or weaken
the population.21
There are three criteria to assess whether
food comes up to standard: availability,
accessibility and adequacy.22 The United
Nations requires that the availability be met
when food is available from natural resources,
in markets and shops. Economic access and
physical access to food are included in the
accessibility. Food amounts to adequacy
when it satisfies dietary needs,23 taking into
account the individuals age, living conditions,
health, occupation and sex.24
The transport of food was long-delayed in
some areas due to severely damaged roads and
inspection at check-points,25 making it difficult
to get access to food. Moreover, the AMA
confirmed its dependence on the data
presenting the minimum intake of calories
necessary to keep Yukulers alive while people
21

22

23

24

25

Human Rights Watch, A Week of Terror in Drenica:


Humanitarian Law Violations in Kosovo, 1 February 1999,
p. 118.
Olivier De Schutter, Report submitted by the Special
Rapporteur on the right to food, United Nations General
Assembly, A/HRC/16/49, para. 5.
UN Economic and Social Council, General Comment No. 12:
The Right to Adequate Food (Art. 11 of the Covenant), 12
May 1999, para. 9.
UN Office of the High Commissioner for Human Rights
(OHCHR), Fact Sheet No. 34, The Right to Adequate Food,
April 2010, No. 34, p. 3.
Moot Problem, para. 13, lines 5-6.

with different age, gender and health have


different demands for food.26 It was proposed
that in the autumn and winter of 2009, there
would be no food for civilians to survive
without food import.27 Additionally, Gusman
announced that the import of food resumed
slowly starting on 15 January 2010.28
Besides, the right to water entitles everyone
to sufficient, safe, acceptable, physically
accessible and affordable water for personal
and domestic uses.29
Here, Gusman announced that construction
materials should be curtailed and strictly
scrutinised,30 which resulted in great shortage
of essential objects to repair the sewerage
networks and pumping stations.31 They were
left unrepaired, making it unfit for water
consumption.32
That food and water were not up to
minimum standard resulted in starvation in
Yukule.
iii. Food and water were neither
sustenance solely for the members of
armed force nor in direct support of
military action
The deprivation of food and water maybe
unlawful except: (i) they are sustenance solely
for the members for armed forces,33 or (ii) they
26
27
28
29

30
31
32
33

- 81 -

Moot Problem, para. 14, lines 2-3.


Moot Problem, para. 15, lines 7-8.
Moot Problem, para. 16, lines 6-7.
UN Economic and Social Council, General Comment No. 15:
The Right to Water (Arts. 11 and 12 of the Covenant),
E/C.12/2002/11, 20 January 2003, para. 2.
Moot Problem, para. 12, lines 1-2.
Moot Problem, para. 18, lines 3-4.
Moot Problem, para. 18, lines 1-4.
AP I, Art. 54(3)(a).

Sinh vien va Khoa hoc phap ly so 12


directly support military action without an
intervening agency or step.34

medical stores in case of inadequate resources


of the occupied territory.40

Initially, food distributed to the local


population was short of estimated needs, the
lack of food and unfit consumption of water
affected thousands of Yukulers.35 Hence, food
and water were not sustained nor used solely
for the benefit of armed forces.36

Insufficiency in medical stores, medical


services and medicines resulted from the
AMAs impeding relief supplies according to
its suspension announcement on all imports,
including import of humanitarian aids41
culminated in the development of small
ailment into serious illness.42

The second exception could not be applied


if the deprivation of these objects was expected
to leave civilians with such inadequate food or
water to cause its starvation.37
Subsequently, food and water
excluded in these two exceptions.

Consequently, Gusmans restriction on


relief supplies is proscribed.
iii. The AMA and Gusman intended
to starve civilians as a method of warfare

were

Therefore, the first element of this crime


was proved.38
ii. The AMAs impediment of relief
supplies was illegal
Under AP I, in virtue of the inadequate
supplies of food and drinking water, relief
actions which are humanitarian and impartial
in character, and conducted without any
adverse distinction shall be undertaken.39 The
Occupying Power must ensure medical
supplies of the population to the fullest extent
of the means available and bring necessary

Their distinguishing between civilians and


military targets to avoid harming civilians and
the civilian economy is taken into
consideration to assess the intention. If they
fails to do that, intent to attack civilians by
starvation may be inferred.43
Here, in the AMAs implementation of the
control measures on fishing in 2008,44
restriction on the import of fertilizers and
pesticides,45 and suspension announcement on
all imports,46 it failed to distinguish between
civilians and military targets, leading to
shortage of food.47
The intention to starve may be inferred.

34

AP I, Art. 54(3)(b); Michael Bothe, New Rules for Victims of


Armed Conflicts: Commentary on the Two 1977 Protocols
Additional to the Geneva Conventions of 1949, 2nd Edition,
Martinus Nijhoff Publishers, p. 383.
35 Moot Problem, para. 14, lines 7-8; para. 18, line 3.
36International Committee of
the Red Cross (ICRC),
Commentary on the Additional Protocols of 8 June 1977
(Commentary on the APs), 1987, para. 2112.
37 AP I, Art. 54(3)(b).
38 International Criminal Court (ICC), Elements of Crimes
(Elements of Crimes), 2011, ISBN No. 92-9227-232-2,
Art. 8(2)(b)(xxv).
39 AP I, Art. 70(1).

40

41
42
43
44
45
46
47

- 82 -

International Committee of the Red Cross (ICRC), Geneva


Convention Relative to the Protection of Civilian Persons in
Time of War (Fourth Geneva Convention), 12 August 1949,
75 UNTS 287, Art. 55.
Moot Problem, para. 16, lines 5-6.
Moot Problem, para. 17, lines 3-6.
Human Rights Watch, supra note 21 at 123.
Moot Problem, para. 10, lines 1-3.
Moot Problem, para. 12, lines 6-7.
Moot Problem, para. 16, lines 4-6.
Moot Problem, para. 15, lines 7-8.

Sinh vien va Khoa hoc phap ly so 12


iv. The conduct took place in an
IAC
Submitted in II.3.
v. The AMA and Gusman were
aware of the factual circumstances that
established the IAC

Maritime Control Zone led to Astron forces


patrolling the area.56 Goods allowed into
Yukule in case-by-case approval or rejection
on each ship also resulted from his
announcement.57
ii. Mens rea
I. Gusman must carry out the
subjective elements of the crime

Submitted in II.4.
b. Gusman bears individual criminal
responsibility under Article 25(3)(a)
The commission of a crime through another
person is a model of criminal responsibility.48
The principal uses the direct perpetrator as a
tool or an instrument to commit the crime.49

The crime is committed with intent and


knowledge,58 indicating that a person means to
engage in the conduct and is aware that the
consequence will occur in the ordinary course
of events.59
Gusman continuously announced to impede
goods60 and suspended all imports.61

i. Actus reus
In Katanga case, the objective elements
require: (i) the perpetrator had control over the
organization and organised a hierarchical
apparatus of power;50 and (ii) the execution of
the crime was secured by almost automatic
compliance with the orders.51
Here, Gusman was the chairman of the
Crisis Military Commission (CMC),52
supervising the AMA.53 He was the
Commander-in-chief of the AFF,54 thus, had
actual control over the organization.55

The AMA calculated the minimum intake


of calories and used the data to implement the
import controls.62 As a commander, Gusman
knew that food distribution was not up to the
estimated needs.63 Moreover, he did not fulfil
his duty to provide Yukulers with food and
humanitarian aids,64 which resulted in great
shortage of medical stuffs and development
into serious illness from a small ailment in
ordinary course of events.65
II. Gusman must be aware and
accept that implementing his plan would

Moreover, Gusmans announcement on


preventing all foreign ships from entering
56
48

49
50
51
52
53
54
55

Fletcher, G.P., Rethinking Criminal Law, New York, Oxford


University Press, 2000, p. 639; Cyril Laucci, The Annotated
Digest of the International Criminal Court, Martinus Nijhoff
Publishers, 2008, para. 495.
Katanga, supra note 16 at 495.
Id. at 500-514.
Id. at 515-518.
Moot Problem, para. 2, line 3.
Moot Problem, para. 7, line 3.
Moot Problem, para. 2, line 5.
Moot Problem, para. 6, lines 3-4.

57
58

59
60
61
62
63
64
65

- 83 -

Moot Problem, para. 9, lines 3-6.


Moot Problem, para. 11, lines 1-4.
UN General Assembly, Rome Statute of the International
Criminal Court (last amended 2010) (Rome Statute), 17
July 1998, ISBN No. 92-9227-227-6, Art. 30(1).
Rome Statute, Art. 30(2).
Moot Problem, para. 11, lines 1-3.
Moot Problem, para. 16, line 6.
Moot Problem, para. 14, lines 2-7.
Moot Problem, para. 14, lines 7-9.
Moot Problem, para. 16, lines 4-6.
Moot Problem, para. 17, lines 1-6.

Sinh vien va Khoa hoc phap ly so 12


result in the realisation of the objective
elements of the crime
If the attacker does not comply with the
duties to avoid harming civilians and food
shortages result, the intention to attack civilians
by starvation may be inferred.66
Here, that the total catch of fish and local
food production were reduced,67 led to great
shortage of food in the autumn and winter of
2009.68 In this circumstance, Gusman did not
fulfil his duty to import food and humanitarian
aids,69 resulting in poor living conditions, the
lack of medical services and medicines
amongst islanders.70

Principle of distinction has been one of the


fundamental and long-lasting rules of IHL,
contributing to the purpose of protecting and
minimising the effects of war.72 Indiscriminate
attacks, which are serious violations of this
principle, may qualify as direct attacks against
the civilians.73
i. The commando directed the attack
Attacks requires acts of violence
against the adversary.74
On 20 July 2010, the commando boarded
Nirvana and tried to capture the ship using
physical force.75 This act amounted to attack
against passengers on board Nirvana.

III. Gusman must be aware of the


factual circumstances enabling him to
control the crime

ii. The object of the attack was


individual civilians not taking direct part
in hostilities

Here, Gusman was the Commander-in-chief


of the CMC.71 The AMA, which was directly
under the CMC supervision complied his
orders automatically.

Nirnava was a neutral merchant


vessel with protected status

In conclusion, Gusman is criminally


responsible for the war crime of using
starvation as a method of warfare under Article
8(2)(b)(xxv).
3.2. Gusman is criminally responsible
as a superior for the war crime of attacking
civilians under Article 8(2)(b)(i)
a. The Astron commando committed
the war crime of attacking civilians

Nirvana was a Casa-registered merchant


vessel hired for the purpose of delivering
humanitarian packages to Yukule.76 It satisfied
the criteria of neutral merchant ship77 and shall
enjoy the protection against any attacks unless
it committed acts harmful to the belligerent.78
Additionally, the right of visit and search
72

73

74
75

66
67
68
69
70
71

Human Rights Watch, supra note 21 at 123.


Moot Problem, para. 15, lines 2-4.
Moot Problem, para. 15, lines 7-8.
AP I, Art. 70(1).
Moot Problem, para. 17, lines 3-4.
Moot Problem, para. 2, line 5.

76
77

78

- 84 -

ICRC, Study on Customary International Humanitarian Law


(ICRC Study on Customary International Humanitarian
Law), 2005, Volume I: Rules, Rule 1.
ICTY, Prosecutor v. Gali, IT-98-29-T (5 December 2003),
paras. 57-58.
AP I, Art. 49(1).
Moot Problem, para. 27, lines 1-7.
Moot Problem, para. 21, lines 2-3.
International Institute of Humanitarian Law, Explanation of
San Remo Manual on International Law Applicable to
Armed Conflicts at Sea June 1994 (Explanation of San
Remo Manual), para. 117.
Explanation of San Remo Manual, para. 67.

Sinh vien va Khoa hoc phap ly so 12


entitled to the belligerent may not be exercised
arbitrarily. Hence, the exercise of visit and
search is made dependent upon reasonable
grounds for suspecting that they are subjects to
capture.79
In this case, Astron forces provided no legal
bases to suspect Nirvana of being liable to
capture,80 hence, they possessed no right to
visit and search the ship. Furthermore, there
were no substantial grounds that Nirvana was
committing acts harmful to the enemy.
Therefore, the boarding and capture of the
vessel by force was unlawful.
Even if the Nirvana lost its
protected status, its passengers were
protected as they were members of civil
defence organisation
Passengers on board Nirvana included 200
activists and 30 guards.81 Regarding their
function of delivering humanitarian aids to
Yukule, they shall be considered as the
personnel of a civil defence organisation82 and
shall enjoy the protection as civilians.83
Therefore, the Sphinx guards had the right to
carry light defensive arm, such as pistols or
revolvers,84 for the purpose of maintaining
order and self-defence.85
Even if the passengers lost their
protected status, the attack against them
was indiscriminate and disproportionate,

seriously violating the


distinction under IHL

80
81
82
83
84
85

Explanation of San Remo Manual, para. 118.


Explanation of San Remo Manual, para. 146.
Moot Problem, para. 23, lines 1-2.
AP I, Art. 61.
AP I, Art. 62(1).
Commentary on the APs, para. 2629.
AP I, Art. 65(3).

of

Indiscriminate attacks are of a nature to


strike military objectives and civilians or
civilian objects without distinction86 and
excessive in relation to the concrete and direct
military advantage anticipated.87 Indiscriminate
attacks may qualify as attacks directed at
civilians88 and disproportionate attacks may
give rise to the inference that civilians were the
object of the attack.89
In this case, the commando chose means
and methods of warfare in a reckless way,
causing a great number of casualties for the
passengers.90 The United Nations Panel also
concluded that the nature and extent of the
attack were excessive and the commando made
no effort to follow the principle of distinction
during the course of the attack.91
Additionally, to respect the principle of
proportionality, during military operations,
constant precautions must be taken to spare and
avoid or minimise incidental loss of life, injury
and damage to civilians.92
Regarding the operation, the commando did
not take feasible precautions to spare the
civilians and minimise the effects of the attack.
No prior warning about the immediate
boarding was given.93 Non-violent options
86
87
88
89

79

principle

90
91
92

93

- 85 -

AP I, Art. 51(4).
AP I, Art. 51(5).
Gali, supra note 73 at 57.
Id. at 60.
Moot Problem, para. 28, lines 3-4.
Moot Problem, para. 34, lines 1-9.
AP I, Art. 57(2)(a)(ii); ICRC, Study on Customary
International Humanitarian Law, Rule 15, Rule 18, Rule 19;
ICTY, Prosecutor v. Kordi and erkez, IT-95-14/2-A (17
December 2004), para. 686.
Moot Problem, para. 26, lines 1-6.

