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16th Henry Dunant Memorial Moot Court Competition, 2016

Original: English

Date: 23-25 September 2016


No.: ICC-01/__________

ICC TRIAL CHAMBER


At The Hague

SITUATION IN THE STATE OF RODINGA


IN THE CASE(S) OF
THE PROSECUTOR v. BRIGADIER ZACHESU
THE PROSECUTOR v. BRIGADIER VASVODINA

PUBLIC DOCUMENT
WRITTEN SUBMISSIONS ON BEHALF OF THE PROSECUTION

THE PROSECUTOR
TABLE OF CONTENTS
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INDEX OF AUTHORITIES.....................................................................................................iv
STATEMENT OF JURISDICTION........................................................................................vii
ISSUES RAISED....................................................................................................................viii
STATEMENT OF FACTS........................................................................................................ix
SUMMARY OF PLEADINGS................................................................................................xii
PLEADINGS..............................................................................................................................1
I.

BRIGADIER ZACHESUS ATTACK IS WIDESPREAD AGAINST CIVILIAN

POPULATION WITH KNOWLEDGE IN FURTHERANCE OF STATE POLICYAND IS


GUILTY UNDER ART. 7(1) (a) OF ICC STATUTE................................................................1
(A.)

Brg. Zachesu caused the death of one or more persons as part of a widespread

attack against the civilian population.................................................................................1


(B.)

Brg. Zachesu killed civilians in furtherance of State policy and with full

knowledge..........................................................................................................................4
II.

BRIGADIER ZACHESU MEETS THE THRESHOLD FOR WAR CRIMES AND CAN

BE HELD GUILTY OF CHARGES UNDER ART. 8 (2) (c) (i) OF THE ROME STATUTE..4
(A.) Killed is also construed to mean, caused the death of..........................................5
(B.)

The conduct took place in the context of and was associated with an armed

conflict not of international character and the perpetrator had knowledge........................6


III.

BRIGADIER VASVODINA CAUSED SYSTEMATIC ATTACK AGAINST

CIVILIAN POPULATION IN FURTHERANCE OF ORGANISATIONAL POLICY WITH


FULL KNOWLEDGE AND GUILTY UNDER CRIMES AGAINST HUMANITY ART. 7(1)
(i) of ICC STATUTE..................................................................................................................8

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(A.) AFD attack was widespread and systematic against civilian population to further
their organizational policy with knowledge.......................................................................8
(B.)
IV.

Elements under Art. 7 (1) (i) read with Art. 30 and Art. 28...................................12

BRIGADIER VASVODINA IS GUILTY OF WAR CRIMES UNDER ART. 8(2) (b)

(iv) OFROME STATUTE........................................................................................................15


(A.) The Attack did not have concrete and direct overall military advantage and caused
widespread, long term and severe damage to environment.............................................15
(B.)

Attack on Rekht city by Zawaluan Forces with AFD is in nature of International

Armed Conflict.................................................................................................................18
PRAYER..................................................................................................................................20

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INDEX OF AUTHORITIES
CASES
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua
v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986...18
Godinez Cruz v. Honduras, C. No. 5........................................................................................12
Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001.........................................10, 12, 14
Kupreskic et. al. (IT-95-16-T), Judgement, 14 January 2000..................................................14
Prosecutor v Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Judgment, 2 September 1998
............................................................................................................................................5, 9
Prosecutor V Zejnil Delalic, Zdravko Mucic (aka Pavo), Hazim Delic and Esad Lando
(aka Zenga) (lebici Case), IT-96-21-A, Appeals Judgement, 20 February 2001..........5
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23-T& IT-9623/1-A, Appeals Chamber Judgement, 12 June 2002............................................1, 2, 14, 15
Prosecutor v. Krnojelac (IT-97-27-T), Judgment, 15 March 2002...........................................15
Prosecutor v. Limaj et al. (IT-03-66-T), Judgment, 30 November 2005..................................14
Prosecutor v. Mrksic et al. (IT-95-13-R61), Review of Indictment Pursuant to Rule 61, 3
April 1996............................................................................................................................14
Prosecutor v. Omar Al Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecution's
Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 20099
Prosecutor V. Radoslav Branin, IT-99-36-A, Trial Judgement, 1 September 2004...............18
Prosecutor v. Ramush Haradinaj Idriz Balaj Lahi Brahimaj, IT-04-84bis-T, Retrial Judgement,
29 November 2012.................................................................................................................7
Prosecutor v. Stanislav Galic (Trial Judgement and Opinion), IT-98-29-T, International
Criminal Tribunal for the former Yugoslavia (ICTY), 5 December 2003............................19

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Prosecutor v. Tihomir Blaskic, IT-95-14-A, Appeal Judgement, 29 July 2004.........................1
Prosecutor v. Vidoje Blagojevic Dragan Jokic, IT-02-60-T, Trial Judgement, 17 January 2005
................................................................................................................................................1
Situation in Georgia, ICC-01/15, Decision on the Prosecutors request for authorization of
an investigation, 27 January 2016......................................................................................18
Situation in the Republic of Cote dIvoire, Decision Pursuant to Article 15 of the Rome
Statute on the Authorization of an Investigation into the Situation in the Republic of Cote
dIvoire, 3 October 2011, ICC- 02/11-14.......................................................................9, 11
The Prosecutor v Elastic. Case No. IT-95-14- A, Appeals Judgment, 29 July 2004................12
The Prosecutor v Semarca, Case No. ICTR-97-20-T, Trial Judgment, 15 May 2003.............12
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Pre-Trial Chamber I,
Decision on the Confirmation of Charges, Situation in the Democratic Republic of
Congo, 30 September 2008, ICC-01/04- 01/07-717............................................9, 10, 11, 14
The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant
to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against
Jean Pierre Bemba Gombo, 15 June 2009.......................................................................9, 14
The Prosecutor v. Ntakirutimana (ICTR-96-10 & ICTR-96-17-T), Judgement, 21 February
2003........................................................................................................................................9
The Prosecutor v. Omar Al Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecution's
Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, (March 4,
2009)...............................................................................................................................11, 14
Trujillio Oroza v. Bolivia, Series C No. 64..............................................................................12
Velasquez Rodriguez v. Honduras, Series C. No. 4.................................................................12
STATUTES

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ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 2187 U.N.T.S. 90
.......................................................................................................................................passim
TREATIES
Convention on the Prohibition of Military or any Hostile Use of Environmental Modification
Techniques, 1976..................................................................................................................18
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), 8 June 1977, 1125 UNTS 3...........................................passim
HUMAN RIGHTS COMMITTEE
Sarma v. Srilanka (No. 950/2000), UN Doc. CCPR/C/78/D/950/2000...................................13
UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza
Conflict, 25 September 2009, A/HRC/12/48.........................................................................2
MISCELLANEOUS
Israel Ministry of Foreign Affairs, The Operation In Gaza: Factual And Legal Aspects (Part
V.C) 3666 (2009).............................................................................................................3
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p.
226, International Court of Justice (ICJ), 8 July 1996...........................................................3
TREATISES AND DIGESTS
Jean S. Pictet, ed., Commentary, IV Geneva Convention, 1949 (Geneva: ICRC, 1958)...........6
W. Schabas, The International Criminal Court: A Commentary on the International Criminal
Court, Oxford: Oxford University Press 2010.......................................................................9
Y. Sandoz, C.Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols
of 8 June 1977 to the Geneva Conventions of 12 August 1949...........................................17
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STATEMENT OF JURISDICTION
It is hereinafter most respectfully submitted that the Prosecutor of this International
Criminal Court has the jurisdiction to exercise this petition under Article 5 read with Article
13 of the Rome Statute of the International Criminal Court, 1998. Article 5(1) states a
follows
The jurisdiction of the Court shall be limited to the most serious crimes of concern to
the international community as a while. The Court has jurisdiction in accordance with this
Statute with respect to the following crimes:
(a)
(b)
(c)
(d)

The Crime of Genocide;


Crimes against humanity;
War Crimes;
The Crime of Aggression.

And both Rodinga and Zawalu are parties to the ICC statute1

1 2, Page 14, Moot Problem.

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ISSUES RAISED
The Prosecutor respectfully asks this Honourable Court:
I.

Whether Brigadier Zachesu be found guilty for Crimes against humanity, for
killing civilians on the night of 16 th April 2012 at Rukama, under Art. 7(1)(a) of

II.

the Rome Statute;


Whether Brigadier Zachesu be found guilty of War Crimes, for killing of the AFD
fighters and civilians at Rukama on 17th April 2012, under Art. 8 (2) (c)(i) of the

III.

Rome Statue;
Whether Brigadier Vasvodina be found guilty for Crimes against humanity, for
enforced disappearance of captured mine employees and Rodingan paramilitary

IV.

forces during December 2011 strike, under Art. 7(1) (i) of the Rome Statute;
Whether Brigadier Vasvodina be found guilty for War Crimes, for launching
attacks on industries in Rekht city that resulted in widespread, long-term and
severe damage to the natural environment, under Art. 8 (2) (b) (iv) of the Rome
Statute.

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STATEMENT OF FACTS
(1.)Rodinga, a colony of Suzophia became independent in July,1970 after forty years of
active struggle under the Rodingan Nationalist Democratic Party (hereinafter RNDP).
Rodinga is a secular, democratic and republic country divided into five states. These states
are Sinsalu in the north, Kambhatka in the east, Radusaria in the south, Nilodonia in the west
and Sanrolia in the centre, its borders touched all other states. Tirsone, the capital of Rodinga
is located in Central Sanrolia. Sinsalu and Kambhatka has more than 75% rich forest cover of
Rodinga and there was widespread health and environmental problems in them due to intense
extraction of natural resources. Sanrolia, densely populated and heavily industrialised.
(2.)

RNDP under the leadership of Mr. Ragoba, headed the freedom struggle. After

independence Mr. Ragoba became the first Prime Minister (PM). The main opposition party
is Rodinga Socialist Republican Party (hereinafter RSRP) headed by Mr. Sari Salania. The
constitution of Rodinga; did not provide for state governments, it provided for fundamental
rights to the people, emergency provisions and all executive powers of the government vested
with the PM, he has powers to declare and withdraw emergency.
(3.)

Enduring Federation: Our Right (EFOR), headed by elected leader Mr. Nasan

Aldolo advocated for rights of States to control their resources. Mr. Sari Salania and Nasan
Aldolo were arrested during peaceful protest in Tirsone. Mr. Pinto Alberto, Chief Editor of
The Morning, a reputed newspaper was also arrested on defamation charges.
(4.)

Mr. Ragoba was assassinated by a suicide bomber. Rodingan cabinet collectively

decided to declare Mr. Radula, son of Ragoba as PM. The next day, Mr. Radula declared
emergency extending to the whole of Rodinga. The forthcoming elections were suspended
and RSRP and EFOR banned. The workers of RSRP and EFOR who moved into dense areas
of forest came together to form Army for Democracy (hereinafter AFD) and engaged in
sustained low scale violence against government police and paramilitary forces.

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(5.)

In 1995, AFD was declared terrorist organisation Mr. Salania, Mr. Aldolo and Mr.

Alberto were declared joint presidents of AFD after their jailbreak. AFD declared through
internet to fight for the establishment of federal democracy. State units were established and
they actively engaged in broadening their support and membership increase exponentially
and it re-established its operational branch under the leadership of Brigadier. Vasvodina.
(6.)

In December 2011, the AFD launched a series of coordinated attacks against

government buildings and installations in Sinsalu and Kambhatka. They captured gold mines
of Samchatka and Tikalu (in Kambhatka) and coalmines of Rasinia and Kaluma (in Sinsalu).
50 personnel of the Rodingan paramilitary and almost 50 employees that working in these
mines were capture. Subsequently, attempts by International Humanitarian Enforcement
Agency (IHEA) to establish communication links with AFD failed. However, in May 2012,
Brigadier (Brg.) Vasvodina informed the visiting officials of the IHEA that the captured
persons embraced AFD ideals and were out in Rodinga to spread its ideals.
(7.)

A Government army operation to liberate AFD occupied coal mines was led by

Brigadier (Brg.) Zachesu. On their way they fought intense battles with AFD. When they
reached Rukama, a suburban town 50 kms from Rasinia, they were intensely confronted by
AFD fighters and were kept at bay for one week. Brigadier Zachesu lost 50 armed personnel
and her subordinates aerial dropped pamphlets on 15 April 2012 (Sunday) with instructions to
civilians to leave Rukama. On the night of 16th April 2012, the forces started heavy shelling
from tanks and also used drones and fighter jets to attack positions of AFD fighters. This
resulted in widespread destruction of civilian property and resulted in death of 100 civilians
and 50 AFD fighters. Brg. Zachesu entered Rukama with her forces next morning.
(8.)