Sinh vien va Khoa hoc phap ly so 12


should have been used in the first instance,
such as water hoses or malodorants94 and the
operation should have reassessed its options
when the resistance to the initial boarding
attempt became apparent to minimise
casualties.95 For instance, the commando might
have considered other options, including
warning the captain of Nirvana and its
passengers that deadly force would be used if
violent opposition persisted.96 The commando
also took no effort to distinguish between the
civilians who took part in hostilities and those
who did not.97
Thus, the attack conducted by
commando was directed at the civilians.

the

iii. The commando intended those


civilians to be the object of attack
In Marti case, the ICTY ruled that the use
of indiscriminate weapon was the evidence of
the intention to deliberately attack the civilian
object.98 It can be concluded that an
indiscriminate attack gives rise to the inference
of the perpetrators intent. Moreover, the
intention can also be inferred from the lack of
precautions before and during the attack.99
In this case, considering that the attack
against the passengers was indiscriminate and
94

95

96
97
98

99

The Turkel Commission The Public Commission to


Examine the Maritime Incident of 31 May 2010, Report of
the Commission for Examining the Maritime Incident of
May 31, 2010 - Part One, January 2010, para. 247.
United Nations, Report of the Secretary-Generals Panel of
Inquiry on the 31 May 2010 Flotilla Incident, September
2011, para. 117.
Turkel Commission, supra note 94 at 247.
Moot Problem, para. 29, lines 1-10; para. 34, lines 1-9.
ICTY, Prosecutor v. Marti, IT-95-11-R61 (8 March 1996),
para. 31.
Knut Drmann, Elements of War Crimes Under the Rome
Statute of the International Criminal Court: Sources and
Commentary, 2003, Cambridge University Press, p. 132.

disproportionate and the commando failed to


take any precautions. The commando intended
the civilians to be the object of the attack.
iv. The conduct took place in an
IAC
Submitted in II.3.
v. The commando was aware of the
factual circumstances that established the
IAC
Submitted in II.4.
b.
Gusman
bears
responsibility under Article 28(a)

superior

Gusman is responsible as a superior for the


crime of attacking civilians committed by the
commando since following elements are
satisfied.100
i. Gusman was a military
commander who had effective command
and control over the commando
Gusman was the Commander-in-chief of
the AAF,101 making him effectively have the
highest authority in the military. He established
a commando and appointed Hanson as
commander to carry out the operation.102 Thus,
there was a superior-subordinate relationship
between Gusman and the commando. Hence,
this element was proved.
ii. Gusman should have known
about the commandos crime
This mens rea element recognises that
superiors actual knowledge may be
100

101
102

- 86 -

Rome Statute, Art. 28(a); ICC, Prosecutor v. Bemba, ICC01/05-01/08 (15 June 2009), para. 407.
Moot Problem, para. 2, line 5.
Moot Problem, para. 24, lines 2-4.

Sinh vien va Khoa hoc phap ly so 12


established through circumstantial evidence.103
The should have known standard requires (i)
superior has been negligent in failing to acquire
knowledge of his subordinates crimes104 and
(ii) it incurs the superior more of an active duty
to inquire subordinates conduct,105 regardless
of information availability at the time on the
commission of the crime.106
In this case, Gusman was supposed to
acquire information about the commandos
crime, especially information to put him on
notice of the unlawful acts107 committed by it
or at least the information to make him aware
of the circumstances. Here, he failed to do that.
Thus, Gusman should have known about
the commandos crimes.
iii. Gusman failed to prevent or
punish the commando for their crime
Based on his knowledge duty, Gusman did
not take necessary and reasonable measures to
prevent or repress the commission of the
crime.108
Consequently, Gusman is criminally
responsible as superior for crime of attacking
civilians under Article 8(2)(b)(i).
103

104

105

106

107

108

ICTY, Prosecutor v. Halilovi, IT-01-48 (16 May 2005), para.


66.
Bemba, supra note 100 at 432; ICTY, Prosecutor v. Blaki,
IT-95-14-T (3 March 2000), para. 332.
ICTR, Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T
(21 May 1999), para. 227; O. Triffterer, Commentary on the
Rome Statute of the International Criminal Court (1999),
Nomos Verlag, p. 519.
E. Van Sliedregt, The Criminal Responsibility of Individuals
for Violations of International Humanitarian Law (2003),
T.M.C. Asser Press, p. 186.
ICTY, Prosecutor v. Deli, IT-04-83-T (15 September 2008),
paras. 65-66; ICTY, Prosecutor v. Blaki, IT-95-14-A (29 July
2004), para. 618.
Moot Problem, paras. 24-28.

3.3. Gusman is criminally responsible


for ordering the war crime of excessive
incidental damage under Article 8(2)(b)(iv)
a. Captain Ardent and his troops
committed the war crime of excessive
incidental damage
The
principle
of
proportionality109
prescribes that belligerent parties in war do not
inflict collateral damage that is excessive in
relation to the military advantage with any
hostile action.110 Respect for the environment
is in conformity with the principles of necessity
and proportionality.111
i. Captain Ardent and his troops
launched an attack
Attack means acts of violence against
the adversary.112 It has been accepted that
violence is not of the means, but of the
consequences.113
The incident of oil spills and oil fires ruled
out physical force; however, it evolved a
massive impact on the natural environment:114
thousands of birds found dead, marine turtles
endangered, and a massive reef habitation
affected as they were extremely susceptible to
hydro carbon pollution.115 Those are regarded
as violent consequences.
109
110

111
112
113

114
115

- 87 -

AP I, Art. 51(5)(b); Art. 57.


Janina Dill, Applying the Principle of Proportionality in
Combat Operations, Policy Briefing, University of Oxford,
December 2010, p. 2.
ICJ, Nuclear Weapons case, para. 140.
Rome Statute, Art. 49.
Cordula Droege, Get off my cloud: cyber warfare,
international humanitarian law, and the protection of
civilians, International Review of the Red Cross, Volume 94,
No. 886, p. 557.
Moot Problem, para. 40, line 5.
Moot Problem, para. 41, lines 2-5.

Sinh vien va Khoa hoc phap ly so 12


ii. The attack was disproportionate
The attack caused widespread,
long-term and severe damage to the
natural environment
Widespread is defined to encompass an
area on the scale of several hundred square
kilometres, long-term or long-lasting
means lasting for a period of months, or
approximately a season, and severe is
described to involve serious or significant
disruption or harm to human life, natural and
economic resources or other assets.116
Here, the United Nations Environment
Programme (UNEP) conducted a research on
the impact of the oil spills on the natural
environment and concluded in January 2011
that they could have a major effect on the
massive reef habitation in January 2011.117
Additionally, they brought about deaths of
thousands of birds,118 and endangered the
marine turtles.119 Moreover, the damage was
publicised more than three months after the
incident and still ongoing. According to
prominent public health experts, the air and
maritime pollution would kill approximately
800 Yukulers in the years to come.120
Such damage was clearly
excessive in relation to the concrete and
direct
overall
military
advantage
anticipated

To assess whether the damage is excessive


compared with the military value, the
following method of evaluation is taken into
account: (i) establishing whether the weapon
would cause the effects as a function of its
design; (ii) weighing the military utility of the
weapon against these effects; and (iii)
determining whether the same purpose could
reasonably be achieved by other lawful
means.121
According to United Nations Security
Council, there had been wars using oil as a
means of warfare, which caused serious
damage to the natural environment and
violated international law, for instance, the
Iran-Iraq War of 1980-88, the 1991 Gulf
War.122 Following these precedents, Captain
Ardent ordered to release several million litres
of oil into the sea regardless.123
Initially, his troops discharged oil to stall the
enemy on the sea,124 but the military objective
was not accomplished. He continued to exploit
oil to impede the enemy by causing oil fires,125
even though there might have been different
means to achieve the same purpose, such as the
existence of a standing army the AMA
preparing to defend Yukule.126
The devastation resulted from the attack
was therefore excessive regarding the military
advantage anticipated.
121 Drmann, supra note 99 at 304.
122

116

117
118
119
120

Conference of the Committee on Disarmament,


Understanding relating to Article 1 of the 1976 ENMOD
Convention, UN Doc. A/31/27, 1976.
Moot Problem, para. 41, line 2.
Moot Problem, para. 41, line 4.
Moot Problem, para. 42, line 5.
Moot Problem, para. 42, lines 4-7.

123
124
125
126

- 88 -

Iraqs inflicting environmental damage by causing oil spills


and oil fires in Kuwait was condemned to violate
international law, See UN Security Council, Resolution 687,
3 April 1991, para. 16.
Moot Problem, para. 40, line 5.
Moot Problem, para. 37, lines 1-2.
Moot Problem, para. 39, lines 3-5.
Moot Problem, para. 7, line 2.

Sinh vien va Khoa hoc phap ly so 12


The feasible precautions were
insufficiently taken during the attack
With respect to attacks, certain precautions
shall be taken: (i) taking all feasible
precautions to avoid and minimise incidental
damage; (ii) refraining any attack expected to
cause excessive damage; (iii) giving effective
warning of attacks if permitted;127 (iv)
endeavouring to remove the civilians and
civilian objects; (v) avoiding locating military
objectives within or near densely populated
areas; and (vi) taking the other necessary
precautions for the protected under other
partys control against the military dangers.128
Under UNCLOS, States bordering an
enclosed or semi-enclosed sea should
coordinate the implementation of their rights
and duties with respect to the protection and
reservation of the marine environment.129 The
first oil spill could not restrain the Bereton
naval forces.130 However, Captain Ardent
continued to halt them by utilising oil.131
Nevertheless, no official warning was given
prior to the attack, yet it was launched by the
sea near Port Solferino,132 the capital city of
Yukule.133 During the fire, only Astron soldiers
retreated to the mainland.134
iii. Captain Ardent knew that the
attack would cause disproportion
Knowledge means awareness that a
circumstance exists or a consequence will
127
128
129
130
131
132
133
134

AP I, Art. 57(2).
AP I, Art. 58.
UNCLOS, Art. 123(b).
Moot Problem, para. 38, lines 2-4.
Moot Problem, para. 39, lines 4-5.
Moot Problem, para. 39, lines 4-5.
Moot Problem, para. 6, lines 5-6.
Moot Problem, para. 39, line 6.

occur in the ordinary course of events.135


Captain Ardent meant to take advantage of oil;
therefore, he predicted the negative impact of
such means of warfare to the natural
environment. Hence, the attack was launched
wilfully and in knowledge of circumstances
giving rise to the expectation of excessive
civilian casualties.136
iv. The conduct took place in an
IAC
Submitted in II.3.
v. Captain Ardent was aware of the
factual circumstances that established the
IAC
Submitted in II.4.
Thus, Captain Ardent is criminally
responsible for the war crime of excessive
incidental damage.
b. Gusman bears responsibility as an
orderer under Article 25(3)(b)
In Gbagbo case, the ICC upheld that an
action of a perpetrator satisfying the hereafter
actus reus and mens rea elements could be
accused of criminal responsibility under Article
25(3)(b).
i. Actus reus
Actus reus requires: (i) the perpetrator was
in position of authority,137 (ii) the perpetrator
instructed another to commit an offence,138 and
(iii) his instruction had a direct effect on the
commission of the crime.139
135
136
137
138
139

- 89 -

Rome Statute, Art. 30(3).


Gali, supra note 73 at 59.
Id. at 168.
Id. at 168.
ICC, Prosecutor v. Gbagbo, ICC-02/1-01/11 (12 June 2014),
para. 244.

Sinh vien va Khoa hoc phap ly so 12


Gusman chaired the CMC,140 which
supervised the AMA in Yukule.141 At the time
being reported about the advancement of the
Bereton Navy,142 he had the responsibility to
give orders to his subordinates.143 Moreover,
after the instructions to resort to all resources
available144 and take all measures
possible145 to stall the enemy, one of
Yukulean main resources oil,146 was utilised
immediately for Astron military purpose.

Consequently, Gusman is criminally


responsible for ordering the commission of the
war crime under Article 8(2)(b)(iv).
PRAYER FOR RELIEF
The Prosecutor respectfully requests the
Honourable Court to confirm the charges
against Tony Gusmanof:

ii. Mens rea


Mens rea requires the perpetrator: (i) meant
to instruct another to commit an offence; and
(ii) was aware that the crime would be
committed in the ordinary course of events as
the consequence of his instructions.147
Several
pro-government
magazines
148
statements along with Gusmans declaration
via paper Hashtag Daily149 indicated that he
wilfully let the attack be launched. Besides, his
affirmation of the destruction of Yukule on
the paper implied his negligence in the conduct
of the attack as he strived to use the last resort
in defence of Astrons sovereignty, despite the
extensive destruction of Yukulean natural
environment.
Thus, Gusman has met the requisite
elements of actus reus and mens rea.
140
141
142
143
144
145
146
147
148
149

Moot Problem, para. 2, lines 3-4.


Moot Problem, para. 7, lines 2-3.
Moot Problem, para. 36, lines 1-3.
Moot Problem, para. 36, lines 3-4; para. 39, lines 2-4.
Moot Problem, para. 36, lines 3-4.
Moot Problem, para. 39, lines 3-4.
Moot Problem, para. 4, lines 4-5.
Gbagbo, supra note 139 at 244.
Moot Problem, para. 36, lines 4-7.
Moot Problem, para. 39, lines 1-2.

- 90 -

1. The war crime of intentionally using


starvation of civilians as a method of
warfare;
2. The war crime of intentionally attacks
the civilian population;
3. The war crime of intentionally
launching an attack in the knowledge that
such damage will cause widespread, longterm and severe damage to the natural
environment.
Respectfully submitted,
Prosecutor.

THE 13TH INTERNATIONAL HUMANITARIAN LAW


MOOT COURT COMPETITION
ASIA-PACIFIC REGIONAL ROUND
INTERNATIONAL COMMITTEE OF THE RED CROSS
HONG KONG, 12th 14th MARCH 2015

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR V. MR. GENERAL SMITH


before the International Criminal Court at the Hague
International Committee of the Red Cross (ICRC)
(This Moot Problem is reprinted under permission of the ICRC)

INSTRUCTIONS
1. Proceedings: The hearing takes place
pursuant to Article 61 of the ICC Statute
(confirmation of charges). At this stage, the
Prosecutor has to support each charge with
sufficient evidence to establish substantial
grounds to believe that the person committed
the crime charged. The Accused may object
to the charges and/or challenge the evidence
presented by the Prosecutor.
2. For the purpose of the moot, the hearing
comprises a main speech and a rebuttal for the
Prosecution and a main speech and a
surrebuttal for the Defence (see Moot Rule 12).
3. Facts and evidence: The case is entirely
fictional. The Moot problem includes all the
facts supported by evidence that have been
transmitted to the Defence, as well as facts and
evidence presented by the Defence for the
purpose of the hearing. Teams should confine
themselves to the facts supplied. Neither the
Prosecutor nor the Defence may introduce new
evidence or facts at the hearing (Article 61 (6)
(c) of the ICC Statute is not applicable). Teams
may nonetheless draw reasonable inferences
from the facts. They may also question the
credibility or weight of the evidence. Teams
should not hand anything to judges unless
specifically asked to by a judge.

4. Procedure: The problem is not intended


to raise questions of procedure other than the
rights of the accused pursuant to Articles 66-69
of the ICC Statute. Any other procedural
questions should be ignored.
5. Jurisdiction and admissibility: Counsels
may; if relevant, address any issue regarding
the admissibility of the case.
6. Applicable law: In accordance with
Article 21 of the ICC Statute:
The Court shall apply
a) In the first place, this Statute, Elements of
Crimes and its Rules of Procedure and
Evidence;
b) In the second place, where appropriate,
applicable treaties and the principles and rules
of international law, including the established
principles of the international law of armed
conflict;
c) Failing that, general principles of law
derived by the Court from national laws of
legal systems of the world including, as
appropriate, the national laws of States that
would normally exercise jurisdiction over the
crime, provided that those principles are not
inconsistent with this Statute and with
international
law
and
internationally
recognized norms and standards.