They found more than 50 civilians hiding in natural caves, they were beaten, and their

bodies were subject to many kinds of inhuman invasions on their private organs. The
wounded AFD fighters and civilians were either murdered or left without any arrangement

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for medical care. The Government claimed on entering Rukama, it was deserted and they
pleaded operational constraint to search for missing civilians. Brg. Zachesu made Rukama a
temporary base camp. On 23 May 2012, the UN Peacekeeping forces discovered mass graves
of almost 450 persons in Rukama. Their medical team prepared forensic reports indicating
that almost 40 bodies were subjected to brutal physical invasions on their private organs
before their death and almost 250 bodies had the marks of bullets on their skulls with other
injuries. The remaining 160 died due to heavy explosions and asphyxiation.
(9.)

After the defeat at Rukama, AFD sought active support from the neighbouring

country of Zawalu, which shares borders with Sinsalu and Kambhatka. On 1 st May 2012,
Zawalu declared war against Rodinga sighting humanitarian commitment. On the 10 May
2012, the AFD and Zawaluan forces deployed personnel at the border of Rekht industrial city,
in Sanrolia. These industries are situated on the banks of Sanrole which was an important
source of drinking water for population of Rekht and other cities downstream. Industries were
heavily guarded by Government forces even though they were closed due to lack of raw
materials.
(10.)

On 11 May 2012, the Government stated its intent to provide uninterrupted

movement to the Zawaluan forces and AFD fighters; provided that they would not attack the
industries of Rekht, and indicated possible environmental catastrophe if Rekht was attacked.
Brg. Vasvodina disregarded this and launched an attack during early hours of 12 May 2012,
which involved intense fighting with heavy arsenal from both sides, which lead to the leakage
of Agent X a dangerous chemical and damaged the whole ecology Sanrole beyond human
contemplation. All water purification plants downstream had to be closed and resulted in
acute water scarcity in Sanrolia, which resulted in causing the death of 100 people.
Environmental experts claimed it would take a minimum of a decade to wipe out the
chemicals from river cycle. Post UNSC resolution 206, a tripartite ceasefire agreement was

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reached between conflicting parties, on 23 May 2012. The ICC Prosecutor decided to bring
charges on Brg. Zachesu and Brg. Vasvodina.
SUMMARY OF PLEADINGS
I.

Brg. Zachesu committed crimes against humanity by widespread attacks


indiscriminately against civilian population with active involvement on the ground
and full knowledge and is guilty under Art. 7(1) (a) of the Rome Statute. He is
also individually liable under Art. 25 (2),(3) and also liable under Art. 28 (a). The

II.

mental element under Art. 30 is also satisfied by way of conduct.


Brg. Zachesu committed war crimes under Art. 8(2) (c) (i) by murdering innocent
civilians or caused death to them. He failed to follow Geneva the Conventions and

III.

the common threshold for non-international war crimes was met.


Brg. Vasvodina committed crimes against humanity by widespread attacks against
paramilitary and mine workers, their enforced disappearance in furtherance of
organisational policy and is guilty under Art. 7(1) (i) of the Rome Statute. He is
also individually liable under Art. 25 (2), (3) and also liable under Art. 28 (a). The

IV.

mental element under Art. 30 is also satisfied by way of conduct.


Brg. Vasvodina committed war crimes under Art. 8(2) (b)(iv) by attacking Rekht
city causing widespread, long term and severe damage to the natural environment
in excess of the anticipated concrete and direct overall military advantage
anticipated during international armed conflict.

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PLEADINGS
I.

BRIGADIER ZACHESUS ATTACK IS WIDESPREAD AGAINST CIVILIAN


POPULATION

WITH

KNOWLEDGE

IN

FURTHERANCE

OF

STATE

POLICYAND IS GUILTY UNDER ART. 7(1) (a) OF ICC STATUTE


(1.)

The Rodingan forces attacked Rukama on night of 16th April 2012. It is a widespread

attack against civilian population (A.) in furtherance of State policy with knowledge of the
acts. (B.)
(A.)

(2.)

Brg. Zachesu caused the death of one or more persons as part of a widespread
attack against the civilian population.
The term widespread refers to the large-scale nature of the attack and the number of

the victims.2 A crime may also be widespread by the cumulative effect of a series of
inhumane acts or the singular effect of an inhumane act of extraordinary magnitude. 3 The
death of 100 civilians, 50 AFD fighters and widespread destruction of civilian property, in the
local business center of Rukama on 16 April 2012 is undoubtedly an inhuman act of
extraordinary magnitude. The status of victims as civilians is one of the characteristics of a
crime against humanity.4 Art.50 (2) of Additional Protocol I (AP I) defines a civilian

2 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23-T& IT-9623/1-A, Appeals Chamber Judgement, 12 June 2002, 94. (Intl Crim. Trib. for the Former
Yugoslavia Oct. 2,1995).

3 Prosecutor v. Vidoje Blagojevic Dragan Jokic, IT-02-60-T, Trial Judgement, 17 January


2005, 545. (Intl Crim. Trib. for the Former Yugoslavia Oct. 2,1995).

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population as follows: the civilian population comprises all persons who are civilians. 5
Further under Art.50 (3) of AP I, the presence of individuals within the civilian population
who do not come within the definition of civilians, does not deprive the population of its
civilian character.6
(3.)The prosecution seeks to establish this attack was against a civilian population by
illustrating the violation of the principles of precautionary measure, discrimination and
proportionality by Brg. Zachesu. Precautionary measures with regard to armed conflict under
Rule 15 of customary IHL states that, in the conduct of military operations, constant care
must be taken to spare the civilian population, civilians and civilian objects. All feasible
precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian
life, injury to civilians and damage to civilian objects as expressed in AP I Art. 57.
(4.)

On 15th April 2012, the subordinates of Brg. Zachesu dropped pamphlets on the city of

Rukama warning all civilians to evacuate before launching attack the very next day 7. The
prosecution asserts that this measure was extremely inadequate. A reference here can be made
4 Prosecutor v. Tihomir Blaskic, IT-95-14-A, Appeal Judgement, 29 July 2004, 107; (Intl
Crim. Trib. for the Former Yugoslavia Oct. 2,1995).

5 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), 8 June 1977, 1125 UNTS 3. Art. 50(2).

6 ICTY, Prosecutor V. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23-T& IT-96-23/1-T,
Trial Chamber Judgement, 22 February 2001, 425.

7 Pg. 10, Moot Problem.

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to the military manuals8 of a number of signatory states. Additionally, the Goldstone Report 9
of the United Nations Fact-Finding Mission on the Gaza Conflict by the UNHRC expressly
states that the use of leaflets alone by the IDF in evacuating civilians was not an efficient
advance warning. The IDF forces also did not consider the distribution of leaflets alone as
sufficient

to

presume

the

absence

of

civilians

at

the

relevant

locations. 10

(5.)The principle of discrimination is recognized under Rule 12 of Customary IHL by


defining indiscriminate attacks, and also under Rule 71 through prohibition of the use of
indiscriminate weapons. The same is reiterated under Art.51 (4) of AP I. Further evidence of
the customary nature of the definition of indiscriminate attacks can be found in the
jurisprudence of ICJ and ICTY. In its advisory opinion in the Nuclear Weapons case, the
International Court of Justice stated that the prohibition of weapons that are incapable of
distinguishing between civilian and military targets constitutes an intransgressible principle
of customary international law11.

8 Hague Regulations 1899 and 1907; Lieber Code; Brussels Declaration; Oxford Manual;
IDF Manual all commonly share the requirement of notification to local authorities (if the
situation permits) was effective advance warning.

9 UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 25
September 2009, A/HRC/12/48, 536.

10 Israel Ministry of Foreign Affairs, The Operation In Gaza: Factual And Legal Aspects (Part V.C) 3666
(2009).

11 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996,
p. 226, International Court of Justice (ICJ), 8 July 1996.

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(6.)Indiscriminate attacks are those (a) which are not directed at a specific military
objective; (b) which employ a method or means of combat which cannot be directed at a
specific military objective; or (c) which employ a method or means of combat the effects of
which cannot be limited as required by international humanitarian law; and consequently, in
each such case, are of a nature to strike military objectives and civilians or civilian objects
without distinction. In the present case, Brg. Zachesu bombed the business center of Rukama.
The prosecution contends that this is not a military objective, 12 because the partial or total
destruction of Rukama does not offer a definite military advantage in the circumstances
ruling at the time. It was only later that Rukama was set up as a temporary base camp close to
Rasinia. The means of combat employed were not those that could be directed at a specific
military objective and were also used indiscriminately.
(7.)In the present case, Brg. Zachesu used not just drones, but also wide area weapons like
shells from tanks and fighter jets, which were excessive and not necessary. This excessive use
of various means of combat and the factual evidence of the civilian casualty indicate that the
Principle of proportionality has also been violated. She also happened to use them on the
night of the 16th, which would make distinction of civilians and AFD fighters all the more
difficult.
(B.)

(8.)

Brg. Zachesu killed civilians in furtherance of State policy and with full
knowledge.

Brg. Zachesu being Rodingan Governments army brigadier her acts can be classified

as part of State policy, since she has used the State resources ranging from armed men, tanks,
12 Rule 8 of Customary IHL states In so far as objects are concerned, military objectives are limited to those
objects which by their nature, location, purpose or use make an effective contribution to military action and
whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage.

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fighter jets and drones. She had full knowledge of the attack since he led the forces into
Rukama and is quite aware of the ground realities. Her indiscriminate attack was in
retaliation to loss of 50 soldier the previous week.13
II.

BRIGADIER ZACHESU MEETS THE THRESHOLD FOR WAR CRIMES AND


CAN BE HELD GUILTY OF CHARGES UNDER ART. 8 (2) (c) (i) OF THE
ROME STATUTE

(9.)As a result of the attacks on the night of 16th April 2012, Brg. Zachesu along with her
forces entered Rukama on the morning of 17th April 2012. They found more than 50 civilians
hiding in natural caves, who were then beaten, and their bodies were found to have been
subjected to many kinds of inhuman invasions on their private organs.
(10.) The common requirements or elements under Art.8 for all the underlying offences
here under are a) Such person or persons were either hors de combat, or were civilians,
medical personnel, or religious personnel taking no active part in the hostilities, and that the
perpetrator was aware of the factual circumstances that established this status. Also, that c)
the conduct took place in the context of and was associated with an armed conflict not of an
international character and that d) the perpetrator was aware of factual circumstances that
established the existence of an armed conflict.
(A.) Killed is also construed to mean, caused the death of
(11.) The perpetrator is charged under Art.8 (2) (c) (i) that includes of the underlying
offences of the war crime of cruel treatment and murder. The prosecution argues that the
inhuman physical invasions on the private organs of the civilians hiding in caves incited
severe physical pain and suffering upon those persons, satisfying the first element of Art.8 (2)
13 Pg. 9, Moot Problem.

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(c) (i)-3 (war crime of cruel treatment). The perpetrator further killed one or more persons
either by murdering the wounded or not facilitating their access to medical care. Rule 55 of
Customary IHL states that the parties to the conflict must allow and facilitate rapid and
unimpeded passage of humanitarian relief for civilians in need, which is impartial in
character and conducted without any adverse distinction, subject to their right of control.
Art.72 of AP I and Art.18 (2) of AP II further emphasize this obligation.
(12.) Brg. Zachesus forces being part of the government army were under an obligation to
provide arrangement or allow access to medical care and the defense of operational constraint
so claimed by the government is unreasonable because Rukama was subsequently made a
base camp. While murder is commonly considered to involve homicide it includes acts of
omission that may lead to death where that omission is contrary to the law of armed conflict
and he perpetrator acts willfully14. Murders by acts of omission were confirmed by the
ICTY15 and ICTR16. The acts of omission by Brg. Zachesu resulting in death were acts of
omission contrary to the law of armed conflict and therefore the crime against humanity of
murder. Thus the conduct resulted in causing of death satisfying the first element of 8 (2) (c)
(i) (1).

14Jean S. Pictet, ed., Commentary, IV Geneva Convention, 1949 (Geneva: ICRC, 1958), pg. 222.