- 59 -

Sinh vien va Khoa hoc phap ly so 12


The Court may apply principles and the
rules of law as interpreted in its previous
decisions.
7. Teams are encouraged to look at the case
law of international and national courts. If
teams rely on decisions of national courts,
these should be leading decisions and teams
should expect to be asked for copies of the
headnote and the portion of the transcript or
judgment referred to in their argument.
FACTS
1. The Republic of Midlands occupies the
north-western corner of a continental landmass.
It shares a border with two other States:
Panema on the east side and Minos on the
south side. These smaller states, with others,
form the Federated Union, an organisation not
unlike the European Union.
2. Midlands has harboured long term
historical (and not unreasonable) claims to a
swath of territory abutting its international
border with Panema. This contested territory is
called Lowlands. The peoples of both States
have a common heritage but have developed
different religious and cultural practices. The
populace of Midlands firmly believes they are,
by reason of religion and culture, superior to
the people of Panema. The people of the
Federated Union tend to be secular and
multicultural.
3. Since the rise to power of President Bono
in Midlands there have been regular border
incidents between Midlands and Panema.
President Bono rose to power on the strength
of his nationalist agenda the centre pieces
being the superiority of the Midlands people

and the return of territory to the east currently


under the control of Panema. On numerous
occasions President Bono spoke publicly about
the Lowlands providing necessary resources
and breathing space for the expansion of
Midlands into a middle-ranking player on the
international scene. He also implied that nonMidlanders were not legitimate occupants of
the Lowlands and should be returning to
Panema. Panema has consistently challenged
President Bonos claims over the Lowlands.
4. The disputed territory of Lowlands
extends the length of the border and eastwards
to the River Merx that flows almost directly
north to south eventually joining the River
Styx. The disputed territory is rich in oil and
gas. The population of the Lowlands was
concentrated in the city of New Troy with a
population of about 100,000 people. The
remaining population of the Lowlands was
about 50,000 who lived on isolated farms and
small mining and farming settlements. At
various times the Federated Union has tried,
unsuccessfully, to have the dispute resolved by
negotiation or referred to the International
Court of Justice. The United Nations has also
actively supported these attempts but Panema
refuses to engage in any attempt to resolve the
dispute, stating the territory rightly belongs to
Panema.
5. Midlands is separated from its southern
neighbour by the River Styx, which is for most
of the border some 200 to 300 metres wide.
The border between Midlands and Panema is
marked by a two metre high chain link border
fence topped with barb wire, a ten metre wide
and two metre deep trench on the Panema side

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Sinh vien va Khoa hoc phap ly so 12


together with a sealed road each side of the
fence and regular border check points
supported by military bases.
6. On 1 July 2013 Midlands invaded
Panema. General Smith is the officer in charge
of the Midlands Armed Forces (MAF) and a
surprise attack drives the Panema Armed
Forces (PAF) back beyond the River Merx at
which point the hostilities reach a stalemate.
The city of New Troy held out for a brief
period but by 12 July 2013 the Midlands army
had gained control of most of the city.
7. A Midlands militia was formed after the
enactment of the Midlands Militia Act 1985.
This Act provides, amongst other things that:
All able-bodied men between
the age of 17 and 45 who were not
members of the armed forces have to enlist
as members of the militia.
Militia members are grouped
into local units corresponding to the
military administrative zones. Members of
the Militia wear a uniform when on duty.
The commanding officer of the
Militia holds the rank of Colonel within
the MAF.
The
commanding
officer
reports to the President when deployed
within the territory of Midlands and to the
most senior army officer above the rank of
Colonel when deployed beyond the
territory of Midlands.
8. As the Midlands Armed Forces were
advancing into the Lowlands, militia units
began assuming control of the territory behind

them. General Smith tasked Colonel White, his


immediate subordinate, to move people from
isolated farms and small settlements to reduce
the opportunities for guerrilla warfare
impacting upon MAF supply lines. Colonel
White directed his forces to drive people from
all small settlements and farms into larger
settlements where they could be more easily
controlled, with the support of the militia under
the authority of Colonel Brown. Initially,
Colonel Brown was able to arrange for the safe
passage of civilians fleeing the territory
through MAF lines into Panema. This became
more difficult when the front line became
firmly established. The militia destroyed many
farm buildings and small settlements.
Buildings and residences that were not
destroyed were often requisitioned and
occupied by the militia as bases or living
quarters. In some cases, members of the militia
organised workers from Midlands to take over
farms, small businesses and mining settlements
left empty in the Lowlands to maintain
production. The result was an emptying of
large areas of the Lowlands of all but Midlands
militia, members of the MAF and workers
from Midlands.
9. After the MAF had taken control,
General Smith left a militia unit in New Troy
to weed out any remaining resistance freeing
his troops for the front line. By 15 July 2013
the militia had replaced the MAF. By then,
over half the towns population had managed
to flee eastwards with what possessions they
could transport. This flood of people increased
as people from the smaller settlements and
farms passed through New Troy with stories of

- 95 -

Sinh vien va Khoa hoc phap ly so 12


being driven from their homes and businesses
by militia.
10. The weeding out of resistance in New
Troy proved difficult because of the town
layout, its terrain and the resistance of
residents, many of whom refused to leave.
Colonel Brown, personally supervising the
control of the city, ordered his militia units to
empty the outlying suburbs of all remaining
inhabitants to prevent any outside support to
the towns armed resistance and reduce the risk
to non-combatants. Buildings around
intersections were flattened to lessen ambush
opportunities and provide open spaces and
fields of fire while those buildings on high
ground were occupied by the militia. The
militia set up camps in a nearby forest some ten
kilometres west of New Troy to receive the
displaced. The process of evacuating the
suburbs began on the morning of the 17 July
2013. People were only allowed to take what
possessions they could carry. Many reported
being told that they were moved to ensure
their security and were to be accommodated in
a safer area for the time being, others heard
you should have fled east, that is where you
belong. During the daylight hours the
movement of people was carried out forcibly
but without excessive violence. All mobile
phones and other electronic communication
devices were seized as a security measure.
Women and children under twelve years of age
were housed in Camp W1, while boys and men
who were deemed non-combatants in Camp
W2, two kilometres away from W1.
Individuals suspected of being part of the
resistance or supporting it were transported to a

third camp, Camp Z, in a isolated setting some


thirty kilometres north west of the town. The
evacuation of the outer suburbs proceeded over
a week. It had the effect of pushing opposing
fighters into those parts of the central business
district that were not under the full control of
militia.
11. Accounts started to appear on social
media about the rape of women and children,
even young boys, be members of the militia in
their homes. Some of these reported incidents
were depicted as gang rapes, particularly
violent and the victims being held one or two
days. Girls as young as 6 years of age were
reported victims, while mothers were assaulted
in front of their children. On one occasion a
hidden mobile phone was used to record and
upload militia talking as they watched their
colleagues rape a 14-year-old girl and her
mother in front of the three teenage boys and
their grandparents. Part of the recorded
conversation referred to an earlier conversation
between Colonel Brown and one member of
the militia that the displaced people should not
wish to come back.
12. General Smith heard about the stories,
and on 21 July 2013 summoned Colonel
Brown. The latter explained that the stories
were Panema propaganda. Colonel Brown
assured him that he had personally been
present at some of the collection points where
people were put on board buses bound to the
camps, and there was no indication that people
had been ill-treated. Nonetheless, Colonel
Brown agreed with General Smith that the
matter should be further investigated.

- 96 -

Sinh vien va Khoa hoc phap ly so 12


13. New accounts continued to be published
in the following days, alleging that women
interned in Camp W1 were subjected to diverse
forms of coercion, including food in exchange
for sexual favours. Several sources mentioned
younger, unmarried women, kept separated
within the camp W1, were offered as brides
to Midlands men and that some twenty of them
were taken to a Midlands town across the
border. A group of women interviewed later by
the town local news channel said that indeed
they were originally from New Troy and had
been evacuated to Camp W1 for a few days,
but had moved to Midlands and settled there on
their own accord.

General Smith took no further action on the


matter.

14. On 13 August 2013 General Smith


called Colonel Brown to a brief meeting in a
lull in the fighting around Old Troy. Old Troy
was a key site northeast of New Troy due in
part to its geographical position and surrounds
as well as being a major road and rail junction.
The remains of a MAF High Command
meeting minutes book (parts of the document
had been destroyed in the fighting) found after
the war recorded that General Smith had
reiterated to Colonel Brown that he had to take
responsibility for the behaviour of the militia,
and that alleged rapes had to be investigated
and offenders punished. According to a witness
present at the same meeting, General Smith
had added that such allegations damage the
justness of the Midlands cause and they
should cease at once. The same witness said
that Colonel Brown had replied: I will see
what I can do, it is a bit embarrassing but good
policy if we want Lowland for our nation.

16. Located on the outskirts of Old Troy was


an archaeological site and museum holding
prized artefacts dating back thousands of years.
In 2005, at the request of Panema, the site was
included on the World Heritage List by the
World Heritage Committee. In the same year,
Panema also sought to register the site and
museum as cultural property under special
protection under Article 8 of the 1954
Convention for the Protection of Cultural
Property in the Event of Armed Conflict.
However, Midlands objected to the
registration, and the request is still pending
with the UNESCO Director General. After
becoming party to the 1999 Second Protocol to
the 1954 Convention in 2011, Panema also
submitted to the Committee for the Protection
of Cultural Property in the Event of Armed
Conflict a request to grant enhanced protection
to the site and the museum. After considering
the request, the Committee decided to postpone
its decision on the request until Panema adopts

15. At Old Troy on 15 August 2013 after


heavy fighting General Smith accepted the
surrender of Panema army forces and ordered
everybody to assemble captured soldiers in
the towns football stadium, and civilians in the
area on the level ground outside the town
walls. General Smith directed that all captured
soldiers, as well as men and women of military
age within the assembled civilians, be taken as
prisoners. Members of the PAF and civilian
men were taken to Camp Z, while women were
separated and loaded onto trucks and placed
under the guard of Colonel Browns militia.

- 97 -

Sinh vien va Khoa hoc phap ly so 12


adequate domestic legal and administrative
measures recognising its exceptional cultural
and historic value and ensuring the highest
level of protection, as required under Article
10 of the Protocol. The request is due to be reconsidered at the next session of the
Committee.
17. The museum is located on high ground
providing sweeping views across the
surrounding fields while also overlooking the
archaeological site below. Panema artillery was
dug into the raised ground around the museum
which commanded the northern access to Old
Troy. The museum was largely destroyed and
the site shelled as the battle for Old Troy raged.
Both sides blamed the other for the destruction.
General Smith toured the destroyed museum
and the archaeological site after the fall of Old
Troy. He ordered one of his subordinate, Major
Adams, to protect the historical artefacts. On
18 August 2013, Major Adams informed the
international media that the Midlands army had
seized the site but investigations revealed that
most of the historical artefacts had been
destroyed.

rapes when she visited Panema last week.


"Rape is used as a weapon to terrorize
individual women and girls, and also to
terrorize their families and to terrorize entire
communities," she said in an interview with the
UN News Service. "No woman or girl is safe."
In the same article she also reported that every
woman or girl she spoke to had either endured
sexual assault herself, or knew of someone
who had been attacked.

18. On 24 August 2013 UN News Centre


article titled "UN adviser says rape in the
Lowlands with impunity" reported:

19. On the advice of General Smith,


Midlands authorities invited Paula Thisman to
visit Camp W1 in Lowlands. She was not
allowed to have private interviews with the
displaced for security reasons, but was able to
talk with some of the women in the presence of
the camp commander a subordinate of
Colonel Brown. The camp commander
recognized that there had been a few incidents
but that the matter had been duly handled with
the replacement of those involved. That was
confirmed by the women to whom P. Thisman
could talk with. One of the women interviewed
by P. Thisman later told ICC investigators that
the camp commander had promised the women
that they would be under his personal
protection if they confirmed that they were not
aware of recent cases of sexual violence.

Armed militias in the Lowland region are


continuing to rape women and girls with
impunity, an expert from the United Nations
said today on her return from a mission to the
region. Paula Thisman, the UN adviser on
violence and sexual exploitation, said she heard
dozens of harrowing accounts of sexual
assaults including numerous reports of gang-

20. The sentence condemning sexual


violence in a draft UN General Assembly
resolution calling for an end to the hostilities
was deleted after successful representations by
the Midlands government to the States
sponsoring the resolution following P. Thisman
draft report circulated among Members of the
Security Council.

- 98 -

Sinh vien va Khoa hoc phap ly so 12


21. On 29 August 2013, Panema, having
recovered from the suddenness of Midlands
attack and having fully mobilised its military
resources, launched a fierce counter-attack
driving the MAF back west of New Troy and
Old Troy. In the partial rout of the Midlands
army and militia Colonel Brown was killed.
22. As the Panema armed forces drove
Midlands forces back, security officials from
Panama obtain information from captured
Midlands soldiers and militiamen that included
statements we took the historical artefacts
back to Midlands.they are prizes of
war.they were not destroyed. The
statements were obtained with the promise that
those who provided information would not be
prosecuted and could benefit from early release
and repatriation. Major Adam, also captured,
said General Smith let us take them in
fact, some of the most valuable ones were
taken to his property in Midlands before I
made any announcement about them being
destroyed when subsequently interviewed
by representatives from the office of the
prosecutor of the ICC. He required complete
anonymity if he was to give evidence before
the Court because he feared for the security of
his family if anyone found out he had provided
information incriminating his superiors. He is
thereafter referred to as Witness P. The ICC
representatives from the office of the
prosecutor also found that Witness P had been
disciplined and demoted in the early stages of
the war for wilful disobedience.

for a final settlement of the dispute are currently


being negotiated.

24. After an investigation authorized by the


pre-trial Chamber under Article 15 and the
issuance of a summons by the Pre-trial
Chamber under Article 58, General Smith
decided to voluntarily appear before the Court
for the confirmation of the charges.
25. The Prosecutor intends to seek the trial of
General Smith on the following charges:

23. On 15 September 2013, Midlands and


Panema signed a ceasefire agreement. The terms
- 99 -

i In respect of the acts of sexual


violence committed between the 1 July
2013 and 15 September 2013, the crime
against humanity of rape, sexual slavery,
enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of
sexual violence of comparable gravity
within the meaning of article 7(1)(g) and
28 (b) of the ICC Statute.
ii In respect of the transfer and
displacement of the civilian population
between the 1 July 2013 and 15 September
2013, the war crime of unlawful
deportation or transfer or unlawful
confinement within the meaning of
Article 8(2)(a)(vii) and 25(3)(b) of the
ICC Statute.
iii In respect of the destruction,
seizing and looting of cultural property
between 15 and 18 August 2013, the war
crime of destroying or seizing the
enemys property unless such destruction
or seizure be imperatively demanded by
the necessities of war within the meaning
of Article 8(2)(b)(xiii) and 25(3)(a) of the
ICC Statute.

Sinh vien va Khoa hoc phap ly so 12


26. Midlands notified the ICC that it does
not recognize the jurisdiction of the Court over
the situation, and that, in addition, the Court
has no jurisdiction over its national, General
Smith, since Midlands is not a party to the
Statute, even if he appears voluntarily before
the Court. Midlands also challenges the
admissibility of the case on the ground that
the case is not of sufficient gravity to justify
further action by the Court pursuant to Article
17(1)(d) and Article 19 of the Statute.

28. The Pre-trial Chamber issued an order


pursuant to Rule 58 (2) of the Rules of
Procedure and Evidence to join the challenge
to admissibility and the request to exclude
evidence to the confirmation proceeding.
29. The Pre-trial now holds a hearing to
confirm the charges on which the Prosecutor
intends to seek trial. The hearing is held in the
presence of the Prosecutor and General Smith,
as well as his counsel

27. General Smith, on the basis of Article


69, has requested that any evidence or
information obtained from Witness P should be
excluded since the admission of such evidence
or information would be prejudicial to or
inconsistent with his right to a fair and
impartial trial.