15 Prosecutor V Zejnil Delalic, Zdravko Mucic (aka Pavo), Hazim Delic and Esad Lando
(aka Zenga) (lebici Case), IT-96-21-A, Appeals Judgement, 20 February 2001, 318
(ICTY);

16 Prosecutor v Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Judgment, 2 September


1998, 589. (ICTR)

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(13.)The second and third elements are the same for the war crimes of murder and cruel
treatment. They require civilian status of the victims, their non-participation in hostilities and
the perpetrators knowledge of these factual circumstances. From the facts we may find that
the civilians hiding in caves did not directly participate in hostilities as per the obligation
under Art.50 (3) of AP I when there is doubt as to the civilian status of a person the
presumption should be in favor of such civilian status. Brg. Zachesus forces therefore were
incorrect in their presumption that the mere dropping of pamphlets.
(14.) According to AP I Art.51 (3): Direct participation in hostilities (defined in AP I
commentary) reads: Civilians shall enjoy the protection afforded by this Section, [General
Protection Against Effects of Hostilities], unless and for such time as they take a direct part in
hostilities. Direct participation must refer to specific hostile acts, and it clearly suspends a
civilians noncombatant protection. The commentary to Protocol I provides some
clarification: direct participation means 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. The
hiding civilians did not merely by their failure to evacuate post warning, partake directly in
the hostilities.
(B.)The conduct took place in the context of and was associated with an armed
conflict not of international character and the perpetrator had knowledge
(15.) The jurisdictional requirement for the applicability of Art.8 (2) (c) (i) is the
association of the conduct in the context of a non-international armed conflict. The incident
on 17 April 2012 was associated and occurred in the context of the armed conflict leading
from early April in Rukama. Common Art.3 of Geneva Convention- 1. International armed
conflicts exist whenever there is a resort to armed force between two or more states. 2. NonInternational armed conflicts are protracted armed confrontation occurring between

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governmental armed forces and the forces of one or more armed groups, or between such
groups arising on the territory of a State (party to the Geneva Conventions). In particular,
there are 2 factors to distinguish non-international armed conflicts from other sporadic acts
such as internal disturbances, riots etc.17
(16.)For an armed confrontation to be a non-international armed conflict, firstly, it must
reach minimum level of intensity.18 Factors to assess level of intensity include the number of
civilians forced to flee from combat zones, types of weapons used in particular use of heavy
weapons, and military equipment such as tanks, heavy shelling of towns, and number of
causalities caused by shelling.19
(17.)Secondly, the parties to the conflict must show a minimum level of organization. The
EFOR and RSRP came together to constitute the AFD in the early 1990s and engaged in
sustained low scale violence with the government forces for many years. In 2011, post the
sensational jailbreaks of influential persons such as Mr.Adolo, Mr.Salania and Mr.Alberto,
they were declared joint presidents of the AFD. Subsequently, state units of AFD were
formed with exponentially increasing membership to broaden their support base and the AFD
also reestablished its operational branch under the leadership of Brig.Vasvodina. Thus the
aforementioned facts show (i) similar conditions as prescribed for the intensity of a noninternational armed conflict and (ii) that the armed group in conflict, AFD, has a minimum
level of organization.
17 Art.8 (2) (d), Rome Statute.

18 Prosecutor v. Duko Tadi, IT-94-1-T, Trial Judgement, 7 May 1997, 562. (ICTY).

19 Prosecutor v. Ramush Haradinaj Idriz Balaj Lahi Brahimaj, IT-04-84bis-T, Retrial Judgement, 29 November
2012, 394. (ICTY).

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III.

BRIGADIER VASVODINA CAUSED SYSTEMATIC ATTACK AGAINST


CIVILIAN POPULATION IN FURTHERANCE OF ORGANISATIONAL POLICY
WITH FULL KNOWLEDGE AND GUILTY UNDER CRIMES AGAINST
HUMANITY ART. 7(1) (i) of ICC STATUTE
(18.)

The December 2011 coordinated attacks by AFD 20 headed by Brigadier

Vasvodina is a systematic attack against civilian population in furtherance of


organizational policy by an organization (A.) and the elements under Article 7(1)(i) are
satisfied (B.).
(A.)AFD attack was widespread and systematic against civilian population to
further their organizational policy with knowledge
(19.)In reference to Article 7(1) of the Statute, a crime against humanity is constituted if
the acts have been committed as part of a widespread or systematic attack, directed
towards the civilian population, with knowledge of the attack. In December, 2011, AFD
fighters launched coordinated attacks against government installations and buildings in
the States of Sinsalu and Kambhatka. The famous coal and gold mines were captured
and 50 personnel of Rodingan Paramilitary and almost 50 employees working in these
mines were capture by them.
(20).

A crime against humanity within the meaning of Art. 7 of the Statute, the

attack consists of a course of conduct involving the multiple commission of acts directed
against the civilian population as a whole in this case coal and gold miners and not
against randomly selected individuals.21 The terms widespread and systematic are not
specifically defined in the Rome Statute.22

20 Pg. 8, Moot Problem.

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(21.)The attack must be widespread or systematic in nature contrary to isolated or
random acts of violence. The AFD fighters started a series of coordinated attacks in
December, 2011. In this regard, the adjective widespread refers to the large-scale
nature of the attack and the number of targeted persons, 23 which has affected nearly 100
civilians, while the adjective systematic refers to the organised nature of the acts of
violence and the improbability of their random occurrence.24 AFD fighter have
consolidated themselves by forming state units, they had operational branch to conduct
of operations and the first series was very new in the arsenal of AFD.
(22.)It should also be noted that the term widespread refers to the large scale nature
of the attack, as well as number of victims 25, and the attack must be massive, frequent
21 Situation in the Republic of Cote dIvoire, Decision Pursuant to Article 15 of the Rome
Statute on the Authorization of an Investigation into the Situation in the Republic of Cote
dIvoire, 3 October 2011, ICC- 02/11-14 (hereinafter PTC-III Cote dIvoire Investigation
Decision), paras. 31-33.