- 100 -

Sinh vien va Khoa hoc phap ly so 12


PARTICIPATION TO TREATIES: At all material times, the following treaties
were in force for the States indicated ():
Midlands Panema

1949

Geneva Conventions

1977

Additional Protocols I and II

1954

Convention for the Protection of Cultural

Property in the Event of Armed Conflict


1954

Protocol to
Protection

the

Convention

for

Second
Protocol
Convention of

to

the

of Cultural Property in the Event of Armed


conflict
1999

Minos

the

Hague

1954 for the Protection of


Property in the

Cultural

Event of Armed Conflict


1998

Statute of the International Criminal Court

1984

Convention against Torture

2006

International
Protection of

Convention

All
Persons
Disappearance

1972

from

for

the

Enforced

Convention Concerning the Protection of


the
World Cultural and Natural Heritage

1969

Vienna Convention on the Law of Treaties

- 101 -

Sinh vien va Khoa hoc phap ly so 12

ANNEX: MAP
Map 1: The continental landmass

Not to scale
Map 2: The Lowlands Midlands/Panema border

Not to scale

- 102 -

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. GENERAL SMITH


MEMORIAL FOR THE DEFENDANT
L NGC BO TRANG
TRN BCH NGC
The factors guiding the gravitys assessment
include the scale, nature, manner of commission
of the crimes and their impact.5

PRELIMINARY ISSUES
1. Jurisdictions
Vienna Convention implies that obligations
or rights created by a treaty are put on a third
State only in the event of its consent.1 If the
ICC tries an individual for a crime, that
individuals home State is subject to obligation
under the Statute, including the obligations
under Article 89, Article 93, Article 109, and
Article 117. None of these obligations and the
exercise of criminal jurisdiction against an
accused individual by that individuals home
State apply to non-party State.2
Midlands is not a party to the Rome
Statute;3 additionally, his challenging the
jurisdiction of the Court4 entails its lack of
consent in being bound by the law. Thus, the
Rome Statute has no jurisdiction over the
situation between Midlands and Panema.
2. Admissibility

However, the sentence condemning sexual


violence in a draft UN General Assembly
resolution was deleted,6 showing an
insignificant impact on the civilian population.
The transfer of people was to reduce the risk to
non-combatants.7 The archaeological site and
museum were destroyed for military necessity,
which did not create any serious impact on the
civilian population.8
The gravity of the crime in the third charge
can be adjusted by long-term physical,
psychological and emotional suffering of the
victims,9 and damage to numerous religious
and educational institutions and historic
monuments.10 However, the seizure of
artefacts did not constitute sufficient gravity in
this charge.

3
4

United Nations, Vienna Convention on the Law of Treaties,


23 May 1969, United Nations, Treaty Series, Article 34.
Bartram S. Brown, U.S. Objections to the Statute of the
International Criminal Court: A Brief Response, 31 New
York University Journal of International Law and Politics
855 (1999), 870.
MP, 2.
MP, 26.

6
7
8
9

10

- 103 -

International Criminal Court (ICC), Situation on


Registered Vessels of Comoros, Greece and Cambodia Article 53(1) Report, 6 November 2014, 22.
MP, 20.
MP, 9-10.
MP, 17.
Prosecutor v. Milorad Krnojelac, ICTY, Case no. IT-97-25,
(15 March 2002), 512.
Prosecutor v. Pavle Strugar, ICTY, Case no. IT-01-42, (31
January 2005), 460.

Sinh vien va Khoa hoc phap ly so 12


Subsequently, the case is not grave enough
to be admitted by the Court pursuant to Article
17(1)(d) and Article 19.
EVIDENTIARY MATTERS
1. Standard of proof
The Prosecutor may submit evidence
relevant to the case, pursuant to Article 64 and
may rule on the relevance or admissibility of
any evidence, taking into account, inter alia,
the probative value of the evidence and any
prejudice that such evidence may cause to a
fair trial or to a fair evaluation of the testimony
of a witness, in accordance with the Rules of
Procedure and Evidence.11
2. Admissibility of Evidence
Evidence is determined to have low
probative value if the Defence does not know
the witness's identity and the entire statement,
which can be challenged.12 It is proposed that
the rights of the accused must be secure under
Article 6913 and that blanket measure unduly
infringes upon the accuseds right to a fair and
public hearing in Article 68.14 In Tadi case,
the ICTY explained that any curtailment of the
accuseds right to a public hearing is justified
by a genuine fear for the safety of the
witness.15 The fear is created by protection of

11

12

13
14

15

UN General Assembly, Rome Statute of the International


Criminal Court (last amended 2010) (Rome Statute),
Article 69.
Prosecutor v. Bahar Idriss Abu Garda, ICC, Case no. ICC02/05-02/09, (8 February 2010), 51.
MP, Instructions, 4.
Prosecutor v. Germain Katanga and Mathieu Ngudjolo
Chui, ICC, Case no. ICC-01/04-01/07, (Katanga) (9
December 2009), 4.
Joanna Pozen, Justice Obscured : the Non-disclosure of
Witnesses' Identities in ICTR Trials, New York University

his identity from disclosure to the public and


the media.16 Furthermore, in Gbagbo case, to
counterbalance the disadvantageous position of
the Defence, the Chamber stated that they
might decline to confirm allegations that are
supported only by anonymous witness
statements.17 Evidence can be excluded if
found that its probative value is outweighed
by the need to ensure a fair trial.18
Witness P acquired complete anonymity,
which may cause difficulties to the Defence
because he or she was deprived of the
opportunity to challenge the probative value of
the evidence. In fear for the security of his
family for his providing information
incriminating his superiors, witness P
depended on representatives from the Office of
the Prosecutor of the International Criminal
Court (ICC).19 Thus, his statements might
have been influenced by that dependency.20 In
addition, the statement given by Witness P was
incomplete ("entire" is only used before a
noun).21
Hence, any evidence or information
obtained from Witness P should be excluded.
NATURE OF ARMED CONFLICT

16
17

18

19
20
21

- 104 -

Journal of International Law and Politics, 2005-2006,


Volume 38, 292.
Ibid. at 293.
Prosecutor v. Laurent Gbagbo, ICC, Case no. ICC-02/1101/11 (Gbagbo) (3 June 2013), 34.
Prosecutor v. douard Karemera et al., ICTR, Case no. ICTR98-44 (25 January 2008), 9.
MP, 22.
Katanga (30 September 2008), 166.
MP, 22.

Sinh vien va Khoa hoc phap ly so 12


An international armed conflict existed
between Midlands and Panema from 1 July
2013 to 15 September 2013.22
SUBSTANTIVE MATTERS
1. General Smith (Smith) is not
criminally responsible as a military
commander for the crime against humanity
of rape under Article 7(1)(g)(i)
1.1 Although there was rape committed
by Midlands militia, the conduct was not a
widespread or systematic attack directed
against the civilian population
The Rome Statute construes attack directed
against a civilian population as a course of
conducts involving the multiple commission of
rapes against any civilian population, pursuant
to a State or organizational policy to commit
such attack.23 An attack which is planned,
directed or organised - as opposed to
spontaneous or isolated acts of violence - will
satisfy this criterion.24 Widespread is defined
as a massive, frequent, large scale action,
carried out collectively with considerable
seriousness and directed against a multiplicity
of victims.25 Systematic refers to the
organised nature of the acts of violence and the
recurrence of similar criminal conduct on a
regular basis.26 It involves a pattern or

methodical plan27 that is thoroughly


organised and following a regular pattern.28
The Prosecution relies heavily on the UN
article with regard to key elements of the case,
including the contextual elements of crimes
against humanity. Such pieces of evidence
cannot in any way be presented as the fruits of
a full and proper investigation by the
Prosecution in accordance with Article 54(l)(a).
Although the UN article may be useful
introduction to the historical context of a
conflict situation, it does not usually constitute
a valid substitute for the type of evidence that
is required to meet the evidentiary threshold for
the confirmation of charges.29
In this case, accounts of rape on social
media in a temporary amount of time could not
substantiate enough grounds for a massive,
frequent and large scale action, similarly, a
widespread attack.30 Additionally, Colonel
Browns statement of rape as a good policy
and Smiths taking no further action on the
matter are not enough to confirm the
systematic character of the attack because the
matter of rape had been duly handled with the
replacement of those involved, which
disproved a deliberate attempt to target a
civilian population.31
1.2. Mens rea

22
23
24

25

26

MP, 6.
Rome Statute, Article 7(2)(a).
Prosecutor v. Jean-Pierre Bemba Gombo, ICC, Case no. ICC01/05-01/08, (Bemba) (15 June 2009), 81.
Prosecutor v. Jean-Paul Akayesu, ICTR, Case no. ICTR-96-4,
(Akayesu) (2 September 1998), 580.
Prosecutor v. Duko Tadi, ICTY, Case no. IT-94-1, (Tadi)
(7 May 1997), 648; Prosecutor v. Dragolijub Kunarac et
al., ICTY, Case no. IT-96-23 & IT-96-23, (Kunarac) (22
February 2011), 429.

The material element is satisfied provided


with intent and knowledge when committing
27
28
29
30
31

- 105 -

Tadi (7 May 1997), 646, 648.


Akayesu (2 September 1998), 580.
Gbagbo (3 June 2013), 35.
MP, 11, 13.
Tadi (7 May 1997), 653.

Sinh vien va Khoa hoc phap ly so 12


the crime. With knowledge of the attack
which pertains to the knowledge of the attack
by the alleged direct perpetrator,32 namely
Midlands militia and Smith. In this case, the
militia must be aware that a widespread or
systematic attack directed against a civilian
population was taking place and that their
action was part of the attack.33 Intent is inferred
if the perpetrator means to engage in the
conduct, and to cause to the consequence or is
aware that it will occur in the ordinary course
of events.34
In this case, on 21 July 2013, that Colonel
Brown ("Brown") assured his presence at some
of the collection points indicated no illtreatment towards people.35 Hearing about the
existence of rape, Smith summoned Brown for
investigation, then, in a brief meeting, Smith
reiterated to Brown that he had to be liable for
the behaviour of the militia and that rapes had
to be investigated and offenders had to be
punished. After that, the matter of rape was
duly handled with the replacement of those
involved.36 This statement of the camp
commander was confirmed by the women
interviewed by Paula This man.37 In his efforts,
as the ordinary course of events, the sentence
condemning sexual violence in a draft UN
General Assembly resolution calling for an end
to the hostilities was deleted with the
32
33

34
35
36
37

Bemba (15 June 2009), 89.


Prosecutor v. Tihomir Blaki, ICTY, Case no. IT-95-14,
(Blaki) (29 July 2004), 124.
Rome Statute, Article 30(2).
MP, 12.
MP, 19.
MP, 19.

contribution of the representations by the


Midlands government.38 Accidental acts of the
militia and no evidence proving their
knowledge and intention to commit the
systematic and widespread attack directed
against the civilian population disproved his
knowledge.
Thus, the crime committed was not in the
knowledge and intention of Smith and
Midlands militia.
1.3. Smith is not liable as a commander
or superior
Smith has taken all necessary and
reasonable measures within his material ability
to prevent, repress and submit the matters to
competent authorities.
After hearing about the stories of rape,
Smith gathered Brown for explanation. In the
other meeting, Smith ordered Brown to take
responsibility for the behaviour of the militia,
requested investigation about the matter and
punishment for offenders. Subsequently, it was
confirmed that a few incidents of rape had been
duly handled by replacing those involved.
Furthermore, the sentence condemning
sexual violence in the draft UN General
Assembly resolution calling for an end to the
hostilities was deleted with the participation of
Members of the Security Council, which
effectively excluded Smith from completing
his other duties of punishing his subordinates39
over the crime or submitting the matter to
competent authorities for investigation and
38
39

- 106 -

MP, 20.
Prosecutor v. Dario Kordi and Mario erkez, ICTY, Case no.
IT-95-14/2, (Kordi) (26 February 2001), 446.

Sinh vien va Khoa hoc phap ly so 12


prosecution.40 Therefore, Smith has fulfilled
his duties as a military commander.
Consequently, Smith is not guilty as a
military commander for the crime against
humanity of rape under Article 7(1)(g)(i).
2. Smith is not criminally responsible as
an orderer for the war crime of unlawful
transfer under Article 8(2)(a)(vii)
2.1. The transfer of Lowlands civilian
population was lawful
GC IV allows the Occupying Power to
undertake total or partial evacuation of a given
area if the security of the population or
imperative military reasons so demand.41 Here,
Midlands, as the Occupying Power of
Lowlands, undertook lawful evacuations.
Evacuation is a major instrument of
humanitarian protection,42 especially in case of
besieged or encircled areas where the
population may have to be evacuated to
hospitals or safety zones or neutralised zones.43
Safety is intended to preclude the location of
evacuation camps in the vicinity of military
objectives, where they could be subject to
attack.44 Regarding the case, Midlands forces
were trying to isolate the resistance forces by
encircling the city of New Troy.45 As a result,
the civilians of New Troy found themselves
stuck in middle of the fire and needed
measures taken by the authority to secure their

safety.46 Hence, the evacuations of the


population for security reasons undertaken by
Midlands forces were justified. That the
evacuations camps located in a proper distance
from the battlefield also satisfied the criterion
of safety zones.
Military necessity is another lawful ground
to undertake evacuations.47 Military necessity
is defined as an urgent need, admitting no
delay, for the taking by a military commander,
of measures which are indispensable for
forcing as quickly as possible the complete
surrender of the enemy by means of regulated
violence, and which are not prohibited by the
laws of war.48 Assessing whether a military
necessity exists is highly influenced by military
development and political loyalties.49 In this
case, the situations in Lowlands provided
military necessities for Midlands forces to
undertake the evacuations. Firstly, facing the
potential guerilla warfare arising from the
countryside, the MAF and militia evacuated
people into larger settlements.50 Secondly, the
resistance's movement in New Troy made it
difficult for the militia to assume control of the
city and the civilians apparently supported the
resistance.51 The evacuations therefore helped
the militia achieve the military purpose of
isolating the enemies and also secure the safety
of the civilians.52 After the evacuations,
46
47

40
41

42
43
44

45

Rome Statute, Article 28(a).


International Committee of the Red Cross (ICRC), Geneva
Convention IV (GC IV), 12 August 1949, Article 49.
GC IV, Article 38, Article 49.
GC IV, Article 17, Article 18
ICRC, Y. Sandoz, C. Swinarski and B. Zimmerman (eds),
Commentary on the Additional Protocols, 1987, 1387.
MP, 10.

48

49

50
51
52

- 107 -

MP, 10.
GC IV, Article 49.
US Military Tribunals in Nuremberg, Hostages Trials (19
February 1946), 646.
Humanitarian Law Consultancy, Burundis Regroupment
Policy, a Pilot-study on Its Legality, Humanitarian Law
Consultancy, 1997, 17.
MP, 8.
MP, 10.
MP, 10.

Sinh vien va Khoa hoc phap ly so 12


opposing fighters were pushed into the central
districts and not provided with any outside
support.53 Hence, the evacuations were
justified by military necessities.

they were deemed to pose potential threat to


the security of Midlands and therefore
Midlands, at its discretion, took appropriate
measures to safeguard its security.59

Consequently, the forcible transfer taking


place in Lowlands was lawful.

Article 43 of GC IV provides that the


decision to take measures of detention against
civilians must be reconsidered as soon as
possible by an appropriate court or
administrative board.60

2.2 There was no unlawful confinement


in Lowlands
Civilians are entitled to the rights and
privileges set forth in GC IV.54 However, there
are instances in an armed conflict whereby
certain of those rights may be temporarily
restricted or suspended. The internment of
civilians is necessary and justified in order to
safeguard the security of the State, partys own
troops and prevent espionage, sabotage and
intelligence with the enemy Government or
enemy nationals.55 The decision of whether a
civilian constitutes a threat to the security of
the State is largely left to its discretion.56
In New Troy, only individuals suspected to
be part of the resistance or supporting it were
transported to Camp Z - an internment camp.
Others civilians were housed in other camps
and were not deprived of liberty.57 In Old Troy,
apart from members from the PAF taken as
prisoners of war, civilian men within the
military age were also interned.58 The
internment of these civilians was necessary as
53
54
55

56

57
58

MP, 10.
GC IV, Art. 27.
GC IV, Article 42; Jean S. Pictet (ed) (1960), ICRC
Commentary on GC IV, p.202; Korematsu v. United States,
323 U.S. 214 (1944).
Prosecutor v. Zejnil Delali, ICTY, Case no. IT-96-21, (16
November 1998), 583.
MP, 10.
MP, 15.