22 W. Schabas, The International Criminal Court: A Commentary on the International


Criminal Court, Oxford: Oxford University Press 2010, p. 148

23 PTC-III Cote dIvoire Investigation Decision, para. 53.

24 PTC-III Cote dIvoire Investigation Decision, para. 54.

25 Prosecutor v. Omar Al Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecution's


Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009,
para. 81. (Bashir); The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Pre-

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and carried out collectively with considerable seriousness and directed against a
multiplicity of victims.26 It also involves an attack carried out over a large geographical
area or an attack in a small geographical area directed against a large number of
civilians.27 In regard the nature of widespread attack it may be considered a cumulative
effect of a series of inhumane acts or the singular effect of an inhumane act of
extraordinary magnitude.28
(23.)The term systematic can be construed to the organised nature of the acts of
violence and to the improbability of their random occurrence. 29 The AFD attack can be
Trial Chamber I, Decision on the Confirmation of Charges, Situation in the Democratic
Republic of Congo, 30 September 2008, ICC-01/04- 01/07-717, paras. 394-397 (Katanga et
al.).

26 The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision


Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor
Against Jean Pierre Bemba Gombo, 15 June 2009, para. 83. (Bemba); Also: Katanga et al.
N. 8 paras. 395 and 398; Akayesu (ICTR-96-4-T), Judgement, 2 September 1998, para. 580
(Akayesu); The Prosecutor v. Ntakirutimana (ICTR-96-10 & ICTR-96-17-T), Judgement,
21 February 2003, para. 804. (Ntakirutimana et al.).

27 Ibid. para. 83.

28 Kordic et al. (IT-95-14/2-T), Judgment, 26 February 2001, para. 179; Kordic et al. (IT-9514/2-A), Judgement, 17 December 2004, para. 94.

29 Bashir, N. 8, para. 81; Katanga et al., N.8 paras. 394-397.

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considered systematic because it lasted for well over 15 years which started in 1995 as
sustained low scale violence against government police and paramilitary forces and the
acts of violence of which it was comprise followed, to a considerable extent, a similar
pattern i.e. attack of police and government paramilitary forces. 30 Pre Trial Chamber I in
has termed systematic to be understood as either a organised plan in furtherance of a
common policy, which follows a regular pattern and results in a continuous commission
of acts or as patterns of crimes such that the crimes constitute a non accidental
repetition of similar criminal conduct on a regular basis. Thus, in the context of
systematic attack, the requirement of a multiplicity of victims pursuant to article 7(2) (a)
if the Statute ensures that the attack involved multiplicity of victims pursuant to Article
7(2)(a) of the Statute ensures that the attack involved a multiplicity of victims of one of
the acts referred to in article 7(1) of the Statute.31
(24.)The attack must also be conducted pursuant to or in furtherance of a State or
organizational policy. The term State is self-explanatory, yet a State policy does not need
to have been conceived at the highest level of State machinery but may have been
adopted by regional or local organs of the State.32 Organizations not linked to a State
may, for the purposes of the Statute, elaborate and carry out a policy to commit an attack
against a civilian population. Such a policy may be made either by groups of persons
who govern a specific territory or by any organisation with the capability to commit a
widespread or systematic attack against a civilian population. The policy need not be
30 Bashir, N. 8, para. 85.

31 Katanga et al. N.8, paras. 397-398.

32 PTC-III Cote dIvoire Investigation Decision, para. 45.

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explicitly defined by the organizational group.33 The determination of whether a group
qualifies as an organization under the Statute must be made on a case-by-case basis. 34
From the above it can be clearly seen that AFD is a organisation established for
establishment of federal democracy in Rodinga and it has strong organisational policy.35
(25.).In Omar Al Bashir Case, the Chamber held that,
in order to constitute a crime against humanity, Article 7(1) of the Statute also
requires that the relevant acts of violence be committed with knowledge of the attack
such that the perpetrator had knowledge of all characteristics of the attack or the precise
details of the plan or policy of the State or organization.36
And also the Chamber has already held, such knowledge should not be interpreted as
requiring proof that the perpetrator had knowledge of all characteristics of the attack or
33 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Pre-Trial Chamber I,
Decision on the Confirmation of Charges, Situation in the Democratic Republic of Congo,
30 September 2008, ICC-01/04- 01/07-717, para. 396.

34 PTC-III Cote dIvoire Investigation Decision, para. 46. The Chamber identified a number
of factors which can be taken into account when determining the organization: a) whether
the group is under a responsible command, or has an established hierarchy; b) whether the
group possesses the means to carry out a widespread or systematic attack against a civilian
population; c) whether the group exercises control over part of the territory of the State; d)
whether the group directed its criminal activities against the civilian population as a primary
purpose; e) whether the group articulates, explicitly or otherwise, an intention to attack a
civilian population; and f) whether the group is part of a larger group, which fulfils some or
all of the abovementioned criteria.

35 Pg. 8, Moot Problem.

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the precise details of the plan or policy of the State or organization. 37 On the contrary,
this Chamber has previously understood this phrase to mean that the perpetrator knew
that there was an attack on a civilian population, and that his or her acts were a part of
that attack.38
(B.)Elements under Art. 7 (1) (i) read with Art. 30 and Art. 28
(26.)Enforced disappearance is defined under Art. 7(2)(i) of the Rome statute and Art.
2, International Convention for the Protection of All Persons from Enforced
Disappearance39. Enforced Disappearance has been recognised by Inter American Court
of Human Rights and national courts in Latin American region. 40 Rule 98 of Customary
International Humanitarian Law prohibits enforced disappearance. The crime of enforce
disappearance is a violation of several fundamental rights, including the right to liberty
36 The Prosecutor v. Omar Al Bashir, Case No. ICC-02/05-01/09, Decision on the
Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir,
(March 4, 2009) para. 80.

37 Ibid.

38 ICC-01/04-01/07-717, para. 401. See also ICTY, The Prosecutor v Kordic and Cerke:,
Case No. IT-95- 14/2-A. Appeals Judgment. 17 December 2004, para. 99; ICTY, The
Prosecutor v Elastic. Case No. IT-95-14- A, Appeals Judgment, 29 July 2004, para. 124;
ICTR, The Prosecutor v Semarca, Case No. ICTR-97-20-T, Trial Judgment, 15 May 2003,
para. 332.