Regarding the situations of war in New


Troy and Old Troy, it was impossible to
reconsider these measures in the given time as
Midlands could not establish any appropriate
court of administrative board.61 Furthermore,
with the rapid counter-attacks by Panema,
these procedural measures were impossible to
be complied by Midlands authority.62
Consequently, the confinement in Lowlands
was lawful.
2.3. Alternatively, even if all the
elements of the alleged crime were fulfilled,
Smith bears no criminal responsibility as an
orderer under Article 25(3)(b)
The actus reus requires that the instruction
from the orderer directly affected the
commission of the crime.63 In this case, Smith
only left Brown at New Troy to weed out the
remaining resistance and no specific
instructions were given.64 His instructions
hence had no effect on the undertaking of

59
60
61
62
63
64

- 108 -

GC IV, Article 27.


Kordi (26 February 2001), 276.
MP, 10, 15.
MP, 21.
Gbagbo (12 June 2014), 244.
MP, 10.

Sinh vien va Khoa hoc phap ly so 12


forcible transfers in the city committed by the
militia.
Mens rea requires the perpetrator: (i) meant
to instruct another to commit an offence; and
(ii) was aware that the crime would be
committed in the ordinary course of events as
the consequence of his instructions.65
Here, Smith expressed no intent to instruct
his subordinates to commit the transfer. He
only ordered to undertake evacuations and
reasonable measures to achieve the military
purpose.66 He even personally summoned
Brow to check the transfer.67
An individual in a position of authority
orders an act or omission with the awareness of
the substantial likelihood that a crime will be
committed in the execution of that order.68 In
this case, regarding the tasks he gave to his
subordinates, Smith was not aware that a crime
will be committed.
Consequently, Smith could not be held
individually responsible for ordering the
commission of the crime under Article
8(2)(a)(vii).
3. Smith is not criminally responsible for
committing the war crime of destroying or
seizing enemys property though another
person under Article 8(2)(b)(xiii)

3.1. Midlands forces did not commit


unlawful acts causing seizure of property of
the adverse Party
The actus reus of the crime is not satisfied:
the seized property was not property of a
hostile party.70
This crime requires the property belong to
individuals or entities aligned with a party to
the conflict adverse or hostile to the
perpetrator,71 excluding the property belonging
to either nationals of the belligerent itself.72
The nationality of the victim of the destruction
and seizure has to be determined.73 Property
found within the national territory forms a part
of cultural heritage of that State.74
Here, Midlands has harboured long term
historical and not reasonable claims to
Lowlands,75 where the archaeological site and
the museum located. Furthermore, the people
of both States have a common heritage.76
Throughout the history of sovereignty dispute
over Lowlands, it cannot be determined that
the museum and the historical artefacts were
found in Panema and belong to Panema.

70

71
72

Under international humanitarian law, not


every seizure or destruction is prohibited.69
73
74
65
66
67
68
69

Gbagbo (12 June 2014), 244.


MP, 8, 10, 15.
MP, 12.
Blaki (29 July 2004), 42.
Knut Drmann, Elements of War Crimes under the Rome
Statute of the International Criminal Court: Sources and
Commentary, 2003, Cambridge University Press, 250.

75
76

- 109 -

ICC, Elements of Crimes (Elements of Crimes), 2011,


Article 8(2)(b)(xiii).
Katanga (30 September 2008), 310.
Caroline Ehlert, Prosecuting the Destruction of Cultural
Property in International Criminal Law: With a Case Study
on the Khmer Rouges Destruction of Cambodias Heritage,
Martinus Nijhoff Publishers (2013), 128.
Ibid. at 128.
UNESCO, Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property, 823 UNTS 231, 10 Intl
Legal Materials 289 (1971), Article 4(b); Timothy Lim,
Hector MacQueen, Calum Carmichael, On Scrolls, Artefacts
and Intellectual Property, A&C Black, 2001, 145.
MP, 2.
MP, 2.

Sinh vien va Khoa hoc phap ly so 12


3.2. Midlands forces did not commit
unlawful acts causing destruction of property
of the adverse Party
The following elements are not fulfilled: (a)
such property was the property of a hostile
party; and (b) such destruction was not justified
by military necessity.77
The ownership of the museum and the
artefacts
were
submitted
in
the
abovementioned section.
Military necessity means doing what is
necessary to achieve a war aim.78 It sanctions
measures by an occupant necessary to protect
the safety of his forces and to facilitate the
success of his operations.79 Midlands control
of Old Troy is imperatively demanded since
Old Troy was a key site due to its geographical
position and surrounds as well as being a major
road and rail junction.80 However, Panema
artillery was dug into the raised ground around
the museum.81 Therefore, it is permissible to
destroy the museum, whose destruction is
incidentally unavoidable by the armed conflicts
of the war.82

77
78

79

80
81
82

Elements of Crimes, Article 8(2)(b)(xiii).


Verri, Pietro, Dictionary of the International Law of Armed
Conflict, Geneva: International Committee of the Red
Cross, 1992, 75.
United States, Trial of War Criminals before the Nuremberg
Military Tribunals under Control Council Law No. 10:
Volume XI, United States Government Printing Office,
Washington, 1950, 1253.
MP, 14.
MP, 17.
United States, Trial of War Criminals before the Nuremberg
Military Tribunals under Control Council Law No. 10:
Volume XI, United States Government Printing Office,
Washington, 1950, 1253.

Aside from the Elements of Crimes, Article


8(2)(b)(xiii) does not apply to incidental
destruction of civilian property during an attack
specifically directed at a military objective.83
What turns cultural property into a military
objective is ultimately its use.84 Here, Panema
artillery was dug into the raised ground around
the museum which commanded the northern
access to Old Troy.85 According to the AP I,
the museum was not used as a military
objective since its destruction would not offer a
definite military advantage.86 Its destruction
was unavoidable collateral damage from the
attack directing at the artillery during the battle.
Accordingly, this provision cannot be applied.
In conclusion, the destruction of enemys
property was justifiable by military necessity,
and thus lawful.
3.3. Alternatively, even if the aforesaid
elements of the alleged crime were fulfilled,
Smith must not be held guilty on the basis of
individual criminal responsibility under
Article 25(3)(a)
The mens rea requires that the suspect must
satisfy the subjective elements of the crimes,87
which are intent to destroy and seize the
property and knowledge that his action or
omission will cause the destruction and seizure
of the protected property under Article 30.88
83
84

85
86
87

88

- 110 -

Katanga (30 September 2008), 312.


Jean-Marie Henckaerts, New Rules for the Protection of
Cultural Property in Armed Conflict, International Review of
the Red Cross, No. 835, 1999.
MP, 17.
AP I, Article 51.
Prosecutor v. Bosco Ntaganda, ICC, Case no. ICC-01/0402/06, (9 June 2014), 121.
Katanga (30 September 2008), 315.

Sinh vien va Khoa hoc phap ly so 12


Regarding
abovementioned
military
necessity, Smith did not intend to destroy the
museum since it was not a military objective.89
Moreover, ignorance of the facts may be an
excuse.90 Article 27 of the Hague states that the
besieged is of duty to indicate the presence of
buildings dedicated to historic monuments by
distinctive and visible signs, which shall be
notified to the enemy beforehand.91 Especially,
cultural property may bear a distinctive
emblem so as to facilitate its recognition.92 In
this case, there were no distinctive and visible
signs indicating the presence of the museum or
the archaeological site. Therefore, Smith did
not know the attack would lead to the
destruction of the museum.
Furthermore, there could be no liability
whatever for the misdeeds if any acts
committed by soldiers in contravention of
instructions must always be considered as
personal acts.93 After seizing the site, Smith
ordered one of his subordinate, Major Adam,
to protect the historical artefacts.94 However,
the captured soldiers and militiamen admitted
that they took the artefacts back to Midlands as
89
90
91

92

93

94

MP, 17.
Knut Drmann (2003), 29.
International Conferences (The Hague), Hague Convention
(IV) Respecting the Laws and Customs of War on Land and
Its Annex: Regulations Concerning the Laws and Customs of
War on Land (The Hague), 18 October 1907, Article 27.
UN Educational, Scientific and Cultural Organisation
(UNESCO), Convention for the Protection of Cultural
Property in the Event of Armed Conflict, 14 May 1954,
Article 6.
Thomas H. Youmans (U.S.A.) v. United Mexican States,
Decision of 23 November 1926, Reports of International
Arbitral Awards, vol. IV, 116. United Nations, Reports of
International Arbitral Awards: Louis B. Gordon (U.S.A.) v.
United Mexican States, 2006, 591.
MP, 17.

prizes of war,95 hence, excluding the Smiths


intent to seize the historical artefacts and
knowledge that they would be seized by
Smith's subordinates.
Therefore, the mens rea is not satisfied.
Consequently, Smith could not be held
responsible for the war crime of destroying or
seizing enemys property through another
person under Article 8(2)(b)(xiii).
PRAYER FOR RELIEF
The Defendant respectfully requests the
Honourable Court to decline to confirm the
charges under Article 7(1)(g)(i), Article
8(2)(a)(vii) and Article 8(2)(b)(xiii) against
Smith.
Respectfully submitted,
Defendant.

95

- 111 -

MP, 22.

Sinh vien va Khoa hoc phap ly so 12

PROSECUTOR v. MR. GENERAL SMITH


MEMORIAL FOR THE PROSECUTOR
L NGC BO TRANG
TRN BCH NGC
issues of the nature, manner and impact of
the crimes.5

PRELIMINARY ISSUES
1. Jurisdictions
In Ntaganda case, the International
Criminal Court (ICC) held that a crime falls
within the Court's jurisdiction if it: (i) is
included in Article 5; (ii) was committed after
the entry into force of the Rome Statute; (iii)
was committed on the territory of a State Party
to the Statute.1
Here, the crimes were committed after
Midlands invaded Panema on 1 July 2013.2
The crimes of rape, unlawful transfer and
seizure of property occurred in Lowlands
belonging to Panema, a State Party to the
Rome Statute.3
Thus, the ICC has jurisdiction over the
situation between Midlands and Panema.

Here, individual women, girls, their families


and entire communities were terrorised by
rape,6 and almost 50,000 people were
transferred unlawfully.7 In Joki case, the
ICTY found that shelling property inscribed on
the World Heritage List is not only against
the history and heritage of the region,8 but also
against the cultural heritage of humankind.9
Here, the archaeological site included on the
World Heritage List was shelled, the
museum was destroyed and prized artefacts
dating back thousands of years were seized.
Subsequently, the case is of sufficient
gravity within the meaning of Article 17(l)(d),
thus admissible.
EVIDENTIARY MATTERS

2. Admissibility

1. Standard of proof

The case brought before the Court is


inquired to have sufficient gravity,4 which is
critically assessed by the quantitative and
qualitative elements; the former refers to the
number of victims while the latter concerns
1

2
3
4

Prosecutor v. Bosco Ntaganda, ICC, Case no. ICC-01/0402/06, (Ntaganda) (13 July 2012), 8.
Moot Problem (MP), 6.
MP, 1.
UN General Assembly, Rome Statute of the International
Criminal Court (last amended 2010) (Rome Statute),
Article 17(1)(d).

The Prosecution establishes substantial


grounds to believe that General Smith
(Smith) committed charged crimes.10 The
5

6
7
8

10

- 112 -

Prosecutor v. Bahar Idriss Abu Garda, ICC, Case no. ICC02/05-02/09, (8 February 2010), 30.
MP, 11, 13, 18.
MP, 9.
Prosecutor v. Palve Strugar, ICTY, Case no. IT-01-42, (31
January 2005), 327.
Prosecutor v. Miodrag Joki, ICTY, Case no. IT-01-42,
(Joki) (18 March 2004), 51.
Rome Statute, Article 61(5).

Sinh vien va Khoa hoc phap ly so 12


Prosecution offers concrete and tangible proves
demonstrating a clear line of reasoning
underpinning its specific allegations, beyond
mere theory or suspicion.11 The Honourable
Court should make an assessment of the case
as a whole.12

recording contents of the hidden mobile


phone.19
NATURE OF ARMED CONFLICTS,
APPLICABLE LAW AND BELLIGERENT
NEXUS
1. Nature of the armed conflict

2. Admissibility of Evidence
ICC poses the possibility to use statements
from anonymous witnesses.13Anonymous
hearsay
evidence
corroborating
other
14
evidence does not make it inadmissible but
its probative value.15

In Lubanga case, the ICC held that an


international armed conflict (IAC) takes
place between two or more States.20 Hence, the
armed conflict between Midlands and Panema
is an IAC.

Here, although Major Adam anonymously


acted under the name of Witness P, his
statements corroborated Midlands soldiers and
militiamens, implying the seizure of some
artefacts.16 Thus, Defenses request for the
exclusion of evidence and information
obtained from Witness P should not be
accepted.

In The Hague, a territory is considered


occupied when actually placed under the
authority of the hostile army.21 Panema was
occupied by Midlands for Midlandss invasion
on 1 July 2013,22 and the enactment of the
Midlands Militia Act 1985.23

Moreover, the ICC proposed that UN


articles are admissible if written by an expert.17
Accordingly, the UN article titled UN adviser
says rape in the Lowlands with impunity
written by a UN expert,18 is admissible in this
case. The Pre-Trial chamber also allows
11

12

13
14
15
16
17

18

Prosecutor v. Callixte Mbarushimana, ICC, Case no. ICC01/04-01/10, (Mbarushimana) (16 December 2011),
40
Prosecutor v. Thomas Lubanga Dylio, ICC, Case no. ICC01/04-01/06, (Lubanga) (29 January 2007), 39.
Mbarushimana (16 December 2011), 43.
Lubanga (29 January 2007), 106.
Lubanga (29 January 2007), 103.
MP, 22.
Prosecutor v. Germain Katanga and Mathieu Ngudjolo
Chui, ICC, Case no. ICC-01/04-01/07, (Katanga) (30
September 2008), 24.
MP, 11.

2. Applicable law
International humanitarian law (IHL)
applies if people are fighting against alien
occupation. Here, the MAFs attack faced up to
the resistance of the PAF.24 When an armed
conflict occurred, the territory will be
determined in the whole territory of the
warring States.25 The ICC determined that the
territory in this armed conflict must be the
whole territory of Panema.
19
20
21

22
23
24
25

- 113 -

Katanga (30 September 2008), footnote 149.


Lubanga (14 May 2007), 209.
International Conference (The Hague), Hague Convention
(IV) Respecting the Laws and Customs of War on Land and
Its Annex: Regulations Concerning the Laws and Customs of
War on Land (The Hague), 18 October 1907, Article 42.
MP, 6.
MP, 6, 8.
MP, 6.
Lubanga (14 March 2012), 533.

Sinh vien va Khoa hoc phap ly so 12


3. The nexus between the last two
offences charged and the existence of IAC
The nexus existed where the armed conflict
played a substantial role in the perpetrators
decision and ability to commit the crime.26
With the aim of preventing guerrilla warfare
and outside support to the towns resistance,
the civilian population was transferred.27 The
act of Smith regarding the seizure of the
historical artefacts was in furtherance of the fall
of Old Troy after the battle,28 which was
closely related to the armed conflict.29
4. The awareness of Smith of the factual
circumstances of the armed conflict
In Katanga case, the ICC held that the
leader of the military group as a party of the
armed conflict was fully aware of the existence
of the armed conflict.30 Here, Smith was the
officer in charge of the MAF,31 hence, he was
aware of the factual circumstances of the
armed conflict.
SUBSTANTIVE MATTERS
1. Smith is criminally responsible as a
military commander for the crime against
humanity of rape under Article 7(1)(g)(i)

particularly, against rape32 because rape may


constitute serious bodily or mental harm on
both physical and mental level.33 According to
the Rome Statute of the ICC, rape can be
against women and men.34
In this case, many accounts appeared on
social media about rape of women, children
and even young boys.35
1.2. The conduct was committed as part
of a widespread or systematic attack directed
against the civilian population
Enumerated crimes form an attack.36
Civilian population refers to a larger body of
victims who are non-combatants and subject to
crimes of a collective nature.37 A widespread
attack must be directed against a multiplicity of
victims,38 while the systematic character
refers to the organised nature of the pattern,
excluding accidental repetition of similar
criminal conduct and random occurrence.39 To
assess the widespread and systematic
characters of the attack, the ICTY suggested
identifying the population which is the object
of the attack, and, in light of the means,
32

1.1. The armed militia conducted rape


and torture amongst Panema population
33

Women shall be especially protected against


any attack on their honour and respect,

34

35
26
27
28
29

30
31

Lubanga (29 January 2007), 287.


MP, 8, 10.
MP, 17.
Prosecutor v. Kunarac et al., ICTY, Case no. IT-96-23 & IT96-23/1, (Kunarac) (12 June 2002), 568.
Katanga (30 September 2008), 385-388.
MP, 6.

36

37

38
39

- 114 -

International Committee of the Red Cross (ICRC), Geneva


Convention IV (GC IV), 12 August 1949, Article 27; ICRC,
Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) (AP I), 8 June
1977, Article 76(1).
Prosecutor v. Jean Paul Akayesu, ICTR, Case no. ICTR-96-4,
(Akayesu) (2 September 1998), 731733.
ICC, Elements of Crimes (Elements of Crimes), 2011,
Article 7(1)(g)(i).
MP, 11, 13.
Prosecutor v. Clment Kayishema and Obed Ruzindana,
ICTR, Case no. ICTR-95-1, (Kayeshima and Ruzindana)
(21 May 1999), 122
Prosecutor v. Duko Tadi, ICTY, Case no. IT-94-1, (7 May
1997), 644.
Kayeshima and Ruzindana (21 May 1999).
Kunarac (12 June 2002), 94.

Sinh vien va Khoa hoc phap ly so 12


methods, resources and result of the attack
upon the population.40
In this case, to take over Lowlands, rape
was considered a good policy41 and a weapon
to terrorise individual women, girls, their
families and the entire community.42 Every
woman or girl the UN expert spoke to had
endured sexual assault or known of someone
being attacked,43 implying enumerated
crimes. The accidental repetition and random
occurrence of the acts can be excluded.
1.3. Mens rea
The mental elements require intent or
knowledge criterion to be satisfied.44
Intent can be implied if that person means to
engage in the conduct, and to cause the
consequence or is aware that it will occur in the
ordinary course of events; knowledge means
awareness that a consequence will occur in the
ordinary course of events.45 The direct
perpetrator must know that his acts comprise
part of that attack, or at least that he took the
risk that his acts were part of the attack.46 The
perpetrator is not required to know the details
of the attack,47 in other words, the acts of the
accused need not to be supported by a policy
or plan.48
In this case, after Colonel Brown
(Brown) announced that rape was a good
policy to take Lowlands for their nation, Smith

took no further action, implying his acceptance


of Browns proposal;49 consequently, the
militia continued to rape women and girls with
impunity in the ordinary course of events.50
Rape was utilised as a weapon to terrorise a
number of women and girls, their families and
the entire communities.51
The militias acts formed part of the attack
directed against Lowlands civilian population
and this would have been known to all who
were positioned at that time.52
In conclusion, the crime took place with
intent and knowledge of Smith and the militia.
1.4. Smith bears criminal responsibility
as a superior under Article 28(a)
Smith is responsible as a superior for the
crime of rape since following elements are
satisfied.53
(i) Smith was a military commander
who had effective command and control
over the militia
Smith was the officer in charge of the
MAF,54 granting him the highest authority in
the military.
The ICC implies that the ability to exercise
effective control will be satisfied if the
relationship of subordination exists.55 Under
the Midlands Militia Act 1985, in case of the
deployment beyond the territory of Midlands,
49

40
41
42
43
44
45
46
47
48

Kunarac (12 June 2002), 95.


MP, 14.
MP, 18.
MP, 18.
Elements of Crimes, Article 7(1)(g)(i).
Rome Statute, Article 30.
Kunarac (22 February 2001), 434.
Kunarac (22 February 2001), 102.
Joki (17 January 2005), 546.

50
51
52

53

54
55

- 115 -

MP, 14.
MP, 18.
MP, 18.
Prosecutor v. Stanislav Gali, ICTY, Case no. IT-98-29, (5
December 2005), 3.
Rome Statute, Article 28(a); Prosecutor v. Jean-Pierre
Bemba Gombo, ICC, Case no. ICC-01/05-01/08 (Bemba)
(15 June 2009), 407.
MP, 6.
Bemba (15 June 2009), 413.

Sinh vien va Khoa hoc phap ly so 12


reports must be made to the most senior army
officer above the rank of Colonel.56 Thus, there
was a superior - subordinate relationship
between Smith and the militia.
(ii) Smith failed to prevent or
punish the militia for their crime
In the brief meeting between Smith and
Brown, although Brown admitted to have
committed the crime of rape as a policy, Smith
did not take necessary and reasonable measures
to prevent or repress the commission of the
crime, instead, he took no further action on the
matter.57 As a result, armed militia continued to
rape women and girls with impunity.58
(iii) Smith knew the militias crime
The knew criterion requires the existence
of actual knowledge59 which is proven if the
military commander is part of an organised
structure with established reporting and
monitoring systems.60
Smith was the officer in charge of the MAF.
According to the Midlands Militia Act 1985,
any acts of militia deployed beyond the
territory of Panema must be reported to him.
Also, hearing the accounts of rape, Smith
convoked Brown,61 which reflected the
monitoring system.
Subsequently,
Smith
is
criminally
responsible as a military commander for the
crime against humanity of rape under Article
7(1)(g)(i).

2. Smith is criminally responsible for


ordering the war crime of unlawful transfer
under Article 8(2)(a)(vii)
2.1. The Midlands forces unlawfully
and forcibly transferred the civilian
population of Lowlands
(i) There was a forcible transfer of
civilians in Lowlands
Forcible transfer is defined as the forced
displacement of persons by expulsion or other
coercive acts from the area in which they are
lawfully present, without grounds permitted
under international law.62 Forcible transfers
take place within national boundaries.63 Hence,
the displacement taking place in Lowlands was
forcible transfer.64
Individual or mass forcible transfers of
protected persons are prohibited, regardless of
their motives.65 Forcible or forced is not
limited to physical force. It may include threat
or coercion such as fear of violence, duress or
psychological oppression.66 In this case, the
Midlands forces exercised physical force as
well as other forms of threat and coercion.
They drove the civilians from small farms and
settlements into larger settlements.67 They
loaded the civilians on buses and trucks and
move them from New Troy and Old Troy to
different camps set up within Lowlands.68
62

63
56
57
58
59
60
61

MP, 7.
MP, 14.
MP, 18.
Bemba (15 June 2009), 429.
Bemba (15 June 2009), 431.
MP, 12, 14.

64
65
66
67
68

- 116 -

Prosecutor v. Milorad Krnojelac, ICTY, Case no. IT-97-25,


(Krnojelac) (15 March 2002), 474.
Prosecutor v. Radislav Krsti, ICTY, Case no. IT-98-33,
(Krsti) (2 August 2001), 531.
MP, 8, 10, 15.
GC IV, Article 49.
Krsti (2 August 2001), 529.
MP, 8.
MP, 11, 15.

Sinh vien va Khoa hoc phap ly so 12


Also, the transfers must be involuntary in
nature,69 where the relevant persons had no
choice to go.70 Regarding the case, the civilians
transferred did not express their consent, as
they were driven from their homes or loaded
on trucks and buses.71 In the transfer taking
place in New Troy, civilians were told to leave
to ensure their security but many refused to.72
(ii) The transfer was not conducted
on lawful grounds
Evacuation may be undertaken if the
security of the population or imperative
military reasons so demand.73 Persons thus
evacuated shall be transferred back to their
homes as soon as the hostilities in the area in
question have ceased.74
In this case, no major security reasons
existed at the time of the transfers. When
driving people from their farms and
settlements, the Midlands forces also destroyed
or requisitioned these places, implying that the
civilians would not be allowed to return.75
Also, when the hostilities in New Troy and Old
Troy ceased, there were no accounts of
civilians being transferred back.
There was also no imperative military threat
when the transfers took place; the civilians
from small settlements did not contribute any
war effort to Panema76 and the people in Old
Troy had surrendered to Midlands forces.77
Therefore, the transfers were unlawful.
69
70
71
72
73
74
75
76
77

Krnojelac (15 March 2002), 475.


Kunarac (22 February 2001), 453.
MP, 8, 9, 11, 15.
MP, 11.
GC IV, Article 49.
GC IV, Article 49.
MP, 8.
MP, 8.
MP, 15.

(iii) The civilians enjoyed protected


status
Article 4(1) of GC IV defines protected
persons as those who find themselves in the
hands of a party to the conflict or Occupying
Power of which they are not nationals.78
Here, the Lowlands civilians transferred by
Midlands forces were not nationals of
Midlands,79 which was the Occupying Power.
Therefore, these civilians are protected persons
under GC IV.
(iv) The Midlands forces were
aware of the protected status of the
civilians
It is unnecessary for the perpetrator to have
evaluated and concluded that the victim was a
legally protected person under the GCs, but
rather that the perpetrator knows the victim
belonged to an adverse party to the conflict.80
In this case, the Midlands forces were aware
that those civilians belong to the adverse party,
being Panema, as they invaded Lowlands,
which was under the control of Panema at the
time.81 Therefore, they knew that those
civilians were protected persons.
2.2. Smith bears criminal responsibility
for ordering the crime under Article 25(3)(b)
In Gbagbo case, the ICC upheld that an
action of a perpetrator satisfying the hereafter
actus reus and mens rea elements could be
accused of criminal responsibility under Article
25(3)(b).
78
79
80
81

- 117 -

GC IV, Article 4.
MP, 8, 11, 15.
Katanga (30 September 2008), 360.
MP, 3.

Sinh vien va Khoa hoc phap ly so 12


Actus reus requires: (i) the perpetrator was
in position of authority, (ii) the perpetrator
instructed another to commit an offence, and
(iii) his instruction had a direct effect on the
commission of the crime.82
Regarding the case, Smith was the officer in
charge of the MAF in Lowlands.83 The
Midlands Militia Act 1985 also established
Smith as a commander of militia as these
forces were being deployed outside
Midlands.84 Therefore, he was in position of
authority of both the MAF and the militia.
Also, Smith tasked Colonel White
(White) with moving the civilians from small
farms and settlements85 and left Brown in New
Troy to weed out any remaining resistance.86
Furthermore, at Old Troy, Smith personally
ordered the transfer of the surrendering
civilians and Paneman soldiers.87 Resulting
from Smiths instruction, White and Brow
undertook the transfers to fulfil the orders
given.
Mens rea requires that the perpetrator: (i)
meant to instruct another to commit an offence;
and (ii) was aware that the crime would be
committed in the ordinary course of events as
the consequence of his instructions.88
The acts of tasking and ordering his forces
to undertake the forcible transfers indicates
Smiths intent to instruct his subordinate to
commit such crimes and also establishes his
82

83
84
85
86
87
88

Prosecutor v. Laurent Gbagbo, ICC, Case no. ICC-02/101/11, (Gbagbo) (12 June 2014), 244.
MP, 6.
MP, 7.
MP, 8.
MP, 11.
MP, 15.
Gbagbo (12 June 2014), 24.

knowledge of the consequences resulting from


his instructions.89
Thus, Smith has met the requisite elements
of actus reus and mens rea.
Consequently,
Smith
is
criminally
responsible for ordering the commission of the
war crime under Article 8(2)(a)(vii).
3. Smith is criminally responsible as an
perpetrator of the war crime seizing
enemys property under Article 8(2)(b)(xiii)
3.1. Midlands soldiers and militiamen
committed an unlawful act causing seizure of
property of the hostile Party
The following elements are fulfilled: (a) the
perpetrator seized certain property; (b) such
property was property of a hostile party; and
(c) such property was protected from that
seizure under international law of armed
conflict. 90
Seizure means taking possession of the
goods and holds them.91 The term property
would cover both public and private property,92
and both movable and immovable property.93
In this case, the artefacts were taken back to
Midlands and to Smiths property, 94 which
constituted seizure of property.
The property must belong to a party to the
hostile to the perpetrator.95 Enemy property is
89
90
91

92

93

94
95

- 118 -

MP, 8, 11, 15.


Elements of Crimes, Article 8(2)(b)(xiii).
Verri, Pietro, Dictionary of the International Law of Armed
Conflict, Geneva: International Committee of the Red
Cross, 1992, 104.
Knut Drmann, Elements of War Crimes under the Rome
Statute of the International Criminal Court: Sources and
Commentary, 2003, Cambridge University Press, 251.
ICRC, Study on Customary International Humanitarian Law,
2005, Volume I: Rules, Rule 50.
MP, 22.
Katanga (30 September 2008), 310.

Sinh vien va Khoa hoc phap ly so 12


confirmed to be within ones custody or
control,96 being either owned, controlled, or
administered by the enemy State.97 A state
does have a sort of primary control over all
property within its borders.98 With regard to
the international borders, the archaeological
site and museum located on the outskirts of
Old Troy,99 hence, they were within Paneman
territory. Moreover, Panema has exercised its
control over the site, the museum and the
artefacts by requesting the inclusion of the site
in World Heritage List100 and further
protection of those properties under
international law.101 Thus, the artefacts
possessed enemy-owned character.
The Hague prohibits the seizure of enemy
property.102 According to the 1954 Hague
Convention, cultural property includes
movable property of great importance to the
cultural heritage of every people, such as
objects of historical interest.103 Therefore, the
artefacts dating back thousands of years104 fell
within the definition of cultural property. The
1954 Hague Convention also provides that
parties undertake to prohibit, prevent and put a
stop to any form of theft, pillage or
misappropriation of cultural property and shall

refrain from requisitioning movable cultural


property situated in another Partys territory.105
Accordingly, the historical artefacts were
protected under international law of armed
conflict.
3.2. The seizure was not imperatively
demanded by the necessities of war
The military necessity only applies to the
seizure
offenses
when
imperatively
106
demanded, which implies that there are no
other means to secure military safety.107
After the fall of Old Troy, the MAF seized
the site.108 The artefacts were brought from the
museum to Midlands and Smiths property as
prizes of war,109 not satisfying the imperative
military reasons.
3.3. Smith bears criminal responsibility
for committing the crime through another
person
In Katanga case, the court held that the
person who commits the crime through another
may be individually criminally responsible,
regardless of whether the executor is also
responsible.110
(i) Actus reus

96

US Proposal, UN Doc. A/AC.249/1997/WG.1/DP.1, part


(B),(v).
97 Yoram Dinstein, Booty in Warfare, in R. Wolfrum, ed., Max
Planck Encyclopedia of Public International Law, 3rd edition
(2008), 7.
98 Robert A. Leflar, Community Property and Conflict of Laws,
21 Cal. L. Rev. 221 (1933), 225.
99 MP, 16.
100 MP, 16.
101 MP, 16.
102 The Hague, Article 23(g).
103 UN Educational, Scientific and Cultural Organisation
(UNESCO), Convention for the Protection of Cultural
Property in the Event of Armed Conflict, 14 May 1954,
(1954 Hague Convention), Article 1.
104 MP, 16.