39 International Convention for the Protection of All Persons from Enforced Disappearance,
20 December 2006.

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and security of the person, the prohibition of torture, the right be treated with humanity
and with respect for the inherent dignity of the human person and the right to life. 41 The
crime of enforced disappearance has eight elements to be satisfied as per Art. 7(1)(i).
AFD have captured 50 paramilitary and almost 50 civilians in December, 2011 which
could be inferred they have been detained by AFD 42. In spite of them having internet 43 in
deep forests they failed to inform or divulge details about the whereabouts of the
captured civilians to IHEA44 which could only be inferred as the refusal to acknowledge
of deprivation of civilians or to give information on the fate or whereabouts of the
civilians. Brg. Vasvodina being the operational head shall be construed to know about
these enforced disappearances when a literal construction of Art. 28(a)45 shall be given.
(27.)AFD is an organization and has all elements of a political organization to be
considered a political organization and these crimes happened within few months of Brg.
40 Velasquez Rodriguez v. Honduras, Series C. No. 4, para. 148; Godinez Cruz v. Honduras,
C. No. 5, para. 153; Trujillio Oroza v. Bolivia, Series C No. 64, paras. 2 and 36.

41 Sarma v. Srilanka (No. 950/2000), UN Doc. CCPR/C/78/D/950/2000, para 9.3.

42 Art. 7(1) (a), ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 2187
U.N.T.S. 90, entered into force July 1, 2002.

43 Pg. 8, Moot Problem.

44 Pg. 9, Moot Problem.

45 Art. 28(a), Rome Statute.

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Vasvodina was made leader of the operational branch.46 It shall be considered that such
detention was made with the authorization, support or acquiescence of a political
organization. The statement made by Brg. Vasvodina on 8th May, 2012 can be clearly
seen as a threat to civilians that they should not sympathise with Mr. Radula. 47 His
statement to IHEA that the captured civilians and paramilitary forces are out in Rodinga
to spread AFD ideals should be construed as a statement of refusal of acknowledgement
of whereabouts.48
(28.)The whereabouts of the captured employees and paramilitary forces are not known
for the last five years i.e. from December, 2011 till date. 49 So it can only be understood
that Brg. Vasvodina intended to remove them from the protection of the law for a
prolonged period. The conduct was initiation of a series of coordinated attacks even
though it was sustained low scale violence against paramilitary troops from 1995.50
(29.)Even a single act can constitute a crime against humanity when committed within
the appropriate context.51 The knowledge of the attack is an element of crime against
humanity under customary international humanitarian law.52 The final element contains
the context element: the perpetrator knew that the conduct was part of or intended the
46 Pg. 8, Moot Problem.

47 Pg. 12, Moot Problem.

48 Pg. 11, Moot Problem.

49 Ibid.

50 Pg. 8, Moot Problem

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conduct to be part of a widespread or systematic attack directed against a civilian
population.53The introduction to elements of crimes against humanity provides further
clarification:
However, the last element should not be interpreted as requiring proof that the
prosecutor had knowledge of all characteristics of the attack or the precise details of the
plan or policy of the State or organization. In the case of emerging or widespread or
systematic attack against a civilian population, the intent clause of the last element
indicates that this mental element is satisfied if the perpetrator intended to further such
an attack.54
The prosecution need not establish that the perpetrator knew the details of the attack or
approved of the context in which his or her acts occurred.55

51 Kupreskic et. al. (IT-95-16-T), Judgement, 14 January 2000 para. 550; Kordic et al. (IT95-14/2-T), Judgment, 26 February 2001, para. 178; Prosecutor v. Mrksic et al. (IT-95-13R61), Review of Indictment Pursuant to Rule 61, 3 April 1996, para. 30.

52 Kunarac et al. (IT-96-23/1-A), Judgment, 12 June 2002, paras. 102,410; Tadic (IT-94-1A), Judgment, 15 July 1999 para. 271; Kordic et al. (IT-95-14/2-A), Judgment, 17 December
2004, paras. 99-100; Prosecutor v. Limaj et al. (IT-03-66-T), Judgment, 30 November 2005,
para. 190.

53 Elements of Crimes, Crimes Against Humanity, Introduction, para. 3.

54 Katanga et.al, N. 8, paras. 401-402, Also Bashir, para. 87, Bemba, para 88.

55 Kunarac et al., para. 102, Prosecutor v. Krnojelac (IT-97-27-T), Judgment, 15 March 2002,
para 59.

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(30.)The above facts and contentions clearly state that the general element of crimes
against humanity and elements under Art. 7(1)(i) is satisfied and in furtherance the
mental element under Art. 30 is also satisfied since Brg. Vasvodina had both intent and
knowledge of the attack.
IV.

BRIGADIER VASVODINA IS GUILTY OF WAR CRIMES UNDER ART. 8(2) (b)


(iv) OFROME STATUTE

(31.) The attack launched during early hours of 12th May 2012 did not have concrete and
direct overall military advantage (A.) and consequent result of widespread, long-term and
severe damage to the environment is a war crime under Art. 8(2) (b)(iv) (B.) during an
international armed conflict (C).
(A.)The Attack did not have concrete and direct overall military advantage and
caused widespread, long term and severe damage to environment.
(32.)

Attack is defined as acts of violence against the adversary, whether in offence

or defence.56 The attack was launched by Brg. Vasvodina during early hours of 12 th May,
201257 on industries of Rekht cities located in the border of Sanrolia and Kambhatka. 58 In
spite of warnings of environmental catastrophe from Govt. Rodinga and also they
declared their intention for uninterrupted movement to Zawaluan forces and AFD

56 Art. 49, 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), 8 June 1977, 1125 UNTS 3.

57 Pg. 12, Moot Problem.

58 Pg. 5, Moot Problem.

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fighters insider Sanrolia through Rekht.59 Civilian objects such as fertilizer industries or
for that matter any industry is not a military objective and thus be protected from attack
and it is prohibited to attack.60 Military objectives are limited to those, by their nature,
location, purpose or use make an effective contribution to military action and whose total
or partial destruction, capture or neutralization, in the circumstances ruling at the time,
offers a definite military advantage.61
(33.)

The expression concrete and direct overall military advantage has been

clearly explained in Elements of Crime. 62. There should be a foreseeable military


advantage at the time of attack by Vasvodina. But there was no foreseeable military
advantage known to a diligent man when there was uninterrupted access. There should be
a proportional advantage to attack in order to gain military advantage. But in this case
attack on industries is not a military objective. To clarify further, the fact that this crime
admits the possibility of lawful incidental injury and collateral damage does not in any

59 Pg. 12, Moot Problem

60 Art 52, 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), 8 June 1977, 1125 UNTS 3.

61 Art 52(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), 8 June 1977, 1125 UNTS 3.

62 Footnote 36, Elements of Crime.

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way justify any violation of the law applicable in armed conflict is meant to emphasise
essentially that
in order to comply with the conditions, the attack must be direct against a military
objective with means which are not disproportionate in relation to the objective, but are
suited to destroying only that objective, and the effects of the attacks must be limited in
the way required by the Protocol; moreover, even after those conditions are fulfilled, the
incidental civilian losses and damages must not be excessive.63
(34.)

It should also be noted that the expression concrete and direct means the

advantage concerned should be substantial and relatively close, and the advantages
which are hardly perceptible and those which would only appear in the long term should
be disregarded.64 According to Art. 57 (2)(b)
An attack should be cancelled or suspended if it becomes apparent that the objective is
not a military objective or is subject to special protection or that the attack may be
expected to cause incidental loss of civilian life, injury to civilians, damage to civilian
objects or a combination thereof, which would be excessive in relation to the concrete
and direct military advantage anticipated.65
(35.)It is prohibited to render useless objects indispensable such as drinking water
supplies.66 The use of methods which may be expected to cause long term damage to the

63 C. Pilloud and J.S. Pictet, Art. 51 in Y. Sandoz, C.Swinarski and B. Zimmermann (eds.),
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (ICRC, Martinus Nijhoff, Geneva, 1987), no. 1979.

64 Ibid., Art. 57, no. 2209.

65 Art. 57(2)(b), 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), 8 June 1977, 1125 UNTS 3. (AP I).

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natural environment.67 The ENMOD Convention68 states that widespread means an area
of several hundred square kilometers, long lasting means lasting for a period of months,
or approximately a season; severe means involving serious or significant disruption or
harm to human life, nature and economic resources or other assets. The release of Agent
X has cause damage to the Sanrole river which will last for decades.
(36.)Brg. Vasvodina was informed of the environmental catastrophe which will follow
on attack of industries which he chose to ignore.69
(B.)Attack on Rekht city by Zawaluan Forces with AFD is in nature of
International Armed Conflict.
(37.)The actions of AFD can be attributed to the Zawaluan forces even though
having separate organizational structure.70 The situation is very similar to the Georgia
66 Art. 54, 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), 8 June
1977, 1125 UNTS 3.

67 Art 55, 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), 8 June 1977, 1125 UNTS 3.

68 Convention on the Prohibition of Military or any Hostile Use of Environmental


Modification Techniques, 1976.

69 Pg. 12, Moot Problem.

70 Case Concerning Military and Paramilitary Activities In and Against Nicaragua


(Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June

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situation and the Pre Trial Chamber I of this Court has order for investigation and
termed it as international armed conflict.71 Zawaluan forces have supported a terrorist
organization and all acts of AFD after the joining of forces can be imputed to Zawalu.
It is also to be noted the support by Lebanon to Hezbollah within the territory of Israel
was declared International Armed Conflict. Alternatively, AFD had control of
Kambhatka before the attack and also met the conditions for the state under the
Montevideo Convention on Rights and duties of states. So the attack by AFD alone
will also be considered as part of international armed conflict since it is a State like
entity.
(38.)AFD had provided operational support by Zawaluan forces and they
coordinated, directed, or assisted in the general planning of the groups military
activities, so essential for effective control test is satisfied. 72 In Branin, for example,
the Trial Chamber concluded easily that the first test was satisfied by the direct
intervention of troops of the FRY in the Bosnian conflict between April and May
1992.73 Secondly, active support was sought from Zawalu and under the leadership of
Col. Samwolia in assisting the AFD fighters in their mission.

1986, para. 219.

71 Situation in Georgia, ICC-01/15, Decision on the Prosecutors request for authorization


of an investigation, 27 January 2016.

72 Prosecutor V. Duko Tadi, IT-94-1-A, Appeals Judgement, 15 July 1999, 137

73 Prosecutor V. Radoslav Branin, IT-99-36-A, Trial Judgement, 1 September 2004, 144.

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(39.). For example, in assessing whether alleged crimes in Central Bosnia were
committed in the context of an international armed conflict, the Kordic and erkez
Trial Chamber held that it could rely on evidence of the presence of Croatian Army
(HV) troops in areas outside of Central Bosnia if the location of those areas is of
strategic significance to the conflict, reasoning that the inquiry is focused on the
intervention of a state in the conflict itself, which was not geographically limited to
the crime base locations.74 The border of Rekht city was a location of those areas of
strategic significance to the conflict and the intervention of the state in the conflict
is not confined to the crime base location.
(40.)Brg. Vasvodina was clearly aware of factual circumstances of existence of an
armed conflict since he ordered the launch of attack fully knowing that the Rodingan
forces will retaliate. A reasonably well informed person in the circumstances of the
actual perpetrator could have expected excessive civilian casualties. 75 And thus Brg.
Vasvodina launched the attacks willfully and in full knowledge of circumstance rising
of the expectation of excessive civilian casualties.76 Art. 85(3)(b)77 also covers the
74 The Trial Chamber concluded that the conflict between the Bosnian Croats and the Bosnian Muslims in
Bosnia and Herzegovina was internationalized by the intervention of Croatia in that conflict through its troops.

75 Prosecutor v. Stanislav Galic (Trial Judgement and Opinion), IT-98-29-T, International


Criminal Tribunal for the former Yugoslavia (ICTY), 5 December 2003. Para 58.

76 Ibid. paras. 59-60.

77 Art 85(3)(b), 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), 8 June 1977, 1125 UNTS 3.

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grave breaches of Brg. Vasvodina read with Art. 11.78 The element under Art. 8(2)(b)
(iv) are satisfied from the above.

PRAYER
Wherefore in light of the questions presented, arguments advanced and authorities cited, the
Prosecution respectfully requests this Court to adjudge and declare that:
I.

Brg. Zachesu be found guilty of crimes against humanity under Article 7(1)(a) and be
sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome

II.

Statute.
Brg. Zachesu be found guilty of war crimes under Article 8(2) (c) (i) and be sentenced

III.

according to Art. 76 and penalty imposed as per Art. 77 of the Rome Statute.
Brg. Vasvodina be found guilty of crimes against humanity under Article 7()(i) and be
sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome

IV.

Statute.
Brg. Vasvodina be found guilty of war crimes under Article 8(2) (b) (iv) and be
sentenced according to Art. 76 and penalty imposed as per Art. 77 of the Rome
Statute.

78 Art. 11, 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), 8 June 1977, 1125 UNTS 3.

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