It requires the perpetrator has control over


an organised and hierarchal apparatus of power
105
106

107

108
109
110

- 119 -

1954 Hague Convention, Article 4(3).


Kai Ambos, Treatise on International Criminal Law: Volume
II: The Crimes and Sentencing, Oxford University Press,
2014, 172.
A. Zimmerman, in O.Triffterer, ed., Commentary on the
Rome Statute of the International Criminal Court:
Observers Notes, Article by Article, at 232, margin no. 154
and 155.
MP, 17.
MP, 22.
Katanga (30 September 2008), 496.

Sinh vien va Khoa hoc phap ly so 12


and has the crimes executed by almost
automatic compliance with the orders.111
Considering this case, Smith was the officer
in charge of the MAF,112 a functioning
apparatus of the State power; therefore, it can
be inferred that Smith was able to exert
authority over the MAF and Midlands militia
through automatic compliance.113
(ii) Mens rea
It requires that the suspect: (a) satisfies the
subjective elements of the crimes, namely: (i)
awareness of the factual circumstances that
established the status of the property;114 and (ii)
the commission of the crime being willfully
and knowingly;115 (b) is aware and accept that
implementing the plan will result in the
realisation of objective elements of the crimes;
and (c) is aware of the factual circumstances
enabling him to control the crimes.116
Concerning the awareness of factual
circumstances that establish the status of the
protected property,117 while ignorance of the
facts may be an excuse, ignorance of the law is
not.118 Additionally, Article 30 sets out subject
elements for crimes that is situations in which
the suspect is aware of the risk that the
objective elements of the crime may result
from his actions, and accepts such an outcome
by consenting to it.119
111
112
113
114
115
116
117
118
119

Ntaganda (9 June 2014), 104, 118.


MP, 6.
MP, 7.
Elements of Crimes, Article 8(2)(b)(xiii)4.
Knut Drmann (2003), 262.
Katanga (30 September 2008), 527-539.
Elements of Crimes, Footnote 32.
Knut Drmann (2003), 29.
Lubanga (29 January 2007), 352.

In the case at hand, Smith must be aware


that the historical artefacts held in the museum
were protected as cultural property under
international law of armed conflict and does
not qualify as a military objective.120 However,
Smith let his subordinates take the historical
artefacts and took some of the most valuable
ones to his property,121 indicating Smiths
knowledge and acceptance that his action
would bring about such seizure. Moreover,
based on Smiths high-ranking position in the
MAF,122 he was also aware of the factual
circumstances enabling him to exercise control
over the commission of the crimes through
other persons.
Consequently,
Smith
is
criminally
responsible for the war crime of seizing
enemys property through another person
under Article 8(2)(b)(xiii).
PRAYER FOR RELIEF
The Prosecutor respectfully requests the
Honourable Court to confirm the charges under
Article 7(1)(g)(i), Article 8(2)(a)(vii), Article
8(2)(b)(xiii) against Smith.
Respectfully submitted,
Prosecutor.

120

Caroline Ehlert, Prosecuting the Destruction of Cultural


Property in International Criminal Law: With a Case Study
on the Khmer Rouges Destruction of Cambodias Heritage,
Martinus Nijhoff Publishers (2013), 524.
121 MP, 22.
122 MP, 6.

- 120 -

Sinh vien va Khoa hoc phap ly so 12

APPROACHING A MOOT PROBLEM:


ASPECTS OF INTERNATIONAL HUMANITARIAN LAW
KELISIANA THYNNE
FORK YOW LEONG
TEERAPAT ASAVASUNGSIDHI
Legal Advisors of the ICRC
(The views expressed in this article are those of the authors and do not necessarily represent the views of the ICRC)

1. Introduction
The Hong Kong Red Cross and the
International Committee of the Red Cross
(ICRC)
have
held
an
International
Humanitarian Law Moot Court Competition
for 13 years. It is a regional competition which
nowadays hosts students from Vietnam, China,
Hong Kong, Taiwan, Thailand, Laos,
Cambodia, Malaysia, Singapore, Korea, Japan,
Australia, New Zealand and Indonesia. In
teams of two (with a researcher) the students
act as if they are in the International Criminal
Court, arguing whether or not an individual in
a fictional case should be prosecuted for war
crimes, crimes against humanity and genocide
from the side of the Prosecutor and the
Defendant. The competition enables students
and their coaches to gain a better understanding
of International Humanitarian Law (IHL) and
International Criminal Law and of the
workings of the International Criminal Court.
They also start to understand the nature of
international justice.
The ICRC organizes a number of student
events in cooperation with National Red Cross

and Red Crescent Societies and universities


around the world. In Asia, almost all countries
have a national IHL Moot Court competition,
the winners of which participate in the Hong
Kong regional competition. At these occasions,
the ICRC, as a humanitarian organization
working in situations of armed conflict, can
effectively contribute with its first-hand
experience of IHL. Not only does a
representative of the ICRC judge every round,
but also we give seminars to the students to
enhance their understanding of the IHL issues
of the problem, as well as the humanitarian
consequences of the scenario which they are
addressing from a legal and court room
perspective. The ICRC aims to stimulate the
next generation of leaders to understand,
promote and implement IHL.
This article looks at the Hong Kong Red
Cross International Humanitarian Law Moot
problem of 20151 and proposes some legal
aspects arising from the problem for students to
1

- 121 -

The problem was written by Michael Crawley and Richard


Desgagne for the Hong Kong Red Cross and International
Committee of the Red Cross.

Sinh vien va Khoa hoc phap ly so 12


consider. The problem looks at the question of
whether General Smith (a fictional General of
Midlands who was tasked with leading an
invasion of Lowlands) is liable for three
charges under the Rome Statute of the
International Criminal Court (Rome Statute):
1. the crime against humanity of
rape,
sexual
slavery,
enforced
prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual
violence of comparable gravity within the
meaning of article 7(1)(g) and 28 (b) of
the Rome Statute.
2. the war crime of unlawful
deportation or transfer or unlawful
confinement within the meaning of
Article 8(2)(a)(vii) and 25(3)(b) of the
Rome Statute.
3. the war crime of destroying or
seizing the enemys property unless such
destruction or seizure be imperatively
demanded by the necessities of war
within the meaning of Article 8(2)(b)(xiii)
and 25(3)(a) of the Rome Statute.
While there are a number of issues which
pose procedural questions and initial
admissibility and jurisdictional issues, this
article will not address those aspects students
reading the moot problem can seek to
determine how they would address those
questions to the International Criminal Court if
they were to be undertaking this moot.2 The
problem also asks students as Prosecutor and

Defendant in the International Criminal Court


to consider command responsibility.3 As this is
primarily an issue of International Criminal
Law, this article will also not address this issue.
This article will look at the issue of
classifying an armed conflict which is the first
step in determining whether war crimes have
been committed. It will then consider the issues
under the charges: sexual violence in armed
conflict, displacement, and protection of
cultural property. It should be noted at this
point that although the charges against General
Smith in this particular moot problem address
crimes against humanity of sexual violence,
this article will address the IHL aspects of
sexual violence in conflict. In so doing, this
article aims to provide students and teachers of
IHL and IHL Moot court competitions, with a
better understanding of the underlying issues of
IHL that they would otherwise address as if in
a court room.
2. Establishing an armed conflict
IHL only applies in armed conflicts. It
follows that violations of IHL, or war crimes,
can only occur during armed conflicts. Article
1(2) of Additional Protocol II to the Geneva
Conventions, 1977, provides that IHL shall
not apply to situations of internal disturbances
and tensions, such as riots, isolated and
sporadic acts of violence and other acts of a
similar nature, as not being armed conflicts.4
3

Students are encouraged to read Chapter 15, Introduction


to International Humanitarian Law & IHL Moot in AsiaPacific
Region:
http://www.redcross.org.hk/rcmovement/IHL_moot.pdf

- 122 -

See Jamie Allan Williamson, Some considerations on


command responsibility and criminal liability (2008) 90
International Review of the Red Cross.
Also reflected in Rome Statute of the International Criminal
Court, 17 July 1998, article 8 (2)(d) and (f).

Sinh vien va Khoa hoc phap ly so 12


Therefore, if an individual is charged with
war crimes, under article 8 of the Rome
Statute, the first step the International Criminal
Court will need to address is whether there was
an armed conflict during the period of time that
the person is alleged to have committed the
crimes. The International Criminal Tribunal for
the Former Yugoslavia (ICTY) has defined an
armed conflict as: "whenever there is a resort to
armed force between States or protracted
armed violence between governmental
authorities and organized armed groups or
between such groups within a State."5
The Rome Statute, following the rules of
IHL and the division highlighted by the ICTY,
divides the war crimes into two forms of war
crimes those committed during international
armed conflict,6 and those committed during
non-international armed conflict.7
An international armed conflict is a conflict
occurring between two or more of the High
Contracting Parties, even if the state of war is
not recognized by one of them.8 A High
Contracting Party means a party to the four

Geneva Conventions, the standard definition of


an international armed conflict is that it occurs
when there is a resort to force between two or
more states. Occupation is also considered to
be a form of international armed conflict to
which IHL applies.
A non-international armed conflict is a
conflict not of an international character
occurring in the territory of one of the High
Contracting Parties.9 It is generally accepted
that the fighting on the territory of this one
state must reach a certain level of intensity and
be protracted.10 The parties to the conflict must
also be reasonably well organised and
represent an identifiable group.11
In the case of Haradinaj, the ICTY held that
factors indicative of a non-international armed
conflict include: the number, duration and
intensity of individual confrontations; the type
of weapons and other military equipment used;
the number and calibre of munitions fired; the
number of persons and type of forces partaking
in the fighting; the number of casualties; the

Geneva Conventions of 1949 that is a state.


As all states in the world are now a party to the
5

Prosecutor v Tadic Decision on the Defence Motion for


Interlocutory Appeal on Jurisdiction, Appeals Chamber,
International Criminal Tribunal for the Former Yugoslavia
(ICTY), IT-94-1-A, 2 October 1995, para70.
Rome Statute of the International Criminal Court, 17 July
1998, article 8 (2)(a) and (b).
Rome Statute of the International Criminal Court, 17 July
1998, article 8 (2) (c) and (e).
Geneva Convention (I) on Wounded and Sick in Armed
Forces in the Field; Geneva Convention (II) on the
Wounded, Sick and Shipwrecked of Armed Forces at Sea;
Geneva Convention (III) on Prisoners of War; Geneva
Convention (IV) on Civilians, 12 August 1949, common
article 2.

10

11

- 123 -

Geneva Convention (I) on Wounded and Sick in Armed


Forces in the Field; Geneva Convention (II) on the
Wounded, Sick and Shipwrecked of Armed Forces at Sea;
Geneva Convention (III) on Prisoners of War; Geneva
Convention (IV) on Civilians, 12 August 1949, common
article 3.
Prosecutor v Tadic Judgment of the Trial Chamber,
International Criminal Tribunal for the Former Yugoslavia,
IT-94-1-T, 7 May 1997, para 562.
Prosecutor v Haradinaj et al Judgment of the Trial
Chamber, ICTY, IT-04-84-T, 3 April 2008, para 60; see also
Rome Statute of the International Criminal Court, 17 July
1998, article 8(2)(f).

Sinh vien va Khoa hoc phap ly so 12


extent of material destruction; and the number
of civilians fleeing combat zones.12
Article 1(1) of Additional Protocol II to the
Geneva Conventions 1977 applies to noninternational armed conflicts which are defined
as tak[ing] place in the territory of a High
Contracting Party between its armed forces and
dissident armed forces or other organized
armed groups which, under responsible
command, exercise such control over a part of
its territory as to enable them to carry out
sustained and concerted military operations and
to implement this Protocol.
Additional Protocol II to the Geneva
Conventions therefore goes beyond common
article 3 to the Geneva Conventions to include
the requirement for the non-state actors to have
control over a part of its territory and the
abilities to conduct military operations under a
responsible command and to apply IHL.
Therefore, Additional Protocol II does not
necessarily apply to all non-international armed
conflicts. Similarly, it does not apply to a
conflict where the state on whose territory the
conflict takes place is not a party to the treaty.
In the Hong Kong moot problem from
2015, General Smith was charged with war
crimes under article 8 (2)(a) and (b): war
crimes committed during international armed
conflict. Therefore, students addressing this
problem as the Prosecutor would need to
demonstrate that there was an international
armed conflict on going at the time the General
12

was alleged to have committed the crimes. The


Defence could either accept this classification,
or if they wished to challenge it, they would
need to demonstrate that either there was no
armed conflict occurring or that the conflict
was a non-international armed conflict. The
Prosecution would need to prove that
substantial grounds to believe13 that an
international armed conflict occurred for each
of the two war crimes charges (there is no need
to prove whether an armed conflict occurs to
prove genocide or crimes against humanity). In
this case, the territory of Lowlands has been in
dispute, with border clashes between Panema
and Midlands. Midlands invaded Lowlands
and experienced pockets of resistance from the
population, and Panema also fought against
Midlands invasion of Lowlands. There are
some elements within the problem facts which
could be read as implying a non-international
armed conflict, and periods during which the
fighting had ended for a time. Mooters would
need to grapple with the timing issues, but
generally it would be accepted that there is an
international armed conflict for the purposes of
the charges against General Smith, with two
states fighting against each other in a protracted
way.
3. Sexual violence in armed conflict
Sexual violence in conflict is not a new
phenomenon, but we have seen increasing
instances of sexual violence in conflicts over
13

Prosecutor v Haradinaj et al Judgment of the Trial


Chamber, ICTY, IT-04-84-T, 3 April 2008, para 49.

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The evidence test in the Prosecutor v. Lubanga, Case No.


ICC-01/04-01/06, Decision Concerning Pre-Trial Chamber
I's Decision of 10 February 2006 and the Incorporation of
Documents into the Record of the Case against Mr.
Thomas Lubanga Dyilo, 24 February 2006, para. 63.

Sinh vien va Khoa hoc phap ly so 12


the last ten years or more.14 The moot problem
was written with sexual violence as a crime
against humanity for the students to grapple
with the legal aspects, but it serves to also
highlight the humanitarian consequences of
sexual violence in conflict. Sexual violence is
an act of a sexual nature imposed by force,
threat of force or coercion. Sexual violence in
conflict may be used as a means of creating
fear, as a form of reprisal or torture, as a
method of warfare, as a result of a breakdown
in societal structures or for ethnic cleansing. It
can be widespread, but remains invisible in
many contexts which is one of the reasons why
it is only becoming apparent in many contexts
now how widespread it actually is. It is
important to note that sexual violence is often
related to other violations of IHL in conflict.
Therefore, sometimes it is overlooked, or hard
to report.15
Under IHL, rape and other forms of sexual
violence are prohibited. In an international
armed conflict, article 27 of Geneva
Convention IV provides:
Protected persons [civilians] are
entitled, in all circumstances, to respect for
their persons, their honour, their family
rights, their religious convictions and
practices, and their manners and customs.
14

15

Sarah Shteir, Conflict-related sexual and gender based


violence, Civil-Military Occasional Paper 1/2014, Australian
Civil-Military
Centre,
https://www.acmc.gov.au/wpcontent/uploads/2014/09/Conflict-Related-Sexual-andGender-Based-Violence.pdf p 9.
Sarah Shteir, Conflict- related sexual and gender based
violence, Civil-Military Occasional Paper 1/2014, Australian
Civil-Military
Centre,
https://www.acmc.gov.au/wpcontent/uploads/2014/09/Conflict-Related-Sexual-andGender-Based-Violence.pdf p 5.

They shall at all times be humanely


treated, and shall be protected especially
against all acts of violence or threats
thereof and against insults and public
curiosity.
Women shall be especially protected
against any attack on their honour, in
particular
against
rape,
enforced
prostitution, or any form of indecent
assault.
Article 75 (2)(b) of Additional Protocol I to
the Geneva Conventions, 1977, provides:
outrages upon personal dignity, in particular
humiliating and degrading treatment, enforced
prostitution and any form of indecent assault
are prohibited. Under article 76 women have
special protection.
In a non-international armed conflict,
common article 3(1)(c) of the Geneva
Conventions also prohibits outrages upon
personal dignity, in particular humiliating and
degrading treatment, enforced prostitution and
any form of indecent assault. It is also a rule
of customary international law that rape and all
forms of sexual violence are prohibited in both
international and non-international armed
conflicts.16
The ICRC, as a humanitarian organisation,
takes a multi-disciplinary approach to sexual
violence. It provides medical, psychological
and economic support to victims of sexual
violence. It gathers reports of sexual violence
16

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Jean-Marie Henckaerts and Louise Doswald-Beck (eds),


Customary International Humanitarian Law (Vol 1 2005),
Rule 93.

Sinh vien va Khoa hoc phap ly so 12


in conflict and reminds parties to a conflict
who might have committed such violations of
the IHL principles. We also make
recommendations to encourage the parties to
take necessary measures to identify and
sanction the perpetrators, to prevent further
violations and to protect the populations.
The ICRC President Maurer has said: We
use the law and we address vulnerabilities and
patterns of violence. In prisons and Ministries,
with opposition fighters and community
leaders, we talk to the perpetrators of sexual
violence in conflict in order to change their
behaviour. Everyday we see sexual violence in
the places where we are striving to make a
difference. We witness the effects of this silent
crime
on
individuals,
families
and
communities.17

jurisdiction over more crimes of sexual


violence than seen before. Article 54(1)(b) of
the Rome Statute provides that: The Prosecutor
shall [t]ake appropriate measures to ensure
the effective investigation and prosecution of
crimes within the jurisdiction of the Court, and
in doing so, respect the interests and personal
circumstances of victims and witnesses,
including age, [and] gender ... and take into
account the nature of the crime, in particular
where it involves sexual violence, gender
violence or violence against children.
Three crimes have been specifically directed
to sexual violence:
Committing rape, sexual slavery,
enforced prostitution, forced pregnancy
enforced sterilization, or any other form of
sexual violence also constituting a grave
breach of the Geneva Conventions18
(international armed conflict war crime)

Despite reminding the parties to conflicts


around the globe of their IHL obligations,
specifically on sexual violence, such violations
continue to occur. In such cases it is then
incumbent on the government on whose
territory the crimes took place to prosecute and
punish the perpetrators. Ideally, this should be
at the domestic level, but where the crimes are
of sufficient gravity, or have been referred to
the International Criminal Court, international
justice can be invoked.

Committing rape, sexual slavery,


enforced prostitution, forced pregnancy,
enforced sterilization, and any other
form of sexual violence also constituting a
serious violation of article 3 common to
the four Geneva Conventions19 (noninternational armed conflict war crime)
Rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual
violence of comparable gravity [when
committed as part of a widespread or

The Rome Statute goes beyond previous


international criminal statutes in establishing
17

ICRC president calls for action on sexual violence in


conflict, Statement to the Global Summit on Ending Sexual
Violence
in
Conflict
on
12
June
2014:
https://www.icrc.org/eng/resources/documents/statemen
t/2014/06-12-sexual-violence-statement-maurer.htm

18

19

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Rome Statute of the International Criminal Court, 17 July


1998, article 8(2)(b) (xxii).
Rome Statute of the International Criminal Court, 17 July
1998, article 8(2)(e)(vi).

Sinh vien va Khoa hoc phap ly so 12


systematic attack directed against any
civilian population, with knowledge of the
attack]20 (crime against humanity)
Forced pregnancy is defined by article
7(2)(f) as the unlawful confinement of a
woman forcibly made pregnant, with the intent
of affecting the ethnic composition of any
population or carrying out other grave
violations of international law. Sexual
violence has also been recognised as an
element of genocide,21 when committed with
intent to destroy, in whole or in part, a national,
ethnical, racial or religious group.22 The ICTY
also has recognised rape as a form of torture.23
In the moot problem in Hong Kong in 2015,
the fictional General was charged with a crime
against humanity. He could equally have been
charged with war crimes. The way the students
approach the problem will depend on those
legal definitions of crime against humanity and
whether the facts of the particular problem fit
the legal definition. This exercise reflects the
reality of the difficulty of fitting certain
patterns and evidence of sexual violence into
the existing legal definitions. However, today,
we have more laws against sexual violence
than ever before, so it is now a matter of
helping people to understand those laws and
how it is never appropriate to commit sexual
violence.
20

21

22

23

Rome Statute of the International Criminal Court, 17 July


1998, article 7(1)(g).
Sexual Violence in Conflict: Report of the UN SecretaryGeneral, A/67/792-S/2013/149, 14 March 2013.
Rome Statute of the International Criminal Court, 17 July
1998, article 6.
The Prosecutor v. Delalic et al. (Celebici), Case No. IT-9621-T, 16 November 1998.

4. Displacement
In the 2015 Hong Kong IHL moot problem,
the fictional General Smith was charged with
the war crime of unlawful deportation or
transfer or unlawful confinement under Article
8(2)(a)(vii) of the Rome Statute. The issue of
displacement has come to the fore in the last
years with the conflicts in Syria and Iraq
forcing entire communities to flee their homes
and find shelter within their states borders, but
away from home.24 The United Nations
Guiding Principles on Internal Displacement
provide the following definition of who are
internally displaced persons persons or
groups who have been forced or obliged to flee
or leave their homes or places of habitual
residence, in particular as a result of or in order
to avoid the effects of armed conflict, situations
of generalised violence, violations of human
rights or natural or human-made disasters, and
who have not crossed an internationally
recognised State border.25 Displacement can
mean that families are separated from each
other, they cannot access food, water,
medicines, they cannot find shelter and they are
at greater risk of further violence.26
24

See, eg, Elizabeth Ferris and Melanie Teff, The overlooked


humanitarian crisis in Iraq: The need to address disparities
28 April 2015, Brookings LSE Project on Internal
Displacement:
http://www.brookings.edu/blogs/markaz/posts/2015/04/
28-iraq-displaced-refugee-humanitarian-islamic-stateviolence.
25 UNOCHA, Guiding Principles on Internal Displacement
(2004) http://www.unhcr.org/43ce1cff2.html Principle 2.
26 See, eg, ICRC, South Sudan: Humanitarian situation in
some areas a cause for concern
19 June 2013:
https://www.icrc.org/eng/resources/documents/update/2
013/06-19-south-sudan-jonglei-humanitarian-

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Sinh vien va Khoa hoc phap ly so 12


When it comes to IHL, there is a strong
emphasis on preventing displacement during a
conflict although once again the difference
between international and non-international
armed conflict applies. The relevant provisions
relating to displacement of civilian population
in an international armed conflict are articles
45 and 49 of Geneva Convention IV. Article
49 in particular prohibits individual or mass
forcible transfers, as well as deportations of
protected persons from occupied territory to
any other country, regardless of motive. In an
international armed conflict, civilians can only
be evacuated of a given area if the security of
the population or imperative military reasons
so demand.27
In a non-international armed conflict, the
relevant provision for the displacement of
civilian population is provided in Article 17 of
Additional Protocol II 1977 relating to the
prohibition of forced movement of civilians.
The displacement of civilian population is also
prohibited under customary international
humanitarian. The relevant provisions relating
to displacement are provided in Rule 129
which applies to both international and noninternational armed conflicts.28
The crimes which are charged in the 2015
moot problem relate to this prohibition on

27

28

situation.htm; ICRC, Iraq: Escaping unprecedented levels


of horror, 28 August 2014:
https://www.icrc.org/en/document/iraq-escapingunprecedented-levels-horror.
Geneva Convention (IV) on Civilians, 12 August 1949, article
49.
Jean-Marie Henckaerts and Louise Doswald-Beck (eds),
Customary International Humanitarian Law (Vol 1 2005),
Rule 129.

transferring civilians when the prevention


aspect has been disregarded and civilians have
been forced to flee by one party to the conflict,
rather than voluntarily to escape the fighting.
Both deportation and forcible transfer relate to
the involuntary and unlawful evacuation of
individuals from the territory in which they
reside. Deportation presumes transfer beyond
State borders, whereas forcible transfer relates
to displacement within a State or across
borders. Article 7(2)(d) of the Rome Statute
provides the definition of deportation or
forcible transfer of population as a crime
against humanity as a forced displacement of
the persons concerned by expulsion or other
coercive acts from the area in which they are
lawfully present, without grounds permitted
under international law. Although part of the
definition of a crime against humanity, this
definition is useful in looking at the issue of
displacement as a war crime under article 8.
The Rome Statute does not require proof of
crossing an international border, but only that
the civilian population was displaced.
In looking at this issue of displacement from
an international criminal law point of view,
students should have a greater understanding of
how displacement in conflict occurs, who are
mostly affected by displacement, and also how
parties to a conflict can be held responsible for
displacement of the civilian population. Thus
students should be able to better understand the
issues which affect a large number of civilians
in real-life conflicts which are happening
around the globe.

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5. Cultural Property

Sinh vien va Khoa hoc phap ly so 12


When a conflict occurs, one of the ways that
a party to a conflict might attempt to control a
population, or destroy its values and traditions
is to physically destroy symbols and objects of
the enemys culture. Recently, we have seen
examples of the Taliban destroying Buddhas in
Afghanistan and museums and historical sites
being looted in Iraq during conflict.
Destruction of such cultural property is
prohibited under IHL in both international and
non-international armed conflict. Additional
Protocol I to the Geneva Conventions provides
that it is prohibited to
(a) to commit any acts of hostility directed
against the historic monuments, works of art or
places of worship which constitute the cultural
or spiritual heritage of peoples;
(b) to use such objects in support of the
military effort;
(c) to make such objects the object of
reprisals.29
Similarly, Additional Protocol II provides:
it is prohibited to commit any acts of hostility
directed against historic monuments, works of
art or places of worship which constitute the
cultural or spiritual heritage of peoples, and to
use them in support of the military effort.30
Finally, cultural property is also protected as a
civilian object.31
29

30

31

Protocol Additional to the Geneva Conventions of 12


August 1949, and relating to the Protection of Victims of
International Armed Conflicts, 8 June 1977, article 53.
Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts, 8 June 1977, article 16.
Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of
International Armed Conflicts, 8 June 1977, article 52(2).

The protection of cultural property is of


such significance to the world that specific
protection has been given under the Hague
Convention of 1954 which is regulated by
UNESCO. The Hague Convention defines
cultural property as any movable or
immovable property of great importance to the
cultural heritage of all people, such as
monuments of architecture or history,
archaeological sites, works of art, books or any
building whose main and effective purpose is
to contain cultural property.32 The 1954
Convention provides a system of special
protection.33 A Protocol dealing with cultural
property during times of occupation was
adopted at the same time as the 1954
Convention. Although the 1954 Convention
strengthens protection for cultural property, its
provisions have not always been adequately
implemented. To address this problem, a
second Protocol to the 1954 Convention was
adopted on 26 March 1999 which includes a
regime of enhanced or special protection.
While the Hague Convention and its two
Protocols set out the requirements for
protection of cultural property in armed
conflict, the 2015 moot problem asked students
to consider whether the fictional General was
responsible for the war crime of destroying or
seizing the enemys property unless such
destruction or seizure be imperatively
demanded by the necessities of war under the

32

33

- 129 -

Hague Convention for the Protection of Cultural Property


1954, 14 May 1954, article 1.
Hague Convention for the Protection of Cultural Property
1954, 14 May 1954, article 8.

Sinh vien va Khoa hoc phap ly so 12


Rome Statute.34 Included in this assessment is
whether the property is protected under
existing international law, such as the Hague
Convention and Additional Protocols to the
Geneva Conventions.35 Students should learn
through the moot problem that adherence to the
protection of cultural property is essential to
preserving objects precious to all humanity.
6. Conclusion
The goal of this article is to highlight four
important aspects of IHL: the first question of
whether an armed conflict exists followed by
three issues of IHL arising from the Hong
Kong IHL Moot Competition problem of 2015:
sexual
violence
in
armed
conflict,
displacement, and protection of cultural
property. It does not seek to answer the charges
posed in the problem, and does not seek to
provide all of the right answers. There are no
right answers to moot problems. Indeed this is
one of the interesting aspects of moot court
competitions that every time you hear
students arguing the problem, they address
different legal issues and interpret the facts
differently.

34

35

Rather this article provides an overview of


the key issues of IHL arising from the problem
scenario in an attempt to encourage students to
consider some aspects of IHL in more depth, to
explore further readings on these topics, to start
to have an understanding of how to approach
an international criminal problem. This should
enable students to feel more comfortable to
approach a fictional moot scenario in the
university environment, and indeed, to
understand how a court will look at IHL
aspects of actual criminal proceedings before
the International Criminal Court. Ultimately, it
should assist students to feel better able to
grapple with issues of IHL and also to
understand some of the humanitarian
consequences of war.

Rome Statute of the International Criminal Court, 17 July


1998, article 8(2)(b)(xiii).
International Criminal Court, Elements of Crimes (2011):
http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf

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Sinh vien va Khoa hoc phap ly so 12

INTERVIEW WITH MEMORIAL JUDGES


HCMULAW MOOT COURT COMPETITION 2015
ORGANIZING COMMITTEE
Hello Dr. Tran Thang Long,1 Dr. Stefano
Pellegrino2 and Mr. Khanh Nguyen!3 Thanks
for your being here as Memorial Judges of the
HCMULaw Moot Court Competition 2015. We
feel honoured to have a talk with you, the
Honourable Judges, about the Competition
and mooting activities.
Please, we will start now.
1. Mr. Khanh Nguyen and Dr. Stefano
Pellegrino, what do you think about the role
of mooting activities in universities?
Mr. Khanh Nguyen: In my opinion, there
are two reasons for a law student to take part in
mooting activities. First is to improve yourself
for litigation career and second is to hone your
skills to be better and tougher.
Dr. Stefano Pellegrino: Yes, especially
legal skills. Moreover, the participants can
open their minds through getting many
perspectives around the world by international
exploration when they gain chances to join
international competitions in other countries.
2. Dr. Stefano Pellegrino, what do you
think about the HCMULaw Moot Court
Competition 2015?
Dr. Stefano Pellegrino: I really appreciate
the Competition because it helps the
participants get a more practical approach to
1
2
3

Head of Legal English Subject of HCMC University of Law.


Associate of Fraser Law Firm.
Director of Rameses Consulting Corporation.

their legal profession in the near future through


greatly improving their skills and knowledge.
My law firm also knows about the Competition
and I think that students can widen their circles
of acquaintances and get familiar with law firm
environment.
3. Mr. Khanh Nguyen and Dr. Stefano
Pellegrino, what are the weak points of
Vietnamese law students?
Dr. Stefano Pellegrino: Through my 7
months of practicing in my law firm, I
experience that Vietnamese law learners easily
lose track of what they say or research. Lets
take the memorials of the participants this year
as an example: they sometimes get the wrong
side when writing their memorials. While
writing memorials for Defendant which take
side with the perpetrator, the participants give
some arguments convicting the perpetrator!
Mr. Khanh Nguyen: To improve these
weak points, I suggest inviting many guest
speakers to the university. These speakers may
help students determine their pros and cons, as
well as answer their questions and concerns.
Moreover, students should take internship to
improve their legal knowledge in both theory
and practice.
5. Dr. Tran Thang Long, how is the quality
of submissions this year?
Dr. Tran Thang Long: I am very surprised
at the big gap between the good and poor
submissions this year. In 32 memorials of 16

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participating teams this year, 20 25% are


good, 50% are ok and the left are poor. I think
there are some reasons. First, the participants
are still newcomers; thus, they dont know how
to argue and analyze in the best way and they
havent been familiar with the structure of
arguments. Moreover, legal English may need
more practice to be improved.
Thanks for your great attention!

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